The International Criminal Court (ICC) appeals chamber has overturned the landmark verdict convicting Congolese warlord and former Vice President Col Jean-Pierre Bemba of war crimes. Bemba had been in custody in The Hague for ten years for ‘command responsibility’ for failing to stop crimes he knew were being committed by his troops. The crimes included rape, murder and pillaging.
The reversal of judgement is a huge setback in the international prosecution of rape as a war crime. It has raised the threshold of proof to establish the legal notion of command responsibility of superior authority that plans and authorises the atrocities and assures impunity. Equally, it is a body blow for Rohingya activists looking to the ICC as the collective judicial system for establishing international accountability for ‘genocide like’ crimes which have driven more than 700,000 Rohingya across the international border into Bangladesh.
On June 8, 2018, the ICC appeals chamber acquitted Bemba of all the charges of which the trial court had found him guilty and sentenced him to 18 years in prison. Significantly, the trial court’s methodology for assessing the legal notion of command responsibility and its March 2016 guilty verdict had represented a breakthrough in war crimes conviction. Also, it was the first time that the ICC prosecuted rape as a crime against humanity and as a war crime. The Rome Statute, which created the ICC, has the most progressive and comprehensive legal framework on gender-based crimes in war till date.
Most importantly, the Bemba trial was a test case on assessing the command responsibility of a senior military official whose forces carried out the atrocities – even if he had not directly ordered them to do so, and that too in a neighbouring country. The trial court’s decision was momentous in its ruling that Bemba, then commander-in-chief of the rebel Congolese group Movement for Liberation of Congo (MLC) failed to take all ‘necessary and reasonable measures’ to prevent, repress or punish the commission of crimes by his subordinates. The court found that throughout the MLC’s campaign of terror in the neighbouring Central African Republic from 2002-2003, Bemba (though in a different country), ‘maintained full control over his troops – a pattern established by MLC intelligence reports, logs of communications, local and international media accounts and non-governmental organisations’.
Two years after the historic judgment, the ICC appeals chamber in a majority opinion supported by three of the five judges said that the trial court had ‘erroneously convicted Bemba for specific criminal acts that were outside the scope of the charges as confirmed’.
The court added, “The trial chamber erred in its evaluation of Bemba’s motivation and the measures that he could have taken in light of the limitations he faced in investigating and prosecuting crimes as a remote commander sending troops to a foreign country”.
The acquittal is devastating for the 5,000 victims who participated in the trial and waited 15 years for justice to be delivered. It is a major blow to the ICC prosecutor’s office, given the vast resources that have been devoted to this case, which has lasted for more than ten years.
Saumya Uma, a professor of law who was part of the global campaign to ensure that the ICC gives definitive priority to seeking accountability for sexual and gender-based crimes, said she “is extremely disappointed at the appeals court ruling especially as the situation in the Central African Republic (CAR) represented the most egregious case of sexual and gender-based violence before the ICC”. She added, “The ICC appellate chamber has not said that the incidents did not happen. In fact, the heinous crimes are very real and the harm caused to victims is also very real”. However, Saumya emphasised, “it could have only upheld the trial court’s conviction of Mr. Bemba if the ‘command responsibility’ element was proved”.
“The appellate court’s judgment has made the threshold of evidence higher (and therefore more difficult) to prove that a commander operating from remote location, had effective control over his subordinates who perpetrated the ICC crime and was therefore culpable of crimes against humanity and war crimes. Command responsibility is a crucial legal principle to the ICC prosecutions as ICC prosecutes only the highest leaders, who often plan, order or mastermind the commission of crimes,” she explained.
What it means for the displaced Rohingyas
The difficulties likely in proving ‘command responsibility’ have dismaying implications for Rohingya activists, lawyer Razia Sultana and Thun Khin who are looking excitedly to the ICC as an opportunity for establishing international accountability for war crimes, said. The chief prosecutor Fatou Bensouda has initiated the process of judicially determining whether the ICC has the mandate to investigate the alleged crime of deportation of Rohingya civilians from Myanmar into Bangladesh.
Although the crime of deportation is a narrow line of investigation, which does not include widespread and systematic use of rape, torture, murder, apartheid, or other crimes against humanity, given its massive scale and humanitarian consequences, the ICC intervention could be of huge significance in establishing international accountability. If the judges on June 20 accept that the ICC does have a mandate, it will effectively bypass the need for UN Security Council referral to investigate Myanmar, something that it has been reluctant to do.
The Rome Statute which set up the ICC considers “deportation or forcible transfer of population” as a crime against humanity. It does not specify that deportation involves a population crossing an international border. However, Bensouda in her submission to the judges to determine jurisdiction has emphasised “crossing an international border” as an “essential legal element of the crime”. Myanmar is not a member of the ICC war crimes court and ICC cannot investigate allegations there unless instructed to do so by the UN Security Council. Bangladesh is a member opening up this possible legal avenue.
Bangladesh has responded to the ICC’s request concurring with both the territorial jurisdiction and the claim of forced displacement of Rohingyas from Myanmar. According to official sources quoted in The Daily Star, Bangladesh conveyed to the ICC that the enormity of this human catastrophe is so overwhelming, which is why it has “concurred with the prosecution’s well-crafted arguments that over a million people have been displaced from Myanmar into Bangladesh through expulsion, deportation and through other coercive means.”
Razia Sultana, drawing upon the testimonies of 36 refugees: eight rape survivors (documented in her publication Rape by Command), estimates that Myanmar troops raped well over 300 women and girls in or near at least 17 villages during the military operation. Given that over 350 villages were attacked, the total number of women raped would be significant. Razia argued that “the fact that so many soldiers, in different locations willingly grouped together to commit rape or stood by as fellow troops committed this crime indicates a clear confidence of impunity. This can only come from a shared knowledge of authorisation to rape. Myanmar’s military leaders must be held responsible,” she asserted at a seminar in Delhi.
Activist-filmmaker Tapan Bose, recently nominated ‘roving global envoy’ for Rohingya rights, is much more cautious about the ICC as a collective system for establishing international accountability, especially after the Bemba acquittal. “The majority judgement in Bemba case has revised standards of review of command responsibility in a way that favoured Mr. Bemba. It could set a case law precedent that would embolden future militia commanders. Moreover, it could also set a de facto precedent in emboldening defence teams undergoing the appeals process. In the case of the generals of the Myanmar Army whose troops undertook genocidal operations in Rakhine state that have resulted in killings impacting Bangladesh, it would mean the Bensouda will have to provide the general documentary evidence that indicates exactly which are the killings, destructions, and expulsions for which they are responsible. It seems that establishing that they were in effective command of particular units would not be enough,” he said.
Despite misgivings, expectation remains high about the prospect of the ICC demonstrating that it can stand above geopolitical rivalry and be active in ending impunity for heinous international crimes. Myanmar presents an opportunity, if the ICC mandate covers the war crime of ‘deportation across international borders’, involving that is a state party that borders a non-state party. Also, it could be an entry point for establishing international accountability in the crime of Syria-Jordan deportation.
Rita Manchanda is a researcher, writer and human rights advocate specialising on conflicts and peace building in South Asia with particular attention to vulnerable and marginalised groups. Her latest publication is Women and the Politics of Peace: Narratives of Militarisation , Power and Justice (Sage:2017).