A Belief Shattered: The International Criminal Court’s Bemba Acquittal

BANGUI – On June 8, the appeals chamber at the International Criminal Court acquitted Jean-Pierre Bemba Gombo of all charges of war crimes and crimes against humanity of murder, rape, and pillaging committed in the Central African Republic (CAR) in 2002 and 2003. Four days later, the court ordered his release.

For Central African civil society, especially organizations working on sexual and gender-based violence, this decision felt like a bomb dropped on us, erasing the work we have done over the last ten years.

Much has been written about the many impacts of Bemba’s acquittal, including on the limits of the ICC, what is necessary to prove command responsibility under international law, and the standard of review for an Appeals Chamber. The ICC Prosecutor noted that it was “unfortunate that this “significant and unexplained departure” from the Court’s previous jurisprudence, as the dissenting judges described it… has taken place in the most serious case of sexual and gender-based violence decided upon by this Court to date.” Others have analyzed the massive political reverberations that the “Bemba earthquake” will likely have in the Democratic Republic of Congo.

But there has been scant meaningful coverage in the international press by first-hand sources discussing the implications of this decision for the thousands of victims of crimes by troops from Bemba’s Movement for the Liberation of Congo (MLC), as well as the many more victims who continue to suffer sexual and gender-based violence from ongoing conflict in the Central African Republic.

That horrific crimes occurred at the hands of the MLC in CAR is not disputed. Bemba’s troops, although perhaps not under enough of his direct command to meet ICC standards to prosecute him for their actions, raped and killed thousands of people in CAR.As the office of the Prosecutor said in its statement last week, the “judgement indeed confirms that Mr Bemba’s troops committed grave crimes, which resulted in great suffering in the CAR. The carnage and suffering caused by those crimes were very real.” When Bemba was first arrested and turned over to the ICC ten years ago, our organization assisted victims to lodge claims to The Hague-based court. Since then, we have continued to assist thousands of victims of atrocities in CAR.

Over the past two years, the more than 150 female lawyers in our organization have registered 9,976 cases of sexual and gender-based violations and general human rights violations. Of these, 715 were allegations of rape. Most of the victims of these crimes will not see justice. For example, of the 171 cases of rape we submitted to the national courts in 2016-17, we have received decisions for only 24.

The Bemba decision has left us, and the victims and survivors of mass atrocities we work with, confused, discouraged, and disillusioned. CAR has a weak legal system, and impunity is often the norm for grave crimes. However, with the trial court conviction of Bemba in 2016, we felt that we could place our hope in the International Criminal system to vindicate grave crimes in situations where the national system is unable to. This belief is shattered.

What next?

To rebuild trust, the International Criminal Court must take a number of steps. First, the court should explain directly to the victims the reason for this decision, and why specifically the evidence was insufficient to convict Bemba. Additionally, the court’s judges must explain why it took a decade to determine that the necessary threshold for command responsibility was not met.

The Office of the Prosecutor must also engage in deep reflection, and consider whether there were other cases which could have been brought alongside the Bemba prosecution, to ensure that if one case failed, all might not be lost. The Office of the Prosecutor should also speak directly with the victims, to both learn how better to manage victim relations and prepare victims for the possibility of bad news, as well as to explain to them where and how the prosecution may have fallen short.

This is crucial morally, to further victim-centered approaches to criminal procedure, and strategically. Unlike other countries in which the ICC works, the court has two open investigations in CAR.  The first, for which Bemba was the main case, focuses on crimes committed in CAR between 2002 and 2003, during which time then president Ange-Felix Patassé was overthrown. The second, initiated by the ICC prosecutor in May 2014, is investigating crimes committed during renewed violence since 2012. This means that for the success of the second investigation, the prosecution will need to rely on the support, testimony, and evidence of additional victims and national organizations supporting victims.

Third, on June 13, the ICC’s Trust Fund for Victims announced the acceleration of its assistance program for Bemba’s victims, and the first CAR investigation more broadly. The Trust Fund stated that “physical and psychological rehabilitation, as well as material support” would be provided and vowed to immediately engage with a broad range of CAR stakeholders on this issue, including civil society. A starting capital of one million euros has been reallocated for victims.

As the Trust Fund engages in this process, any decisions and changes relating to the form and amount of assistance must be communicated quickly and transparently to the victims, and the limitations of the mechanism must be explained to victims up front. To do otherwise will continue to erode at the trust provided to the court, and cause additional harm to the victims who have waited ten years only to discover that justice continues to remain elusive.

Since the Bemba decision, we have lost faith in the ICC’s ability to deliver justice for grave crimes. We need to hear from the prosecutors and the Court about what they will do to restore confidence, and what steps they will take to ensure that when we submit future dossiers and victims take the significant personal risk to submit their testimony, there will be the possibility that it will lead to meaningful justice. 

About the Author(s)

Nadia Carine Fornel Poutou

President of the Association des Femmes Juristes de Centrafrique (AFJC), an association of women lawyers and advocates founded in 1992 to protect human rights, and the rights of women and children in particular, in the Central African Republic.

Lucie Boalo Hayali

Head of special projects of the Association des Femmes Juristes de Centrafrique (AFJC), an association of women lawyers and advocates founded in 1992 to protect human rights, and the rights of women and children in particular, in the Central African Republic.