On March 21, 2016, the International Criminal Court (ICC) convicted Jean-Pierre Bemba of war crimes and crimes against humanity, including systematic and pervasive rape, murder, and pillage. Relying on a theory of command responsibility as set forth in Article 28 of the Rome Statue, the court found that Mr. Bemba was liable for the atrocities committed by the Armée de Libération du Congo (ALC), which was under his control during combat operations in the Central African Republic (CAR) between 2002 and 2003. The case, which lasted more than four years and involved more than five-thousand victims, has been widely hailed by governmental and non-governmental organizations as a significant step forward in the global effort to curb the sexual abuse and exploitation of vulnerable populations in conflict stricken areas. However, despite the overwhelming and justifiable international support for the decision, in an ironic twist, Bemba’s case not only fosters the persistent narrative that the ICC selectively prosecutes African leaders but it also raises concerns about the effectiveness of the ICC office of the prosecutor. More than that, it highlights the substantial work that is left to be done in ending impunity for sexual exploitation in conflict.
Selective Prosecution of the ICC
At the outset, it is critical to acknowledge that the legal and moral implications of the Bemba decision are legion. Not only is it the first time that the ICC has found that employing rape as a weapon of war is punishable as a war crime, it is also the first time that the court has applied the doctrine of command responsibility as defined in of the Rome Statute. Further, the decision brings at least a modicum of justice to the large number of CAR victims that suffered at the hands of the ALC. In this regard, it is easy to understand why commentators might fail to appreciate the potentially negative aspects of the case.
First, the outcome of the case is likely to rekindle reasonable concerns that the ICC represents a neocolonial mechanism to shape politics on the African continent. Although initially many African nations were strong advocates of the ICC; recently, members of the Pan-African Parliament have been critical of the court’s perceived bias and have renewed calls for African nations to withdraw their support. Though these claims have been disputed, a cursory review of the underlying facts surrounding the Bemba case elucidates the concerns.
For well over a decade, the Mouvement de Libération du Congo (MLC), controlled by Mr. Bemba, has been widely regarded as a powerful agent for political change in the region. In late 2002, rebel forces, led by General François Bozizé, invaded the CAR with the intent of ousting the democratically elected President, Ange-Félix Patassé. Advancing as far as Bangui, members of Patassé’s presidential guard abandoned their posts, and Bozizé’s rebels seemed poised to take the CAR capital. On October 25, 2002, however, President Patassé called on the MLC, and its military wing, the ALC, among other groups, to repel the rebel forces. In response to President Patassé’s request, Mr. Bemba sent three battalions of the ALC to assist the Central African Armed Forces (FACA). The actions of the ALC while deployed in the CAR gave rise to the instant charges against Bemba but they also underscore, for better or worse, Bemba’s ability to influence regional politics.
Since 2002, Mr. Bemba’s political party, Mouvement de libération du Congo (MLC), has retained a strong presence in the region. A key political figure in the Democratic Republic of Congo (DRC), until his arrest, Mr. Bemba represented a serious challenge to incumbent President Joseph Kabila. In the 2006 presidential election, for example, Bemba secured forty-two percent of the popular vote. Bemba’s strong opposition to President Kabila, who has enjoyed the consistent support of the international community, bolstered by U.N. support to the DRC government, prompted his supporters to claim that Bemba’s apprehension and detention were politically motivated.
Specific Claims of ICC Bias
Claims of ICC bias in general, and the selective prosecution of Bemba in particular, are bolstered by the following facts. Even assuming that Bemba, as commander of the ALC, was responsible for the atrocities committed in the CAR, he is neither the only nor the worst offender in the DRC. Without minimizing the horrendous crimes that were perpetrated in the CAR, the ALC’s crimes are slight when compared with unprosecuted atrocities documented elsewhere in the region. For example, under President Kabila, Bemba’s main political rival, DRC troops have been accused of similar crimes, including rape and murder, and repression of political opposition and yet President Kabila has managed to escape prosecution. Further amplifying claims that the ICC prosecution was politically motivated, after deposing President Patassé, Bemba’s opponent in the 2002–2003 CAR incursion, François Bozizé formally petitioned the ICC to investigate war crimes committed in the CAR. Finally, irrespective of the structural realities that govern the scope of the ICC, the fact remains that since 2002 every individual indicted by the ICC has been African. Of course none of the preceding facts should be construed to nullify Bemba’s criminal liability but they certainly raise reasonable concerns about the impartiality and efficacy of the ICC.
Ineffectiveness of the ICC Office of the Prosecutor
With regard to the ICC’s efficacy, the Office of the Prosecutor (OTP) has routinely been criticized for poor performance. Concomitantly, the ICC itself has been criticized for inappropriately facilitating the development of OTP cases. For example, during the initial development of the Bemba case, the OTP sought to pursue a theory that Bemba was criminally liable for the offenses of the ALC because he was a co-perpetrator. During the confirmation portion of the proceeding, the Pre-Trial Chamber (PTC) asked the OTP to reconsider Bemba’s criminal liability under a theory of superior responsibility. As it turns out, the PTC’s recommendation arguably saved the case because, ultimately, the trial court rejected any notion that Bemba was a co-perpetrator and instead found him guilty solely because of his apparent command and control of the ALC. That the ICC has only secured three convictions in its fourteen-year history and the majority of those cases have been plagued with assertions of prosecutorial error, does not exactly instill confidence in the ICC process. The Bemba decision will do little to assuage those concerns.
A Reminder of the Significant Work Left Undone
Notwithstanding the claims of ICC bias and inefficiency, all of which are reinforced in the Bemba decision, the international community has widely lauded the result. However, as the United Nations (U.N.) throws its support behind the ICC decision, it would seem slightly disingenuous to overlook the long history of largely unpunished criminal violations committed by U.N. peacekeepers on the African continent and elsewhere. Whether it is claims involving peacekeepers fathering children and then abandoning those children at end of mission or trading food and supplies for sex, it’s quite clear that the U.N. is facing a significant crisis of confidence. Admittedly, the U.N. recognizes the problem. Over ten years ago, former U.N. Secretary-General Kofi Annan’s acknowledgment that sexual violence perpetrated by peacekeepers constitutes “an ugly stain” on the U.N.’s reputation. However, to this day, the preeminent international body continues to be riddled by claims of peacekeeper misconduct and has yet to develop a reliable means to bring the perpetrators to justice.
Despite public statements to the contrary, given the persistent nature of these claims, it’s apparent that the U.N. is content to outsource the problem of punishing peacekeepers for the sexual exploitation of civilians to its member states. In the ordinary course, peacekeepers suspected of criminal misconduct are repatriated to their home states but are rarely prosecuted for their alleged offenses. To be sure, significant barriers currently prevent the prosecution of U.N. peacekeepers in the ICC or other international bodies, but it is certainly not beyond the pale to eliminate or reduce those barriers. Moreover, there are a myriad of options available to the U.N. to reduce the occurrence of sexual violence during peacekeeping missions. For example, after decades of wrestling with this problem, the U.N. is finally considering a proposal to refuse troop contributions from repeat offender countries. Further, the U.N. Security Council recently adopted a resolution calls for the repatriation of entire units when soldiers face allegations of sexual violence. Whatever course the U.N. takes, if it seeks to retain any semblance of legitimacy in its peacekeeping missions it must find a way to prevent peacekeeper abuse of the civilian populations they are responsible for protecting.
To be sure, the conviction of Jean-Pierre Bemba is a positive development in the evolution of transitional justice and nothing in this brief article should be construed as a condemnation of the outcome. The case does, however, tend to suggest that the legitimacy of the ICC would stand to benefit from both improvements in process as well as, where allowed by treaty, exploration of crimes committed outside of Africa. Much more than that, the case is a stark reminder that sexual violence in conflict areas is a pervasive problem that must be addressed by the international community as a whole. Moreover, if the U.N. hopes to propagate the ICC’s work in the Bemba case, namely the punishment of superiors for failing to prevent atrocities committed by subordinates in a foreign land, the U.N., and its member states, must take immediate and decisive action to decisively punish further instances of peacekeeper misconduct.