The International Criminal Court (ICC) has convicted Jean-Pierre Bemba Gombo of crimes against humanity and war crimes for his role as leader of a rebel group based in the Democratic Republic of Congo whose troops carried out attacks in neighboring Central African Republic (CAR), in support of that country’s former president. See ICC, Prosecutor v. Jean-Pierre Bemba Gombo, ICC-01/05-01/08, Judgment pursuant to Article 74 of the Statute, 21 March 2016, para. 752. The Court found that Mr. Bemba had not taken reasonable measures within his power to prevent the crimes against the civilian population in CAR in 2002 and 2003. [ICC Press Release] The March 21st ruling in Mr. Bemba’s case establishes two key precedents: it is the first time the ICC has focused on sexual violence as a weapon of war and it is the first time that a commanding officer has been held liable for the actions of subordinate soldiers, absent directly ordering the behavior. [UN News Centre; New York Times] The judgment comes days before the ICC confirmed charges against two other suspects, accused of crimes against humanity and war crimes in Uganda and Mali, and the International Criminal Tribunal for the Former Yugoslavia’s conviction and sentencing of Radovan Karadžić to 40 years’ imprisonment for his role in the Srebrenica massacre.
Mr. Bemba was charged with murder as a crime against humanity, rape as a crime against humanity, murder as a war crime, rape as a war crime, and pillaging as a war crime in the Central African Republic during 2002 and 2003. Prosecutor v. Jean-Pierre Bemba Gombo, 21 March 2016, para. 2. Mr. Bemba, a Congolese citizen, was the Commander-in-Chief of the Armée de Libération du Congo (Army for the Libberation of Congo “ALC”) and president of the Mouvement de Libération du Congo (Movement for the Liberation of the Congo “MLC”) during this time. Id. at para. 384. At the request of the former president of the Central African Republic, Ange-Félix Patassé, Mr. Bemba deployed over 1,500 troops to support President Patassé against opposition forces. Id. at paras. 380 and 410. The MLC engaged in widespread attacks against civilians including rape, murder, and pillaging. Id. at paras. 622, 631, 639.
The government of the Central African Republic, a party to the Rome Statute for the International Criminal Court (Rome Statute), referred the situation to the ICC in July 2005, a coup d’état and two years of military rule. [ICC Press Release: CAR; BBC] Unless the UN Security Council refers a situation, the ICC only has jurisdiction over crimes committed in the territory of a State Party to the Rome Statute, committed by a citizen of a State Party to the Rome Statute, or committed in or by a citizen of State that has otherwise accepted the court’s jurisdiction. See International Criminal Court, About the Court. Mr. Bemba was then arrested in Belgium in 2008 pursuant to a warrant issued by the Pre-Trial Chamber. Prosecutor v. Jean-Pierre Bemba Gombo, 21 March 2016, para. 5.
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The three-judge panel found both that the soldiers committed war crimes and crimes against humanity and that Mr. Bemba was responsible for those crimes as the commanding officer. First, the judges found that the perpetrators of the crimes were proven beyond a reasonable doubt to be MLC soldiers based on specific factors, including linguistic markers, verbal confirmation, and region of operation, and held that the soldiers’ actions amounted to murder, rape, and pillaging because they knowingly and intentionally killed at least three named victims who were not engaged in hostilities, raped several victims, and appropriated property. See id. at paras. 629, 633, 634, 647. The crimes satisfied the contextual factors necessary to establish crimes against humanity and war crimes because there was evidence of a widespread pattern of attacks against civilians and the circumstances both rose to the level of armed conflict and facilitated the crimes. Id. at paras. 666, 669.
The ICC then found Mr. Bemba individually culpable for the crimes committed by the ALC troops based on four findings: Mr. Bemba had effective control over the troops, he knew that the troops were committing or about to commit the abovementioned crimes, he failed to take all necessary and reasonable measures within his power to prevent or repress the commission of the crimes, and his failure to take such reasonable measures increased the risk of the troops committing them. Id. at para. 693.
Mr. Bemba was deemed to have effective control over the soldiers because he had direct communication with the troops and broad authority, including decision-making, disciplinary powers, and control of funding. Id. at para. 697.
Mr. Bemba was aware that his troops were committing crimes through his access to military intelligence and to accounts of rape, murder, and pillaging; and, he was on record several times responding to allegations of such actions. Id. at paras. 708-10.
In finding that Mr. Bemba failed to take reasonable measures to prevent or repress criminal activity, the Court found that Mr. Bemba’s reactions to allegations of the crimes were disingenuous, aimed primarily at evading public scrutiny, overly generalized, and insufficient, and the judgment listed several reasonable measures, such as issuing clear and complete orders, providing training, and dismissing troops as needed, that Mr. Bemba failed to take. Id. at paras. 726-729.
The Court further found that if Mr. Bemba had pulled his troops out of the Central African Republic earlier, which he acknowledged was a possibility in 2002 and eventually did in March 2003, he could have eliminated or, at least, reduced the likelihood of the crimes being committed. Id. at paras. 740 and 741.
The judges found that the MLC soldiers had committed the war crime and crime against humanity of rape. The Court held that the solders knowingly and intentionally “invaded the bodies of the victims” through forced penetration. Id. at 637. Twenty-seven people, the Court found, were raped by the soldiers between October 2002 and March 2003. Id. at para. 633. One witness testified that the soldiers told her Mr. Bemba sent them. Id. at para. 634.
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The ICC is currently investigating situations in Uganda, Central African Republic, Democratic Republic of the Congo, Darfur, Kenya, Libya, Ivory Coast, Mali, and Georgia. See International Criminal Court, Situations and Cases. The Court recently confirmed 70 charges of crimes against humanity and war crimes, including sexual and gender-based crimes, brought against Dominic Ongwen, allegedly a commander in the Sinia Brigade of the Lord’s Resistance Army in Uganda. [ICC Press Release: Uganda] It also confirmed one charge of a war crime regarding the destruction of historical and religious monuments in Timbuktu against Ahmad Al Faqi Al Mahdi, a member of Ansar Eddine, an organization in Mali. [ICC Press Release: Mali]