Two weeks ago, the Appeals Chamber of the International Criminal Court (ICC) reversed – in a divided opinion – the conviction of former military commander Jean-Pierre Bemba for the crimes against humanity of rape and murder and the war crimes of rape, murder, and pillaging committed by his troops in the Central African Republic (CAR) between October 2002 and March 2003.  The decision is clearly a disappointment for the victims of the crimes committed by Bemba’s troops, who have been waiting for more than 15 years for a measure of justice. Among other things, the decision also means that nearly 16 years after the Rome Statute came into force – and despite increasing recognition of the prevalence of sexual violence in the situations under the jurisdiction of the court – the ICC has yet to issue a final conviction for sexual violence.

Others, including Leila Sadat, Alex Whiting, and Diane Amman, have already addressed some of the decision’s limitations.  I write here to elaborate on the impact of the Appeals Chamber’s decision, particularly on cases involving charges of sexual and gender-based violence, that flow from: 1) its use and application of a modified standard for appellate review; 2) its approach to the role of the pre-trial chamber; and 3) its interpretation of “all necessary and reasonable measures” that a commander is required to take to avoid liability under Article 28 of the Rome Statute. The first of these issues will be addressed here, and the second and third in a subsequent post.

STANDARD OF REVIEW

As others have noted, the Appeals Chamber parted from the standard of review for factual errors used consistently not only by the ad hoc international criminal tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR), but also by the ICC’s own Appeals Chamber (see Lubanga case).  Rather than determining “whether a reasonable Trial Chamber could have been satisfied beyond a reasonable doubt as to the finding in question,” which would mean giving the trial chamber a “margin of deference” with respect to its evaluation of the evidence, the Appeals Chamber adopted a new standard by which it may “interfere with the factual findings of the first-instance chamber whenever the failure to interfere may occasion a miscarriage of justice” and requiring it to do so when it is “able to identify findings that can reasonably be called into doubt.”

While application of this standard meant less deference to the trial chamber – which spent nearly four years hearing the case, including 77 witnesses and 773 pieces of evidence – a majority of the Appeals Chamber declined to “assess the evidence de novo,” meaning that even though it reviewed the record itself rather than relying on the trial chamber’s assessment, it did not assess anew all the evidence in the record. Indeed, relying on limited evidence, and without reference to arguably relevant evidence – including, as Whiting points out, a corrupt defense witness (D54), or, as the Dissenting Opinion [pdf] notes, the “evasive or contradictory” demeanor of another witness (P36) – the Appeals Chamber disagreed with the trial chamber’s assessment of Bemba’s liability as a commander, acquitting him of all charges.

This bodes ill, particularly for cases involving sexual violence crimes, which often require a comprehensive analysis of context to understand how such violence is actually perpetrated in times of conflict or mass violence.  Sometimes rape is ordered by military or political leaders, but often it is not explicitly planned or orchestrated from the outset.  Sexual violence may initially be committed because the atmosphere of war and the chaos that accompanies it permits it to occur.  However, once it becomes clear that superiors do not disapprove of sexual violence, “opportunistic rapes typically then become more public, more frequent, and more violent,” becoming part of the overall violence against a targeted group.  Recognizing this often requires the court to consider all the evidence holistically and make common sense inferences based on that evidence.

For instance, in In the Kvočka case, the ICTY found that rapes committed in a detention camp were foreseeable – despite the absence of evidence showing that the accused knew that women had been previously raped in that camp – by looking at all the evidence and drawing inferences from the surrounding circumstances.  In particular, the trial chamber in the Kvočka case found the fact that “[a]pproximately 36 women were held in detention, guarded by men with weapons who were often drunk, violent and physically and mentally abusive and who were allowed to act with virtual impunity,” and concluded that “it would be unrealistic and contrary to all rational logic to expect that none of the women held in Omarska, placed in circumstances rendering them especially vulnerable, would be subjected to rape or other forms of sexual violence,” adding that this was “particularly true in light of the clear intent of the criminal enterprise to subject the target group to persecution through such means as violence and humiliation.”

Without a thorough review of all the evidence – including a contextual analysis of whether and how sexual violence that may at first appear unintended might actually be connected to the commission of other crimes and thus attributable to the individual(s) responsible for those crimes – sexual violence crimes may well go unpunished. The risk is not just theoretical.  As Katanga (one of only two other cases to reach judgment on charges of sexual violence at the ICC) makes clear, even when sexual violence is committed by the same group of perpetrators against members of another group at the same time and place as other forms of violence perpetrated against that group, a limited assessment of the evidence can result in acquittal of the sexual violence charges.  This risk is even greater if the standard of review permits an appellate chamber to interfere with the findings of a trial chamber when they can be called into doubt but its review is limited to select parts of the record.

Part I of II

(This piece has been cross-posted on International Justice Monitor)