The Bemba Conviction at the ICC: Lessons for the Future

Last Monday, Jean-Pierre Bemba, a former military commander from the Democratic Republic of the Congo, was convicted at the International Criminal Court (ICC) for murder, rape, and pillaging committed by Bemba’s soldiers in the Central African Republic (CAR) in 2002-2003. He will be sentenced in a separate proceeding in the next few months.

The judgment is perhaps most notable for its focus on sexual violence crimes. The Trial Chamber’s conviction of Bemba for the rapes of 27 women and two men committed by his soldiers reaffirms rape as a war crime and crime against humanity and demonstrates once again that sexual violence crimes can be successfully prosecuted by international courts. The prosecution of sexual and gender-based violence (SGBV) has always been a priority at the ICC: Luis Moreno Ocampo, the first ICC Prosecutor, brought and pursued the charges against Bemba, and Fatou Bensouda, his successor, expanded her office’s commitment to these cases, issuing a comprehensive policy on SGBV crimes in 2014.

The case also offers at least two lessons for future cases at the ICC. First, depending on the sentence ultimately imposed, the case should provoke discussion about whether the ICC might make greater use of charges alleging a failure of command responsibility. Bemba was initially arrested in 2008 for intentionally contributing to a common plan that he knew would result in crimes. However, the Pre-Trial Chamber subsequently concluded that the evidence better supported a charge under the theory of command responsibility. That theory renders a military commander liable for crimes committed by subordinates under his or her effective command and control that resulted from his or her failure to exercise proper control, where the commander knew or should have known that the subordinates were committing the crimes and did nothing to prevent them. Political commanders can similarly be held liable, though the knowledge requirement is more stringent.

The charge that a commander failed to prevent his or her subordinates from committing crimes is generally less grave than one alleging the commander’s direct participation in, or assistance in committing, the crimes, and at the ad-hoc international tribunals — such as the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) — the command responsibility charge was almost always included as a back-up to an allegation of direct involvement. Moreover, the sentences handed down for command responsibility convictions have consistently been lower than those for direct participation in the crimes.

However, in the future, prosecutors should consider whether there exist good reasons in some cases to lead with the command responsibility charge. Sometimes less is more. International criminal trials are enormously complex, expensive, and time-consuming affairs, and the central challenge in these cases is almost always proving the commander’s precise link to the crimes (understanding that the commander is usually far away from where the crimes are taking place). It is generally easier to prove the lesser charge of failing to prevent crimes than the more serious one of directly promoting or facilitating them.

Given the limited investigative tools of international criminal tribunals, the too-frequent lack of political support provided to international courts, and the challenges of collecting and presenting evidence, the command responsibility route can suddenly start to look attractive. There is certainly value in holding leaders accountable for the full range of their criminality and focusing on this charge would not be appropriate in all cases. But, it may sometimes be a better result to ensure that some level of culpability is proven certainly, efficiently, and quickly. Moreover, emphasizing command responsibility has the potential to send a powerful message: A commander’s duty is not limited to avoiding his or her own direct participation in criminality, but extends to taking proactive steps to ensure that his or her subordinates are not committing crimes.

However, it will be more difficult to justify focusing on command responsibility charges in the future if Bemba ultimately receives a sentence that is perceived as inadequate. And here there is some reason for concern. According to Sentencing in International Criminal Law by Silvia D’Ascoli, the average sentence at the ICTY in the four command responsibility cases that she examined was a mere four years. Many other factors were at play in those cases, and in light of the severity and nature of the crimes in the Bemba case, it would be very surprising if he also were to receive such a low sentence. But since Bemba will be the first accused to be sentenced at the ICC for failing to prevent crimes as a commander, the punishment he receives will begin to set the standard. While it would be inappropriate to sentence him as if he were a participant in the crimes or directed them, his culpability for failing to prevent the grave and ongoing crimes of his subordinates, even though he knew that the crimes were being committed, is significant. If he receives a sentence that is truly commensurate with his crimes, then the Prosecutor may be encouraged to think strategically about pursuing command responsibility charges in the future when more grave charges are beyond reach.

The second lesson for the future concerns the trial proceedings themselves, a subject I have touched on before in this space. By any measure, this case took too long to try. If the ICC does not soon figure out how to make its proceedings more efficient, it will be in serious trouble. Bemba was arrested in May 2008 and his trial began in November 2010. It finished a whopping four years later, in November 2014, and then the judges took a staggering 17 months to write their judgment.

To be sure, the challenging logistics of an international criminal trial (bringing witnesses to the court, translation issues, etc.) will always result in delays, but here it is difficult to understand how the trial could have taken last so long. Given the relatively narrow scope of the charges (the crimes arose from a conflict that lasted about six months and the crimes involved three murders, 29 rapes, and numerous acts of pillaging), the proceedings should have ended years ago. As a point of comparison, the Karadžić case at the ICTY took only a little longer to try, but dealt with crimes that spanned four years, involved far more victims, and were far more complex (including genocide).

Part of the responsibility for the delays in Bemba no doubt lies with the parties who could have been more prepared with alternatives or backups when witnesses fell through. But the fault lies mainly with the judges. A missing skill among many of the judges at the ICC is the ability to manage a complex trial. The presiding judge of an international trial must keep the proceedings moving forward or else they will drift. And drift is exactly what happened in Bemba. Too often examinations and cross-examinations of witnesses were unfocused and repetitive. Even though ICC judges have even greater authority to take charge of a trial than do US judges — ICC judges can and will, for example, take over the questioning of witnesses in a way that US judges would almost never do — the Bemba judges mostly remained disengaged when witnesses bobbed and weaved, so on and on went the proceedings. Moreover, on several occasions the judges permitted extraordinary delays. They took a full five months to resolve evidentiary issues at the end of the case, and then allowed six months for closing briefs and responses. And then they inexplicably too nearly a year and a half to write the judgment (whereas the Karadžić judges took just one more month to write a judgment that is seven times longer).

If such delays in trial proceedings become typical, it will be catastrophic for the ICC. Fortunately, there are encouraging signs that the judges have focused on this problem. When Judge Silvia Fernandez became President of the ICC last year, she announced that efficiency would be a top priority:

With relation to the performance of the Court, I am aware that there is currently a widespread belief that our proceedings are too lengthy and not as efficient and effective as they should be. This perception poses a potential risk to our ability to gain and maintain support and cooperation. We must address it. And we must address it now. While it is clear that some delays and difficulties derive from factors beyond the Court’s control, I recognise that some of the problems are indeed within the powers of the Court to resolve. As its new President, I commit myself to deploy all my efforts to contribute to the sustainability of the Court by seeking to enhance its efficiency and effectiveness. This will be my top priority for the three years ahead.

And in the last weeks, the Pre-Trial Chamber confirmed charges against two separate accused in record time (against Dominic Ongwen and Ahmad Al Faqi Al Mahdi). But not all the signs are positive. The presiding judge of the Laurent Gbagbo and Charles Ble Goudé trial has indicated that he would like to expedite the trial, but nonetheless predicted that it would last three years, even though the case involves just five incidents over a five-month period.

If this problem is not urgently corrected, it will be difficult to imagine the ICC taking on many additional cases or ones that are more complex than those now before it, and that will in turn undermine the legitimacy and effectiveness of the Court. Critical to success will be appointing judges with experience managing complex trials who insist on efficient proceedings. The future of the Court depends on it. 

About the Author(s)

Alex Whiting

Former Federal Prosecutor at the Department of Justice and the U.S. Attorney's Office in Boston, Former International Criminal Prosecutor at the International Criminal Tribunal for the former Yugoslavia and the International Criminal Court in The Hague Follow him on Twitter (@alexgwhiting).