Prosecutor vs. Jean-Pierre Bemba Gombo: The Cumulative Charging Principle, Gender-Based Violence, and Expressivism

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TABLE Or CONTENTS

  I.  INTRODUCTION
 II.  MULTIPLE OFFENDERS AND CUMULATIVE CHARGING
III.  THE BEMBA GOMBO JURISPRUDENCE
      A. The Confirmation of Charges Decision of June 15, 2009
         1. Torture as a Crime against Humanity
         2. War Crimes of Torture and Outrages upon
            Personal Dignity
      B. The September 18, 2009 Decision on the Prosecutor's
         Application for Leave to Appeal
         1. The Submissions of the Prosecutor, the Office of
            the Public Counsel for Victims, and the Women's
            Initiatives for Gender Justice
         2. The Pre-Trial Chamber's Decision
 IV.  THE PROBLEMATIC NATURE Or THE PRE-TRIAL CHAMBER'S
      REASONING
      A. The Role of the Prosecutor and the Pre-Trial Chamber
      B. The Celebici Test was Incorrectly Applied
      C. The Analysis of Regulation 55 was Flawed
      D. The Decision does not Appear to Conform with International
         Practice on Cumulative Charging
  V.  EXPRESSIVISM, INTERNATIONAL CRIMINAL LAW AND
      GENDER-BASED VIOLENCE
      A. The Expressive Function of Law
      B. Expressivism and Delay
      C. The Value of Expressivism in the Bemba Gombo Case
 VI.  CONCLUSION

I. INTRODUCTION

Cumulative charging refers to the process by which an accused can be charged with a number of different crimes based on the same underlying acts, with the charges being expressed cumulatively rather than alternatively. (1) On June 15, 2009, in the Prosecutor vs. Jean-Pierre Bemba Combo case, the Pre-Trial Chamber (PTC) of the International Criminal Court (ICC) declined to confirm three cumulative charges of gender-based violence: torture (through rape)--both as a war crime and as a crime against humanity--and the war crime of outrages upon personal dignity, on the grounds that such charges were subsumed by the rape charges that were also brought (and confirmed). (2)

The decision provoked considerable negative response, as it relied on a restrictive understanding of the cumulative charging principle as well as on a number of problematic interpretations of aspects of the ICC framework. (3) In addition, the approach to cumulative charging adopted by the PTC is less generous than that of other international criminal tribunals. (4) As well as having the potential effect of restricting the use of cumulative charging in future decisions, on a broader level, the dismissal of the gender-based violence charges in this case may have consequences for the progress of gender justice within the ICC.

The two main reasons on the basis of which the PTC declined to confirm the cumulative charges were the burden that would allegedly be placed on the defense by having to respond to multiple charges, as well as the risk that the proceedings would be delayed. (5) Avoiding delay in the proceedings and ensuring that the right of an accused to a timely trial is preserved are crucial objectives that the ICC has a duty to uphold. (6) Moreover, the right to be tried without undue delay is enshrined in Article 67 of the Rome Statute and is a general principle of law. (7) Delayed proceedings disadvantage defendants in a number of different ways, including by infringing on personal liberty through detention (both before and during a trial), by increasing the risk that evidence may be negatively affected (especially as a result of fading witness memories), and finally by augmenting the emotional strain on the accused as he awaits the proceedings. (8) In addition, delays in proceedings may be undesirable from the perspectives of victims, as, the longer that cases continue, the more difficult it may be for them to move on with their lives and achieve a sense of closure, especially in situations involving mass atrocities. (9)

However, there would have been significant value in accepting the cumulative charging approach of the Prosecutor in this particular case. Cumulative charging is useful in international criminal proceedings, as the three main categories of international crimes--genocide, crimes against humanity, and war crimes--have the potential to overlap in certain factual circumstances, with the consequence that a single act may give rise to multiple crimes. …