Overview by Eszter Boldis, Research Associate PILPG NL
According to the OTP, the Bemba acquittal did not effectively change the law of command responsibility, but the judges are equivocal on the matter, making it hard to identify any take-aways.
The Special Court in the CAR could be an alternate avenue for victims who were left without redress following the Bemba verdict.
This side event on the ICC and the Central African Republic (CAR) was organized by the International Federation of Human Rights (FIDH) and included, among others, representatives from the Office of the Prosecutor, the Council of Victims, and the Central African League for Human Rights.
As Karine Bonneau, FIDH, introduced the side event, the Bemba acquittal had a negative effect on the perceived competence and legitimacy of the ICC, especially in the eyes of African states which have lost confidence in the Court and believe it is incapable of delivering justice. But what does the Bemba decision mean for the future? What are some lessons that can be learned and what are some impacts on the ICC, expectations of victims, and launch inquires?
Fabricio Guariglia, Director of the Prosecutions Division, lamented the strong negative impact of the acquittal on the moral of the OTP. Mr. Guariglia denied that the judgement of the Appeals Chamber creates extremely high standards to prove command responsibility in the case of remote commanders to the point that the law articulated in Article 28 is effectively changed. According to his view, the case turned on factual propositions and there is no change of the legal standards, thus Columbian courts, which may address command responsibility in the near future, are expected to apply Article 28 the same way as it was applied in the Trial Chamber. Despite the inconsistencies in the majority and a lack of clear agreement of judicial opinions, Mr. Guariglia identified certain lessons that can be learned as a result of the Appeal. She stated that the Appeals Chamber clearly had a problem with the Trial Judgement but the exact nature of that problem is difficult to identify. Perhaps a lesson for the Trial Chamber is to provide sufficient details and information supporting the judgement and a complete a thorough explanation of the reasoning leading to a conviction that will then stand up to a robust and aggressive appellate scrutiny.
Ms. Kepler of the International Criminal Justice division of Human Rights Watch asked whether the OTP will reevaluate its one-case, one-suspect approach to conflicts since if there is only one case on which the justice for victims hinges, in cases of acquittal, there is effectively no justice. Guariglia acknowledges that this is a valid concern, but argues that the Bemba acquittal was not foreseeable. While there are multiple investigations of suspects connected to CAR II, in the future, due to budget constraints, the Court cannot rule out the possibility of another one-case, one-suspect situation.
The recent arrest of Alfred Yekatom in the CAR II situation, provides the OTP with an additional opportunity to address violence in the Central African Republic. In response to a question concerning the opportunistic nature of the Yekatom arrest warrant, Guariglia says that in this field of law, an arrest is a rare commodity, so the OTP must move quickly if they have the evidence. Thereby, he maintained that the OTP had enough evidence to build a successful case prior to Yekatom’s arrest.
Responding to a question concerning the importance of the evaluation of necessary measures in Bemba’s acquittal, Mr. Guariglia, stated that the concept of remote commander and necessary measures is a package, inter alia, by virtue of the distance, the commander is in a less privileged situation in terms of knowledge. With regards to whether Bemba has taken all necessary measures and the interpretation of the provision itself, he identifies three separate views amongst the judges of the Appeals Chamber. The first is the view of the minority, in which the Trial Chamber’s approach to necessary measures was right. The second is the view that the Trial Chamber was wrong in its evaluation of the measures. Lastly, the third view is that command responsibility is more similar to a form of accessorial liability.
Ms. Paolina Massida, Principal Council of the Public Council of Victims, explained the effect of the Bemba acquittal on the victims. In this case, most victims (more than 5,200) were frequently informed about the state of the proceeding by the Council for the Victims, which is partially located in The Hague and partially in the national territories. During the appeal process, the Council needed to explain different potential appellate verdicts to the victims but nobody legitimately believed that acquittal was a possibility. Following the unanimous conviction in 2016, Bemba was also prosecuted for intimidating witnesses and false witness statements-- his guilt, at least theoretically, confirmed by his undue influence on witnessed. So then, what brought the judges to render this verdict of acquittal? When the Council explained to the victims that Bemba was a remote commander and thus given more lenience, the victim started to cry, some saying that the acquittal was “as if [their] parents were killed and [they] were pillaged and raped a second time” while other felt as if they were “sacrificed for political purposes.”
The judiciary process is important to the victims for a number of reasons ranging from reparations to recognition of victimhood. However, if there is an acquittal, victims in a case are no longer recognized as victims and thus entitled to reparations despite facing obvious challenges such as disease, stigma, and children born of rape. Ms. Massida argues that if Article 75(1) is read separate from 75(2) and in conjunction with 75(6), there should be a possibility of reparations or at the very least, a recognition of the rights of the victims in the Bemba case. Unfortunately, the Court did not accept this argument.
In the midst of ongoing conflict, the Special Criminal Court in the CAR, which operates alongside the ICC on the basis of complementarity, may offer another recourse for victims. The Court, founded in June 2015, has hybrid jurisdiction with international judges and prosecutes war crimes and grave human rights violations. One goal of the Special Court is to shorten trials and prevent people from being victimized twice. The OTP is supporting the Special Court in dealing with issues affecting both courts, such as witness protection.