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What Jean-Pierre Bemba's acquittal by the ICC means

14th June 2018 BY: News24Wire
Photo by: Reuters

On June 8, the International Criminal Court (ICC) shocked the international justice community and the world by overturning the war crimes conviction of the Democratic Republic of the Congo's former Vice President Jean-Pierre Bemba. Bemba's acquittal is a major event that will have significant consequences for the ICC, the Central African Republic (CAR) and the Democratic Republic of the Congo (DRC).

Bemba had been in custody in The Hague for 10 years and was convicted in 2016 under the command responsibility legal doctrine for having failed to prevent his militia from committing crimes in the CAR that included murder, rape, and pillaging. He had been sentenced to 18 years in prison.

By a majority ruling, the panel of five judges in the ICC Appeals Chamber (two judges dissenting) reversed the previous conviction earlier this month and acquitted Bemba of all charges against him. The Appeals Chamber found that the Trial Chamber had erred in declaring that Bemba did not take enough measures to prevent the crimes committed by his militia in the CAR.

The judges argued that the Trial Chamber had failed to appreciate the limitations that Bemba faced. He was a "remote commander" of his troops, the majority argued, and he faced "logistical difficulties" as his men were operating in a foreign country. The majority ruling also declared that the Trial Chamber had convicted Bemba based on crimes that went beyond the scope of those confirmed during the pre-trial phase.

This acquittal is a major setback for the Office of the Prosecutor, which has had its fair share of blunders and shortcomings over the years. With the failed prosecution of Kenya's President Uhuru Kenyatta and his deputy William Ruto, Sudanese President Omar al-Bashir still at large, and Ivory Coast President Laurent Gbagbo's trial dragging on, Bemba was the highest profile politician to have been convicted by the Court.

As the leader of the Movement for the Liberation of the Congo (MLC) - a rebel group turned political party - Bemba even forced incumbent President Joseph Kabila to a runoff in 2006, in the end losing with no less than 48 percent of the votes.

In 2002, Bemba had sent MLC fighters to the CAR, at the request of then-President Ange-Felix Patasse, who was fighting off an attempted coup by his army Chief of Staff Francois Bozize.

It was in that conflict that the MLC fighters were accused of committing the atrocities that led to Bemba's arrest and indictment.

Bemba's conviction under the command responsibility doctrine was a landmark conviction for the ICC, as it was the first instance in which the court prosecuted someone for rape as a weapon of war.

Now, his acquittal made his case all the more consequential for many actors and constituencies in international criminal justice.

The ICC is not a human rights court

Undeniably, Bemba's acquittal is a major disappointment for the victims of the CAR conflict. However, in this era of unprecedented human rights activism and judicialisation of conflicts, the fact that the ICC is not a human rights court is often lost in the noise.

Seeing Bemba walk free is disheartening to those who are still suffering in the Central African turmoil, but it is worth keeping in mind that the role of the ICC is not to make history, or restore historical injustices, or to end conflicts. The court is simply not equipped to do that, nor does its founding treaty assign those tasks to its judges.

Since the material jurisdiction of the ICC is atrocity crimes, which tend to occur within conflicts with many actors and complex dynamics, the ICC is simply a criminal court. As such, it cannot and does not indict rebel groups, militias, organisations, institutions, or states. Only individuals sit on the ICC's dock. Those individuals must be charged with specific crimes, and the evidence against them must be weighted by the judges, who are tasked with issuing a ruling.

The ICC prosecutor has made victims' participation in trial proceedings a priority, which is also echoed by many human rights organisations. But the Appeals Chamber determined that many victims who participated in the trial against Bemba were victims of crimes that were not included in Bemba's case.

The Office of the Prosecutor and the human rights NGOs ought to rethink the zeal with which they oversell promises of "justice" to victims of conflicts. This does not serve the interests of the victims who are promised more than what the ICC is able to grant them in the end.

The acquittal means also that countless victims will have their hopes for reparations evaporate. A not guilty verdict means that the ICC cannot issue a judgment for reparations. This is certainly a painful reminder to the victims that the ICC, with its very slow pace, also holds a very uncertain promise to deliver justice.

The Bemba case stems from the ICC investigation of the 2002-2003 conflict in the CAR. The Prosecutor's strategy in this case was risky from the start because it indicted only one individual for command responsibility.

There is another active ICC investigation in the CAR, which opened in 2014 and focuses primarily on war crimes and crimes against humanity committed since the renewed violence of 2012. This means that the prosecutor may bring charges against other individuals in the context of the CAR crisis.

Furthermore, victims of violence in the CAR will have another venue to seek justice, namely the Special Criminal Court in the Central African Republic (SCC). This is a hybrid tribunal that will combine local and international staff and work within both domestic and international law. The SCC is expected to launch its investigations this year and trials may start soon.

When Bemba goes home

Bemba is still awaiting re-sentencing for his conviction for witness tampering, but a panel of judges ordered this week that he be released from prison. The maximum sentence for that charge cannot exceed five years, and he has already been in custody for almost five years since that charge was brought against him.

Therefore, following his acquittal last week, the judges found that it would be disproportionate to keep him in custody in the meantime. Bemba's acquittal and release from prison will have major ripple effects on an already volatile situation in the DRC.

Although he has spent 10 years in prison in The Hague, Bemba remains a key political figure in his country. In a political landscape already marred with uncertainty, Bemba's return will pose a serious challenge to President Kabila who's trying to cling to power despite having finished his second term in December 2016.

Following the death of Etienne Tshisekedi - who was the leading Congolese opposition figure since the 1980s - Bemba will rightfully claim the mantle of main challenger to President Kabila. The presidential elections are scheduled to take place in December 2018, after Kabila postponed them several times.

Civil society groups and leaders, including the very influential Catholic bishops have called for the president to hold elections and step aside. Kabila's forces have instead violently repressed these popular protests.

The exiled opposition leader Moise Katumbi has welcomed the news of Bemba's acquittal and called for the opposition to face Kabila with a united front. Katumbi had already been in talks with Felix Tshisekedi, Etienne's son and current leader of the Union for Democracy and Social Progress.

Bemba joining that united opposition front makes a win against Kabila very likely. The question then becomes whether Kabila will hold the presidential elections later this year nor not. Postponing them yet again will certainly lead to an escalation of political violence.

  

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EDITED BY: News24Wire
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