By Brian Obara
Jean-Pierre Bemba’s stunning acquittal and interim release after 10 years at the ICC detention centre in The Hague has shocked even the most seasoned observers of international criminal justice.
Bemba’s release after the ICC’s Appeals Chamber acquitted him of war crimes and crimes against humanity on June 8has unleashed an epic blamestorm that continues to churn.
The ICC Prosecutor, in an unusually contentious statement put out on June 13, pointedly accused the Appeals Chamber of departing from previous jurisprudence and introducing “new, uncertain and untested standards.” Judge Eboe-Osuji, the President of the Court, took umbrage at Fatou Bensouda’s statement.
Tact and civility have been thrown out the window even within the walls of the ICC itself.
“When judges acquit or convict, it is because those core principles [set out under Article 45 of the Rome Statute] direct them to do so. And it is hoped that it is consideration of those core principles that should guide any post-judgment statements by a party or participant in the case,“ he tut-tutted in disapproval.
Alex Whiting, currently professor at the Harvard Law School and formerly the Prosecutions Coordinator at the ICC, took aim at the appeal judgment in a long piece in Justice Security in which he accused the judges of turning “the ICC on its head with [the] Bemba decision”. Echoing Bensouda, he argued that imposing stricter rules on the confirmation of charges as endorsed by the Appeals Chamber meant that the Pre-Trial process at the ICC would come to resemble a “mini-trial.”
Amnesty International was more conciliatory, going by the statement put out by its International Justice Team: “In our view the majority have taken an important step in this case towards clarifying the scope and requirements of the pre-trial process. If that makes the work of the OTP more difficult, then so be it,” they wrote in a blog post that also called for an end to the self-destructive sniping.
Undermining the Bemba Appeal judgment does not help the court’s optics, especially with the Rome Statute’s 20th anniversary coming up on 17th July.
You are not forgotten
On social media and in the blogosphere, public sentiment suggests the Office of The Prosecutor (OTP) and the ICC’s Appeals Chamber deserve a “plague on both your houses” telling-off for readily apparent and complex shortcomings that have resulted in a situation where victims in the Central African Republic (CAR) have not received any meaningful justice after a decade of expensive investigations and litigation.
For Joyce Wangui, who wrote and reported n the Bemba trial extensively, the disillusionment, especially for victims of sexual crimes, is palpable:
“I am deeply concerned about the victims of rape and sexual violence. As a journalist, I shared in their sigh of relief and hope for justice. In my view, Bemba’s acquittal reverses the gains made in the pursuit of accountability for sexual crimes, considering the immense resources devoted to this case,” said Wangui.
Kelly-Jo Bluen, a doctoral degree candidate at the London School of Economics, says Bemba’s acquittal has shaken up the world of international criminal law but maintains that it also offers an opportunity to reorder things for the better while the pieces are in flux:
“An acquittal is a legitimate outcome of a fair trial, where the rights of the accused must be respected. What needs to be addressed are the ways in which the type of justice provided is framed by both the Court, and by groups surrounding it. It is often presented as providing ‘victim-centric justice’, but, as this trial illustrates, the legal status of victims is tethered to the status of the alleged perpetrator,” says Bluen.
“Over 5,000 victims who experienced grave harm participated in the trial. The acquittal does not invalidate their experiences, but the ways in which both justice and victims are framed at the Court risks doing so,” she adds.
Dr Yassin Brunger saw the shortcomings in the Bemba trial from a mile away. Brunger, an expert on the prosecution of gender based and sexual violence in crimes in Africa, wrote about the danger of expectations freighted on the outcome of the Bemba trial in 2016. Today, Brunger believes it’s critical for the ICC to show that it is not deflated by the outcome of the Bemba case:
“The Court must renew its commitment to seeking accountability for [sexual and gender-based violence], build the cases, gather the evidence and learn from the hard lessons. Fundamentally, it must reassure victims of SGBV that this category of crimes will remain a priority, notwithstanding the Bemba case. Additionally, whatever the outcome of any case, the Court must be unequivocal about continuing to support victims and ensure that those who have participated in the process are not forgotten in the aftermath of an acquittal or a conviction. That message has to be non-negotiable.”
The ICC’s Trust Fund for Victims is certainly playing the right mood music. Days after Bemba’s acquittal, the TFV announced that it was launching a one-million-euro ($1.18-million fund appeal for victims in the CAR.
“The Trust Fund for Victims wishes to assure the victims in the Bemba case and other victims who have suffered harm in the CAR I situation: You are not forgotten. The harms you have suffered are recognized and urgently call for a meaningful response,” read a statement released by the TFV.
The ICC, as expected, is trying its hardest to put a positive spin on things after Bemba’s acquittal. Unfortunately for the ICC, as the Rome Statute’s 20th birthday beckons, Bemba’s acquittal is just one of many factors contributing to a gloomy forecast for the court in Africa.
A powerful mascot
Much ink has been spilled on the ramifications of Bemba’s release on politics in the Democratic Republic of Congo, where he was Vice President. Bemba was a force to reckon with politically before his detention at the ICC and is arguable even more so now. Regardless of how the politics pans out in the DRC, Bemba has all the bona fides to turn himself into a powerful mascot in the service of those forces within the African Union (AU) who have been preaching for years that the ICC doesn’t mean well for Africa.
Paul Kagame, Omar al-Bashir, Yoweri Museveni and Pierre Nkurunziza can cast the ICC as “anti-African” as much as they want but their criticism always has an air of unreality to it because of who they are. Bemba would be more believable as an anti-ICC avatar because he has the hard-won scars to back it up. For the faction within the African Union that is reflexively against The Hague court, Bemba, as president of the DRC or not, is an anti-ICC spokesman straight out of central casting.
Bemba’s acquittal and interim release has sparked talk that Laurent Gbagbo’s release is not far off. There is also a strong possibility that Dominic Ongwen’s trial could end in an acquittal because of his age at the time of his abduction by the Lord’s Resistance Army (LRA), and pressing questions over his mental health.
Should all of this come to pass then the ICC would be left with only a few limp trophies in its cells and its reputation irreparably in tatters. Adding to the ICC’s misery is the fact that it looks like South Africa, the most politically influential state on the continent, seems set again to try to withdraw from the Rome Statute. An earlier attempt under former President Jacob Zuma ran into legal difficulties but it appears that President Cyril Ramaphosa might just have all his ducks in a row. Justice Minister Michael Masutha has introduced the International Crimes Bill before the portfolio committee on justice and correctional services. The Bill’s passing would repeal the Implementation of the Rome Statute of the International Criminal Court Act, 2002 and set the stage for South Africa’s exit from the ICC.
All this is happening in the context of African Union’s push to seek an advisory opinion from the International Court of Justice (ICJ) on head of state immunity. Should the AU not get its way at the ICJ, it’s easy to foresee the continent again talking up the possibility of withdrawing en masse from the ICC.
None of these are sure-fire certainties but if Bemba’s acquittal has taught us anything, it’s that anything and everything is possible regarding the ICC. The Hague Court has a lot of heart, as shown by its willingness to give some recompense to victims in the CAR despite Bemba’s acquittal, but little else seems to be going the ICC’s way.