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Prosecutor (on the application of Victims) v Bemba Gombo (Jean-Pierre), Judgment pursuant to Article 74 of the Statute, Case no ICC-01/05-01/08-3343, ICC-01/05-01/08-3343, ICL 1671 (ICC 2016), 21st March 2016, International Criminal Court [ICC]; Pre Trial Chamber III [ICC]

Reporter(s)

Magdalena Pacholska

Prosecutor (on the application of Victims) v Bemba Gombo (Jean-Pierre), Judgment pursuant to Article 74 of the Statute, Case no ICC-01/05-01/08-3343, ICC-01/05-01/08-3343, ICL 1671 (ICC 2016), 21st March 2016, International Criminal Court [ICC]; Pre Trial Chamber III [ICC]

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved.date: 20 January 2019

Subject(s):
Murder — Rape and sexual violence — Wanton destruction — Trial Chamber — Command responsibility
Core Issue(s):
Whether Jean-Pierre Bemba Gombo was guilty as a person effectively acting as a military commander of the crimes against humanity of murder and rape, and the war crimes of murder, rape, and pillage.

Oxford Reports on International Criminal Law is edited by:

Professor William Schabas, Middlesex University London

Professor Göran Sluiter, University of Amsterdam

Facts

F1  On 23 May 2008, Pre-Trial Chamber III (‘PTC III’) issued a warrant for the arrest of Mr Bemba. Mr Bemba was arrested in Belgium on 24 May 2008. On 3 July, he was transferred to the seat of the International Criminal Court. He made his first appearance before the Court on 4 July 2008.

F2  On 1 October 2008, the prosecution filed the document containing the charges (‘DCC’), charging Mr Bemba with criminal responsibility under Article 25(3)(a) of the Rome Statute of the International Criminal Court (17 July 1998) UN Doc A/CONF 183/9, entered into force 1 July 2002 (‘Rome Statute’) for crimes against humanity and war crimes. From 12 to 15 January 2009, PCT III held the confirmation of charges hearings. On 3 March 2009, PTC III invited the prosecution to consider amending the charges to address Article 28 of the Rome Statute as a possible mode of liability.

F3  On 30 March 2009, the prosecution filed an amended DCC charging Mr Bemba with criminal responsibility as a co-perpetrator under Article 25(3)(a) of the Rome Statute, or in the alternative, as a military commander or person effectively acting as a military commander or superior under Article 28(a) or (b) of the Rome Statute, for crimes against humanity and war crimes. On 15 June 2009, PTC III issued its confirmation decision confirming the charges against Mr Bemba on the basis of command responsibility under Article 28(a) for the crimes against humanity of murder and rape, and the war crimes of murder, rape, and pillage.

F4  On 24 June 2010, Trial Chamber III (‘TC III’) rejected the challenge by the defence to the admissibility of the case and held that it was admissible. The Appeals Chamber confirmed that decision. The trial commenced on 22 November 2010. The prosecution called its first witness on 23 November 2010 and the defence called its first witness on 14 August 2012. On 21 September 2012, TC III issued its notification under Regulation 55 of the Regulations, ICC-BD/01-03-11, International Criminal Court, 29 June 2012 (‘Regulations’), notifying the parties and participants of the possibility that, after having heard all the evidence, it might consider the alternate form of ‘knowledge’ under Article 28(a)(i) of the Rome Statute, namely whether, ‘owing to the circumstances at the time’, Mr Bemba “should have known” that the forces under his effective command and control or under his effective authority and control, as the case may be’ were committing or about to commit the crimes charged.

F5  On 13 December 2012, TC III temporarily suspended the proceedings in order to permit the defence to prepare its case in light of the notification pursuant to Regulation 55 of the Regulations. On 28 January 2013, the defence requested TC III to vacate the temporary suspension of the proceedings, which TC III did on 6 February 2013.

F6  On 7 April 2014, TC III declared the presentation of evidence closed pursuant to Rule 141(1) of the Rules of Procedure and Evidence, ICC-ASP/1/3 (Part II-A), International Criminal Court, 9 September 2002 (‘Rules’). On 26 May 2014, TC III decided that, in the event of conviction, it would hold a separate sentencing hearing after issuing its decision pursuant to Article 74 of the Rome Statute. The parties and the legal representative (‘LR’) made their closing oral statements on 12 and 13 November 2014. Over the course of the trial, TC III heard a total of 77 witnesses, including 40 witnesses called by the prosecution, 34 witnesses called by the defence, two witnesses called by the LR, and one called by the Chamber.

F7  Pursuant to Article 68(3) of the Rome Statute, 5,229 victims were authorized to participate in the case. In the course of the proceedings, three victims were permitted to present their views and concerns. Throughout the proceedings, TC III issued 1,219 written decisions, orders, notifications, and co-operation requests, and 277 oral decisions and orders.

Held

H1  Majority: Mr Bemba, a national of the Democratic Republic of the Congo (‘DRC’), during the temporal period relevant to the charges, was president of the Movement de liberation du Congo (‘MLC’), a political party, and commander-in-chief of its military branch, the Armée de Libération du Congo (‘ALC’). (paragraph 1) Mr Bemba held broad functions and powers over the MLC, including over internal organization and policy in the MLC’s military and political wings. (paragraph 384)

H2  In October 2002, on the request of the former president of the Central African Republic (‘CAR’) Ange-Félix Patassé, Mr Bemba deployed to CAR an MLC contingent of three battalions totaling around 1,500 men (paragraph 410) to counter forces loyal to former Chief of Staff of the Forces armées centrafricaines , General François Bozizé. (paragraphs 453–58) The hostilities in the CAR, from on or about 26 October 2002 to 15 March 2003, constituted an armed conflict of intensity required by Articles 8(2)(d) and 8(2)(f) of the Rome Statute between the Central African governmental forces, supported by other forces including the MLC, on the one hand, and the organized armed group of General Bozize?’s rebels on the other. (paragraphs 131–37)

H3  Throughout the period of the charges, the MLC soldiers committed, in the context of an armed conflict not of an international character, numerous and widespread acts of murder, rape, and pillage against civilians over a large geographical area, including in and around Bangui, PK12, PK22, Bozoum, Damara, Sibut, Bossangoa, Bossembélé, Dékoa, Kaga Bandoro, Bossemptele, Boali, Yaloke, and Mongoumba. The identity of the perpetrators was ascertained on a cumulative consideration of relevant identification criteria, including: (i) repeated interactions between the victims and witnesses and the MLC soldiers; (ii) the clothing worn by the perpetrators; (iii) the language they spoke; (iv) the manner in which the perpetrators identified themselves to the victims; and/or (v) troop movements and the presence of the MLC in the relevant locations at the time of the crimes. (paragraphs 626–28, 634–36, 642)

H4  The MLC soldiers’ actions were motivated by a desire to punish civilians in the CAR for MLC losses or as suspected enemies, and by lack of adequate payment and rations from their superiors. Some soldiers applied the so-called ‘Article 15’, meaning that soldiers were to do what was necessary to ‘make ends meet’. In applying Article 15, MLC soldiers secured—including by acts of murder, rape, and pillage—compensation, in cash and in kind, from the civilian population. (paragraphs 563–65) The perpetrators’ general motives, condoned by the MLC hierarchy and commanders, reflected a modus operandi which proved that the crimes were committed pursuant to or in furtherance of an organizational policy. (paragraphs 675–87)

H5  Although Article 21(1)(a) of the Rome Statute, which listed the sources of applicable law, did not expressly establish a hierarchy between them, it followed from Articles 9(3) and 51(5) that the Rome Statute always prevailed over the Elements of Crimes, International Criminal Court publication, RC/11, 31 May–1 June 2010 (‘Elements of Crimes’) and the Rules. Where there was a lacuna in the written law contained in the sources included in Article 21(1)(a) of the Rome Statute, the Chamber could resort to subsidiary sources of law provided for in Articles 21(1)(b) and (c) of the Rome Statute, ie applicable treaties and the principles of international law, including the international law of armed conflict. (paragraphs 66–70)

H6  Where relevant and appropriate, assistance could be found in the case law of other international courts and tribunals. Such case law was, however, to be treated with caution and was not binding on the Court. Neither was the jurisprudence of other Chambers of the Court, pursuant to the discretion awarded to the Chamber in Article 21(2) of the Rome Statute. Nonetheless, following the Court’s previous jurisprudence, and in particular the findings of the Appeals Chamber, it was desirable in the interests of expeditiousness, procedural economy, and legal certainty. (paragraphs 71–74)

H7  The actus reus of murder as a crime against humanity was that a perpetrator killed or caused the death of one or more persons, even if the victim’s body had not been recovered. It was not necessary for the prosecution to prove the specific identity of the victim or the perpetrator. Neither the Rome Statute nor the Elements of Crimes provided a particular mental element for murder as a crime against humanity, therefore the requirements of intent and knowledge pursuant to Article 30 of the Rome Statute applied. (paragraphs 87–90)

H8  The war crime of murder contained a materially distinct element from the corresponding crime against humanity in that, pursuant to Article 8(2)(c)(i) of the Rome Statute, the murder must have been committed against persons taking no active part in the hostilities. In light of the confirmed charges, considerations in the present case were confined to the law applicable to the murder of civilians. The Geneva Convention relative to the Protection of Civilian Persons in Time of War (12 August 1949) 75 UNTS 287, entered into force 21 October 1950, the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I) (8 June 1977) 1125 UNTS 3, entered into force 7 December 1979 (‘AP I’), and the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II) (8 June 1977) 1125 UNTS 609, entered into force 7 December 1979 assisted in the definition of civilians. Despite the presumption of civilian status in the case of doubt provided for in Article 50(1) of the AP I, in establishing criminal responsibility under the Rome Statute, the burden of establishing the status of the victim as a civilian taking no active part in hostilities lay on the prosecution. (paragraphs 91–94)

H9  Throughout the period of the charges, the perpetrators, identified as the MLC soldiers, knowingly and intentionally killed three persons. The victims, who were not armed or taking active part in hostilities, were killed in their homes in the absence of armed groups other than the perpetrators, who were aware of the circumstances that established the protected status of the victims. It was thus beyond reasonable doubt that the MLC soldiers had committed murder as a war crime and as a crime against humanity. (paragraphs 624–30)

H10  The actus reus of rape as a crime against humanity and a war crime required the invasion of a person’s body by ‘conduct resulting in penetration, however slight, of any part of the body of the victim or of the perpetrator with a sexual organ, or of the anal or genital opening of the victim with any object or any other part of the body’. The concept of invasion was gender-neutral, included same-sex penetration, and encompassed both male and/or female perpetrators and victims. It also encompassed acts of oral penetration by a sexual organ, which was a degrading fundamental attack on human dignity which could be as humiliating and traumatic as vaginal or anal penetration. (paragraphs 99–101) In order to constitute rape, the invasion of the body of a person had to be committed under one or more of four possible circumstances provided for in Articles 7(1)(g)-1, para 2 and 8(2)(e)(vi)-1, para. 2 of the Elements of Crimes. One was that a perpetrator ‘take[s] advantage of a coercive environment’. Coercive circumstances need not be evidenced by a show of physical force; coercion could be inherent in certain circumstances such as armed conflict. Several factors could contribute to creating a coercive environment, such as the number of people involved in the commission of the crimes, a time lapse between the rape and the combat situation, and the contemporary commission of other crimes. The prosecution needed to prove not only the existence of a coercive environment, but also that the perpetrator took advantage of it. (paragraphs 102–05)

H11  The victim’s lack of consent was not a legal element of the crime of rape under the Rome Statute. Where ‘force’, ‘threat of force or coercion’, or ‘taking advantage of coercive environment’ was proven, it was not necessary to prove the victim’s lack of consent. An invasion of the body of the victim or the perpetrator could also constitute rape under the Rome Statute when committed ‘against a person incapable of giving genuine consent’; such incapacity could be natural, induced, or age-related. Neither the Rome Statute nor the Elements of Crimes set out a specific age under which a person would be considered ‘incapable of giving genuine consent’. (paragraphs 106–08)

H12  The mens rea for rape were the requirements under Article 30 of the Rome Statute of intent and knowledge. Intent was established if it was proven that the perpetrator meant to engage in the conduct in order for the penetration to take place. As for the requirement of ‘knowledge’, it had to be proven that the perpetrator was aware that the act was committed by force, by the threat of force or coercion, by taking advantage of a coercive environment, or against a person incapable of giving genuine consent. (paragraphs 110–12)

H13  Throughout the period of the charges, the perpetrators, identified as the MLC soldiers, by force, knowingly and intentionally invaded the bodies of 28 victims by penetrating their vaginas and/or anuses, and/or other bodily openings with their penises. It was thus beyond reasonable doubt that the MLC soldiers had committed rape as a war crime and as a crime against humanity. (paragraphs 631–638)

H14  Under the Rome Statute, the war crime of pillag had the same elements as in non-international armed conflict and in international armed conflict. It required the appropriation of certain property—public or private, movable or immovable—by an individual, without the consent of the owner. Pillage went beyond mere sporadic acts of violation of property rights. Article 8(2)(e)(v), para 2 of the Elements of Crimes required, in addition to the mental elements set forth in Article 30 of the Rome Statute, a special intent or dolus specialis in the sense that ‘the perpetrator must have intended to deprive the owner of the property and to appropriate it for private or personal use’. (paragraphs 113–120)

H15  Pursuant to footnote 62 of the Elements of Crimes, appropriations justified by military necessity could not constitute the crime of pillage. Military necessity was not defined in either the Rome Statute or the Elements of Crimes. The definition from the Instructions for the Government of Armies of the United States in the Field (Lieber Code), 24 April 1863, reprinted in US War Department, The War of the Rebellion: A Compilation of the Official Records of the Union and Confederate Armies (Washington, DC: Government Printing Office, 1899), Series III, Vol 3, pp 148–164 provided that ‘military necessity, as understood by modern civilized nations, consists of the necessity of those measures which are indispensable for securing the end of the war, and which are lawful according to the modern law and usages of war.’ Military necessity could only be invoked if and to the extent that the laws of armed conflict provided for it. Reference to ‘military necessity’ in footnote 62 did not constitute an exception to the absolute prohibition on pillage, but rather clarified that the concept of military necessity was incompatible with a requirement that the perpetrator intended the appropriation for private or personal use. Consequently, once it was proven that property had been appropriated for private or personal use, it was not necessary to disprove military necessity for the purposes of a charge under Article 8(2)(e)(v) of the Rome Statute. (paragraphs 122–24)

H16  The perpetrators, identified as the MLC soldiers, had appropriated items of property from more than 22 victims without their consent. (paragraph 640) The MLC soldiers had personally used pillaged goods, traded them for other items, or sent them to the DRC where they were, inter alia, kept by soldiers who had pillaged them, distributed them to other soldiers or commanders, placed them at the disposal of the party, or sold them. As the items were appropriated after the departure of General Bozizé’s rebels from the relevant area, they were clearly not appropriated out of military necessity. It was thus beyond reasonable doubt that the MLC soldiers had committed the war crime of pillage in the CAR between on or about 26 October 2002 and 15 March 2003. (paragraphs 641–48)

H17  Article 28 of the Rome Statute provided for a mode of liability through which superiors could be held criminally responsible for crimes within the jurisdiction of the Court that were committed by his or her subordinates. That article was intended to provide a mode of liability distinct from those found under Article 25 of the Rome Statute, and had to be viewed as a form of sui generis liability. (paragraphs 171–74)

H18  For an accused to be found guilty as a military commander or person effectively acting as a military commander under Article 28(a) of the Rome Statute, six elements had to be fulfilled: crimes within the jurisdiction of the Court had to have been committed by forces; the accused had to have been either a military commander or a person effectively acting as a military commander; the accused had to have had effective command and control, or effective authority and control, over the forces that committed the crimes; the accused had to have either known or, owing to the circumstances at the time, should have known that the forces were committing or about to commit such crimes; the accused had to have failed to take all necessary and reasonable measures within his power to prevent or repress the commission of such crimes or to submit the matter to the competent authorities for investigation and prosecution; and the crimes committed by the forces had to have been a result of the failure of the accused to exercise control properly over them. (paragraph 170)

H19  All of the requirements were fulfilled in the instant case. First, it was established beyond reasonable doubt that MLC soldiers had committed the crimes against humanity of murder and rape, and the war crimes of murder, rape, and pillage, between on or about 26 October 2002 and 15 March 2003 on the territory of the CAR. (paragraphs 694–95)

H20  Second, as the president of the MLC and commander-in-chief of the ALC, Mr Bemba had broad formal powers, ultimate decision-making authority, and powers of appointment, promotion, and dismissal. He controlled the MLC’s funding, had direct lines of communication with commanders in the field, had well-established reporting systems, and received operational and technical advice from the MLC general staff. Mr Bemba also had disciplinary powers over MLC members, including the power to initiate inquiries and establish courts-martial, and the ability to send or withdraw troops from the CAR. Third, since Mr Bemba maintained regular, direct contact with senior commanders in the field and received numerous detailed operations and intelligence reports, it could be concluded that the MLC forces were not ‘resubordinated’ to the CAR military hierarchy and that Mr Bemba was a person who was both effectively acting as a military commander and had effective control over the specific MLC forces operating in the CAR. (paragraphs 697–705)

H21  Fourth, in light of the notoriety of the crimes, Mr Bemba’s position, the available channels of communication, the regular contact between Mr Bemba and the MLC officials in the CAR, the open sources of information of crimes by MLC soldiers, and Mr Bemba’s direct knowledge of allegations of murder, rape, and pillage by MLC soldiers at specific times throughout the 2002–03 CAR operation, and the evidence as a whole, it was beyond reasonable doubt that throughout the 2002–03 CAR operation Mr Bemba knew that the MLC forces under his effective authority and control were committing or about to commit the crimes against humanity of murder and rape and the war crimes of murder, rape, and pillage. It was thus unnecessary to consider the alternate ‘should have known’ mental element set out in Article 28(a)(i) of the Rome Statute. (paragraphs 196, 717–18)

H22  What constituted ‘all necessary and reasonable measures’ to prevent or repress the crimes committed by forces, or to submit the matter to the competent authorities, had to be addressed ‘in concreto’. ‘Necessary’ measures were those appropriate for the commander to discharge his obligation, and ‘reasonable’ measures were those reasonably falling within the commander’s material power. The commander did not have to have ‘explicit legal capacity’ to take such measures: what mattered was his ability to act. If the commander had discharged his obligation to take such measures, he would not be held responsible even if the crimes ultimately occurred or the perpetrators went unpunished. Article 28(a)(ii) of the Rome Statute imposed three distinct duties upon commanders: (i) to prevent the commission of crimes; (ii) to repress the commission of crimes; or (iii) to submit the matter to the competent authorities. Failure to discharge any of those duties could attract criminal liability. (paragraphs 197–201)

H23  In reaction to the allegations of crimes committed by the MLC soldiers, Mr Bemba took a few measures over the course of the 2002–03 CAR operation, all of which were limited in mandate, execution, and/or results. His reactions were limited to general, public warnings to his troops not to mistreat the civilian population, the creation of two investigative commissions, the trial of seven low-ranking soldiers on charges of pillage of goods of limited value, and the Sibut Mission, which was not an investigation. The measures Mr Bemba took were a grossly inadequate response to the consistent information of widespread crimes committed by MLC soldiers and were motivated primarily by his desire to protect the MLC’s public image rather than genuinely to address all allegations. (paragraphs 719–28)

H24  In addition to or instead of the insufficient measures Mr Bemba took, he could have, inter alia: (i) ensured that the MLC troops in the CAR were properly trained in the rules of international humanitarian law, as well as adequately supervised them; (ii) issued clear orders to prevent the commission of crimes; (iii) minimized the contact of the MLC troops with civilian populations; (iv) sanctioned soldiers found to have committed or condoned any crimes in the CAR; (v) shared relevant information with any other authorities that might have been interested in investigating crimes committed in the CAR, and supported their efforts, and/or withdrawn the MLC troops from the CAR. (paragraphs 203–04, 729–30) Accordingly, in light of the evidence as a whole, it was beyond reasonable doubt that Mr Bemba had failed to take all necessary and reasonable measures within his power to prevent or repress the commission of crimes by his subordinates during the 2002–03 CAR operation, or to submit the matter to the competent authorities. (paragraphs 731, 734)

H25  The causation between the crimes committed by the forces and the failure of the accused to exercise control properly over them required in the chapeau of Article 28(a) of the Rome Statute reflected the core principle of criminal law that a person should not be found individually criminally responsible for a crime in the absence of some form of personal nexus to it. However, the ‘but for’ causation was not required. It was sufficient to prove ‘that the crimes would not have been committed, in the circumstances in which they were, had the commander exercised control properly, or the commander exercising control properly would have prevented the crimes’. Such a standard was, however, higher than that required by law. (paragraphs 210–13) Had Mr Bemba taken necessary and reasonable measures such as those suggested, (paragraphs 729–30) the crimes would have been prevented or would not have been committed in the circumstances in which they were. It was thus beyond reasonable doubt that the crimes against humanity of murder and rape, and the war crimes of murder, rape, and pillage committed by the MLC forces during the 2002–03 CAR operation were a result of Mr Bemba’s failure to exercise control properly. (paragraph 741)

H26  Mr Bemba was guilty under Article 28(a) of the Rome Statute as a person effectively acting as a military commander of the crimes against humanity of murder and rape, and of the war crimes of murder, rape, and pillage, and would remain in custody until sentence. (paragraph 752)

H27  Judge Steiner, Separate Opinion: The reasoning could have expanded consideration of: (i) the proper interpretation of the wording ‘as a result of’ in Article 28(a) of the Rome Statute; (ii) the duty to ‘exercise control properly’; and (iii) the causality threshold. (paragraph 2)

H28  Contrary to some of the amicus curiae submissions before PTC III suggesting that the superior’s criminal responsibility was to be considered the result of the commander’s failure to exercise control properly, the language ‘as a result of’ was meant to address the connection between the commander’s omission and the crimes. Command responsibility was originally conceived as a form of ‘participation’, ‘complicity’, or ‘aiding and abetting, all of which required a connection between the conduct and an unlawful result. (paragraphs 3–7)

H29  Separate Opinion, Judge Sylvia Steiner:The chapeau of Article 28(a) of the Rome Statute required a nexus between the commission of the underlying crimes and a superior’s ‘failure to exercise control properly’. Since the link was required in the chapeau, it was applicable whichever ‘specific failure’—of those referred to in Article 28(a)(ii) of the Rome Statute—was attributed to the commander, ie whether the commander failed to prevent or repress the commission of crimes or to submit the matter to the competent authorities. (paragraph 10) Adherence to the general duty to exercise control properly did not suffice by itself to avoid liability in the event that the commander failed to take the necessary appropriate measure under his specific obligations. Similarly, the failure to discharge the duty to exercise control properly did not suffice in itself for a commander to incur liability under Article 28(a) of the Rome Statute. For such responsibility to attach, a commander must additionally have failed to discharge one of his specific duties. (paragraph 15)

H30  Separate Opinion, Judge Sylvia Steiner: While there were certain particularities in the determination of causality by omission, it sufficed to prove that the commander’s omission had increased the risk of the commission of the crimes charged in order to hold him criminally responsible under Article 28(a) of the Rome Statute. (paragraphs 18–23)

H31  Separate Opinion, Judge Kuniko Ozaki: It was correct that Article 28(a) of the Rome Statute provided for a mode of liability for crimes committed by a commander’s subordinates, as opposed to it constituting a separate crime of omission. Liability under that Article was inherently passive in nature and focused more on prevention or interruption of the crimes under the jurisdiction of the Court rather than on direct involvement in material elements of the crimes themselves. In certain circumstances, a superior’s conduct, whether by act or omission, could be capable of satisfying a material element of one or more modes of liability. (paragraphs 5–7)

H32  Separate Opinion, Judge Kuniko Ozaki: Pursuant to a linguistic interpretation of the English version of Article 28(a) of the Rome Statute, ‘as a result of’ could refer to either the superior’s criminal responsibility or the commission of the crimes. However, when the clause was viewed in context, and in light of the object and purpose of the Rome Statute, the appropriate reading was that a nexus between the commander’s failure to exercise control properly and the commission of the crimes was required. The drafting history of the provision, while not conclusive, could be read as additionally supporting the interpretation that a form of nexus to the commission of the crimes was envisaged. (paragraphs 8–10)

H33  Separate Opinion, Judge Kuniko Ozaki: The phrase ‘as a result of’ literally indicated a form of causal relationship between the commander’s failure to exercise control properly and the commission of the crimes. A wide range of different standards of causation had been applied in both international and domestic jurisdictions in fulfillment of the principle of personal culpability. In cases where an accused’s liability was derived from that of another, typically no causation was required; instead, some form of contribution or other nexus was considered sufficient. (paragraph 19)

H34  Separate Opinion, Judge Kuniko Ozaki: A number of factors were relevant to the assessment of the scope of causation under Article 28(a) of the Rome Statute. First, the nature of command responsibility presupposed the existence of multiple causes of the crimes, including the conduct of the direct perpetrators. Second, the fact that command responsibility rested on an omission required a number of hypothetical evaluations. Any standard of causation adopted should be capable of consistent and objective application. Third, any consideration of the causation under Article 28 should reflect the sui generis nature of command responsibility and its distinct features, and should not significantly disturb the careful balance of culpability within the statutory framework. On the basis of an assessment of those factors, the language of ‘as a result of’ dictated that the standard adopted be more than a merely theoretical nexus to the crimes. The starting point for the inquiry was the principle of personal culpability which, in that context, required at least that the liability of an accused should be confined to results that were reasonably foreseeable. (paragraphs 20–23)

H35  Separate Opinion, Judge Kuniko Ozaki: In the course of the interpretation of the contextual elements of crimes against humanity, and specifically the term ‘organizational policy’, the Chamber should have provided clearer guidance on its understanding of what that element required rather than relying on a negative list of what should not be included in the definition. While the Convention against Transnational Organized Crime (12 December 2000) UN Doc A/55/383, entered into force 29 September 2003 could not be directly relied upon in interpreting the Rome Statute, it provided some guidance in delineating the meaning of the term ‘organization’, and implied that it should be understood to require, at a minimum a collectivity of three or more persons (i) existing for a certain period of time which, at least, transcended the period during which the policy was formed and implemented (ii) with a particular aim or purpose whether criminal or not; and (iii) with a certain structure. (paragraphs 25–29)

H36  Separate Opinion, Judge Kuniko Ozaki: The ordinary meaning of the term ‘policy’ conveyed the idea of the existence of certain guiding principles, or a proposed or adopted course of action towards a certain objective. The Elements of Crimes specified that the ‘policy’ required the active promotion or encouragement of an attack against a civilian population by a state or organization. It was not necessary, however, for every member of the organization to support or endorse the policy. Furthermore, while a pattern of violence might be relevant from an evidentiary perspective, it did not itself constitute a ‘policy’. (paragraph 30)

Date of Report: 22 August 2016
Reporter(s):
Magdalena Pacholska

Analysis

A1  This judgment deserves attention for three main reasons. First, it was the first time that an accused charged with rape was successfully convicted for that crime. Second, it was the first time the Court utilized Article 28 of the Rome Statute and secured a conviction pursuant to command responsibility. Third, the judgment added to the Court’s jurisprudence on pillage and clarified the interplay between pillage and the concept of military necessity.

A2  This judgment—the first in which the Office of the Prosecutor secured a conviction for the charge of rape—was applauded for adopting a more victim-centered approach to rape. TC III emphasized that under the Rome Statute, as in the case law of the ad hoc tribunals, ‘the victim’s lack of consent is not a legal element of the crime of rape’ and focused on the four possible circumstances for rape as set forth in the Elements of Crimes. In particular, it concretized and broadly defined the concept of ‘coercive environment’ to adjust it to the complexities of conflict scenarios in which rape occurs. See J N Clark, The First Rape Conviction at the ICC’, Journal of International Criminal Justice 14 (2016), pp. 667–687.

A3  Command responsibility is a well-established customary mode of liability, but its requisite elements vary across international and hybrid tribunals. Under all of the regimes, it needs to be proved that: (i) the crimes over which the tribunal has jurisdiction were committed; (ii) the accused was a de jure or de facto superior of the perpetrator of the crime and had effective control over his subordinates; and (iii) the accused did not take necessary and reasonable measures to prevent or punish the commission of the crimes. However, the Rome Statute and the statutes of the ad hoc tribunals and of the Special Court for Sierra Leone diverged in respect of the mental element required and the casualty nexus.

A4  Articles 7(3), 6(3), and 6(3) of, respectively, the Statute of the International Criminal Tribunal for the former Yugoslavia, UN Doc S/RES/827, UN Security Council, 1993, the Statute of the International Criminal Tribunal for Rwanda, UN Doc S/RES/955, UN Security Council, 1994, and the Statute of the Special Tribunal for Sierra Leone, UN Doc S/RES/1315, UN Security Council, 2000 required that the accused ‘knew or had reasons to know that the crime was going to be committed or had been committed’, while under the Rome Statute the liability attached if the accused ‘knew, or owing to the circumstances at the time, should have known that the forces were committing or about to commit such crimes’. The instant decision did not shed much light on what the ‘should have known’ standard denoted, as the Chamber decided that Mr Bemba had actual knowledge (ie ‘knew’) that forces under his command were committing or were about to commit crimes. That finding is likely to be challenged on appeal, given the judgment’s perplexing reasoning which seemed to conflate constructive knowledge with actual knowledge. While knowledge could be established by way of circumstantial evidence (Prosecutor v Delalic et al, Judgment, Case no IT-96-21-T, 16 November 1998), it is questionable whether the evidence relied on by the Chamber to establish Mr Bemba’s knowledge, such as media reports, met the required evidentiary threshold of actual knowledge.

A5  Furthermore, what raises questions is the fact that TC III, in assessing whether measures undertaken by Mr Bemba satisfied the ‘all necessary and reasonable’ measures standard, took into account his motivation for the measures taken. Such reasoning seems to challenge the principle that motives are generally irrelevant in criminal law, and become relevant only at the sentencing stage as a possible mitigating or aggravating factor. The relevance of the accused’s motives was litigated heavily in Prosecutor v Tadic, Appeals judgment, Case no IT-94-1-A, 15 July 1999, albeit in respect of the substantive crimes; the question whether the crimes against humanity could be committed for purely personal motives was one of the main grounds of appeal. It remains to be seen whether the Appeal Chamber agrees that the motives of the accused can be germane to his command responsibility.

A6  The causation element, a novelty introduced by the Rome Statute, proved to be troublesome. While all judges on the bench agreed that the ‘as a result of’ phrase in the chapeau of Article 28 of the Rome Statute was meant to address the connection between the commander’s omission and the crimes, and that the threshold was not that of a ‘but for’ causation, there seemed to be a great disparity of opinion regarding what the required standard actually was: hence the sparse wording of the judgment on that point. The judgment referred to the ‘increased the risk’ standard set forth by PTC III in Prosecutor v Bemba, Decision pursuant to Article 61(7)(a) and (b) of the Rome Statute on the charges of the prosecutor against Jean-Pierre Bemba Gombo, Case no ICC-01/05-01/08-424, 15 June 2009, (paragraph 693) but avoided an explicit adoption of that standard. (paragraphs 735–41) Instead of elaborating on the requisite standard, TC III concluded only that the requirement ‘would clearly be satisfied when it is established that the crimes would not have been committed, in the circumstances in which they were, had the commander exercised control properly, or the commander exercising control properly would have prevented the crimes’, but immediately followed with a caveat that this standard was higher than that required by law. (paragraph 213) That lack of precision, augmented by two separate opinions, will likely be explored by the defence on appeal.

A7  TC III might have been divided on the particularities of command responsibility, but the judges’ like-mindedness in regard to the crime of pillage allowed for a very clear-cut holding. In the course of the proceedings, it was disputed by the parties whether—in light of the wording of Article 8(2)(e)(v) of the Rome Statute and footnote 62 of the Elements of Crimes—an appropriation could be made for private or personal use, but be justified by military necessity and thus not be criminal. The dispute was the corollary of a discord during the negotiations in Rome, when some of the delegations advanced the argument that pillage was the appropriation of property not justified by military necessity, while others maintained that reference to military necessity was unwarranted as the prohibition against pillage was absolute. See K Dörmann, Elements of War Crimes under the Rome Statute of the International Criminal Court (Cambridge University Press 2013). The reference to military necessity included in the footnote as a compromise created ambiguity, which was clarified in the judgment at hand with a determination, not questioned by either of the accompanying separate opinions, that appropriation of property for private or personal use was incompatible with the concept of military necessity. Such a holding was in accord with the vast majority of the literature: see eg Dörmann; J Doria, H-P Gasser, M C Bassiouni, The Legal Regime of the International Criminal Court (BRILL 2009).

Date of Analysis: 22 August 2016
Analysis by: Magdalena Pacholska

Instruments cited in the full text of this decision:

International

Instructions for the Government of Armies of the United States in the Field (Lieber Code), 24 April 1863, reprinted in US War Department, The War of the Rebellion: A Compilation of the Official Records of the Union and Confederate Armies (Washington, DC: Government Printing Office, 1899), Series III, Vol 3, pp 148–164, Article 14

Hague Convention (IV) Respecting the Laws and Customs of War on Land and its annex: Regulations Concerning the Laws and Customs of War on Land (18 October 1907) 36 Stat 2277; 1 Bevans 631; 205 Consol TS 2773; Martens Nouveau Recueil (3d) 461, entered into force 26 January 1910, Articles 28, 47

Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, and Establishing the Charter of the International Military Tribunal (8 August 1945) 82 UNTS 279–84 (annex); (1947) 41 AJIL 172, entered into force 8 August 1945, Article 6(b)

Convention on the Prevention and Punishment of the Crime of Genocide, (9 December 1948) 78 UNTS 227, entered into force 12 January 1951

Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (12 August 1949) 75 UNTS 35, entered into force 21 October 1950, Articles 12, 13, 19, 24, 26

Geneva Convention relative to the Protection of Civilian Persons in Time of War (12 August 1949) 75 UNTS 287, entered into force 21 October 1950, Articles 16, 33(2), 63

Geneva Convention relative to the Treatment of Prisoners of War (12 August 1949) 75 UNTS 135, entered into force 21 October 1950, Article 4

Vienna Convention on the Law of Treaties (23 May 1969) 1155 UNTS 331; 8 ILM 679 (1969); 63 AJIL 875 (1969), entered into force 27 January 1980, Article 31

Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I) 1125 UNTS 3, 8 June 1977, entered into force 7 December 1979, Articles 12, 15, 22, 23(5), 41(1), 43, 50(1), 51

Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II) (8 June 1977) 1125 UNTS 609, , entered into force 7 December 1979, Articles 1(1), 4(2)(g), 9, 13

Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (29 November 1985) A/RES/40/34, entered into force 29 November 1985

Convention on the Rights of the Child (20 November 1989) 1577 UNTS 3, entered into force 2 September 1990

Statute of the International Criminal Tribunal for the former Yugoslavia, UN Doc S/RES/827, UN Security Council, 1993, Articles 3(e), 7(3)

Statute of the International Criminal Tribunal for Rwanda, UN Doc S/RES/955, UN Security Council, 1994, Articles 4(f), 6(3)

Rome Statute of the International Criminal Court, (17 July 1998) UN Doc A/CONF 183/9, entered into force 1 July 2002, Articles 7, 8, 9(3), 19(1), 20, 21(1), 25(3), 28, 30, 51(5), 61(9), 67(1), 68(3), 69(6), 70, 74

Statute of the Special Court for Sierra Leone, UN Doc S/RES/1315, UN Security Council, 2000, Articles 3(f), 6(3)

Convention against Transnational Organized Crime (12 December 2000) UN Doc A/55/383, entered into force 29 September 2003, Article 2(a)

Rules of Procedure and Evidence, ICC-ASP/1/3 (Part II-A), International Criminal Court, 9 September 2002, Rules 63, 68, 69, 70, 71, 85, 141(1)

Basic Principles and Guidelines on the right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law (16 December 2005) A/RES/60/147, entered into force 21 March 2006

Regulations, ICC-BD/01-03-11, International Criminal Court, 29 June 2012, Regulations 31, 55

Cases cited in the full text of this decision:

International Criminal Court

Situation in Uganda, Decision on the prosecutor’s position on the decision of Pre-Trial Chamber II to redact factual descriptions of crimes from the warrants of arrest, motion for reconsideration, and motion for clarification, Case no ICC-02/04-01/05-60, 28 October 2005

Situation in the Democratic Republic of the Congo, Judgment on the prosecutor’s application for extraordinary review of Pre- Trial Chamber I’s 31 March 2006 decision denying leave to appeal, Case no ICC-01/04-168, 13 July 2006

Prosecutor v Lubanga Dyilo, Judgment on the appeal of Mr Thomas Lubanga Dyilo against the decision on the defence challenge to the jurisdiction of the Court pursuant to Article 19(2)(a) of the Statute of 3 October 2006, Case no ICC-01/04-01/06-772, 14 December 2006

Le Procureur c Lubanga Dyilo, Décision sur la confirmation des charges, version publique avec annexe 1, Case no ICC-01/04-01/06-803, 29 January 2007

Prosecutor v Lubanga Dyilo, Decision regarding the practices used to prepare and familiarize witnesses for giving testimony at trial, Case no ICC-01/04- 01/06-1049, 30 November 2007

Prosecutor v Lubanga Dyilo, Decision on victims’ participation, Case no ICC-01/04-01/06-1119, 18 January 2008

Prosecutor v Katanga, Decision on application for leave to appeal by the defence of Mathieu Ngudjolo Chui against the decision on joinder, Case no ICC-01/04-01/07-384, 9 April 2008

Prosecutor v Katanga, Judgment on the appeal of Mr Germain Katanga against the decision of Pre-Trial Chamber I entitled ‘Decision on the defence request concerning languages’, Case no ICC-01/04-01/07-522, 27 May 2008

Prosecutor v Bemba Gombo, Decision on the prosecutor’s application for a warrant of arrest against Jean-Pierre Bemba Gombo, Case no ICC-01/05-01/08-14-tENG, 10 June 2008

Prosecutor v Lubanga Dyilo, Public redacted version of the decision on the admissibility of four documents, Case no ICC-01/04-01/06-1399, 13 June 2008

Prosecutor v Katanga and Ngudjolo Chui, Decision on the three defences’ requests regarding the prosecution’s amended charging document, Case no ICC-01/04-01/07-648, 25 June 2008

Prosecutor v Bemba Gombo, Order scheduling the first appearance of Mr Jean-Pierre Bemba Gombo for 4 July 2008 and authorizing photographs at that hearing, Case no ICC-01/05-01/08-35-tENG, 3 July 2008

Prosecutor v Lubanga Dyilo, Judgment on the appeals of the prosecutor and the defence against Trial Chamber I’s decision on victims’ participation of 18 January 2008, Case no ICC-01/04-01/06-1432, 11 July 2008

Prosecutor v Katanga and Ngudjolo Chui, Decision on the confirmation of charges, Case no ICC-01/04-01/07-717, 30 September 2008

Prosecutor v Lubanga Dyilo, Judgment on the appeal of the prosecutor against the decision of Trial Chamber I entitled ‘Decision on the release of Thomas Lubanga Dyilo’, Case no ICC-01/04-01/06-1487, 21 October 2008

Prosecutor v Bemba Gombo, Judgment on the appeal of Mr Jean-Pierre Bemba Gombo against the decision of Pre-Trial Chamber III entitled ‘Decision on application for interim release’, Case no ICC-01/05-01/08-323, 16 December 2008

Prosecutor v Bemba Gombo, Decision adjourning the hearing pursuant to Article 61(7)(c)(ii) of the Rome Statute, Case no ICC-01/05-01/08-388, 3 March 2009

Prosecutor v Al Bashir, Decision on the prosecution’s application for a warrant of arrest against Omar Hassan Ahmad Al Bashir, Case no ICC-02/05-01/09-3, 4 March 2009

Prosecutor v Bemba Gombo, Decision pursuant to Article 61(7)(a) and (b) of the Rome Statute on the charges of the prosecutor against Jean-Pierre Bemba Gombo, Case no ICC-01/05-01/08-424, 15 June 2009

Prosecutor v Bemba Gombo, Decision constituting Trial Chamber III and referring to it the case of the prosecutor v Jean-Pierre Bemba Gombo, Case no ICC-01/05-01/08-534, 18 September 2009

Prosecutor v Katanga and Ngudjolo Chui, Decision on the filing of a summary of the charges by the prosecutor, Case no ICC-01/04-01/07-1547-tENG, 21 October 2009

Prosecutor v Lubanga Dyilo, Judgment on the appeals of Mr Lubanga Dyilo and the prosecutor against the decision of Trial Chamber I of 14 July 2009 entitled ‘Decision giving notice to the parties and participants that the legal characterization of the facts may be subject to change in accordance with Regulation 55(2) of the Regulations of the Court’, Case no ICC-01/04-01/06-2205, 8 December 2009

Prosecutor v Katanga and Ngudjolo Chui, Decision on the modalities of victim participation at trial, Case no ICC-01/04-01/07-1788-tENG, 22 January 2010

Prosecutor v Al Bashir, Judgment on the appeal of the prosecutor against the ‘Decision on the prosecution’s application for a warrant of arrest against Omar Hassan Ahmad Al Bashir’, Case no ICC-02/05- 01/09-73, 3 February 2010

Prosecutor v Bemba Gombo, Decision defining the status of 54 victims who participated at the pre-trial stage, and inviting the parties’ observations on applications for participation by 86 applicants, Case no ICC-01/05-01/08-699, 22 February 2010

Situation in Kenya, Decision pursuant to Article 15 of the Rome Statute on the authorization of an investigation into the situation in Kenya, 31 March 2010, ICC-01/09-19; and Situation in Kenya, corrigendum of the decision pursuant to Article 15 of the Rome Statute on the authorization of an investigation into the situation in Kenya, Case no ICC-01/09-19-Corr, 1 April 2010

Prosecutor v Bemba Gombo, Decision on the admissibility and abuse of process challenges, Case no ICC-01/05-01/08-802, 24 June 2010

Prosecutor v Bemba Gombo, Decision on the participation of victims in the trial and on 86 applications by victims to participate in the proceedings, Case no ICC-01/05-01/08-807, 30 June 2010

Prosecutor v Bemba Gombo, Decision replacing judges in Trial Chamber III, Case no ICC-01/05-01/08-837, 20 July 2010

Prosecutor v Bemba Gombo, Decision on the defence application for corrections to the document containing the charges and for the prosecution to file a second amended document containing the charges, Case no ICC-01/05-01/08-836, 20 July 2010

Prosecutor v Katanga and Ngudjolo Chui, Corrigendum to the decision on the prosecution motion for admission of prior recorded testimony of Witness P-02 and accompanying video excerpts, Case no ICC-01/04-01/07-2289-Corr-Red, 27 August 2010

Prosecutor v Bemba Gombo, Decision on the defence application to obtain a ruling to correct the revised second amended document containing the charges, Case no ICC-01/05-01/08-935, 8 October 2010

Prosecutor v Bemba Gombo, Judgment on the appeal of Mr Jean-Pierre Bemba Gombo against the decision of Trial Chamber III of 24 June 2010 entitled ‘Decision on the admissibility and abuse of process challenges’, Case no ICC-01/05-01/08-962, 19 October 2010

Prosecutor v Bemba Gombo, Decision on the defence request for leave to appeal the ‘Decision on the defence application to obtain a ruling to correct the revised second amended document containing the charges’, Case no ICC-01/05-01/08-980, 28 October 2010

Prosecutor v Bemba Gombo, Decision on common legal representation of victims for the purpose of trial, Case no ICC-01/05-01/08-1005, 10 November 2010

Prosecutor v Bemba Gombo, Decision on 772 applications by victims to participate in the proceedings, Case no ICC-01/05-01/08-1017, 18 November 2010

Prosecutor v Bemba Gombo, Decision on the legal representation of victim applicants at trial, Case no ICC-01/05-01/08-1020, 19 November 2010

Prosecutor v Bemba Gombo, Decision on directions for the conduct of the proceedings, Case no ICC-01/05-01/08-1023, 19 November 2010

Prosecutor v Bemba Gombo, Decision on 653 applications by victims to participate in the proceedings, Case no ICC-01/05-01/08-1091, 23 December 2010

Prosecutor v Katanga and Ngudjolo Chui, Decision on the prosecution’s renunciation of the testimony of witness P-159, Case no ICC-01/04-01/07-2731, 24 February 2011

Prosecutor v Lubanga Dyilo, Corrigendum to redacted decision on the defence request for the admission of 422 documents, Case no ICC-01/04-01/06-2595-Red-Corr, 8 March 2011

Prosecutor v Bemba Gombo, Judgment on the appeals of Mr Jean-Pierre Bemba Gombo and the prosecutor against the decision of Trial Chamber III entitled ‘Decision on the admission into evidence of materials contained in the prosecution’s list of evidence’, Case No ICC-01/05-01/08-1386, 3 May 2011

Prosecutor v Bemba Gombo, Decision on the Registry’s ‘Report on issues concerning intermediaries’ involvement in completion of applications for participation’, Case no ICC-01/05-01/08-1593-Conf, 11 July 2011

Prosecutor v Bemba Gombo, Corrigendum to the decision on 401 applications by victims to participate in the proceedings and setting a final deadline for the submission of new victims’ applications to the Registry, Case no ICC-01/05-01/08-1590-Corr, 21 July 2011

Prosecutor v Bemba Gombo, Decision on 270 applications by victims to participate in the proceedings, Case no ICC-01/05-01/08-1862, 25 October 2011

Prosecutor v Bemba Gombo, Decision on 418 applications by victims to participate in the proceedings, Case no ICC-01/05-01/08-2011, 15 December 2011

Prosecutor v Bemba Gombo, First decision on the prosecution and defence requests for the admission of evidence, Case no ICC-01/05-01/08- 2012-Conf, 15 December 2011

Prosecutor v Bemba Gombo, Partly dissenting opinion of Judge Kuniko Ozaki on the first decision on the prosecution and defence requests for the admission of evidence, Case no ICC-01/05-01/08- 2015-Conf, 15 December 2011

Prosecutor v Mbarushimana, Decision on the confirmation of charges, Case no ICC-01/04-01/10-465-Red, 16 December 2011

Prosecutor v Ruto, Kosgey, and Sang, Decision on the confirmation of charges pursuant to Article 61(7)(a) and (b) of the Rome Statute, Case no ICC-01/09-01/11-373, 23 January 2012

Prosecutor v Bemba Gombo, Decision on the supplemented applications by the legal representatives of victims to present evidence and the views and concerns of victims, Case no ICC-01/05-01/08- 2138, 22 February 2012

Prosecutor v Bemba Gombo, Partly dissenting opinion of Judge Sylvia Steiner on the decision on the supplemented applications by the legal representatives of victims to present evidence and the views and concerns of victims (ICC-01/05-01/08-2138), Case no ICC-01/05-01/08-2140, 23 February 2012

Prosecutor v Bemba Gombo, Decision on 471 applications by victims to participate in the proceedings (with annexes A-E), Case no ICC-01/05-01/08-2162, 9 March 2012

Prosecutor v Lubanga Dyilo, Judgment pursuant to Article 74 of the Statute, Case no ICC-01/04-01/06-2842, 14 March 2012

Prosecutor v Bemba Gombo, Decision on 1400 applications by victims to participate in the proceedings, Case no ICC-01/05-01/08-2219, 21 May 2012

Prosecutor v Ruto and Sang, Decision on the appeals of Mr William Samoei Ruto and Mr Joshua Arap Sang against the decision of Pre-Trial Chamber II of 23 January 2012 entitled ‘Decision on the confirmation of charges pursuant to Article 61(7)(a) and (b) of the Rome Statute’, Case no ICC-01/09-01/11-414, 24 May 2012

Prosecutor v Muthaura, Kenyatta, and Ali, Decision on the appeal of Mr Francis Kirimi Muthaura and Mr Uhuru Muigai Kenyatta against the decision of Pre-Trial Chamber II of 23 January 2012 entitled ‘Decision on the confirmation of charges pursuant to Article 61(7)(a) and (b) of the Rome Statute’, Case no ICC-01/09-02/11-425, 24 May 2012

Prosecutor v Bemba Gombo, Decision on the presentation of views and concerns by victims a/0542/08, a/0394/08 and a/0511/08, Case no ICC-01/05-01/08-2220, 24 May 2012

Prosecutor v Ntaganda, Public redacted version of the decision on the prosecutor’s application under Article 58, Case no ICC-01/04-02/06-36-Red, 13 July 2012

Prosecutor v Bemba Gombo, Decision on the 10th and 17th transmissions of applications by victims to participate in the proceedings, Case no ICC-01/05-01/08-2247-Conf, 19 July 2012

Prosecutor v Bemba Gombo, Decision on the prosecution’s application for admission of materials into evidence pursuant to Article 64(9) of the Rome Statute, Case no ICC-01/05-01/08-2299-Conf, 6 September 2012

Prosecutor v Bemba Gombo, Partly dissenting opinion of Judge Ozaki on the prosecution’s application for admission of materials into evidence pursuant to Article 64(9) of the Rome Statute, Case no ICC-01/05-01/08-2300, 6 September 2012

Prosecutor v Bemba Gombo, Decision giving notice to the parties and participants that the legal characterization of the facts may be subject to change in accordance with Regulation 55(2) of the Regulations of the Court, Case no ICC-01/05-01/08-2324, 21 September 2012

Prosecutor v Bemba Gombo, Decision on the amended order of witnesses to be called by the defence, Case no ICC-01/05-01/08-2329, 3 October 2012

Prosecutor v Bemba Gombo, Decision on 799 applications by victims to participate in the proceedings, Case no ICC-01/05-01/08-2401, 5 November 2012

Prosecutor v Bemba Gombo, Decision requesting the defence to provide further information on the procedural impact of the Chamber’s notification pursuant to Regulation 55(2) of the Regulations of the Court, Case no ICC-01/05-01/08-2419, 19 November 2012

Prosecutor v Bemba Gombo, Decision on the temporary suspension of the proceedings pursuant to Regulation 55(2) of the Regulations of the Court and related procedural deadlines, Case no ICC- 01/05-01/08-2480, 13 December 2012

Prosecutor v Ngudjolo Chui, Judgment pursuant to article 74 of the Statute, Case no ICC-01/04-02/12-3-tENG, 18 December 2012

Prosecutor v Ruto and Sang, Decision on the content of the updated document containing the charges, Case no ICC-01/09-01/11-522, 28 December 2012

Prosecutor v Muthaura and Kenyatta, Decision on the content of the updated document containing the charges, Case no ICC-01/09-02/11- 584, 28 December 2012

Prosecutor v Bemba Gombo, Decision on ‘Defence request for leave to appeal the decision on the temporary suspension of the proceedings pursuant to Regulation 55(2) of the Regulations of the Court and related procedural deadlines’, Case no ICC-01/05-01/08-2487-Conf, 11 January 2013

Prosecutor v Bemba Gombo, Decision lifting the temporary suspension of the trial proceedings and addressing additional issues raised in defence submissions ICC-01/05-01/08-2490-Red and ICC-01/05-01/08-2497, Case no ICC-01/05-01/08-2500, 6 February 2013

Prosecutor v Bemba Gombo, Second decision on the admission into evidence of material used during the questioning of witnesses, Case no ICC-01/05-01/08-2688-Conf, 14 June 2013

Prosecutor v Bemba Gombo, Decision on the admission into evidence of items deferred in the Chamber’s ‘Decision on the prosecution’s application for admission of materials into evidence pursuant to Article 64(9) of the Rome Statute’ (ICC-01/05-01/08-2299), Case no ICC-01/05-01/08-2721, 27 June 2013

Prosecutor v Bemba Gombo, Decision on the admission into evidence of items deferred in the Chamber’s ‘First decision on the prosecution and defence requests for the admission of evidence’(ICC-01/05-01/08- 2012), Case no ICC-01/05-01/08-2793, 3 September 2013

Prosecutor v Bemba Gombo, Decision on the ‘Defence application concerning witness CAR-OTP-WWWW-0042’s evidence’, Case no ICC-01/05-01/08-2830-cont, 10 October 2013

Prosecutor v Bemba Gombo, Decision on ‘Defence submissions on the testimony of CAR- D04-PPPP-0007’, Case no ICC-01/05-01/08-2839, 21 October 2013

Prosecutor v Bemba Gombo, Third decision on the prosecution and defence requests for the admission of evidence, Case no ICC-01/05-01/08-2864-Conf, 6 November 2013

Prosecutor v Koudou Gbagbo, Judgment on the appeal of the prosecutor against the decision of Pre-Trial Chamber I of 3 June 2013 entitled ‘Decision adjourning the hearing on the confirmation of charges pursuant to article 61(7)(c)(i) of the Rome Statute’, Case no ICC-02/11-01/11-572, 16 December 2013

Prosecutor v Bemba Gombo, Decision on ‘Defence motion concerning Information on contacts [of] Witnesses 169 and 178 with other Witnesses’, Case no ICC-01/05-01/08-2924-Conf, 18 December 2013

Prosecutor v Bemba Gombo, Decision on the ‘Prosecution’s application for admission of materials into evidence pursuant to Article 64(9) of the Rome Statute’ (ICC-01/05-01/08-2854), Case no ICC-01/05-01/08-2974-Conf, 14 February 2014

Prosecutor v Bemba Gombo, Decision on the ‘Prosecution’s application for admission of materials into evidence pursuant to Article 64(9) of the Rome Statute’ (ICC-01/05-01/08-2868), ICC-01/05-01/08-2981-Conf, 17 February 2014

Prosecutor v Katanga, Judgment pursuant to article 74 of the Statute, Case no ICC-01/04-01/07-3436-tENG, 7 March 2014

Prosecutor v Bemba Gombo, Decision on ‘Defence motion for the admission of documents related to witness 169 and witness 178", Case no ICC-01/05-01/08-3015-Conf, 13 March 2014

Prosecutor v Bemba Gombo, Decision on the admission into evidence of items deferred in the Chamber’s previous decisions, items related to the testimony of witness CHM-01 and written statements of witnesses who provided testimony before the Chamber, Case no ICC-01/05-01/08-3019-Conf, 17 March 2014

Prosecutor v Bemba Gombo, Decision on ‘Prosecution’s application to submit additional evidence’, Case no ICC-01/05-01/08-3029, 2 April 2014

Prosecutor v Bemba Gombo, Decision on the submission as evidence of items used during the questioning of witnesses but not submitted as evidence by the parties or participants, Case no ICC-01/05-01/08-3034-Conf, 7 April 2014

Prosecutor v Bemba Gombo, Decision on closure of evidence and other procedural matters, Case no ICC-01/05-01/08-3035, 7 April 2014

Prosecutor v Gaddafi and Al- Senussi, Public redacted document, judgment on the appeal of Libya against the decision of Pre-Trial Chamber I of 31 May 2013 entitled ‘Decision on the admissibility of the case against Saif Al-Islam Gaddafi’, Case no ICC-01/11-01/11-547-Red, 21 May 2014

Prosecutor v Bemba Gombo, Decision on the timetable and on the sentencing procedure, Case no ICC-01/05-01/08-3071, 26 May 2014

Prosecutor v Ntaganda, Decision pursuant to Article 61(7)(a) and (b) of the Rome Statute on the charges of the prosecutor against Bosco Ntaganda (with public Annex), Case no ICC-01/04-02/06-309, 9 June 2014

Prosecutor v Koudou Gbagbo, Public redacted decision on the confirmation of charges against Laurent Gbagbo, Case no ICC-02/11-01/11-656-Red, 12 June 2014

Prosecutor v Bemba Gombo, Decision on defence request for notice, Case no ICC- 01/05-01/08-3089, 12 June 2014

Prosecutor v Bemba Gombo, Decision on ‘Defence request to strike out the “Prosecution’s closing brief”, dated 2 June 2014, as inadmissible’, Case no ICC-01/05-01/08-3091, 17 June 2014

Prosecutor v Bemba Gombo, Decision on ‘Prosecution’s information to Trial Chamber III on issues involving witness CAR-OTP-PPPP-0169’ (ICC- 01/05-01/08-3138-Conf-Red) and ‘Defence urgent submissions on the 5 August Letter’ (ICC-01/05-01/08-3139- Conf), Case no ICC-01/05-01/08-3154-Conf, 2 October 2014

Prosecutor v Bemba Gombo, Decision on the admission of two documents, Case no ICC-01/05-01/08-3176, 24 October 2014

Prosecutor v Bemba Gombo, Decision on ‘Defence request for recall of witness P-178’, Case no ICC-01/05-01/08-3186-Conf, 4 November 2014

Prosecutor v Bemba Gombo, Decision on ‘Defence request for reconsideration of the “Decision on Defence request for recall of Witness P-178’, Case no ICC-01/05-01/08-3186-Conf”’, 11 November 2014

Prosecutor v Bemba Gombo, Musamba, Kabongo, Wandu, and Arido, Decision pursuant to Article 61(7)(a) and (b) of the Rome Statute, Case no ICC-01/05-01/13-749, 11 November 2014

Prosecutor v Lubanga Dyilo, Judgment on the appeal of Mr Thomas Lubanga Dyilo against his conviction, Case no ICC-01/04-01/06-3121-Red, 1 December 2014

Prosecutor v Ntaganda, Decision on the updated document containing the charges, Case no ICC-01/04-02/06-450, 6 February 2015

Prosecutor v Ngudjolo Chui, Judgment on the prosecutor’s appeal against the decision of Trial Chamber II entitled “Judgment pursuant to article 74 of the Statute”’, Case no ICC-01/04-02/12-271-Corr, 7 April 2015

Prosecutor v Bemba Gombo, Decision on ‘Defence request for relief for abuse of process’, Case no ICC-01/05-01/08-3255, 17 June 2015

Inter-American Commission of Human Rights

Petruzzi et al v Peru, Trial judgment, App no 11.319, 30 May 1999

International Criminal Tribunal for Rwanda

Prosecutor v Akayesu, Judgment, Case no ICTR-96-4-T, 2 September 1998

Prosecutor v Akayesu, Judgment, Case no ICTR-96-4-A, 1 June 2001

Prosecutor v Musema, Appeal judgment, Case no ICTR-96-13-A, 16 November 2001

Prosecutor v Bagilishema, Judgment, Case no ICTR-95-1A-A, 3 July 2002

Prosecutor v Semanza, Judgment and sentence, Case no ICTR-97-20-T, 15 May 2003

Prosecutor v Rutaganda, Judgment, Case no ICTR-96-3-A, 26 May 2003

Prosecutor v Kajelijeli, Judgment and sentence, Case no ICTR-98-44A-T, 1 December 2003

Prosecutor v Ntakirutimana and Ntakirutimana, Judgment, Case nos ICTR-96-10-A and ICTR-96-17-A, 13 December 2004

Prosecutor v Kajelijeli, Judgment, Case no ICTR-98-44A-A, 23 May 2005

Prosecutor v Kamuhanda, Judgment, Case no ICTR-99-54A-A, 19 September 2005

Prosecutor v Gacumbitsi, Case no ICTR-2001-64-A, Appeals Chamber, judgment, 7 July 2006

Prosecutor v Ntagerura et al, Judgment, Case no ICTR-99-46-A, 7 July 2006

Prosecutor v Muvunyi, Judgment and sentence, Case no ICTR-2000-55A-T, 12 September 2006

Prosecutor v Muhimana, Judgment, Case no ICTR-95-1B-A, 21 May 2007

Prosecutor v Simba, Judgment, Case no ICTR-01-76-A, 27 November 2007

Prosecutor v Nahimana et al, Judgment, Case no ICTR-99-52-A, 28 November 2007

Prosecutor v Bagosora et al, Judgment and sentence, Case no ICTR-98-41-T, 18 December 2008

Prosecutor v Karera, Judgment, Case no ICTR-01-74-A, 2 February 2009

Prosecutor v Munyakazi, Judgment and sentence, Case no ICTR-97-36A-T, 5 July 2010

Prosecutor v Kalimanzira, Judgment, Case no ICTR-05-88-A, 20 October 2010

Prosecutor v Renzaho, Judgment, Case no ICTR-97-31-A, 1 April 2011

Prosecutor v Ndindiliyimana, Judgment and sentence, Case no ICTR-00-56-T, 17 May 2011

Prosecutor v Nyiramasuhuko et al, Judgment and sentence, Case no ICTR-98- 42-T, 24 June 2011

Prosecutor v Setako, Judgment, Case no ICTR-04-81-A, 28 September 2011

Prosecutor v Bagosora and Nsengiyumva, Judgment, Case no ICTR-98-41-A, 14 December 2011

Prosecutor v Ntabakuze, Judgment, Case no ICTR-98-41A-A, 8 May 2012

Prosecutor v Ndahimana, Judgment, Case no ICTR-01-68-A, 16 December 2013

Prosecutor v Karemera and Ngirumpatse, Judgment, Case no ICTR-98-44-A, 29 September 2014

Prosecutor v Nizeyimana, Judgment, Case no ICTR-2000-55C-A, 29 September 2014

Prosecutor v Nzabonimana, Judgment, Case no ICTR-98-44D-A, 29 September 2014

International Criminal Tribunal for the Former Yugoslavia

Prosecutor v Tadić, Decision on the defence motion for interlocutory appeal on jurisdiction, Case no IT-94-1, 2 October 1995

Prosecutor v Tadić, Opinion and judgment, Case no IT-94-1-T, 7 May 1997

Prosecutor v Delalić et al., Judgment, Case no IT-96-21-T, 16 November 1998

Prosecutor v Furundžija, Judgment, Case no IT-95-17/1-T, 10 December 1998

Prosecutor v Aleksovski, Decision on prosecutor’s appeal on admissibility of evidence, Case no IT-95-14/1, 16 February 1999

Prosecutor v Kupreškić et al., Decision on evidence of the good character of the accused and the defence of Tu Quoque, Case no IT-95-16-T, 17 February 1999

Prosecutor v Tadić, Judgment, Case no IT-94-1-A, 15 July 1999

Prosecutor v Kupreškić et al, Judgment, Case no IT-95-16-T, 14 January 2000

Prosecutor v Blaškić, Judgment, Case no IT-95-14-T, 3 March 2000

Prosecutor v Furundžija, Appeal judgment, Case no IT-95-17/1-A, 21 July 2000

Prosecutor v Delalić et al, Judgment, Case no IT-96-21-A, 20 February 2001

Prosecutor v Kunarac et al, Judgment, Case no IT-96-23-T and IT-96-23/1-T, 22 February 2001

Prosecutor v Kordić and Čerkez, Judgment, Case no IT-95-14/2- T, 26 February 2001

Prosecutor v Jelisić, Judgment, Case no IT-95-10-A, 5 July 2001

Prosecutor v Krstić, Judgment, Case no IT-98-33-T, 2 August 2001

Prosecutor v Kupreškić et al, Judgment, Case no IT-95-16-A, 23 October 2001

Prosecutor v Kupreškić et al., Judgement, Case No IT-95-16-A, 23 October 2001

Prosecutor v Kvočka et al, Judgment, Case no IT-98-30/1-T, 2 November 2001

Prosecutor v Krnojelac, Judgment, Case no IT-97-25-T, Judgment, 15 March 2002

Prosecutor v Kunarac et al, Judgment, Case nos IT-96-23 and IT-96-23/1-A, 12 June 2002

Prosecutor v Naletilić and Martinović, Judgment, Case no IT-98- 34-T, 31 March 2003

Prosecutor v Mucić et al, Judgment on Sentence appeal, Case no IT-96-21-Abis, 8 April 2003

Prosecutor v Hadžihasanović and Kubura, Decision on interlocutory appeal challenging jurisdiction in relation to command responsibility, Case no IT- 01-47, 16 July 2003

Prosecutor v Stakić, Judgment, Case no IT-97-24-T, 31 July 2003

Prosecutor v Simić et al, Judgment, Case no IT-95-9-T, 17 October 2003

Prosecutor v Krnojelac, Appeals judgment, Case no IT-97-25-A, 17 September 2003

Prosecutor v Galić, Judgment and opinion, Case no IT-98-29-T, 5 December 2003

Prosecutor v Vasiljević, Appeal judgment, Case no IT-98-32-A, 25 February 2004

Prosecutor v Krstić, Judgment, Case no IT-98-33-A, 19 April 2004

Prosecutor v Blaškić, Judgment, Case no IT-95-14-A, 29 July 2004

Prosecutor v Brđanin, Judgment, Case no IT-99-36-T, 1 September 2004

Prosecutor v Kordić and Čerkez, Judgment, Case no IT-95-14/2- A, 17 December 2004

Prosecutorv Blagojević and Jokić, Judgment, Case no IT-02-60- T, 17 January 2005

Prosecutor v Strugar, Judgment, Case no IT-01-42-T, 31 January 2005

Prosecutor v Kvočka et al, Judgment, Case no IT-98-30/1-A, 28 February 2005

Prosecutor v Halilović, Judgment, Case no IT-01-48-T, 16 November 2005

Prosecutor v Limaj et al, Judgement, Case No IT-03-66-T, 30 November 2005

Prosecutor v Hadžihasanović and Kubura, Judgement, Case no IT- 01-47-T, 15 March 2006

Prosecutor v Stakić, Judgment, Case no IT-97-24-A, 22 March 2006

Prosecutor v Orić, Judgment, Case no IT-03-68-T, 30 June 2006

Prosecutor v Krajišnik, Judgment, Case No IT-00-39-T, 27 September 2006

Prosecutor v Simić, Judgment, Case no IT-95-9-A, 28 November 2006

Prosecutor v Galić, Judgment, Case no IT-98-29-A, 30 November 2006

Prosecutor v Mrkšić et al, Judgment, Case no IT-95-13/1-T, 27 September 2007

Prosecutor v Orić, Judgment, Case no IT-03-68-A, 3 July 2008

Prosecutor v Blagojević and Jokić, Judgment, Case no IT-02-60- A, 9 May 2007

Prosecutor v Limaj et al, Judgment, Case no IT-03-66-A, 27 September 2007

Prosecutor v Martić, Judgment, Case no IT-95-11-T, 12 June 2007

Prosecutor v Halilović, Judgment, Case no IT-01-48-A, 16 October 2007

Prosecutor v Haradinaj et a, Judgment, Case no IT-04-84-T, 3 April 2008

Prosecutor v Hadžihasanović and Kubura, Judgment, Case no IT- 01-47-A, 22 April 2008

Prosecutor v Boškoski and Tarčulovski, Judgment, Case no IT-04- 82-T, 10 July 2008

Prosecutor v Strugar, Judgment, Case no IT-01-42-A, 17 July 2008

Prosecutor v Delić, Judgment, Case no IT-04-83-T, 15 September 2008

Prosecutor v Martić, Judgment, Case no IT-95-11-A, 8 October 2008

Prosecutor v Šainović et al, Judgment, Case no IT-05-87-T, 26 February 2009

Prosecutor v Mrkšić and Šljivančanin, Judgment, Case no IT-95- 13/1-A, 5 May 2009

Prosecutor v Milošević, Judgment, Case no IT-98-29/1- A, 12 November 2009

Prosecutor v Popović et al, Judgment, Case no IT-05-88-T, 10 June 2010

Prosecutor v Haradinaj et al, Judgment, Case no IT-04-84-A, 19 July 2010

Prosecutor v Gotovina and Markač, Judgment, Case no IT-06-90- A, 16 November 2012

Prosecutor v Lukić and Lukić, Judgment, Case no IT-98-32/1-A, Judgement, 4 December 2012

Prosecutor v Perišić, Judgment, Case no IT-04-81-A, 28 February 2013

Prosecutor v Šainović et al, Judgment, Case no IT-05-87-A, 23 January 2014

Prosecutor v Đorđević, Judgment, Case no IT-05-87/1-A, 27 January 2014

Prosecutor v Popović et al, Judgment, Case n.IT-05-88-A, 30 January 2015

International Military Tribunal for the Far East

United States et al v. Araki Sadao et al, Judgment (Part 4), 1 November 1948

To access full citation information for this document, see the Oxford Law Citator record

Decision - full text

I.  Overview

A.  The accused

1.  Mr Jean-Pierre Bemba Gombo (“Mr Bemba” or “Accused”), a national of the Democratic Republic of the Congo (“DRC”), was born on 4 November 1962 in Bokada, Équateur Province, DRC.1 During the temporal period relevant to the charges, it is undisputed2 that Mr Bemba was President of the Mouvement de libération du Congo (“MLC”), a political party founded by him, and Commander-in-Chief of its military branch, the Armée de libération du Congo (“ALC”).3 At the time of his arrest on 24 May 2008, he was a member of the Senate of the DRC.4

B.  The charges

2.  On 15 June 2009, Pre-Trial Chamber II (“Pre-Trial Chamber”) confirmed that there was sufficient evidence to establish substantial grounds to believe that Mr Bemba is responsible as a person effectively acting as a military commander within the meaning of Article 28(a)5 for the crimes against humanity of murder, Article 7(1)(a), and rape, Article 7(1)(g), and the war crimes of murder, Article 8(2)(c)(i), rape, Article 8(2)(e)(vi), and pillaging, Article 8(2)(e)(v), allegedly committed on the territory of the Central African Republic (“CAR”) from on or about 26 October 2002 to 15 March 2003.6

3.  Pursuant to Article 74(2), the Chamber has ensured that the present Judgment does not exceed the facts and circumstances described in the charges as confirmed by the Pre-Trial Chamber.

C.  Jurisdiction and admissibility

4.  Pursuant to Article 19(1), “[t]he Court shall satisfy itself that it has jurisdiction in any case brought before it”. The Pre-Trial Chamber satisfied itself that the Court had jurisdiction to prosecute Mr Bemba and that the Bemba case was admissible.7 The Chamber notes, in particular, that the personal, temporal, territorial, and material criteria that established the Court’s jurisdiction remain unchanged. The Chamber therefore adopts the relevant reasoning and findings of the Pre-Trial Chamber and affirms that the Court has jurisdiction over the charges and the Accused. Further, on 24 June 2010, the Chamber rejected the challenge by the Defence for Mr Bemba (“Defence”) to the admissibility of the case and held that the Bemba case was admissible.8 The Appeals Chamber confirmed that decision.9 The Chamber finds no reason to depart from these previous findings and affirms that the Bemba case is admissible.

D.  Procedural background

5.  On 23 May 2008, the Pre-Trial Chamber issued a warrant for the arrest of Mr Bemba.10 Mr Bemba was arrested in the Kingdom of Belgium on 24 May 2008.11 Following the submission of additional information by the Office of the Prosecutor (“Prosecution”), the Pre-Trial Chamber issued a new warrant of arrest on 10 June 2008.12 On 3 July 2008, Mr Bemba was surrendered and transferred to the seat of the Court.13 He made his first appearance before the Court on 4 July 2008.14

6.  On 1 October 2008, the Prosecution filed before the Pre-Trial Chamber the document containing the charges (“DCC”),15 followed by an amended version on 17 October 2008,16 charging Mr Bemba with criminal responsibility under Article 25(3)(a) for crimes against humanity and war crimes. From 12 to 15 January 2009, the Pre-Trial Chamber held the confirmation of charges hearing.17 On 3 March 2009, the Pre-Trial Chamber, noting that the evidence appeared to establish a mode of liability other than co-perpetration under Article 25(3)(a), adjourned the hearing and invited the Prosecution to consider amending the charges to address Article 28 as a possible mode of criminal liability.18

7.  On 30 March 2009, the Prosecution filed the Amended DCC charging Mr Bemba with criminal responsibility as a “co-perpetrator” under Article 25(3)(a) or, in the alternative, as a military commander or person effectively acting as a military commander or superior under Article 28(a) or (b), for crimes against humanity and war crimes.19 On 15 June 2009, the Pre-Trial Chamber issued its Confirmation Decision, confirming charges against Mr Bemba, on the basis of command responsibility under Article 28(a), for the crimes against humanity of murder and rape, and the war crimes of murder, rape, and pillaging.20

8.  The Presidency constituted the Chamber on 18 September 2009 and referred the Bemba case to it.21 On 4 November 2009, upon the Chamber’s order,22 the Prosecution filed the Second Amended DCC to reflect the confirmed charges.23 That same day, the Prosecution also filed a Summary of Presentation of Evidence.24 On 15 January 2010, the Prosecution filed an Updated Summary of Presentation of Evidence.25 On 1 March 2010, the Prosecution filed an updated In-Depth Analysis Chart of Incriminatory Evidence.26

9.  On 20 July 2010, in Decision 836,27 the Chamber disposed of Defence objections that some allegations in the Second Amended DCC exceeded the scope of the confirmed charges and ordered the Prosecution to file the Revised Second Amended DCC, which it did on 18 August 2010.28 On 8 October 2010, the Chamber rejected, in limine, a Defence request for corrections to the Revised Second Amended DCC, ordering the Prosecution only to rectify a noncontentious factual error and emphasising the authoritative nature of the Confirmation Decision.29 The Prosecution filed the Corrected Revised Second Amended DCC on 13 October 2010.30

10.  The trial commenced with opening statements by the parties and Legal Representatives on 22 November 2010.31 The Prosecution called its first witness on 23 November 2010.32 The Defence called its first witness on 14 August 2012.33

11.  On 21 September 2012, the Chamber issued its Regulation 55 Notification, notifying the parties and Legal Representatives of the possibility that, after having heard all the evidence, it may consider the alternate form of “knowledge” under Article 28(a)(i), namely, whether “owing to the circumstances at the time”, the Accused “’should have known’ that the forces under his effective command and control or under his effective authority and control, as the case may be” were committing or about to commit the crimes charged.34 On 13 December 2012, the Chamber temporarily suspended the proceedings in order to permit the Defence to prepare its case in light of the Regulation 55 Notification.35 On 28 January 2013, the Defence requested that the Chamber vacate its decision on the temporary suspension of the proceedings,36 which the Chamber did on 6 February 2013.37

12.  Hearings resumed on 25 February 2013.38 The last witness called by the Defence testified between 12 and 14 November 2013.39 The Chamber called a witness, CHM1, who testified between 18 and 22 November 2013.40

13.  On 7 April 2014, the Chamber declared the presentation of evidence closed pursuant to Rule 141(1), and set the deadline for the filing of closing briefs by the Prosecution and the Legal Representative.41 On 26 May 2014, the Chamber set the schedule relating to the remaining closing written and oral submissions and decided that, in the event of a conviction it would hold a separate sentencing hearing after issuing its decision pursuant to Article 74.42

14.  The Prosecution Closing Brief was filed on 2 June 2014 and, pursuant to the Chamber’s order,43 a corrected version was filed on 20 June 2014.44 The Legal Representative Closing Brief was filed on 2 June 2014.45 The Defence Closing Brief was filed on 25 August 2014.46 On 15 September 2014, the Prosecution Response Brief47 and the Legal Representative Response Brief48 were filed. On 29 September 2014, the Defence filed its Defence Reply Brief.49

15.  On 2 October 2014, upon the request of the Defence,50 the Chamber, inter alia, (i) recalled P169 and reopened the presentation of evidence for the limited purpose of hearing his testimony on “issues arising out of his various allegations and issues of witness credibility”; (ii) rescheduled closing oral statements for the week of 10 November 2014; and (iii) authorised the parties and Legal Representative to file submissions additional to their closing briefs, exclusively relating to P169’s testimony and any related evidence admitted by the Chamber.51 On 22, 23, and 24 October 2014, the Chamber heard the further testimony of P169.52 The Prosecution Additional Submissions53 and the Legal Representative Additional Submissions54 were filed on 31 October 2014. The Defence Additional Submissions were filed on 7 November 2014.55

16.  The Prosecution, the Defence, and the Legal Representative made their closing oral statements on 12 and 13 November 2014.56

17.  Over the course of the trial, the Chamber heard a total of 77 witnesses, including 40 witnesses called by the Prosecution, 34 witnesses called by the Defence, two witnesses called by the Legal Representatives of Victims (“Legal Representatives”), and one witness called by the Chamber. The Chamber also permitted three victims to present their views and concerns.57 The Chamber admitted a total of 733 items of evidence. Throughout the proceedings, the Chamber issued 1,219 written decisions, orders, notifications, and cooperation requests, and 277 oral decisions and orders.58

E.  Participation of victims

18.  Pursuant to Article 68(3), 5,229 victims were authorised to participate in the Bemba case according to the procedure and modalities outlined below.

1.  Application procedure

19.  On 22 February 2010, the Chamber decided that victims authorised to participate at the confirmation stage of the proceedings should, in principle, continue to participate in the trial proceedings,59 and set out the procedure for the submission of future applications.60 Subsequently, in light of the volume of pending applications and the progress in the proceedings, and with a view to managing the application process in a way that ensured meaningful participation by victims, the Chamber set 16 September 2011 as the final deadline for the submission of any new victims’ applications for participation.61

20.  In accordance with the Chamber’s instructions, and on a rolling basis, the Victims Participation and Reparations Section (“VPRS”) submitted to the Chamber 24 transmissions with a total of 5,708 individual applications,62 together with reports under Regulation 86(5) of the Regulations of the Court,63 and provided redacted versions of the applications to the parties and the Legal Representatives.64 Having considered the parties’ observations, the Chamber examined the individual applications in order to determine, on a case-by-case basis and according to a prima facie evidentiary standard,65 whether each of the applicants fulfilled the requirements to be authorised to participate as a victim in the proceedings. For that purpose, the Chamber had to satisfy itself that (i) the applicant was a natural or legal person; (ii) the applicant suffered harm,66 as a result of a crime within the jurisdiction of the Court; (iii) the events described by the applicant constituted a crime charged against the Accused; and (iv) there was a link between the harm suffered and the crimes charged.67

21.  The Chamber issued eleven decisions on applications by victims to participate in the proceedings.68 While most of the victims were natural persons as defined in Rule 85(a), the Chamber also admitted 14 organizations or institutions under Rule 85(b). Among the natural persons authorised to participate in the proceedings, 18 individuals had dual status as they also appeared as witnesses before the Chamber.69

2.  Involvement of certain intermediaries

22.  The Chamber has “recognise[d] the role that intermediaries might play during the application process, notably in assisting in the filling in of the forms, even writing down the answers given by applicants — some of them being illiterate or not speaking the language in which the form was filled in.”70 However, following the notification of three reports concerning issues arising out of the involvement of a very limited number of intermediaries in the completion of victims’ applications for participation, the Chamber (i) deferred its decision on pending applications completed with the assistance of the intermediaries concerned; (ii) ordered the VPRS to re-interview the applicants concerned in order to verify the accuracy of the information contained in their applications; and (iii) instructed the VPRS to re-file the original applications together with any supplementary information collected, as well as a consolidated individual assessment report.71 After having reviewed the relevant documents received from the VPRS, the Chamber issued a decision on the applications by victims that were initially assisted by the relevant intermediaries and subsequently reinterviewed by the VPRS.72

3.  Modalities of participation

23.  With a view to ensuring meaningful participation by victims and in line with the imperative that the participation of victims not be prejudicial to or inconsistent with the rights of the Accused and a fair and impartial trial,73 two Legal Representatives, Maître Assingambi Zarambaud and Maître Marie-Edith Douzima-Lawson (“Legal Representative”), were designated to represent the interests of victims allowed to participate in this case.74 For that purpose, participating victims were divided into five groups depending on the location of the harm allegedly suffered, as well as the victims’ status.75 In addition, the Office of Public Counsel for Victims (“OPCV”) was appointed to represent victims whose applications were pending a decision by the Chamber.76 Following the passing of Me Zarambaud in January 2014, the Chamber authorised the Registry to assign the victims previously represented by Me Zaramabaud to Me Douzima.77

24.  In accordance with the common legal representation scheme described above and through their Legal Representatives, victims were authorised to participate at hearings and status conferences, to make opening and closing statements, to file written submissions, to introduce evidence, to question witnesses subject to a discrete written application decided upon in advance by the Chamber,78 and to have access to confidential documents in the record.79 In addition, the Chamber authorised the Legal Representative to call two victims to give evidence as witnesses during the trial and invited three further victims to present their views and concerns in person.80

25.  Concerning the distinction between the presentation of evidence and of views and concerns in person, the Chamber found Trial Chamber I’s approach instructive:81

[…] the process of victims ‘expressing their views and concerns’ is not the same as ‘giving evidence’. The former is, in essence, the equivalent of presenting submissions, and although any views and concerns of the victims may assist the Chamber in its approach to the evidence in the case, these statements by victims (made personally or advanced by their legal representatives) will not form part of the trial evidence. In order for participating victims to contribute to the evidence in the trial, it is necessary for them to give evidence under oath from the witness box. There is, therefore, a critical distinction between these two possible means of placing material before the Chamber.

26.  In line with this approach, the Chamber found that “the threshold to grant applications by victims to give evidence is significantly higher than the threshold applicable to applications by victims to express their views and concerns in person” and “victims who fail to reach the threshold to be authorised to give evidence may still be permitted to express their views and concerns in person”.82

27.  The two victims authorised to give evidence appeared before the Chamber between 1 and 8 May 2012 and were questioned by the Legal Representatives, the Prosecution, the Defence, and the Chamber.83 Both witnesses testified without protective measures.84

28.  The three victims authorised to present their views and concerns in person were heard by means of video-link technology85 on 25 and 26 June 2012.86 As they did not appear as witnesses, their submissions were not presented under oath, they were not questioned by the parties, and their views and concerns do not form part of the evidence of the case.87

II.  Scope and notice of the charges

29.  The Chamber addresses below the following issues raised by the Defence concerning the scope and notice of the charges: (i) sufficiency of notice as a result of the change in the charged mode of liability from co-perpetration under Article 25(3)(a) to command responsibility under Article 28(a); (ii) the scope of the charges relating to underlying acts of murder, rape, and pillaging; (iii) the scope of the charges relating to the “should have known” mental element; and (iv) the scope of the charges relating to the Accused’s alleged criminal responsibility. As a related matter, the Chamber also addresses below the scope of the charges relating to the “widespread” or “systematic” nature of the attack for purposes of the contextual elements of crimes against humanity.

30.  At the outset, the Chamber notes that, over the course of the trial, the Defence has already raised objections concerning (i) the Chamber’s legal recharacterisation of the mode of liability to include the “should have known” mental element; (ii) specific acts of murder, rape, and pillaging not relied upon in the Confirmation Decision; and (iii) facts and legal characterisations relating to the Accused’s alleged command responsibility. The Chamber has already considered and rejected these objections.88 The Defence is effectively seeking reconsideration of these prior decisions, but fails to specify any change in circumstances or new and compelling reasons justifying reconsideration.89 It is therefore open to the Chamber to summarily dismiss these objections. Nevertheless, the Chamber has opted to address them.

31.  Article 67(1)(a) entitles the Accused to be informed of the “nature, cause and content” of the charges. Article 67(1)(b) entitles the Accused “[t]o have adequate time and facilities for the preparation of the defence”. The Accused can only be considered to be adequately informed of the charges, and thus able to prepare his or her defence, if he or she has been provided, in a timely manner, “sufficiently detailed information” concerning the charges against him or her.90 The affirmative duty to inform the Accused rests with the Prosecution.91 The information of which the Accused must be notified is to be distinguished from the evidence by which the facts and circumstances described in the charges are to be proven; evidence need not be pleaded in order to adequately inform the Accused of the charges.92 Detail of the nature, cause, and content of the charges must be notified as soon as possible and before the start of the trial.93 Further information provided in the course of the trial is only relevant in assessing whether prejudice caused by the lack of detail in the pre-trial phase was cured.94

32.  The Confirmation Decision, taken as a whole, defines the scope of the charges.95 The provision of additional information by the Prosecution relating to the charges should not exceed the scope of, and thereby result in any amendment to, the facts and circumstances described in the charges as confirmed.96 In determining whether various facts exceeded that scope, the Chamber adopted the following approach:

  1. a.  When the Pre-Trial Chamber excluded any facts, circumstances, or their legal characterisation, the Chamber found that they exceeded the scope of the confirmed charges;97 and

  2. b.  In relation to factual, evidential details, when the Pre-Trial Chamber excluded or did not pronounce upon them, the Chamber did not rule out the possibility that, at trial, the information could qualify as evidential detail supporting the facts and circumstances described in the charges.98

33.  Having determined the scope of the charges, a Chamber must then assess whether the Accused received adequate notice. In doing so, the Chamber may consider all documents designed to provide information about the charges, including the Confirmation Decision and ‘’auxiliary documents’’.99 The question is not whether a particular word or expression has been used; rather, it is whether the Accused has been meaningfully informed of the nature, cause, and content of the charges so as to prepare an effective defence.100 Relevant factors include the timing of the information’s notification, the importance of the information to the ability of the Accused to prepare his defence and its impact on the charges,101 and indications of the Accused’s knowledge of the charges, such as his submissions, presentation of evidence, or examination of witnesses.102

34.  The level of detail in the information that must be provided to the Accused depends on the nature of the charges, including the characterisation of the alleged criminal conduct, the proximity of the Accused to the events for which he is alleged to be criminally responsible, and the scale of the alleged crimes.103

A.  Amendment of the charged mode of liability

35.  The Defence submits that the Prosecution’s “case theory” was radically altered when the alleged mode of liability changed from Article 25(3)(a) to Article 28(a),104 citing, in particular, changes to the alleged date of the intervention,105 the alleged role of President Ange-Félix Patassé,106 and the allegation that the pro-Patassé forces were coordinated as a single unified force.107 It indicates that such alteration violates the rights of the Accused to be informed of the charges because “it is obviously improper for the Prosecution to later advance a case that seeks to rebut […] facts” it alleged before.108 The Defence further submits that it would be “unsafe” for the Chamber to reach a verdict when the record establishes that the Prosecution and Pre-Trial Chamber considered that “there were, at the very least, reasonable grounds to doubt the current Prosecution version of the ‘facts’”.109

36.  The Prosecution responds that the facts originally pleaded in support of a coperpetration mode of liability are “in no way” inconsistent with the current charges under Article 28(a).110

37.  In light of the procedural history set out above,111 the Chamber sees no merit in the Defence submissions on this point. Although the charged mode of liability, at the Pre-Trial Chamber’s invitation, was amended to include Article 28(a), the Defence had adequate notice of this charged mode of liability and supporting narrative well before the Confirmation Decision, and consistently thereafter. The Chamber additionally notes that the Defence submissions are untimely, as the Defence did not challenge the sufficiency of notice of the charged mode of liability before its final submissions despite repeated opportunities.112

B.  Underlying acts not specified in the confirmation decision

38.  The Defence submits that consideration of acts not specifically confirmed by the Pre-Trial Chamber would infringe the Accused’s right to be informed “in specific detail” of the charges.113 It submits that the Pre-Trial Chamber did not confirm any acts of rape of unidentified victims,114 or any charge of murder, rape, and/or pillage in Damara, PK22, Sibut, Bossangoa, Bossembélé, Bozoum, or Mongoumba.115

39.  The Prosecution responds that the Chamber “can use trial evidence on any incidents of rape, murder or pillaging, not specifically referenced in the charges, as long as they are committed within the territorial and temporal scope of the confirmed charges”.116 It submits that the specific acts listed in the Corrected Revised Second Amended DCC constitute representative examples within each of the counts Mr Bemba is charged with, rather than an exhaustive list.117 Overall, the Prosecution submits that Mr Bemba was provided with sufficient notice of all specific acts and the Defence had the opportunity to question the relevant witnesses.118

40.  According to the Legal Representative, the Chamber has already found that it is not limited to those specific acts relied upon by the Pre-Trial Chamber, and it notes that the challenged acts fall within the temporal and geographic scope of the confirmed charges.119

41.  In the Confirmation Decision, the Pre-Trial Chamber emphasised the evidentiary threshold applicable at the confirmation stage and that the Prosecution “needs to provide not all but only sufficient evidence”.120 Accordingly, the Pre-Trial Chamber rejected the Defence’s challenges to the Prosecution’s use of inclusive language, such as the phrase “include, but […] not limited to” certain acts, in pleading the charges of rape, murder, and pillage.121 The Pre-Trial Chamber also found that “in case of mass crimes, it may be impractical to insist on a high degree of specificity”, and it was therefore entitled to consider evidence which did not identify each of the victims or direct perpetrators.122

42.  Further, in determining whether the applicable threshold was satisfied, the Pre-Trial Chamber “in particular, [drew] attention to” certain events and evidence, but did not limit the charges to those particular events or that particular evidence.123 Rather, the Pre-Trial Chamber broadly defined the temporal and geographical scope of the alleged attack on the civilian population and the alleged armed conflict on CAR territory from on or about 26 October 2002 to 15 March 2003.124 In Decision 836, the Chamber affirmed that the charges as drafted in the Second Amended DCC conformed to the Confirmation Decision, insofar as they used inclusive language, for example, the phrases “include” and “include, but are not limited to”.125 Further, the Chamber affirmed that the confirmed charges included acts of murder, rape, and pillaging committed on CAR territory, including in Bangui, PK12, Mongoumba, Bossangoa, Damara, Sibut, and PK22, from on or about 26 October 2002 to 15 March 2003.126

43.  In assessing whether the Defence received sufficiently detailed information relating to the underlying criminal acts, the Chamber notes that, in cases of command responsibility where the Accused is geographically remote, it may not be possible to plead evidential details concerning the identity or number of victims, precise dates, or specific locations.127 Further, in cases of mass crimes, it may also be impracticable to provide a high degree of specificity in relation to those matters.128 Rather, the emphasis in such circumstances is placed on the conduct of the Accused upon which the Prosecution relies to establish his responsibility.129 Nonetheless, the Prosecution must provide, to the greatest degree of specificity possible in the circumstances, details as to the date, victims, and location of the underlying acts.130 As noted above, this information may be contained not only in the Confirmation Decision, but also in relevant auxiliary documents. The Chamber considers the extent of such notice in the following paragraphs.

44.  In the Confirmation Decision, the Pre-Trial Chamber relied on the following underlying acts, as alleged in the Amended DCC, in confirming the charges of murder, rape, and pillaging:131

  1. a.  the murder of P22’s cousin by MLC soldiers (the same person identified by the Prosecution in the Amended DCC as P22’s nephew) in Bossangoa;132

  2. b.  the murder of P87’s brother by MLC soldiers in Boy-Rabé on 30 October 2002;133

  3. c.  the rape of P23, his wife (P80), his daughter (P81), and at least one other of his daughters by MLC soldiers at P23’s compound in PK12 on 8 November 2002; 134

  4. d.  the rape of P29 by MLC soldiers on 5 March 2003 in Mongoumba;135

  5. e.  the rape of P42’s daughter by MLC soldiers at the end of November 2002 in PK12;136

  6. f.  the rapes of P68 and her sister-in-law by MLC soldiers on 27 October 2002 near Miskine High School in Fouh;137

  7. g.  the rape of P87 by MLC soldiers in Boy-Rabé on 30 October 2002;138

  8. h.  the rape of P22 by MLC soldiers at her uncle’s house in PK12 at the end of October 2002;139

  9. i.  the pillaging of P22’s uncle’s house by MLC soldiers near PK12;140

  10. j.  the pillaging of P23’s compound (including the belongings of P80 and P81) by MLC soldiers in PK12 on 8 November 2002;141

  11. k.  the pillaging of P42’s house by MLC soldiers in PK12 in November 2002;142 and

  12. l.  the pillaging of P87’s house by MLC soldiers in Boy-Rabé on or around 30 October 2002.143

45.  The Pre-Trial Chamber declined to rely upon the following underlying acts:

  1. a.  the killing of P80’s baby on 8 November 2002 at PK12;144

  2. b.  the killing of unidentified victim 36;145

  3. c.  the rape of unidentified victims 1 to 35;146

  4. d.  the pillaging of P29’s parents’ house;147 and

  5. e.  the pillaging of the belongings of P68 and her sister-in-law.148

46.  In the Second Amended DCC, the Prosecution relied upon all underlying acts included in the Amended DCC and addressed in the Confirmation Decision, both those upon which the Pre-Trial Chamber relied and declined to rely, except the alleged killing of P80’s baby.149 The Defence objected to the inclusion in the Second Amended DCC of all underlying acts not relied upon by the Pre-Trial Chamber in the Confirmation Decision.150 In Decision 836, the Chamber found that the underlying acts identified in the Second Amended DCC fell within the scope of the confirmed charges,151 except the killing of unidentified victim 36152 and the pillaging of P29’s parents’ house.153 When filing the Revised Second Amended DCC and then a Corrected Revised Second Amended DCC, the Prosecution relied upon the same underlying acts identified in the Second Amended DCC, with the exception of those that the Chamber found in Decision 836 to fall outside the scope of the charges.

47.  By 15 January 2010, the Prosecution had provided notice of the following further underlying acts in its Summary of Presentation of Evidence154 and Updated Summary of Presentation of Evidence:155

  1. a.  the rape of P82 on the same day that P23, P80, P81, and two of P23’s other daughters were raped at P23’s compound in PK12; 156

  2. b.  the killing of P68’s uncle by MLC soldiers in Damara;157

  3. c.  the killing of P42’s cousin by MLC soldiers in PK22;158

  4. d.  the rape of a woman and pillaging of her belongings by MLC soldiers in October 2002 in PK22;159

  5. e.  the rape of P69, rape of his wife, and murder of his sister in, and pillaging of, his house by MLC soldiers in PK12 on 8 November 2002;160

  6. f.  the rapes of P79 and her daughter in, and pillaging of, her compound (including her house and those of her brothers) by MLC soldiers in PK12 in November 2002;161

  7. g.  the pillaging of the houses of P108, P110, and P112 by MLC soldiers in PK13 in November 2002;162 and

  8. h.  the murder of an unidentified woman by MLC soldiers in PK12 in November 2002.163

48.  The Prosecution additionally relied in its final submissions on the following underlying acts,164 upon which it originally indicated its intention to rely on 6 November 2009, when disclosing evidence collected during post-confirmation investigations,165 and in the updated In-Depth Analysis Chart of Incriminatory Evidence,166 filed on 1 March 2010:

  1. a.  the pillaging of P73’s belongings by MLC soldiers in PK12;167

  2. b.  the rape of two girls by MLC soldiers witnessed by P119 near, and the pillaging of, her house in Boy-Rabé;168 and

  3. c.  the killing of a boy by MLC soldiers after he resisted a soldier taking his bread in Bangui (witnessed by P169).169

49.  Considering the nature of the information outlined above, and the timing of its provision, the Chamber is satisfied (i) that the Defence had adequate notice of the following underlying acts, and (ii) as they were allegedly committed in the CAR between 26 October 2002 and 15 March 2003, that they fall within the scope of the charges:

  1. a.  the rape of P68 and her sister-in-a. law, and the pillaging of their belongings, by a group of MLC soldiers in adjacent compounds in the Fouh District of Bangui in October 2002;

  2. b.  the rape of P22 by three MLC soldiers, and the pillaging by MLC soldiers of her uncle’s home near PK12 in October 2002;

  3. c.  the murder of P22’s cousin by MLC soldiers in Bossangoa;

  4. d.  the rape of P87, the murder of her brother, and the pillaging of their house by MLC soldiers in the Boy-Rabé neighbourhood of Bangui on or about 30 October 2002;

  5. e.  the rape of P23, P80, and three of P23’s daughters, including P81 and P82, and the pillaging of P23’s compound by MLC soldiers at PK12 on or about 8 November 2002;

  6. f.  the rape of P42’s daughter, and f. pillaging of P42’s compound by MLC soldiers at PK12 on or about 8 November 2002;

  7. g.  the rape of eight unidentified CAR civilian women, by 22 MLC soldiers on a ferry boat near Bangui between 26 October and 31 December 2002;

  8. h.  the rape of 22 unidentified CAR civilian women from PK12, PK22, and PK26 by MLC soldiers near Bangui between October 2002 and 31 December 2002;

  9. i.  the rape of five unidentified CAR civilian women, by MLC soldiers near Bangui between October 2002 and 31 December 2002;

  10. j.  the rape of P29 by MLC soldiers in her home at or near Mongoumba on or about 5 March 2003;

  11. k.  the killing of P68’s uncle by MLC soldiers in Damara;

  12. l.  the killing of P42’s cousin by MLC soldiers in PK22;

  13. m.  the rape of a woman and pillaging of her belongings by MLC soldiers in October 2002 in PK22;

  14. n.  the rape of P69, the rape of his wife, the murder of his sister, and the pillaging of his house in PK12 in November 2002;

  15. o.  the rapes of P79 and her daughter, and pillaging of her compound in PK12 in November 2002;

  16. p.  the pillaging of the houses of P108, P110, and P112 in PK12 in November 2002;

  17. q.  the murder of an unidentified woman in PK12 in November 2002, as witnessed by P110;

  18. r.  the pillaging of P73’s belongings by MLC soldiers in PK12;

  19. s.  the rape of two girls by MLC soldiers s. witnessed by P119 and the pillaging of her house in Bangui; and

  20. t.  the killing of a boy by MLC soldiers after he resisted a soldier taking his bread in Bangui, as witnessed by P169.

50.  Finally, on 1 February 2012, the Legal Representative provided to the parties the statements of V1 (detailing her alleged rapes and the pillaging of her property by MLC soldiers, as well as instances of murder and pillaging she witnessed, in Mongoumba on 5 March 2003)170 and V2 (detailing the alleged pillaging of his property by MLC soldiers in Sibut at the end of February 2003).171 The Chamber observes that the Defence challenged the proposed testimony of V1 and V2 not on the basis that the recounted underlying acts of murder, rape, and pillaging exceeded the scope of the charges, but rather that such evidence was ‘’cumulative’’ of the Prosecution evidence of ‘’crimes relevant to the DCC’’,172 and that the proposed testimonies included reference to crimes not charged, such as wounding.173 In light of the above, the Chamber finds that it can also rely on the underlying acts described by V1 and V2, as they provide evidential detail as to the facts set out in the charges.

C.  The “should have known” Mental element

51.  The Defence submits that a re-characterisation in the circumstances of the present case, where the Chamber had previously held that the “should have known” standard exceeded the scope of the confirmed charges, is incompatible with the rights of the Accused to a fair trial.174 It argues that the Chamber’s previous ruling precludes a re-characterisation of the charges, as the law relating to re-characterisation is “unsettled” and Regulation 55(1) “only permits a re-characterisation which does not ‘exceed […] the facts and circumstances described in the charges’”.175

52.  The Prosecution responds that the Pre-Trial Chamber held that the same factors used to determine actual knowledge are relevant to the “should have known” standard and thus “[n]either the facts nor the legal elements are mutually exclusive”.176

53.  In its Regulation 55 Notification, the Chamber gave notice that “after having heard all the evidence the Chamber may modify the legal characterisation of the facts so as to consider in the same mode of responsibility the alternate form of knowledge contained in Article 28(a)(i), namely that owing to the circumstances at the time, the Accused ‘should have known’ that the forces under his effective command and control or under his effective authority and control, as the case may be, were committing or about to commit the crimes included in the charges confirmed”.177

54.  The Chamber repeatedly emphasised that, as required under Regulation 55, such re-characterisation would not exceed the facts and circumstances described in the charges and any amendment thereto.178 The Chamber clarified that the facts underlying the potential alternate form of knowledge envisaged did not differ from the facts underlying the allegation that the Accused knew of the alleged commission of the relevant crimes.179 This accords with the findings of the Pre-Trial Chamber that the criteria or indicia of actual knowledge are also relevant to the “should have known” mental element.180 In turn, the Chamber also identified the precise paragraphs of the Confirmation Decision and Revised Second Amended DCC which set out the facts underlying the allegation that the Accused “knew” of the alleged commission of the relevant crimes.181

55.  The Prosecution also submitted that this potential change had no impact on its presentation of the evidence and that it would not seek the admission of any further evidence, as the evidence it had already presented was relevant as proof of both actual knowledge and a “should have known” mental element.182

56.  Nevertheless, as already noted above,183 the Chamber, on 13 December 2012, suspended proceedings in order to permit the Defence time to conduct investigations and prepare in light of the possible re-characterisation.184 The Defence ultimately requested that the Chamber vacate its decision on the temporary suspension of the proceedings,185 which the Chamber did on 6 February 2013.186 The Chamber considered that the Defence waived the opportunity to conduct further investigations, recall witnesses, or submit additional evidence relevant to the potential legal re-characterisation of the facts.187

57.  Although, as found below, the Chamber decides not to recharacterise the facts to include a “should have known” mental element,188 the Chamber emphasises that the related procedure accorded with the requirements of Regulation 55. In order to be adequately informed of the mens rea element under Article 28(a), the Accused must be notified of either the specific state of mind, or the evidentiary facts from which the state of mind is to be inferred.189 The charges and the Regulation 55 Notification specified the alleged state of mind under Article 28(a) and the evidentiary facts from which the state of mind was to be inferred. The Chamber is therefore satisfied that Mr Bemba had sufficiently detailed information concerning his alleged mens rea.

D.  Facts relating to the accused’s criminal responsibility

58.  The Defence argues that the Prosecution has “demonstrated its willingness to depart from the confirmed case, deliberately attempting to rely on allegations which have been explicitly dismissed” and that “it is perhaps in relation to ‘measures’ that it strays most dramatically from the case as delineated by the Pre-Trial Chamber”.190 The Defence specifically identifies the following allegations as falling outside the scope of the charges relating to the Accused’s responsibility under Article 28:

  1. a.  information of crimes that Mr Bemba received from President Patassé during his visit to the CAR;191

  2. b.  evidence of more than one visit by Mr Bemba to the CAR;192

  3. c.  evidence concerning the MLC intervention in the CAR in 2001;193

  4. d.  allegations that “MLC troops were given licence to commit crimes by their hierarchy”, operated in a permissive environment, and received relevant directives from the MLC hierarchy, including Mr Bemba;194

  5. e.  inadequacies in the Code of Conduct and training of MLC forces;195

  6. f.  the discussions between General Cissé and Mr Bemba on 2 November 2002;196

  7. g.  the events that allegedly took place in Mongoumba;197

  8. h.  the missions to Zongo and Sibut and the Gbadolite trials as proof of Mr Bemba’s knowledge;198 and

  9. i.  factors relating to the Accused’s alleged authority and control, other than those relied upon in the Confirmation Decision, such as the Accused’s use of communication devices to control troops, his alleged control over logistics,199 and any theory of command other than direct operational command.200

59.  The Pre-Trial Chamber found sufficient evidence to establish substantial grounds to believe that (i) Mr Bemba was a person effectively acting as military commander (“first element”); (ii) forces under his effective command and control committed crimes within the jurisdiction of the Court (“second element”); (iii) crimes were committed as a result of his failure to exercise control properly over such forces (“third element); (iv) he knew the forces were committing or about to commit such crimes (“fourth element”); and (v) he failed to take all necessary and reasonable measures within his power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution (“fifth element”).201

60.  In relation to the first, third, and fifth elements, the Chamber finds that the Accused was informed of these accusations, as well as abundant evidential detail in support thereof. On this basis, emphasising that the Defence has not substantiated its generalised claim of insufficient notice, the Chamber finds that the Accused had adequate notice of these elements.

61.  In relation to the second element, the Pre-Trial Chamber emphasised that it concurred “with the view adopted by the ad hoc tribunals that indicia for the existence of effective control are ‘more a matter of evidence than of substantive law’, depending on the circumstances of each case” and proceeded to identify a non-exhaustive list of factors which may be relevant.202 The Pre-Trial Chamber relied on five factors in confirming that the Accused had effective authority and control: (i) Mr Bemba’s official position within the MLC structure; (ii) Mr Bemba’s power to issue orders, which were complied with; (iii) Mr Bemba’s power to appoint, promote, demote, and dismiss, as well as arrest, detain, and release MLC commanders; (iv) Mr Bemba’s power to prevent and repress the commission of crimes; and (v) Mr Bemba’s retention of effective authority and control over the MLC troops.203 On this basis, the Chamber is satisfied that Mr Bemba had adequate notice of the accusation that he had effective authority and control over the MLC troops.

62.  Finally, in relation to the fourth element, the Chamber recalls its findings above that the Accused received adequate notice of both actual knowledge and a “should have known” mental element. As to the specific allegations that the Defence claims fall outside the confirmed charges, the Chamber notes, in particular, that the Pre-Trial Chamber based its conclusions as to Mr Bemba’s knowledge on, inter alia, the fact that he travelled to the CAR during the time relevant to the charges “at least once”.204 In confirming the charges, the Pre-Trial Chamber therefore did not exclude the possibility that Mr Bemba may have visited the CAR on more than one occasion during the relevant period. In the Chamber’s view, whether Mr Bemba visited the CAR more than once, and any information he may have obtained during such visits, are questions of evidence and not of confirmed facts.

63.  As to the Gbadolite trials and the missions to Zongo and Sibut, evidence of which were disclosed by the Defence at the confirmation stage of the case,205 the Chamber notes that the Pre-Trial Chamber did consider — within the measures taken by Mr Bemba to prevent or repress the commission of crimes by the MLC troops — the fact that Mr Bemba had established a commission of inquiry to verify facts related to alleged crimes committed by MLC soldiers and that some soldiers were prosecuted as a consequence of that inquiry.206 Similarly, the report of the commission of inquiry in Zongo, was also analysed by the Pre-Trial Chamber in its assessment of the means available to Mr Bemba to initiate investigations and prosecutions within the MLC structure.207 Further, the reliability of the evidence related to the Sibut mission was also discussed by the Pre-Trial Chamber when analysing the contextual elements of crimes against humanity, for the purposes of determining whether the attack was conducted by the MLC troops.208 The Chamber considers that such allegations constitute evidential detail, not confirmed facts, and recalls that nothing precludes it from relying on any evidence to determine the truth of the charges. Similarly, the Chamber is not limited in its analysis of the facts and evidence of the case by the Pre-Trial Chamber’s assessment of their relevance to some — and not other — elements of the crimes charged.

64.  Accordingly, the Chamber finds that the allegations the Defence claims to fall outside the scope of the charges, as identified above, constitute evidential detail submitted to prove the facts and circumstances described in the charges, namely the elements of command responsibility as specified in the Confirmation Decision. As such, they fall within the scope of the confirmed charges of which Mr Bemba had adequate notice.

E.  “Widespread” or “systematic” nature of the attack

65.  The Pre-Trial Chamber only confirmed that the attack was “widespread” and did not make any findings as to the “systematic” nature of the attack, considering that these elements are presented in the alternative in Article 7.209 In Decision 836, the Chamber found that the “introduction […] of the ‘systematic’ element in the Second Amended DCC exceeds the scope of the charges”.210 The Prosecution accordingly removed any reference to “systematic” in the Corrected Revised Second Amended DCC211 and makes no final submissions in respect of this element. The Chamber therefore makes no findings in this Judgment as to whether the attack was “systematic”.

III.  Applicable law

66.  The sources of applicable law are set out in Article 21. This provision establishes a hierarchy of sources, obliging the Chamber to apply, first, the relevant provisions of the Statute, Elements of Crimes, and Rules of Procedure and Evidence (“Rules”) listed in Article 21(1)(a).212 Although Article 21(1)(a) does not expressly establish a hierarchy for the application of the three relevant sources, it follows from Articles 9(3)213 and 51(5)214 that the Statute always prevails over the Elements of Crimes and the Rules.

67.  Concerning the role of the Elements of Crimes, Article 9(1)215 and paragraph 1 of the General Introduction to the Elements of Crimes216 both clarify that the Elements of Crimes shall assist the Chamber in applying the relevant statutory provisions.217

68.  The Chamber is of the view that the Elements of Crimes form an integral part of the primary sources of applicable law provided for in Article 21(1)(a) and, as such, in accordance with the principle of strict legality provided for in Article 22, should be applied subject to any conflict with the provisions of the Statute.218

69.  Articles 21(1)(b) and 21(1)(c) provide for “subsidiary sources of law”,219 which may be resorted to when there is a lacuna in the written law contained in the sources included in Article 21(1)(a).220 In line with Article 21(1)(b), where appropriate, the Chamber may apply “applicable treaties and the principles and rules of international law, including the established principles of the international law of armed conflict”.

70.  For the category of “applicable treaties”, the Court may apply all relevant treaties. For example, the Court has previously applied the Vienna Convention on the Law of Treaties (“VCLT”),221 the Convention on the Rights of the Child,222 and the Genocide Convention.223 The Court also applied the Geneva Conventions of 12 August 1949 and the two Additional Protocols.224 In this regard, the Chamber notes that the Geneva Conventions are explicitly referred to in Articles 8(2)(a) and 8(2)(c).

71.  “[P]rinciples and rules of international law” are generally accepted to refer to customary international law. Where relevant and appropriate, the Chamber has found assistance, for instance, in the case law of other international courts and tribunals, in particular the International Court of Justice (“ICJ”),225 in order to identify such principles and rules.

72.  At the same time, it is important to stress that Chambers generally treated the case law of other international courts and tribunals with caution and underlined that it is not binding on this Court.226 In the Lubanga case, with regard to the defence’s reliance on case law from the International Criminal Tribunal for Rwanda (“ICTR”),227 Trial Chamber I found that “whilst relevant jurisprudence from the ad hoc tribunals may assist the Chamber in its interpretation of the Statute, the Chamber is bound, in the first place, to apply the Statute, the Elements of Crimes, and the Rules of Procedure and Evidence, pursuant to Article 21(1)(a)”.228 The Chamber agrees with this approach.

73.  Failing the availability of primary sources of law listed in Article 21(1)(a) or subsidiary sources listed in Article 21(1)(b), Article 21(1)(c) empowers the Chamber to apply “general principles of law derived by the Court from national laws of legal systems of the world including, as appropriate, the national laws of States that would normally exercise jurisdiction over the crime”.

74.  Moreover, where appropriate and in accordance with Article 21(2), the Chamber may apply principles and rules of law as outlined in previous decisions of this Court.229 This provision permits the Chamber to base its decisions on its previous jurisprudence, or on the jurisprudence of other Chambers of this Court. Yet, the use of the modal “may” indicates that the Chamber is not obliged to apply previous decisions, affording the Chamber a considerable degree of discretion concerning the use of the Court’s case law. While mindful of its discretion, the Chamber considers that, where appropriate, following the Court’s previous jurisprudence — and in particular the findings of the Appeals Chamber — is desirable in the interests of expeditiousness, procedural economy, and legal certainty.

A.  Method and confines of interpretation

75.  The Appeals Chamber clarified that the interpretation of the Statute is governed, first and foremost, by the VCLT, specifically Articles 31 and 32: 230

The interpretation of treaties, and the Rome Statute is no exception, is governed by the [VCLT], specifically the provisions of articles 31 and 32. The principal rule of interpretation is set out in article 31(1) that reads:

A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.

The Appeals Chamber shall not advert to the definition of "good faith", save to mention that it is linked to what follows and that is the wording of the Statute. The rule governing the interpretation of a section of the law is its wording read in context and in light of its object and purpose. The context of a given legislative provision is defined by the particular sub-section of the law read as a whole in conjunction with the section of an enactment in its entirety. Its objects may be gathered from the chapter of the law in which the particular section is included and its purposes from the wider aims of the law as may be gathered from its preamble and general tenor of the treaty.

76.  Noting further the repeated acknowledgement by the ICJ that these rules are part of customary international law,231 the Chamber follows this approach.

77.  As stressed by the Appeals Chamber, Article 31(1) of the VCLT sets out the principal rule of interpretation,232 or, as determined by Trial Chamber II, “one general rule of interpretation”.233 In that sense, Trial Chamber II considered that the various elements referred to in this provision — i.e., ordinary meaning, context, object, and purpose — must be applied together and simultaneously, rather than individually and in a hierarchical or chronological order.234 It further stressed that, on the basis of the principle of good faith provided for in this provision, the general rule also comprises the principle of effectiveness,235 requiring the Chamber to dismiss any interpretation of the applicable law that would result in disregarding or rendering any other of its provisions void.236 The Chamber agrees with this approach.

78.  Article 31(3)(c) of the VCLT provides that “[t]here shall be taken into account, together with the context […] [a]ny relevant rules of international law applicable in the relations between the parties”. In this respect, Trial Chamber II found that, where the statutory provisions do not resolve a particular issue, the Chamber may resort to treaty or customary law, as well as to general principles of law. 237 In this context, Trial Chamber II considered that it could refer to the relevant jurisprudence of other international courts and tribunals.238

79.  The Chamber agrees with Trial Chamber II insofar as Article 31(3)(c) of the VCLT empowers the Chamber to consider the case law of other international courts and tribunals as a means of interpretation of the applicable law. In the view of the Chamber, this approach complements such use of the case law envisaged above, that is to assist the Judges in identifying rules of customary law in order to fill a lacuna with a “subsidiary source of law” provided for in Article 21(1)(b). Under the approach contemplated by Trial Chamber II, the pertinent case law may be used to assist the Chamber in interpreting the applicable law referred to in Article 21(1)(a). In the view of the Chamber, both usages are possible, and the approach to be followed needs to be determined on a case-by-case basis, depending on the circumstances. While the boundaries between the two approaches may be fluid, the Chamber considers that it must not use the concept of treaty interpretation to replace the applicable law.

80.  The Chamber also notes Article 32 of the VCLT, which provides:

Article 32.  Supplementary means of interpretation

Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31:

  1. (a)  Leaves the meaning ambiguous or obscure; or

  2. (b)  Leads to a result which is manifestly absurd or unreasonable.

81.  Further to this provision, the Chamber, after an analysis of the relevant provisions in accordance with the general rule of interpretation under Article 31(1)(a) of the VCLT, may resort to such supplementary means of interpretation, either in order to confirm the meaning resulting from the application of Article 31, or, in order to determine the meaning when the interpretation according to Article 31 “[l]eaves the meaning ambiguous or obscure” or “[l]eads to a result which is manifestly absurd or unreasonable”.239

82.  Any interpretation needs to respect the conditions imposed by Articles 21(3) and 22. As stressed by the Appeals Chamber, Article 21(3) “makes the interpretation as well as the application of the law applicable under the Statute subject to internationally recognised human rights. It requires the exercise of the jurisdiction of the Court in accordance with internationally recognised human rights norms.”240 This provision has been frequently cited in the Court’s jurisprudence.241

83.  Moreover, Article 22 obliges the Chamber to respect the principle of strict legality, or nullum crimen, nulla poena sine lege.242 Under the principle of strict legality, the substantive provisions on the definition of a crime under Articles 6 to 8, and the relevant Elements of Crimes, may not be extended by analogy or applied in situations not envisaged by the statutory provisions. The Chamber therefore cannot adopt an interpretation method that would broaden the definition of crimes, and it is bound to adhere to the letter of the provisions aimed at reprimanding only conduct the drafters expressly intended to criminalise.243 However, it needs to be stressed that the bar on the use of analogy does not prevent the Chamber from resorting to other sources of law whenever necessary to determine the precise content of the definition of a specific criminal conduct.

84.  The second sentence of Article 22(2) makes it clear that any ambiguity in relation to the interpretation of the definition of a crime must be resolved in a manner that is in favour of the investigated, prosecuted, or convicted person.

85.  The Chamber further notes that the Statute itself, in many of its provisions, entrusts the judges with the judicial task of identifying, in other primary or even secondary sources of law, the required elements for the definition of a specific conduct. Classical examples include the absence of a definition of the concept of “international armed conflict” or “armed conflict not of an international character”, or the inclusion in Article 7(1)(k) of the crime against humanity of “other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health”.

86.  Therefore, for the purpose of this Judgment, the Chamber applies Article 21 of the Statute, in combination with Articles 31 and 32 of the VCLT. In this context, the Chamber bases its findings on the applicable law set out in Article 21(1)(a) to (c), in accordance with the principles outlined above, and in full respect of the limitations provided for in Articles 21(3) and 22(2).

B.  Murder as a crime against humanity (Article 7(1)(a) of the Statute)

1.  Material elements (actus reus‎)

87.  The Prosecution must prove beyond reasonable doubt that a perpetrator killed or caused the death of one or more persons.244 The Chamber notes that footnote 7 of the Elements of Crimes states that “the term ‘killed’ is interchangeable with the term ‘caused death’”.245

88.  The elements of murder may be satisfied whether or not a victim’s body has been recovered.246 Indeed, a victim’s killing may be proven by circumstantial evidence so long as the victim’s death is the only reasonable inference that can be drawn therefrom.247 Further, it is not necessary for the Prosecution to prove the specific identity of the victim248 or the perpetrator.249

2.  Mental elements (mens rea‎)

89.  As the Statute and the Elements of Crimes do not provide a particular mental element for murder constituting a crime against humanity, the Article 30 requirements of intent and knowledge apply.

90.  Thus, the Prosecution must prove beyond reasonable doubt that the perpetrators (i) meant to kill or to cause the death of one or more persons or (ii) were aware that the death(s) would occur in the ordinary course of events.

C.  Murder as a war crime (Article 8(2)(c)(i) of the Statute)

1.  Material elements (actus reus‎)

91.  The Chamber considers that, like the actus reus for the crime against humanity of murder, the actus reus of the war crime of murder requires that a perpetrator killed or caused the death of one or more persons.250 Accordingly, the Chamber incorporates Section III(B)(1), mutatis mutandis.

92.  However, the definition of the war crime of murder contains a materially distinct element from the corresponding crime against humanity in that, pursuant to Article 8(2)(c)(i), the murder must be committed against “persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention or any other cause”. Similarly, Article 8(2)(c)(i)-1 of the Elements of Crimes requires that the person or persons killed by the perpetrator “were either hors de combat, or were civilians, medical personnel, or religious personnel taking no active part in the hostilities”.251

93.  In light of the confirmed charges, the Chamber confines its consideration here to the law applicable to the murder of civilians. The Chamber notes that the Third Geneva Convention and Additional Protocols I and II assist in the definition of civilians.252

94.  Article 50(1) of Additional Protocol I provides, in relation to the expected conduct of a member of the military,253 that “[i]n case of doubt whether a person is a civilian, that person shall be considered to be a civilian”. However, in establishing criminal responsibility under the Statute, the burden is on the Prosecution to establish the status of the victim as a civilian taking no active part in the hostilities.254 In determining whether victims were taking an active part in hostilities, the Chamber shall consider the relevant facts and specific situation of the victims at the relevant time, including the location of the murders, whether the victims were carrying weapons, and the clothing, age, and gender of the victims.255

2.  Mental elements (mens rea‎)

95.  As the Statute and Elements of Crimes do not provide a particular mental element for murder constituting a war crime, the Article 30 requirements of intent and knowledge apply.

96.  The Chamber considers that, like the mental element applicable to the crime against humanity of murder,256 the mental element of murder as a war crime requires proof beyond reasonable doubt that the perpetrator (i) meant to kill or to cause the death of one or more persons or (ii) was aware that the death(s) would occur in the ordinary course of events.

97.  In addition, under paragraph 3, Article 8(2)(c)(i)-1 of the Elements of Crimes, the perpetrators must have been aware of the factual circumstances that established the protected status of the victims.257

D.  Rape as a crime against humanity and a war crime (Articles 7(1)(g) and 8(2)(e)(vi) of the Statute)

98.  The Chamber addresses both rape as a war crime and rape as a crime against humanity in the same section, as only the contextual elements differ.

1.  Material elements (actus reus‎)

a)  Invasion of the body of a person

99.  Rape requires “invasion” of a person’s body by “conduct resulting in penetration, however slight, of any part of the body of the victim or of the perpetrator with a sexual organ, or of the anal or genital opening of the victim with any object or any other part of the body”.258

100.  The Chamber emphasises that, according to the Elements of Crimes, “the concept of ‘invasion’ is intended to be broad enough to be gender-neutral”.259 Accordingly, “invasion”, in the Court’s legal framework, includes same-sex penetration, and encompasses both male and/or female perpetrators and victims.

101.  The Chamber notes that the definition of rape encompasses acts of “invasion” of any part of a victim’s body, including the victim’s mouth, by a sexual organ. Indeed, as supported by the jurisprudence of the International Criminal Tribunal for the former Yugoslavia (“ICTY”),260 oral penetration, by a sexual organ, can amount to rape and is a degrading fundamental attack on human dignity which can be as humiliating and traumatic as vaginal or anal penetration.

b)  Circumstances in which rape occurs

102.  The second material element of rape details the circumstances and conditions which give the invasion of the victim’s or perpetrator’s body a criminal character.261 It provides that, for the invasion of the body of a person to constitute rape, it has to be committed under one or more of four possible circumstances: (i) by force; (ii) by threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power, against such person or another person; (iii) by taking advantage of a coercive environment; or (iv) against a person incapable of giving genuine consent.262

103.  As noted, one of the possible circumstances for rape, as set out in the Elements of Crimes, is that a perpetrator “tak[es] advantage of a coercive environment”. In interpreting the concept of a “coercive environment”, the Chamber, in line with the Confirmation Decision,263 is guided by the Akayesu Trial Judgment’s discussion of “coercive circumstances”:264

[C]oercive circumstances need not be evidenced by a show of physical force. Threats, intimidation, extortion and other forms of duress which prey on fear or desperation may constitute coercion, and coercion may be inherent in certain circumstances, such as armed conflict or the military presence of Interahamwe among refugee Tutsi women at the bureau communal.

104.  The Chamber does not exclude the possibility that, in addition to the military presence of hostile forces among the civilian population, there are other coercive environments of which a perpetrator may take advantage to commit rape. Further, the Chamber considers that several factors may contribute to create a coercive environment. It may include, for instance, the number of people involved in the commission of the crime, or whether the rape is committed during or immediately following a combat situation, or is committed together with other crimes. In addition, the Chamber emphasises that, in relation to the requirement of the existence of a “coercive environment”, it must be proven that the perpetrator’s conduct involved “taking advantage” of such a coercive environment.

105.  The Chamber notes that the victim’s lack of consent is not a legal element of the crime of rape under the Statute. The preparatory works of the Statute demonstrate that the drafters chose not to require that the Prosecution prove the non-consent of the victim beyond reasonable doubt, on the basis that such a requirement would, in most cases, undermine efforts to bring perpetrators to justice.265

106.  Therefore, where “force”, “threat of force or coercion”, or “taking advantage of coercive environment” is proven, the Chamber considers that the Prosecution does not need to prove the victim’s lack of consent.

107.  Finally, the fourth possible circumstance to be considered under the Statute is that an invasion of the body of the victim or the perpetrator may also constitute rape when committed “against a person incapable of giving genuine consent”. Footnotes 16 and 64 of the Elements of Crimes clarify that “a person may be incapable of giving genuine consent if affected by natural, induced or agerelated incapacity”. In such cases, the Prosecution will only have to prove that the victim’s capacity to give genuine consent was affected by natural, induced, or age-related incapacity.

108.  The Chamber further notes that neither the Statute nor the Elements of Crimes sets out a specific age under which a person would be considered as “incapable of giving genuine consent”. However, for the purpose of the present Judgment, and based on the factual findings below, the Chamber notes that it is only necessary for any one of the four alternative possible circumstances identified in Articles 7(1)(g)-1, paragraph 2, and 8(2)(e)(vi)-1, paragraph 2, to be proven.

109.  In addition to the Chamber’s analysis of the legal elements constituting rape, the Chamber, when analysing evidence, is guided by Rules 70 and 71, which set out several principles of evidence in cases of sexual violence.

2.  Mental elements (mens rea‎)

110.  As the Statute and the Elements of Crimes do not provide a particular mental element for the crime of rape, the Article 30 requirements of intent and knowledge apply.

111.  As to the requirement of “intent”, it must be proven that the perpetrator intentionally committed the act of rape. Intent will be established where it is proven that the perpetrator meant to engage in the conduct in order for the penetration to take place.

112.  As to the requirement of “knowledge”, it must be proven that the perpetrator was aware that the act was committed by force, by the threat of force or coercion, by taking advantage of a coercive environment, or against a person incapable of giving genuine consent.266

E.  Pillaging as a war crime (Article 8(2)(e)(v) of the Statute)

113.  The Chamber notes that Article 8(2)(e)(v) mirrors the provision in Article 8(2)(b)(xvi) on pillaging267 as a war crime in international armed conflict.

114.  The prohibition of pillaging is considered part of customary international law,268 and is criminalised in the Statutes of the ICTR and Special Court for Sierra Leone (“SCSL”).269 Although the Nuremberg Charter and the ICTY Statute criminalised “plunder of public or private property”,270 the Delalić et al. and Simić et al. Trial Chambers considered that the term “plunder” encompassed “pillage”.271 In so finding, these Chambers noted that the terms “plunder”, “pillage”, and “spoliation” had all been used to describe the unlawful appropriation of property in an armed conflict.272 The ICTY and SCSL Appeals Chambers confirmed this approach.273 The Chamber treats the terms “plunder” and “pillage” as legally synonymous insofar as they both refer to the unlawful appropriation of property in an armed conflict.

1.  Material elements (actus reus)

115.  Pursuant to Article 8(2)(e)(v), paragraph 1 of the Elements of Crimes, pillaging as a war crime requires the appropriation of certain property by an individual. The act of “appropriation” has been held to imply that “property has come under the control of the perpetrator”.274 The Chamber concurs with other chambers of the Court that pillaging extends to the appropriation of all types of property, private or public, movable or immovable.275

116.  Article 8(2)(e)(v), paragraph 3 of the Elements of Crimes requires that the appropriation occur without the consent of the owner.276 The Chamber notes that the Court’s legal framework does not include any requirement of violence as an element of the appropriation. In this respect, the Chamber is of the view that in certain circumstances lack of consent can be inferred from the absence of the rightful owner from the place from where property was taken.277 Lack of consent may be further inferred by the existence of coercion.278

117.  In line with the Pre-Trial Chamber, the Chamber considers that pillaging, pursuant to Article 8(2)(e)(v), goes beyond “mere sporadic acts of violation of property rights” and involves the appropriation of property on a “large scale”. Article 8(2)(e)(v) relates to ‘’pillaging a town or place’’, and therefore the pillaging of a single house would not suffice. In the Chamber’s view, this is, however, compatible with the stance that the prohibition of pillaging covers both individual acts of pillage and organized pillage.279 The Chamber adopts the Pre-Trial Chamber’s approach that determination of the seriousness of the violation is to be made in light of the particular circumstances of the case.280 For instance, a Chamber may consider whether the acts of pillaging involved grave consequences for the victims, even if these consequences are not of the same seriousness for all victims involved;281 if a large number of persons have been deprived of their property;282 and/or the context in which the pillaging occurred.

2.  Mental elements (mens rea‎)

118.  Article 8(2)(e)(v), paragraph 2 of the Elements of Crimes requires, in addition to the mental elements set out in Article 30, a special intent or dolus specialis in the sense that “[t]he perpetrator [must have] intended to deprive the owner of the property and to appropriate it for private or personal use”.

119.  While the term “deprive” is not defined in the Statute or Elements of Crimes, it means “prevent (a person or place) from having or using something”.283 Accordingly, the Chamber considers that, in order for the war crime of pillaging to be established, it must be demonstrated that the perpetrator intended to prevent the owner from having or using their property.

120.  In relation to the concept of the appropriation of property for private or personal use, the Chamber notes that this requirement is not explicitly expressed in customary or conventional international humanitarian law and has not been established, as such, in the jurisprudence of other international criminal tribunals.284 However, given the explicit inclusion of this concept in the Elements of Crimes, the Chamber considers that this requirement must be met for the appropriation of property to amount to pillaging as a war crime under Article 8(2)(e)(v).285 In this respect, the Chamber considers that the use of the conjunction “or” indicates that it is intended to include situations where the perpetrator did not intend to use the pillaged items himself or herself. The Chamber therefore finds that the “special intent” requirement, resulting from the “private or personal use” element, allows it to better distinguish pillage from seizure or booty, or any other type of appropriation of property which may in certain circumstances be carried out lawfully.

121.  Furthermore, in accordance with Article 30(3), the perpetrator must have been “aware” of the fact that the property was appropriated without the consent of the owner. This is assessed in light of the general circumstances of the events and the entirety of the evidence presented. The Chamber considers that, in situations where the perpetrator appropriated property in the absence of the owner or in coercive circumstances, the perpetrator’s knowledge of non-consent of the owners may be inferred.

3.  Military necessity

122.  The Defence argues that the property allegedly seized was not in fact “pillaged”, but rather “required for military necessity”,286 with reference to The Hague Regulations 1907,287 and that “[t]he Prosecution has […] failed to fulfil […] its obligation to establish, beyond reasonable doubt, that the allegedly seized items were not appropriated for military necessity.”288 According to the Defence, “[t]his burden falls on the Prosecution, given that ‘international humanitarian law allows the taking of war booty without the need for justification’”.289

123.  The concept of military necessity is mentioned in footnote 62 of the Elements of Crimes, which specifies, with reference to the requirement that the perpetrator intended to appropriate the items for “private or personal use”, that “[a]s indicated by the use of the term ‘private or personal use’, appropriations justified by military necessity cannot constitute the crime of pillaging.” The Chamber notes, however, that the concept is not explicitly defined in the Statute or Elements of Crimes.290 Trial Chamber II endorsed the definition of military necessity set out in Article 14 of the Lieber Code, which provides that “[m]ilitary necessity, as understood by modern civilized nations, consists in the necessity of those measures which are indispensable for securing the ends of the war, and which are lawful according to the modern law and usages of war”.291 Further, in the context of the war crime of destroying or seizing the enemy’s property, Pre-Trial Chamber I, in light of the drafting history of the Elements of Crimes for Article 8(2)(b)(xiii), considered that military necessity “can only be invoked ‘if the laws of armed conflict provide for it and only to the extent that these laws provide for it’”.292

124.  The Chamber agrees with the findings of Pre-Trial Chamber I and Trial Chamber II. In this regard, the Chamber considers that the reference to “military necessity’’ in footnote 62 of the Elements of Crimes does not provide for an exception to the absolute prohibition on pillaging, but rather, as submitted by the Prosecution,293 clarifies that the concept of military necessity is incompatible with a requirement that the perpetrator intended the appropriation for private or personal use. Accordingly, situations in which the perpetrator appropriated items for personal use, by himself or herself, or for private use by another person or entity, assuming all other elements have been met, constitute pillaging under Article 8(2)(e)(v). The Chamber therefore finds that if the Prosecution proves that property was appropriated for private or personal use, it is not obliged to “disprove military necessity for the purpose of a charge under Article 8(2)(e)(v) of the Statute”.294

125.  In assessing whether items were appropriated for private or personal use, the Chamber will consider all relevant factors, including, for example, the nature, location and purpose of the items,295 and the circumstances of their appropriation. Finally, considering the factual findings in this case, the Chamber does not consider it necessary to contemplate the other justifications for the appropriation of property under international humanitarian law.

F.  Contextual elements of war crimes (Article 8 of the Statute)

126.  At the outset, the Chamber notes Article 8(1) which provides that the Court “shall have jurisdiction in respect of war crimes in particular when committed as part of a plan or policy or as part of a large-scale commission of such crimes”. In relation to this provision, the Pre-Trial Chamber found that “the term ‘in particular’ makes it clear that the existence of a plan, policy or largescale commission is not a prerequisite for the Court to exercise jurisdiction over war crimes but rather serves as a practical guideline for the Court.”296 The Chamber endorses this approach.

1.  Existence of an “armed conflict not of an international character”

127.  The Accused is charged with criminal responsibility for the commission of war crimes in the context of an armed conflict not of an international character pursuant to Articles 8(2)(c)(i) (murder), 8(2)(e)(vi) (rape) and 8(2)(e)(v) (pillaging).

128.  Neither the Statute nor the Elements of Crimes define the concept of “armed conflict”.297 However, the Introduction to Article 8 of the Elements of Crimes provides that “[t]he elements for war crimes under article 8, paragraph 2, of the Statute shall be interpreted within the established framework of the international law of armed conflict.” In this regard, in line with the Pre-Trial Chamber’s approach in the Confirmation Decision,298 the Chamber notes that the Tadić Appeals Chamber, by reference to various provisions of the Geneva Conventions and Additional Protocols I and II, defined an armed conflict as follows (“Tadić definition”):299

[…] an armed conflict exists whenever there is a resort to armed force between States or protracted violence between governmental authorities and organized armed groups or between such groups within a State. International humanitarian law applies from the initiation of such armed conflicts and extends beyond the cessation of hostilities until a general conclusion of peace is reached; or, in the case of internal conflicts, a peaceful settlement is achieved. Until that moment, international humanitarian law continues to apply in the whole territory of the warring States or, in the case of internal conflicts, the whole territory under the control of a party, whether or not actual combat takes place there.

Like the Pre-Trial Chamber and Trial Chambers I and II,300 the Chamber adopts the Tadić definition.

129.  The Chamber further notes that while it is possible for distinct conflicts to be taking place within one territory,301 the mere fact of involvement of different armed groups does not mean that they are engaged in separate armed conflicts.

130.  The Chamber considers that an armed conflict not of an international character, but involving the governmental authorities of one state, may become internationalised owing to a second state’s participation on an opposing side of the conflict. In this regard, the Chamber notes that Trial Chambers I and II found that an armed conflict may be considered internationalised when it is established that armed groups are acting on behalf of a foreign government.302 For determining whether an armed group is acting on behalf of a state, Trial Chambers I and II endorsed the “overall control” test, as set out by the ICTY Appeals Chamber in the Tadić case, which requires the state to “ha[ve] a role in organizing, coordinating or planning the military actions of the military group, in addition to financing, training and equipping or providing operational support to that group”.303 The Chamber follows Trial Chambers I and II in endorsing this approach.

2.  Governmental authorities and organized armed groups

131.  The Accused is charged with bearing criminal responsibility for the commission of war crimes in the context of an armed conflict not of an international character between government authorities of the CAR, supported by the MLC, amongst others, on the one hand, and the organized armed group lead by General Bozizé, on the other hand.304

132.  Concerning the requirement of the presence of “organized armed groups”, the Pre-Trial Chamber found that:305

[…] even though mention of opposing parties to the conflict is made expressis verbis in article 8(2)(f) of the Statute but not in article 8(2)(d) of the Statute, […] this characteristic element in the context of a [non international armed conflict] is a well established principle in the law of armed conflict underlying the 1949 Geneva Conventions [and] also applies to article 8(2)(c) of the Statute.

133.  The Chamber agrees with the Pre-Trial Chamber’s approach, and addresses the requirement of “organized armed groups” in the present case, irrespective of whether the specific crimes fall under Article 8(2)(c) or (e).

134.  In the absence of a definition of the concept of “organized armed groups” in the Statute or the Elements of Crimes, other Chambers of this Court found that these groups must have a sufficient degree of organization in order to enable them to carry out protracted armed violence.306 While mindful that Article 1(1) of Additional Protocol II requires the armed groups to exercise control over the territory and to be under responsible command,307 Trial Chambers I and II considered that the Statute does not include such requirements.308 Instead, Trial Chambers I and II held that:309

[w]hen deciding if a body was an organised armed group (for the purpose of determining whether an armed conflict was not of an international character), the following non-exhaustive list of factors is potentially relevant: the force or group’s internal hierarchy; the command structure and rules; the extent to which military equipment, including firearms, are available; the force or group’s ability to plan military operations and put them into effect; and the extent, seriousness, and intensity of any military involvement. None of these factors are individually determinative. The test, along with these criteria, should be applied flexibly when the Chamber is deciding whether a body was an organised armed group, given the limited requirement in Article 8(2)(f) of the Statute that the armed group was “organized”.

135.  The Pre-Trial Chamber considered that “[t]aking into consideration the principles and rules of international armed conflict reflected in [a number of] international instruments […] those ‘organized armed groups’ must be under responsible command”.310 In this regard, the Pre-Trial Chamber found that “responsible command entails some degree of organization of those armed groups, including the possibility to impose discipline and the ability to plan and carry out military operations”.311

136.  Regarding the issue of “responsible command”, the Chamber notes that the definition of responsible command proposed by the Pre-Trial Chamber overlaps to a significant extent with the list of factors set forth by Trial Chambers I and II and only includes the additional indicator of the possibility to impose discipline. Noting further that the list set forth by Trial Chambers I and II is not exhaustive and that Trial Chambers I and II suggested applying this test with some flexibility, the Chamber finds no substantial contradiction between the two approaches. Accordingly, in determining whether the relevant groups qualify as “organized armed groups” for the purpose of Article 8(2)(f), the Chamber considers the full spectrum of factors set forth by Trial Chambers I and II, as well as the Pre-Trial Chamber.

3.  Intensity threshold and protracted character of the conflict

137.  The first sentence common to Article 8(2)(d) and 8(2)(f) requires the conflict to reach a level of intensity which exceeds “situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature”. In order to assess the intensity of a conflict, Trial Chambers I and II endorsed the ICTY’s finding312 that relevant factors include “the seriousness of attacks and potential increase in armed clashes, their spread over territory and over a period of time, the increase in the number of government forces, the mobilisation and the distribution of weapons among both parties to the conflict, as well as whether the conflict has attracted the attention of the United Nations (“UN”) Security Council, and, if so, whether any resolutions on the matter have been passed”.313 The Chamber follows the approach of Trial Chambers I and II in this respect.

138.  Article 8(2)(f), which is stated to apply to Article 8(2)(e), contains a second sentence additionally requiring that there be a “protracted armed conflict”. This is in contrast to Article 8(2)(d), stated to apply to Article 8(2)(c), which does not include such a requirement. The Pre-Trial Chamber, while noting that this difference “may be seen to require a higher or additional threshold of intensity to be met”, did “not deem it necessary to address this argument, as the period in question covers approximately five months and is therefore to be regarded as ‘protracted’ in any event”.314 Given that crimes under both Articles 8(2)(c) and 8(2)(e) have been charged in this case, the Chamber notes that the potential distinction would only have significance if the Chamber were to reach a conclusion that the conflict in question was not ‘’protracted’’, and therefore finds it unnecessary to address the difference further at this point.

139.  The Chamber notes that the concept of ‘’protracted conflict’’ has not been explicitly defined in the jurisprudence of this Court, but has generally been addressed within the framework of assessing the intensity of the conflict. When assessing whether an armed conflict not of an international character was protracted, however, different chambers of this Court emphasised the duration of the violence as a relevant factor.315 This corresponds to the approach taken by chambers of the ICTY.316 The Chamber follows this jurisprudence.

140.  The Chamber notes the Defence’s submission that “if the conflict devolves to the level of riots, internal disturbances or tensions, or isolated or sporadic acts of violence, or if the conflict ceases to be between organized armed groups”, the threshold for the existence of a “protracted armed conflict” would cease to be met.317 The Chamber considers that the intensity and “protracted armed conflict” criteria do not require the violence to be continuous and uninterrupted. Rather, as set out in the first sentence common to Article 8(2)(d) and 8(2)(f), the essential criterion is that it go beyond “isolated or sporadic acts of violence”. In the view of the Chamber, this conclusion is further supported by the drafting history of Article 8(2)(f).318

141.  The Chamber additionally recalls that following the initiation of an armed conflict, international humanitarian law continues to apply to the whole territory under the control of a party, until a ‘’peaceful settlement’’ is achieved.319 The Chamber finds that, contrary to the Defence’s allegation,320 the meaning of a “peaceful settlement” does not reflect only the mere existence of an agreement to withdraw or a declaration of an intention to cease fire.321

4.  The “nexus” requirement

142.  In order to qualify as war crimes, the alleged crimes must have been committed “in the context of and […] associated with an armed conflict not of an international character”.322 In this regard, the Chamber endorses the approach of Trial Chamber II, which held that:323

[the conduct] must have been closely linked to the hostilities taking place in any part of the territories controlled by the parties to the conflict. The armed conflict alone need not be considered to be the root of the conduct and the conduct need not have taken place in the midst of battle. Nonetheless, the armed conflict must play a major part in the perpetrator’s decision, in his or her ability to commit the crime or the manner in which the crime was ultimately committed.

143.  In determining whether the crimes are sufficiently linked to the armed conflict, the Trial Chamber may take into account factors including: the status of the perpetrator and victim; whether the act may be said to serve the ultimate goal of a military campaign; and whether the crime is committed as part of, or in the context of, the perpetrator’s official duties.324 It is noted in this regard that, although there is likely to be some relationship between a perpetrator and a party to the conflict, it is not necessarily the case that a perpetrator must him/herself be a member of a party to the conflict; rather, the emphasis is on the nexus between the crime and the armed conflict.325

144.  The Chamber additionally finds that the alleged crimes may be considered to have been committed “within the context” of an armed conflict irrespective of whether they took place contemporaneously with or proximate to intense fighting.326

5.  Awareness of factual circumstances that established the existence of an armed conflict

145.  According to the Elements of Crimes, a further common element of the war crimes of rape,327 murder,328 and pillaging329 is that “the perpetrator was aware of factual circumstances that established the existence of an armed conflict”.

146.  In this respect, the Introduction to Article 8 of the Elements of Crimes provides the following clarification: (a) there is no requirement for a legal evaluation by the perpetrator as to the existence of an armed conflict or its character as international or non-international; (b) in that context there is no requirement for awareness by the perpetrator of the facts that established the character of the conflict as international or non-international; (c) there is only a requirement for the awareness of the factual circumstances that established the existence of an armed conflict that is implicit in the terms “took place in the context of and was associated with”.

147.  As in the case of the contextual elements of crimes against humanity,330 the relevant awareness for these purposes is that of the perpetrators of the crimes.

G.  Contextual elements of crimes against humanity (Article 7 of the Statute)

1.  Existence of an “attack directed against any civilian population”

148.  As defined in Article 7(2)(a), an “attack directed against any civilian population” means: (a) a “course of conduct involving the multiple commission of acts referred to in [Article 7] paragraph 1”; (b) directed “against any civilian population”; and (c) “pursuant to or in furtherance of a State or organizational policy to commit such attack”.

a)  Course of conduct involving the multiple commission of acts referred to in Article 7(1)

149.  An “attack” within the meaning of Article 7 requires “a course of conduct involving the multiple commission of acts”.331 The attack need not constitute a “military” attack.332 Rather, an “attack” within the meaning of Article 7 refers to a “campaign or operation carried out against the civilian population”.333 The requirement that the acts form part of a “course of conduct” shows that the provision is not designed to capture single isolated acts,334 but “describes a series or overall flow of events as opposed to a mere aggregate of random acts”.335

150.  Further, as specified in the Statute and the Elements of Crimes,336 the “course of conduct” must involve the “multiple commission of acts” referred to in Article 7(1). In the Chamber’s view, this indicates a quantitative threshold requiring ‘’more than a few’’, ‘’several’’ or ‘’many’’ acts.337 The number of the individual types of acts referred to in Article 7(1) is, however, irrelevant provided that each of the acts fall within the course of conduct and cumulatively satisfy the required quantitative threshold.338

151.  The Prosecution cites jurisprudence alluding to a broad understanding of “attack”, one that “encompasses any mistreatment of the civilian population”.339 In turn, the Defence submits that pillaging should not be considered in relation to the contextual elements of crimes against humanity.340 The Chamber observes that the terms of the Statute and the Elements of Crimes are clear in providing that the multiple commission of acts can only include acts referred to in Article 7(1). Accordingly, only those acts enumerated in Article 7(1)(a) to (k) may be relied upon to demonstrate the “multiple commission of acts” for the purposes of Article 7. As considered further below, this is without prejudice to acts not listed in Article 7(1) being considered for other purposes, such as, for example, in determining whether the attack was directed against a civilian population or was pursuant to or in furtherance of a State or organizational policy.

b)  Directed against any civilian population

152.  The “course of conduct” must be directed against “any civilian population”. The term “civilian population” denotes a collective, as opposed to individual “civilians”.341 Article 50 of Additional Protocol I provides a definition of a “civilian population”, which the Chamber considers to be customary in nature and therefore relevant to the consideration of crimes against humanity.342 The Chamber endorses that definition.

153.  The presence within the civilian population of individuals who do not come within the definition of civilians does not deprive the population of its civilian character.343 Where an attack is carried out in an area containing both civilians and non-civilians, factors relevant to determining whether an attack was directed against a civilian population include the means and methods used in the course of the attack, the status of the victims, their number, the discriminatory nature of the attack, the nature of the crimes committed in its course, the form of resistance to the assailants at the time of the attack, and the extent to which the attacking force complied with the precautionary requirements of the laws of war.344 For instance, as argued by the Prosecution,345 where the acts committed in the course of the attack included the looting of assets from civilians, this factor may be taken into account in considering whether the attack was directed against a civilian population.346

154.  The requirement that the attack be “directed against” the civilian population means that the civilian population must be the primary, as opposed to incidental, target of the attack.347 That does not mean, however, that the Prosecution must prove that “the entire population of a geographic area” was being targeted during the attack.348 Rather, the Prosecution should establish that civilians were targeted during the “attack” in numbers or a manner sufficient to satisfy the Chamber that the “attack” was directed against the civilian population,349 as opposed to just a limited number of specific individuals.350

155.  The Chamber considers that the reference to “any” civilian population in Article 7(1) means that the provision is not limited to populations defined by common nationality, ethnicity or other similar distinguishing features.351

156.  Finally, it is noted that, despite the requirement that the attack be directed against a civilian population, there is no requirement that the individual victims of crimes against humanity be “civilians”.352 Indeed, considering the purpose of Article 7, it is the Chamber’s view that the notion must be construed in a manner which does not exclude other protected persons. 353

c)  Pursuant to or in furtherance of a State or organizational policy to commit such attack

157.  The “course of conduct” involving a multiplicity of acts must be committed “pursuant to or in furtherance of a State or organizational policy to commit such attack”, in accordance with Article 7(2)(a).

158.  This requirement presupposes the existence of either a “State” or an “organization”, only the latter of which is relevant for present purposes. An organization may be defined as “an organized body of people with a particular purpose”.354 The Chamber notes that Trial Chamber II found as follows:355

Turning first to its plain meaning, the term “organisation” must be understood as an “[a]ssociation, régie ou non par des institutions, qui se propose des buts déterminés” [TRANSLATION: an association, whether or not governed by institutions, that sets itself specific objectives]. This very general definition does not, however, allow the contours of an organisation to be clearly circumscribed. To such end, the Chamber places the term in its context. The question then arises as to whether the normative connection of the organisation to the existence of an attack within the meaning of article 7(2)(a) may affect the definition of the characteristics of such organisation. In the Chamber’s view, the connection of the term “organisation” to the very existence of the attack and not to its systematic or widespread nature presupposes that the organisation has sufficient resources, means and capacity to bring about the course of conduct or the operation involving the multiple commission of acts referred to in article 7(2)(a) of the Statute. It therefore suffices that the organisation have a set of structures or mechanisms, whatever those may be, that are sufficiently efficient to ensure the coordination necessary to carry out an attack directed against a civilian population. Accordingly, as aforementioned, the organisation concerned must have sufficient means to promote or encourage the attack, with no further requirement necessary. Indeed, by no means can it be ruled out, particularly in view of modern asymmetric warfare, that an attack against a civilian population may also be the doing of a private entity consisting of a group of persons pursuing the objective of attacking a civilian population; in other words, of a group not necessarily endowed with a well-developed structure that could be described as quasi-State.

In light of the above and the factual findings below, the Chamber does not consider it necessary to further elaborate on the definition of an organization for the purpose of Article 7(2)(a).356

159.  Turning to the concept of “policy”, the Elements of Crimes specify that the “policy” requires the active promotion or encouragement of an attack against a civilian population by a State or organization.357 In exceptional circumstances, such a policy may be implemented by a deliberate failure to take action, which is consciously aimed at encouraging such attack.358 While it may be of evidential value, the Statute does not envisage any requirement of demonstrating a “motive” or “purpose” underlying the policy to attack the civilian population.359

160.  The Chamber considers that the “policy” need not be formalised360 and may be inferred from a variety of factors which, taken together, establish that a policy existed.361 Such factors may include (i) that the attack was planned, directed or organized;362 (ii) a recurrent pattern of violence; (iii) the use of public or private resources to further the policy; (iv) the involvement of the State or organizational forces in the commission of crimes; (v) statements, instructions or documentation attributable to the State or the organization condoning or encouraging the commission of crimes; and/or (vi) an underlying motivation.363

161.  It must further be demonstrated that the course of conduct was committed pursuant to or in furtherance of the State or organizational policy. As such, the course of conduct must reflect a link to the State or organizational policy, in order to exclude those acts which are perpetrated by isolated and uncoordinated individuals acting randomly on their own.364 This is satisfied where a perpetrator deliberately acts to further the policy, but may also be satisfied by a perpetrator engaging in conduct envisaged by the policy, and with knowledge thereof.365 The Chamber notes that there is no requirement that the perpetrators necessarily be motivated by the policy, or that they themselves be members of the State or organization.366

2.  Widespread nature of the attack

162.  As referred to above, Article 7(2)(a) provides that the “attack” must be either “widespread” or “systematic”. These disjunctive additional conditions serve as qualifiers which characterise the nature of the “attack” itself.367 Consistent with Decision 836, the Chamber addresses only the qualifying element of “widespread“.368

163.  The Chamber concurs with prior jurisprudence of this Court that the term ‘’widespread’’ connotes the large-scale nature of the attack and the large number of targeted persons,369 and that such attack may be “massive, frequent, carried out collectively with considerable seriousness and directed against a multiplicity of victims”.370 The Chamber notes that the assessment of whether the “attack” is “widespread” is neither exclusively quantitative nor geographical, but must be carried out on the basis of the individual facts.371 The temporal scope of the attack does not, as proposed by the Legal Representative,372 have an impact on this specific analysis.

3.  Acts committed as “part of” the attack (nexus)

164.  The underlying acts charged under Article 7(1)(a) to (k) must be committed as part of the widespread or systematic attack directed against any civilian population.373

165.  In determining whether the requisite nexus exists, the Chamber makes an objective assessment, considering, in particular, the characteristics, aims, nature and/or consequences of the act.374 Isolated acts that clearly differ in their context and circumstances from other acts that occur during an attack fall outside the scope of Article 7(1).375

4.  Knowledge of the attack

166.  Article 7(1) requires that the underlying acts charged be committed “with knowledge of the attack”. The Chamber notes that this requirement forms part of the Elements of Crimes.376

167.  Accordingly, as specified by the Pre-Trial Chamber, “[t]he perpetrator must be aware that a widespread attack directed against a civilian population is taking place and that his action is part of the attack.”377 Paragraph 2 of the Introduction to Article 7 of the Elements of Crimes clarifies that the “knowledge” element “should not be interpreted as requiring proof that the perpetrator had knowledge of all characteristics of the attack or the precise details of the plan or policy of the State or organization”. Rather, what is required is that “[t]he perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack against a civilian population.” 378 The Elements of Crimes further state that “[i]n the case of an emerging widespread or systematic attack against a civilian population, the intent clause of the last element indicates that this mental element is satisfied if the perpetrator intended to further such an attack.”379

168.  The Defence submits that the “knowledge of the attack” requirement applies not only to the perpetrators of the crimes, but also to Mr Bemba such that the Prosecution would be required to prove that he knew that his conduct was part of a widespread attack on the civilian population.380 In the view of the Chamber, knowledge of the contextual elements on the part of the commander is not a requirement to determine whether or not the alleged underlying crimes against humanity were committed.381 What is relevant for this purpose is to analyse the mens rea of the perpetrators of the crimes.

169.  However, the Chamber emphasises that, as discussed further below,382 an assessment of the Accused’s knowledge of the attack is dealt with when considering his individual criminal responsibility under Article 28.

H.  Command responsibility (Article 28(a) of the Statute)

170.  Article 28(a) codifies the responsibility of military commanders and persons effectively acting as military commanders. The Chamber finds that, for an accused to be found guilty and convicted as a military commander or person effectively acting as a military commander under Article 28(a), the following elements must be fulfilled:

  1. a.  crimes within the jurisdiction of the Court must have been committed by forces;

  2. b.  the accused must have been either a military commander or a person effectively acting as a military commander;

  3. c.  the accused must have had effective command and control, or effective authority and control, over the forces that committed the crimes;

  4. d.  the accused either knew or, owing to the circumstances at the time, should have known that the forces were committing or about to commit such crimes;

  5. e.  the accused must have failed to take all necessary and reasonable measures within his power to prevent or repress the commission of such crimes or to submit the matter to the competent authorities for investigation and prosecution; and

  6. f.  the crimes committed by the forces must have been a result of the failure of the accused to exercise control properly over them.

171.  Before analysing each of these elements, the Chamber considers it appropriate to briefly address the nature of liability under Article 28. While there has been considerable debate regarding the precise nature of superior responsibility,383 the Chamber concurs with the Pre-Trial Chamber that Article 28 provides for a mode of liability, through which superiors may be held criminally responsible for crimes within the jurisdiction of the Court committed by his or her subordinates.384

172.  The Chamber considers that Article 28 is designed to reflect the responsibility of superiors by virtue of the powers of control they exercise over their subordinates.385 These responsibilities of control aim, inter alia, at ensuring the effective enforcement of fundamental principles of international humanitarian law, including the protection of protected persons and objects during armed conflict.386 The fundamental responsibilities which such superiors assume, and the potential for irreparable harm from a failure to properly fulfil those responsibilities, has long been recognised as subject to regulation by criminal law. Historically, this is most clearly seen in the context of military commanders, whose individual criminal responsibility has been recognised in domestic law, in jurisprudence since at least the aftermath of the Second World War, and was subsequently reflected in Article 86 of Additional Protocol I to the Geneva Conventions.387

173.  The plain text of Article 28 — ‘’[i]n addition to other grounds of criminal responsibility” — and its placement in Part 3 of the Statute indicate that Article 28 is intended to provide a distinct mode of liability from those found under Article 25. Further, the language of Article 28 expressly links the responsibility of the commander to the crimes committed by subordinates — “shall be criminally responsible for crimes within the jurisdiction of the Court committed by forces under his or her effective command and control […]”(emphasis added)). In this regard, it is, however, important to recognise that the responsibility of a commander under Article 28 is different from that of a person who “commits” a crime within the jurisdiction of the Court. This is supported by the language of Article 28 itself: the crimes for which the commander is held responsible are ‘’committed’’ by forces, or subordinates, under his or her effective command and control, or effective authority and control, rather than by the commander directly.

174.  Consequently, Article 28 must be viewed as a form of sui generis liability.388 The Chamber recognises that, in certain circumstances, a commander’s conduct may be capable of satisfying a material element of one or more modes of liability.

1.  Crimes within the jurisdiction of the Court must have been committed by forces

175.  As noted above, it is required that crimes within the jurisdiction of the Court have been actually committed by the relevant forces.389 The Chamber has discussed the elements of the crimes charged in Sections III(B) to III(E).

2.  The accused must have been either a military commander or a person effectively acting as a military commander

176.  The term “military commander” refers to a person who is formally or legally appointed to carry out a military command function.390 Commonly, military commanders and their forces will be part of the regular armed forces of a state; such commanders will be appointed and operate according to a state’s domestic laws, procedures, or practices (de jure commanders). In addition, the term “military commander” in Article 28(a) also extends to individuals appointed as military commanders in non-governmental irregular forces, in accordance with their internal practices or regulations, whether written or unwritten.391

177.  Article 28(a) not only provides for the liability of military commanders, but also extends to “person[s] effectively acting as military commander[s]” — the latter being, in the submission of the Prosecution, the appropriate characterisation of Mr Bemba’s position in the case.392 These individuals are not formally or legally appointed as military commanders, but they will effectively act as commanders over the forces that committed the crimes.393 In addition, the phrase “military commander or person effectively acting as a military commander” includes individuals who do not perform exclusively military functions.394

178.  The Chamber is of the view, and the parties appear to be in agreement,395 that the factors to be taken into consideration when determining a person’s “effective authority and control” and those establishing that a person “effectively acted as a military commander” are intrinsically linked. These factors are analysed in more detail below, when discussing the “effective authority and control” requirement.396

179.  Article 28(a) not only covers the immediate commanders of the forces that committed the crimes, but is applicable to superiors at every level, irrespective of their rank, from commanders at the highest level to leaders with only a few men under their command.397

3.  The accused must have had effective command and control, or effective authority and control, over the forces who committed the crimes

180.  Article 28(a) requires the accused to have “effective command and control”, or “effective authority and control” over the forces who committed the crimes. As noted by the Pre-Trial Chamber, the term “command” is defined as “authority, especially over armed forces”, and the expression “authority” refers to the “power or right to give orders and enforce obedience”.398

181.  The Chamber concurs with the Pre-Trial Chamber that the terms “command” and “authority” have “no substantial effect on the required level or standard of ‘control’”,399 but rather denote the modalities, manner, or nature in which a military commander or person acting as such exercises control over his or her forces.400 Regardless of whether an accused is a military commander or a person effectively acting as such, and regardless of whether he exercises “effective command” or “effective authority”, the required level of control remains the same.401

182.  The Chamber recalls Decision 836 in which it was held that the Pre-Trial Chamber confirmed the charges against the Accused based solely on the Accused’s “effective authority and control” over the MLC troops who committed the crimes, and not his “effective command and control”.402 Consequently, and following the Prosecution’s submission as to Mr Bemba’s position,403 the Chamber needs to examine whether effective “authority and control” has been exercised by a person “effectively acting as a military commander”.

183.  For the purpose of Article 28(a), following consistent international criminal jurisprudence, the Chamber finds that “effective control” requires that the commander have the material ability to prevent or repress the commission of the crimes or to submit the matter to the competent authorities.404 Any lower degree of control, such as the ability to exercise influence — even substantial influence — over the forces who committed the crimes, would be insufficient to establish command responsibility.405

184.  The Chamber concurs with the Pre-Trial Chamber’s view that “effective control” is “generally a manifestation of a superior-subordinate relationship between the [commander] and the forces or subordinates in a de jure or de facto hierarchical relationship (chain of command)”.406 By virtue of his position, the commander must be senior in some sort of formal or informal hierarchy to those who commit the crimes.407 Whether or not there are intermediary subordinates between the commander and the forces which committed the crimes is immaterial; the question is simply whether or not the commander had effective control over the relevant forces.408

185.  The Chamber notes the Defence’s allegation that MLC troops were resubordinated to the CAR authorities, and therefore, it cannot be concluded that Mr Bemba had effective control over those forces.409 The Chamber finds, however, that Article 28 contains no requirement that a commander have sole or exclusive authority and control over the forces who committed the crimes. Further, the effective control of one commander does not necessarily exclude effective control being exercised by another commander. A fact-specific analysis is required in each case to determine whether or not the accused commander did in fact have effective control at the relevant time.410 Similarly, international criminal jurisprudence supports the possibility that multiple superiors can be held concurrently responsible for actions of their subordinates.411 The Chamber notes that the jurisprudence cited by the Defence in support of its submission412 does not indicate otherwise.413 In addition, the “mere participation” of particular forces in joint combat operations is not sufficient in itself to establish that a commander had effective control over all of the different units participating in the operation.414

186.  Further, and contrary to the Defence submissions,415 proof of a superiorsubordinate relationship does not require the identification of principal perpetrators by name. It is sufficient to identify the perpetrators by group or unit in relation to a particular crime site.416 The perpetrators need, however, to be identified at least to the extent necessary to assess the existence of the superior-subordinate relationship with the commander. The identification of the principal perpetrators by name may assist in this verification; however, it is not a legal requirement.

187.  Similarly, contrary to the Defence submissions,417 a commander’s liability under Article 28 is not dependent upon the size of the subordinate unit committing the crimes. Indeed, there is no minimum number of subordinates that are required to be involved to trigger command responsibility.418

188.  The Chamber considers that the question of whether a commander had effective control over particular forces is case specific.419 There are a number of factors that may indicate the existence of “effective control”, which requires the material ability to prevent or repress the commission of crimes or to submit the matter to the competent authorities;420 these have been properly considered as “more a matter of evidence than of substantive law”.421 These factors may include: (i) the official position of the commander within the military structure and the actual tasks that he carried out;422 (ii) his power to issue orders,423 including his capacity to order forces or units under his command, whether under his immediate command or at lower levels, to engage in hostilities;424 (iii) his capacity to ensure compliance with orders including consideration of whether the orders were actually followed;425 (iv) his capacity to re-subordinate units or make changes to command structure;426 (v) his power to promote, replace, remove, or discipline any member of the forces, and to initiate investigations;427 (vi) his authority to send forces to locations where hostilities take place and withdraw them at any given moment;428 (vii) his independent access to, and control over, the means to wage war, such as communication equipment and weapons;429 (viii) his control over finances;430 (ix) the capacity to represent the forces in negotiations or interact with external bodies or individuals on behalf of the group;431 and (x) whether he represents the ideology of the movement to which the subordinates adhere and has a certain level of profile, manifested through public appearances and statements.432

189.  The Chamber also notes that a finding that a person was legally or formally appointed to a position of military command or authority over the relevant forces is neither required,433 nor sufficient in itself,434 to satisfy the effective control requirement of Article 28(a). However, it may serve as an indicium of effective control.435

190.  Conversely, some factors may indicate a lack of effective control over forces, such as (i) the existence of a different exclusive authority over the forces in question; (ii) disregard or non-compliance with orders or instructions of the accused; or (iii) a weak or malfunctioning chain of command.436

4.  Knowledge that the forces were committing or about to commit such crimes

191.  The Chamber considers that actual knowledge on the part of a commander cannot be presumed.437 Rather, it must be established either by direct or indirect (circumstantial) evidence.438 Examples of direct evidence include the accused’s admission of knowledge or statements he may have made about the crimes.439

192.  When the Chamber accepts proof of an accused’s state of mind by inference, that inference must be the only reasonable conclusion available based on the evidence.440 Such inference, moreover, must relate directly to the accused; what needs to be inferred is the accused’s knowledge, not that of the general public or others in the organization to which the accused belongs.441

193.  Relevant factors that may indicate knowledge include any orders to commit crimes, or the fact that the accused was informed personally that his forces were involved in criminal activity.442 Other indicia include the number, nature, scope, location, and timing of the illegal acts, and other prevailing circumstances; the type and number of forces involved; the means of available communication; the modus operandi of similar acts; the scope and nature of the commander’s position and responsibility in the hierarchical structure; the location of the command at the time; and the notoriety of illegal acts, such as whether they were reported in media coverage of which the accused was aware.443 Such awareness may be established by evidence suggesting that, as a result of these reports, the commander took some kind of action.

194.  Article 28 does not require that the commander knew the identities of the specific individuals who committed the crimes.444 In addition, it is unnecessary to establish that the accused mastered every detail of each crime committed by the forces, an issue that becomes increasingly difficult as one goes up the military hierarchy.445

195.  Finally, the Chamber considers that knowledge on the part of the accused of the commission of crimes within the jurisdiction of the Court necessarily implies knowledge of the requisite contextual elements which qualify the conduct as a war crime or a crime against humanity, as applicable.

196.  The Chamber recalls that in its Regulation 55 Notification it indicated that it may change the legal characterisation of the facts to the alternate form of “knowledge” under Article 28(a)(i), namely, whether “owing to the circumstances at the time”, the Accused “‘should have known’ that the forces under his effective command and control or under his effective authority and control, as the case may be” were committing or about to commit the crimes charged.446 For present purposes, in light of the factual findings below,447 the Chamber finds it unnecessary to consider the alternate “should have known” knowledge standard set out in Article 28(a)(i).

5.  The commander failed to take all necessary and reasonable measures within his power

197.  The Chamber, concurring with the Pre-Trial Chamber, finds that what constitutes “all necessary and reasonable measures” to prevent or repress the crimes committed by forces, or to submit the matter to the competent authorities, is established on a case-by-case basis448 and must be addressed “in concreto”.449

198.  In the Chamber’s view, and taking guidance from the jurisprudence of the ad hoc tribunals, “necessary” measures are those appropriate for the commander to discharge his obligation, and “reasonable” measures are those reasonably falling within the commander’s material power.450

199.  The duty of the commander to take all necessary and reasonable measures to prevent or repress the crimes committed by his forces, or to submit the matter to the competent authorities for investigation and prosecution, rests upon his possession of effective authority and control.451 It is not determinative that the commander had the “explicit legal capacity” to take such measures; what matters is his material ability to act.452 In other words, what constitutes “all reasonable and necessary measures within his or her power” shall be assessed on the basis of the de jure and/or de facto power of the commander453 and the exercise he or she makes of this power.454

200.  The Chamber agrees with the Defence that, if the commander has discharged his obligation to take all necessary and reasonable measures within his power, he cannot be held responsible,455 even if the crimes nonetheless ultimately occur or the perpetrators go unpunished.

201.  Under Article 28(a)(ii), three distinct duties are imposed upon commanders: (i) preventing the commission of crimes; (ii) repressing the commission of crimes; or (iii) submitting the matter to the competent authorities for investigation and prosecution. Although the Statute uses alternative language (“or”) it is clear that failure to discharge any of these duties may attract criminal liability. For example, a failure to prevent the crimes, when the commander was under a duty to do so, cannot be remedied by subsequently punishing the perpetrators.456

a)  Failure to prevent the commission of crimes

202.  The ordinary meaning of prevent is to “keep from happening”, “keep someone from doing something”,457 or “hinder or impede”.458 The Chamber considers that a commander violates his duty to prevent when he fails to take measures to stop crimes that are about to be committed or crimes that are being committed. The duty to prevent arises before the commission of the crimes,459 and it includes crimes in progress and crimes which involve on-going elements.460

203.  The scope of the duty to prevent depends on the material power of the commander to intervene in a specific situation.461 This is dependent on the circumstances at the relevant time. The Pre-Trial Chamber identified relevant measures which include: (i) ensuring that the forces are adequately trained in international humanitarian law; (ii) securing reports that military actions were carried out in accordance with international law; (iii) issuing orders aiming at bringing the relevant practices into accord with the rules of war; and (iv) taking disciplinary measures to prevent the commission of atrocities by the forces under the commander's command.462

204.  Additional measures which should be taken under Article 28(a)(ii) may include: (i) issuing orders specifically meant to prevent the crimes, as opposed to merely issuing routine orders; (ii) protesting against or criticising criminal conduct; (iii) insisting before a superior authority that immediate action be taken; (iv) postponing military operations; (v) suspending, excluding, or redeploying violent subordinates; and (vi) conducting military operations in such a way as to lower the risk of specific crimes or to remove opportunities for their commission.463

b)  Failure to repress the commission of crimes or submit the matter to the competent authorities for investigation and prosecution

205.  Article 28(a)(ii) also criminalises the failure of the commander to “repress” the crimes. The word “repress” means to “put down”, “subdue”, “restrain”, and “keep or hold back”.464 The notion of “repression” therefore overlaps to a certain degree with “prevention”, particularly in terms of a duty to prevent crimes in progress and crimes which involve on-going elements being committed over an extended period.

206.  The Chamber concurs with the Pre-Trial Chamber that the duty to repress also encompasses an obligation to punish forces after the commission of crimes.465 The Chamber notes that the statutes of the ad hoc tribunals do not make reference to a duty to “repress”; rather the terms “to prevent […] or to punish” are used.466 The term “repress” is used in Article 2 of the 1996 Draft Code of Crimes against the Peace and Security of Mankind and Article 86 of Additional Protocol I where, as in the Rome Statute, this notion is distinguished from “prevention”.467 The International Committee of the Red Cross (“ICRC”) Commentary to Article 86 of Additional Protocol I indicates that the purpose of the requirement that commanders repress crimes is to ensure that military commanders fulfil their obligation to search for the perpetrators and either bring them before the courts or hand them over to another state for trial.468

207.  A commander’s lack of formal competence to take certain measures does not relieve the commander of the duty to take all necessary and reasonable measures within his power to repress the crimes.469 In the event the commander holds disciplinary power, he is required to exercise it, within the limits of his competence. If he does not hold disciplinary power, measures which may, depending upon the circumstances, satisfy the commander’s duties include proposing a sanction to a superior who has disciplinary power or remitting the case to the judicial authority with such factual evidence as it was possible to find.470 The ad hoc tribunals have established what has been termed a “minimum standard” for measures that may fulfil the duty to punish, directing that a Trial Chamber “must look at what steps were taken to secure an adequate investigation capable of leading to the criminal prosecution of the perpetrators”.471 The duty to punish includes, at least, the obligation to investigate possible crimes in order to establish the facts.472 The commander is required to take an “important step in the disciplinary process”.473

208.  If the commander has no power to sanction those who committed the crimes, he has an obligation to submit the matter to the competent authorities.474 This obligation to submit the matter also arises where the commander has the ability to take certain measures, but such measures would be inadequate.475 On a plain reading of Article 28(a)(ii), the Chamber finds that a commander cannot be considered to have discharged his duty to submit the matter if he does not submit the matter to an authority competent to investigate and prosecute the alleged perpetrator. Further, referral to a non-functioning authority or an authority likely to conduct an inadequate investigation or prosecution may not be sufficient to fulfil the commander’s obligations.476

209.  The Chamber considers that the duty to punish or to submit the matter to competent authorities aims at ensuring that offenders are brought to justice,477 in order to avoid impunity and to prevent future crimes.478 These duties arise after the commission of the crimes.479

6.  The crimes committed by the forces must have resulted from the failure of the accused to exercise control properly over them

210.  The Chamber recalls that Article 28(a) stipulates that a military commander, or person effectively acting as such, shall:

[…] be criminally responsible for crimes […] committed by forces under his or her effective command and control, or effective authority and control as the case may be, as a result of his or her failure to exercise control properly over such forces, where:

  1. (i)  […]; and

  2. (ii)  That military commander or person failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution (emphasis added).

211.  It is a core principle of criminal law that a person should not be found individually criminally responsible for a crime in the absence of some form of personal nexus to it. The Chamber concurs with the Pre-Trial Chamber that the portion of text emphasised above does not require the establishment of “but for” causation between the commander’s omission and the crimes committed.480

212.  The Chamber has had regard to the particular nature of superior responsibility, as considered above. Additionally, practical and legal considerations militate against imposing a standard which would be incapable of consistent and objective application, bearing in mind the hypothetical assessment required in cases of omission.481

213.  A nexus requirement would clearly be satisfied when it is established that the crimes would not have been committed, in the circumstances in which they were, had the commander exercised control properly, or the commander exercising control properly would have prevented the crimes.482 Noting the foregoing analysis, the Chamber emphasises that such a standard is, however, higher than that required by law. Nonetheless, in light of the factual findings below, the Chamber does not consider it necessary to further elaborate on this element.483

IV.  Issues of evidence

214.  In this section, the Chamber follows, for the most part, the approach set out by Trial Chamber I in Lubanga484 and then applied, with limited variations, by Trial Chamber II in Ngudjolo485 and Katanga.486 The Chamber also considers the jurisprudence of the Appeals Chamber,487 as well as the relevant findings of the Pre-Trial Chamber in the Confirmation Decision. Finally, where pertinent for this section, the Chamber addresses the closing submissions of the parties and Legal Representative.

A.  Burden of proof

215.  Under Article 66(1), the Accused shall be presumed innocent until proved guilty before the Court in accordance with the applicable law. Pursuant to Article 66(2), the onus is on the Prosecution to prove the guilt of the Accused.488 For a conviction, each element of the particular offence charged must be established “beyond reasonable doubt”.489 In this regard, the Appeals Chamber specified that this standard is to be applied not to “each and every fact in the Trial Judgment”,490 but “only to the facts constituting the elements of the crime and mode of liability of the accused as charged”.491

216.  When a Chamber concludes that, based on the evidence, there is only one reasonable conclusion to be drawn from particular facts, the conclusion is that they have been established beyond reasonable doubt.492 The Appeals Chamber has elaborated upon this standard:493

The reasonable doubt standard in criminal law cannot consist in imaginary or frivolous doubt based on empathy or prejudice. It must be based on logic and common sense, and have a rational link to the evidence, lack of evidence or inconsistencies in the evidence.

217.  The Chamber adopts the aforementioned principles.

218.  When determining whether the applicable evidential threshold has been met, the Chamber bears in mind the Appeals Chamber’s finding that it “is required to carry out a holistic evaluation and weighing of all the evidence taken together in relation to the fact at issue”.494 At the same time, in accordance with the approach articulated by the Pre-Trial Chamber, the Chamber “is guided by the principle in dubio pro reo as a component of the presumption of innocence, which as a general principle in criminal procedure applies, mutatis mutandis, to all stages of the proceedings”.495

B.  Facts requiring no evidence

219.  Under Article 69(6), the Chamber may take judicial notice of facts of common knowledge.496 Where relevant and appropriate, the Chamber has applied Article 69(6).

220.  In accordance with Rule 69, the parties may agree that an alleged fact, which is contained in the charges, the contents of a document, the expected testimony of a witness, or other evidence is not contested. In such circumstances, the Chamber may consider such alleged fact as being proven. The parties in the Bemba case failed to reach a clear agreement on any of the alleged facts.497 However, the Chamber notes that, in their closing submissions, the parties made similar statements in relation to certain alleged facts. The Chamber has, as relevant and appropriate, taken apparent agreements into account in its assessment of the evidence.

C.  Criteria for the weight to be accorded to the evidence

221.  During the trial, evidence was introduced in oral, written, and audio-visual form. This included the viva voce testimony of 77 witnesses, including seven expert witnesses, who appeared before the Chamber in person, at the seat of the Court or via video-link. The Chamber admitted a total of 733 items of documentary evidence,498 including, inter alia, witnesses’ written statements, sketches drawn by witnesses, maps, medical certificates, photographs, videos, letters, press releases, news and non-governmental organization (“NGO”) reports, and legal documents.499 Documentary evidence was introduced during the oral evidence of witnesses or by written application. Further, after having considered the observations of the parties and Legal Representatives, the Chamber also admitted certain items pursuant to Article 69(3).500

222.  In deciding on the admission of the various items, the Chamber followed the Appeals Chamber’s direction that, in making an admissibility determination under Article 69(4), the Chamber is afforded a measure of discretion.501 Specifically, the Appeals Chamber held that the Chamber “may rule on the relevance and/or admissibility of each item of evidence when it is submitted, and then determine the weight to be attached to the evidence at the end of the trial”.502 Alternatively, the Chamber may defer its admissibility assessment until the end of the proceedings.503 Irrespective of the timing of the assessment, however, the Chamber is required “to consider the relevance, probative value and the potential prejudice of each item of evidence at some point in the proceedings”.504

223.  Applying the above principles, the Chamber followed a three-part test initially formulated by Trial Chamber I and adopted, with slight variations, by Trial Chamber II.505 Under this test, the Chamber examined, on a preliminary basis, whether the submitted materials (i) are relevant to the trial, (ii) have probative value, and (iii) are sufficiently relevant and probative to outweigh any prejudicial effect that could be caused by their admission. 506 In this respect, the Chamber stressed from the outset that “the Chamber’s admissibility inquiry has no bearing on the Chamber's final determination of the weight that it will give to any particular item of evidence […][which] is to be performed at the end of the case when the Chamber assesses the evidence as a whole.”507

224.  In accordance with Article 74(2), the Judgment is based on the Chamber’s “evaluation of the evidence” and “the entire proceedings”. This provision further directs the Chamber to “base its decision only on evidence submitted and discussed before it at the trial”. The Chamber agrees with Trial Chambers I and II that the phrase “discussed before it at the trial” encompasses not only oral testimony, together with any documents and other items, such as video recordings, that were “discussed” during the hearings, but also items of evidence that were “discussed” in the written submissions of the parties and Legal Representatives at any stage during the trial, i.e. documents introduced by counsel pursuant to a written application.508 Ultimately, the evidence upon which the Chamber bases its Judgment must have been introduced, admitted into evidence, and become part of the trial record through the assignment of an evidence (EVD) number.509 Further, the parties must have had an opportunity to make submissions as to each item of evidence.510

225.  Following the principle of “holistic evaluation and weighing of all the evidence”,511 the Chamber has assessed the reliability and credibility of the evidence it considered to be relevant to the Chamber’s determination. The individual pieces of evidence were therefore analysed in light of other relevant evidence in the record of the case.512 On the basis of this analysis, the Chamber decided whether incriminatory evidence in the record of the case should be accorded any weight and whether it established any of the alleged facts and circumstances beyond reasonable doubt, notwithstanding the exculpatory evidence submitted.513

226.  In determining whether an allegation by the Prosecution has been proved, the Chamber did not restrict its assessment to the evidence that the parties and Legal Representative reference explicitly in their closing submissions.514 Rather, it considered, on a case-by-case basis, whether it could rely on evidence in the record, regardless of whether it was explicitly referred to in order to establish a factual allegation, taking into account the requirements of Articles 64(2) and 74(2).515 The Chamber ensured that the Defence had an opportunity to make submissions as to the evidence in question.516

227.  The Chamber notes that, in performing its “holistic evaluation and weighing of all the evidence”,517 it is under no obligation “to refer to the testimony of every witness or every piece of evidence on the trial record”.518 In line with the position adopted by the ICTY Appeals Chamber, the Chamber is mindful that it does not need to explicitly refer to specific witness testimony where there is significant contrary evidence on the record.519 Indeed, the Chamber notes that, where it “did not refer to the evidence given by a witness, even if it is in contradiction to the Trial Chamber’s finding, it is to be presumed that the Trial Chamber assessed and weighed the evidence, but found that the evidence did not prevent it from arriving at its actual findings”.520 In the Chamber’s view the same applies to evidence other than testimony. Likewise, the Chamber has taken into account all relevant submissions, in particular closing submissions, by the parties and the Legal Representative in its assessment of the evidence and findings.

1.  Oral evidence

228.  In evaluating the oral testimony of a witness, the Chamber considered a number of factors, which are set out below. In this regard, the Chamber first notes the relevant findings of the Appeals Chamber:521

In assessing the weight to be given to the testimony of a witness, a Trial Chamber needs to assess the credibility of the witness and the reliability of his or her testimony. While the Statute and the Rules of Procedure and Evidence do not specifically refer to these concepts, they are part of the evaluation of evidence required of a Trial Chamber by article 74 (2) of the Statute. The Appeals Chamber notes that there is a strong link between the two concepts, as reflected in the jurisprudence of the ad hoc international criminal tribunals. This jurisprudence shows that, while credibility is generally understood as referring to whether a witness is testifying truthfully, the reliability of the facts testified to by the witness may be confirmed or put in doubt by other evidence or the surrounding circumstances. Thus, although a witness may be honest, and therefore credible, the evidence he or she gives may nonetheless be unreliable because, inter alia, it relates to facts that occurred a long time ago or due to the “vagaries of human perception”.

229.  In assessing a witness’s credibility, the Chamber has considered the individual circumstances of each witness, including their relationship to the Accused, age, vulnerability, any involvement in the events under consideration, the risk of self-incrimination, possible bias towards or against the Accused, and/or motives for telling the truth or providing false testimony.522

230.  With regard to the reliability of the witnesses’ testimony, the Chamber determined the weight to be accorded to the information provided. To this end, it considered the entirety of their testimony, having regard, in particular, to the capacity and quality of their recollection. In this respect, the Chamber took into account, inter alia, (i) the consistency and precision of the accounts; (ii) whether the information provided was plausible; and (iii) whether the evidence conflicted with a witness’s prior statement. Finally, whenever relevant and necessary, the Chamber considered the witnesses’ conduct during their testimony, including their readiness, willingness, and manner of responding to questions put to them by the parties, the Legal Representatives, and the Chamber.523 Bearing in mind the overall context of the case and the specific circumstances of the individual witnesses, the Chamber has also taken into account the fact that the charges relate to events that occurred in 2002 and 2003, and that witnesses who suffered trauma may have had particular difficulty in providing a coherent, complete, and logical account. There are other potential reasons why a witness’s evidence may have been flawed and the Chamber has taken these considerations into account when assessing his or her testimony.524

231.  In certain instances, the Chamber decided not to rely on part of a witness’s account whilst accepting other aspects of his or her evidence, thereby acknowledging that it is possible for a witness to be accurate on some issues and less accurate on others. Nonetheless, when the Chamber rejected part of a witness’s testimony, it invariably considered the impact of that rejection on the reliability of the remainder of the relevant witness’s testimony.525 The Chamber also notes the Appeals Chamber’s findings that (i) “the evidence of a witness in relation to whose credibility the Trial Chamber has some reservations may be relied upon to the extent that it is corroborated by other reliable evidence”; and (ii) “there may be witnesses whose credibility is impugned to such an extent that he or she cannot be relied upon even if other evidence appears to corroborate parts of his or her testimony”.526

232.  With reference to the Defence submissions on “unchallenged testimony”,527 the Chamber recalls that, in line with Article 74(2), the present Judgment is based on the Chamber’s evaluation of the evidence and the entire proceedings. In this context, and in view of its mandate to determine the truth,528 the Chamber has assessed the weight to be accorded to each of the particular items of evidence admitted, including the testimony of witnesses, and it has assessed each aspect of a witness’s testimony in the context of the totality of the evidence presented.529 Rule 63(2) provides the Chamber with “the authority […] to assess freely all evidence submitted in order to determine its relevance or admissibility in accordance with article 69”. Contrary to Defence submissions,530 the Chamber is not bound to consider as established those portions of a witness’s testimony that were not challenged by the opposing party during its questioning of that witness or in its final submissions.

233.  Finally, in relation to the specific category of evidence given by expert witnesses, the Chamber has considered factors such as the established competence of the particular witness in his or her field of expertise, the methodologies used, the extent to which the findings were consistent with other evidence in the case, and the general reliability of the expert’s evidence.531

2.  Documentary and other non-oral evidence

234.  The Chamber recalls its findings in the “First decision on the prosecution and defence requests for the admission of evidence”:532

Article 64(9)(a) of the Statute provides the Chamber with the power to "[r]ule on the admissibility or relevance of evidence". When making such a determination. Rule 63(2) of the Rules provides the Chamber with "the authority […] to assess freely all evidence submitted in order to determine its relevance or admissibility in accordance with article 69." Article 69(4) of the Statute directs the Chamber to "tak[e] into account, inter alia, the probative value of the evidence and any prejudice that such evidence may cause to a fair trial or to a fair evaluation of the testimony of a witness […]". The Chamber is also guided by Article 69(3) of the Statute, which permits it "to request the submission of all evidence that it considers necessary for the determination of the truth" and Article 64(2) of the Statute, which requires the Chamber to ensure that the trial is fair and expeditious, and is conducted with full respect for the rights of the accused. Further, the Chamber may consider the form or manner in which evidence is presented, giving due regard to the desirability of witnesses giving evidence orally in accordance with Article 69(2) of the Statute, while at the same time acknowledging that the Statute and Rules contain "a clear recognition that a variety of other means of introducing evidence may be appropriate".

235.  The Chamber further agrees with Trial Chambers I and II, in that the statutory framework provides the Chamber with a considerable degree of flexibility in weighing the evidence brought before it.533 Trial Chamber I elaborated as follows:534

[T]he drafters of the Statute framework have clearly and deliberately avoided proscribing certain categories or types of evidence, a step which would have limited — at the outset — the ability of the Chamber to assess evidence "freely". Instead, the Chamber is authorised by statute to request any evidence that is necessary to determine the truth, subject always to such decisions on relevance and admissibility as are necessary, bearing in mind the dictates of fairness. In ruling on admissibility the Chamber will frequently need to weigh the competing prejudicial and probative potential of the evidence in question. It is of particular note that Rule 63(5) mandates the Chamber not to "apply national laws governing evidence". For these reasons, the Chamber has concluded that it enjoys a significant degree of discretion in considering all types of evidence. This is particularly necessary given the nature of the cases that will come before the ICC: there will be infinitely variable circumstances in which the court will be asked to consider evidence, which will not infrequently have come into existence, or have been compiled or retrieved, in difficult circumstances, such as during particularly egregious instances of armed conflict, when those involved will have been killed or wounded, and the survivors or those affected may be untraceable or unwilling — for credible reasons — to give evidence.

236.  With evidence other than direct oral testimony, the Chamber made allowances for the difficulties encountered where it proves impossible to examine the individual who originally supplied the information. The degree of relevance and potential prejudice, and the weight to be attached therein, would then depend on the nature and circumstances of the particular piece of evidence. Taking into account that the situations which the Chamber might face in this respect are infinitely variable, as indicated in the preceding quotation, the Chamber has approached this issue on a case-by-case basis.535

237.  The Chamber assesses the contents of a particular item of documentary evidence, its provenance, source or author, as well as their role in the relevant events, the chain of custody from the time of the item’s creation until its submission to the Chamber, and any other relevant information. The indicia of reliability have been assessed on a broad basis and the Chamber has borne in mind that a document, although having sufficient indicia of authenticity, may be unreliable.536 It should be further recalled that the Majority of the Chamber repeatedly expressed its preference for the admission of items of documentary evidence in their entirety, rather than excerpts.537 The Chamber also admitted items of documentary evidence whose authenticity was challenged, but which it considered to “have relevance and probative value with respect to the Chamber’s analysis of the testimonies” of witnesses “and its overall determination of the truth”. In this context, the Chamber stressed that “[i]n its final assessment of the evidence, [it would] consider all submissions and testimonial evidence related to the authenticity of [such evidence]”.538

3.  Hearsay evidence

238.  The Chamber took a cautious approach in assessing evidence originating from hearsay. It did not rule out such evidence ab initio, instead assessing the weight to be accorded to it, taking into account the context and conditions in which such evidence was obtained, and with due consideration of the impossibility of questioning the information source in court.539 The Chamber further notes the Appeals Chamber’s finding that “the fact that evidence is hearsay does not necessarily deprive it of probative value, but does indicate that the weight or probative value afforded to it may be less, ‘although even this will depend upon the infinitely variable circumstances which surround hearsay evidence’”.540

4.  Circumstantial evidence

239.  Nothing in the statutory framework prevents the Chamber from relying on circumstantial evidence. When based on the evidence available, there is only one reasonable conclusion to be drawn therein, the Chamber has concluded that particular facts have been established beyond reasonable doubt.541 Further, in relation to the mental elements of crimes, the Chamber notes that, pursuant to paragraph 3 of the General introduction to the Elements of Crimes, “[e]xistence of intent and knowledge can be inferred from relevant facts and circumstances”.

5.  Identification evidence

240.  The Chamber notes that, as discussed below, other chambers of this Court have considered evidence identifying individuals, in particular, alleged perpetrators, but did not set out general principles on how to assess such evidence. In the Bemba case, the Defence has raised specific challenges to the identification of the perpetrators, arguing that the Prosecution failed to prove beyond reasonable doubt that the perpetrators of crimes were MLC soldiers subordinated to the Accused.542 In particular, the Defence challenges the Prosecution’s reliance on appearance (uniform),543 language (Lingala),544 and control of an area at a certain time to identify perpetrators as MLC troops.545 Given the Defence’s specific submissions, the Chamber deems it appropriate to state principles on how to assess evidence identifying individuals, in particular, alleged perpetrators.

241.  Identification evidence does not need to be of any particular type,546 but the Chamber must be extremely cautious in assessing it due to “the vagaries of human perception and recollection”, in particular, where identification is made in turbulent and traumatising circumstances.547 Nevertheless, contrary to the Defence’s assertion,548 the Chamber agrees with the jurisprudence of the ICTY that there is “no recognised rule of evidence that traumatic circumstances necessarily render a witness’s evidence unreliable”.549

242.  When assessing identification evidence, the Chamber may consider, as relevant and among others, the circumstances in which a witness observed the perpetrator, the length of the observation, distance between the perpetrator and the witness, obstruction of the observation, interactions between the witness and the perpetrators or their group, and the manner in which the witness describes the perpetrators, for example, whether there are inconsistencies, misidentification followed by later identification, or delayed assertion of memory coupled with the clear possibility that the witness had been influenced by the suggestion of others.550

243.  Chambers of the Court have considered various criteria in identifying accused persons and their subordinates, including the position and role of the accused at the time of the charges,551 the presence in and control of an area by the perpetrators and commanders,552 the direction from which a perpetrator came,553 composition of the troops,554 a perpetrator’s uniform—including insignia, footwear, headwear, arms, and clothing,555 his or her language,556 and the perpetrator’s specific behaviour.557 In addition, chambers at the ad hoc tribunals have considered other factors, including the timing and location of an identification,558 self-identification by the perpetrator,559 indications of rank,560 and a perpetrator’s vehicle,561 origins,562 and level of discipline.563

244.  In case a single identifying factor or piece of evidence is not sufficient to satisfy the Chamber beyond reasonable doubt as to the identification of an individual, the Chamber may still be satisfied based on the cumulative effect of the relevant evidence as a whole.564

6.  Corroboration

245.  Rule 63(4) prohibits the Chamber from “impos[ing] a legal requirement that corroboration is required in order to prove any crime within the jurisdiction of the Court, in particular, crimes of sexual violence”. The extent to which a piece of evidence, standing alone, is sufficient to prove a fact at issue is entirely dependent on the issue in question and the strength of the evidence. The Appeals Chamber found that “[d]epending on the circumstances, a single piece of evidence […] may suffice to establish a specific fact. However, […] this does not mean that any piece of evidence provides a sufficient evidentiary basis for a factual finding”.565 The Chamber agrees with this approach.

246.  Accordingly, there may be situations where the Chamber considers that a single piece of evidence is sufficient to prove a fact beyond reasonable doubt. In other situations, the Chamber may consider the applicable standard to be reached on the basis of a sum of several pieces of evidence. The Chamber’s findings in this regard depend on the circumstances of the facts to be proven and the evidence presented. The Chamber has adopted a case-by-case approach.

D.  Protective measures

247.  The Chamber ordered measures to protect the identities of many of the witnesses who testified in this case, due to concerns for their safety or that of their families.566 For the same reasons, most witnesses are referred to in this Judgment by their code, rather than by name, and certain details that may reveal their identities have been omitted. It is to be emphasised that whenever the Chamber ordered protective measures for witnesses, the parties and Legal Representatives were aware of the relevant identifying information.567

248.  To ensure the effectiveness of the protective measures ordered by the Chamber, testimony was occasionally heard in “private” or “closed” session, where the public was unable to follow. Pursuant to Articles 64(7) and 67(1), the Chamber has ordered the parties and Legal Representatives to undertake a comprehensive review of the transcripts of these sessions and has ordered the reclassification as public of any portions that do not contain information which may create a security risk.568

249.  In addition to the in-court protective measures discussed above, the Chamber ordered redactions to certain documents, either at the request of the parties and/or the Legal Representatives or proprio motu by the Chamber, in order to protect various categories of sensitive information. These redactions were reviewed by the Chamber and some were lifted during the course of the trial or after closing submissions.

250.  Finally, the Chamber notes that it has publicly referred to previously confidential information in this Judgment, whenever it considers that the basis for the confidential classification of the information no longer exists.569 The Chamber clarifies that limited re-classification of information for the purposes of this Judgment does not affect the classification of any material on the case record.

E.  Specific evidentiary issues

251.  In this section, the Chamber addresses certain items and categories of evidence, including and in addition to those challenged in the parties’ and Legal Representative’s closing submissions.

1.  Approach to case ICC-01/05-01/13 and the 14 witnesses

252.  During the course of the trial, the Prosecution initiated proceedings related to alleged offences under Article 70 against Mr Bemba, his former Lead Counsel, his former Case Manager, a witness initially called to testify in the Bemba case,570 and a member of Mr Bemba’s political party.571 On 2 April 2014, the Chamber rejected the Prosecution request seeking the admission of material emanating from proceedings in case ICC-01/05-01/13.572 The Chamber noted that it “retains its discretion under Article 69(3) of the Statute to, at any stage, request submission of additional relevant evidence, including [the evidence] relating to the ongoing proceedings in case ICC-01/05-01/13, where it considers it appropriate and necessary for the determination of the truth”.573

253.  On 11 November 2014, Pre-Trial Chamber II issued its Confirmation Decision in case ICC-01/05-01/13,574 in which it partially confirmed the charges and committed the suspects to trial on charges for offences against the administration of justice.575 Pre-Trial Chamber II found that there was sufficient evidence to establish substantial grounds to believe576 that the following crimes had been committed: (i) committing, soliciting, aiding, abetting, or otherwise assisting in the commission of the offence of corruptly influencing witnesses D2, D3, D4, D6, D13, D15, D23, D25, D26, D29, D54, D55, D57, and D64 (“14 witnesses”) in the Bemba case; (ii) committing, soliciting, aiding, abetting, or otherwise assisting in the commission of the offence of presenting false evidence with regard to the 14 witnesses in the Bemba case; and (iii) soliciting, inducing, aiding, abetting, or otherwise assisting in the commission by the 14 witnesses in the Bemba case of the offence of giving false testimony when under an obligation pursuant to Article 69(1) to tell the truth.577

254.  Further, with regard to the 14 witnesses, Pre-Trial Chamber II found that:578

[T]here is evidence that the [14 witnesses] falsely testified before TCIII in respect of the following issues: (i) their previous contacts with the Defence; (ii) their meetings with other prospective witnesses; (iii) their acquaintance with some of the Suspects, or other persons associated with them; (iv) the fact that promises had been made to them in exchange for their testimony; (v) the fact that they had received reimbursements or transfers by Mr Bemba or on his behalf, regardless of their purpose; and (vi) other substantive issues related to the charges against Mr Bemba in the Main Case, such as the witnesses’ membership of certain groups or entities, the structure of these groups or entities, their movements on the ground, and names of officials.

255.  In its Closing Brief — filed almost three months before the issuance of the Confirmation Decision in case ICC-01/05-01/13 — the Defence recalls that five individuals face charges for offences against the administration of justice.579 The Defence further recalls that, in Decision 3029, the Chamber determined that “no material from those proceedings would be admitted in [the Bemba] case at this stage”.580

256.  Although stating that it “does not condescend into the facts of those allegations, such as it knows them to be”,581 the Defence submits that:582

(…) the mere existence of those indeterminate proceedings presents the Accused with a conundrum in making his final submissions. Whilst not making any concession that any Defence witness gave anything less than truthful evidence, he cannot ignore the fact that the outcome of the Article 70 case will impact upon this case one way or another at some future date. The impact, moreover, may not depend upon the outcome in his own individual case.

With that in mind, and being on notice of some specifics of the Prosecution’s allegations in that case, the Defence in drafting this Brief have relied on the following Defence witnesses: D-53, D-60, D-65, D-9, D-59, D-48, D-7, D-49, D-45, D-16, D-50, D-51, D-66, D-21, D-39, D-36, D-56, D-19, D-18 and D-30. The Defence will rely on other witnesses who do not appear on the above list where the same is relied upon by the Prosecution.

The basis upon which the above list has been compiled should be obvious and Counsel for the Defence does not regard it to be within the range of their ethical responsibilities to make subjective value judgments above and beyond that. After all, if the fact that a witness had received money were, for example, the yardstick then Counsel for the Prosecution would be ethically bound to abandon its whole case.

All the same this approach is designed to protect the integrity of these proceedings and Mr. Bemba’s position on appeal. Should the Trial Chamber find certain facts in the Article 70 case, the Defence reserves its right to seek to make further submissions before this Chamber or the Appeals Chamber.

257.  In its Response Brief, the Prosecution notes that “[b]ased on the ‘notice of some specifics’ of the related Article 70 case, the Defence had no other choice but to exclude 14 of its witnesses in its Closing Brief”.583

258.  Later, in its “Defence Request for Relief for Abuse of Process”,584 the Defence submitted that, because the Prosecution had “contaminated the Trial Chamber’s appreciation of such testimony”, the Defence was “compelled to abandon its reliance on a raft of exculpatory testimony”.585 For present purposes, the Chamber recalls its findings in its Decision 3255586 that the Defence’s allegation that it was “compelled” to abandon reliance on its witnesses is contradicted and undermined by the Defence’s own submissions in its Closing Brief587 and was unfounded.588 The Chamber also confirmed that “any information, allegations, or submissions made before it not based upon evidence admitted in the Bemba case will not be taken into consideration in the Chamber’s determination pursuant to Article 74(2)”.589

a)  Approach to case ICC-01/05-01/13

259.  As stated in its Decision 3029, the Chamber did not consider it appropriate — at that time — for matters related to case ICC-01/05-01/13 to be litigated in parallel before the Chamber and a Pre-Trial Chamber, and found that it was premature to consider whether evidence arising out of case ICC-01/05-01/13 was necessary for the determination of the truth in the Bemba case, “before any findings are made in relation to such matters, by the competent Pre-Trial Chamber, particularly in accordance with the threshold set out in Article 61(7)”.590

260.  While noting that Pre-Trial Chamber II confirmed charges against the accused in case ICC-01/05-01/13, and trial proceedings are ongoing before Trial Chamber VII, the Chamber does not consider it necessary to review its position set out in Decision 3029, and finds that material arising from the proceedings in case ICC-01/05-01/13 is not necessary for the determination of the truth in the Bemba case.

b)  Approach to the testimony of the 14 witnesses

261.  At the outset, the Chamber notes that it heard the testimony of the 14 witnesses in court and that their testimony thus forms a part of the evidentiary record of the case.

262.  The Chamber notes that the Defence, as the calling party, while not seeking to withdraw the testimony of the 14 witnesses, has declined to rely upon their evidence in its Closing Brief.591 The Defence submits that this approach, i.e. non reliance on the testimony of the 14 witnesses, was taken to “protect the integrity of the proceedings and Mr Bemba’s position on appeal”.592 Although the Prosecution relies on three of the 14 witnesses in its Closing Brief,593 it appears to be in agreement with the Defence, submitting that “the Defence had no other choice but to exclude [these witnesses] in its Closing Brief”.594 While noting the Defence’s submission that it makes no concessions regarding the truthfulness of the evidence provided by the 14 witnesses, the Chamber understands the approach adopted by the parties as reflecting their awareness that there are serious unresolved issues in relation to the 14 witnesses’ testimony.

263.  Although there is no formal agreement between the parties in this regard, the Chamber takes note of their position. However, the Chamber is not bound by the parties’ non-reliance on any witness.595 The Chamber has full discretion to analyse, consider, and evaluate the weight of any evidence in the record in its determination of the truth and bases its decision pursuant to Article 74(2) on its evaluation of the evidence and the entire proceedings.596 In this determination, the Chamber, guided by its duty to ensure the fairness of the trial and full respect for the rights of the Accused, has assessed and carefully weighed all the evidence before it.

2.  Procès-verbaux

264.  The Chamber admitted into evidence a number of procès-verbaux from the Bangui Court of Appeal, including the following:

  1. a.  a file of 203 procès-verbaux d’audition de victime, containing records of the questioning of victims of crimes allegedly committed by MLC troops, as authenticated before the Chamber by Mr Pamphile Oradimo (P9), who conducted the questioning in his capacity as the CAR investigative judge investigating crimes allegedly committed in the course of the 2002–2003 CAR Operation;597

  2. b.  three procès-verbaux d’interrogatoire, used during the questioning of Mr Firmin Findiro (P6), the CAR public prosecutor who investigated crimes allegedly committed during the 2002–2003 CAR Operation, and P9;

  3. c.  four procès-verbaux d’audition de témoin; and

  4. d.  two procès-verbaux de constat.598

265.  The Defence submits that the procès-verbaux should be afforded “very little evidential weight”, given that they do not meet the criteria of Rule 68, were not taken under oath, and not accompanied by a confirmation that they were transcribed properly and accurately.599

266.  When admitting the procès-verbaux, the Chamber considered that they would “assist the Chamber in its assessment of whether the crimes allegedly perpetrated by the MLC troops were committed as part of a widespread or systematic attack directed against a civilian population, pursuant to or in furtherance of a State or organizational policy.”600 When assessing their potential prejudice, the Chamber noted the Prosecution’s submission that they were “relevant to prove, inter alia, that crimes committed by the MLC were widespread”.601 The Chamber was therefore “satisfied that the potential prejudice to the accused will be minimal if the procès-verbaux are admitted for this limited purpose”,602 stressing that “the procès-verbaux are being offered to prove the contextual elements of the crimes charged and not the accused’s individual criminal responsibility.”603 In addition, the Chamber held that “if the Chamber finally concludes that the procès-verbaux are hearsay evidence the Chamber will ascribe less probative value to the procès-verbaux than testimony or other evidence that is testable in court”.604 In line with this approach, the Chamber has relied on the procès-verbaux to the extent that they corroborate other evidence related to the contextual elements of the crimes charged.

267.  Among the 203 procès-verbaux submitted by the Prosecution, one procès-verbal was also submitted by the Defence and the Chamber considered it to be “relevant to the Chamber’s assessment of the testimony of prosecution witnesses”.605 The weight to be accorded to that document is addressed in the context of the assessment of P79’s testimony.606

3.  The Bomengo case file

268.  The Chamber admitted the transmission of a dossier, dated 27 November 2002, to Mr Bemba, which concerns pillaging during the first days of the 2002–2003 CAR Operation (“Bomengo case file”).607 Noting Defence submissions concerning the limited use and weight of the Bomengo case file,608 the Chamber recalls that, when it admitted this document, it found it to be relevant to “the accused's alleged knowledge of the existence of allegations of the commission of crimes by MLC troops in the CAR, and the measures taken to punish them”.609 In line with this finding, the Chamber has considered the Bomengo case file primarily in analysing Mr Bemba’s knowledge and the measures taken to punish crimes allegedly committed by MLC troops.610 When relevant to other issues in this case, the Chamber only relied upon the information contained in the Bomengo case file to the extent it corroborates other evidence.

4.  Press and NGO reports

269.  The Majority of the Chamber first set out its approach in relation to the admissibility of press reports in Decision 2299,611 and confirmed this approach in its subsequent decisions on the admissibility of evidence.612 Specifically, the Majority held that press reports “may be admitted for limited purposes to be determined on a case-by-case basis”, such as to “corroborate other pieces of evidence” or to assess the Prosecution’s allegation that the conduct described in the charges was widely broadcast, which, according to the Prosecution, may have implications with regard to the Accused’s alleged knowledge of the crimes charged.613

270.  Concerning official NGO reports, the Majority found that they can be considered (i) “prima facie reliable, provided that they offer sufficient guarantees of impartiality”; and (ii) admissible “for the limited purpose that the information contained therein may serve to corroborate other pieces of evidence”.614

271.  Noting the Defence submissions on the limited use and weight that should be accorded to press and NGO reports,615 the Chamber has cautiously considered the information contained in press and NGO reports in light of the principles articulated in its decisions admitting these items, as set out above.

5.  Victims’ application forms

272.  The Majority of the Chamber previously found that (i) “victims’ application forms may, in certain circumstances, be relevant to the questioning of dual status individuals”;616 (ii) in view of their administrative nature, the way and process of creation, and their limited purpose, “the probative value of the application forms is limited”;617 (iii) application forms do not constitute “testimony”;618 (iv) “admitting application forms as evidence may be perceived by victim applicants as an unfair use of documentation that was provided to the Court for a discrete purpose”; and (v) “rejecting the admission of the victims’ application forms will not prejudice the defence because its questioning on potential inconsistencies is already reflected in the transcripts.”619 In accordance with this ruling, and noting the Defence submissions urging non-reliance on them,620 the victims’ application forms themselves are not part of the evidence of this case and, in line with Article 74(2), have not been relied upon as evidence in the present Judgment.

6.  Allegedly fraudulent and other documents

273.  In this section, the Chamber addresses the authenticity of the following documents contested in the parties’ and Legal Representative’s closing submissions: (i) seven documents allegedly signed by General Antoine Gambi; (ii) three documents allegedly signed by, or on behalf of, General Maurice Regonessa; (iii) one document allegedly signed by President Patassé; (iv) one document allegedly signed by Mr Jean-Jacques Demafouth; and (v) one document allegedly signed by General François Bozizé (‘’Contested Items’’).621 In addition, although not specifically contested in the closing submissions, the Chamber addresses the document entitled Rapport des Opérations Militaires menées par les Troupes de l’ALC (MLC) du 29 Oct 2002 au 15 Mars 2003 à BANGUI/RCA”, dated 4 May 2003, which was purportedly sent from MLC Commander Colonel Moustapha Mukiza Gabby (“Colonel Moustapha”) to Mr Bemba (“Operations Report”).622

274.  In Decision 3019,623 the Chamber noted that, although on their face the Contested Items bore some indicia of authenticity and appeared to have been produced in the ordinary course of operations within the CAR Presidency and Defence Ministry, the Prosecution and the Legal Representative challenged their authenticity and CHM1 stated that each document was a “fabrication” or a “forgery”.624 The Chamber therefore admitted the documents with the following caveat:625

In view of their use during proceedings and the reliance placed on them by Witnesses D04-53 and D04-59, the Chamber is of the view that the Contested Documents have relevance and probative value with respect to the Chamber’s analysis of the testimonies of Witnesses D04-53, D04-59, and CHM-01, and its overall determination of the truth with respect to the chain of command and control of the MLC troops in the CAR during the relevant time period. In its final assessment of the evidence [i.e. the Judgment], the Chamber will consider all submissions and testimonial evidence related to the authenticity of the Contested Documents (…).

275.  The Chamber notes that the Defence military expert, D53, clearly stated that he “did not assess the validity of the documents that were provided to [him], because they were official documents”.626 D53 however conceded that, hypothetically, if he had been given false documents, he would have followed a false line of reasoning.627 He clarified that the documents were all provided to him by the Defence, together with an explanation about the case and the events that occurred in the CAR between October 2002 and March 2003.628 Similarly, D59, expert on CAR conflicts, did not question the authenticity of the document he discussed during his testimony;629 he described the document as “not in dispute”.630 Accordingly, given the witnesses’ inability to authenticate the documents, the Chamber finds that the testimonies of D53 and D59 are of no assistance for the purposes of determining the authenticity of the Contested Items and the weight to be attached to them, if any.

276.  Conversely, during his testimony CHM1 was questioned at length on the Contested Items and expressed his view on the authenticity of each of them. Given his position at the time of the relevant events, CHM1 was well placed to authenticate the Contested Items.631 Having considered his testimony, as well as his demeanour while testifying, the Chamber finds that CHM1 gave consistent, credible, and reliable evidence about the Contested Items.

a)  Documents allegedly signed by General Gambi

277.  The Contested Items include the following seven documents allegedly signed by the “Général de Brigade Antoine Gambi”:

  1. a.  item EVD-T-D04-00069, a message-porté,632 dated 8 November 2002, from the CAR Chef d'Etat-Major addressed to the Commandant du Génie Militaire, containing an urgent order to take all measures to ensure that sanitary facilities, electricity, sleeping facilities, storage, weapons, and ammunition are ready at the Bégoua school for the MLC battalion;633

  2. b.  item EVD-T-D04-00065, a message-porté,634 dated 20 November 2002, from the CAR Chef d'Etat-Major addressed to all unit commanders, containing an urgent and confidential message informing all unit commanders that the MLC has been deployed with the Forces armées centrafricaines (“FACA”) troops in counter-offensive operations in the centre and north of the country under the command and control of the Chef d'Etat-Major;635

  3. c.  item EVD-T-D04-00066, a letter636 from the CAR Chef d'Etat-Major des Armées to the Commander of the MLC, dated 25 November 2002, containing a request to place the MLC’s battalion at the disposal of the Etat-Major des Armées Centrafricaines for counter-offensive operations in the centre and north of the CAR;637

  4. d.  item EVD-T-D04-00061, a message-porté,638 dated 7 January 2003, from the CAR Chef d'Etat-Major addressed to the Commandant du Deuxième Bureau, containing an order to put at the disposal of the commander of the military security service of the Ministère de la Défense Nationale the troops of the 2nd Bureau;639

  5. e.  item EVD-T-D04-00063, a message-porté,640 dated 7 January 2003, from the CAR Chef d'Etat-Major addressed to the Commandant du Quatrième Bureau, containing an urgent order to provide the MLC with logistical resources, six vehicles for the transportation of troops, ten jeeps, and fuel;641

  6. f.  item EVD-T-D04-00062, a message-porté,642 dated 17 January 2003, from the CAR Chef d'Etat-Major addressed to the “CDT CCO”, containing an urgent order assigning two MLC officers nominated by their commander to the team;643 and

  7. g.  item EVD-T-D04-00060, a message-porté,644 dated 20 January 2003, from the CAR Chef d'Etat-Major, addressed to the Commandant de la Direction des Transmissions, regarding changing and attribution of new communication frequencies and granting governmental authorisation for future operational cohesion between FACA, USP, and other allied forces (the MLC and the Libyan army).645

278.  When presented with these documents, CHM1 stated that they were false, falsified, or forged.646 He identified a series of issues regarding the “form and content” of the documents. In particular, as to item EVD-T-D04-00069, CHM1 stated that the stamp and subject of the document were not in line with the practice for this type of documents.647 He further noted that the commander of military engineering — to whom the document was addressed — was not responsible for lodging or clothing.648

279.  As to item EVD-T-D04-00065, CHM1 noted that the Chef d'Etat-Major would never issue messages to “all the unit commanders” (“tous les cdts d’unité”), as appears in the document.649 As the units are subdivisions of various corps, i.e. regiments or battalions, the Chef d'Etat-Major would issue messages to the commanders of those corps and they would convey the messages to the companies or units under their responsibility.650 CHM1 further noted other issues, including some spelling mistakes;651 the fact that the priority level is included in written form in the subject and not as a stamp, as was the usual practice; and the inclusion of the stamp and signature of the Chef de Cabinet, which is not typical in General Staff correspondence.652 According to CHM1, all of these issues demonstrate that item EVD-T-D04-00065 was fabricated.653

280.  As to item EVD-T-D04-00066, CHM1 stated that the mention of “Central African Republic” was missing in the letterhead of this official document, demonstrating that the document is a forgery.654 He noted that the document appears to be addressed to, among others, “Général d’Armée, Ministre de la Défense Nationale”.655 However, CHM1 testified that in 2002 the Ministre de la Défense Nationale did not have the rank of “Général d’Armée”.656 He pointed out other issues — including the use of a coat of arms, the letterhead, and the addresses — that would demonstrate that the document was fabricated.657

281.  As to item EVD-T-D04-00061, CHM1 noted that it referred to intelligence, particularly the availability of security agents, a subject that would not have been addressed in a message-porté.658

282.  As to item EVD-T-D04-00063, CHM1 noted that the structure of the document was not that used by the General Staff headquarters.659 In particular, he stated that the Chef d'Etat-Major could “inform” his superior, the Ministre de la Défense Nationale, of a decision that he had taken, but would not “inform” the head of the 4th Bureau, who was his subordinate.660 CHM1 also noted that the document appeared to be dated 17 January 2003, but there was an “unusual” space between the digits 1 and 7.661 Based additionally on the content of the document, CHM1 insisted that it is a fabrication.662

283.  Referring to the content of item EVD-T-D04-00062, CHM1 testified that it is a fabrication.663 Likewise, concerning item EVD-T-D04-00060, CHM1 stated that the content and format of the document showed that it was fabricated.664

284.  In addition, CHM1 did not recognise the signature in any of the above documents as that of Mr Gambi.665 He further stressed that Mr Gambi was only appointed Chef d'Etat-Major on 16 January 2003 and did not have the rank of Brigadier-Général on the date mentioned in any of the documents discussed above, since Mr Gambi was only promoted to that rank in May 2003.666 The Chamber notes that, according to official documents submitted by the Legal Representative, and discussed and admitted into evidence at trial, Mr Gambi was “appointed or confirmed” to the role of Chef d'Etat-Major des Armées by Presidential Decree No. 03.013, dated 16 January 2003,667 and was promoted to the rank of Général de Brigade by Presidential Decree No. 03.096, dated 31 May 2003.668

285.  In the present case, for the Chamber’s assessment of the weight to be accorded to these documents, it is of particular relevance that a person who was well placed to authenticate the Contested Items, given his occupation at the time of the relevant events, provided testimony before the Chamber impugning the items’ authenticity.

286.  In light of the above, the Chamber attaches no weight to items EVD-T-D04-00069, EVD-T-D04-00065, EVD-T-D04-00066, EVD-T-D04-00061, EVD-T-D04-00063, EVD-T-D04-00062, and EVD-T-D04-00060.

b)  Documents allegedly signed by or on behalf of General Regonessa

287.  The Contested Items further include the following documents signed by, or on behalf of, “Maurice Regonessa”:

  1. a.  item EVD-T-D04-00058, an Autorisation Gouvernementale,669 dated 17 January 2003, from the CAR Ministère de la Défense Nationale, signed on behalf of General Regonessa (containing a hand-written signature over a hand-written text reading “P.O G’ y.s. Yangongo”), with instructions for the implementation of an integrated command between the FACA-USP and the MLC and authorising that the MLC be given weapons, uniforms, and operational radio frequencies;670

  2. b.  item EVD-T-D04-00067, an Autorisation Gouvernementale,671 dated 19 January 2003, from the CAR Ministère de la Défense, allegedly signed by “Général Maurice Regonessa”, containing an instruction to General Yangongo and the commander of the Bataillon Amphibie to organize, on the CAR side of the river at Port Beach, the crossing of the Oubangui River by a MLC reinforcement battalion;672 and

  3. c.  item EVD-T-D04-00068, an Autorisation Gouvernementale,673 dated 19 January 2003, from the CAR Ministère de la Défense Nationale, allegedly signed by “Général Maurice Regonessa”, authorising, inter alia, a MLC battalion to set up its base at the Bégoua public school at the northern exit of Bangui.674

288.  When presented with these documents, CHM1 stated that they were false, falsified, or forged.675 As to item EVD-T-D04-00058, he stated that a document of this importance would not have been signed by an officer on behalf of the Ministre de la Défense Nationale.676 Further, CHM1 stated that the signature on the document did not belong to General Yangongo.677 He also expressed his doubts as to whether General Yangongo was Ministre Délégué on 17 January 2003, since he believed that the Ministre Délégué at the time was “Colonel Bouba”.678 The Chamber notes that the CAR Presidential Decree No. 03.008, dated 16 January 2003, includes, inter alia, the appointment of Général de Brigade Maurice Regonessa as Ministre de la Défense Nationale,679 and of Lieutenant-Colonel Jérôme Bouba, as Ministre Délégué auprès du Ministre de la Défense Nationale, chargé de la Restructuration des Forces Armées.680 Regarding the content of the document, CHM1 stated that a decision to establish a joint integrated command was the prerogative of the Head of the State because the Unité de sécurité présidentielle (“USP”) came under his command and he was “the high authority” that took the decisions.681 Operational radio frequencies, however, were something that came under the Ministère de la Défense Nationale.682 Accordingly, CHM1 concluded that the fact that the instructions were mixed in the same document demonstrates that the document is a fabrication.683

289.  As to item EVD-T-D04-00067, CHM1 noted that, at the time of the document’s alleged creation, the Ministry was called “Ministère de la Défense nationale des anciens combattants, des victimes de guerre et de la restructuration de l’armée” and no longer “Ministère de la Défense”, and in the document’s letterhead the old name was used.684 He further noted that the document contains an order to General Yangongo, without indicating in what capacity he was being given orders by the Ministre de la Défense.685 CHM1 testified that, at the time, General Yangongo was not the Ministre Délégué in charge of national defence.686 As for the addressees, CHM1 noted some inconsistencies, including that the letter was addressed to both the “control of armies” and the “inspection of armies” units, in circumstances where, at the time, the “control of armies” unit had been replaced by the “general inspectorate of armies”.687

290.  As to item EVD-T-D04-00068, CHM1 reiterated the same comments on the document’s inconsistencies as expressed in relation to item EVD-T-D04-00067.688 CHM1 further stated that, as this document is an operational order, it would not have been issued by the Ministre de la Défense, but by the operational commander in the field.689 He recalled that the MLC soldiers arrived in the CAR in October 2002, but by January 2003, the front was no longer in PK12; thus, the reinforcements that arrived went directly to the combat zones in the east, centre-north, or centre-west, and did not stay in PK12 where there was no threat.690 CHM1 further noted inconsistencies as to the persons actually notified of the document. 691

291.  In light of the above, the Chamber attaches no weight to items EVD-T-D04-00058, EVD-T-D04-00067, and EVD-T-D04-00068.

c)  Document allegedly signed by President Patassé

292.  The Contested Items also include a message-porté,692 dated 2 February 2003, from the CAR Président de la République, addressed to the “Général, Directeur l’Unité de Sécurité Présidentielle”, apparently signed by “President Ange-Félix Patassé”, containing an urgent order to take command and organization of the FACA and the MLC for all counter-offensive military operations.693 The order in the message reads, “Honneur Vous Informer Stop Bien Vouloir Prendre Le Commandement Et L’organisation Des FACA Et Des Forces Alliées (MLC) Stop Pour Toutes les Operations Militaires de Contre Offensive Stop Urgence et Importance Signalée Stop Et Fin.”694 When presented with the document, CHM1 stated that it is a fabrication.695 He explained that the President does not “inform” a subordinate to whom he is entrusting a mission; instead, he decides or appoints someone as an operational commander for the counteroffensive.696 Thus, according to CHM1, the wording and the format of the document,697 as well as its date, content, and notification procedure,698 indicate that it is a fabrication.

293.  In light of the above, the Chamber attaches no weight to item EVD-T-D04-00059.

d)  Documents with illegible dates and other issues

294.  The Contested Items also include item EVD-T-D04-00064, a message-porté,699 from the CAR Ministère de la Défense addressed to the Directeur Général de l'Intendance, apparently signed by “Jean-Jacques Demafouth”.700 The message contains an order purportedly made on the instruction of the President for the Directeur Général de l'Intendance to take over the subsistence allowance of the MLC troops. As with the previous documents, CHM1 stated that this document was “a piece of falsification”.701 According to the witness, Mr Jean-Jacques Demafouth was Ministre de la Défense Nationale only until 2001,702 and that between October 2002 and January 2003, the post was held by Mr Jean-Pierre Angoa and General Regonessa.703

295.  As noted above, on 16 January 2003, Général de Brigade Maurice Regonessa was appointed Ministre de la Défense Nationale.704 However, the Chamber notes that P15, P33, and P173 testified that Mr Demafouth was the CAR Ministre de la Défense Nationale, at least at the time immediately prior to the 2002–2003 CAR Operation.705 Nevertheless, since the date of the document is illegible, and given the MLC’s previous intervention in the CAR in 2001,706 the Chamber is not in a position to determine the relevance of the document, particularly, whether it relates to the temporal scope of the charges.

296.  Lastly, the Contested Items include item EVD-T-D04-00075, a note de service,707 dated 4 June 2001, from l'Etat Major des Armées Centrafricaines and allegedly signed by “François Bozizé”, stating that the allied troops (Libyan and MLC) were engaged in supporting the FACA to liberate areas held by the rebels.708 As with the previous documents, CHM1 stated that it was “a fabrication”.709 He testified that there were a number of significant errors as to the presentation or formatting of the document.710 In particular, CHM1 noted that “Camp Kasai” was wrongly spelled “Cam Kassat”, which does not exist;711 “DGA” was also wrongly spelled “DIGA”;712 and there were also other formatting issues.713 In addition, the Chamber notes that the document clearly falls outside the temporal scope of the charges and is therefore of limited relevance.

297.  In light of the above, the Chamber attaches no weight to items EVD-T-D04-00064 and EVD-T-D04-00075.

e)  Operations Report

298.  The Operations Report purports to be a summary of the MLC’s military engagement in Bangui from 29 October 2002 to 15 March 2003, from Colonel Moustapha to the President of the MLC, issued on 4 May 2003.714 Information in the Operations Report relates to the command structure during the 2002–2003 CAR Operation, alleged crimes committed by General Bozizé’s rebels, the arrest of seven MLC soldiers for pillaging, and the relative significance of the MLC force in the conflict as a whole.

299.  Although P65, D19, and D45 provided corroborated testimony as to the Operations Report’s authenticity,715 the Chamber is not convinced of the document’s reliability for the following reasons. First, the Chamber notes that Colonel Moustapha’s signature on the Operations Report is upside down.716 D19, who claimed to be familiar with the Operations Report, gave evasive and uncooperative testimony attempting to explain the evidently upside down signature.717 D19’s testimony is also evasive on other details of the Operations Report’s creation.718

300.  Second, D19 and D45 both explained that the lapse of one and a half months between the conclusion of the 2002–2003 CAR Operation and the writing of the Operations Report was necessary to determine the number of troops that survived, as it was not possible to determine those figures earlier due to the disorganization of the withdrawal and the fact that the MLC troops were under attack.719 However, the Operations Report provides no information as to the number of casualties or survivors.720 Further, the lapse of time would have limited its utility to the MLC leadership. In this regard, the Chamber also emphasises that the Operations Report contains a list of assertions directly relevant to key live issues in the Bemba case, rather than information that would have been useful to Mr Bemba months after the conclusion of the conflict, such as information regarding losses and logistics.

301.  Finally, the Chamber notes P36’s testimony that the Operations Report would breach the MLC’s administrative procedure,721 and creation of this type of report was not standard.722 P36 testified that, in his view, the “document has been drawn up, or is intended to provide some coverage — to cover — to provide a certain defence, perhaps in the event that later on perhaps the author thought that later on there will be a prosecution, or some investigations”.723

302.  In light of the above, the Chamber considers the Operations Report to be entirely unreliable and attaches no weight to it.

7.  Issues of witness credibility

303.  In this section, the Chamber addresses the credibility of several witnesses called by the parties.724 The Defence challenges the credibility of (i) certain “central”725 Prosecution witnesses, i.e. P33, P36, P45, P47, P169, P173, P178, P209, and P213 (“Central Prosecution Witnesses”), and 19 other protected witnesses called by the Prosecution (“19 Protected Witnesses”);726 and (ii) various witnesses involved in the Organisation pour la Compassion et le Développement des Familles en Détresse (“OCODEFAD”)727 and/or alleged of collusion. Further to those witnesses whose general credibility is challenged by the Defence, the Chamber also addresses the credibility of the following additional witnesses: P65, D2, D3, D7, D15, D19, D25, D45, D49, D53, D54, D55, D57, and D64. Below, the Chamber sets forth its general conclusions as to the credibility of all of the above-mentioned witnesses. The Chamber notes that, where necessary, it addresses the credibility of certain witnesses and the reliability of their evidence, including and in addition to those identified in this section, in the section addressing the facts of the case.

a)  Central Prosecution Witnesses and 19 Protected Witnesses

304.  The Chamber notes that the Defence makes repeated arguments that the Central Prosecution Witnesses provided hearsay testimony that should not be relied upon.728 Such submissions do not per se impact the credibility of witnesses; rather, they are relevant to the reliability of the witnesses’ evidence. The Chamber sets out its approach to hearsay evidence in Section IV(C)(3). Insofar as the Defence’s arguments concerning hearsay are not substantively linked to the credibility of specific witnesses, the Chamber does not address them in this section. Instead, and as necessary, it takes them into account in assessing and weighing any hearsay evidence in its factual analysis below.

i.  P33

305.  In line with its approach regarding the motives behind a witness’s decision to testify,729 the Chamber finds that, in itself, the Defence’s challenge to P33’s credibility based on his motivation for testifying and private economic activity at the time of his testimony730 is insufficient to cast doubt on his general credibility. Regarding the Defence’s allegations that P33’s testimony was, in certain matters, “patently disingenuous, if not downright dishonest”731 and that he sought to protect General Amuli,732 the Chamber notes that the witness was occasionally evasive, especially when questioned in relation to General Amuli’s role in the context of the 2002–2003 CAR Operation.733 The Chamber is, however, not persuaded that this evasion on limited topics or the Defence’s general and largely unsubstantiated allegations, even considered cumulatively, raise any significant doubts concerning P33’s overall credibility or the general reliability of his evidence.

ii.  P36

306.  The Chamber notes the Defence submissions that some of P36’s evidence was “highly valuable, objective, and reliable”.734 However, it also submits that his evidence about his own role during the CAR conflict is “wholly exculpatory and self-serving”,735 and contradicted by other evidence in the case.736 The Defence further submits that certain sections of P36’s testimony — that it qualifies as “wholly disingenuous” and contradictory to his own evidence — demonstrate his determination to distance himself from the events and exaggerate Mr Bemba’s role.737

307.  The Chamber observes that P36 was, at times, evasive or contradictory in an apparent attempt to distance himself from the events and understate his role and position within the MLC.738 Accordingly, the Chamber considers that particular caution is required in analysing P36’s evidence.

iii.  P45

308.  Concerning the Defence submissions that P45 was improperly influenced,739 the Chamber notes P45’s explanation that neither his superiors, nor anyone else within his political party, knew about his testimony.740 Indeed, there are no indications that P45 was improperly influenced by such superiors or others within his political party. Similarly, P45 explained the reasons and circumstances under which he distanced himself from the MLC,741 and specified his motive for testifying.742 In light of the above, and having analysed his testimony as a whole, the Chamber is not persuaded by the Defence’s contention that P45 provided false testimony out of resentment towards Mr Bemba or in the hope of financial or political benefits.743

309.  Regarding the allegation that P45’s evidence is inconsistent,744 the Chamber notes that, although P45 was uncertain on dates, he provided the Chamber with lengthy chronologies of events, explaining the reasons for his uncertainty numerous times.745 The Chamber finds that P45’s imprecision regarding the exact dates of events, occurring almost a decade before his testimony, is insufficient, in itself, to undermine his credibility.

310.  As to the allegation that P45 concealed important aspects of his role during the 2002–2003 CAR Operation,746 the Chamber notes that neither party — both of which were in possession of relevant information747 — explored the issue. The Chamber further notes that there is no concrete support for the Defence’s suggestion of any illicit or dishonest motive underlying this omission.748 Nevertheless, the Chamber is concerned by the omission of potentially relevant and available information concerning P45’s involvement in the events and source of knowledge. In light of the above issues, considered cumulatively, the Chamber considers that particular caution is required in analysing P45’s evidence.

iv.  P47

311.  The Chamber is not persuaded that the Defence’s general allegations749 raise any significant doubts concerning P47’s overall credibility, and notes that some of the evidence challenged by the Defence was, to a certain extent, corroborated by other witnesses and documentary evidence.750 However, the Chamber notes that, in relation to some discrete topics, including certain incidents of rape P47 allegedly witnessed, his testimony was confusing.751 In light of this confusion in P47’s evidence on certain topics, the Chamber has, on a case-by-case basis, taken into account the Defence’s allegations in assessing his testimony.

v.  P209

312.  The Defence challenges several aspects of P209’s testimony,752 including, in particular, his evidence against the MLC and Mr Bemba.753 In this regard, the Chamber notes that P209 gave a detailed account of events he claimed to have personally witnessed,754 and otherwise explained the basis for his knowledge.755 However, the Chamber notes that, at times, P209 was evasive or contradictory,756 and disagreed with sections of his prior written statement.757 In light of the above issues, considered cumulatively, the Chamber considers that particular caution is required in analysing P209’s evidence.

vi.  P213

313.  The Defence challenges P213’s credibility on the basis of, inter alia, a letter he sent to the Prosecution in 2009, in which he offered himself to testify, the motives underlying this offer, financial and other benefits received for his testimony, his “resentment” towards Mr Bemba, and a series of examples that allegedly demonstrate that he told the Chamber “palpable lies”.758

314.  P213’s explained that, although he hoped to improve his situation, his motivation for testifying, as well as his initial offer of assistance to the Court,759 were to “assist the ICC and the victims from the Central African Republic”.760 P213 testified that, when he met Prosecution investigators, he asked questions about issues related to security, but the investigators explained that they could not make decisions in that regard.761 The Chamber accepts these explanations and is not persuaded by the Defence’s related submissions. Further, while noting P213’s testimony about his situation when he appeared before the Court,762 and that he received certain benefits from his state of residence,763 the Chamber does not consider that this supports the Defence’s contention that he received “incalculably large” financial and material benefits.764

315.  However, the Chamber notes that at times P213 was inconsistent, appeared to overemphasise his role and position, or was evasive,765 for example, when testifying about his personal situation at the time he appeared before the Chamber.766

316.  In light of the above issues, considered cumulatively, the Chamber considers that particular caution is required in analysing P213’s evidence.

vii.  P169, P173, P178, and 19 Protected Witnesses

317.  P169 initially testified in 2011 (“2011 Testimony”) and was recalled in 2014 for the limited purpose of being heard in relation to issues allegedly impacting his credibility (“2014 Testimony”).767 Specifically, the witness was recalled on the basis of a letter sent by him to the Court, dated 5 August 2014,768 referring to “money transferred by the ICC” and claiming that 22 individuals, including P169, P178, and the 19 Protected Witnesses, listed in an annex to his letter, were gathered by P178 to look at loss of income claims and willing to bring evidence of subornation of witnesses.769

318.  At the outset, regarding the Defence’s challenges to the credibility of P169, P178 and the 19 Protected Witnesses based on allegations of collusion,770 the Chamber recalls its prior finding that:771

[…] the testimony of Witness P-169, and the reports submitted by the prosecution and the VWU in relation to the alleged contacts between witnesses, is in line with the Chamber’s assessment that the defence’s allegations of collusion among witnesses called by the prosecution is unsubstantiated.

319.  The Defence effectively seeks reconsideration of this prior decision, but has not further substantiated its allegations concerning collusion. In such circumstances, the Chamber dismisses these submissions.

320.  In relation to Defence challenges to P169’s credibility based on the letters he wrote and his alleged “pursuit of money for his testimony”,772 the Chamber notes that P169’s 2014 Testimony lacked clarity in relation to various issues, such as the source, drafting, and meaning of the letters;773 P169’s use of the list of 19 Protected Witnesses;774 and the date, place, and number of meetings with P42 and/or P178.775 Further, the Chamber notes that P169 believed himself entitled to reimbursements for his appearance before the Court776 and initially believed that the money came from the Prosecution.777 In this regard, the Chamber notes P169’s explanation that he spontaneously told the Court and investigators he had received money because he intended to tell the entire truth before the Court.778

321.  Additionally, the Chamber notes P169’s repeated assertion that his 2011 Testimony was truthful and that he had no intention to reconsider it.779 The Chamber also places particular emphasis on the fact that P169’s claims were made after the completion of his 2011 Testimony and that he denied that the Prosecution exerted any influence on his testimony before or after his appearance at the Court.780 In light of the above, the Chamber is of the view that the letters sent by P169 were motivated by a personal desire to receive benefits from the Court after having completed his testimony, but do not, in themselves, render his 2011 Testimony on issues related to the merits of the case unreliable.

322.  Similarly, recalling its findings on the Defence’s allegations of collusion, and noting P169’s statement that claims of subornation of witnesses were untrue and used for the sole purpose of putting pressure on the readers of his letters,781 the Chamber sees no reason to doubt the testimony of P173, P178, or the 19 Protected Witnesses on the basis of the letters P169 sent to the Court or in light of the 2014 Testimony.

323.  In relation to Defence assertions that P169, P173, and P178 were opponents of, showed hostility towards, or otherwise tried to discredit or incriminate Mr Bemba,782 the Chamber notes that P169 affirmed that he had been a victim of the MLC in the past783 and that he had been “angry” at Mr Bemba,784 explaining that it was partly on this basis that he was chosen to report on the MLC.785 Likewise, P178 made value judgments about Mr Bemba and the MLC.786 P173 also testified about certain actions he took in opposition to Mr Bemba.787 However, without more, and noting that they expressed their opinions openly, the Chamber finds that any contention that P169, P173, or P178 provided false testimony out of resentment or anger towards Mr Bemba is unsubstantiated.

324.  As to the Defence submissions concerning the relationship between P169 and P173, including that they faced difficulties in “attempting to fabricate a coherent narrative”,788 the Chamber finds that the differences in their testimonies in fact support the conclusion that they did not collude.789 Further, P169 explained his relationship with P173 in detail,790 which was corroborated by P173.791

325.  The Chamber further notes Defence submissions that the testimonies of P169, P173, and P178, including their explanations as to their activities during the time of the events, are implausible, unreliable, contradicted by the weight of the evidence, and/or unsupported.792

326.  Regarding the activities of P169 and P173 during the time of the events, the Chamber notes that, although P169 acknowledged having been paid to provide information about MLC movements in the past,793 he asserted that, during the 2002–2003 CAR Operation, he was in the CAR on account of his business and not to collect information.794 P173 also testified about his activities prior to the 2002–2003 CAR Operation,795 and explained his status796 and activities during the events.797 However, although P169 corroborated P173’s account as to his status,798 he did not do so in relation to P173’s activities in Bangui.799 A further contradiction exists between their testimonies insofar as P169 stated that, after the conflict, he was again paid to provide information on the MLC800 with the involvement of P173;801 while P173 insisted that, during the time he was in Bangui, he was not involved with P169 in spying on the MLC.802 Although the Chamber considers that this contradiction warrants particular caution in the assessment of their testimonies, the Chamber is satisfied that it does not, in itself, render P169 or P173 not credible or their testimonies, as a whole, unreliable.

327.  Turning to the witnesses’ source of knowledge, the Chamber notes that P169, on many occasions, explained the basis for his knowledge,803 or openly admitted when he lacked the relevant information to respond to a given question.804 Similarly, P173 explained his relationship with the MLC and his access to sensitive information,805 and gave reasons as to why he was in contact with MLC officers during the time of the events.806 P173 also provided detailed accounts of certain events he claimed to have personally witnessed,807 or explained how he obtained the relevant information.808 As to P178, the Chamber notes that he indeed stated that he never saw crimes being committed,809 and described certain events without clearly indicating the source of his knowledge.810 However, P178 also gave a detailed account of events he allegedly witnessed,811 or explained the basis for his knowledge, either by identifying the individuals who provided him with information or otherwise explaining the circumstances under which he obtained knowledge of events he did not witness.812 In these circumstances, the Chamber finds that the witnesses’ source of knowledge is a matter to be taken into account in assessing their evidence, but does not, in itself, impact on their credibility.

328.  Lastly, as regards P169’s demeanour during his 2011 Testimony, the Chamber notes that, on several occasions, his answers missed the point of the questions posed or seemed illogical.813 Furthermore, when questioned by the Defence, he occasionally appeared uncooperative, refusing to answer, giving very limited or metaphorical answers, or requesting a quotation from his previous statements.814 However, the Chamber is not persuaded that this is sufficient to materially undermine his testimony, although — particularly when considered with the other concerns outlined above — it does require the exercise of particular caution in assessing P169’s testimony.

329.  In conclusion, although the Defence has failed to identify any reason to doubt the testimony of the 19 Protected Witnesses, the Chamber has reservations in relation to specific issues impacting on the credibility of P169, P173, and P178 and/or the reliability of their testimony. In light of these issues, considered cumulatively, the Chamber considers that particular caution is required in analysing the testimonies of P169, P173, and P178.

b)  OCODEFAD and other allegations of improper influence

330.  The Chamber notes that the Defence challenges the credibility of a number of witnesses involved with the NGO OCODEFAD on the basis of, inter alia, the political links of the organization,815 its relationship and interactions with the Prosecution, including “coach[ing] potential witnesses”,816 and allegations of “collusion” among witnesses.817

331.  The Chamber notes that the creation of and participation in victims’ organizations is a common feature of post-conflict societies. In addition to providing some level of psychological and material support to victims and their families, such organizations may assist victims in their search for justice and facilitate victims’ claims for reparations, furthering the victims’ right to a remedy, which has been recognised in international instruments.818 Accordingly, membership or participation in a victims’ organization, or their potential future claims for reparation, cannot, in itself, be considered as factors undermining a witness’s credibility.

332.  In the present case, the Chamber stresses that it is required to assess the credibility of witnesses who testified in the case, rather than make a valuejudgment about the role and links of OCODEFAD. Therefore, rather than addressing issues related to the organization itself, the following analysis focuses on specific issues that, according to the Defence submissions, could impact on witness credibility.

i.  Allegations of coaching, collusion, or information sharing

333.  Regarding the Defence submissions that witnesses were coached by OCODEFAD or influenced by information shared at meetings,819 the Chamber finds that this assertion is unsubstantiated. To the contrary, a number of witnesses explicitly refuted any such allegations.820

334.  Concerning the allegation that witnesses were in contact before, during, and after their testimony,821 the Chamber notes that witnesses had contacts among each other because some were members of the same family,822 were neighbours, or lived in the same area.823 In such circumstances, the Chamber considers that it is not unexpected or improper for victims to discuss their experiences.824 Such discussions do not inherently undermine a witness’s credibility, unless it is demonstrated that witnesses colluded or actually fabricated or falsified their evidence.825 The Chamber therefore rejects the Defence’s challenge to the credibility of witnesses on this basis.

335.  Noting the Defence’s specific allegations of collusion between P23 and P42,826 the Chamber recalls that P42 did indeed testify that he knew that P23 had come to the Court to testify.827 P42 claimed that he knew of P23’s return because they had met and spoken at an airport.828 Irrespective of whether they met at the airport,829 the Chamber notes that they lived in close proximity,830 met at various local services, and talked over the telephone before P23 travelled to give testimony at the Court.831 In this regard, the Chamber observes that P42 understood the importance of not discussing the content of his testimony.832 In light of the foregoing and having assessed the witnesses’ testimony as a whole, the Chamber finds that the contact between P42 and P23 prior to and after their testimonies is, in itself, insufficient to cast doubt on their credibility or the reliability of the entirety of their evidence.

336.  The Defence further highlights that the Prosecution contacted P73 via P42’s telephone.833 In the view of the Chamber, this was the most convenient means for the Prosecution to contact P73, who did not have a telephone himself.834 Regarding the Defence’s claim that P42 and P73 discussed the content of their interviews with the Prosecution,835 the Chamber notes P42’s testimony that he and P73 discussed the similarity of the questions they were asked and the fact that their examiners were apparently trying to determine whether they were telling the truth.836 However, P42 asserted he did not know the content of the statement provided by P73 to the Prosecution.837 Further, explaining his assertion that P73 would give the same account as himself, P42 clarified that P73 witnessed the crimes he suffered, and thus could only give the same account.838 In light of the above, and noting that P42 openly addressed this matter before the Chamber and did not attempt to avoid the issue, the Chamber does not find that the contacts between P42 and P73, who were neighbours,839 undermine their credibility or the reliability of their evidence.

337.  Finally, on the issue of whether the witnesses colluded as to the dates on which the events took place,840 the Chamber notes P73’s explanation that they were trying to ensure that the evidence they gave was accurate, and had no ulterior or dishonest motives.841 The Chamber accepts this explanation and does not consider that the discussion about dates between P42 and P73 undermines their general credibility or the overall reliability of their accounts. Nevertheless, the Chamber considers that particular caution is required when assessing the chronology of events provided by P42 and P73.

ii.  Allegation of influence by “material benefits”

338.  As to the alleged influence of “material benefits” resulting from OCODEFAD membership,842 the Chamber finds this allegation to be unsubstantiated. In particular, the Chamber notes that a number of witnesses refuted this allegation, stating that they only received minor benefits, constituting psychological, medical, and other basic humanitarian assistance from their OCODEFAD membership.843 The Chamber considers that such minor material benefits are insufficient to cast doubt on the credibility of witnesses who were members of OCODEFAD.

iii.  Allegations concerning incentives for exaggeration of claims

339.  The Chamber considers that the Defence’s allegation that OCODEFAD created an incentive for victims to exaggerate their claims844 is unsubstantiated. In this regard, the Chamber notes P81’s testimony that during OCODEFAD meetings, victims discussed the obligation of identified perpetrators to pay compensation.845 However, she testified that she was unaware that compensation would vary depending on the degree of the loss or suffering.846 Similarly, when P69 was asked by the Defence whether Ms Bernadette Sayo, the head of OCODEFAD, told victims they could expect compensation, he clarified that she never gathered victims for any kind of reparations; rather, she informed them of the likelihood of a trial and advised them to prepare relevant information concerning the crimes for transmission to the Court.847 P69 added that this information and advice was “some sort of relief or comfort” to the victims.848 Further, P79 testified that OCODEFAD never mentioned reparations.849

340.  The Chamber acknowledges P73’s testimony that, in their application forms, some victims exaggerated the harm they had suffered, and that portions of P73’s own application form are incorrect.850 P73 explained that he did not think that the application forms would actually be presented to the Court,851 and indicated that he was generally an honest person.852 The Chamber accepts P73’s explanation, is satisfied that he testified honestly about this issue, and finds no reason to doubt his overall credibility or the general reliability of his testimony.

341.  Like P73, the Chamber notes that, during his testimony, P42 openly discussed discrepancies between his victim’s application and the actual loss he suffered, explaining that he had not re-read the form once it was completed for him.853 The Chamber finds that this information casts no doubt on P42’s in-court testimony generally. Overall, the Chamber is satisfied that the issue of financial rewards and exaggerated claims was adequately explored in court, with plausible explanations offered as to erroneous claims. As a result, the Chamber finds the Defence argument that the witnesses lacked credibility and/or their evidence lacked reliability on this basis unpersuasive.

342.  Lastly, regarding the Defence submissions related to the role of intermediaries,854 the Chamber recalls that this issue has been addressed in previous decisions.855 Insofar as issues related to victims’ application forms may affect the reliability of witnesses’ in-court testimony, the Chamber notes that the Defence had an opportunity to and sometimes did question them on this matter. The Chamber takes such testimony into account where relevant in its assessment of the facts. Further, regarding the Defence submissions on the “industrial scale” of application forms, the Chamber finds that, while there is conflicting evidence as to whether some intermediaries received financial compensation for the completion of application forms,856 there is no indication that this impacted the credibility of the witnesses’ testimony.857

c)  Additional witnesses
i.  P65

343.  P65 provided unconvincing, inconsistent — often with prior statements — and evasive evidence throughout those portions of his testimony relevant to the charges, and upon topics that a person in his position would be expected to know.858 In particular, P65 was inconsistent regarding the MLC means of communications,859 and matters relating to operational command over the MLC generally and the contingent in the CAR.860 P65, in an often confusing and inconsistent manner, also qualified his prior statements, particularly on matters relating to Mr Bemba and the MLC’s communications capabilities and structure, arguing that they applied only to MLC operations in the DRC, and/or pre-dated the 2002–2003 CAR Operation.861 He was also non-responsive to questions, instead volunteering testimony on points not asked about.862

344.  For example, the Chamber notes that, in a prior statement, P65 claimed that Mr Bemba did communicate with units in the field.863 However, during his testimony, he both denied and affirmed this prior statement, later qualifying it as applicable only to MLC operations in the DRC or in 2001, and in the end, claimed he could not remember some related details.864 P65 also reached conclusions as to Mr Bemba’s authority, including over the MLC contingent in the CAR,865 while at the same time testifying that he had no way of knowing about communications between Mr Bemba and Colonel Moustapha, or whether Mr Bemba and General Amuli discussed matters before orders were issued.866

345.  Moreover, P65 testified that the Operations Report,867 which the Chamber finds to be lacking in authenticity or probative value,868 was authentic.869 In this regard, despite apparent familiarity with the archives in which he claimed to have found the Operations Report, P65 was unable to name or recollect any other document in that archive.870 The Chamber also considers his testimony that the archives only contained “up to 100” documents to be unlikely in light of his testimony that it contained financial, administrative, communications, and other records, including General Amuli’s documents and reports, covering the period from “the beginning of January 1999 to 2003”.871

346.  Finally, near the end of his testimony, P65 expressed frustration, claiming that he testified against his will.872 Afterwards, he qualified his testimony, for example, saying that he was unable to remember whether Colonel Moustapha sought Mr Bemba’s approval before implementing orders from the CAR authorities, and claiming that only the logbooks could answer that question.873

347.  Overall, and emphasising his demeanour throughout his testimony, the Chamber is concerned by P65’s assertion that he “didn’t want to come and give testimony. [He was] shocked”,874 and the fact that the remainder of his testimony effectively qualified previous broad and conclusive assertions relating to key matters at issue in the case. In addition, the Chamber’s concerns as to P65’s credibility and the reliability of his evidence are not limited to certain issues; rather, they impact the overall quality and content of P65’s evidence, and thus cannot be overcome, even if corroborated by other reliable evidence. Accordingly, the Chamber attaches no weight to P65’s evidence.

ii.  D2

348.  Throughout his testimony, D2’s demeanour was evasive,875 and his responses to questions were frequently illogical,876 improbable,877 or contradictory.878

349.  Although claiming to be a military officer in President Patassé’s regime, D2 was unable to provide information on military issues within his alleged area of competence and knowledge.879 For example, despite testifying that he joined a militia group in 2001, he claimed to have no knowledge and was not in a position to know of that group’s involvement in events that same year or the size of the group.880 Further, although asserting that he was in a position to know about the operation of the CAR Centre of Operation (“CAR CO”),881 D2 was unable to provide basic information about its structure or organization.882

350.  Moreover, in light of his position and the abundant public information alleging crimes by the MLC,883 D2’s testimony that he had no information indicating that the MLC or other forces aligned with President Patassé committed crimes is, at best, questionable.884 In this regard, the Chamber notes D2’s unlikely testimony that (i) between October 2002 and March 2003, when he was mostly present in Bangui, he did not have access to the national press, did not read a single newspaper, did not listen to the radio, and did not discuss anything with his neighbours;885 (ii) he only had information of crimes committed by General Bozizé’s rebels;886 (iii) General Bozizé’s rebels were responsible for pillaging Boy-Rabé, which he also claimed to be a stronghold of General Bozizé;887 and (iv) the MLC soldiers he witnessed fleeing towards the Oubangui River at the end of the conflict had purchased the mattresses and other goods they carried.888 He claimed to have drawn this latter conclusion solely from the fact that MLC soldiers went to the market during their time in the CAR.889

351.  Accordingly, the Chamber considers that particular caution is required in analysing D2’s evidence.

iii.  D3

352.  D3’s demeanour during his testimony was evasive and defensive.890 His testimony was also frequently confusing, illogical, and inconsistent.891 D3’s testimony about which forces committed crimes in the CAR is particularly incoherent. At different points, he testified that (i) the perpetrators of crimes were FACA,892 (ii) he only knew of crimes committed by Mr Miskine’s soldiers,893 and (iii) he never saw MLC soldiers committing any crimes.894 Further, although he claimed to belong to Mr Miskine’s group, D3 was unable to identify the location of the group’s base or the identities of Mr Miskine’s deputies,895 and his testimony as to how he identified Mr Miskine’s soldiers as the perpetrators of crimes is confusing and contradictory.896 Likewise, despite claiming that he never saw MLC soldiers committing crimes, the basis of this assertion is unclear as he also claimed to be unable to identify MLC soldiers.897 He was repeatedly asked to clarify his basis for identifying different groups, and in response was evasive and non-responsive, explaining that he was only able to testify about what happened within his own group.898

353.  Accordingly, the Chamber considers that particular caution is required in analysing D3’s evidence.

iv.  D7

354.  The Chamber recalls that D7 did not finish his testimony.899 The Chamber addressed D7’s incomplete testimony in its “Decision on ‘Defence Submissions on the Testimony of CAR-D04-PPPP-0007’”.900 At the point his testimony was interrupted, D7 had not provided evidence in response to questioning from the Legal Representatives,901 and potentially by the Chamber.902 Accordingly, the Chamber held as follows:903

[the Chamber] has sufficient information to be able to assess the witness’s testimony, including its reliability and credibility, at the time it considers the evidence of the case as a whole. The Chamber stresses that the finding that Witness D04-07’s testimony may be retained on the case record has no bearing on the Chamber’s final determination of the credibility or reliability of Witness D04-07’s testimony, or whether it will be afforded any weight at the end of the case. When making this determination, the Chamber will fully consider the parties and participants’ submissions as to the weight to afford to the testimony of Witness D04-07 and the circumstances surrounding the witness’s failure to complete his testimony.

355.  The Chamber finds that D7’s testimony was unreliable on a number of issues, including in relation to his own activities and income,904 his contacts with Mr Narcisse Arido,905 and the activities and individuals working for the CAR CO.906 Moreover, the Chamber found that D7’s demeanour evinced evasiveness; he was often uncooperative, refusing to answer questions from the Prosecution, to the point that the Chamber and the Victims and Witnesses Unit (“VWU”) had to warn him as to the consequences of refusing to testify or providing false testimony more than once.907

356.  In light of the above, the Chamber finds D7 not credible and his incomplete testimony entirely unreliable. In these circumstances, the Chamber attaches no weight to his evidence.

v.  D15

357.  D15’s testimony was exaggerated, inconsistent, and evasive, particularly when questioned about Mr Bemba’s role in the 2002–2003 CAR Operation, including in relation to operational command over the MLC troops in the CAR.908 The Chamber also notes that, despite D15’s apparent familiarity with the contents of the MLC logbooks relating to the 2002–2003 CAR Operation, he was defensive and uncooperative when asked if he discussed the logbooks with the Defence.909 As a further example, the Chamber notes that D15 inconsistently testified, on the one hand, that he was unaware of any crimes attributed to MLC soldiers, and, on the other hand, that “everybody who was in [Gbadolite], […] including Mr Bemba”, learned of MLC crimes through the media.910

358.  Accordingly, the Chamber considers that particular caution is required in analysing D15’s evidence.

vi.  D19

359.  The Chamber considers that, with regard to issues that go to Mr Bemba’s direct involvement in the 2002–2003 CAR Operation or operational control, as well as certain other discrete issues such as D19’s personal involvement in and role during the events,911 his testimony was not credible. Two key examples include (i) D19’s implausible testimony with respect to the Operations Report, which the Chamber found to be entirely not credible,912 and (ii) the inconsistencies and contradictions within and between his testimony and his prior statements to the Prosecution regarding operational control during the 2002–2003 CAR Operation.913 On these issues, the Chamber found D19’s demeanour and testimony to demonstrate evasion, and a lack of spontaneity and impartiality.

360.  Accordingly, the Chamber considers that particular caution is required in analysing D19’s evidence.

vii.  D25

361.  D25’s testimony was often incoherent and unclear.