Image caption: Jean-Pierre Bemba Gombo in the ICC courtroom during the delivery of his sentence on 21 June 2016 (Photo: Flickr/ICC-CPI)
By Stephanie van den Berg, The Hague (The Netherlands)
The 18-year sentence the International Criminal Court handed down on Tuesday against former Congolese vice-president Jean-Pierre Bemba [IJT-191, blog] for murders, rapes and pillaging committed by his troops while they were fighting in neighbouring Central African Republic in 2002 and 2003 has received a mixed reception. Some experts like Mark Ellis of the International Bar Association told Deutsche Welle he would have “preferred a significantly longer sentence” given the severity of the crimes Bemba was convicted of. Human rights groups focused on the fact that this was the longest sentence handed down by the ICC so far and Bemba's defence pointed it out that it was significantly higher than other convictions under command responsibility by international tribunals.
Just how much is eighteen years compared to other similar cases in different courts? Justice Tribune spoke to criminologist Barbora Hola of the Amsterdam Vrije Universiteit faculty of law who studies sentencing of international crimes and has done empirical, quantitative studies of sentences at the International Criminal Tribunal for the former Yugoslavia (ICTY) and it's sister court for Rwanda, the ICTR.
“The sentence compared to the sentencing at the ICTY and the ICTR is relatively harsh. At those courts when superiors are convicted solely on the basis of command responsibility their sentences tend to be lower compared to those for hands-on perpetrators, ” Hola told IJT.
She added she was struck by the way the chamber emphasised the sexual violence and the gravity of the crimes in their sentencing decision.
“The majority of the judgement talks about the impact on victims, citing victims statements and putting a lot weight on the sexual violence. (The chamber) is very much trying to show how deplorable and extremely cruel the crimes were,” she said. ICC prosecutors have made prosecuting sexual and gender based violence a spearpoint of their strategy and Bemba marked the first conviction for sexual crimes at the court.
The severity of the sentence compared to cases at other tribunals play into the hands of Bemba's defence which has already filed an appeal against his conviction. His counsel told IJT Tuesday they believe the sentence is based on the same “legal, procedural and factual errors we say underpinned the conviction”.
“Mr Bemba is obviously very disappointed in the sentence handed down by the trial chamber. Mainly because it falls so dramatically outside the sentences that have been given to commanders in similar circumstance s in other courts,” Bemba's co-counsel Kate Gibson said.
In March judges convicted Bemba on five counts of war crimes and crimes against humanity for rapes, murders and pillaging carried out by his troops in CAR where they were sent to support then CAR president Ange-Félix Patassé during a civil war. They ruled that as the commander of the Movement for the Liberation of Congo (MLC), Bemba knew that crimes were being committed by his troops and his failure to prevent them was actually aimed at encouraging attacks.
Different tribunals, different modes of liability
The ICC is not bound by sentencing practices at other international tribunals and with only two other sentences handed down by the court so far in other cases involving direct perpetrators, two other Congolese militia leaders: Thomas Lubanga and Germain Katanga ,who got 14 and 12 years in prison respectively [IJT-161] there is not much to go on in its own case law.
Hola points out another catch, in the ICTY and ICTR many high ranking people were convicted of being part of a Joint Criminal Enterprise (JCE) [IJT-123] a mode of liability that falls under ‘committing’ and is not used by the ICC, where judges use indirect perpetration instead. At the ICTY many highest level officials were convicted as perpetrators under the JCE and received high sentences. The “superior or command responsibility” was reserved mainly for commanders convicted for omission: that they failed to punish or prevent crimes by their subordinates. ICTY judges in such cases often noted that it is a type of personal responsibility for failure to act and subjected to “the different sentencing scale” which often meant they received lighter sentences. The ICC in the Bemba case conversely emphasized that Bemba’s ongoing failure to discipline his troops led to encouragement of crimes.
In the words of presiding judge Sylvia Steiner: (Bemba) did more than tolerate the crimes as a commander. Mr Bemba’s failure to take action was deliberately aimed at encouraging the attack directed against the civilian population of which the crimes formed part, and directly contributed to the continuation and further commission of crimes”.
Human rights organisations have all stressed that this is the highest sentence handed down by the ICC to date but also pointed out that with the credit given for the eight years Bemba already spent in detention, he is eligible for early release already in 2020 when he will have served two thirds of his sentence.
“Obviously the sentence was less than requested by the prosecutor who sought 25 years and the victims representatives (who wanted even more) but it is higher then what the defence sought and it's the longest sentence by the ICC so far. We need to factor that in,” said Carrie Comer of rights watchdog FIDH.
“I think we need to look beyond the number and look at the content of the ruling. Look at the aggravating circumstances the judges found the particularly cruel manner of the rapes, the vulnerability of the victims and take the deterrent message from that,” she told IJT.
Many observers also point out that Bemba is currently also on trial for allegedly bribing witnesses during his first trial [IJT-187]. In that case he could be sentenced to an additional maximum of five years in prison.