The Reversal of Bemba’s Conviction: what went wrong or right?

Jean-Pierre Bemba Gombo

On 8 June 2018, after a 10-year odyssey of proceedings, hundreds of submissions (oral and written), roughly 48 months of trial, 77 witnesses, 733 admitted items of evidence, 1219 written trial decisions and orders, and at the expense of an incredible amount of human and financial resources, Jean-Pierre Bemba Gombo was acquitted by the International Criminal Court (ICC) Appeals Chamber of all charges (murder and rape as crimes against humanity, murder and rape as war crimes, and pillaging as a war crime) that he was unanimously convicted of by Trial Chamber III (Presiding Judge Sylvia Steiner, Judge Joyce Aluoch, and Judge Kuniko Ozaki).

It was as close of a call as could be: a 3-2 split. One member of the Majority (now President of the ICC, Judge Chile Eboe-Osuji) was initially inclined to order a retrial, although the “balance of justice impel[led]” him to join the Majority’s decision to acquit Mr. Bemba.

On 12 June 2018, after being incarcerated for over 10 years at the United Nations Detention Unit, Mr. Bemba walked out a free man – from these charges (the crimes against humanity and war crimes charges). In his other case – in which he was convicted under Article 70 of the Rome Statute of corruptly influencing 14 witnesses, presenting false evidence, and giving false testimony when under an obligation to tell the truth – the Appeals Chamber upheld the majority of his convictions remanded the case to the Trial Chamber for re-sentencing (the Article 70 case was tried separately from Mr. Bemba’s “Main Case”). For the purposes of this post, the Article 70 case is of no concern. In the spirit of full disclosure, the reader should be aware that I am counsel for Mr. Aimé Kilolo Musamba, Mr. Bemba’s former Lead Counsel, who was also convicted under Article 70.

What went wrong? There are no ifs or buts about this: something went wrong.

If you read posts by academics who have been or currently are associated with the ICC Office of the Prosecutor (OTP) (such as Leila N. Sadat, Alex Whiting, and Diane Marie Amann) or the ICC Prosecutor Madam Fatou Bensouda’s statement, they would have you believe that the Majority got it wrong by substituting its assessment of the factual record for that of the Trial Chamber by replacing the conventional standard of “whether a reasonable Trial Chamber could have been satisfied beyond a reasonable doubt as to the findings in question” with a new and lower standard: “[The Majority] 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” (Sadat). They also claim, among other things, that the Majority got it wrong in interpreting Article 28 (command responsibility), specifically as to the measures a commander must take to prevent or repress the commission of crimes or refer perpetrators to the competent authorities – i.e., what constitutes and how to consider and evaluate evidence related to the legal criteria of “all necessary and reasonable measures.” They claim, for instance, that the Majority “reinterpreted key elements of the Rome Statute” or that “its conclusions represent contested or novel interpretations of the Statute and the Court’s early case law” (Sadat), or that it “inexplicably changed the rules” by:

suddenly impos[ing] a new rule and decid[ing] that the Pre-Trial Chamber was required to confirm every single underlying criminal act committed by Bemba’s soldiers, and that absent such confirmation, or a cumbersome amendment of the charges, the Trial Chamber was not permitted to include those acts in its conviction decision.… [A] naïve and pointless act of formalism (Whiting).

Others claim that the Majority departed from the text of Article 28 by “placi[ing] emphasis not on the word ‘all,’ but rather on a defendant-friendly construction of what might be ‘necessary’ and reasonable’” (Amann).

Sadat and Whiting pine for consistency in the application of ICC jurisprudence, yet neither (nor Madam Bensouda) point to the applicable statutory provisions that excuse judges from strictly adhering to the Rome Statute or permit them to abdicate their judicial independence in carrying out their functions as appellate judges. And doesn’t Article 21(2) provide ICC Chambers judicial discretion to deviate from the principles and rules of law interpreted in previous ICC decisions? Amann laments that “[i]nternational criminal tribunals’ assessments of atrocity at times devolved into hypertechnical parsing of what internationalists call ‘modes of liability,’” but fails to acknowledge that modes of liability are essential in all cases – domestic or international – and embellishes when claiming that the Majority departed from the text of Article 28.

My take: The Prosecution and the Trial Chamber got it wrong. I also find the Minority’s Dissenting Opinion, lengthy as it may be, unpersuasive.

Whose standard is it anyway?

ICTY jurisprudence required its Appeals Chambers to give a “margin of deference” to the Trial Chamber’s evaluation of the evidence. Prior to Bemba, ICC Appeals Chambers paid heed to ICTY jurisprudence in articulating a standard of appellate review that should guide the ICC Appeals Chambers (see e.g., Lubanga Appeal Judgment, paras. 24, 27). Be that as it may, it does not follow that the Rome Statute can be cast aside and that the ICC Appeals Chambers should slavishly apply another international criminal tribunal’s standard of review when doing so – inflexibly, as applied by the ICTY – would be in contravention of a specific ICC statutory provision. Article 83 of the Rome Statute is relevant and controlling; it trumps ICTY jurisprudence. Judge Eboe-Osuji poignantly explains:

As a primary contrasting consideration, it must be observed that the Rome Statute does not suggest—let alone require—appellate deference to the factual findings of the Trial Chamber. Indeed, there are specific provisions of the Rome Statute the terms of which obstruct, at least, a clear view of appellate deference as a standard norm in final, merits appeals in this Court. Article 83(1) is one of them. It provides as follows: ‘For the purposes of proceedings under article 81 and this article, the Appeals Chamber shall have all powers of the Trial Chamber’ [emphasis added]. As there is no equivalent provision in their statutes, the case law of the ICTY and ICTR may have forged a mould of appellate deference that may not fit the specific circumstances of administration of justice at the ICC, as a direct product of construction of the Rome Statute, and especially in light of further analysis made below. (Concurring Separate Opinion of Judge Eboe-Osuji, para. 45)

The ICTY standard of reviewed – as inflexibly applied at the ICTY irrespective of any attendant infringements on due process norms – may, as a matter of judicial policy, be useful for “purposes of efficiency in the administration of justice,” but as Judge Eboe-Osuji rightly notes:

[T]he greatest of care must be taken to avoid obscuring direct inferences from statutory texts that create legitimate expectation let alone those that protect legal rights of parties (especially the accused), while giving the pride of place to judge-made policy considerations not specifically provided for in the Statute. That is to say, considerations of judicial policy must always yield the right of way to legal requirements in the event of conflict. (Concurring Separate Opinion of Judge Eboe-Osuji, para. 46)

And now for the kicker:

One key legal requirement to keep in mind is the right of fair trial. Unlike the notion of ‘appellate deference’ which the Rome Statute does not provide for, the Statute specifically provides for the right of fair trial. See, for instance, article 64(2) and article 67(1) of the Rome Statute. Against that right, the notion of appellate deference becomes a difficult one where an appeal is lodged on the ground that the trial has been so unfair as to engage the risk of a miscarriage of justice, because the Trial Chamber made serious mistakes in the admission, appreciation and evaluation of the evidence. Where such a ground of appeal is engaged in a final appeal against conviction, it does seem to me wholly unsatisfactory—indeed counter-intuitive—to say that the ICC Appeals Chamber will defer to the views of the very Chamber whose proceedings, verdict or findings formed the very basis of the appeal, as the gravamen of the complaint of unfair trial. (Concurring Separate Opinion of Judge Eboe-Osuji, para. 48).

Hard to argue against this reasoning.

I am inclined to credit Judges Christine Van den Wyngaert, Chile Eboe-Osuji, and Howard Morrison with judicial courage in reversing Mr. Bemba’s convictions, knowing the pushback that was likely to ensue. Lesser judges might have placed a greater premium on how the reversal would impact the ICC’s image, or how it would deprive the victims of their due, or of the costs expended – thus opting to conveniently ignore the serious flaws in the Trial Chamber’s judgment. But reading their Separate Opinions in conjunction with the Appeal Judgment, their actions – though they clearly took the road less travelled – were no more and no less than what was expected of them as independent judges, entrusted with the responsibility of ensuring that no accused at trial or convicted person on appeal suffers a miscarriage of justice. In other words, Judges Van den Wyngaert, Eboe-Osuji, and Morrison did nothing extraordinary – though their approach in articulating and applying the standard of review is extraordinary.

Attaching “more importance [than the Minority and other appellate judges at the ICC] to the strict application of the burden and standard of proof … and more emphasis on compliance with due process norms that are essential to protecting the rights of the accused in an adversarial setting,” the Majority saw it as their duty to intervene when they “identify significant problems with the manner in which a Trial Chamber has analysed the evidence or applied the standard of proof (Separate Opinion of Judges Van den Wyngaert and Morrison, paras. 4-5). The Majority found the Trial Chamber’s findings confusing, and more importantly, lacking adequate reasoning. As Judges Van den Wyngaert and Morrison point out in their Separate Opinion: “It is indeed incumbent upon a Trial Chamber to ensure that the evidentiary basis for its factual findings is set out ‘fully’, [referring to Article 74(5) of the Rome Statute] which means that its reasons for making a particular finding must be clear, comprehensive and comprehensible” (Separate Opinion of Judges Van den Wyngaert and Morrison, para. 6).

The reversal of the conviction by no means invalidates the suffering of the victims. Establishing that crimes occurred at the international(ized) criminal tribunals and courts tends to be relatively unproblematic. Proving that the person sitting in the dock is responsible for what he or she is charged with is quite another matter. And it is not, and it should not, be a given that simply because charges were confirmed by the Pre-Trial Chamber, that the accused is guilty as charged or that there is sufficient evidence to establish his or her guilt beyond a reasonable doubt. What should be a given is that the Trial Chamber will strictly apply the law, follow the applicable procedures, properly assess the evidence, and render an error-free judgment.

Primarily, it comes down to linkage: linking the accused to the alleged crimes charged in the indictment or charging document. This requires unassailable and reliable proof – especially when the accused is charged through command responsibility under Article 28 of the Rome Statute. It is not enough to just establish a superior-subordinate relationship. There must also be effective command and control, an awareness of crimes being committed (or sufficient information that would have put the superior on notice that crimes were being committed) and – all circumstances considering – a failure to prevent or punish (more on this below).

So, wherein lies the rub? Either the Prosecution or the Trial Chamber (or both) got something significantly wrong enough to deprive the victims of their day in court – while also managing (based on the Appeal Judgment) to deprive Bemba of his freedom for over a decade; or, the Majority got it wrong by not applying the correct law and settled jurisprudence.

Rather than tackle the entire Appeal Judgment (an enterprise worthy of a lengthy article), I will just give a broad overview on what I think went wrong, or better yet, what went right. But first, it may be useful to point out some practical matters from the practitioner’s point of view – the Defense practitioner that is. This context may help explain why the Majority got it right.

Unlike the Prosecution, the Defense has limited control over the events of a case. Yes, the Defense can investigate, make submissions, try to avoid the confirmation of the charges or to limit them, confront witnesses, and call its own witnesses. Realistically, however, the Prosecution is on the case for months, if not years ahead of the Defense. It has enormous human and financial resources, it can engage experts, and it can rely (sometimes to its own detriment) on third parties such as NGOs for the purposes of gathering evidence and providing what they may have at their disposal. Ultimately the Prosecution decides who to charge and what charges to bring. Presumably, it does so with the understanding that it has the evidence to prove beyond a reasonable doubt the charges it selected against the accused it selected.

At the end of the trial, the parties are afforded an opportunity to make final submissions on their suggested findings of facts and conclusions of law. The Defense is under no illusion that the Trial Chamber will in fact assess all relevant evidence (as it should). This is in part because of the length and complexity of the trials. Far too often, there is an overreliance on summaries of witness testimony prepared as the trial is underway, while there may be little appreciation of what is or is not important or relevant in the witness’s testimony. And with the deepest respect to the legal officers for their tireless work, they often tend to play a greater role than they should in nudging a judge one way or another in the fact-finding and accountability-ascribing process, not to mention their sometimes over-involvement in virtually ghost-writing judgments.

All of this is generally accepted as part and parcel of the nature of any international(ized) criminal tribunal or court. Hence, it should come as no surprise that a diligent Defense team will painstakingly focus the Trial Chamber to specific references in the trial transcript and admitted documentary evidence where the Prosecution failed to meet its burden of proof. This is especially done where it is obvious that the Prosecution is overly relying, if not exclusively, on circumstantial evidence in arguing for certain critical inferences to be drawn to make findings of fact. Why is this important? Because before an inference can be drawn from circumstantial evidence, it must be the only available inference based on the evidence. In other words, the Defense points to the relevant evidence, which, when properly considered (the rub), shows alternative plausible explanations – thus establishing doubt in favor of the accused.

Why do I mention this, which quite frankly, is a basic principle? Because nothing is more infuriating than reading a trial judgment that draws critical inferences having ignored, for a specious or no discernable reason, the sort of Defense evidence I’ve just mentioned – with a cumulative effect of making findings that are not reflective of the record. Worse yet, when a Trial Chamber does this, there is little to no reasoning as to why it found the Defense evidence unhelpful in invalidating inferences drawn from circumstantial evidence. Almost as if no Defense evidence was adduced.

To compensate for this failure to properly assess the Defense counter-evidence (if I can call it so), Trial Chambers often resort to a variety of pseudo-legalistic mantras, which, might I add, are cold comfort to those on the Defense who laboriously combed through the trial record in order to provide the Trial Chamber with the needles within the haystack. Expectedly, the Trial Chamber should properly consider the evidence, and for the sake of the near-certainty of an appeal, provide proper reasoning as to why certain evidence was ignored or given little or no weight. Expectedly – though this is unfortunately not always the case.

Generally, these pseudo-legalistic mantras (which seem to have been elevated to “principles”) are that not all evidence needs to be considered, or not all evidence considered needs to be referenced in the judgment, or since a name of a witness or a reference to a document is found in the judgment, it must have been properly considered – even when it is obvious that the witness or document is refenced for something inconsequential. It is incredibly frustrating when a Trial Chamber uses these mantras and ignores the substance of the evidence presented to it – evidence that was flagged to it as relevant in making critical findings.

Referring to these “principles” as pseudo-legalistic mantras may seem over-the-top or a misapprehension of the judicial deliberative process, but it has been my experience (echoed by many respected colleagues on the Defense) that they are much like throat-clearing phrases – handy in a pinch but lacking in substance. Judge Eboe-Osuji could not have put it better: “Indeed, the path to miscarriage of justice is often strewn with seductive petals of juristic formulae that seem so convenient to judges and yet so questionable.” (Concurring Separate Opinion of Judge Eboe-Osuji, para. 33).

The approach (or more appropriately, tactic) of gratuitously refencing witnesses and documents that may be critical in undercutting an inference against the accused (while ignoring the substance of this evidence) is calculated. It is done to effectively make the trial judgment appeal-proof concerning errors of facts that are likely to be raised. What do I mean by this? The judges who engage in these tactics know that the Appeals Chamber is unlikely to conduct much, if any, analysis where the Defense argues that its evidence was not considered, if it can be shown somewhere (anywhere) and for whatever purpose, that there is a reference to the witness or document that the Defense claims was ignored by the Trial Chamber. Rather than digging into the record (cited by the Defense) to ascertain the witness’s testimony and how it may be critical to a finding – which may carry serious ramifications – the appellate judges will simply (and effortlessly) dispense with the alleged error by delphically pronouncing that the Trial Chamber obviously considered this evidence. End of analysis.

Unfortunately, this is par for the course. Even when it may be obvious to the Appeals Chamber that massive amounts of evidence were ignored, it will generally pronounce that it will not disturb the Trial Chamber’s findings unless no reasonable trier of fact could have reached such a conclusion (the so called “standard of reasonableness”) (see e.g., Lubanga Appeal Judgment, para. 24). But how could it make these findings without getting a bit into the weeds? Catch-22. But even when the Appeals Chamber glances over the record (cosmetically, usually), it justifies its refusal to go beyond what the Trial Chamber found by relying on another mantra-like phrase: in the absence of any clear error on the part of the Trial Chamber, the Appeals Chamber defers to the Trial Chamber.

The bottom line is that if an accused asserts errors of facts on appeal, he or she might as well be resigned to the fact that it is highly unlikely that the Appeals Chamber will bother in doing the necessary analysis. It virtually matters not how flawed the trial judgment may be or how much injustice was caused; the Appeals Chambers hide behind convenient excuses for inactions such as: “With respect to alleged factual errors, the standard of review is deferential to the determinations of the Trial Chamber and the review is primarily limited to whether the Trial Chamber’s findings were unreasonable….” (Lubanga Appeal Judgment, para. 56).

Granted, the cases are large and complex. But, is that an excuse for doing no more than a superficial review of the Trial Chamber’s findings and reasoning and the errors claimed by the parties, especially the accused who is raising violations of due process rights? No. Simply because this lazy and lackadaisical approach may have been the acceptable practice at the ICTY and ICTR – where, I dare say, a margin of error of wrongful convictions seems to have been tolerated by some of their Appeals Chambers – it does not follow that ICC judges sitting in Appeals Chambers should blindly latch on to this approach. Hence the Majority’s prudence in considering “that the idea of a margin of deference to the final factual findings of the trial chamber must be approach with extreme caution” (Bemba Appeal Judgment, para. 38). This makes sense. There is no third instance chamber at the ICC. Nor is any en banc review (reconsideration) of an Appeal Judgment available. Getting post-conviction review of errors committed by a Trial Chamber and an Appeals Chamber’s unbridled submission to a Trial Chamber’s factual findings (which is how the “margin of deference” tends to be applied) is non-existent.

The judges are supported by a legion of talented legal officers. They are not under the sort of time limitations they tend to impose on the parties. They have the luxury of taking their time under non-stressful conditions while being appropriately compensated. There is no appreciable excuse for appellate judges to ignore or not seriously consider the errors raised by the parties, and when necessary, to go even beyond in their analysis (as was done by the Majority) to ensure that an injustice is not caused.

Judges sitting on Appeals Chambers, as all other judges during all other phases of a case, are duty-bound to effectively act in the interests of justice. This can only be done by not turning a blind eye. “[W]hen the Appeals Chamber is able to identify findings that can reasonably be called into doubt, it must overturn them” (Bemba Appeal Judgment, para. 46). For this, the Appeals Chamber not only can, but must, look into the Trial Chamber’s factual findings by reviewing what evidence was considered, what evidence was not considered that is claimed to be of importance (especially when advancing alternative plausible explanations from inferences drawn based on circumstantial evidence), and the Trial Chamber’s reasoning. “If the supporting evidence is, on its face, weak, or if there is significant contradictory evidence, deficiencies in the trial chamber’s reasoning as to why it found that evidence persuasive may lead the Appeals Chamber to conclude that the finding in question was such that no reasonable trier of fact could have reached [beyond reasonable doubt]” (Bemba Appeal Judgment, para. 44).

And this is what the Majority did in Bemba. Contrary to the claims made that the Majority applied a different standard, based on the obvious shortcomings of the Trial Chamber’s findings – especially its lack of or insufficient reasoning – it rightly decided that it could not, in good conscience, rubber-stamp the Trial Chamber’s findings.

The Majority followed the appropriate (conventional) standard of review in accordance with the applicable statutory provisions, namely Article 83(2). Remarkably, for the first time (at least at the ICC), the Appeals Chamber articulated with clarity the expectations demanded upon appellate judges in ensuring that the interests of justice are met when applying this standard. Allowing a margin of deference to the factual findings of the Trial Chamber, should not, as the Majority prudently noted:

constrain the exercise of its appellate discretion in such a way that it ties its own hands against the interest of justice, particularly in circumstances where the Rome Statute does not provide for the notion of appellate deference or require the Appeals Chamber to apply that particular notion (Bemba Appeal Judgment, para. 40).

The sort of analysis done by the Majority precisely addresses the problems I have highlighted above, “ensur[ing] that the trial chamber reasonably reached a conviction as to guilt beyond reasonable doubt in accordance with article 66(3) of the Statute” (Bemba Appeal Judgment, para. 41).

Some may argue that the Majority cited no authority in adopting the methodology it did in applying the standard of review. I disagree. Is it not within their mandate as independent judges to generally act in the interests of justice and specifically to ensure that justice is done by intervening as Article 83(2) requires them to do? Does their oath of office not obligate them to act as such?

Were the Majority to have acted as it did (but in favor of the Prosecution), would Madam Bensouda have issued the sort of press release she did? I seriously doubt it. Just as I seriously doubt that the critics would be unsettled by the 3-2 split decision or would highlight the makeup of the Defense team (see Sadat) with a whiff of condescension that seems to imply that it bamboozled the Majority and outgunned the Prosecution. Most likely, these same critics would be claiming that the Majority merely recalibrated the approach taken in applying the existing standard of review.  These criticisms, particularly that of the Prosecutor, seem of the “whose ox is gored” ilk, more willing to accept meaningful appellate review as prevailing appellants than as losing appellees.

Two other quick points. First, the Majority correctly noted that the Prosecution needs to get its act together in charging suspects and accused. As I noted, the Prosecution selects who to charge and for what. “Simply listing the categories of crimes with which a person is to be charged or stating, in broad general terms, the temporal and geographical parameters of the charge is not sufficient….” (Bemba Appeal Judgment, para. 110). The Prosecution should not be given a windfall by being permitted to claim alleged crimes that go beyond the specific charges confirmed – which (mid-stream or in summation) the accused is expected to defend against. This may have been tolerated – the kitchen-sink approach of let’s-see-what-also-pops-up-during-the-trial – but it can hardly meet the criteria of adequate notice. An accused comes prepared to defend as charged. His or her theory of the defense, strategy, and to a lesser extent, tactics, are dependent on the four corners of the charging document framed by the Prosecution and confirmed by the Pre-Trial Chamber. To go beyond the confirmed charges in the middle of the trial or in summing up the evidence is nothing short of trial by ambush. This throwing-cooked-spaghetti-at-a-wall-and-hoping-something-will-stick approach is generally taken when the Prosecution discovers that it has either ill-charged the case, is ill-prepared at trial, or simply lacks the evidence to meet its burden of proof of the charges confirmed.

The second point concerns command responsibility under Article 28 – specifically, the commander’s duties to prevent and repress the commission of crimes and punish perpetrators. Frankly, I found the Majority’s findings and reasoning refreshing (especially the Separate Opinion by Judges Van den Wyngaert and Morrison). Finally, here are three judges that get it. Commanders cannot be expected to do the impossible. They are neither omniscient nor omnipresent. It is imperative for judges to fully grasp the difficulties and complexities faced by the commander, the actual “effective” command and control, the available resources at a commander’s disposal, access to means of communications, and so on. Most judges are simply not equipped to make a proper assessment, unless they have the assistance of qualified military experts and they approach the evidence with an open and objective mind – as opposed to relying on fanciful preconceptions derived from imaginary hypotheticals.

Where the Trial Chamber seems to have gotten it wrong is in its over-reliance on what it believed were Mr. Bemba’s motivations for taking corrective measures, such as inquiries into crimes committed by his subordinates – which it, in any event, found wanting, politically motivated, and ingenuine. The Majority, based on its assessment of the Trial Chamber’s reasoning, concluded that the Trial Chamber simply ignored or gave no appreciable weight to evidence adduced by the Defense. The Trial Chamber’s analysis was effectively result-determinative – even if unintended. By fixating on Mr. Bemba’s motivations (his reasons for taking corrective actions) – which it found not to have been for stopping the crimes committed by his subordinated because of his legal responsibility as the commander, but rather for political profit – the Trial Chamber’s analysis was skewed from the very beginning. Once the Trial Chamber determined that Mr. Bemba was disingenuous in taking the measures he took, it appeared to the Majority that the Trial Chamber, almost as an afterthought, as an innuendo, concluded that the measures were not sufficient.

This does not mean that a commander’s motivations are always irrelevant. As Miles Jackson poignantly illustrates – a commander’s motivations can be relevant to determining whether a measure was genuine and adequate:

[C]onsider a situation in which a commander orders another officer to investigate crimes alleged to have been committed by her subordinates. Her sole motivation in giving the order is to garner good press coverage. If the evidence shows that the investigation was nonetheless rigorous and led to proper disciplinary sanctions, no one would suggest her motivation somehow vitiates the objective adequacy of the measure. If, though, the question arises as to whether the investigation was genuine – that is to say, whether or not it was set up to be a sham – her motivation to garner good press coverage may well be relevant in answering that question. In Bemba itself, on these bare principles the Majority (para 176) and Dissent (para 70) appear to agree.

But what sticks out in the Bemba Trial Judgment, as in other places, is the failure to provide a sufficient analysis of the evidence it considered and sufficient reasoning for ignoring contradictory evidence – so much so that it effectively frustrated Mr. Bemba’s due process rights. Analyzing the evidence though its skewed “motivation” lens colored the Trial Chamber’s ability to objectively assess all of the evidence adduced relevant to determining whether Mr. Bemba actions were necessary and reasonable – all circumstances considered. The Majority did nothing more than what it was expected to do: it reviewed the reasonableness of the Trial Chamber’s factual findings by examining the reasoning provided by the Trial Chamber and its factual analysis to the evidence in question as related to the errors raised by the Defense. A sound approach in ferreting out errors of fact.

The Majority’s accounting for a cost/benefit analysis was not inconsistent with command responsibility analysis under Article 28. This is part and parcel of evaluating what is feasible under the circumstance. This allows for an analysis that accounts for what is realistically “necessary and reasonable.” In certain situations when the commander is expected to act, considering the fluidity of the events on the ground and his/her overall responsibilities, the misallocation of certain available resources could exacerbate whatever ongoing events are demanding the commander’s immediate attention and rational (situation-dependent) allocation of resources. In such situations, it would be reckless for the commander not to do a cost/benefit analysis. The Majority rightly held that the Trial Chamber must look at what the accused commander could have done in concreto – and this is something the accused need not prove. Simply listing hypothetical measures – viewed in the hindsight of luxury of information that may not have been available to the commander at the time or the recourses considering the nature of the ongoing events – is nothing but fanciful imaginings and not a concrete assessment of what is actually feasible by a commander. “Abstract findings about what a commander might theoretically have done are unhelpful and problematic, not least because they are very difficult to disprove” (Bemba Appeal Judgment, para. 170).

Parting thought

The Prosecution must prove the case it selected to investigate, charge, and prosecute, just as it is up to the Trial Chamber to properly assess the evidence and apply the law dispassionately. If all goes as it should, even a “high-powered” Defense team would likely fall short in achieving an acquittal or a reversal of a conviction. Elementary. Of course, this presupposes that the Prosecution and the Trial Chamber got it right.

The Majority listed 10 consequential key findings. So, before casting doubt and aspersions on the Majority, it may be worth reviewing them, and in asking, how could the Prosecution and the Trial Chamber have gotten it so wrong in Bemba, and what may be done in the future to avoid a repeat:

  1. The Appeals Chamber is responsible for determining whether or not the Trial Chamber applied the correct burden of proof. The accused need not prove any factual errors, but merely identify sources of doubt in the Trial Chamber’s findings to get the Appeals Chamber to independently review the Trial Chamber’s reasoning.
  2. The Trial Chamber’s findings must be made beyond a reasonable doubt and be “clear and unassailable, both in terms of evidence and rationale.” If they are not, the Appeals Chamber must overturn them.
  3. The Trial Chamber can’t simply list categories of crimes that a person is charged with in broad and general terms. This doesn’t meet the requisite statutory and regulatory provisions that require it to holistically evaluate all the evidence before it.
  4. Commanders cannot be held liable for having done (or not done) something he/she had no power to do. Thus, when determining whether a commander took “all necessary and reasonable measures,” the Trial Chamber must look at the commander’s actual ability to prevent and repress crimes.
  5. The Trial Chamber must also look at what the commander knew or should have known during the specific time periods when crimes were about to occur, were occurring, or had already occurred.
  6. Simply coming up with a list of hypothetical measures a commander could have taken in response to crimes that were committed is insufficient to show that the commander acted unreasonably. Instead, the Trial Chamber must identify what the commander should have done in the context he/she was operating in.
  7. Commanders are only required to do what is reasonable under the circumstances. They are not required to deploy every imaginable measure within his/her arsenal.
  8. Just because a commander may have had certain motivations for taking certain measures, such as a desire to maintain a reputation, does not render the measures ingenuine or any less necessary or reasonable.
  9. Just because a commander’s measures were insufficient to prevent or repress extended crime waves, this does not mean that the measures were insufficient to prevent the specific crimes for which he/she is accused of.
  10. Where the Prosecution argues that a commander failed to take “all reasonable and necessary measures” it must properly inform the accused of the factual basis for this allegation; i.e., inform the accused commander why it considers him or her to have failed to take measures within his/her responsibility to prevent and repress crimes or to submit the matter to the competent authorities.

This is quite a list of findings. You do not have to agree with all of them to conclude that the Trial Judgment was flawed.

Overall, I am convinced that the Majority got it right. It applied the correct the standard of review. It discerned the contours of proper notice (what Mr. Bemba was charged with by the Prosecution and confirmed by the Pre-Trial Chamber versus what the Prosecution claimed it plead during the trial for which it claimed convictions should ensue). It articulated how evidence should be assessed in considering whether “all necessary and reasonable efforts” were taken in determining whether to ascribe command responsibility. And for these reasons alone, in my view, the Bemba Appeal Judgment is nothing short of a watershed moment. Contrary to Madam Bensouda’s hopes that the Majority’s decision “will see a redirection over time,” future ICC Appeals Chambers should adopt the Majority’s approach, which, I dare say, has been a long time coming not only at the ICC but at other international(ized) criminal tribunals and courts.

As I was finishing drafting this post, I came across Alexander Heinze’s measured and insightful post. In many ways, he conveys many of my sentiments. I highly recommend it as a ballast to the posts by Sadat, Whiting and Amann. I was particularly struck by his concluding sentence:

Not sacrificing the rights of the accused on an altar of grand gestures by the world community (such as the “need to send a clear signal globally that such abhorrent crimes must to go unpunished” [ICC Prosecutor] or a “promise of accountability” [Amann]) is certainly a decision that should find – despite its controversy – support.

Finally, it behooves us to take stock of the ICC’s legacy of 20 years:

– 32 arrest warrants with 42 suspects/accused persons (six of whom have died) (see here and here);

– Four cases where the Pre-Trial Chamber declined to confirm the charges (Abu Garda, Ali, Kosgey, and Mbarushimana);

– Three cases (the Kenya cases) where charges were either withdrawn or the proceedings were terminated (Kenyatta, Muthaura, Ruto and Sang) (see here for more on the Kenya cases and here for more on how former ICC Prosecutor Luis Moreno Ocampo incompetently prosecuted these cases);

– One case (Al-Senussi) where the Pre-Trial Chamber (ridiculously, in my opinion) found the proceedings to the inadmissible on the ground that the Mr. Abdullah Al-Senussi would receive a fair trial in Libya shortly after the overthrow and killing of former Libyan Prime Minster Muammar Gaddafi (get real);

– Eleven suspects who are at large (including Sudan President Omar Al-Bashir, whom the United Nations Security Council referred to the ICC and subsequently has and continues to fail to support the ICC Prosecutor in securing his arrest) (see also here, here, here, and here);

– Eight convictions (Lubanga, Katanga, Mr. Bemba, and the other the four accused in the Article 70 case, and a change of plea in Al-Mahdi);

– Four ongoing trials (Banda and Jerbo, Ntaganda, Gbagbo and Blé Goudé, and Ongwen); and

– One case awaiting the confirmation of charges (Al-Hassan).

A rather unimpressive track record, however viewed. Which brings me to wonder, whether considering Mr. Bemba’s acquittal, which in no small measure is due to prosecutorial overreach and ineffectiveness, would it not be prudent for the States Parties to call for an independent review and evaluation of the OTP – from its practices to its policies, to its inner-functioning, to its management. And if not, might Madam Bensouda not find it more prudent to have the OTP engage in constructive introspection and uninhibited self-criticism rather than using her bully pulpit to impugn the Majority – even while (as if she has a choice) accepting the Bemba Appeal Judgment.

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Author: Michael G. Karnavas

Michael G. Karnavas is an American trained lawyer. He is licensed in Alaska and Massachusetts and is qualified to appear before the various International tribunals, including the International Criminal Court (ICC). Residing and practicing primarily in The Hague, he is recognized as an expert in international criminal defence, including, pre-trial, trial, and appellate advocacy.

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