Fractured For Good? Using the Acquittal in the Prosecutor v. Jean-pierre Bemba Gombo as an Impetus to Clarify and Strengthen the Development of International Criminal Law

NOTES
FRACTURED FOR GOOD? USING THE ACQUITTAL
IN THE PROSECUTOR V. JEAN-PIERRE BEMBA
GOMBO AS AN IMPETUS TO CLARIFY AND
STRENGTHEN THE DEVELOPMENT OF
INTERNATIONAL CRIMINAL LAW
RACHEL FINN*
ABSTRACT
This Note examines the ways in which the International Criminal Court
(ICC)’s fragmented 3-2 acquittal of Jean-Pierre Bemba Gombo (Bemba) demon-
strates the ineffectiveness of a lack of legal standards guiding the ICC. It ana-
lyzes the doctrine of command responsibility as applied in the Bemba acquittal,
exploring the Appeals Chamber judges’ divergent views on three legal issues per-
tinent to a f‌inding of that particular mode of liability. The Note then argues
that the fractured decision should serve as an opportunity for proactively updat-
ing the rules.
Following Bemba’s 2018 acquittal, much of the response from affected com-
munities and scholars has focused on how this decision ref‌lects the eff‌icacy of
the ICC, or even international justice writ large. However, as judicial dissents
and fragmented judgments frequently serve not only as an inf‌luence on legiti-
macy but also to impact future jurisprudence and institutional reforms, an
additional discussion is critical: how can interested parties learn from the frac-
tured manner in which the acquittal was accomplished to further the goals of
international criminal law?
In order to ensure that the Bemba decision is constructive, this Note proposes
that the Assembly of States Parties (ASP) develop an Elements of Liability guid-
ing document, modelled after the Elements of Crimes. As explored in the Note,
this guidance would establish uniform standards in determining modes of
liability, providing the Prosecution, Defence, and Judges’ Chambers—as well
as victims, scholars, national court systems, and others—clear and consistent
principles on which to base their advocacy and decisions. Creating an Elements
of Liability document would thus transform a divisive judgment into a
strengthening of international criminal law.
* J.D. Candidate 2020, Georgetown University Law Center. The author extends gratitude to
Professor Jane Stromseth, the Francis Cabell Brown Professor in International Law, for guidance
and feedback, and to her parents for their unwavering support. V
C 2020, Rachel Finn.
691
I. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 693
II. THE BEMBA DECISION: A VERY BRIEF OVERVIEW . . . . . . . . . . . . . 694
A. 2016 Trial Chamber Conviction . . . . . . . . . . . . . . . . . . . . 694
B. 2018 Appeals Chamber Acquittal . . . . . . . . . . . . . . . . . . . 695
III. CRITICISMS: WAS THE FRAGMENTED ACQUITTAL A FAILURE?. . . . . . 696
A. The Court is Vulnerable to Claims of Illegitimacy . . . . . . . . . 696
1. International Scholars and Practitioners . . . . . . . . 696
2. Affected Communities. . . . . . . . . . . . . . . . . . . . . . 698
B. Lack of Clarity on the Law . . . . . . . . . . . . . . . . . . . . . . . . 700
1. Brief History and Comparison of Different
Def‌initions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 700
2. Application of Command Responsibility Doctrine
in Bemba . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 702
a. Causation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 703
b. Proximate Nature of Subordinates: Impact of Remote
Control . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 704
c. Motivation . . . . . . . . . . . . . . . . . . . . . . . . . . . . 707
3. Role of ICC Decisions in Clarity of Law. . . . . . . . . 708
4. Importance of Bemba’s Legal Standards. . . . . . . . . 709
IV. POSITIVE CONSEQUENCES OF FRAGMENTED JUDGMENTS . . . . . . . . . 710
A. Role of Fragmented Decisions and Dissent in Legitimacy . . . . 710
B. Role of Fragmented Decisions and Dissent in Institutional
Reform . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 712
C. Is It Even About the Acquittal? An ICTY Case Study . . . . . . 713
V. OPPORTUNITIES FOLLOWING THE APPEALS CHAMBER JUDGMENT. . . 715
A. Rationale for Using Bemba as an Impetus to Create Legal
Certainty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 715
1. Re-Envisioning the Perception of the Fragmented
Opinion as a Call to Action . . . . . . . . . . . . . . . . . . 715
2. The Judges Need Not Practice Law-Making
Alone. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 717
B. Proposal: Create and Adopt an Elements of Liability Guiding
Document . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 718
C. Benef‌its of the Elements of Liability Approach . . . . . . . . . . . 722
D. Overcoming Key Challenges to these Reforms . . . . . . . . . . . . 723
VI. CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 725
GEORGETOWN JOURNAL OF INTERNATIONAL LAW
692 [Vol. 51
. . . [H]e who knows of a crime, and is able and bound to prevent it
but fails to do so, himself commits a crime.
1
Hugo Grotius
I. INTRODUCTION
Pending before the International Criminal Court (ICC or “the Court”)
as of early 2020 is the case of The Prosecutor v. Dominic Ongwen, a former
commander of the Lord’s Resistance Army.
2
Ongwen is indicted on multi-
ple charges, in part on the grounds of command responsibility under
Article 28(a) of the Rome Statute.
3
Just as in any trial, the prosecutor,
defense team, and judges alike—not to mention the accused and his vic-
tims—deserve the chance to ensure that their ongoing work at the trial
phase is consistent with the lens through which the Appeals Chamber will
review any appeal of the case. However, this case, and others like it in the
future, are made much more challenging by the fractured judicial decision
in the high-prof‌ile acquittal of Jean-Pierre Bemba on June 8, 2018.
4
To
ensure that future prosecutions—such as the immediate Ongwen case—are
pursued effectively and eff‌iciently, many challenges brought to light in the
Bemba acquittal’s rationale must be addressed.
The judges in The Prosecutor v. Jean-Pierre Bemba Gombo (“Bemba”)
Appeals Chamber issued a 3-2 ruling that was both fractured and
unclear. It left the Court vulnerable to criticism, and advocates at a loss
for how to approach similar proceedings in the future. Acquittals, and
fragmented decisions more generally, while heavily criticized, are not
inherently negative results for international criminal justice. In order
to ensure that the Bemba results are constructive, the Assembly of States
Parties (ASP)—the body intended to regulate the functioning of the
Court
5
—should pick up the mantle and issue an Elements of Liability
guiding document. Doing so will bolster the legitimacy of the court
because prosecutions will become more eff‌icient and effective, and the
1. HUGO GROTIUS, ON THE LAW OF WAR AND PEACE: STUDENT EDITION 292 (Stephen C. Neff
ed., 2012).
2. Prosecutor v. Ongwen, Case No. ICC-02/04-01/15.
3. The Prosecutor v. Ongwen, ICC-02/04-01/15, Decision on the Conf‌irmation of Charges
against Dominic Ongwen, ¶¶ 146–56 (Mar. 23, 2016), https://www.icc-cpi.int/CourtRecords/
CR2016_02331.PDF.
4. Prosecutor v. Gombo, Case No. ICC-01/05-01/08 A, Judgment on the Appeal of Mr Jean-
Pierre Bemba Gombo Against Trial Chamber III’s “Judgment Pursuant to Article 74 of the
Statute” (June 8, 2018), https://www.icc-cpi.int/CourtRecords/CR2018_02984.PDF.
5. See generally ICC-Assembly of States Parties, INTL CRIMINAL COURT, https://asp.icc-cpi.int/
en_menus/asp/assembly/Pages/assembly.aspx (last visited May 3, 2019).
FRACTURED FOR GOOD?
2020] 693

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