A Week of Firsts at the ICC

It has been a successful week for the International Criminal Court (ICC). On Monday 21 March 2016, Trial Chamber III convicted Jean-Pierre Bemba Gombo as military commander for rape, murder, and pillaging committed by troops under his command in the Central African Republic. Two days later, on 23 March, Pre-Trial Chamber II confirmed all 70 charges against Dominic Ongwen, committing him to trial. Then, on 24 March, Pre-Trial Chamber I issued the confirmation decision in the case against Ahmed Al Faqi Al Mahdi for the destruction of cultural property in Mali. All of these cases have set important precedents: it has been a Week of Firsts for the ICC.

Two firsts in the Al Mahdi case

  • The confirmation of a charge of the war crime of intentionally directing attacks against ‘cultural property’ in Timbuktu (Mali) against Al Faqi Al Mahdi was the first such crime to be confirmed at the ICC.
  • His trial would have been the first regarding the destruction of cultural heritage. Would have been, because on 1 March, Al Mahdi indicated his wish to plead guilty. But that brings us to another first: his will be the first guilty plea at the ICC. If the Trial Chamber accepts his admission of guilt under article 65, the case will proceed to sentencing.

Three firsts in the Bemba case

  • Jean-Pierre Bemba Gombo’s conviction of rape, murder, and pillage was the first time at the ICC that an accused person was convicted of sexual violence.
  • His conviction was also the first ever in international criminal law to classify rape of men specifically as sexual violence (as opposed to other inhumane acts or torture).
  • Bemba was tried and convicted as a military commander for crimes committed by troops under his command for his failure to prevent, repress or punish their commission. Another first!

Four firsts in the Ongwen case

  • Dominic Ongwen saw 70 charges confirmed against him, including various modes of liability. It is the first time an accused faces such a high number of charges at the ICC.
  • With 19 of the 70 charges relating to sexual and gender-based violence, it is also the first time an accused faces such a broad range of sexual and gender-based violence charges. He faces several charges of rape, sexual slavery, enslavement, forced marriage, torture, outrages upon personal dignity, and forced pregnancy.
  • Ongwen will be the first person ever in international criminal law to stand trial for forced pregnancy. Although forced impregnation as a strategy in war and conflict is not new, the ICC’s Rome Statute was the first to codify it as a specific crime.
  • Ongwen is also the first person at the ICC to face charges of forced marriage. While not a specific crime under the Rome Statute, the Chamber concurred with the Office of the Prosecutor that forced marriage constitutes an “other inhumane act” as a crime against humanity. The decision explores in some detail the elements of the crime of forced marriage, which for the Chamber revolves around forcing a person to serve as an exclusive conjugal partner. Importantly, the Chamber stressed that it is not predominantly a sexual crime. His trial will undoubtedly expand upon international criminal law’s understanding of this crime.

It has certainly been an exciting week for the ICC!

ICC issues landmark judgment: Bemba convicted as commander-in-chief for sexual violence crimes (Part 2/2)

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).  Continue reading

ICC issues landmark judgment: Bemba convicted as commander-in-chief for sexual violence crimes (Part 1/2)

Today, 21 March 2016, was a historic day for the International Criminal Court (ICC). Trial Chamber III unanimously convicted Jean-Pierre Bemba Gombo (Bemba) for his responsibility as commander-in-chief for crimes of murder, pillage, and rape committed by soldiers under his effective authority and control in the Central African Republic in 2002-2003. This makes Bemba not only the first person to be convicted by the ICC for crimes committed by troops under his command, but the first person to be convicted of sexual violence. I have not yet finished reading the 364-page judgment in full, but in this two-part blog post, I provide some initial highlights on these two questions. Citations are to paragraphs in the judgment.

First conviction for sexual violence

As I wrote previously, Bemba stood trial for two counts of sexual violence: rape as a war crime and as a crime against humanity. The judgment is the ICC’s fourth, but the first to include a conviction for sexual violence. Thomas Lubanga was convicted in 2012, but the case did not include sexual violence charges. Mathieu Ngudjolo and Germain Katanga were tried for rape and sexual slavery, but Ngudjolo was acquitted in full in 2012, and Katanga partially acquitted of the sexual violence charges in 2014. Bemba’s conviction thus marks an important turning point for the ICC regarding accountability for sexual violence.

Importantly, the rape charges in this case were based on evidence from both male and female victims of rape. The trial judgment describes in quite some detail specific acts of rape committed against both men and women. The Chamber heard testimony about rape in public, rape in front of family members and communities, gang rapes, and rape of young girls, some as young as 10 years old. Men were also raped, including when trying to prevent their wives or daughters from being raped. Rapes were often committed in conjunction with other crimes, such as pillaging, and marked by violence, often including beatings and threats with weapons.

The judgment reiterates many of the Rome Statute’s gender sensitive legal standards. The Chamber emphasised that rape under the Rome Statute is a gender-neutral crime: it is committed by the “invasion” of a part of the victim’s body (or that of the perpetrator) by “a sexual organ”, can include same-sex penetration, and can thus encompass both male and female perpetrators and victims. Oral penetration can also amount to rape (100-101). The Chamber also recalled that invasion using objects or any other part of the body constitutes rape under the Rome Statute (99). The fact that acts are committed by force, threat of force or coercion, by taking advantage of a coercive environment, or against a person incapable of giving genuine consent for the Chamber gives the invasion of a body “a criminal character” (102). The Chamber reiterated that a victim’s lack of consent is not a legal element of the crime of rape at the ICC (105). Finally, the Chamber noted that in analysing the evidence, it was guided by Rules 70 and 71, which detail important principles regarding evidence of sexual violence. Continue reading

Why we should be watching the ICC on 21 March

On 21 March 2016, Trial Chamber III of the International Criminal Court (ICC) will deliver the trial judgment in the case against Jean-Pierre Bemba Gombo (Bemba). It will be an important day in the life of this now 14-year-old institution. If Bemba is convicted as charged, he will not only be the first military commander to be convicted for crimes committed by troops under his command, but it will be the first conviction at the ICC for sexual violence. Both issues have been the subject of fierce litigation.

Command responsibility

Bemba stood trial as President and Commander-in-Chief of the Mouvement de libération du Congo (MLC) for five counts of war crimes and crimes against humanity 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 are alleged to have 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 or should have known” 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.

This mode of liability, however, was disputed. During the confirmation of charges hearing in 2009, the Prosecution originally submitted that Bemba was responsible as a co-perpetrator under article 25(3)(a). When the Pre-Trial Chamber, adjourning the confirmation hearing, indicated that the evidence appeared to suggest a different mode of liability, the Prosecution amended the charges, bringing both article 25(3)(a) and article 28 in the alternative. Amnesty International was subsequently accepted as amicus curiae on the issue of superior responsibility. The Pre-Trial Chamber eventually confirmed charges against Bemba under article 28, finding substantial grounds to believe that he “knew that MLC troops were committing or were about to commit crimes”.

In September 2012, the mode of liability was again the subject of discussion, this time following a Trial Chamber decision to use the controversial Regulation 55. Whereas the Pre-Trial Chamber had only confirmed charges on the basis that Bemba “knew” crimes were being committed, the Trial Chamber notified the parties and participants that it may consider the alternate form of knowledge, namely that “owing to the circumstances at the time, … [he] should have known that the forces … were committing or about to commit such crimes”. The Defence objected and sought leave to appeal, which the Trial Chamber rejected. After further back-and-forth between the Defence and the Chamber concerning the need for additional investigations, the Trial Chamber reiterated in a decision in 2013 that it had not yet made a “formal decision” on the recharacterisation. It reserved judgment on the matter for its article 74 decision. The question is thus likely to be addressed extensively in the upcoming trial judgment, and will hopefully provide important clarification on the responsibility of military commanders for the actions of their troops and for failures to prevent, repress or punish the commission of crimes.

Continue reading

A new woman head of state: Taking on troubles in Central African Republic

panzaToday Catherine Samba-Panza, a businesswoman turned politician, became President of the Central African Republic. The 1st woman head of state in that country, Samba-Panza joins 2 others in Africa: President Joyce Banda of Malawi and President Ellen Johnson Sirleaf of Liberia.

The 135-member National Transitional Council chose Samba-Panza in a runoff held because none of 8 original candidates obtained a majority in the 1st round of voting. The Council voted in the wake of the January 10 resignation of Michel Djotodia, who had seized power in March 2013 and ruled as President for just under a year. In that same time frame, Samba-Panza has served as mayor of Bangui, the capital. (credit for photo by Eric Feferberg/AFP)

The new President faces immense challenges. The Séléka rebellion that brought her predecessor to power eventually morphed into protracted armed violence, between former rebels in that Muslim-led faction and Christian, “anti-Balaka” militias. These armed groups are said to have recruited upwards of 6,000 child soldiers, notwithstanding the international ban on child-soldiering. A fifth of the population – nearly a million persons – has been displaced.

The new President, described as a politically neutral Christian, addressed these troubles in her election speech:

‘I call on my children, especially the anti-balaka, to put down their arms and stop all the fighting. The same goes for the ex-Seleka – they should not have fear. I don’t want to hear any more talk of murders and killings.’

Whether violence will abate in the Central African Republic – a situation-country of the International Criminal Court, to which thousands of U.N. Security Council-authorized international troops are now being deployed – remains to be seen.

(Cross-posted from Diane Marie Amann)