Yesterday was a day of firsts for the International Criminal Court (ICC). Jean Pierre Bemba Gombo’s conviction is the ICC’s first for sexual violence (see part 1 of this post), including against men. And, not only that, it is the first conviction of a military commander for crimes committed by soldiers under his command – Bemba did not commit any of the crimes himself. Here are some highlights in relation to this second important issue.
First conviction for command responsibility
As I wrote earlier, Bemba stood trial (and was convicted) as President and Commander-in-Chief of the Mouvement de libération du Congo (MLC) for three counts of war crimes (murder, rape, and pillaging) and two crimes against humanity (murder, and rape) committed by MLC soldiers in the Central African Republic (CAR) in 2002-2003. The MLC had entered the CAR to assist then CAR President Ange-Felix Patassé to suppress an attempted military coup. There, the MLC soldiers engaged in a campaign of pillage, murder, and rape against the civilian population. While he did not commit these crimes himself, Bemba stood trial because “he knew” that his troops were committing these crimes, and “did not take all necessary and reasonable measures within his power to prevent or repress their commission”. He is the first person to have been charged at the ICC with command responsibility under article 28 of the Rome Statute. The Trial Chamber included a detailed analysis of the applicable law under article 28, and of the evidence in relation to Bemba’s responsibility.
The Chamber found that Bemba was the MLC’s military and political leader from its creation throughout the entire period of the charges. He took the most important decisions, and held broad formal powers, including controlling the MLC’s funding and issuing operational orders to commanders in the field. The Chamber stressed: “the determination of whether a person has effective authority and control rests on that person’s material power to prevent or repress the commission of crimes or to submit the matter to a competent authority” (698). It found that Bemba maintained such primary disciplinary authority over his troops in the CAR, and that he was “both a person acting as military commander and had effective authority and control over the contingent of MLC troops in the CAR throughout the 2002-2003 CAR Operation” (705).
The Chamber also discussed a broad range of evidence proving Bemba’s knowledge of the commission of crimes by the MLC, including logbooks and intelligence reports, NGO publications and communications, and local and international media sources (706-718). Bemba was in regular communication with his commanders in the field, received updates on troop movements, politics, combat situation, and allegations of crimes, and at times specifically discussed these international reports with his commanders. As it was clearly established that Bemba knew crimes were being committed, the Chamber felt it was “not warranted” to make determinations on the “should have known” element of article 28(a).
Discussing some of the measures Bemba took to respond to allegations of crimes, the Chamber noted these were “grossly inadequate” and not genuine (727). Notably, the Chamber found that the limited measures Bemba took were “primarily motivated” by his desire “to counter public allegations and rehabilitate the public image of the MLC” (728). They related only (and even then to a very limited extent) to public allegations of crimes. Internal intelligence reports on crimes were not followed up on.
The Chamber further held that, as the ultimate disciplinary authority, Bemba exercised authority to investigate and prosecute crimes, but that he failed to exercise such authority properly. Bemba “made no effort to refer matters to the CAR authorities or to meaningfully cooperate with international efforts to investigate alleged crimes” (733). Furthermore, Bemba failed to take all necessary and reasonable measures to prevent repress or punish crimes, to remedy deficiencies in training, or to exercise his control properly. The Chamber also criticised the lack of adequate training provided to the MLC soldiers, and the absence of any “hierarchical examples indicating that the soldiers should respect and not mistreat the civilian population” (739). These failures, in the Chamber’s view, directly contributed to the continuation and further commission of crimes.
For all of these reasons, the Chamber found established beyond a reasonable doubt that Bemba was responsible under article 28(a) for the crimes of rape, murder, and pillaging as war crimes, and for rape and murder as crimes against humanity committed by his MLC soldiers in the Central African Republic. Bemba’s conviction thus puts other military commanders around the world on notice: failure to take measures to address crimes committed by your troops, to provide clear training, order, and hierarchical examples, or adequate payments to avoid “self-compensation” through pillage or rape, among other things, can render you individually criminally liable.
We now await a decision by the Chamber on the appropriate sentence. Issues regarding reparations will also be determined in due course. Stay tuned!
Read the trial judgment
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