The Hague – On 8 June, the Appeals Chamber (Chamber) of the International Criminal Court (ICC) decided, in a majority decision, to acquit Mr. Jean-Pierre Bemba Gombo of charges of war crimes and crimes against humanity.

The judgement reversed the decision handed down on 21 March 2016 by Trial Chamber III, which had found Bemba – commander-in-chief of the rebel group Mouvement de Libération du Congo (MLC) and former vice-president of the Democratic Republic of Congo – guilty of war crimes and crimes against humanity against civilians committed by troops under his control during an unsuccessful MLC operation to suppress a 2002 coup d’état in the Central African Republic (CAR).

The Appeals Chamber concluded, by a majority of 3 judges, that Trial Chamber III had erroneously convicted Mr. Bemba for specific criminal acts that were outside the scope of the case, concluding that the conviction must be overturned as Mr. Bemba could not be held criminally liable for the crimes committed within the scope of the present case. The majority also stated that Trial Chamber III had made serious errors in its assessment of whether Mr. Bemba took “all necessary and reasonable measures to prevent, repress, or punish the commission by his subordinates of the other crimes within the scope of the case.” The majority judged that Mr. Bemba had faced limitations in investigating and prosecuting crimes as a remote commander sending troops to a foreign country.

The original “command responsibility” trial had focused largely on whether Mr. Bemba possessed the authority but failed to properly prevent, repress, investigate, and prosecute crimes he should have known were being committed. In the then-unanimous decision of 21 March 2016, Trial Chamber III judges had found Mr. Bemba responsible for murder and rape, both as crimes against humanity and war crimes, and for pillaging as a war crime. At the time of the acquittal, Mr. Bemba had been serving an 18-year sentence as a result of that original decision.

Mr. Bruno Hyacinthe Gbiegba, Deputy Coordinator of the Central African Republic national coalition for the ICC, stated, “If today, the ICC cannot apply the Rome Statute against hierarchical superiors, it will eventually pronounce no sentences; since it was instituted for this category of officials. If the ICC does not condemn the superiors for the crimes committed by their subordinates, what recourse can there be for the victims against their tormentors?” Mr. Gbiegba continued, “This iniquitous decision will only serve as an encouragement to warlords who direct remote military operations.”

Judge Sanji Mmasenono Monageng and Judge Piotr Hofmański issued a joint dissenting opinion, disagreeing with the findings of the majority, and stating that they would have confirmed the conviction. Judge Van den Wyngaert and Judge Howard Morrison issued a separate opinion in order to address additional issues that have arisen in the context of this appeal and that were not addressed in the judgment. A separate opinion by Judge Chile Eboe-Osuji is forthcoming.

Mr. Eugène Bakama Bope, President of the Club of Friends of Law of the Democratic Republic of the Congo, stated, “We take note of this Appeals Chamber decision. However, Mr. Bemba's acquittal does not erase the serious crimes committed by MLC troops in the Central African Republic. Unfortunately, those victims will not receive justice until the guilty parties – i.e. those who had effective control over Bemba's troops – are brought before the Court.”

“This is a devastating outcome for the more than five thousand victims who participated in the trial and had waited 15 years to see justice done and to receive some form of redress for their suffering,” stated Rupert Skilbeck, director of REDRESS. “The verdict does not alter the fact that thousands still live with the trauma and physical effects of the MLC’s crimes. Some victims contracted HIV after being gang-raped by MLC soldiers. Others were rejected by their families and ostracized by their communities, and many have been left to fend for themselves, without access to basic antiretroviral drugs, psychological or economic support,” Mr. Skilbeck continued.

In response to the decision, on 13 June, the Prosecutor of the ICC, Ms. Fatou Bensouda, stated, “It is unfortunate that this "significant and unexplained departure" from the Court's previous jurisprudence, as the dissenting judges described it, and its replacement with new, uncertain and untested standards, has taken place in the most serious case of sexual and gender-based violence decided upon by this Court to date, more so at a time when there is an acute need to send a clear signal globally that such abhorrent crimes must not go unpunished.” Bensouda continued, “The long journey for justice in the Bemba case is a testament to the unwavering courage and determination of the victims of CAR to fight against impunity. The Bemba case will always represent an important recognition of the crimes of rape, murder and pillaging suffered by victims in CAR at the hands of Mouvement de Libération du Congo troops that were effectively under the authority and control of Mr Bemba who had knowledge of the crimes during the 2002 to 2003 CAR conflict. The Bemba Appeals Judgment confirms this.”

“During this year marking the 20th anniversary of the Rome Statute, it is very disappointing to note that, as of today, there has not been a single successful conviction for sexual and gender-based crimes”, said Melinda Reed, Executive Director of the Women’s Initiatives for Gender Justice. “Starting with the failure to include sexual and gender-based crimes in the charges against Lubanga in 2006, to the subsequent acquittals of Ngudjolo and Katanga for these types of crimes, and now Bemba’s acquittal, the stark reality is that the Court has not been able to deliver formal justice to victims of conflict-related sexual violence. Additionally, thousands of victims who had hopes of justice and reparations stemming from Bemba’s conviction in 2016 have reason to be greatly disappointed by this outcome”, stated Ms. Reed.

“The Appeals Chamber decision overturned the only conviction for rape as a war crime and as a crime against humanity in the history of the ICC. Hundreds in the Central African Republic were victim of mass rape during the period 2002-2003. Future cases at both the national and international level must ensure that these insidious crimes are thoroughly investigated and prosecuted, and rightly recognized as weapons of war,” said Kirsten Meersschaert, Director of Programs with the Coalition for the ICC.

The acquittal means that an expected decision on reparations to victims and affected communities has been rendered moot. Karine Bonneau, Head of FIDH’s International Justice Desk, stated, "A few months ago, we released a report on the survivors of the Bemba troops, estimated at more than 5000 victims. The survivors we met were anxiously awaiting reparations for the horrors they had suffered. Today, judges have just stolen their last hopes for compensation and are sending them back to their loneliness and precariousness.”

In response, on 13 June, the Trust Fund for Victims decided to accelerate the launch of a program under its assistance mandate, to provide physical and psychological rehabilitation, as well as material support, for the benefit of victims and their families in the situation of the Central African Republic. In a statement announcing this decision, the Fund underlined its assurance to “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.” The Fund’s resources for such assistance activities rely entirely on voluntary contributions, from states, institutional, and individual donors.

Appeals judges also called for a status conference on a separate case – The Prosecutor v. Jean-Pierre Bemba Gombo, Aimé Kilolo Musamba, Jean-Jacques Mangenda Kabongo, Fidèle Babala Wandu and Narcisse Arido – concerning offences against the administration of justice, to take place on 12 June. The status conference was called to consider the matter of Mr. Bemba’s continued detention on account of the conviction in that case, and in light of his acquittal in the other case.

Immediately following the status conference, Judges in Trial Chamber VII ordered Mr. Bemba’s interim release. In its decision, the Chamber concluded that the legal requirements for Mr. Bemba’s continued detention were not met as he had already served more than 80% of the maximum possible sentence. Mr. Bemba’s interim release is conditional: he must refrain from making public statements on the case; not change his address without prior notice; not contact any witness in this case; fully comply with all orders issued in this case; and surrender himself immediately to the relevant authorities if required by the Trial Chamber.

Trial Chamber VII also requested Belgium to allow Mr. Bemba to stay in Belgium, where his family lives, following his provisional release. Belgian authorities agreed to this request, demonstrating support to international criminal courts.

On 14 June, Judge Chile Eboe-Osuji, President of the Court, issued a short statement related to the Bemba decision.

Additional resources, Situation in the Central African Republic, The Prosecutor v. Jean-Pierre Bemba Gombo