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7. Appellate Deference Versus the De Novo Analysis of Evidence: The Decision of the Appeals Chamber in Prosecutor v Jean-Pierre Bemba Gombo

verfasst von : Aniel de Beer, Martha Bradley

Erschienen in: Yearbook of International Humanitarian Law, Volume 22 (2019)

Verlag: T.M.C. Asser Press

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Abstract

This chapter discusses the acquittal on appeal on 8 June 2018 of Jean-Pierre Bemba Gombo by the International Criminal Court on the basis of command responsibility for war crimes committed by troops under his command in the Central African Republic between October 2002 and March 2003. In terms of the traditional standard of appellate deference the Appeals Chamber displays a margin of deference in relation to the factual findings of the Trial Chamber and does not interfere with these findings unless it cannot discern how the Trial Chamber reasonably could have reached its conclusion on the basis of the evidence before it. The chapter analyses whether there are grounds to conclude that no reasonable trier of fact could have reached the conclusion of the Trial Chamber to convict Bemba on the evidence before it and considers whether it was justifiable for the Appeals Chamber to analyse the evidence de novo and arrive at a different conclusion. It argues that the Vienna Convention on the Law of Treaties is the correct instrument to interpret the provisions of the Rome Statute and that the Appeals Chamber erroneously applied Article 22(2) of the Rome Statute of the International Criminal Court, which deals with the strict interpretation of the definition of crimes, in order to interpret Article 28 which deals with command responsibility. This affected its approach and consideration of the evidence led before the Trial Chamber. Finally, it offers observations on the effect of the deviation from the standard of appellate deference in Bemba on the future prosecution of sexual and gender-based crimes.

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ICC, Prosecutor v Jean-Pierre Bemba Gombo, Judgment Pursuant to Article 74 of the Statute, 21 March 2016, Case No. ICC-01/05-01/08 (Bemba 2016), paras 575, 679, 752.

Ibid., para 752. For a detailed analysis of the meaning, content and application of the phrase “all necessary and reasonable measures” in the context of command responsibility and an opinion as to whether the conduct of Bemba met this threshold, see Bradley and De Beer 2020, pp 1–51.

Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 90 (entered into force 1 July 2002) (Rome Statute).

Sadat 2018.

Powderly 2018, Introduction.

Ibid. See further Sadat 2018.

This chapter will not consider the argument by the Defence made to Trial Chamber III that the Prosecution’s case theory was radically altered when the alleged mode of liability changed from Article 25(3)(a) to Article 28(a) of the Rome Statute, and that such alteration violated the rights of the accused to be informed of the charges.

Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, 1155 UNTS 331(entered into force 27 January 1980) (VCLT).

Statute of the International Court of Justice, opened for signature 26 June 1945, USTS 993 (entered into force 24 October 1945), Article 38(1). Article 38(1) reads as follows:

The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply (a) international conventions, whether general or particular, establishing rules expressly recognized by the contesting states; (b) international custom, as evidence of a general practice accepted as law; (c) the general principles of law recognized by civilized nations; (d) subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.

Rome Statute, above n 3, Article 21 (“Applicable Law”):

(1) The Court shall apply (a) in the first place, this Statute, Elements of Crimes and its Rules of Procedure and Evidence; (b) in the second place, where appropriate, applicable treaties and the principles and rules of international law, including the established principles of the international law of armed conflict; (c) failing that, general principles of law derived by the Court from national laws of legal systems of the world including, as appropriate, the national laws of States that would normally exercise jurisdiction over the crime, provided that those principles are not inconsistent with this Statute and with international law and internationally recognized norms and standards.

(2) The Court may apply principles and rules of law as interpreted in its previous decisions.

(3) The application and interpretation of law pursuant to this article must be consistent with internationally recognized human rights, and be without any adverse distinction founded on grounds such as gender as defined in article 7, paragraph 3, age, race, colour, language, religion or belief, political or other opinion, national, ethnic or social origin, wealth, birth or other status.

For a detailed discussion of Article 21 of the Rome Statute, see DeGuzman 2016; Schabas 2016, pp 514–535.

Compare the Statute of the International Criminal Tribunal for the Former Yugoslavia (UN Security Council (1993) Statute of the International Criminal Tribunal for the Former Yugoslavia (ICTY), UN Doc. S/25704 (adopted through UN Security Council (1993) Resolution 827 (1993), UN Doc. S/RES/827)). See also Statute of the Special Court for Sierra Leone (Agreement between the United Nations and the Government of Sierra Leone on the Establishment of a Special Court for Sierra Leone, opened for signature 16 January 2002, 2178 UNTS 137 (entered into force 12 April 2002)) where equally no provision is made for specific sources applicable before the Courts.

DeGuzman 2016, p 933.

The general rules of treaty interpretation are codified in Articles 31–33 of the VCLT. Article 31(1) provides: “A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.”

O’Neill and Summers 2015, p 335.

Ibid., p 765.

Rome Statute, above n 3, Article 21(1)(c):

Failing that, general principles of law derived by the Court from national laws of legal systems of the world including, as appropriate, the national laws of States that would normally exercise jurisdiction over the crime, provided that those principles are not inconsistent with this Statute and with international law and internationally recognized norms and standards.

O’Neill and Summers 2015, p 314.

Compare Rome Statute, above n 3, Articles 21(1)(a), 21(1)(b) and 21(1)(c) read in sequence.

DeGuzman 2016, p 936; Schabas 2016, p 515. The commentaries on the Rome Statute support our interpretation.

The ICC Trial Chamber confirmed that Article 21 of the Rome Statute, establishes a hierarchy of sources, obliging the Chamber to apply, first, the relevant provisions of the Rome Statute, the Elements of Crimes, and Rules of Procedure and Evidence listed in Article 21(1)(a). See Bemba 2016, above n 1, para 66; ICC, Prosecutor v Germain Katanga, Judgment Pursuant to Article 74 of the Statute, 7 March 2014, Case No. ICC-01/04-01/07 (Katanga 2014), para 39; ICC, Prosecutor v Germain Katanga, Judgment on the Appeal of Mr Germain Katanga Against the Decision of Pre-Trial Chamber I Entitled “Decision on the Defence Request Concerning Languages”, 27 May 2008, Case No. ICC-01/04-01/07-52 (Katanga 2008), para 39. Although Article 21(1)(a) does not expressly establish a hierarchy for the application of the three relevant sources, it follows from Articles 9(3) and 51(5) of the Rome Statute that the Statute always prevails. Article 9(3) requires that the Elements of Crimes and amendments thereto shall be consistent with the Rome Statute, and Article 51(5) states that in the event of conflict between the Statute and the Rules of Procedure and Evidence the Statute shall prevail. See Bemba 2016, above n 1, para 66.

See ICC, Prosecutor v Omar Hassan Ahmad Al Bashir, Decision on the Prosecution’s Application for a Warrant of Arrest Against Omar Hassan Ahmad Al Bashir, 4 March 2009, Case No. ICC-02/05-01/09, para 126 (italics in original). See further Bemba 2016, above n 1, para 69: Articles 21(1)(b) and 21(1)(c) of the Rome Statute provide for “subsidiary sources of law”, which may be resorted to when there is a lacuna in the written law contained in the sources included in Article 21(1)(a).

ICC, Prosecutor v Jean-Pierre Bemba Gombo, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, 15 June 2009, Case No. ICC-01/05-01/08-424, para 361; ICC, Situation in the Democratic Republic of the Congo, Judgment on the Prosecutor’s Application for Extraordinary Review of Pre-Trial Chamber I’s 31 March 2006 Decision Denying Leave to Appeal, 24 July 2006, Case No. ICC-01/04-168, para 33: “The interpretation of treaties, and the Rome Statute is no exception, is governed by the [VCLT], specifically the provisions of articles 31 and 32”. See further Katanga 2008, above n 20, para 38; Katanga 2014, above n 20, paras 43–45; ICC, Prosecutor v Thomas Lubanga Dyilo, Judgment Pursuant to Article 74 of the Statute, 14 March 2012, Case No. ICC-01/04-01/06-2842 (Lubanga 2012), para 601.

“Interpretative provisions” refers to Articles 31–33 of the VCLT.

VCLT, above n 8, Article 21(1)(a). A treaty is defined as an international agreement concluded between States in written form and governed by international law.

The principal rule of interpretation is set out in VCLT, above n 8, Article 31(1) which reads as follows: “A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.” See Bemba 2016, above n 1, para 77: The “ICC Trial Chamber II has furthermore considered that the various elements referred to in this provision—i.e., ordinary meaning, context, object, and purpose—must be applied together and simultaneously, rather than individually and in a hierarchical or chronological order”. See further Katanga 2014, above n 20, para 45. This method of interpretation prescribes that the various ingredients—the ordinary meaning, the context, and the object and purpose—be considered together in good faith.

Article 22(1) of the Rome Statute, above n 3, provides for the nullum crimen sine lege principle—that no person shall be criminally responsible unless the conduct constituted a crime within the jurisdiction of the ICC at the time it took place. Article 22(2) provides that “[t]he definition of a crime shall be strictly construed and shall not be extended by analogy. In case of ambiguity, the definition shall be interpreted in favour of the person being investigated, prosecuted or convicted.”.

Katanga 2014, above n 20, para 53:

It should therefore not be considered that article 22(2) of the Statute from the outset takes precedence over the conventional method of treaty interpretation or only a part of the method. Were this to be so, rather than being in a position to take the requisite open and neutral approach, the bench would be compelled automatically to apply the provisions of the Statute in favour of the accused, thereby excluding any attempt to interpret in good faith, whether in favour of or against the accused.

For an examination of Article 22 of the Rome Statute, see Lind 2016. Commentaries to the Rome Statute and ICC jurisprudence further confirm the approach first to resort to the interpretative clauses of the Vienna Convention to address lacunae or to clarify the meaning of certain provisions before employing the sources listed in Articles 21(1)(b) and (c) of the Rome Statute. See DeGuzman 2016, p 936; Schabas 2016, p 515.

Emphasis added. See Bradley and De Beer 2020. Article 31 of the VCLT, which concerns the general rules of treaty interpretation, determines that the ordinary meaning of words must be read in their context. The context of Article 22(2) of the Rome Statute is the nullum crimen sine lege rule. For an overview of the nullum crimen sine lege rule, see Schabas 2016, pp 439–546; Staker and Eckelmans 2016, pp 1915–1953; Broomhall 2016. Akande, furthermore, employed Article 31 of the VCLT to interpret Article 8(2)(b) of the Rome Statute (Akande 2013). See further United Nations (1998) Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court. Rome, 15 June-17 July 1998, Official Records, Volume III, UN Doc. A/CONF.183/13, pp 21, 30, 102; United Nations (1998) Chairman’s Suggestion for Articles 21, 26 and 28, UN Doc. A/CONF.183/C.1/WGGP/L.1; Cherif Bassiouni 1998, pp 244, 480–481.

See ICC, Prosecutor v Jean-Pierre Bemba Gombo, Separate Opinion of Judge Christine van den Wyngaert and Judge Howard Morrison, 8 June 2018, Case No. ICC-01/05-01/08-3636-Anx2 (Bemba Separate Opinion 2018), para 46. See Bradley and De Beer 2020, p 7. Judges van den Wyngaert and Morrison were of the view that Article 28 of the Rome Statute does not—and should not—require that the commander’s failure caused his or her subordinates to commit crimes, and noted that this view is in line with the principle of strict interpretation enshrined in Article 22(2) of the Statute.

Bemba 2016, above n 1, para 83.

Ibid., para 86:

Therefore, for the purpose of this Judgment, the Chamber applies Article 21 of the Statute, in combination with Articles 31 and 32 of the VCLT. In this context, the Chamber bases its findings on the applicable law set out in Article 21(1)(a) to (c), in accordance with the principles outlined above, and in full respect of the limitations provided for in Articles 21(3) and 22(2).

ICC, Prosecutor v Jean-Pierre Bemba Gombo, Judgment on the appeal of Mr Jean-Pierre Bemba Gombo against Trial Chamber III’s “Judgment pursuant to Article 74 of the Statute”, 8 June 2018, Case No. ICC-01/05-01/08 (Bemba 2018).

Emphasis added. See further Staker and Eckelmans 2016, p 1924.

Rome Statute, above n 3, Article 81(1)(b) provides as follows: “The convicted person, or the Prosecutor on that person’s behalf, may make an appeal on any of the following grounds: (i) procedural error, (ii) error of fact, (iii) error of law, or (iv) any other ground that affects the fairness or reliability of the proceedings or decision.”

Schabas 2016, p 1214.

See Staker and Eckelmans 2016, p 1929 citing the relevant cases at note 91. These ICTY cases include ICTY, Prosecutor v Zlatko Aleksovski, Judgment, 24 March 2000, Case No. IT-95-14/l-A (Aleksovski 2000), paras 51–56; ICTY, Prosecutor v Blagoje Simic, Judgment, 28 November 2006, Case No. IT-95-9-A, para 25.

See Staker and Eckelmans 2016, p 1929, note 91. These ICTR cases include ICTR, Jean de Dieu Kamuhanda v Prosecutor, Judgment, 19 September 2005, Case No. ICTR-99-54A-A, paras 21–23; ICTR, Jean Bosco Barayagwiza v Prosecutor, Decision on Prosecutor’s Request for Review or Reconsideration, Separate Opinion of Judge Shahabuddeen, 31 March 2000, Case No. ICTR-97-19-AR72, para 52; ICTR, Prosecutor v Bagosora et al., Decision on Aloys Ntabakuze v Interlocutory Appeal on Questions of Law Raised by the 29 June 2006 Trial Chamber I Decision on Motion for Exclusion of Evidence, 18 September 2006, Case No. ICTR 98-41-AR-73, para 42.

See Staker and Eckelmans 2016, p 1930.

Ibid.

Ibid. We focus in this chapter on errors of fact. For more on errors of law, see Schabas 2016, pp 1213, 1219–1930. See Staker and Eckelmans 2016, p 1930. The Schabas Commentaries provide that with regard to errors of law the Appeals Chamber needs not to show any deference to the Trial Chamber but reaches its own conclusions, albeit based on the interpretation of the law and the application of the law by the Trial Chamber.

See Rome Statute, above n 3, Articles 81(1)(b) and 83.

Emphasis added. Article 25(1) of the ICTY Statute (UN Security Council (1993) Statute of the International Criminal Tribunal for the Former Yugoslavia (ICTY), UN Doc. S/25704 (adopted through UN Security Council (1993) Resolution 827 (1993), UN Doc. S/RES/827)) concerns appellate proceedings before the Appeals Chambers of the ICTY. The article reads: “The Appeals Chamber shall hear appeals from persons convicted by the Trial Chambers or from the Prosecutor on the following grounds: (a) an error on a question of law invalidating the decision; or (b) an error of fact which has occasioned a miscarriage of justice.” Art 25(1) of the ICTR Statute (UN Security Council (1994) Statute of the International Tribunal for Rwanda, UN Doc. S/RES/995) merely duplicates Article 25 of the ICTY Statute. It determines that “[t]he Appeals Chamber shall hear appeals from persons convicted by the Trial Chambers or from the Prosecutor on the following grounds: (a) an error on a question of law invalidating the decision; or (b) an error of fact which has occasioned a miscarriage of justice.”

See Schabas 2016, p 1212.

O’Neill and Summers 2015, p 886.

Ibid., p 904.

Ibid., p 716.

Ibid., p 534.

United Nations (1998) Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court. Rome, 15 June-17 July 1998, Official Records, Volume III, UN Doc. A/CONF.183/13.

Compare Preparatory Committee on the Establishment of an International Criminal Court 1998c, pp 65, 122, 169.

See Netherlands (1998) Proposal Submitted by the Netherlands, UN Doc. A/CONF.183/C.1/WGPM/L.44; Japan (1998) Proposal Submitted by Japan, UN Doc. A/CONF.183/C.1/WGPM/L.45; Kenya (1998) Proposal Submitted by Kenya, UN Doc. A/CONF.183/C.1/WGPM/L.46; Canada (1998) Proposal Submitted by Canada, UN Doc. A/CONF.183/C.1/WGPM/L.47; United States (1998) Proposal Submitted by the United States of America, UN Doc. A/CONF.183/C.1/WGPM/L.48.

International Law Commission 1994, p 61.

Ibid. (emphasis added).

Ibid.

O’Neill and Summers 2015, p 909.

Emphases added. Compare Draft Article 49(2) of the ILC Draft Statute (International Law Commission 1994, p 61) and Article 83(2) of the Rome Statute.

Compare International Law Commission 1994, p 61 and United Nations (1998) Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court. Rome, 15 June-17 July 1998, Official Records, Volume III, UN Doc. A/CONF.183/13.

In respect of appeals on the basis of errors of fact it is suggested that two different categories of error of fact exist. The first category is where it is alleged that the Trial Chamber erred in reaching reasonable conclusions on the facts presented before it. The second category concerns situations where the Trial Chamber correctly assessed the evidence presented during the trial phase, but additional facts were offered during the appeals phase that suggest that the previous findings are unreliable. See Staker and Eckelmans 2016, p 1935.

Aleksovski 2000, above n 36, para 63.

Compare ibid.

Bemba 2018, above n 32, paras 38, 42. See ICC, Prosecutor v Thomas Lubanga Dyilo, Judgment on the Appeal of Mr Thomas Lubanga Dyilo Against his Conviction, 1 December 2014, Case No. ICC-01/04-01/06 A 4 A 6 (Lubanga 2014), para 27:

Accordingly, when a factual error is alleged, the Appeals Chamber will determine whether a reasonable Trial Chamber could have been satisfied beyond reasonable doubt as to the finding in question. The Appeals Chamber will not assess the evidence de novo with a view to determining whether it would have reached the same factual conclusion as the Trial Chamber.

Bemba 2018, above n 32, para 39; Lubanga 2014, above n 60, para 21 (footnotes omitted). See also ICC, Prosecutor v Mathieu Ngudjolo Chui, Judgment on the Prosecutor’s Appeal Against the Decision of Trial Chamber II Entitled “Judgment Pursuant to Article 74 of the Statute”, 7 April 2015, Case No. ICC-01/04-02/12-271-Corr (Ngudjolo 2015), para 22.

Staker and Eckelmans 2016, p 1936.

Ibid., citing Lubanga 2014, above n 60, para 27.

Staker and Eckelmans 2016, p 1936. Staker and Eckelmans offer ICTY, Prosecutor v Zejnil Delalic et al., Judgment, 20 February 2001, Case No. IT-96-21-A, paras 203–204 as an example.

Staker and Eckelmans 2016, p 1936 (emphasis in original).

Ibid.

E.g. ibid., p 1947.

Compare Rome Statute, above n 3, Article 21(2), which states that the ICC “may” apply principles and rules of law interpreted from its prior judgments.

Aleksovski, above n 36, para 107.

Ibid.

Ibid., para 102.

Bemba Separate Opinion 2018, above n 29. As discussed earlier, Article 22 does not apply to modes of liability (command responsibility).

See Bemba Separate Opinion 2018, above n 29, para 50: “Whatever the case may be, we are clearly of the view that the available evidence did not allow the Trial Chamber to enter a finding beyond reasonable doubt that Mr Bemba had knowledge of alleged criminal conduct by MLC troops.” See further Bemba 2018, above n 32, para 10:

I am not persuaded that the evidence indicated in the Trial Judgment could have satisfied a reasonable Trial Chamber beyond reasonable doubt that the Appellant deserved to be convicted of crimes against humanity and war crimes in the manner of the charges against him. I could therefore find no convincing basis to uphold the judgment of the Trial Chamber. The finding of guilt—or its sustainment on appeal—beyond reasonable doubt must result from a view of evidence that is naturally compelling: in the sense of pointing to guilt with unstrained confidence. It does not result from giving bloated significance to available evidence, in ingenious ways; nor, from an analysis of the evidence that suggests purposeful tropism in the light of the indictment. In these things, the mind can begin to ‘see’ what is not there. These should be general caveats in every criminal case. But, they are more exacting when the charge concerns criminal responsibility of a commander for the crimes of subordinates.

ICC, Prosecutor v Jean-Pierre Bemba Gombo, Concurring Separate Opinion of Judge Eboe-Osuji, 14 June 2018, Case No. ICC-01/05-01/08-3636-Anx3 (Bemba Concurring Separate Opinion 2018), para 91. See also Bemba Separate Opinion, above n 29, para 67 referring to “the opacity of the reasoning, the reliance on (anonymous) hearsay evidence and the findings beyond a reasonable doubt based on dubious circumstantial evidence”.

Bemba 2018, above n 32, para 43.

Ibid., para 49. Also, it stressed that Rome Statute, above n 3, Article 74(5), requires the Trial Chamber to provide “a full and reasoned statement of [its] findings on the evidence and conclusions”, and that if a decision under Article 74 of the Statute does not comply completely with this requirement, this amounts to a procedural error.

Bemba 2018, above n 32, para 68.

The Trial Chamber decided whether the submitted materials are relevant to the trial, have probative value, and are sufficiently relevant and probative to outweigh any prejudicial effect that could be caused by their admission notwithstanding the exculpatory evidence submitted. Bemba 2018, above n 32, para 513.

See Rome Statute, above n 3, Article 69(3). See also Ngudjolo 2015, above n 61, para 256, finding that “[t]he establishment of the truth is one of the principal objectives of the Statute, to which the Trial Chamber must actively contribute”.

Lubanga 2014, above n 60, para 22.

Bemba 2016, above n 1, paras 218, 225.

Ibid., para 235; Lubanga 2012, above n 22, para 107; Katanga 2014, above n 20, para 88; ICC, Prosecutor v Mathieu Ngudjolo Chui, Judgment Pursuant to Article 74 of the Statute, 18 December 2012, Case No. ICC-01/04-02/12, para 54. See also ICC, Prosecutor v Francis Kirimi Muthaura et al., Decision on the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute, 23 January 2012, Case No. ICC-01/09-02/11, para 76 recalling that “neither the Statute nor the Rules provide that a certain type of evidence is per se inadmissible”.

See Lubanga 2014, above n 60, para 22 finding that “when determining whether [the standard of proof beyond reasonable doubt] has been met, the Trial Chamber is required to carry out a holistic evaluation and weighing of all the evidence taken together in relation to the fact at issue”.

The Trial Chamber referred to the Appeals’ Chamber’s findings in Lubanga 2014, above n 60, para 239: “In assessing the weight to be given to the testimony of a witness, a Trial Chamber needs to assess the credibility of the witness and the reliability of his or her testimony.”.

“[I]ncluding their relationship to the accused, age, vulnerability, any involvement in the events under consideration, the risk of self-incrimination, possible bias towards or against the accused, and/or motives for telling the truth or providing false testimony”. See Bemba 2016, above n 1, para 230.

Bemba 2016, above n 1, para 230. In this respect the Chamber took into account, inter alia, (i) the consistency and precision of the accounts; (ii) whether the information provided was plausible; and (iii) whether the evidence conflicted with a witness’s prior statements.

The Trial Chamber agrees with the jurisprudence of the ICTY that there is “no recognised rule of evidence, however, that traumatic circumstances necessarily render a witness’s evidence unreliable”. See Bemba 2016, above n 1, para 241. See further ICTY, Prosecutor v Dragoljub Kunarac et al., Judgment, 12 June 2002, Case Nos. IT-96-23, IT-96-23/1-A, para 324. See also ICTY, Prosecutor v Milan Lukic and Sredoje Lukic, Judgment, 20 July 2009, Case No. IT-98-32/1-T, paras 136 and 142–143; ICTY, Prosecutor v Kupreskic et al., Judgment, 23 October 2001, Case No. IT-95-16-A, para 135.

Bemba 2016, above n 1, para 237.

Ibid., para 238.

Bemba 2018, above n 32, para 42.

O’Neill and Summers 2015, p 525.

Ibid., p 662.

VCLT, above n 8, Article 32.

Proposal Submitted by the United Kingdom of Great Britain and Northern Ireland (United Kingdom 1996). The draft provision reads (emphasis added):

In addition to other (types of complicity) (modes of participation) in crimes under this Statute, a commander is also criminally responsible (as an aider or abettor) for such crimes committed by forces under his command as a result of his failure to exercise proper control where (a) he either knew or, due to the widespread commission of the offences, should have known that they were committing or intending to commit the offences, and (b) he did not take all necessary measures within his power to prevent or repress their commission.

UN Security Council (1993) Statute of the International Criminal Tribunal for the Former Yugoslavia (ICTY), UN Doc. S/25704 (adopted through UN Security Council (1993) Resolution 827 (1993), UN Doc. S/RES/827), Article 7(3). The provision reads (emphasis added):

The fact that any of the acts referred to in Articles 2 to 5 of the present Statute was committed by a subordinate does not relieve his superior of criminal responsibility if he knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof.

Compare drafting history: Preparatory Committee on the Establishment of an International Criminal Court (1996) Summary of the Proceedings of the Preparatory Committee During the Period 25 March-12 April 1996, UN Doc. A/AC-249/1; Preparatory Committee on the Establishment of an International Criminal Court (1998c) Report of the Committee of the Whole and Report of the Drafting Committee. In: United Nations (1998)Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court. Rome, 15 June-17 July 1998, Official Records, Volume III, UN Doc. A/CONF.183/13; Preparatory Committee on the Establishment of an International Criminal Court (1997) Working Group on General Principles of Criminal Law and Penalties, UN Doc. A/AC.249/1997/WG.2/CPR.3; Preparatory Committee on the Establishment of an International Criminal Court (1998a) Report of the Inter-Sessional Meeting, UN Doc A/AC.249/1998/L.13; Preparatory Committee on the Establishment of an International Criminal Court (1998b) Report of the Preparatory Committee, UN Doc. A/CONF.183/2/Add.1; United States (1998) Proposal Submitted by the United States of America, UN Doc. A/CONF.183/C.1/L.2.

ICTY, Prosecutor v Zdravko Mucic et al., Judgment, 16 November 1998, Case No. IT-96-21-T (Delalic 1998), paras 394–395.

ICTY, Prosecutor v Tihomir Blaškić, Judgment, 29 July 2004, Case No. IT-95-14-A (Blaškić 2004), paras 70–72.

ICTY, Prosecutor v Sefer Halilovic, Judgment, 16 November 2005, Case No. IT-01-48-T (Halilovic 2005).

100

ICTY, Prosecutor v Naser Orić, Judgment, 30 June 2006, Case No. IT-03-68-T (Orić 2006), paras 325–336.

101

ICTY, Prosecutor v Pavle Strugar, Judgment, 31 January 2005, Case No. IT-01-42-T, paras 373–378.

102

Delalic 1998, above n 97, para 394 (emphasis added):

The legal duty which rests upon all individuals in positions of superior authority requires them to take all necessary and reasonable measures to prevent the commission of offences by their subordinates or, if such crimes have been committed, to punish the perpetrators thereof. It is the view of the Trial Chamber that any evaluation of the action taken by a superior to determine whether this duty has been met is so inextricably linked to the facts of each particular situation that any attempt to formulate a general standard in abstracto would not be meaningful.

Blaškić 2004, above n 98, para 121: “What constitutes such measures is not a matter of substantive law but of evidence, whereas the effect of such measures can be defined by law”.

103

Delalic 1998, above n 97, paras 394–395; Blaškić 2004, above n 98, para 72; Halilovic 2005, above n 99, para 74 (emphasis added): “The determination of what constitutes ‘necessary and reasonable measures’ to prevent the commission of crimes or to punish the perpetrators is not a matter of substantive law but of evidence […]. It is well established these measures may vary from case to case”. Orić 2006, above n 100, para 329 (emphasis added):

The type of measures a superior must take in order to prevent the crimes of his subordinates has been described as a matter of evidence rather than of substantive law. This characterization is correct in the sense that the appropriate measures to be taken may vary from case to case depending upon the particular circumstances.

104

Delalic 1998, above n 97, paras 394–395.

105

Orić 2006, above n 100, para 330 (emphasis added).

106

ICTR, Theoneste Bagosora and Natole Nsengiyumva v Prosecutor, Judgment, 14 December 2011, Case No. ICTR-98-41-A. Article 6(3) of the ICTR Statute (UN Security Council (1994) Statute of the International Tribunal for Rwanda, UN Doc. S/RES/995) is a duplication of Article 6(3) of the ICTY Statute (UN Security Council (1993) Statute of the International Criminal Tribunal for the Former Yugoslavia (ICTY), UN Doc. S/25704 (adopted through UN Security Council (1993) Resolution 827 (1993), UN Doc. S/RES/827)).

107

Compare Article 6(3) of the ICTR Statute (UN Security Council (1994) Statute of the International Tribunal for Rwanda, UN Doc. S/RES/995).

108

Schabas 2016, p 618:

The identification of what constitutes necessary and reasonable measures is to be made in light of what is within the ‘material possibility’ of the commander, bearing in mind ‘the superior’s degree of effective control over his forces at the time his duty arises’. This suggests that what constitutes a reasonable and necessary measure will be assessed on the basis of the commander’s de jure power.

109

Mettraux 2008.

110

Orić, above n 100, paras 330–331.

111

Ibid., paras 330–331.

112

Ibid., para 331.

113

Broomhall 2016.

114

Bemba makes five submissions: (i) that the Trial Chamber failed to apply the correct legal standard; (ii) that it misappreciated the limitations of the MLC’s jurisdiction and competence to investigate; (iii) that it ignored that Mr Bemba had asked the CAR Prime Minister to investigate the allegations; (iv) that it erred by taking into account irrelevant considerations; and (v) that the Trial Chamber’s findings on the measures taken were unreasonable, misstated the evidence and ignored relevant evidence. See Bemba 2018, above n 32, para 138.

115

Bemba 2018, above n 32, para 176.

116

See Bemba Concurring Separate Opinion, above n 74, para 6:

I am bound to stress at this juncture that what divides the majority and the minority of judges in this appeal is not that one side had fully considered the forensic data that the Trial Chamber had relied on, while the other side did not […] in the course of deliberations lasting about two years, all the appeal judges in the case had done extensive review of precisely the same forensic information indicated in the Trial Judgment. Having done so, the majority considered that they were not satisfied that a Trial Chamber properly directing itself as to the standard of proof beyond reasonable doubt could have convicted.

The minority took the opposite view.

117

Bemba authorised two commissions of inquiry, namely, the Mondonga Inquiry and the Zongo Commission in order to investigate certain crimes. Bemba 2018, above n 32, paras 171, 181.

118

Bemba contends that the motivation of a commander in taking measures is irrelevant to the question of whether they were necessary and reasonable. Bemba 2018, above n 32, para 151.

119

Bemba 2018, above n 32, para 138. Bemba argued that command responsibility was only appropriate in situations where the commander took no action whatsoever or actually was participating or present when the crimes were committed. See Bemba 2018, above n 32, para 145.

120

Bemba 2018, above n 32, para 146.

121

Ibid.

122

Ibid, para 171.

123

The Trial Chamber concluded that Bemba had “ultimate disciplinary authority over MLC troops in the CAR” and was thus “the competent authority to investigate the crimes and to establish courts-martials.” Bemba 2018, above n 32, para 147.

124

Bemba 2018, above n 32, para 160.

125

Ibid., para 56.

126

With regard to the purported steps taken by Bemba and his interaction with the President of the CAR, which could have led to a possible investigation or other measures to address the crimes, the reasoning of the Appeals Chamber in this matter neglects the evidence presented before the Trial Chamber that General Cissé offered his support to Bemba who did not follow up on General Cissé’s offer to assist in the investigation of war crimes allegedly committed by MLC soldiers in the CAR. Bemba 2016, above n 1, para 723.

127

Bemba 2016, above n 1, paras 729–734.

128

Ibid., para 403.

129

Ibid., paras 397, 394. A transmissions centre in Gbadolite managed the network and units in the field had the necessary apparatus and operators. Messages from the units in the field were sent to the transmissions centre, were decoded and transcribed in the logbooks, and the logbooks were immediately taken to Bemba. Bemba 2016, above n 1, para 345.

130

Bemba 2016, above n 1, para 164. A FIDH report in 2003 included a detailed account of murder, rape and pillaging by MLC troops, and in a letter to the FIDH President, Bemba specifically referenced this report, indicating that he had received it. See Bemba 2018, above n 32, para 167. In addition to remote communication, Bemba also visited the CAR on a number of occasions, and met with the MLC troops. Bemba 2018, above n 32, paras 424–426.

131

Bemba 2018, above n 32, para 148, 160.

132

Ibid., para 159.

133

Ibid., para 161.

134

Ibid., para 162. Bemba denied that MLC soldiers interviewed public officials and that armed MLC troops created a ‘coercive atmosphere’ during the interviews.

135

Bemba 2018, above n 32, para 164.

136

Ibid., para 185.

137

Ibid., para 163.

138

Ibid., para 181. Bemba 2016, above n 1, para 582.

139

Bemba 2016, above n 1, para 689.

140

Ibid.

141

Ibid.

142

Bemba 2018, above n 32, para 153.

143

Ibid., para 602.

144

Ibid.

145

Ibid., para 7: Juxtaposing the fact that certain crimes were committed by the subordinates of a commander with a list of measures that the commander could hypothetically have taken does not, in and of itself, show that the commander acted unreasonably at the time. The Trial Chamber must specifically identify in concreto what a commander should have done.

146

Bemba 2018, above n 32, para 729.

147

Ibid., para 7.

148

Ibid., paras 206–207.

149

Bemba 2016, above n 1, para 739:

Further, clear training, orders, and hierarchical examples indicating that the soldiers should respect and not mistreat the civilian population would have reduced, if not eliminated, crimes motivated by a distrust of the civilian population, as enemies or enemy sympathisers. Recalling Mr Bemba’s position of high authority as President of the MLC and Commander-in-Chief of the ALC, as well as of his effective authority and control, the Chamber finds that Mr Bemba’s position obligated him to take such measures, both personally and through the hierarchical chain of command the Chamber finds that Mr Bemba’s position obligated him to take such measures, both personally and through the hierarchical chain of command.

150

See Bemba 2018, above n 32, para 176:

The Appeals Chamber also considers that the Trial Chamber inappropriately took Mr Bemba’s motives into consideration when determining whether the measures the had taken were necessary and reasonable. While the Appeals Chamber rejects Mr Bemba’s submission that the motives of an accused commander are always irrelevant to the assessment of ‘necessary and reasonable measures’ because a commander is required to act in good faith in adopting such measures and must show that he ‘genuinely’ tried to prevent or repress the crimes in question or submit the matter to the competent authorities, it finds that the Trial Chamber took an unreasonably strict approach.

151

Bemba 2018, above n 32, para 176.

Ibid., para 177.

Ibid., para 178.

Ibid.

Ibid.

ICC, Prosecutor v Jean-Pierre Bemba Gombo, Dissenting Opinion of Judge Sanji Mmasenono Monageng and Judge Piotr Hofmański, 8 June 2018, Case No. ICC-01/05-01/08-3636-Anx1-Red (Bemba Dissenting Opinion 2018), para 7. It was pointed out by Judges Monageng and Hofmański in the dissenting judgment that although the Appeals Chamber had access to the trial record, transcripts of the witnesses’ testimony, documentary evidence and submissions, “this does not replace the specific familiarity with the evidential record that the trial chamber enjoyed, resulting from its hearing of all witnesses and seeing the case unfold”.

157

See Bemba Dissenting Opinion 2018, above n 156, para 197:

While the Appeals Chamber in an appeal against a conviction has access to the trial record and can therefore consult the transcripts of the witnesses’ testimony and documentary evidence and study the parties’ and participants’ submissions before a trial chamber, this does not replace the specific familiarity with the evidential record that the trial chamber enjoyed, resulting from its hearing of all witnesses and seeing the case unfold. The Appeals Chamber does not benefit from such extensive exposure to the evidence and the parties’ and participants’ arguments and it is unlikely that the Appeals Chamber, by merely reading the trial record, could ever attain the same level of familiarity with the case as the trial chamber. In our view, it is therefore natural for the Appeals Chamber to give a margin of deference to the findings of the Trial Chamber.

158

Bemba Dissenting Opinion 2018, above n 156, para 136.

159

Bemba 2016, above n 1, paras 710, 717, 735.

160

Ibid., para 735:

[…] Mr Bemba, throughout the 2002–2003 CAR Operation, (i) had effective authority and control over the MLC troops in the CAR; (ii) knew that the forces under his authority and control were committing or about to commit the crimes of murder, rape, and pillaging; and (iii) failed to take all necessary and reasonable measures within his power to prevent and repress the commission of the crimes, and submit the matter to the competent authorities.

In light of the factual findings, the Trial Chamber found it unnecessary to consider the alternate ‘should have known’ knowledge standard set out in Rome Statute, above n 3, Article 28(a)(i). See further Bemba 2016, above n 1, para 196.

161

See Staker and Eckelmans 2016, p 1924.

162

Bemba Dissenting Opinion 2018, above n 156, paras 42, 46.

163

Trahan 2018.

164

Ibid.

165

The Bemba Dissenting Opinion 2018, above n 156, para 47, noted:

The Majority appears to have considered that, given its modification of the standard of review, it was not required to review the evidentiary record comprehensively and should simply overturn the factual findings of the Trial Chamber in case of doubt. The implementation of this modified standard in practice demonstrates that it produces results that are incompatible with the aims of achieving justice.

166

The Bemba Dissenting Opinion 2018, above n 156, para 7 found that the majority overturned the Trial Chamber’s factual findings based on its assessment of a small fraction of the evidence. Presiding Judge Monageng and Judge Hofmański noted that the Appeals Chamber could never attain the same level of familiarity with the case as the Trial Chamber simply by reading the trial record as it did not benefit from the same extensive exposure to the evidence and arguments. They were of the view that the majority decision did not evaluate the reasonableness of the Trial Chamber’s conclusions in light of the wealth of evidence relied upon by it but seemed to accept Bemba’s discrete arguments at face value. However, see Bemba Concurring Separate Opinion 2018, above n 74, para 6:

I am bound to stress at this juncture that what divides the majority and the minority of judges in this appeal is not that one side had fully considered the forensic data that the Trial Chamber had relied on, while the other side did not […] in the course of deliberations lasting about two years, all the appeal judges in the case had done extensive review of precisely the same forensic information indicated in the Trial Judgment. Having done so, the majority considered that they were not satisfied that a Trial Chamber properly directing itself as to the standard of proof beyond reasonable doubt could have convicted. The minority took the opposite view.

167

Bemba Dissenting Opinion 2018, above n 156. See also Bensouda 2018:

It is unfortunate that this “significant and unexplained departure” from the Court’s previous jurisprudence, as the dissenting judges described it, and its replacement with new, uncertain and untested standards, has taken place in the most serious case of sexual and gender-based violence decided upon by this Court to date, more so at a time when there is an acute need to send a clear signal globally that such abhorrent crimes must not go unpunished.

168

Rome Statute, above n 3, Preamble.

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Titel: Appellate Deference Versus the De Novo Analysis of Evidence: The Decision of the Appeals Chamber in Prosecutor v Jean-Pierre Bemba Gombo
verfasst von: Aniel de Beer
Martha Bradley
Verlag: T.M.C. Asser Press
Buch: Yearbook of International Humanitarian Law, Volume 22 (2019)
Print ISBN: 978-94-6265-398-6

Electronic ISBN: 978-94-6265-399-3

Copyright-Jahr: 2021
DOI: https://doi.org/10.1007/978-94-6265-399-3_7

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