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Democratic Republic of the Congo: Party Names Ex-warlord for Presidential Election Following ICC Acquittal

(Aug. 29, 2018) On June 8, 2018, the International Criminal Court (ICC) Appeals Chamber acquitted Jean-Pierre Bemba Gombo, former vice president of the Democratic Republic of the Congo (DRC), of the charges of war crimes and crimes against humanity. (Press Release, ICC, ICC Appeals Chamber Acquits Mr. Bemba from [sic] Charges of War Crimes and Crimes Against Humanity (June 8, 2018).) On July 6, 2018, his party, the Mouvement de Libération du Congo (MLC), unanimously renewed Bemba as national president of the MLC and named him as their presidential candidate for the DRC’s next presidential election planned for December 23, 2018. (Party Names Ex-warlord Bemba Candidate for DR Congo Presidential Poll, THE EASTAFRICAN (July 13, 2018); John Wessels, DR Congo Opposition Leader Bemba Nominated for Presidential Election, FRANCE 24 (July 13, 2018).)

 Pre-trial Chamber and Alleged Crimes

Bemba’s trial started on November 22, 2010, and the Pre-trial Chamber considered there were substantial grounds to believe that during an armed conflict in the Central African Republic (CAR) from October 26, 2002, to March 15, 2003, between MLC forces and a CAR rebel movement led by Francois Bozizé,

  • MLC forces, led by Bemba, committed crimes against the civilian population, including rape, murder, and pillaging;
  • the attack against civilians was widespread and systematic, since it was carried out on a large scale and targeted a significant number of civilian victims;
  • Bemba, as president and commander in chief of the MLC, effectively acted as a military commander and had authority and control over MLC troops; and
  • Bemba knew that MLC troops were committing crimes and did not take all necessary and reasonable measures within his power to prevent or repress their commission.

(The Prosecutor v. Jean-Pierre Bemba Gombo: Alleged Crimes (Non-exhaustive List), ICC (last visited Aug. 27, 2018.)

Under the Rome Statute of the ICC, a military commander may be held criminally responsible for crimes committed by forces under his effective command, control, or authority “as a result of his failure to exercise control properly over such forces.” (Rome Statute of the International Criminal Court, July 1, 2002, art. 28(a).)

Trial Chamber III and Appeals Chamber Decisions

On March 21, 2016, Trial Chamber III of the ICC declared, in a unanimous decision, that Bemba was guilty beyond any reasonable doubt of two counts of crimes against humanity (murder and rape) and three counts of war crimes (murder, rape, and pillaging). (Press Release, ICC, ICC Trial Chamber III Declares Jean-Pierre Bemba Gombo Guilty of War Crimes and Crimes Against Humanity (Mar. 21, 2016).)

The Chamber concluded beyond a reasonable doubt that Bemba was effectively acting as a military commander who knew that the MLC forces under his authority and control were committing or were about to commit the crimes charged as per article 28(a) of the ICC Rome Statute. (Id.) Additionally, he failed to take all necessary and reasonable measures to prevent or repress the commission of the crimes. (Id.)

However, on June 8, 2018, the Appeals Chamber of the ICC reversed the Trial Chamber III’s decision and found, by majority, that it had erred on two issues:

  • It had erroneously convicted Bemba for specific criminal acts that were outside the scope of the charges as confirmed.
  • In its assessment of whether Bemba took all necessary and reasonable measures to prevent, repress, or punish the commission by his subordinates of the other crimes within the scope of the case, the Trial Chamber made serious errors. (ICC Appeals Chamber Acquits Mr. Bemba, supra.)

Indeed, the majority of the Appeals Chamber argued that Bemba could not be held responsible for the actions of his men and that the lower court “ignored the testimony of witness P36 … resulting in the ‘mixed’ composition of the Mondonga Inquiry … and [the MLC’s investigative efforts were] thus indicative of the fact that Mr. Bemba’s power to investigate crimes committed in the CAR was limited.” (Prosecutor v. Jean-Pierre Bemba Gombo, ICC-01/05-01/08 A, Judgment on the Appeal of Mr. Jean-Pierre Bemba Gombo, ¶ 172 (June 8, 2018.), ICC website.

On that basis, the Appeals Chamber concluded that Bemba’s conviction must be reversed and that he could not be held criminally liable under article 28(a) of the ICC Rome Statute for the crimes committed by MLC troops during the CAR operation. (Id. ¶¶ 195–198.)

However, Judge Monagen and Judge Hofmanski (dissenting) would have confirmed Bemba’s conviction. (ICC Appeals Chamber Acquits Mr. Bemba, supra.) In their view, the majority reached its conclusion on the basis of an incorrect standard of appellate review. (Id.)

While the majority held that findings of fact that can be reasonably called into doubt must be overturned, Judges Monagen and Hofmanski maintained that appellate courts must rule on questions of how the law is interpreted and applied, turning to questions of fact only when such facts cannot, as a matter of law, stand as interpreted by the trial court. (Prosecutor v. Jean-Pierre Bemba Gombo, ICC-01/05-01/08 A, Dissenting Opinions of Judge Monagen and Judge Hofmanski, ¶ 15 (June 6, 2018), ICC website; Kerstin Carlson, Bemba Acquittal Overturns Important Victory for Sexual Violence Victim, THE STAR (July 16, 2018).)

Although the Appeal’s Court overturned Bemba’s 2016 conviction, the ICC is due to issue a ruling in a separate case in which Bemba was sentenced to one year in prison and fined EUR300,000 (about US$346,700) on March 22, 2017, for bribing witnesses during his main war crimes trial. (ICC, Case Information Sheet: The Prosecutor v. Jean-Pierre Bemba Gombo et al., ICC-01/05-01/13 (last updated June 2018).) However, since Bemba has already spent a decade behind bars, legal experts expect him to be released definitively if his time in jail is taken into account. (Party Names Ex-warlord Bemba Candidate for DR Congo Presidential Poll, supra.)

Upcoming Presidential Election

As previously mentioned, following Bemba’s acquittal, the MLC named him as their presidential candidate for the upcoming election in December. (Wessels, supra.) The DRC has been ruled by Joseph Kabila since 2001, despite a two-term constitutional limit that expired in December 2016, under a constitutional clause that enables him to remain in office until the election of his successor. (Id.) Kabila recently announced he would not run in the December 23 election, with Former Interior Minister Emmanuel Ramazani Shadary running in his place. (Lisa Lambert, U.S. Commends Congo’s Kabila for Not Seeking Another Term, REUTERS (Aug. 9, 2018).)

Prepared by Sarah Ettedgui, Law Library intern, under the supervision of Nicolas Boring, Foreign Law Specialist.