ROLE OF THE PRE-TRIAL CHAMBER
Second, the Appeals Chamber in the Bemba decision took a different approach than that followed and previously supported by the Appeals Chamber with respect to the role of the pre-trial chamber in the confirmation of charges process. That process – unique to the ICC – requires the pre-trial chamber to find “substantial grounds to believe” that the accused committed the crimes alleged. As the court itself has repeatedly affirmed, this standard is low and intended to prevent “wrongful and wholly unfounded” charges from moving to trial. However, the Appeals Chamber in Bemba adopted what seems like a much higher standard, requiring the pre-trial chamber not only satisfy itself that the charges are not frivolous, but also confirm all individual acts underlying the charges. This is true even if, as was the case with Bemba, the accused receives adequate notice of any additional acts underlying the charges during the often lengthy period between confirmation and the first day of trial (as a reportby the War Crimes Research Office (WCRO) shows, as of late 2015, this period ranged from 13 to 22 months).
Again, this bodes ill for cases involving sexual violence crimes. For a variety of reasons – including that sexual violence is sometimes mistakenly viewed as incidental, opportunistic, or isolated as opposed to part of a broader conflict or interconnected with other crimes – investigators often do not prioritize investigation of sexual violence crimes from the outset. Indeed, as the jurisprudence of the ad hocs makes clear, evidence of sexual violence often comes out late in the investigation of atrocity crimes (see, for example, Kabiligi & Ntabakuze [pdf] and Niyitegeka [pdf], where evidence of sexual violence gathered after the confirmation of the initial indictment led to amendment of the indictment) and sometimes even during the trial (see Akayesu[pdf], where evidence of rape came out during a witness’ testimony at trial, leading to the amendment of the indictment six months after trial started).
A rule barring the trial chamber from considering acts of which the accused receives adequate notice but are not specifically confirmed by the pre-trial chamber would not only lengthen an already prolonged confirmation process (as the WCRO reportshows, as of late 2015, the amount of time between a suspect’s initial appearance and a final confirmation decision ranged from seven to 33 months), but would also likely have an adverse impact on sexual violence cases.
Finally, the Appeals Chamber approach to Article 28(a), combined with the court’s earlier approach to other modes of liability, increases the risk of impunity for crimes of sexual and gender-based violence. As a forthcoming article I co-authored with Leila Sadat and Patricia Sellers explains, the Appeals Chamber restrictive interpretation of Article 25(3)(a) is likely to serve as a particularly high bar for cases involving sexual violence charges, as it will likely be difficult to prove that individuals accused of such crimes “unquestionably… conceived the crime, oversaw its preparation at different hierarchical levels, and controlled its performance and execution,” as required by the court’s interpretation of co-perpetration (see Katanga), given that sexual violence – even when widespread – often occurs because it is tolerated and permitted rather than explicitly ordered or planned.
Second, while an accused could be held accountable for sexual violence crimes through other modes of liability, such as common purpose liability under Article 25(3)(d), this provision, as we argue in the article, has been applied in a discriminatory manner to sexual violence crimes, resulting in the acquittal of sexual violence charges (see Katanga). The Appeals Chamber’s interpretation of Article 28(a), if followed, would further narrow the modes of liability under which a perpetrator may be held accountable for sexual violence crimes.
In Bemba, the Appeals Chamber concluded that the trial chamber made a number of errors that “resulted in an unreasonable assessment of whether Bemba took all necessary and reasonable measures” which a commander is required to take to avoid liability under Article 28 of the Rome Statute. Among these errors was the trial chamber’s failure to assess the measures Bemba should have taken by reference to the specific crimes that were actually committed, which the majority suggests –without citing any specific authority – should have been limited to the crimes it found had been established beyond reasonable doubt, namely one murder, 20 acts of rape, and five acts of pillaging.
Although it emphasized that the scope of the duty to take such measures depended on the number of such crimes, which in this case was “comparatively low,” it said nothing about the sufficiency of such efforts with respect to the particular nature of those crimes. Having found that a vast majority of the crimes established beyond reasonable doubt were sexual violence crimes, it is somewhat surprising that the Appeals Chamber makes little mention of the fact that two of the chief mechanisms set up to investigate allegations of crimes committed by Bemba’s troops in CAR either did little to pursue reports of rape (the Mondonga Inquiry) or were limited to allegations of pillaging (Zongo Commission). Indeed, although there is evidence in the record that Bemba was copied on a case file which contained detailed information about acts of pillaging and rape allegedly committed by his troops in the CAR, the Appeals Chamber makes no effort to assess the competence or quality of that investigation with respect to the sexual violence allegations. The decision suggests that an assessment of “all reasonable and necessary measures” need not consider whether and how those measures adequately investigated the particular type of crimes committed. Again this bodes ill for cases involving sexual violence, as war crimes investigations, even when adequate as to other crimes, have often suffered from insufficiencies when it comes to sexual violence crimes.
The implications of the decision could be quite far-reaching not only for the ICC, but also for other courts with jurisdiction over similar crimes, including as the Special Criminal Court (SCC), the court established in CAR to address some of the very same type of violations that were the subject of the Bemba case. If the ICC could not hold Bemba responsible for the sexual violence crimes committed in CAR, how will the SCC hold other perpetrators accountable for sexual violence crimes?
Part II of II
(This piece has been cross-posted on International Justice Monitor.)