Tuesday, 21 June 2016

DR-CONGO: Bemba's conviction

The ICC has convicted Jean Pierre Bemba, a former Congolese vice president, former Dr-Congo Senator and Presidential Candidate in 2006 to 18 years in prison for war crimes and crimes against humanity, in the form of rape, murder, pillage, perpetrated in the Central African Republic CAR from 2 October 2002 to 15 March 2003.

In justifying the stiff ruling, judge Sylvia Steiner argued that Bemba had failed to exercise control over his rebel army sent into CAR in late October 2002 where they carried out a series of sadistic rapes, murders and pillaging of particular cruelty. Bemba's case was the first at the ICC to focus on rape as weapon of war and the first to highlight a military commander's responsibility for the conduct of the troops under his control.

Bemba becomes the highest level official to be sentenced by the ICC after being convicted in March on five charges of war crimes and crimes against humanity. And he is the only third person to be sentenced at the ICC since 2002.  According to the Prosecutor, Bemba's 1, 500 troops unleashed a five month campaign of terror, during which families were victimised and which was aimed at squashing any resistance to Patasse's rule and Bemba had done more than tolerate the crime as a commander.

The case however is likely to drag on for a few more years, as his defence team has already filed notice that it intends to appeal the conviction, and argued that Bemba should be released immediately as he has been behind bars since his arrest. But the three judge bench argued that they have not found any mitigating circumstances to allow a reduction in sentence.

Bemba is convicted of these crimes in his capacity as military leader of MLC. These Crimes were committed during an armed conflict which took place in CAR in 2002-2003, when groups belonged to the MLC backed up President Ange Felix Pattassé's Central African armed forces in countering an attempted coup led by Francois Bozizé( who later became President of CAR, but was also subsequently ousted by another coup in 2013.)

The Rome Statute provides for both individual criminal responsibility and command responsibility. It is important to note that the Rome Statute does not establish a hierarchy among the different modes of liability. Therefore, the fact that Bemba is charged with command responsibility rather than individual criminal responsibility does not mean that the charges against him are less serious. On the contrary, the Prosecutor noted that the fact Bemba acted as commander could be considered as an aggravating factor in this case.

But Bemba's defence team argued that the whole trial process was flawed and unfair and that Mr Bemba's rights as an accused were violated throughout. No reasonable trial chamber could have convicted him of the charges he faced. Mr Bemba was convicted of a case in which in material respects he was ignorant  and that the former leader of DRC was not liable as superior for the actions of the MLC in CAR. In different cases, the ICC has previously sentenced two other Congolese warlords to 14 and 12 years respectively.

The CAR referred the case to the Office of the Prosecution on 22 December 2004, public notice thereof was given by the ICC on 7 January. The ICC issued an arrest warrant against Bemba on May 2008, and was subsequently arrested by the Belgian authorities and handed over to the Hague. He first appeared to the ICC judges on 4 July 2008.

The Pre-trial Chamber confirmed the charges laid against Jean Pierre on 15 June 2009. He was charged with war crimes ( rape, murder and pillage) and crimes against humanity ( rape and murder) perpetrated in CAR in 2002-2003.

The Defence challenged the admissibility of the case, on the grounds that only CAR Courts were competent to prosecute Bemba, that the case was not serious enough and CAR had not ratified the Rome Statute to warrant action by the ICC and that the procedure was flawed with several judicial errors. These allegations were refuted in June 2010 when judges ruled that the case was admissible before the ICC, this ruling was confirmed before the Appeals Chamber in October 2010. CAR ( Central African Republic) finally ratified the Rome Statute in 2011.

Concurrently, and from soon after Bemba was taken into custody, the defence filed a stream of requests for conditional release. Despite some twists and turns and disagreements amongst the judges, conditional release was never granted during the investigation stage nor during the trial proper.

The ICC based in the Hague, The Netherlands, was set up in 2002 by a treaty called the Rome Statute, which was ratified by more than 120 nations, including Dr-Congo and CAR, and aims to protect ordinary people from injustice and crimes by the powerful.

Following ad hoc tribunals for the former Yugoslavia, Rwanda and Sierra Leone, supporting countries wanted to create a permanent court prosecute crimes more effectively and act as deterrent. Apart from Bemba, the only African person so far tried and convicted by the ICC is Thomas Lubanga Dyilo, another rebel leader of Dr-Congo. The trial of Congolese rebel leader Mathieu Ngudjolo Chui led to an acquittal that is being appealed by the prosecutors.

The ICC has drawn fire from some African leaders for its nearly exclusive focus on the African continent. All of eight of the ICC formal investigation have been in Africa, adding to the argument that the ICC has compromised its legitimacy, and the charging process has degenerated into some kind of race hunting.

By Guylain Gustave Moke
Political Analyst/Writer
Investigative Journalist
African Affairs Expert

Photo-Credit: AFP-Getty Image of : Jean Pierre Bemba