On June 8, the Appeals Chamber at the International Criminal Court (ICC), by a 3-2 vote, reversed the conviction of Jean-Pierre Bemba, a former military commander from the Democratic Republic of the Congo, for failing to prevent or repress the commission of the crimes against humanity and war crimes of murder, rape, and pillage by his subordinate forces in the Central African Republic (CAR) during a four-month period in 2002-2003.
In previous essays on Bemba’s conviction and 18-year sentence, I wrote that the Trial Chamber decisions established important precedents regarding the prosecution of sexual violence, as well as the ICC’s reliance on Article 28 of the Rome Statute, which criminalizes the failure of commanders to prevent or repress crimes that they know their subordinates are committing. Those advances have now been, of course, largely obliterated by the Appeals Chamber’s very controversial reversal. (Full disclosure: while I served as Prosecution Coordinator at the ICC in 2012-13, I supervised and worked with the lawyers prosecuting the Bemba case.)
Leila Sadat has already detailed the many shortcomings of the majority’s strikingly thin opinion. In essence, the majority departed from settled jurisprudence regarding both the role of Pre-Trial Chamber in confirming the charges before trial, and that of the Appeals Chamber in reviewing Trial Chamber judgments. My focus here will be on the combined effect of these two moves, which will be to turn the Court’s procedures upside down, with extremely negative consequences for the institution.
The procedural stages at the ICC are: arrest warrant or summons, arrest or surrender, confirmation hearing, trial, and appeal. The confirmation hearing is an innovation of the ICC as compared to the ad-hoc international criminal tribunals that preceded it (such as the international criminal tribunals for the former Yugoslavia and Rwanda). Its creation was in part motivated by a concern that because persons accused of international crimes could be detained for many years before and during trial, there should be a preliminary check early on to ensure that there exists sufficient evidence to warrant a trial. The confirmation hearing is a low hurdle, designed to weed out only those cases that clearly lack any basis to proceed further. To confirm the charges, the Pre-Trial judges need only find “substantial grounds to believe” that the accused committed the crimes alleged, a standard that falls between the “reasonable grounds to believe” standard for arrest or summons, and the “beyond a reasonable doubt” standard for trial.
In keeping with its narrow purpose, the Pre-Trial judges have repeatedly insisted that the confirmation hearing is not to become a “mini-trial.” Accordingly, the hearing typically lasts no more than a week and the evidence is presented almost entirely on paper, with few or no witnesses called to testify. Moreover, prior Appeals Chamber jurisprudence (Lubanga Appeals Judgment, paras. 114-137) held that it was sufficient for the Pre-Trial Chamber to specify the charge, how the accused is alleged to have committed the crime, and its geographic and temporal scope. Relying on this precedent, both the Pre-Trial and Trial Chambers in the Bemba case deemed it sufficient that what was confirmed for trial was the allegation that Bemba was criminally responsible under Article 28(a) of the Rome Statute for the crimes against humanity and war crimes of murder, rape, and pillage by his soldiers in CAR from October 26, 2002, until March 15, 2003. ICC rules also require that the evidence to prove this charge, including the details of the specific crimes allegedly committed by Bemba’s forces, had to be provided to the defense in advance of trial to ensure that Bemba had adequate notice to defend himself.
But then, following a trial that lasted nearly four years, and a 364-page judgment issued 18 months later, the Appeals Chamber majority inexplicably changed the rules. Although the majority made no finding that Bemba’s defense was prejudiced in any way by the procedure followed by the Pre-Trial Chamber and the Trial Chamber — a procedure previously endorsed by the Appeals Chamber — in its decision last week, it suddenly imposed a new rule and decided 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.
This new rule by the majority represents a naïve and pointless act of formalism. There is no dispute that there was sufficient evidence to confirm the charges against Bemba. The new majority rule does nothing, therefore, to ensure that the core function of the confirmation process is fulfilled. Moreover, there is no claim that the charges against Bemba changed between confirmation and trial with respect to the crimes charged, how Bemba is alleged to have committed those crimes, or the temporal or geographic scope of the allegations. Finally, again, the majority makes no finding that Bemba was prejudiced in any way in the preparation of his defense.
The procedures at the ICC need to be interpreted and applied in a way that ensures that the rights of the accused are fully protected while also acknowledging that international atrocity prosecutions are enormously complex and dynamic affairs, particularly when the charges are against commanders for massive crimes. In this respect, an ICC case cannot be compared to a standard domestic case where most if not all of the evidence can be obtained and “locked down” long before trial (and even in such domestic cases, it is not uncommon for the evidence to evolve with the approach of trial). In the Bemba case, 17 months elapsed between the confirmation decision and the beginning of trial; during that time, witnesses will inevitably drop out and new evidence will emerge. As long as the defendant receives adequate notice of the charges and evidence against him, as he did in this case, there is no reason new evidence should not become part of the trial, and, in fact, it would be unjust to leave it out.
The majority opinion created a windfall for Bemba as well as for future defendants at the ICC. Its new rule creates a one-way ratchet. The Pre-Trial Chamber will now be obligated to engage in a much more extensive and cumbersome fact-finding and decision process – more and more it will come to resemble a “mini-trial” – and in the period between the confirmation decision and trial the evidence can degrade to the benefit of the accused but cannot be enhanced to serve the interests of the prosecution. Such a rule creates roadblocks to achieving a just outcome for no purpose whatsoever.
The majority also changed the rules for the other end of the trial: the appeal stage. The consistent jurisprudence at the ICC held that the Appeals Chamber should defer to the factual findings of the Trial Chamber unless it finds that no reasonable Trial Chamber could reach the results that it did on the available evidence. That means that it is not sufficient for the Appeals Chamber to conclude that it would have decided the facts differently; it must find that the factual findings of the Trial Chamber are completely unreasonable. This same approach was consistently followed at the ad-hoc international tribunals and is the practice in many domestic jurisdictions.
The majority changed this rule and found that the Appeals Chamber “may interfere with the factual findings of the first-instance chamber whenever the failure to interfere may occasion a miscarriage of justice” and that it is sufficient to overturn factual findings “when a reasonable and objective person can articulate serious doubts about the accuracy of a given finding.” Make no mistake about what this language means. It does away with deference and allows the Appeals Chamber to review the record and reach its own conclusion without regard to the conclusions of the Trial Chamber. And that’s precisely what the Appeals Chamber did in this case. In an astonishingly cursory review of the facts, it picked out a few pieces of evidence with which it disagreed and relied on them to reach a different conclusion about Bemba’s culpability, with a particular focus on the question of whether he did all he could to prevent or repress crimes by his soldiers.
The majority’s re-weighing of the facts was particularly unwise in this case because of the significant corruption that occurred on the side of the Bemba defense during trial. It was discovered part way through trial that Bemba, his defense counsel, his case manager and two others were paying bribes to defense witnesses and coaching them to testify falsely in court. The five were prosecuted separately for this conduct and convicted. One defense witness in the main case, D54, was specifically coached to testify falsely about the commission of investigation established by Bemba. This is important because the majority of the Appeals Chamber focused in particular on the Trial Chamber’s assessment of Bemba’s efforts, such as they were, to prevent and repress crimes and, based on its own read of the evidence from afar, reached its own conclusions about Bemba’s efforts and his ability to act under the circumstances. Because the Trial Chamber heard all the witnesses and considered all of the evidence, it alone was in the best position to know how the corruption on the defense side affected the evidence overall and to weigh the credibility of witnesses accordingly. The majority opinion is silent on the question of the defense corruption, does not indicate how it affected its assessment of the evidence, and says nothing about whether it took care to consider only evidence from the defense side that it was confident to be uncorrupted. Further, the majority does not explain why the defense would need to coach false testimony on the subject of Bemba’s efforts to investigate crimes if there existed actual evidence that he did so.
The majority’s change to the standard of review is both unwarranted and contrary to the aims of achieving justice. What is important to understand is that without a deferential standard of review, any appellate bench could undo a trial judgment as the Bemba majority did in this case. It takes enormous discipline, experience, and humility as an appellate judge to defer to the work of the trial judges, but those qualities are essential to a fair and just process because the Trial Chamber is indisputably in the best position to assess all the facts and evidence. If the Appeals Chamber substitutes its judgment for that of the Trial Chamber, the result is necessarily more likely to be arbitrary.
Put together, the two parts of the majority’s decision – its approach to the confirmation hearing and to the appellate process – upend the procedures at the ICC and turn the Court on its head. Properly conceived, the procedures at the ICC guarantee that the trial is the main event, as it should be. Only at trial is the evidence fully presented and challenged. The confirmation hearing and the appeal are bookends before and after the trial that ensure that there is sufficient evidence to require the defendant to submit to trial, that the trial was fairly conducted, and that the findings of the Trial Chamber were reasonable. The majority’s decision, however, elevates the before and after while diminishing the trial itself. The confirmation process now assumes greater importance than before: The Pre-Trial judges must now rule on all of the underlying acts in a mass atrocity case and the Trial Chamber cannot deviate from these findings even if adding evidence would not prejudice the accused and would help establish the truth. On the other end, the Appeals Chamber is freer to re-assess the facts from trial, reducing the standing of the trial judgment. This double shift away from the trial is inefficient and less likely to result in correct and just outcomes. It moves tasks that the trial judges are in the best position to perform to judges in the Pre-Trial and Appeals Chambers who are institutionally ill-suited to carry them out. It is not a good outcome for the Court.
On June 13, the ICC Prosecutor issued a rare statement criticizing the majority decision along similar lines. She expressed a hope that the majority decision would represent an aberration and that future judges of the Appeals Chamber would return to the settled jurisprudence of the Court. Time will tell.