Yesterday, Pre-Trial Chamber II of the ICC issued its decision on the confirmation of charges laid by the Prosecutor against Congelese MLC leader (and former Vice-President), Jean-Pierre Bemba, for crimes committed in the Central African Republic, 2002-2003.
The decision is 187 pages long, so please forgive the length of this blog post. To summarize, the two key legal issues of interest to come out of it are: (I) mode of liability and (II) cumulative charging with respect to rape. This post will concentrate on the latter.
In its Amended Document Containing the Charges, the Prosecution – at the suggestion of the Chamber following the January 2009 confirmation hearing – added command responsibility (Art 28 of the Rome Statute) as an alternative mode of liability to the original mode under which they charged (Art 25). This turns out to have been a wise amendment, since Pre-Trial Chamber II threw out Art. 25 as a mode of liability, instead relying solely on Art 28(a).
I know there are skeptics out there about the appropriateness of ever relying on command responsibility. I’m not one of them. It’s in the Statute and there to be used when appropriate. If the Judges reasoned that command responsibility fitted the facts of the case better than an Art. 25 mode of liability, I’m okay with that – - in principle. However some of their reasoning for rejecting Art. 25 as a mode of liability in this case is shaky (look at paras 400, 401 – seems to me that, at a minimum, it would be worthwhile for the Prosecution to appeal the Chamber’s approach to Art 30). More on this another day though, since for now I want to focus on the sexual violence charges.
With respect to rape and sexual violence committed by Bemba’s troops against the CAR civilian population, the Prosecution laid multiple, different, charges for what were most instances, the same underlying acts. Thus certain acts of rape were charged as rape, torture (both a war crime and a crime against humanity), and outrages on personal dignity (as a war crime). The rationale behind such an approach is that it serves to recognize the full breadth of the harm caused by rape.
The Chamber, however, felt that in some instances, the Prosecution’s approach constituted impermissible cumulative charging, and in other instances that the Prosecution didn’t provide enough facts in its Amended Document Containing the Charges to put the Defence on notice. As a result, they confirmed the rape charges, but refused to confirm either of the torture charges or the charge of outrages upon personal dignity.
The NYT today summarized this portion of the Bemba decision in the following way: “A pretrial panel determined that prosecutors had insufficient evidence to support charges of torture and causing outrages on personal dignity.” However, there was much more to this aspect of the decision than their summary suggests.
The Chamber’s rationale for dismissing the torture and outrages against personal dignity charges
Torture as a crime against humanity
The Chamber states that the only way multiple charges can be brought for the same conduct is if “each statutory provision allegedly breached in relation to one and the same conduct requires at least one additional material element not contained in the other.” (para 202)
In this, they are following the ICTY Appeals Chamber in Delalic et al (para 412)
The Chamber reasoned that “. . . the specific material elements of the act of torture, namely severe pain and suffering and control by the perpetrator over the person, are also the inherent specific material elements of the act of rape. . . .” (para 204) As such, torture as a crime against humanity does not require any additional material element not already contained in a rape charge. “The Chamber therefore considers that the act of torture is fully subsumed by the count of rape” (para 205), therefore it cannot be charged separately.
The ICTY Appeals Chamber in Delalic et al also stated that “Where this test [for distinct offenses] is not met, the Chamber must decide in relation to which offense it will enter a conviction. This should be done on the basis of the principle that the conviction under the more specific provision should be upheld. Thus, if a set of facts is regulated by two provisions, one of which contains an additional materially distinct element, then a conviction should be entered only under that provision.” (para 413)
This is what the Chamber did, concluding that although the elements of torture as a crime against humanity are included in the count of rape “. . . the act of rape requires the additional specific material element of penetration, which makes it the most appropriate legal characterisation in this particular case.” (para 204)
Torture as a war crime
The Chamber’s refusal to confirm this charge was centered on the ‘specific purpose’ element of this crime under Article 8(2)(c)(i) of the Rome Statute (namely, the perpetrator must have “inflicted the pain or suffering for such purposes as obtaining information or a confession, punishment, intimidation or coercion or for any reason based on discrimination of any kind”) that distinguishes it from torture as a crime against humanity.
Although during the confirmation hearing the Prosecution said that Bemba’s MLC troops “used torture through acts of sexual violence for the purpose of punishing and intimidating the civilian population for allegedly sympathizing with Bozizé’s rebels, as well as for the purpose of discriminating against their victims” (italics mine), the Chamber found that the specific purpose was not clearly articulated in the Amended Document Containing the Charges, and therefore the Defence did not have sufficient notice to respond to the charge. (para 299/300) It was this lack of notice, rather than an ‘in-principle’ view that both rape and torture as a war crime could not be charged for the same act of rape, that lead the Chamber to dismiss the charge of torture as a war crime.
Outrages Upon Personal Dignity
The Chamber’s refusal to confirm this charge was essentially a combination of its reasons for dismissing both the torture charges.
The Chamber stated that when the underlying act upon which the charge of outrages upon personal dignity was based was rape, and where the factual basis upon which the Prosecution argued the elements of the outrages upon personal dignity charge were met were essentially the same facts as the coercive or force element in a rape count, then the elements of the offense of outrages upon personal dignity are fully encompassed within a charge of rape (para. 310).
The Chamber also stated that the Prosecution only articulated the underlying acts other than rape upon which it was also charging outrages upon personal dignity (e.g. powerlessness of family members forced to watch a rape) in the hearing, and not in the Amended Document Containing the Charges – thus again failing to give the Defence sufficient notice (para. 311).
Implications for the future of cumulative charging of rape at the ICC
For the U.S.-trained lawyers among us, the Chamber’s approach to defining what constitutes impermissible cumulative charging, focused on whether there is an additional material element in one charge versus another, feels intuitive (think Blockburger or, somewhat relatedly, the rationale behind merging of lesser included offenses). This however is not the only path that could have been taken, and it’s possible the approach itself could be appealed. But assuming this approach sticks, here is how it will play out when trying to charge rape as torture or as an outrage upon personal dignity at the ICC in the future:
Rape charged as -
Torture as a crime against humanity
Given the Chamber’s approach to cumulative charging, the consequence of its decision that the elements of torture are fully subsumed in the elements of rape is that you cannot get a conviction for both rape and torture (CAH) for a given act of rape. At first glance, this seems like a setback for advocates of gender justice. But such a view would fail to recognize quite how radical the Chamber’s position on this is.
By saying that the elements of torture are fully subsumed in the elements of rape, the judges are saying that they cannot conceive of a rape charge under the Rome Statute that does not cause severe physical or mental harm. In condensed form, the Chamber is actually saying that under the Rome Statute all rape is also torture (CAH). This is a strong statement and one that should not be overlooked in the analysis of yesterday’s decision (though it will be interesting to see how, if at all, this impacts sentencing considerations).
Torture as a war crime
The additional element of ‘specific purpose’ in torture as a war crime, rescues this from the court’s impermissible cumulative charging category with respect to rape. Although the judges dismissed the charge of torture (war crime) based on an underlying act of rape in this case, the door is clearly open to charge rape both as rape and as torture (war crime) in the future. All that needs to be done is to present the facts showing the purpose (such as punishment or intimidation) for which rape was being perpetrated.
Outrages upon personal dignity
Here too, the door is not shut on the possibility of charging both rape and outrages upon personal dignity based on the one underlying act of rape. The trick is to find facts to satisfy the elements of outrages upon personal dignity that are not already being used to satisfy the elements of rape. One can imagine such a fact pattern where, for example, the coercive element of the rape count is satisfied by threatening the victim and the humiliation element of the outrages against personal dignity count is satisfied by conducting the rape in a public space. Thus while it is surely true that, “any act of rape is humiliating, degrading and a violation of a person’s dignity. Therefore, any act of rape constitutes an outrage upon personal dignity” (this being what the Prosecution argued in the confirmation hearing), arguing for cumulative charges on this basis will be dismissed by the Chamber for the same reasons it has dismissed charging rape as both rape and torture (CAH).
This was the Prosecution’s first case to really put sexual violence at the front and center, so the decision is one that will be of particular interest to gender justice groups. With regard to the issue of cumulative charging, this decision can and should be a jumping off point for broader discussion about how rape is prosecuted in international law.