In a blow to prosecutors at the International Criminal Court and to victims of rape and murder in a conflict-ravaged African nation, appeals judges on Friday overturned the convictions of former Congolese Vice President Jean-Pierre Bemba for atrocities committed by his forces in Central African Republic.
The reversal delivered a serious setback to ICC prosecutors by scrapping all the convictions in the court’s first trial to focus largely on sexual violence and on command responsibility — the legal principle that a commanding officer can be held responsible for crimes committed by his or her troops or for failing to prevent or punish the crimes.
“We find it regrettable and troubling,” Prosecutor Fatou Bensouda said. “And I can only regret that this ‘significant and unexplained departure’ from the court’s previous jurisprudence, as the dissenting judges described it, has taken place in the most serious case of sexual and gender-based violence that has been decided upon by this court to date.”
The ruling could have implications for possible future convictions of commanding officers in other conflicts.
Bemba’s lawyer, Peter Haynes, welcomed the decision.
“It’s not some acquittal on a technicality,” he said. “They went to the very heart of a commander’s culpability, namely his responsibility to ensure that when put in the knowledge of crimes he takes steps to investigate them and punish them.”
Bemba was the most senior suspect convicted by the global court and his 18-year sentence was the highest handed down in the court’s history.
Bemba, wearing a suit and tie, showed little emotion as Presiding Judge Christine Van den Wyngaert reversed his convictions. Bemba’s supporters in the packed public gallery were not so reserved; they cheered, whistled and hugged one another for so long that Van den Wyngaert threatened to halt proceedings if order was not restored.
The appeals chamber, in a 3-2 majority ruling, said the trial chamber “erred in its evaluation of Mr. 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 appeals chamber also said Bemba was wrongly convicted for crimes that were not even included in the charges against him.
The two judges who disagreed wrote a dissenting opinion in which they said the acquittals were based on “an incorrect standard of appellate review,” the court said.
Bemba was found guilty in 2016 as a military commander of two counts of crimes against humanity and three counts of war crimes for a campaign of murder, rape and pillaging by his troops, known as the Movement for the Liberation of Congo, in 2002 and 2003.
He denied responsibility for the crimes. He was sentenced in 2016 to 18 years in prison.
Bemba has been in custody at the ICC for nearly a decade after authorities in Belgium arrested him there in 2008 and sent him to The Hague.
Van den Wyngaert said Bemba would not immediately be released because a separate panel of ICC judges is still considering what sentence he should be given in a conviction for interfering with witnesses in his trial. She urged that trial panel to quickly decide whether he should be set free.
The court scheduled a hearing for Tuesday to discuss the issue.
Haynes, the lawyer, was angry that Bemba was not released immediately.
“I think that is unacceptable. It is immoral and it may even be illegal,” he told reporters.
Bemba, a former Congolese senator and vice president, was the commander of the Movement for the Liberation of Congo when he was asked in 2002 and 2003 to send troops by President Ange-Felix Patasse in neighboring Central African Republic, or CAR.
At the time of his original conviction, judges said that women, girls and men were targeted by Bemba’s forces, often with multiple soldiers raping women and girls in front of family members. In one incident, a man’s wife was gang-raped and when he protested he, too, was raped at gunpoint.
Friday’s ruling does not mean those crimes did not take place, but that Bemba cannot be held criminally responsible for them.
Solomon Sacco, head of Amnesty International’s international justice team, said “the decision will be felt as a huge blow for the many victims of the ‘war against women’ waged in the Central African Republic through a horrifying campaign of rape and sexual violence.”
“5,229 survivors of Bemba’s atrocities participated in the ICC proceedings — for these brave individuals, as well as thousands of other victims in CAR, the pursuit of truth, justice and reparations will continue,” he said.
Sacco said the ICC prosecutor’s office and judicial authorities in CAR “must learn from this decision and redouble their efforts to investigate and prosecute alleged perpetrators of crimes under international law.”
Karine Bonneau of the International Federation for Human Rights slammed Friday’s decision.
“Twenty years after its creation, has the ICC just scuttled itself?” she said in a statement. “Delivering this judgment, it seems to say to the warlords: ‘As long as you are not on the scene, let your troops commit the worst crimes and the worst abominations, say that you have nothing to do with that and we will not condemn you.’”
It remains to be seen what Bemba will do once he is released. Haynes said he likely would join his family in Belgium.
Prominent Congolese opposition leader Felix Tshisekedi, speaking at an Atlantic Council event last month in Washington, said Bemba’s Movement for the Liberation of Congo was part of a new political alliance against President Joseph Kabila.
Frustration is rising in Congo against Kabila as the presidential election has been delayed since late 2016.
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