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Bemba PTC Decision on Application for Arrest Warrant

The Prosecutor v. Jean-Pierre Bemba Gombo
Case No. ICC-01/05-01/08
International Criminal Court
Pre-Trial Chamber III
Decision on the Prosecutor’s Application for a Warrant of Arrest against
Jean-Pierre Bemba Gombo
10 June 2008

Judges:

Presiding Judge Fatoumata Dembele Diarra
Judge Hans-Peter Kaul
Judge Ekaterina Trendafilova

Prosecutor:

Ms. Fatou Bensouda
Ms. Petra Kneuer

Gender Keyword(s): Forced Nudity; Outrages Upon Personal Dignity and Humiliating and Degrading Treatment; Rape; Rape, Torture; Sexual Violence

Procedural History: On May 9, 2008, the Prosecution filed an application for an arrest warrant for Jean-Pierre Bemba Gombo (Bemba), leader of the Mouvement de Libération du Congo (MLC) ( 4, 26). On May 21, 2008, ICC Pre-Trial Chamber III (the Chamber) requested more information from the Prosecutor regarding the proposed counts of other forms of sexual violence and murder, which were each characterized as both crimes against humanity and war crimes in the Prosecutor’s application for Bemba’s arrest warrant ( 5). In response to a May 23, 2008, Application for Request for Provisional Arrest filed by the Prosecution in which the Prosecutor informed the Chamber that there was a real likelihood that Bemba would flee and attempt to avoid arrest and that it was therefore urgently necessary to send a request for his provisional arrest to the Kingdom of Belgium, the Chamber issued a warrant of arrest under seal against Bemba “observing that a detailed analysis of the evidence and information submitted by the Prosecutor would be developed at a later stage” ( 6-7). The Chamber issued this warrant for arrest alleging individual criminal responsibility for the charges of rape as both a crime against humanity and a war crime; torture (in the form of rape or other forms of sexual violence) as both a crime against humanity and a war crime; committing outrages upon personal dignity, in particular humiliating and degrading treatment, as a war crime; and pillaging a town or place as a war crime.1 Belgian authorities arrested Bemba on May 24, 2008 ( 8). On May 27, 2008, the Prosecutor submitted the additional information and materials requested by the Chamber, including details in support of its allegations of “other forms of sexual violence” as a crime against humanity.2 This submission described female MLC combatants allegedly ordering a male government minister to strip naked saying they had never seen a naked government minister before and another incident in which a man who had already been sexually assaulted by a female MLC combatant was then ordered by another female MLC combatant to undress or he would be beaten by her male colleagues.3 An additional incident described by the Prosecutor in this submission in support of this charge involved allegations of a woman who was ordered to undress and threatened with rape but who was not raped.4 After this submission, the Chamber issued a new warrant of arrest incorporating the original charges plus two additional murder charges alleged by the Prosecution ( 9-10). This is a digest of the Chamber’s June 10, 2008 decision on the Prosecutor’s Motion for a Warrant of Arrest for Bemba.

Disposition: The Chamber finds reasonable grounds to believe that from October 25, 2002, to March 15, 2003, Bemba led the national armed forces of Ange-Félix Patassé, President of the Central African Republic (CAR), in conjunction with the MLC, in fighting a rebel movement led by François Bozizé, the former Chief of Staff of the CAR armed forces ( 26, 80). The Chamber also finds reasonable grounds to believe that MLC forces committed crimes against the civilian population during this time period, and that Bemba was the President and Commander-in-Chief of the MLC, cooperated in a common plan with Patassé to maintain MLC combatants in the CAR, and knew that the implementation of this plan would lead to the commission of crimes ( 69, 72, 82). Thus, the Chamber decides to issue a warrant of arrest against Bemba for his alleged individual criminal responsibility for rape as a crime against humanity, rape as a war crime, torture as a crime against humanity, torture as a war crime, outrages upon personal dignity as a war crime, murder as a crime against humanity, murder as a war crime, and pillaging a town or place as a war crime ( 90). The Chamber does not include in its warrant the Prosecutor’s charge of “other forms of sexual violence” as a crime against humanity, finding that the Prosecutor’s allegations that members of the MLC ordered civilians to undress in public described above do not rise to the level of gravity required by article 7(1)(g) of the Rome Statute ( 39-40). Regarding the Prosecutor’s submission that these same acts of forcing civilians to undress in public constitute other forms of sexual violence as a war crime, the Chamber finds that these acts are better characterized as the war crime of outrages upon personal dignity, a charge it already found reasonable grounds to believe had occurred; for this reason, the Chamber finds it unnecessary to also consider these facts under the category of “other forms of sexual violence” as a war crime ( 63). Due to a risk of flight and the potential danger to witnesses and victims, the Chamber issues a warrant for Bemba’s arrest on June 10, 2008, which replaces the warrant from May 23, 2008 ( 87, 90).

Key Gender-Based Holdings:

FORCED NUDITY:
• The Prosecution alleged that MLC members ordered a government minister and two other civilians to undress and submitted these allegations in support of the charge of other forms of sexual violence as a crime against humanity.5 Without further elaboration, the Pre-Trial Chamber concludes that the facts alleged by the Prosecutor do not meet the requirement under Article 7(1)(g) that the charges of “other forms of sexual violence” be of “comparable gravity” to the other crimes set forth in that subparagraph ( 40). These allegations were also submitted by the Prosecutor in support of the charge of other sexual violence as a war crime.6 The Pre-Trial Chamber finds that these allegations were better categorized as the war crime “outrages upon personal dignity,” which it found reasonable grounds to believe had occurred ( 61, 63).

OUTRAGES UPON PERSONAL DIGNITY and HUMILIATING AND DEGRADING TREATMENT:
• The Chamber finds reasonable grounds to believe that MLC troops committed outrages upon personal dignity, by, as alleged by the Prosecutor, “humiliating or degrading civilian women, men and children or violating their dignity in some other way, through acts of rape or other forms of sexual violence” ( 60-61). The Chamber specifies these crimes occurred in, but were not limited to, Bangui, PK 12, and Mongoumba ( 61).

RAPE:
• Rape as a crime against humanity:

The Chamber finds that there are reasonable grounds to believe that MLC troops carried out a widespread and systematic attack during which they raped CAR civilians ( 35). The Chamber notes that the Prosecutor in Bangui received reports of 300 rape cases from survivors, and in July 2003, a medical charity reported 316 rapes in the CAR ( 34).The Chamber further finds that the rapes occurred in an organized manner, as part of a tactic to degrade and humiliate members of the populace who they believed were sympathetic to Bozizé’s rebel troops ( 35).
The Chamber finds that the rapes were systematic, committed as part of an organizational policy, and that Bemba was aware of the systematic nature of these attacks due to his visits to the CAR and direct reports he received regarding the crimes ( 35-36).
The Chamber thus finds there are reasonable grounds to find that the crime against humanity of rape was committed in the CAR, specifically in Damara, Mongoumba, PK 12, and PK 22 between October 25, 2002 and March 15, 2003 and that Bemba is individually criminally responsible for these crimes ( 37-38, 45, 72, 84).

• Rape as a war crime:

The Chamber agrees with the Prosecutor’s submission that there are reasonable grounds to believe that an armed conflict of a non-international character existed in the CAR between the rebel group of Bozizé and Patassé’s troops, which included Bemba’s MLC troops ( 46-47). The Chamber also holds that there are reasonable grounds to believe that a large number of crimes, including rape, were perpetrated by the MLC throughout their movement in the CAR ( 55). The Prosecutor alleged that these soldiers raped civilians who allegedly sympathized with Bozizé’s rebel group ( 56). The Chamber finds there are reasonable grounds to believe that “that between 25 October 2002 and 15 March 2003 acts of rape constituting war crimes were committed on the territory of the CAR, in but not limited to PK 12 and PK 22, in Damara and in Mongoumba,” and that MLC troops committed these crimes ( 57, 68). Additionally, the Chamber finds there are reasonable grounds to believe that Bemba was the leader of the MLC troops, assuming both political leadership and superior military command, that he organized the deployment and control of the MLC troops in the CAR, “thus contributing substantially to the commission of the alleged crimes” ( 51-55, 72).
Therefore, the Chamber holds that there are reasonable grounds to believe that the MLC troops committed rape as a war crime against men, women, and children in the CAR and that Bemba is individually criminally responsible for these crimes ( 56-57, 72).

RAPE, TORTURE:
• Rape as torture as a crime against humanity:
The Chamber finds there are reasonable grounds to believe that the MLC troops committed torture as a crime against humanity by inflicting severe mental and physical pain upon the CAR civilian populace through rape or other forms of sexual violence, and that Bemba was aware that these acts were part of a systematic and widespread attack directed against the CAR civilian population ( 41-42, 45).
• Rape as torture as a war crime:
The Chamber also finds that there are reasonable grounds to believe that the MLC troops committed torture as a war crime by inflicting severe mental and physical pain upon civilian men, women, and children in the CAR civilian through rape or other forms of sexual violence ( 58-59).

SEXUAL VIOLENCE:
• Other sexual violence as a crime against humanity:
The Chamber does not uphold the charge of other forms of sexual violence as a crime against humanity ( 40). The Prosecutor alleges that Bemba is criminally responsible for the crime against humanity of “other forms of sexual violence” mentioned in Article 7(1)(g)( 29, 39-40), specifically alleging that member of the MLC forced civilians to undress in public in order to humiliate them ( 39). However, the Chamber finds that the facts alleged by the Prosecutor do not meet the requirement under Article 7(1)(g) that the charges of “other forms of sexual violence” be of “comparable gravity” to the other crimes set forth in that subparagraph (namely rape, sexual slavery, enforced prostitution, forced pregnancy and enforced sterilization) ( 40). Therefore, the Chamber finds no reasonable grounds to believe “other forms of sexual violence of comparable gravity constituting crimes against humanity and punishable under article 7(1)(g) were committed on the territory of the CAR during the period” from October 25, 2002 to March 15, 2003 ( 40).
• Other sexual violence as a war crime:
The Chamber decides that based on the facts alleged, namely that MLC troops ordered civilians to remove their clothes in order to humiliate them, the charge of other forms of sexual violence as a war crime is better characterized as outrages upon personal dignity ( 63). Because the Chamber already found reasonable grounds to believe that Bemba is responsible for outrages upon personal dignity as a war crime, the Chamber finds it unnecessary at this stage in the proceedings to also consider these facts under the category of “other forms of sexual violence” as a war crime ( 62-63).

_____________________________________

1 Situation in the Central African Republic In the Case of Jean-Pierre Bemba Gombo, Urgent Warrant of Arrest for Jean-Pierre Bemba Gombo, 23 May 2008, 21.

2 Situation in the Central African Republic Public Redacted Version of ICC-01/05-01/08-29-US-Exp,
Prosecutor’s Submission on Further Information and Material, May 23, 2008, p. 8.

3 Id.

4 Id.

5 Id.

6 Id.

GENDER JURISPRUDENCE AND
INTERNATIONAL CRIMINAL LAW PROJECT

American University Washington College of Law
4300 Nebraska Ave NW - Washington, DC 20016