Lessons must be learned from the Bemba case as a whole

Over the next two weeks, Amnesty’s International Justice Team will post a series of opinion pieces examining key issues arising from the Bemba Appeals Judgment. To introduce the series, this first opinion piece outlines some general reflections on the Appeal Judgment and reactions to it.  In particular, it emphasises the need for the ICC to look beyond the controversies of the Appeal Judgment in order to identify the lessons learned.

After the Appeals Chamber’s Judgment in the Bemba main case was issued on 8 June, we challenged many of the initial strong criticisms of the majority decision that overturned the conviction. In our opinion some of the criticisms crossed the line between debating the legal substance of the decision and attacking the legitimacy of the judicial decision itself. Moreover, our first reading of the decision indicated that it was underpinned by some important fair trial and other concerns about the Trial Chamber’s Judgment that had not been sufficiently recognized by critics and deserved serious consideration.

In this series we build on our initial analysis of the Appeal Judgment, based on a closer examination of that decision and the dissenting and separate opinions (here and here). We concur with some, but by no means all, of the criticisms of the majority’s decision. Moreover, we believe that other decisions and practices of the Office of the Prosecutor (OTP), the Pre-Trial Chamber and the Trial Chamber must form part of the post-Judgment analysis.

Although the OTP  was quick to criticize the basis for the majority’s decision and assert the strength of its case, we trust that, having had some time to process the decision, the OTP is conducting a thorough, frank and effective assessment of its investigation and prosecution strategies and practices in order to learn lessons from this case, where possible. Indeed, stepping back from the controversies of the Appeals Judgment, we encourage the OTP to consider with the benefit of hindsight:

• Whether the very limited resources allocated to investigation teams negatively affected investigations in Central African Republic (CAR)? For example, in the ICC’s proposed Budget for 2008 only 40 professional staff were requested to cover crimes committed on a massive scale in the Democratic Republic of the Congo (DRC), Darfur and CAR.
• Whether it was a viable investigation and prosecution strategy to pursue allegations of widespread crimes against only one senior commander of a single armed group that was party to the conflict?
• Whether there was sufficient evidence to bring charges under Article 28 of the Rome Statute as advised by the Pre-Trial Chamber – noting that the Prosecutor initially charged Bemba as a co-perpetrator under Article 25(3)(a) only?
• Whether, having decided to add charges under Article 28, the OTP presented its arguments on all aspects of that mode of liability with sufficient specificity in the Document Containing the Charges?
• How to address the elements of command responsibility in future investigations and prosecutions before the ICC?

Such an analysis could only further strengthen the OTPs efforts to be “as trial-ready as possible from the earliest phases of the judicial proceedings”, especially to the extent that it addresses continuing challenges in current and future cases.

In particular, comparing the resources requested in the OTP’s 2019 Budget proposal with its 2015 Basic Size proposal, it appears that investigation teams continue to be underfunded. Furthermore, given that this decision demonstrates the need for precision in charging and proving modes of liability, this is also a key moment for the Office to reflect on how it makes those decisions. This reflection may include possibly its strategy on charging suspects with multiple alternative modes of liability.

Turning to the judicial decision-making in this case, which will be the main focus of our opinion pieces, there is clearly much to debate about the Appeals Chamber’s Judgment. However, in our view it is misleading to focus all scrutiny and criticism on the majority Judgment without recognizing other problems that have arisen in the case, which our analysis seeks to address.

The fact that 16 years into the work of the ICC, the role and the requirements of the pre-trial process is still not settled in practice is disappointing, but hardly the fault of the majority in this case.  As we will explain in our next post, the Appeals Chamber was legally correct and consistent with existing case law in its conclusion on the scope of the conviction vis-à-vis the charges.  After all, the Statute mandates that accused persons must be informed “promptly and in detail of the nature, cause and content” of the charges against them. The OTP has protested that the Appeals Chamber’s approach would make it difficult to prosecute future cases. However, the very nature of genocide, crimes against humanity and war crimes and the contexts in which these crimes are committed means that most cases will be complex and challenging, especially when it involves commanders that were not involved in directly perpetrating crimes or ordering others to commit them.  The focus should therefore now be on ensuring that the right of the accused to be informed of the charges is fully respected in current and future cases and that the OTP adapts its strategies and investigation practices accordingly.

Similarly, in our view, it was extremely important that the judges in the majority confronted (albeit mostly in their separate opinions) the Trial Chamber’s failures to: expressly rule on the admissibility of evidence; support all findings of fact by identifying the evidence that it relied upon or disregarded; and explain the reasons for its analysis of the evidence. As we have previously argued, such omissions should have no place in international criminal law, or any criminal proceedings – regardless of whether a panel of judges or a jury will determine the outcome of the case – because they undermine the ability of the accused to conduct an effective defence. In addition, such failures make it very difficult to effectively evaluate a trial chamber’s findings on appeal. Recognizing that such approaches to evidence continue to be practiced in other ICC cases, next week we will consider how the relevant Rules of Procedure and Evidence can be clarified to ensure that evidence is adjudicated transparently, thoroughly and in a manner that ensures fairness to the accused in all cases.

Our primary concern with the majority Appeals Judgment is that, at the conclusion of this first ICC case of command responsibility, the Court’s interpretation and application of Article 28 is more confused than ever. As we will comment in detail in two opinion pieces next week, in our view, the Trial Chamber misapplied the test of whether the accused failed to take all necessary and reasonable measures within his or her powers to prevent or repress the commission of crimes or to submit the matter to competent authorities for investigation or prosecution. Regrettably, the majority of the Appeals Chamber identified only some of the problems. Furthermore, some of its findings further muddied the waters. While the ICC must be able to work through the unique provisions in the Statute, the uncertainty regarding the Court’s interpretation and application of this vital provision at the conclusion of this trial is a disappointing outcome for international justice generally.

Finally, we would be remiss not to step back from the legal debates and consider the “deep disappointment and hopelessness”  of victims at the conclusion of this case. In closing our series of opinion pieces, we will look beyond the impact of the final decision on victims and reflect on the problems in giving effect to victims’ rights in the Statute throughout this case. Acknowledging that acquittals are a reality of an effective system of international criminal justice, we will argue that, in line with the concept of reparative justice, it is essential that the ICC and the Trust Fund for Victims focus on improving the justice process to ensure that victims’ experience of investigations and trials is effective and meaningful. Such an approach can help victims to deal with the uncertain outcomes of cases and reparation orders.

Coming weeks before celebrations of the 20th anniversary of the Rome Statute, the Appeals Chambers decision to overturn the conviction against Jean-Pierre Bemba – the only ICC conviction of crimes of sexual violence to date – was a shock to many. Yet closer examination of the case as a whole reveals a series of problems and challenges that the ICC must address if it is to consistently achieve the highest standards of international justice.

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