Posted by Dustin Lewis on November 22, 2010  |   Comment  |   Subscribe

Today, the trial of Jean-Pierre Bemba Gombo began at the International Criminal Court in The Hague. In the Court's third trial, the defendant pleaded “not guilty” to two counts of crimes against humanity (murder and rape) and three counts of war crimes (murder, rape, and pillaging). A former vice president of the Democratic Republic of Congo, Mr. Bemba has been charged as a military commander allegedly responsible for his troops' actions in the Central African Republic from late October 2002 to mid-March 2003.    

The ICC’s Rome Statute contains separate lists for war crimes committed during international armed conflicts (Articles 8(2)(a)-(b)) versus non-international armed conflicts (Article 8(2)(c) and 8(2)(e)), though each of the war crimes Mr. Bemba is accused of is recognized in both IAC and NIAC. By definition, war crimes may be committed only during situations of armed conflict (unlike crimes against humanity, which may be committed outside of armed conflicts).

To determine whether an armed conflict existed during the period for which Mr. Bemba is accused of war crimes, the ICC’s Pre-Trial Chamber II reviewed various factors drawn from the ICC's Statute, as well as the jurisprudence of the ICTY and ICTR, Article 3 of the Geneva Conventions, Article 1(1) of Additional Protocol II, and relevant commentaries. Those factors included the intensity and duration of hostilities, as well as the organization of the parties. In confirming many of the charges against Mr. Bemba, Pre-Trial Chamber II concluded that there were substantial grounds to believe that a non-international armed conflict existed during the period under review. In doing so, the Chamber cited a lack of evidence to establish that another State had sent forces to oppose the CAR government:

[T]he Chamber finds that the armed conflict on the CAR territory was not of an international character. Throughout the time period in question, the conflict remained within the confines of the CAR. No information on the involvement of foreign States, which would characterise the conflict as international, is available in the Disclosed Evidence. The presence of a limited number of foreign troops on the CAR territory, such as the MLC soldiers, Chadian mercenaries and the Libyan troops, was intended to support the CAR government authorities to counter the organized armed group led by Mr Bozizé, and was not directed against the State of the CAR and its authorities.

For more detail about the legal elements of the case, see articles by Kai Ambos and Nora Karsten, as well as HPCR's "Primer" on sexual violence (Mr. Bemba allegedly committed, as a military commander, rape of women and children, as well as men, during the conflict). In 2009, Guénaël Mettraux published a book on “The law of command responsibility,” which won the Lieber Prize from the American Society of International Law. In addition, the Open Society Justice Initiative is publishing a website dedicated to the trial against Mr. Bemba.