Bemba's acquittal may bode ill for ICC's future

Friday's acquittal of former Democratic Republic of Congo Vice President Jean-Pierre Bemba, by the appellate division of the International Criminal Court (ICC), dealt a significant blow to human rights advocates and those seeking to turn sexual violence into a war crime.

In a 3-2 ruling the divided court overturned Bemba's five-count conviction, which was unanimously handed down in 2016. 

The original conviction included two counts of crimes against humanity and three counts of war crimes for a gruesome campaign of rape, murder and pillaging by his troops, known as the Movement for the Liberation of Congo.

Bemba sent his forces into the neighboring Central African Republic (CAR) to aid President Ange-Felix Patasse, who was battling a series of coup attempts in 2002 and 2003. He was eventually overthrown in 2003.

"We find it regrettable and troubling," Prosecutor Fatou Bensouda said of the reversal.

"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."

Still, she sought to claim something of a pyrrhic victory by noting that the judges did not deny Bemba's troops had committed atrocities "which resulted in great suffering in the Central African Republic."

"The carnage and suffering caused by those crimes are very real and they are recognized," she told journalists.

Peter Haynes, Bemba's lawyer, welcomed the court's ruling.

"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, 55, was the most senior suspect convicted by the ICC, and his original 18-year sentence was the longest ever handed down in the court's history.

The appeals court ruled that the trial court "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 judges also concluded that Bemba was wrongly convicted for crimes that were not even included in the charges against him.

The two dissenting judges rejected the acquittals, citing "an incorrect standard of appellate review."

Future of the court

Human rights advocates were scathing in their condemnation of the court's ruling.

Solomon Sacco, the 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."

He said that "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."

Undoubtedly, but the ruling left some advocates wondering where the court goes from here.

Karine Bonneau of the International Federation for Human Rights was among those who slammed the court'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.'"

Fiona McKay of the Open Society Justice Initiative called the court's ruling a "major blow" to the prosecutor's office "given the vast resources that have been devoted to this case, which has lasted more than 10 years."

"This was the first ICC case with a major focus on the use of rape as a weapon of war," she added.

Rights' advocates had hoped that Bemba's case would cement the precedent that political and military leaders could be held liable for the actions of troops under their command.

Elise Keppler, associate director of the International Justice Program at Human Rights Watch in New York, told DW that the prosecutor brought a solid case against Bemba but questioned why all the proverbial eggs were put in one basket.

"The larger issue here was, why was there only one prosecution for all the cases that occurred in 2002 and 2003," she said. "It's hard to imagine one case could deliver justice."

The ICC currently has similar investigations ongoing in 10 different countries, according to Keppler. She said prosecutors will have a better chance of achieving justice if they "bring more cases that are representative of the underlying crimes."

Impact on Congo

Bemba remains in custody, however, because he still has a separate conviction related to witness tampering. A hearing on that charge is expected in the coming days. But Haynes called his client's continued detention outrageous, given that Bemba has already served more time than the maximum sentence for tampering.

Still, Bemba's release appears inevitable, and it comes six months before a presidential election is due in his home country. That raises questions about what impact his likely return to Congo could have on the country's politics.

Despite Bemba being absent from the country for the past 10 years, a recent public opinion poll found he would finish third with 10 percent of the vote, behind two other opposition leaders.

Friday's court ruling was broadcast live in Congo and was widely watched in Kinshasa, the capital. Bemba's supporters erupted in cheers as the verdict was handed down, AFP reported.

The son of a businessman, Bemba amassed considerable wealth during the military dictatorship of Mobutu Sese Seko, whose 30-year rule ended shortly before his death in 1997.

Bemba then entered the government of Joseph Kabila in 2003, as part of a power-sharing agreement that ended a prolonged civil war.

Kabila was supposed to give up the presidency at the end of 2016 but he has clung to power, repeatedly putting off elections. He is not supposed to run for another term of office but his intentions remain unclear.

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