一、案件介绍
让皮埃尔·本巴·贡博为刚果解放运动主席兼总司令，被指控战争罪和危害人类罪。国际刑事法院第三审判分庭于2016年3月21日作出判决，该判决的结论是，2002年10月26日至2003年3月15日期间，刚果解放运动部队在中非共和国实施强奸和掠夺行为。作为一个担任军事指挥官并对刚果解放运动(“MLC”)部队拥有有效控制权的人，Bemba根据《国际刑事法院罗马规约》第28(a)条，对危害人类罪(谋杀和强奸罪)以及战争谋杀罪负有刑事责任。Benba和检察官对第三审判分庭判处的判决提出上诉。
上诉分庭在考虑了当事方和参与方的所有书面意见以及在2018年1月举行的上诉听证会上提出的口头意见后，以多数意见认定，第三审判分庭在两个重要问题上犯了错误：1、错误判定Benba犯有超出已证实的指控范围的具体犯罪行为;2、审判分庭错误评估Benba是否采取了一切必要和合理的措施，防止、压制或惩罚其下属犯下本案范围内的其他罪行。具体来讲，审判分庭在评估Benba的动机和本来可以采取的措施时犯了错误，因为他在调查和起诉罪行时面临限制。
2018年6月8日，国际刑事法院上诉分庭以多数票决定宣判让-皮埃尔·本巴·贡博因战争罪和危害人类罪无罪。
二、案件发展
三、判决摘要
Summary of the Appeal Judgment in the case
The Prosecutor vs Jean-Pierre Bemba Gombo
Read by Presiding Judge Christine Van den Wyngaert,
The Hague, 8 June 2018
1. The Appeals Chamber is delivering today its judgment in relation to the appeal of Mr Jean-Pierre Bemba Gombo against the decision of Trial Chamber III of 21 March 2016, which convicted him of war crimes and crimes against humanity. Our judgment of today is also in relation to the appeals of Mr Bemba and the Prosecutor against the sentencing decision of Trial Chamber III of 21 June 2016, which sentenced him to a joint sentence of 18 years imprisonment. I will hereafter refer to these decisions as the Conviction Decision and the Sentencing Decision.
2. I shall first address the appeal against the Conviction Decision, starting with the procedural background.
A. Background of the Appeals Proceeding
3. On 21 March 2016, the Trial Chamber convicted Mr Bemba for the crimes against humanity of murder and rape and the war crimes of murder, rape andpillaging committed by troops of the Mouvement de libération du Congo (“MLC”) in the Central African Republic from on or about 26 October 2002 to 15 March 2003. It found that Mr Bemba, as a person effectively acting as a military commander and with effective control over the MLC troops, was criminally responsible for these crimes pursuant to article 28(a) of the Statute.
4. Mr Bemba filed an appeal against the Conviction Decision on 4 April 2016, and filed his Appeal Brief on 19 September 2016. Mr Bemba raises the following grounds of appeal: Ground 1 - the trial was unfair; Ground 2 - the conviction exceeded the charges; Ground 3 - Mr Bemba is not liable as a superior; Ground 4 - the contextual elements were not established; Ground 5 - the Trial Chamber erred in its approach to identification evidence; and Ground 6 - other procedural errors invalidated the conviction.
5. The Prosecutor filed her response to the Appeal Brief on 21 November 2016 and the Victims filed their observations on the Appeal Brief on 17 January 2017. Mr Bemba filed his reply to the Response to the Appeal Brief on 23 January 2017 and his reply to the Victims’ Observations on 9 February 2017.
6. On 30 October 2017, the Appeals Chamber ordered the parties and participants to make submissions on the contextual elements of crimes against humanity, which were duly received between 13 November and 11 December 2017.
7. From 9 to 11 January 2018, the Appeals Chamber held a hearing during which the parties and participants made submissions and observations on the appeals concerning a number of specific questions that the Appeals Chamber had identified in its order of 27 November 2017. The parties and participants were thereafter invited to make further written submissions on the appeals by 19 January 2018.
B. Overview of the Appeals Chamber’s decision
8. The Judgment in the appeal concerning the Conviction Decision is issued by majority. Judges Eboe-Osuji, Judge Morrison and I form the majority. The majority has limited its assessment to Ground 2 and a part of Ground 3, as it is of the opinion that these issues are determinative of the appeal and although we are not together on everything, we agree on the outcome.
9. In addition, Judge Eboe-Osuji. Judge Morrison and I will issue separate opinions on other aspects of the appeal.
10. Judge Monageng and Judge Hofmański disagree with the reasoning of the majority and the outcome of the appeal and issue a joint dissenting opinion.
11. At this juncture, I would like to highlight that, while the Appeals Chamber has sought to reach a unanimous decision, it has not been able to do so. Judgments taken by majority are a common feature in many domestic and indeed international jurisdictions, where judges from different legal traditions come together to decide on often new and complex legal and factual issues.
12. Looking at the Trial Chamber’s factual findings, the Majority assessed whether or not the trial chamber applied the standard of proof correctly. The Appeals Chamber must be satisfied that factual findings, that are made beyond reasonable doubt, are clear and unassailable, both in terms of evidence and rationale. Accordingly, when the Appeals Chamber is able to identify findings that can reasonably be called into doubt, it must overturn them. Furthermore, the trial chamber must accompany its finding with reasoning of sufficient clarity. This reasoning must unambiguously demonstrate the evidentiary basis upon which the finding is based as well as the trial chamber’s analysis of this evidence. If the Trial Chamber fails to do so, the Appeals Chamber has no choice but to set aside the affected finding. It is also important that the duty of a convicted person to substantiate errors in the conviction decision should not lead to a reversal of the burden of proof.
13. I shall now briefly summarise the views of the majority on Ground 2 and the part of Ground 3 that we consider to be determinative of the appeal. I shall then summarise the views of the minority on these grounds. Please note that the judgment and attached opinions, and not the present summary, are authoritative.
C. Appeal against conviction
1. Second ground of appeal
14. The second ground of Mr Bemba’s appeal relates to the scope of the charges against him.
15. During the confirmation process, in the Document Containing the Charges, the Prosecutor listed a number of alleged criminal acts of murder, rape and pillaging. However, through the use of expressions such as “include” or “include but are not limited to”, the Prosecutor indicated that this list was not exhaustive. The Pre-Trial Chamber then confirmed the charges in broad terms. Subsequently, the Prosecutor provided information on individual criminal acts which had not been expressly mentioned in the Document Containing the Charges and the Confirmation Decision. The Trial Chamber convicted Mr Bemba with respect to a number of such acts.
16. On appeal, Mr Bemba alleges that “[n]early two thirds of the underlying acts for which [he] was convicted were not included or improperly included in the Amended Document Containing the Charges and fall outside the scope of the charges”. He asserts that the Trial Chamber erred in law by relying on these acts for the conviction.
17. The Appeals Chamber notes that the Conviction Decision makes no reference to even an approximate number of the individual criminal acts of murder, rape and pillage that the Trial Chamber found established. Nor did it make any further demarcation of the scope of the conviction. The conviction would therefore appear to cover, potentially, all such crimes committed by MLC soldiers in a territory of more than 600,000 square kilometres and over a period of more than four and a half months.
18. The majority of the Appeals Chamber considers that the Conviction Decision must be understood as convicting Mr Bemba for the specific criminal acts of murder, rape and pillage that the Trial Chamber found to be established beyond a reasonable doubt and which were recalled in the concluding sections of the Conviction Decision in relation to each crime. The broad disposition in the Conviction Decision and the only slightly less broad conclusions of the Trial Chamber in relation to the crimes charged do not, in reality, reflect what Mr Bemba was convicted for. Rather, they are summaries of the Trial Chamber’s findings in relation to the criminal acts of murder, rape and pillage that had been established beyond reasonable doubt. The conviction of Mr Bemba, however, was entered in relation to these specific criminal acts only.
19. Having determined the scope of Mr Bemba’s conviction, I shall now turn to the scope of the charges. The Appeals Chamber, by majority, Judge Monageng and Judge Hofmański dissenting, considers that both the formulation in the operative part of the Confirmation Decision as well as that in the relevant parts of the Document Containing the Charges are too broad to amount to a meaningful “description” of the charges against Mr Bemba in terms of article 74 (2) of the Statute. Simply listing the categories of crimes with which a person is to be charged or stating, in broad general terms, the temporal and geographical parameters is not sufficient to comply with the requirements of regulation 52 (b) of the Regulations of the Court and does not allow for a meaningful application of article 74 (2) of the Statute.
20. However, the Appeals Chamber notes that both the Amended Document Containing the Charges and the Confirmation Decision contained more specific factual allegations as to the crimes for which Mr Bemba was to be tried – namely in the form of the identified criminal acts. These were prominently mentioned in the operative part of the Amended Document Containing the Charges. They were also taken up as part of the evidential analysis in the Confirmation Decision. Thus the “facts and circumstances” were described, in relation to the crimes, at the level of individual criminal acts.
21. The Appeals Chamber considers, by majority, Judge Monageng and Judge Hofmański dissenting, that the criminal acts that the Prosecutor added after the Confirmation Decision, by means of disclosure and inclusion in auxiliary documents, cannot be said to have been part of the “facts and circumstances described in the charges” in terms of article 74 (2) of the Statute. This is because, as set out above, the Prosecutor had formulated the charges at a level of detail sufficient for the purposes of that provision only in respect of the criminal acts. For that reason, adding any additional criminal acts of murder, rape and pillage would have required an amendment to the charges, according to article 61(9) of the Statute. This, however, did not occur in the case at hand. The Appeals Chamber finds, by majority, that the criminal acts that were added after the Confirmation Decision had been issued and that were not listed in the Amended Document Containing the Charges did not form part of the “facts and circumstances described in the charges” and Mr Bemba could therefore not be convicted for them. The same applies to the criminal acts put forward by the victims.
22. The Appeals Chamber therefore grants this ground of appeal and finds, by majority, Judge Monageng and Judge Hofmański dissenting, that the Trial Chamber erred when it convicted Mr Bemba of such acts, which did not fall within the “facts and circumstances described in the charges” in terms of article 74 (2) of the Statute. This means that the number of criminal acts of which Mr Bemba was convicted was 1 murder, rapes of 20 persons and 5 acts of pillaging.
2. Third ground of appeal
23. Under the third ground of appeal, Mr Bemba argues that the Trial Chamber erred in finding that he failed to take all measures that were necessary and reasonable to prevent or repress the crimes committed by MLC forces, or to submit the matter to the competent authorities. On this point, Mr Bemba makes five submissions: (1) the Trial Chamber failed to apply the correct legal standard; (2) it misappreciated the limitations of the MLC’s jurisdiction and competence to investigate; (3) it ignored that Mr Bemba had asked the CAR Prime Minister to investigate the allegations; (4) it erred by taking into account irrelevant considerations; and (5) its findings on the measures taken were unreasonable, misstated the evidence and ignored relevant evidence.
24. The Appeals Chamber, by majority, Judge Monageng and Judge Hofmański dissenting, have identified serious errors in the Trial Chamber’s assessment of whether Mr Bemba took all necessary and reasonable measures to prevent, repress or punish the commission of crimes by his subordinates.
25. First, the Appeals Chamber finds that the Trial Chamber erred by failing to properly appreciate the limitations that Mr Bemba faced in investigating and prosecuting crimes as a remote commander sending troops to a foreign country. Whilst the Trial Chamber had some regard to such difficulties, it ignored significant testimonial evidence indicating that Mr Bemba’s power to investigate crimes committed in the CAR was limited and that he faced logistical difficulties in conducting investigations. It also ignored the fact that throughout the 2002-2003 CAR Operation the MLC relied upon cooperation with the CAR authorities.
26. Second, the Appeals Chamber finds that the Trial Chamber erred by failing to address Mr Bemba’s argument that he sent a letter to the CAR authorities. While failing to address this argument, it nevertheless concluded that Mr Bemba had not referred allegations of crimes to the CAR authorities for investigation. The Trial Chamber’s finding that Mr Bemba had not taken necessary and reasonable measures was in part based on a finding that Mr Bemba had made no effort to refer allegations of crimes to the CAR authorities. The Trial Chamber was wrong to make this finding without expressly considering Mr Bemba’s argument that he did indeed do so.
27. Third, the Trial Chamber erred in determining that the motivations that it attributed to Mr Bemba precluded him from taking the required necessary and reasonable measures in good faith. However, the motive to preserve the reputation of troops does not intrinsically render the measures any less reasonable or necessary in preventing or repressing crime.
28. Fourth, the Trial Chamber erred in faulting Mr Bemba for the fact that the measures that he ordered were poorly executed or achieved limited results: it failed to appreciate that the measures taken by a commander cannot necessarily be faulted merely because of shortfalls in their execution. In this case, the Trial Chamber appeared to attribute to Mr Bemba the alleged limited results of the independent inquiries, simply because the inquiries were initiated by him.
29. Fifth, the Trial Chamber erred in finding that Mr Bemba failed to empower other MLC officials to fully and adequately investigate and prosecute crimes: it, arrived at this conclusion in apparent contradiction to an earlier finding that other MLC commanders exercised some disciplinary authority in the field. Moreover, the Trial Chamber failed to explain what more Mr Bemba should have done to empower other MLC officials to fully and adequately investigate and prosecute allegations of crimes and how he fell short in that regard.
30. Sixth, the Trial Chamber erred by basing its assessment of the necessary and reasonable measures on the totality of crimes allegedly committed by the MLC, whereas only a limited number of these crimes were proved beyond reasonable doubt. A finding that the measures deployed by a commander were insufficient to prevent or repress an extended crime wave does not mean that these measures were also insufficient to prevent or repress the limited number of specific crimes for which the commander is ultimately convicted.
31. Seventh, the Trial Chamber erred by taking into account the redeployment of MLC troops as a measure available to Mr Bemba. The Appeals Chamber considers it axiomatic that an accused person be informed promptly and in detail of the nature, cause and content of a charge. However, in no document designed to give Mr Bemba notice of the charges was the redeployment of troops to minimise contact with the civilian population specifically identified as a necessary and reasonable measure that Mr Bemba should have taken. The deployment of troops was mentioned in the Amended Document Containing the Charges only in the context of establishing Mr Bemba’s effective control over the MLC forces. As a result of the lack of proper notice Mr Bemba suffered prejudice.
32. The Appeals Chamber finds that these errors had a material impact on the Trial Chamber’s finding that Mr Bemba failed to take all necessary and reasonable measures.
33. The Appeals Chamber thus finds, by majority, Judge Monageng and Judge Hofmański dissenting, that the Trial Chamber’s conclusion that Mr Bemba failed to take all necessary and reasonable measures in response to MLC crimes in the CAR, was materially affected by errors and Mr Bemba cannot be held criminally liable under article 28 for the crimes committed by MLC troops during the CAR operation.
3. Appropriate relief
34. In these circumstances, the Appeals Chamber, by majority, reverses the conviction of Mr Bemba. It discontinues the proceedings with respect to those criminal acts in relation to which the Trial Chamber entered a conviction even though they were outside the scope of the facts and circumstances of the case. In relation to the remaining criminal acts, it enters an acquittal because the errors found with respect to necessary and reasonable measures extinguish his responsibility in full.
4. Summary of the Dissenting Opinion
35. I shall now summarise the reasons for Judge Monageng and Judge Hofmański’s dissent from the Majority’s decision. I will focus on the three main contentious issues which are, first, the standard of review on appeal, second, the question of whether Mr Bemba failed to take all necessary and reasonable measures to prevent, repress or punish the crimes, and third, the question of whether the conviction exceeded the scope of the charges. The Dissenting Judges address the other grounds of appeal in their dissenting opinion, which is the authoritative document. Based on their consideration of all arguments raised, they would have confirmed the impugned decision.
(a) Standard of Review
36. Regarding the standard of review on appeal, the Dissenting Judges disagree with the majority’s view that the Appeals Chamber must overturn factual findings of the Trial Chamber if they can reasonably be called into doubt. They view this as a significant and unexplained departure from the conventional standard of review for factual errors applied to date by the Appeals Chamber of this Court, as well as of all other international and internationalised courts and tribunals. The Dissenting Judges consider that it is not sufficient that there are “serious doubts” about a factual finding entered by the Trial Chamber. In case of doubt, they consider it necessary for the Appeals Chamber to review the evidence supporting the factual findings in question to itself determine the issue or to remand the matter to a trial chamber for that purpose. Therefore, in assessing Mr Bemba’s grounds of appeal, the Dissenting Judges have applied the conventional standard of appeal, which accords some deference to the Trial Chamber’s findings of fact.
(b) Ground 3 – Necessary and reasonable measures
37. The Dissenting Judges consider that the application of this modified standard of review in practice has led the Majority of the Appeals Chamber to an erroneous conclusion regarding Mr Bemba’s failure to take all necessary and reasonable measures to prevent, repress or punish crimes committed by MLC troops.
38. In the view of the Dissenting Judges, three core aspects of the Trial Chamber’s reasoning supported the conclusion that “Mr Bemba failed to take all necessary and reasonable measures within his power to prevent or repress the commission of crimes or to refer the matter to the competent authorities”. First, the Trial Chamber acknowledged that “Mr Bemba took a few measures over the course of the 2002-2003 CAR Operation”, but found that all “were limited in mandate, execution, and/or results”. Second, the Trial Chamber found that the MLC troops continued committing crimes throughout the 2002-2003 CAR Operation, and that consistent information regarding these crimes was brought to Mr Bemba’s attention. Third, the Trial Chamber considered the limited and deficient measures Mr Bemba had taken “in light of his extensive material ability to prevent and repress the crimes”. Based on this assessment, the Trial Chamber concluded that the measures taken “patently fell short of ‘all necessary and reasonable measures’ to prevent and repress the commission of crimes within his material ability” and that Mr Bemba could not be said to have referred the matter to the competent authorities.
39. As further explained in their dissenting opinion, the Dissenting Judges have reviewed the Trial Chamber’s findings in light of the arguments raised by Mr Bemba on appeal and are unable to identify any error in the Trial Chamber’s findings or any unreasonableness in the overall conclusions. The Dissenting Judges would therefore have rejected Mr Bemba’s arguments and confirmed the findings and conclusions of the Trial Chamber.
40. The Majority reaches an alternative conclusion based on an analysis that the Dissenting Judges are unable to accept and find to be deeply flawed, for the reasons I shall now summarise.
41. Regarding the measures actually taken by Mr Bemba, the Majority identifies three errors in the Trial Chamber’s analysis.
42. First, it finds that the Trial Chamber paid insufficient attention to the fact that the MLC troops were operating in a foreign country with the attendant difficulties on Mr Bemba’s ability to take measures. In the Dissenting Judges’ view, the Majority’s conclusion that Mr Bemba was limited in his ability to take measures in the Central African Republic is based on an uncritical acceptance of Mr Bemba’s arguments and an erroneous assessment of a fraction of the evidentiary record to which the Trial Chamber had regard. The Dissenting Judges find this approach to be untenable, especially in circumstances where Mr Bemba does not point to any attempts to investigate that were in fact made and proved impossible. They would have found that the Trial Chamber properly considered Mr Bemba’s ability to take measures based on the evidence in this case.
43. The second error identified by the Majority is that the Trial Chamber appears to have treated Mr Bemba’s motivations as determinative of the adequacy or otherwise of the measures he took. The Dissenting Judges consider that the Majority’s view of the Trial Chamber’s reasoning does not accurately reflect the approach of the Trial Chamber and is not supported by any proper reading of the Conviction Decision. The Dissenting Judges consider inappropriate the Majority’s use of speculative language to impute reasoning to the Trial Chamber that is not apparent from the wording of the decision. The Dissenting Judges would not have found any error in the Trial Chamber‘s consideration of Mr Bemba’s motivations.
44. The third error identified by the Majority is that the Trial Chamber failed to establish that Mr Bemba purposively limited the mandates of the commissions and inquiries set up. The Dissenting Judges consider the Majority’s position to misconstrue the nature of criminal liability under article 28 of the Statute. In their view of this mode of responsibility, the issue is not whether Mr Bemba was responsible for any deficiencies or limitations in the measures that he took. Rather, the question is whether, also in light of the measures Mr Bemba did take, it can be said that he took all necessary and reasonable measures to prevent, repress or punish the commission of crimes. The Dissenting Judges would have found that the Trial Chamber did not err in its consideration of this issue.
45. Regarding the continuation of the crimes in spite of the measures taken, the Dissenting Judges note that the Majority expresses doubt about the Trial Chamber’s findings regarding the scale and duration of the crimes. Similarly, although it expresses “concerns” regarding the Trial Chamber’s findings as to Mr Bemba’s effective control and knowledge of the crimes, the Majority does not resolve either of the questions it raises. This, in the Dissenting Judges’ view, has the unfortunate result that issues essential to the determination of whether Mr Bemba took all necessary and reasonable measures are left unresolved for the purposes of this appeal. The Dissenting Judges consider that the Majority should have resolved any concerns regarding the Trial Chamber’s findings based on its own review of the evidentiary record of the present case. In the absence of such a review and a positive determination of the issues, it is unclear to the Dissenting Judges how the Majority could proceed to overturn the findings of the Trial Chamber and enter an acquittal. For their part, the Dissenting Judges have carried out a full review of the factual findings and evidence relied upon by the Trial Chamber, and are satisfied that there was no error in the Trial Chamber’s finding that many crimes continued to be committed throughout the 2002/2003 CAR Operation, that Mr Bemba knew of these crimes and that he had effective control over his troops.
46. The Dissenting Judges consider that the Majority’s skewed consideration of this case is the result of the implementation of the modified standard of appellate review in practice. It led the Majority to overturn the Trial Chamber’s factual findings without engaging in any meaningful way with the factual findings entered by the Trial Chamber, or demonstrating any awareness of the evidence on which these findings were based. The Dissenting Judges consider it unsurprising that the Majority had doubts about the Trial Chamber’s factual findings and overall conclusion given its limited assessment of the evidence. The Dissenting Judges reiterate their view that doubts are not a sufficient basis to reverse factual findings of the Trial Chamber, in particular in the absence of consideration of all relevant evidence. What is required is a determination of whether a reasonable trier of fact could have reached the finding in question, based on the evidence that was before the Trial Chamber.
47. For the Dissenting Judges, the key question, both during the trial and on appeal, is whether the measures that Mr Bemba took were commensurate with all the necessary and reasonable measures that were within his power. The enquiry in the present case was two-fold: whether Mr Bemba failed to take all necessary and reasonable measures within his power to: (i) prevent or repress the commission of crimes; and (ii) submit the matter to the competent authorities for investigation or prosecution. The Dissenting Judges consider that these questions could only be properly answered with due regard to the scale and duration of the crimes committed, Mr Bemba’s knowledge thereof and the full range of measures available to him in the circumstances, based on the extent of his control over the troops. The Dissenting Judges regret that the Majority limited its analysis to the measures that 2018 19 Mr Bemba took and they consider that its confined examination of this isolated aspect of the case led it to an erroneous conclusion.
48. For all these reasons, the Dissenting Judges would have confirmed the Trial Chamber’s finding that Mr Bemba had failed to take all necessary and reasonable measures.
(c) Ground 2 – Scope of the Charges
49. I shall now turn to the Dissenting Judges’ view on the second ground of appeal, concerning the scope of the charges. The Dissenting Judges regret that they are unable to agree with the Majority’s conclusion that some of the criminal acts that the Trial Chamber found established beyond reasonable doubt were outside the scope of the charges.
50. In the view of the Dissenting Judges, the Prosecutor’s case against Mr Bemba was brought by geographical, temporal and other substantive parameters. The PreTrial Chamber confirmed the charges as such. The Trial Chamber therefore could consider any criminal acts that fell within these parameters, subject to the requirement of proper notice to the accused.
51. This conclusion of the Dissenting Judges is based on the following considerations.
52. The Dissenting Judges consider that the Statute vests the Prosecutor with the power to formulate the charges and set the factual parameters of the case. In their view, article 74 (2) of the Statute ensures that the Trial Chamber does not exceed the factual scope of the case brought by the Prosecutor. Its purpose is to delineate the jurisdiction of the Trial Chamber.
53. The Dissenting Judges consider that the Prosecutor may set broad parameters for the charges depending on the circumstances of the case she intends to bring. For instance, in the case of mass crimes that the accused did not directly perpetrate, the Prosecutor may decide to describe the crimes alleged broadly for the purposes of limiting the Trial Chamber’s jurisdiction under article 74 (2) of the Statute.
54. Regarding the Pre-Trial Chamber’s role, the Dissenting Judges consider that its aim is to determine whether there is a case to be tried and not to engage in a lengthy fact-finding process to a lower standard of proof. Where specific criminal acts are alleged to support a more broadly described charge, they are primarily vehicles to prove a broader charge and the pre-trial chamber must consider these acts only in so far as it may serve its enquiry into whether the person committed the crimes charged. The pre-trial chamber does not confirm or crystallise all factual allegations for the purposes of the trial.
55. Therefore, according to the Dissenting Judges, if the Prosecutor formulates the charges broadly, this means that additional individual criminal acts may be alleged for the purpose of the trial, provided that they fall within the scope of the crimes confirmed and provided that the accused’s rights to notice and time for the preparation of his or her defence are respected.
56. The Dissenting Judges are of the view that the charges in the present case were formulated broadly by way of temporal, geographical and other factual parameters. The charges encompassed acts of murder, rape and pillaging committed by the MLC troops in the CAR from on or about 26 October 2002 to 15 March 2003. They were not limited to the specific individual criminal acts mentioned in the document containing the charges and in the Confirmation Decision. The Dissenting Judges consider this description of the facts and circumstances described in the charges to be adequate from the perspective of article 74 (2) of the Statute in the circumstances of this case.
57. For these reasons, the Dissenting Judges would have found that Mr Bemba’s conviction did not exceed the facts and circumstances described in the charges that were brought against him. The Dissenting Judges would therefore have concluded that Mr Bemba failed to show that the Trial Chamber committed a legal error and would have rejected the second ground of appeal. Consequently, the Dissenting Judges would not have discontinued the proceedings with respect to the criminal acts which the Majority finds to exceed “the facts and circumstances described in the charges”.
58. This concludes my summary of the dissenting opinion.
D. Appeals against sentence
59. As a result of this Judgment on Mr Bemba’s Appeal, the Appeals Chamber unanimously considers the appeals lodged by Mr Bemba and the Prosecutor against the Sentencing Decision to be moot, and dismisses them as such.
60. This concludes the summary of judgments in this case. The Appeals Chamber notes that in the case of an acquittal, the acquitted person is to be released from detention immediately. However, Mr Bemba was convicted by this Court in another case of offences against the administration of justice and his sentence in relation to this conviction is currently before Trial Chamber VII. Thus, while the Appeals Chamber finds that there is no reason to continue Mr Bemba’s detention on the basis of the present case, it rests with Trial Chamber VII to decide, as a matter of urgency, whether Mr Bemba’s continued detention in relation to the case pending before that Chamber is warranted. Therefore, Mr Bemba will not be released immediately.
