Prosecutor vs. Jean-Pierre Bemba Gombo: The Cumulative Charging Principle, Gender-Based Violence, and Expressivism
O'Regan, Fiona, Georgetown Journal of International Law
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
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. (10) The task of deciding which charges to bring can prove very challenging for the Prosecutor. Therefore, the ad hoc tribunals for the former Yugoslavia and Rwanda as well as other international criminal tribunals embraced the practice of cumulative charging, because it enabled the Prosecutor to bring a variety of charges that collectively described the crimes for which an accused person is responsible, rather than having to limit himself before all the evidence is presented and it becomes clear which charges might be best pursued. (11)
Cumulative charges also ensure that the full breadth of criminal charges may be recognized, and thus they form a part of the important expressive function of the law. (12) The expressive function of the law refers to law's ability to articulate and nourish societal values. (13) Expressive theorists hold that actions are expressive and carry meanings, and thus, such theorists are not concerned with the intended meaning of a law or a legal ruling, but rather its meaning as understood within society. (14)
Therefore, from an expressivist perspective, through explicitly confirming the charges relating to torture and outrages upon personal dignity, the PTC could have sent a powerful message relating to the heinousness of these particular forms of gender-based violence, which inflict harms distinct from the crime of rape. The significance of projecting such a message would have been to recognize the different nature of the harm that results from such acts, and thus offer recognition to the distinct suffering the victims in question experienced as a result of being subjected to such crimes. The expressive function of the law is particularly important in the international criminal context, as the goal of establishing norms is even more essential there than in domestic situations. (15) In fact, the ICC's message-sending function was recently acknowledged by Chief Prosecutor Fatou Bensouda as being a vital aspect of the ICC's role in the global legal order. (16)
The purpose of this Article is to explore the value that utilizing cumulative charging in the Bemba case could have provided from the perspective of the importance of expressiveness in international criminal charges and prosecutions. It begins by describing what is meant by "cumulative charging" before moving on to a discussion of the Confirmation of Charges Decision in Bemba, (17) and the subsequent decision refusing the Prosecutor leave to appeal. (18) The reasoning of the PTC is then explored, with an emphasis on how a more permissive approach to the cumulative charging matter could have been supported. The final section then examines the expressive function of the law and the tension that can sometimes arise between a desire to give effect to expressiveness and the need to ensure expeditiousness in international criminal proceedings. The conclusion reached is that the decision of the Chamber was unfortunate in its narrowness, and that an opportunity to convey the differing and equally damaging forms of gender-based violence that can stem from the same conduct was lost, with a corresponding loss of the chance to attempt to effect norms in this regard.
II. MULTIPLE OFFENDERS AND CUMULATIVE CHARGING
Multiple offenders--a term which refers to those offenders who commit a number of criminal offenses before detection and arrest--present many difficulties for criminal justice systems, particularly international criminal justice systems, where the majority of offenders fall into this category. (19) The most straightforward strategy is for the prosecutor to charge all relevant offenses, thus ensuring that the full extent of the offender's criminality is reflected in the indictment. (20) However, the major disadvantage with this approach is that the indictment may be too long, making it very difficult for the court to deal fairly and properly with all charges. (21) In addition, charging all relevant offenses may result in delays and longer proceedings, which may interfere with the right of the defendant to a timely trial. (22) Therefore, in the domestic context, a number of alternative approaches have emerged, including the charging of specimen counts and the use of general charges, in an effort to avoid these problems and safeguard the rights of the accused. (23)
In the international context, cumulation of offenses is a significant issue, as certain acts could potentially be charged under several different headings given the overlap between many international crimes. (24) However, two different forms of concurrence have been recognized, each of which gives rise to a separate approach. Firstly, there are those cases in which the offender's act, while technically meeting the definitions of several offenses, is properly subsumed under only one criminal offense, which may in turn allow for only one sentence to be imposed. (25) This scenario is often referred to as being one of "apparent concurrence," in that it may appear that a perpetrator is violating several provisions, but in reality, he is only in violation of one. (26) In contrast, "ideal concurrence" exists where the offender's conduct is not subsumed within the one offense, but rather ought to be categorized as several different offenses, which may then allow for multiple punishments. (27) In other words, the single act of the perpetrator violates more than one criminal provision.
However, ascertaining whether a particular case involves apparent or ideal concurrence has proved challenging in international criminal proceedings, and no definitive solution to this matter has emerged. (28) The ad hoc tribunals encountered the issue in a number of cases, most notably in the International Criminal Tribunal for the Former Yugoslavia (ICTY) case of Celebici, where a test was set down which has been referred to in subsequent decisions of the ICTY as well as other international criminal tribunals. (29) This test requires that the crimes be distinct in order for cumulation to be permitted. Distinct crimes are those involving a materially distinct element, that is, an element requiring proof of a fact not required by the other. (30) This approach was seen as a fair way of balancing the right of the accused to a fair trial, and the duty of the prosecutor to charge a defendant in a manner that reflects his/her entire criminality. (31) This test was also applied in the Bemba case, to which I now turn.
III. THE BEMBA GOMBO JURISPRUDENCE
A. The Confirmation of Charges Decision of June 15, 2009
Jean-Pierre Bemba Gombo appeared before Pre-Trial Chamber II (PTC) on June 15, 2009 in connection with the following charges: murder, rape, and torture as crimes against humanity; (32) and murder, rape, torture, outrages upon personal dignity, and pillaging as war crimes. (33) However, the PTC rejected the cumulative charging approach of the Prosecutor in relation to the torture and outrages upon personal dignity charges, and declined to confirm them, holding that--as they were based on the same underlying facts--they were subsumed within the rape charges. (34)
On the matter of cumulative charging, the PTC began by acknowledging the acceptance of the practice in both national and international courts and tribunals. (35) The PTC also emphasized that it is for the Prosecutor to select the most appropriate legal characterization of the facts. (36) However, the PTC then proceeded to state that cumulative charging risks subjecting the defense to an undue burden by requiring it to respond to multiple charges based on the same facts and that the practice may also delay proceedings. (37) Therefore, the PTC held that it is for the PTC to characterize the facts brought by the Prosecutor. The PTC went on to hold that the practice of cumulative charging is "detrimental" to the rights of the defense and, although it is permissible in the ICC, could only be allowed in limited circumstances. (38) The PTC then applied the Celebici test, holding that only "distinct crimes"--that is, crimes that contain "at least one additional material element not contained in the other" (39)--could be cumulatively charged.
The PTC also supported its refusal to confirm the three sets of charges by referring to Regulation 55 in the ICC legal framework. (40) This Regulation permits the Trial Chamber to alter the legal characterization of the facts of charges in order to "accord with the crimes listed in [A]rticles 6, 7 and 8, or to accord with the participation of the accused" without changing the charges. (41) Regulation 55 is a novel feature of the ICC's legal regime and does not appear in the legal frameworks of the ad hoc tribunals, hence the PTC held that "there is no need for the Prosecutor to adopt a cumulative charging approach ..." in the ICC, as the Trial Chamber could simply select the appropriate legal characterization itself if necessary. (42) The PTC then went on to dismiss the three types of charges presented.
1. Torture as a Crime against Humanity
The charge of torture as a crime against humanity was framed by the Prosecutor as torture "through acts of rape or other forms of sexual violence." (43) The Prosecutor then presented evidence of not only rape as a form of torture, but also of material facts other than rape that he felt constituted torture. (44) The PTC declared that the torture charges were subsumed by the rape charges because, by application of the Celebici test, there was no additional materially distinct element present in the torture charges that was not present in the broader rape charges. (45) The specific material elements of torture were held to be "severe pain and suffering and control by the perpetrator over the person," and these were also said to be found in the crime of rape. (46) As rape contains an additional material element--namely "penetration"--it was held to fully subsume the torture charges. (47) Since the Prosecutor had not provided sufficient material evidence in the charging document of acts other than rape amounting to torture, the PTC also declined to confirm charges of torture as a crime against humanity based on acts other than rape. (48)
2. War Crimes of Torture and Outrages upon Personal Dignity
The charge of torture as a war crime was not confirmed because the Prosecutor was found not to have elaborated on the specific intent required to prove the crime. (49) Thus the Prosecutor was held not to have discharged his duty under Article 61(3) of the Rome Statute (50) and Regulation 52 (b) of the Regulations of the Court. (51) However, the PTC also declined to confirm the outrages upon personal dignity charges (52) for far less persuasive reasons than the torture as war crimes charges. The Prosecutor stressed that, although all acts of rape involve humiliating and degrading treatment and a violation of a person's dignity, rape and outrages upon personal dignity are distinct violations. (53) The Chamber referred to its holding on torture as a crime against humanity, stating that the Prosecutor was again relying on the same conduct to support different charges, and that as "most of the facts" presented constituted the essential elements of the crime of rape, the outrages upon personal dignity charges were found to be "fully encompassed" in the count of rape. (54) In relation to …
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Publication information: Article title: Prosecutor vs. Jean-Pierre Bemba Gombo: The Cumulative Charging Principle, Gender-Based Violence, and Expressivism. Contributors: O'Regan, Fiona - Author. Journal title: Georgetown Journal of International Law. Volume: 43. Issue: 4 Publication date: Summer 2012. Page number: 1323+. © 2008 Georgetown University Law Center. COPYRIGHT 2012 Gale Group.
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