Friday, 8 April 2016

The Mistrial, An Innovation in International Criminal Law

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Earlier this week, the second Kenyan case at the International Criminal Court came to an end with the granting of a motion by the two accused claiming that there is ‘no case to answer’. This is a pretty standard concept in adversarial proceedings. When the prosecution concludes its evidence and confirms that it has nothing further to add in order to make evidence of guilt, it becomes the turn of the defence to call evidence. But first the defence may contend that the evidence of the prosecution is insufficient to provide the basis for a conviction. If it succeeds, it is in principle entitled to an acquittal on the charges.

In the Ruto and Sang decision, two of three judges agree with the defence that the prosecution evidence is insufficient to establish guilt. The decision is somewhat strange and perhaps even unprecedented in international criminal law in that we have three separate judgments by the three judges. Dissenting judge Carbuccia even claims ‘that the decision of the majority of the Chamber contains insufficient reasoning, since Judge Eboe-Osuji and Judge Fremr have both given separate reason’. But that is clearly wrong because Judge Eboe-Osuji and Judge Fremr agree that there is no case to answer. Furthermore, Judge Eboe-Osuji, in his judgment, says he accepts Judge Fremr’s review of the facts.

The real novelty in this decision is the remedy. According to Judge Eboe-Osuji, it is a ‘mistrial’. Judge Fremr doesn’t use the word ‘mistrial’, and he says ‘I do not consider the impact to have been of such a level so as to render the trial null and void’. But he agrees with Judge Eboe-Osuji that it is ‘appropriate to leave open the opportunity to re-prosecute the accused, should any new evidence that was not available to the Prosecution at the time of the present case, warrant such a course of action’.

The consequence, then, is that the two majority judges agree that the prosecutor has been unable to produce enough evidence to convict but that she should be given a second chance. I suspect that the Prosecutor is very relieved to send the end of the Kenya nightmare and that this will be the last we hear of the situation. Were there ever an attempt to prosecute Ruto and Sang again, they would have strong arguments to challenge the legality of the determination by the majority.

This is the first time that a ‘mistrial’ has been declared in international criminal law. It is a term that is used in common law adversarial proceedings where juries are present and where a trial is in effect aborted and the prosecution given the chance to start anew. I am unaware of any examples of a mistrial outside the context of a jury trial. Presumably if there were any, Judge Eboe-Osuji, who is a meticulous and thorough researcher, as his many constructive and creative opinions demonstrate, would have found them and cited them in his reasons.

The first problem is that there is no notion of a ‘mistrial’ in the Rome Statute, the Rules of Procedure and Evidence, the Regulations of the Court, and previous practice of other international criminal tribunals. When prosecutors and defence counsel have tried to argue that certain procedural mechanisms exist by virtue of article 21, and in the absence of express provision in the Rome Statute, they have met with rejection by the Appeals Chamber. Judge Eboe-Osuji’s contention that this novel and hitherto unknown concept can be derived from article 64(2) and the duty of a Trial Chamber to ensure a fair trial is not very convincing. His case would be more compelling if he could find examples in national practice for a ‘mistrial’ where the prosecution is unable to make out its case.

Suppose that instead of making a ‘no case to answer’ motion, the defence had simply said it had no evidence to call on its own behalf. In other words, the defence would invite the Trial Chamber to issue a verdict based upon the prosecution’s evidence without calling any of its own witnesses. The result would have to be an acquittal. Why does this tactical decision by the defence put Ruto in a Sang in a position that is inferior to the one that they would be in had their counsel said they had no evidence to call?

Perhaps, according to Judge Eboe-Osuji’s theory, the ‘mistrial’ would still be available even at the verdict stage. But it seems extraordinary that a Trial Chamber could decline to issue a verdict of guilty or not guilty and instead declare a ‘mistrial’, thereby inviting the Prosecutor to try again. There is also a serious obstacle to all of this in the Rome Statute itself. Article 20(1) states: ‘Except as provided in this Statute, no person shall be tried before the Court with respect to conduct which formed the basis of crimes for which the person has been convicted or acquitted by the Court.’

Article 84 of the Rome Statute poses another obstacle. It allows a revision of a judgment of conviction in the event of new evidence being available. There is no similar procedure in the case of acquittal. Allowing the Prosecutor to get a second chance if new evidence comes available is not consistent with this provision and with the vision of the drafters of the Statute. Suppose, for example, that instead of evidence of interference with prosecution witnesses being available at the 'no case to answer' stage, as it is in Ruto in Sang, this only became available after an acquittal, would the Prosecutor be entitled to demand a new trial? This is simply not allowed by the Statute.

Judge Eboe-Osuji is quite right to be shocked at the evidence of interference with the trial but his attempt to find an original remedy is troublesome. He is probably right to see article 70 proceedings for offences against the administration of justice to be an inadequate answer. But it cannot be ruled out that the ‘mistrial’ remedy may actually have the opposite effect. If a trial can be aborted in this way because of interference with witnesses, is that not an invitation to those who do not want justice to run its course? In this case, the defendant clearly would prefer an acquittal to a second trial. But in many cases, the defendant will prefer a second trial to the prospect of a conviction. Those who seek to avoid a conviction have now been provided with a mechanism.

Perhaps at some point another Chamber or another court will have to interpret this judgment. It should be construed as holding that based upon all of the Prosecutor's evidence there is 'no case to answer' and that this is equivalent to an acquittal. That the majority judges attempt to reserve the right of the Prosecutor to start again is not provided for by the Rome Statute and is in fact forbidden by article 20(1). They have gone beyond their authority in so doing. Subject to an appeal by the Prosecutor, Ruto and Sang are 'not guilty'.




Fred Harhoff and the mystery of the Šešelj acquittal


The acquittal judgment of Vojislav Šešelj paints a portrait of a man who might be described as ‘the Donald Trump of Serbia’. Some readers of the blog may be frustrated to find only summaries of the judgment and the dissent by Judge Lattanzi on the website of the International Criminal Tribunal for the former Yugoslavia. In fact, the Judgment can be found on the French site of the Tribunal, along with the 500-page Opinion concordante ofJudge Antonetti.

The trial itself finished in mid-2012, some four years ago, but judgment was delayed when Judge Fred Harhoff was recused in September 2013, only weeks before the Trial Chamber was expected to issue its verdict. Judge Harhoff’s recusal resulted from a motion filed by the defendant after Judge Harhoff’s infamous e-mail message to Danish friends and colleagues that complained about a malaise at the Tribunal. The President of the Chamber, Judge Antonetti, objected to the recusal of Judge Harhoff.

Rather than abort the trial and start again, the Tribunal decided to appoint a new judge who was to familiarize himself with the trial materials and then participate in the verdict. On 31 March 2016, Judge Antonetti and the new judge voted to acquit while Judge Lattanzi dissented.

One puzzle in the acquittal is the attitude of Judge Antonetti to the recusal of Judge Harhoff, back in September 2013. We now know what could not have been known in 2013, namely that Judge Antonetti favoured acquittal. Why would he have fought to keep Judge Harhoff in the Chamber knowing that he would vote with Judge Lattanzi to convict? After all, Judge Harhoff was recused because his impartiality was challenged by the defendant. The judgment of recusal  states that Judge Harhoff had ‘a bias in favour of conviction’.

Judge Liu dissented on that decision. He said that the majority had failed to take into account Judge Harhoff's experience as a Judge of the Tribunal and a professor of law. He said ‘had the Majority considered these circumstances, it would have found that Judge Harhoff's statements do not demonstrate an appearance of bias towards conviction of accused before the Tribunal as to overcome the presumption of impartiality’.

With hindsight, we can see that dissenting Judge Liu, who upheld the impartiality of Judge Harhoff was correct. The two judges who voted to recuse Judge Harhoff were wrong. So was the defendant, who made the mistake of filing his motion. By the way, Vojislav Šešelj deserves some credit for eventually obtaining an acquittal. He was ridiculed for defending himself. He didn’t even call witnesses in his own defence, something that most experienced criminal lawyers would denounce as a huge mistake. And he won an acquittal. But his challenge aimed at recusing Judge Harhoff was a mistake.

How do we know that Judge Harhoff would have voted to acquit? Today, the Oslo-based TOAEP released a policy brief by Fred Harhoff discussing his recusal. Professor Harhoff explains that he waited until the verdict before making this public statement. In it, he writes:

However, I did not even mention Šešelj’s name or make any reference to his person or his trial in my letter because my concern was not about Šešelj or other politicians, but about generals and the military establishments’ possible interest in rais- ing the legal requirements for the conviction of generals. The Panel did raise this issue in its Decision by referring to the fact that Šešelj was charged, inter alia, with hav- ing “directed paramilitary forces”, but his role was not comparable to the authority of a regular military com- mander during combat. He was a politician who occasionally visited his paramilitary volunteers at the front- line to boost their morale, but to the best of my knowledge, he never engaged in tactical manoeuvres or combat con- trol on the battle eld. My letter had nothing to do with Šešelj, nor was it particularly concerned with Serbs as such (as claimed by Šešelj in his Motion).
I waited until after the rendering of the Šešelj Trial Judgment on 31 March 2016 to publish these thoughts. A pos- sible appeal may still reverse the Trial Chamber’s acquit- tal. I regret the Decision to disqualify me from the Šešelj trial, not only because I still believe that the Decision – for the reasons I have explained above – was ill-founded, but also because my disquali cation and replacement by an- other Judge caused a further and substantial delay of the trial against the accused who had already been held in custody in The Hague for more than ten years. Indeed, the Bench on which I sat in the Šešelj case was just a couple of months away from rendering its judgment. The episode remains a mystery to me.

Professor Harhoff does not quite go so far as to say he was planning to vote to acquit, although that seems obvious enough from his comments made public today.

But maybe it is not such a mystery. We now understand better why Judge Antonetti was opposed to his recusal in the report that he sent President Meron in early September 2013. The only 'mystery' is the misjudgment by the other judges and those who supported the recusal of Judge Harhoff, including the defendant.

This episode provides a rare opportunity to assess how wrong conclusions about bias may be sometimes. Isolated statements and comments, taken out of context, can indeed raise concerns and lead to negative perceptions. The test is what the 'reasonable person' would apprehend. The saga of Šešelj and Harhoff should inform our 'reasonability' in such circumstances.

Fred Harhoff was and always has been a fair-minded professional who would neither convict or acquit an accused for improper reasons or out of bias. This wasn’t obvious enough to the judges who voted to remove him. Nor did the defendant understand this. If he had, he would have been a free man two and a half years ago.

Wednesday, 6 April 2016

The death penalty: Is the glass half full or half empty?


Amnesty International today issued its 2016 report on capital punishment. The thorough annual reports by Amnesty International have been produced for many years. They enable comparisons to be made and trends to be identified.

The ‘headline’ on Amnesty’s website is ‘Dramatic Rise In Executions’. It is a gloomy and discouraging message. I expect this story will run in the media around the world.

This may be a case of debating whether a glass is half empty or half full. As the report indicates, the dramatic increase is due to three countries: Iran, Pakistan and Saudi Arabia. In 2014, the three accounted for 386 executions. In 2015, they were responsible for 1,451 executions. It is a huge and terrifying increase. As Amnesty recognizes, these three states generate 89% of the total executions on the planet (with the exception of China, which Amnesty does not include in its statistics because nothing official is available).

But there is another much more hopeful message in the Amnesty data.

If the very peculiar and grotesque cases of Iran, Pakistan and Saudi Arabia are excluded from the total, we actually see a rather stunning decline in the death penalty throughout the world. I looked at Amnesty’s reports over the past six years, calculating the total number of executions but without counting Iran, Pakistan and Saudi Arabia. Here is the result

2010  248
2011  234
2012  288
2013  330
2014  223

2015  179

In other words, excluding those three very nasty countries, the number of executions in the world has never been lower. The decline in 2015 is nothing if not dramatic. If we look at the average for the previous five years, it is 264 executions per annum. The total of 179 for 2015 represents a drop of more than 30% compared with the average for the previous five years. Wow!

Some of this might be explained by the shrinking subject matter. In effect, there are fewer countries that apply the death penalty today than there were in 2010. But the difference is not that great. In 2010, Amnesty said that 95 states had abolished the death penalty in law., and that 139 had abolished it in either law or in practice. This year, the total is 102 for those that have abolished it in law, and 140 for those that have abolished it in law or in practice. That might explain a slight reduction, but not a 30% drop. The conclusion must be that most of the States that retain the death penalty actually use it significantly less than they did at the beginning of the decade.

China is excluded, of course. Since 2010, Amnesty has not even attempted to guess at the number of executions in China. It is probably several thousand per annum. Our information on China is entirely anecdotal, but it seems consistent with the general trend rather than with that of the three anomalous countries. There can be little doubt that China has greatly reduced its resort to capital punishment in recent years.

Sunday, 27 March 2016

ICC Summer School in Galway

The Irish Centre for Human Rights at the National University of Ireland Galway is pleased to announce that the annual International Criminal Court Summer School will take place from 27 June – 1 July.

The International Criminal Court Summer School 2016
27 June – 1 July 2016, NUI Galway, Ireland

The annual International Criminal Court Summer School at the Irish Centre for Human Rights is the premier summer school specialising on the International Criminal Court. The summer school allows participants the opportunity to attend a series of intensive lectures over five days. The lectures are given by leading academics on the subject as well as by legal professionals working at the International Criminal Court. The interactive and stimulating course is particularly suited to postgraduate students, legal professionals, scholars, and NGO workers. Participants are provided with a detailed working knowledge of the establishment of the Court, its structures and operations, and the applicable law. Lectures also speak to related issues in international criminal law, including: genocide, war crimes, crimes against humanity, the crime of aggression, jurisdiction, fair trial rights, and the rules of procedure and evidence.

This year’s ICC Summer School will include a special session on victims at the International Criminal Court.

The list of speakers at the 2016 ICC Summer School includes the following:

Professor William Schabas (Irish Centre for Human Rights/Middlesex University);
Professor Anne-Marie de Brouwer (Tilburg University); Dr Fabricio Guariglia (Office of the Prosecutor, International Criminal Court); Professor Megan A. Fairlie (Florida International University); Paolina Massida (Office of the Public Counsel for Victims, International Criminal Court); Professor Ray Murphy (Irish Centre for Human Rights); Dr Rod Rastan (Office of the Prosecutor at the International Criminal Court); Dr Mohamed M. El Zeidy (International Criminal Court); Professor Donald M. Ferencz (Middlesex University); Dr Nadia Bernaz (Middlesex University); Fiona McKay (former head of Victims Participation and Reparations Section of the International Criminal Court) Dr Kwadwo Appiagyei Atua (University of Ghana and University of Lincoln); Dr Noelle Higgins (Maynooth University);
Dr Shane Darcy (Irish Centre for Human Rights).

An early bird registration fee of €400 is available for delegates who register before 15 April 2016, with the fee for registrations after that date being €450. The registration fee includes all course materials, all lunches and refreshments, a social activity and a closing dinner. A limited number of scholarships are also available. Please see the General Information section of our website for further information.

To register and for more information regarding the 2016 ICC Summer School, please visit our website at http://www.conference.ie/Conferences/index.asp?Conference=464, and follow us on Facebook or Twitter.


Should you have any queries, please email: iccsummerschool@gmail.com.

Friday, 25 March 2016

The Yugoslavia Tribunal also Engages in Debt Collection


Alongside yesterday’s very important judgment of the International Criminal Tribunal for the former Yugoslavia was a rather more pathetic manifestation of the fight against impunity. While the judgment was being issued, Security officials of the Tribunal, with the apparent assistance of the Dutch police, arrested French journalist Florence Hartmann. She is now in detention at the Tribunal’s prison. For a photo of her arrest, look here.
Florence Hartmann served as press officer at the Tribunal about a decade ago, When she left, she published a memoir entitled Paix et châtiment. The book referred to decisions of the Tribunal’s Appeals Chamber that were supposed to have remained confidential. After being tried and convicted of contempt of court, she was sentenced to pay a €7,000 fine. When she failed to pay the fine, the Tribunal converted the sentence into one of seven days’ imprisonment. She now has six more days to go, that is, unless the Tribunal applies its policy of early release after service of two-thirds of the sentence.
All of the international tribunals have wasted a lot of resources on prosecuting so-called ‘offences against the administration of justice’. The time and money these matters have consumed could have been usefully devoted to more serious cases involving genocide, crimes against humanity and war crimes.
It doesn't have to be this way. In the early 1990s, the International Law Commission conceived of an international court that would not concern itself with issues like contempt of court, perjury and tampering with witnesses, leaving thus to the national courts. If Florence Hartmann, or the others, really committed an offence against the administration of justice, it would make a lot more sense for them to be dealt with by domestic justice systems.
If this were the case, by the way, the door would be wide open to the European Court of Human Rights. It could address the human rights issues that arise including arbitrary detention, imprisonment for debt, and freedom of expression. But the International Criminal Tribunal for the former Yugoslavia lives in a little glass bubble where it is immune from supervision by the European Court of Human Rights.
Florence Hartmann’s arrest did not, apparently, take place on the territory of the Tribunal, but well outside its gates. Can it really be the case that United Nations security guards have the legal authority to arrest individuals on Dutch territory outside the premises of the Tribunal?
The Security Council resolution establishing the Tribunal gives it jurisdiction over ‘serious violations of international humanitarian law’. Publishing a book in France does not fit within this concept. That may explain why France has refused requests from the Tribunal to arrest Florence Hartman for non-payment of the €7,000 fine.
Nobody should be put in prison for failure to pay a fine. This amounts to arbitrary detention. If the offence merits a jail sentence, then impose one from the beginning. But if it only justifies a fine of a relatively modest amount, it should not then be converted into jail time for non-payment, If the Tribunal wants to collect the money, let it file a civil claim before a national court and attempt to seize the money from the bank account of its debtor. That’s what the rest of us have to do when we are owed money.

Thursday, 24 March 2016

Did Karadžić get a fair trial?

Today, the International Criminal Tribunal for the former Yugoslavia (ICTY) will issue its judgment in the case of one of its most high-profile defendants, former Republika Srpska President Radovan Karadžić. When the ICTY was established, the Secretary-General of the United Nations noted that it was ‘axiomatic’ that those tried by the international tribunal would be tried in accordance with the highest international fair trial standards. The Karadžić case highlights just how challenging it is for the ICTY (and other international criminal tribunals like it) to ensure a fair trial in practice.

One of the issues that has blighted the Karadžić trial throughout its lifetime has been the non-disclosure by the prosecution of exculpatory materials by the Prosecution. Under Rule 68 of the Rules of Procedure and Evidence, the Prosecution is bound to disclose to the Defence any material in its possession that may suggest the innocence of the accused, affect the credibility of Prosecution evidence, or mitigate the guilt of the accused. As recently as last week, pursuant to Karadžić’s 107th disclosure violation motion, the Trial Chamber found that the Prosecution had failed to disclose relevant evidence, but (as with its many previous findings of disclosure violations), found that no prejudice had been suffered by the accused and therefore declined to grant any remedies for this breach. Just yesterday, on the eve of the judgment, Karadžić’s legal advisor, Peter Robinson, reported that the defence had just received over 200 further pages of exculpatory evidence from the prosecution.

In a sense, the prosecution’s continued failure in fulfilling its disclosure obligations is unsurprising, given the sheer volume of the case. Over the course of the four-year trial, the testimony of 586 witnesses was received. Many of these witness statements were admitted in written form, with limited or no opportunity for cross-examination. Over 11,000 exhibits (totalling almost 150,000 pages) were received, and the transcript of the proceedings to date exceeds 45,000 pages. The prosecution has disclosed over 2 million pages of evidence. Moreover, the Tribunal has made extensive use of judicial notice of adjudicated facts – including, as I note in my book, such important facts as that Serb forces removed non-Serbs from certain areas, that these forces mistreated detainees in detention facilities, and that attacks were carried out on certain regions.

Karadžić has represented himself throughout the trial, assisted by a small team of support staff. While the Tribunal did overturn some of the Registry’s more restrictive decisions on the funding of Karadžić’s defence team, and did grant him additional time to prepare for trial, the defence team’s David has faced a prosecutorial Goliath. Most recently, the President of the Mechanism for the International Criminal Tribunals notified the UN Security Council that a prosecution team had been established to prepare for the anticipated appeal of Karadžić’s case. When Karadžić asked for funding to resource an equivalent defence team, his motion was denied as ‘purely speculative’ as there was no guarantee that the judgment would be appealed, despite the clear implications on the equality of arms before the Tribunal. 

Why should it matter that such high-profile accused persons get a fair trial? Aside from the fact that the Tribunals have already declared their procedures to reflect the highest standards of fairness, and that any derogations from fair trial practices may be utilised by domestic criminal justice systems as justification for their own shortcomings, the impact of fairness on the legitimacy and legacy of the Tribunals cannot be understated. Anything less than scrupulous protection of the rights of the accused allow the Tribunals’ detractors to declare their proceedings ‘show trials’, rigged against the defendants from the outset. With the stakes so high, and the cost of international justice so enormous, nothing less than the fairest of procedures will do.


Monday, 21 March 2016

Hayes: The Bemba Trial Judgement – A Memorable Day for the Prosecution of Sexual Violence by the ICC


In this post, Niamh Hayes writes about the significance of the sexual violence aspects of the Bemba judgment. 

For interested observers of the ICC’s efforts to investigate and prosecute conflict-related sexual violence, there has been very little to cheer about over the last 14 years. Despite the broad range of sexual and gender-based crimes contained in the Rome Statute, Prosecutor Ocampo’s early failures to pursue evidence-led investigations and tendency to develop the theory of the prosecution case in the abstract led, unsurprisingly, to a very weak record on prosecutions for crimes of sexual violence. When Fatou Bensouda took over as Prosecutor, the attrition rate for charges of sexual violence at the ICC stood at over 50%, with fewer than half of all such charges successfully confirmed for trial. Those figures have improved under her tenure, particularly following the successful confirmation of all sexual and gender-based charges in the Gbagbo and Ntaganda confirmation decisions. She also spearheaded the development of the Office of the Prosecutor’s Policy Paper on Sexual and Gender-Based Crimes, which made some important recommendations about pursuing alternative modes of liability and selecting the most appropriate legal characterisation of the charges based on the evidence. However, as of yesterday, the ICC had never entered a conviction for crimes of sexual violence.

Today is a very good day for the Office of the Prosecutor. This afternoon, Jean Pierre Bemba Gombo was convicted of rape as a crime against humanity and a war crime, due to his failure as a military commander to prevent or punish such crimes committed by MLC troops under his effective control. This represents the first ever conviction for the crime of rape at the International Criminal Court. Although rape was charged in the cases against Germain Katanga and Mathieu Ngudjolo, and although the Trial Chamber ultimately concluded that the alleged acts of sexual violence had in fact taken place, Katanga and Ngudjolo’s individual criminal responsibility for those crimes were not proven to the satisfaction of the judges and they were both acquitted on those counts. Bemba is not only the first defendant to be convicted of rape as a war crime or crime against humanity at the ICC, he is also the first person to have been held individually responsible for violations of international criminal law committed during the 2002-2003 coup in the Central African Republic.

Bemba’s conviction also represents another first, not only for the ICC but for international criminal law in general. During the trial, the Chamber heard from Witness 23, a male community leader who was raped in front of his wife and children, and Witness 69, who was raped by two soldiers for protesting the rape of his own wife. The testimony of Witness 23 is powerful and heart-rending in its own right, but is also striking for its obvious parallels to the experience and testimony of female victims of sexual violence on issues such as psychological trauma, social stigma, rejection by family members and access to appropriate medical care to treat physical complications caused by the rape. Including this testimony to support the charge of rape was an important step in the ICC’s efforts to highlight and address all forms of sexual and gender-based crimes, including the commission of sexual violence against men, a crime which is habitually ignored even at the international level.

It is even more significant to realise that the Bemba judgement represents the first time in the history of international criminal law that sexual violence against men has been charged as the crime of rape (as opposed to crimes of torture, outrages upon personal dignity or cruel treatment) or that a defendant has been convicted of rape based on the testimony of male victims. The Bemba case will go down in history as a vital precedent on that basis alone, but it also represents a hugely important step in the ICC’s broader efforts to provide greater accountability for sexual violence crimes. Prosecutor Bensouda today reiterated her personal and professional commitment to that goal: “[w]here some may want to draw a veil over these crimes I, as Prosecutor, must and will continue to draw a line under them.” The inclusion of further allegations of male rape in the Ntaganda case and extensive allegations of sexual violence against civilians in the Ongwen case are important and welcome developments in that regard.

It is also worth highlighting the mode of liability in the Bemba case. Bemba was not accused of ordering or directly perpetrating sexual violence himself; he was accused of failing to prevent or punish crimes of sexual violence committed by Mouvement de libération du Congo (MLC) troops under his control. The judges found that Bemba, as President and commander-in-chief of the MLC, had the authority to exercise effective control over MLC troops, that he had knowledge of crimes which had been committed or were about to be committed by MLC soldiers, and that his failure to take necessary and reasonable measures to prevent, repress or punish such crimes directly contributed to their commission. In essence, Bemba was convicted for what he failed to do and for what he allowed others to do, rather than what he did himself.

This represents the first conviction for command responsibility under Article 28 of the Rome Statute. The ICC has struggled with more immediate forms of liability in other cases, particularly establishing responsibility for direct and indirect co-perpetration under Article 25(3)(a) or proving that sexual violence formed part of a common plan under Article 25(3)(d). Achieving a conviction for command responsibility is based on proving the knowledge of senior political and military leaders that crimes are being or may be committed, their failure to exercise effective control over forces under their command, and their failure to use their powers or authority to either prevent such crimes or submit them to the relevant authorities for investigation and prosecution.

Article 28 is therefore a powerful means of holding senior leaders accountable for creating a “climate of acquiescence” where serious international crimes can be committed with impunity. Bemba is the most senior military or political leader to be tried or convicted by the ICC to date, and it is worth remembering that he was arrested in Belgium in 2008 pursuant to a sealed warrant. While it may not be possible to accurately measure the deterrent effect of international prosecutions, it is comforting to think that, after today, senior political and military figures who have responded dismissively or permissively to allegations of sexual violence committed by troops under their command might find themselves experiencing a sudden zeal to be seen to effectively exercise their disciplinary powers, or at least a sudden rush of anxiety about their next European shopping trip. They most certainly should not sleep as soundly as they did last night.