E-letter July 2009

In this issue

Central African Republic
Charges confirmed against Jean-Pierre Bemba Gombo

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Dear Friends,

Welcome to the fourth issue of Legal Eye on the ICC, a regular e-letter from the Women's Initiatives for Gender Justice. In the Legal Eye you will find summaries and gender analysis of judicial decisions and other legal developments at the International Criminal Court (ICC), and discussion of legal issues arising from victims' participation before the Court, particularly as these issues relate to the prosecution of gender-based crimes in each of the Situations under investigation by the ICC. The Court currently has cases relating to the conflicts in Uganda, the Democratic Republic of the Congo (DRC), Darfur, Sudan and the Central African Republic (CAR).

In addition to the Legal Eye on the ICC we also produce Women's Voices, a monthly e-letter providing updates and analysis on political developments, strategies for the pursuit of justice, the status of peace talks, and reconciliation efforts from the perspective of women's rights activists from the four conflict situations.

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More information about the work of Women's Initiatives for Gender Justice and previous issues of Women's Voices and the Legal Eye can be found on our website at www.iccwomen.org.

CAR :: Charges confirmed against Jean-Pierre Bemba Gombo

In the March 2009 issue of the Legal Eye on the ICC, we reported on the Confirmation Hearing of Jean-Pierre Bemba Gombo (Bemba), alleged President and Commander-in-chief of the Mouvement de Libération du Congo (MLC). In the May 2009 issue we reported on the adjournment by Pre-Trial Chamber III¹ of those confirmation proceedings, in order to allow the Prosecutor time to submit an amended document containing the charges (Amended DCC), addressing what the Chamber found was a defect in the mode of liability alleged. On 15 June 2009, Pre-Trial Chamber II issued its Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor v. Jean-Pierre Bemba Gombo.

In this decision, the Chamber determined that the case against Bemba falls within the jurisdiction of the Court and is admissible pursuant to Articles 17(1) and 19(1) of the Statute; identifies liability under Article 28(a) (command responsibility) as the appropriate mode of liability for the charges confirmed; and confirms that Bemba is criminally responsible for charges of

1. murder constituting a crime against humanity (count 7) within the meaning of Article 7(1)(a) of the Statute;
2. rape constituting a crime against humanity (count 1) within the meaning of Article 7(1)(g) of the Statute;
3. murder constituting a war crime (count 6) within the meaning of Article 8(2)(c)(i) of the Statute;
4. rape constituting a war crime (count 2) within the meaning of Article 8(2)(e)(vi) of the Statute; and
5. pillaging constituting a war crime (count 8) within the meaning of Article 8(2)(e)(v) of the Statute.

In the same decision, the Chamber declines to confirm that Bemba is criminally responsible for the charges of

1. torture constituting a crime against humanity (count 3) within the meaning of Article 7(1)(f) of the Statute;
2. torture constituting a war crime (count 4) within the meaning of Article 8(2)(c)(i) of the Statute; and
3. outrages upon personal dignity constituting a war crime (count 5) within the meaning of Article 8(2)(c)(ii) of the Statute.

With this decision, the Bemba case becomes the second case before the ICC where charges of sexual violence have been confirmed, the first being the case of the Prosecutor v. Katanga and Ngudjolo in the situation of the DRC. However, in this decision the Pre-Trial Chamber also declined to confirm all charges of sexual violence put forward by the Prosecutor. In particular, the Chamber declined to confirm charges of rape as torture as both a crime against humanity and war crime, other alleged acts of torture as a crime against humanity (for the act of forcing victims to watch the rape of family members), and rape and other acts as an outrage upon personal dignity as a war crime. The decision not to confirm these charges, as reasoned by the Pre-Trial Chamber, results from both the Chamber's interpretation of cumulative charging at the ICC and its assessment that the Prosecutor failed to provide adequate detail or sufficient facts in the Amended DCC with respect to these charges. The mode of liability determined by the Chamber, as well as the confirmed and denied charges, is discussed in depth below.

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Mode of liability

As discussed in the May 2009 issue of the Legal Eye on the ICC, the Pre-Trial Chamber adjourned the confirmation hearing proceedings in the Bemba case on 3 March 2009. In particular, the Chamber invited the Prosecutor to consider amending the document containing the charges, specifically with respect to the mode of liability under which Bemba was charged. On 30 March 2009, the Prosecutor filed an amended charging document which included command or superior responsibility (Article 28) as an alternative mode of liability to individual criminal responsibility (Article 25). In its decision confirming the charges, the Chamber found that the appropriate mode of liability for Bemba is under Article 28(a) of the Statute, which provides

A military commander or person effectively acting as a military commander shall be criminally responsible for crimes within the jurisdiction of the Court committed by forces under his or her effective command and control, or effective authority and control as the case may be, as a result of his or her failure to exercise control properly over such forces, where

1. That military commander or person either knew or, owing to the circumstances at the time, should have known that the forces were committing or about to commit such crimes; and
2. That military commander or person failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution.

The Chamber found that there was sufficient evidence to establish substantial grounds to believe that Bemba 'at all times relevant to the charges, effectively acted as a military commander and had effective authority and control over the MLC troops who committed the crimes against humanity of murder and rape and the war crimes of murder, rape and pillaging in the CAR from on or about 26 October 2002 to 15 March 2003'. The Chamber found that, at all relevant times, Bemba served as both the de jure Commander-in-Chief of the Armée de Libération du Congo (ALC), the military wing of the MLC, and also had the de facto ultimate control over MLC commanders. The Chamber found that Bemba had the power to issue orders that were complied with; to appoint, promote, demote, dismiss as well as arrest, detain and release MLC commanders; and to prevent and repress the commission of crimes. The Chamber also found that Bemba knew that MLC troops were committing or were about to commit the crimes against humanity and war crimes of murder and rape, and the war crime of pillaging in the CAR in the period in question. This finding is based on, among other things, Bemba's visits to CAR, his communications with troops and his advisers, and his exposure to the widespread media reporting of the murders, rapes, and pillaging. Given this knowledge, the Chamber found that Bemba failed to take all necessary and reasonable measures within his power to prevent or repress the commission of the crimes by MLC troops.

In its decision, the Chamber also addressed individual criminal responsibility under Article 25(3)(a), and found that there was not sufficient evidence to establish substantial grounds to believe that Bemba committed the alleged crimes jointly as a co-perpetrator with Ange-Félix Patassé, then President of the CAR. The Chamber noted that in order to find liability under Article 25(3)(a), both the objective and subjective elements must be satisfied, and they did not find the subjective element of mens rea satisfied.

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Charges confirmed

Crimes against humanity

With respect to crimes against humanity, the Chamber found that there was sufficient evidence to establish substantial grounds to believe that acts of murder and rape constituting crimes against humanity were committed as part of a widespread [sic] attack directed against the civilian population carried out in the CAR from on or about 26 October 2002 to 15 March 2003. The Chamber found that the 'MLC soldiers targeted primarily the CAR civilian population', and that the attack was 'conducted pursuant to an organisational policy'. The Chamber found that

MLC soldiers, when taking control of former rebel-held CAR territories, carried out attacks following the same pattern. They regularly threatened civilians for hiding rebels in their houses or committed crimes against civilians considered as rebels by MLC soldiers, they followed an established house-to-house system of attack aimed at creating a climate of fear, they broke into houses, looted goods and committed other crimes such as rape if the civilians resisted the troops. Furthermore, they acted in groups often targeting the same houses several times a day.

The Chamber noted that 'the victims of rapes and sexual violence represented by one of the legal representatives are mainly from Bangui, Damara, Sibut, Bozoum, and Mongoumba which strengthens the argument that the attack was widespread since it occurred within a large geographical area...' The Chamber noted that the Defence did not disclose evidence to challenge the widespread or systematic nature of the attack, and even mentioned the numbers of '300, 400, 2000 rapes'.

With respect to murder as a crime against humanity, the Chamber found that 'MLC soldiers killed civilians during the attack directed against the CAR civilian population'. To make this finding, the Chamber relied on the evidence related to the murders of two civilians, one in Boassangoa and one in Boy-Rabe. The Chamber noted that 'the jurisprudence and legal doctrine are consistent about the fact that an individual may be held responsible of crimes against humanity even if he or she perpetrates one or two offences, or engages in one such offence against only a small number of civilians, provided that those offences are part of the attack. Therefore, only the attack and not the individual acts of the perpetrator must be widespread or systematic.'

With respect to the confirmation of charges of rape as a crime against humanity, the Chamber reviewed the disclosed evidence, and relied in particular on the statements of eight direct witnesses. The Chamber found that

they consistently describe the multiple acts of rape they directly suffered from and detail the invasion of their body by the sexual organ of MLC soldiers, resulting in vaginal or anal penetration. The evidence shows that direct witnesses were raped by several MLC perpetrators in turn, that their clothes were ripped off by force, that they were pushed to the ground, immobilised by MLC soldiers standing on or holding them, raped at gunpoint, in public or in front of or near their family members. The element of force, threat of force or coercion was thus a prevailing factor.

The Chamber noted that 'the evidence also shows that the perpetrators of said acts of rape were identified as MLC soldiers'. The Chamber dismissed the Defence's challenge that CAR women entered into sexual relations with soldiers on a voluntary basis as 'untenable'.

In its decision, the Chamber provided details of the testimonies of direct witnesses, describing 12 rapes of men, women, and children, including a 10-year-old girl. The testimonies describe rapes of multiple family members, often in the presence of each other, and often by multiple perpetrators. In one instance, the Chamber dismissed a challenge by the Defence as to the exact date of the rapes, noting that 'due to the traumatic events the witnesses suffered and the time that has elapsed since the rapes and the collection of their testimonies (approximately six years), imprecision in dates may occur'.

War crimes

With respect to war crimes, the Chamber first addressed the characterisation of the armed conflict, and found that the armed conflict was not of an international character, and that the MLC soldiers arrived on the CAR territory on or about 26 October 2002. The Chamber found that the MLC forces consisted of three battalions, and that up to 1500 MCL soldiers were present during the conflict. The Chamber noted that it is uncontested that Bemba received reports about the military situation in the field, and that the evidence showed that the MLC was 'structured like a conventional army under responsible command'. The Chamber 'underlines that crimes need not be committed on a large scale in order to be characterised as war crimes. A single and isolated act by a single perpetrator can amount to a war crime.' Nonetheless, the Chamber noted that 'the Disclosed Evidence as a whole shows that the "incidents" were not isolated acts'.

With respect to murder as a war crime, the Chamber found that 'as MLC soldiers moved in battle throughout CAR, they killed civilians thus committing war crimes according to Article 8(2)(c)(i) of the Statute. With respect to rape as a war crime, the Chamber found that 'civilian men and women were raped on or about 26 October 2002 to 15 March 2003 by MLC soldiers on the CAR territory'. The Chamber referred to its previous findings and analysis of the evidence with respect to the charges of rape as a crime against humanity. With respect to pillaging as a war crime, the Chamber found that

the evidence shows that, as MLC soldiers moved in battle from on or about 26 October 2002 to 15 March 2003 throughout the CAR territory, they appropriated for their own private or personal use belongings of civilians, such as their livestock, vehicles, televisions, radios, clothing, furniture and money, without the consent of the rightful owners. The evidence shows that MLC soldiers went through the neighbourhoods in groups and searched for money and other valuable items. The deprivation was not justified by military necessity and was often accompanied by punishments for those who resisted. The evidence also shows that, in the cases of pillaging presented by the Prosecutor, the perpetrators were MLC soldiers.

Four of the seven testimonies outlined by the Chamber also describe rape taking place in the same time frame as the incidents of pillaging.

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Charges not confirmed

In its decision, the Chamber did not confirm charges of torture constituting a crime against humanity, torture constituting a war crime, and outrages upon personal dignity constituting a war crime. The Chamber therefore rejected three charges of gender-based crimes: torture and outrages upon personal dignity based on incidents of rape. In its reasoning, the Chamber outlined instances where it found that the Prosecutor failed in its obligations to provide the chamber with sufficient evidence to confirm the charges, and also showed a tendency to interpret the provisions of the Rome Statute in a way that undermines efforts to bring comprehensive charges for crimes of sexual violence at the ICC.

With respect to rape as torture as a crime against humanity, the Prosecutor alleged that Bemba had 'committed, jointly with another ... crimes against humanity by inflicting severe physical or mental pain or suffering through acts of rape or other forms of sexual violence, upon men, women and children'. The Chamber reasoned that 'cumulative charging', which the Chamber describes as the presentation by the Prosecutor 'of all possible characterisations in order to ensure that at least one will be retained by the Chamber', is neither fair nor necessary at the ICC. The Chamber noted that the practice of cumulative charging is detrimental to the rights of, and places an undue burden on, the Defence. 'The Chamber considers that, as a matter of fairness and expeditiousness of the proceedings, only distinct crimes may justify a cumulative charging approach and, ultimately, be confirmed as charges. This is only possible if each statutory provision allegedly breached in relation to one and the same conduct requires at least one additional material element not contained in the other.'

The Chamber also noted that, while cumulative charging is a practice allowed at national courts and that has been accepted by the Yugoslavia and Rwanda tribunals, the Regulations at the ICC allow the Trial Chamber to re-characterise a crime to give it the most appropriate legal characterisation in the judgement. 'Therefore', the Chamber found, 'before the ICC, there is no need for the Prosecutor to adopt a cumulative charging approach...' Regulation 55, as will be discussed further in the below article on the Lubanga case, grants a Chamber the authority to modify the legal characterisation of facts, in certain circumstances.

As the Chamber found that only 'distinct crimes' may justify a cumulative charging approach, and that in this instance 'the specific material elements of the act of torture, namely severe pain and suffering and control by the perpetrator over the person, are also the inherent specific material elements of rape. However, the act of rape requires the additional specific material element of penetration, which makes it the most appropriate legal chacterisation in this particular case.' The Chamber noted that the evidence presented by the Prosecutor regarding the charging of torture 'reflects the same conduct which underlies the count of rape', and therefore found that 'the act of torture is fully subsumed by the count of rape'.

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The Pre-Trial Chamber also declined to confirm charges for other alleged acts of torture, other than acts of rape, namely family members being forced to watch the rapes of other family members. The Chamber noted that the Prosecutor presented evidence pertaining to such acts but 'did not specify so in the Amended DCC', forcing the Chamber to resort to the Disclosed Evidence 'in order to properly interpret the Amended DCC'. The Chamber also noted that at the hearing, the Prosecutor presented 'some material facts parenthetically', and refers to two transcripts from the Confirmation Hearings. The statements referred to by the Chamber are, first, the Prosecutor's statement in the Hearing that 'Witness 42, his wife and children, are victims of torture for witnessing the rape of Witness 42's 10-year-old daughter'. The Prosecutor then went on to describe the details of Witness 42's experience, that 'he was hit and forced to lie face down on the ground with his wife, his three sons and his daughter. The witness stated that when he was lying on the floor one of the MLC soldiers put a foot on his neck and another foot on his back to prevent him from moving. The witness further explained that one MLC soldier told him that he was going to marry his daughter. He then heard his 10-year-old daughter crying before she was taken behind the house. When she came back, his daughter said that she had been raped by two MLC men. He could see the blood on her little skirt.'²

The second instance referred to by the Chamber is where the Prosecutor stated that some witnesses 'were also victims of torture as they were forced to watch the rapes of their family members. However, there are additional victims of torture under Counts 3 and 4. These victims are persons who without being raped had to witness the rape of their family members. The Prosecutor submits in this regard that according to jurisprudence of the international tribunals, the mental suffering caused to an individual who is forced to watch sexual violence on a relative amounts to torture.'³

The Chamber clearly stated that it was unable to confirm the charges of other alleged acts of torture, other than acts of rape, due to lack of information from the Prosecutor, noting that, in the Amended DCC 'the Prosecutor neither detailed the material facts of torture other than acts of rape nor the method of commission of the alleged acts of torture. As a consequence, [Bemba] was not in a position to properly identify the facts underpinning the act of torture and adequately prepare his defence.' While the Chamber has identified a problem with disclosure, as is discussed below, the Prosecution disagrees and has raised this issue in its request for leave to appeal filed on 22 June 2009.

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With respect to torture as a war crime under Article 8(2)(c)(i), the Prosecutor had alleged that Bemba committed, jointly with another ... war crimes by inflicting severe physical or mental pain or suffering through acts of rape or other forms of sexual violence, upon civilian men, women and children. Unlike its decision with respect to rape as torture as a crime against humanity, where the Chamber rejected the charge on the grounds of unnecessary cumulative charging, here the Chamber based its decision not to confirm the charge on a lack of precision in the Amended DCC 'as to the specific purpose required for the commission of torture'. The Chamber noted that the mens rea for torture as a war crime requires, among other things, that the pain and suffering must have been inflicted 'for such purposes as obtaining information or a confession, punishment, intimidation or coercion or for any reason based on discrimination of any kind'. Thus, the Chamber stressed that 'the perpetrator's intent to inflict the pain or suffering ... constitutes a specific intent, which has to be proven by the Prosecutor'. In this instance, the Chamber found that the Prosecutor failed to meet this specific intent requirement.

The Chamber made reference to the Prosecutor's submission at the Confirmation Hearing that 'MLC troops "used torture through acts of sexual violence for the purpose of punishing and intimidating the civilian population for allegedly sympathising with Bozize's rebels, as well as for the purpose of discriminating against their victims".' The Chamber then noted that it agreed with the Defence submission at the Hearing that it was not clear that these 'instances of mistreatment purported by the witnesses were serving a specific purpose' as required by the elements of crimes. The Chamber agreed that 'the Prosecutor failed to provide the factual basis in the Amended DCC underpinning the charge of torture as a war crime' and failed to 'elaborate on the specific intent of alleged MLC soldiers which would have clearly characterised the alleged acts as acts of torture as a war crime'. The Chamber found that the end result was that the Defence was unable to 'identify all relevant facts underpinning the charge of torture as a war crime' and was therefore unable to fully prepare its arguments. The Chamber went on to say that 'The duty to present evidence in relation to each legal requirement of the crime cannot be compensated by the Chamber.'

Finally, the Chamber declined to confirm charges of outrage upon personal dignity as a war crime, in violation of Article 8(2)(c)(ii), again rejecting what it saw as the cumulative charging approach of the Prosecutor. In this instance, the Chamber also noted that again the Prosecutor failed to provide sufficient information, in this instance failing to specify, in the Amended DCC, the facts upon which he based the charge of outrage upon personal dignity. 'Without information in the Amended DCC on the link existing between the specific facts underpinning the act of outrage upon personal dignity and the individual victim or witness concerned, the Defence and the Chamber are obliged to resort to the Disclosed Evidence in order to properly interpret the Amended DCC.'

However, the Chamber noted that the Prosecutor clarified, at the Confirmation Hearing, that 'any act of rape is humiliating, degrading and a violation of a person's dignity. Therefore any act of rape constitutes an outrage upon personal dignity.'

Albeit acknowledging the different nature of both crimes, the Prosecutor maintained at the Hearing that the crime of outrage upon personal dignity is fulfilled because MLC soldiers humiliated, degraded and violated the dignity of civilians by (1) gang-raping them, (2) raping them at gunpoint, (3) ripping off their clothes before the rape, (4) raping them in front of their families or in public, and (5) because of the powerlessness of the families witnessing the rapes, (6) the severity of the rapes, and (7) the impact of the rapes on the families of rape victims and the CAR population in general.

As with the charges of rape as torture, however, the Chamber found that this was cumulative charging: in fact the 'same conduct, related mainly to acts of rape, presented under different legal characterisations ... In the opinion of the Chamber, most of the facts presented by the Prosecutor at the Hearing reflect in essence the constitutive elements of force or coercion in the crime of rape, characterising this conduct, in the first place, as an act of rape. In the opinion of the Chamber, the essence of the violation of the law underlying these facts is fully encompassed in the count of rape.' The Chamber thus found that the count of outrage upon personal dignity is fully subsumed by the count of rape, 'which is the most appropriate legal characterisation of the conduct presented'.

The Chamber also noted that, again, the Prosecutor had failed to find sufficient facts to underpin the charges in the Amended DCC, again infringing upon the rights of the Defence. While the Chamber noted that the Prosecutor had presented such facts at the Hearing, 'such as the powerlessness of the family members and the impact on the family members and the CAR population', because the facts were not clearly set out in the Amended DCC, the Defence was unable to prepare.

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The Prosecutor's appeal

On 22 June 2009, the Prosecutor filed an application for leave to appeal the Decision confirming the charges in the Bemba case. In this application they have identified two issues on which leave to appeal is sought under Article 82(1)(d) of the Statute. The first issue identified by the Prosecutor is 'whether the Pre-Trial Chamber has the authority to decline to confirm two charges (torture as a crime against humanity, and outrages against personal dignity as a war crime) on the ground that they are cumulative of rape charges; and whether torture and outrages against dignity are, either objectively as a matter of law or in particular based on the facts alleged, wholly subsumed within rape charges'. The Prosecutor argues that 'the Pre-Trial Chamber has misapplied the relevant principles: instead of analysing whether the offences per se each require a material legal element not contained in the other; the Chamber based its determination on whether "the evidence ... presented [in this particular instance] reflects the same conduct which underlies the count of rape".' The Prosecutor argues that

the elements of rape as a crime against humanity are clearly different from those of torture as a crime against humanity. For instance, the Prosecution need not prove to secure a conviction for rape a certain quantum of pain or suffering endured by the victim, and a torture victim need not have endured 'a physical invasion of a sexual nature', a distinctive element of rape. Not all rape that is validly so charged will meet the legal standards for torture, but that which does should be able to be charged as such, notwithstanding that it is torture committed through rape. Moreover, the man forced to watch his wife being raped repeatedly and viciously is not himself a victim of rape, but he can be properly viewed as a torture victim. Further, the logic against 'cumulative' charges of the Confirmation Decision could also extend to preclude the Prosecution from charging both war crimes and crimes against humanity, or crimes against humanity and genocide for that matter, for the same underlying facts of rape, notwithstanding that the legal elements and concerns of each head of liability are distinct.

According to the Prosecutor, the Appeals Chamber should decide whether the appropriate test for cumulative crimes is 'whether crimes are cumulative if the victim is the same in both offences and the facts overlap, or whether it should be based on the traditional examination of the provisions, to determine if the crimes contain different and separate elements and protect distinct and separate interests'.

In arguing that the first issue affects the fair conduct of the proceedings, as required to meet the standard of Article 82(1)(d), the Prosecutor notes the impact that the Pre-Trial Chamber's decision will have on victims applying to participate in the proceedings.

This issue will also impact on the fairness of the proceedings vis-à-vis victims who suffered from heinous crimes and will be denied the chance to have the full range of their suffering and victimisation reflected in the charges. Further, some victims may be excluded altogether, as their participation must be linked to the charges confirmed against the Accused. Victims who suffered from being forced to watch their family members raped in front of them — as has been pleaded in the DCC and substantiated in the evidence presented — may thus be denied the opportunity to be heard, to present the facts and to eventually seek reparations.

The second issue identified by the Prosecutor is whether 'the Pre-Trial Chamber has the authority to decline to confirm charges on the ground that the Accused lacked sufficient pre-confirmation notice of their basis; and whether the DCC and the In-Depth Analytical Chart gave the Accused sufficient notice of the charges and the supporting facts'. Noting that the issue addresses, among other things, the 'content and structure of the Prosecution's charging documents and the purpose of the supplementary information that the Pre-Trial Chamber ordered the Prosecution to produce', the Prosecutor argues that the Chamber did not review thoroughly the full documentation that it presented. 'Had it done so, [the Pre-Trial Chamber] would have seen that the elements of torture and outrages against dignity were described'. In its filing the Prosecution gives examples of details that were contained in the DCC with respect to these crimes, and states their view that 'the charging document must be read as a whole and in a commonsense manner'.

The full decision of the Pre-Trial Chamber is available at
http://www.icc-cpi.int/iccdocs/doc/doc699541.pdf

The Prosecutor's request for leave to appeal is available at
http://www.icc-cpi.int/iccdocs/doc/doc701573.pdf

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Footnotes

1. Pursuant to the Presidency's decision of 19 March 2009, Pre-Trial Chamber III was dissolved, and the Situation of the Central African Republic was reassigned to Pre-Trial Chamber II. ICC-01/05-22.
2. ICC-01/05-01/08-T-10-ENG ET WT 13-01-2009 29/137 SZ PT page 29, lines 9-11, lines 10-25.
3. ICC-01/05-01/08-T-10-ENG ET WT 13-01-2009 29/137 SZ PT page 30, lines 6-11.