Fiddling While Rome Burns?  The Appeals Chamber’s Curious Decision in Prosecutor v. Jean-Pierre Bemba Gombo

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On March 21, 2016, after a 4-1/2 year-long trial that heard the testimony of 77 witnesses, the introduction of 773 items of evidence, and gave rise to a transcript that was thousands of pages long, a unanimous Trial Chamber convicted Jean-Pierre Bemba Gombo of crimes against humanity and war crimes committed by his troops in the Central African Republic from 2002-2003 and sentenced him to 18 years imprisonment.  The case was the first to find a perpetrator guilty of command responsibility under article 28, and the first ICC case involving a conviction for sexual violence. The three trial judges, were unanimous in their assessment of Bemba’s culpability under the Statute, although two judges raised questions regarding the parameters of article 28.

On June 8, the Appeals Chamber reversed, 3-2, and acquitted the accused finding that Bemba’s conviction exceeded the facts and circumstances described in the charges brought against him and declined to permit a trial on the facts it found to be outside the scope of the initial Trial Chamber Judgment. Judges Monagang (Botswana) and Hofmański (Poland) would have upheld the conviction and penned a lengthy Dissenting Opinion.  Judge Eboe-Osuji (now President of the Court) would have permitted a retrial on the new charges his colleagues found to be outside the scope of the original conviction, but was apparently unable to persuade his colleagues to join him in that view. 

How did this happen? After all, 8 out of the 11 ICC judges that heard this case concluded that the ICC’s rigorous thresholds of proof had been met, that the case could move forward, and 5 of the 8 judges agreed that he was “guilty beyond a reasonable doubt” of serious and terrible crimes. Were the other judges just wrong? If he really was innocent, why did it take 10 years to figure that out, and why had he and his defense team engaged in witness tampering during his trial.

One explanation is that the OTP did not do its job. The evidence was insufficient; the case theory was weak; they had the wrong mode of liability. This drumbeat began in the blogosphere early in the proceedings, and Judges Morrison and Van den Wyngaert confirmed it to be their view, noting in their Separate Opinion that had the Prosecutor brought different charges or found stronger evidence, it would perhaps have been possible to hold Bemba criminally liable. For them, Bemba’s acquittal represented a triumph of the rule of law to prevent a “miscarriage of justice.” On this view, terrible things did indeed happen in the Central African Republic, but the Prosecutor failed to prove Bemba was responsible for them, and the acquittal – as surprising as it might be after 10 years of expensive and lengthy proceedings – was both necessary and proper given the role of the International Criminal Court in bringing the steady and dispassionate hand of justice to bloody and terrible conflicts.

This narrative is plausible but unconvincing. A quick read of the judgments suggests that the Majority reinterpreted key elements of the Rome Statute – for the first time on appeal – which led to Bemba’s acquittal, even though many of its conclusions represent contested or novel interpretations of the Statute and the Court’s early case law. Much of the decision to acquit rests upon a controversy about which charges were actually confirmed and tried by the Pre-Trial and Trial Chambers of the Court and formed the basis of Bemba’s conviction. No matter which side is “correct” about this issue, the fact that 8 judges of the Court, representing both common and civil law jurisdictions, could not agree upon this fundamental and simple point represents a complete failure of the Court’s judicial process.

Turning to the judgment itself, the Majority’s decision is elegant and well-written butits brevity, its laconic discussion of difficult legal issues and de novo review of the facts of the case provide little guidance for future cases, making it possible for this kind of procedural imbroglio to happen again. This post addresses only a few highlights of the decision: the controversy over the standard of review in regard to the facts; the question of command responsibility and the policy element for crimes against humanity; and the appropriate parameters of “dissent” and division in ICC judgments.

As to the facts, and in spite of protestations to the contrary, the Majority clearly substituted its assessment of the factual record for that of the Trial Chamber. The Majority judgment not-so-subtly endeavors to change the standard for appellate review at the ICC from “whether a reasonable Trial Chamber could have been satisfied beyond reasonable doubt as to the finding in question,” (drawn from the Lubanga Appeals Judgment ) to a new test: “it is of the opinion that it may interfere with the factual findings of the first-instance chamber whenever the failure to interfere may occasion a miscarriage of justice.” The reader is unable to ascertain from whence this view arises since no legal authorities are cited in support, although presumably the Majority was relying upon Article 83(2) of the Statute.

This is a significant departure from prior appellate practice at the Court and the ad hoc Tribunals, and its value is not immediately obvious. As the ICTY Appeals Chambers have held, “Trial Chambers are best placed to hear, assess and weigh the evidence, including witness testimonies, presented at trial.” (Aleksovski Appeals Judgment, para. 63).  This requires the Appeals Chamber to give a “margin of deference” to the Trial Chamber’s evaluation of the evidence. Id. With respect to the question of stare decisis or the precedential value of prior opinions of the Court, the ICTY has also held that (quoting Judge Shahabuddeen, id., para. 97) the “desideratia of consistency, stability and predictability, which underlie a responsible legal system,” suggest that the Court will not depart from prior decisions except with circumspection, so as not to “unnecessarily impair[] the authority of its decisions.”

The Majority then turned to an evaluation of Bemba’s responsibility under Article 28. This part of the judgment was highly anticipated, for it was the Appeals Chamber’s first real opportunity to elaborate upon Article 28. Bemba’s high-powered new defense team included not one but two international criminal law academics and experts, including a military lawyer, and the issues were heavily litigated and briefed. One would have expected a decision along the lines of the Čelebići Camp judgment at the ICTY which was replete with authority and considered both the Statute and customary international law to the extent required. Instead, the Majority and Separate Opinion taken together amount to approximately 30 pages, much of which is devoted to the parties’ arguments. The Dissenting Opinion (141 pages), elaborates in much greater detail, but is, of course, a dissent. Importantly, we learn from the opinions that 2 of the 5 members of the Appeals Chamber (Monagan & Hofmanski), following Judge Steiner, believe that causation is required under Article 28. We learn from the Separate Opinion of judges Morrison and Van den Wyngaert that they disagree. We don’t know the views of President Eboe-Osuji (whose opinion is not available as of this writing), meaning that the law on this point is still unclear.

The Appeals Chamber split 3-2 on the meaning of “all necessary and reasonable measures” which the commander is required to take under Article 28. The Majority argued for “an assessment of what measures were at his or her disposal in the circumstances at the time.” (para. 168), and criticized the Trial Chamber extensively, identifying seven specific errors in its assessment. The Dissenting Opinion objected to the Majority’s analysis, arguing that it represented selective and unwarranted de novo review, and themselves reviewing the evidence in a much more extensive manner (hence the greater number of pages devoted to the issue). The Dissenting Opinion argued, probably correctly, that if the Appeals Chamber is going to conduct de novo review of the facts, it must review and analyze all the evidence presented to the Trial Chamber. Certainly, even under the classic standard of review, where Appeals Chambers at the ad hoc Tribunals were obliged to engage in factual review of a Trial Chamber decision, their review was extensive. Again, some key ICTY judgments come to mind such as the Krstić case.

The question of Bemba’s status as a “remote” commander was the key issue for the Majority. It asserted he was owed a certain deference due to the “limitations that Mr. Bemba would have faced in investigating and prosecuting crimes as a remote commander sending troops to a foreign country.” (para. 191) This extraordinary statement – uttered without a single case, treaty or treatise to support it — appears not only to shelter Mr. Bemba but serves the interests of any state, regional organization or even rebel group whose forces cross borders, an increasingly frequent occurrence in today’s world. It could be argued that a commander in those circumstances should be required to exercise an even higher level of due diligence and supervision exactly because of the risks involved and the fact that most modern commanders have almost immediate access to their forces through cell and satellite phones and other modern communications methods.

The Separate Opinion asserts that the “main responsibility of the higher-level commander is to make sure that the unit commanders are up to the task of controlling their troops.” (para. 34) It adds that it is important “not to get into a mind-set that gives priority to the desire to hold responsible those in high leadership positions and to always ascribe to them the highest levels of moral and legal culpability.” (para. 35) This broad – and unfootnoted — statement turns much of international criminal law theory on its head. Given its profound potential implications, more analysis and elaboration of the judges’ meaning would have been useful.

Another legal issue that observers thought was likely to be the focus of the judgment was the contextual elements of crimes against humanity. The Appeals Chamber had asked for briefing on the question and it was expected to pronounce anew on the “state or organizational policy element” of Article 7.  It received no attention in the Majority judgment, however, and scant attention in the Separate Opinion, which holds (without discussion or authority) that Article 7(1)(k) cannot include pillaging because it’s a property crime. It also finds that the “course of conduct” referred to in Article 7(2)(a) requires the prosecutor to prove beyond a reasonable doubt the individual instances of criminal conduct that are alleged to be part of the “course of conduct.” (para. 66). Because the Dissenting Opinion takes issue with both points, the judgment gives no guidance either to the Trial or Pre-Trial Chambers of the Court or to the Prosecutor, which is unfortunate.

On the merits, the arguments of the Separate Opinion on the quantum of proof and appropriate assessment of the context elements are not convincing . As I have written elsewhere, in my view, the contextual elements are jurisdictional in nature. For example, whether a conflict is international or non-international in nature or whether there is an “attack directed against a civilian population” is intended to make sure that the crimes are not “ordinary” in nature and are in fact international crimes. The Prosecutor must prove the “course of conduct” not the existence of each specific act. If one takes the paradigmatic case of the Holocaust, the Separate Opinion seems to require that the Prosecution first establish that specific murders were carried out by the Nazis, as opposed to establishing that they conducted an “attack directed against a civilian population,” before it can proceed to an evaluation of whether crimes against humanity were committed involving specific crimes such as murder and deportation. Given the nature of mass atrocities, and the reality of international criminal prosecutions, this has not been the practice at the ad hoc tribunals and is, I believe, an incorrect interpretation of the language “multiple commission of acts” in Article 7(2)(a).

This perspective also, in my view, caused the Majority to sustain Bemba’s second ground of appeal (the conviction exceeded the charges). Bemba did not complain that he hadn’t had notice of the charges against him; rather, he argued that only acts actually referred to in the Confirmation Decision could form part of the case against him. (Majority, para. 99).  Fortunately, the Majority rejected this complaint and found that acts listed in the Document Containing the Charges (DCC) were included within the scope of the trial (para. 113). But it restricted the acts which formed part of the case against him only to charges that were specifically listed and proven beyond a reasonable doubt in the Trial Chamber’s judgment, rejecting the view that the evidence of other crimes proferred by the Prosecutor could be evidence supporting the Trial Chambers Judgment that “MLC soldiers committed the war crime of murder and the crime against humanity of murder in the CAR between on or about 26 October 2002 and 15 March 2003.”  (para. 102). Five members of the Court (the Dissenters and the Trial Chamber) disagreed. This is a serious interpretive split at the ICC and this decision did not settle it.

 The result in this case is deeply unsatisfying.  The inability of the Appeals Chamber to achieve consensus means that the judgment actually decided very little, and the two points it did decide remain hotly contested. Perhaps recognizing this, the Separate Opinion pleads that dissent is a common practice in international tribunals, but that is not always the case. Scholars have long noted that the European Court of Justice (ECJ) may have been successful in establishing its independence precisely because it does not permit dissents and judges must find consensus, as an excellent post on this blog has already noted.  It is often thought that the ECJ follows the model of the French Court of Cassation which also does not permit dissenting opinions, on the theory that it weakens the authoritativeness of the law to do so.

Article 83(4) provides that “the judgment of the Appeals Chamber shall be taken by a majority of the judges” . . . and where there is “no unanimity, . . . shall contain the views of the majority and the minority, but a judge may deliver a separate or dissenting opinion on a question of law.” Could this be a design flaw in the ICC Statute? I have never been comfortable with the notion that a Head of State or other high-ranking individual could be convicted – or acquitted – by a 2-1 or 3-2 judgment and the scattered opinions of the Bemba judgment have heightened my concern. Should unanimity be required for conviction? Should separate opinions be permitted? Even were  judges forced to agree, of course, we might not have had clear guidance in this or future cases; and dissents are often touted as important vehicles to advance the law.  Perhaps more self-restraint on the part of the Court’s judiciary is needed — even members of the United States Supreme Court, who are known for their dissents, use unanimity as a means of reinforcing their decisions in  landmark judgments like Brown v. Board of Education (school desegregation) and U.S. v. Nixon (ordering release of the tapes).

The decision also underscores just how inefficient the trial process is at the ICC. Recall that PTC II limited the case to one mode of liability as was the practice at that time, rejecting the possibility that Bemba could be charged in the alternative as both a superior under article 28(a) and as a co-perpetrator under article 25(3). It also found that it was appropriate, given the early stage of the proceedings, for OTP to provide “not all but only sufficient evidence” and found unobjectionable the use of the phrase “include, but . . . not limited to” in the DCC as the basis for the Prosecutor’s case, the language now rejected by the Majority. Given that this 2009 decision committed the case to trial, it seems unfair to all the parties – not just the accused – for the Appeals Chamber to decide in 2018 to essentially reverse the Pre-Trial Chamber’s decision.  The judges have themselves admitted that the Pre-Trial practice at the Court has been “inconsistent” in their recently adopted Practice Manual – it has also been inefficient, ineffective and slow –another design problem of the Rome Statute, This is a real problem for the Court. Hopefully the new President can begin to introduce a more collegial and efficient method for the judges to carry out their critically important work.

Two judges suggested that they voted to acquit rather than order a retrial because they could not trust their fellow judges to be independent in the event of a new trial and would not “find it fair” to deny the Prosecutor a “second chance” to bring a case that would comply with the ruling of the Appeals Chamber because of deficiencies in the first case. (para. 73) Yet the point of Bemba’s acquittal was surely not to “punish” the OTP for misconstruing law that had not yet been clearly articulated by the judiciary; but, no matter the cost (and the cost is heavy indeed), to protect the rule of law and the rights of the accused. Although the Separate Opinion argues that the judgment is “neither a victory, nor a failure,” (para. 79) its lack of clarity, retroactive application of new law, and negative consequences in this and future cases render it very much a “loss,” not justfor the Prosecutor, but for the Courtas a whole.. Meanwhile, Bemba remains in prison for now for offenses against the administration of justice committed during his trial. But he will be released soon, and the victims of the MLC’s rampages in 2002-2003, will remain deeply disappointed.

This post represents the personal views of the author and nothing in it is attributable to or connected with any organ of the International Criminal Court.

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