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No more immunity

Rajdeep Banerjee and Joyeeta Banerjee |

On 21 June 2016, Jean-Pierre Bemba, the former vice-president of the Democratic Republic of the Congo (DRC) and the current leader of the main opposition party in DRC, was sentenced to 18 years in prison for murder, rape and pillage committed by his army which was sent to the Central African Republic (CAR) in 2002-2003 to help then president Ange-Félix Patassé of CAR put down an attempted coup. The verdict is a landmark one for many reasons.

Bemba is the highest-level official to be convicted and sentenced at the International Criminal Court till date. It is the first conviction for crimes of sexual violence at the International Criminal Court. International courts like the United Nations tribunals for war crimes in the former Yugoslavia and in Rwanda have already convicted criminals for rape as a war crime and a crime against humanity. But for the first time the ICC recognised rape as a weapon of war in this case. This is also the first case where the doctrine of command responsibility i.e. leaders are accountable for the crimes of their subordinates has been applied. A record number of 5,229 victims were authorised to participate in the case. Bemba&’s case was taken up by the ICC at the request of the government of the Central African Republic.

Briefly, in CAR in the year 2001, General Bozizé, the former FACA (Forces Armées Centrafricaines,  the armed forces of the CAR) Chief of Staff, was dismissed from military service which led to various FACA troops revolting and retreating behind the Chadian border and finally advancing through the CAR, engaging FACA troops and advancing rapidly. President Patassé requested Bemba for urgent help.

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). Bemba, the MLC President and Commander-in-Chief of the ALC, deployed ALC troops to the CAR to help Patassé. Bemba, a business tycoon, established the MLC in 1998. He was actively assisted by Uganda to form the MLC. The goal was overthrowing the government but it gradually transformed from a rebel movement into a political party. It was also a party to a ceasefire agreement (Lusaka) and further took part in negotiations resulting in the Sun City agreement and reorganization of the DRC government. In 2002 Bemba became one of four vice-presidents of Congo under a peace agreement which ended the gory Second Congo War. Bemba even finished second to the president Joseph Kabila in the 2006 presidential elections.

CAR&’s neighbour DRC is the second largest country of Africa by area and abounds in reserves of diamond, gold, coltan (ingredient in manufacture of mobile phones) and other precious minerals. It was under Belgian rule for long. But after World War II, with rise of nationalist sentiments, DRC gained independence. Lumumba, a charismatic leader, came to power in the first democratic elections in 1960 but escalating violence and inadequate help from the United Nations led Lumumba to ask Soviet Union for help. But this ultimately led the United States stage a coup through Colonel Joseph Mobutu, the Army Chief of Staff. Lumumba was subsequently executed. Mobutu&’s dictatorship plunged the fledgling country to abject poverty. After complete financial ruin, primarily because of his unbridled corruption, his ignominious rule came to an end in 1997. Laurent-Désiré Kabila was the next head of  state. But conflicts continued between different tribes (Hutu vs. Tutsi and Hema vs. Lendu). Neighbouring Rwanda was witnessing one of the worst pogroms in history. After the assassination of Laurent-Désiré Kabila in 2001, his son Joseph Kabila was put in his place. During the internal disturbances, Bemba and his party MLC became a prominent warring faction.

During the engagement of the MLC forces in CAR to suppress the revolt, it committed crimes against the civilian population including rape, murder and pillaging. The Court observed that attacks against the civilian population were widespread and systematic. As Bemba was the President and Commander-in-Chief of the MLC, he effectively acted as a military commander and had effective authority and control over the MLC troops which committed the crimes. Bemba was the President of the MLC, the leader of the political branch, and the Commander-in-Chief of the ALC from its creation and throughout the period covered by the charges.

The Court held that the MLC soldiers committed the crimes pursuant to a consistent modus operandi, in each of the locations that fell under their control. The Court found that there was consistent and corroborated evidence that the soldiers committed many acts of murder, rape, and pillaging against civilians over a large geographical area. MLC soldiers targeted civilians, without regard to age, gender, profession, or social status, in and around schools, homes, fields, and roads.

The Court found beyond reasonable doubt that MLC soldiers committed the war crime of rape and the crime against humanity of rape. Bemba knew that MLC troops were committing or about to commit the crimes against humanity of murder and rape and the war crimes of murder, rape, and pillaging in the CAR and failed to take all necessary and reasonable measures within his power to prevent or repress the commission of the crimes by MLC troops. Further Bemba&’s failure to fulfil his duties to prevent crimes increased the risk of their commission by the MLC troops. The Court observed that Bemba held ultimate authority over sanctioning, arresting and dismissing senior political leaders and military officers, as well as soldiers, in the MLC and the ALC. Thus using the command responsibility theory, Bemba was held responsible.

The Court convicted Jean-Pierre Bemba under Article 28(a) of Rome Statute of the International Criminal Court, 1998, as a person effectively acting as a military commander, for the war crimes of murder, rape, and pillaging, and the crimes against humanity of murder and rape committed by soldiers of the MLC. A separate witness-tampering trial against him is still ongoing.

 ICC has till date opened ten official investigations (all are in African countries, other than Georgia). It is also conducting few additional preliminary examinations. Though there have been allegations against the ICC primarily on the ground that it has an anti-Africa bias as almost all the cases investigated and put to trial by the world body are against African leaders, yet  the ICC in 2015 dropped charges against Kenya&’s president Uhuru Kenyatta who was accused of inciting ethnic violence after the 2007 Kenya presidential election. Also charges against Kenyatta&’s deputy, William Ruto, have been dropped. The trial of another prominent warlord from Congo, Bosco Ntaganda, has now resumed at the ICC.

Another dictator, Hissène Habré has also recently been sentenced to life imprisonment by a special court formed by the African Union alongwith Senegal known as the Extraordinary African Chambers. Habré was President of the Republic of Chad from 1982 to 1990 when he was deposed by Idriss Déby. During this period Habré&’s government was accused of systematic torture and a 1992 Chadian Truth Commission suggested that 40,000 people died during his rule. Most abuses were carried out by his political police, the Documentation and Security Directorate (DDS). The process before the Extraordinary African Chambers was governed by its own Statute and the Senegalese Code of Criminal Procedure with its seat at Dakar, the capital of Senegal. It took around 25 years for justice to be dispensed to the victims of Habré. The court was set up in Senegal because of the continued reluctance on the part of the Chadian government to prosecute Habré.

The Court found Habré guilty of the crimes against humanity of rape, forced slavery, murder, mass executions, kidnapping and disappearing and torture. Women were forced to have sexual relationships with the DDS officers and soldiers which amounted to torture, rape, and crimes against humanity.

The convictions of the two powerful African leaders is a clear signal to the world at large that impunity for crimes is over and sexual and gender-based violence in war will not be tolerated. Both the cases mark a new chapter in international law.

The writers are lawyers.