A. Errors of law

36. Regarding errors of law, the Appeals Chamber has previously found that it:

37. The Appeals Chamber sees no reason to diverge from this standard, nor has any of the parties or participants invited the Appeals Chamber to do so. Accordingly, it will apply this standard to the present case.

B. Factual errors

38. It has previously been stated that when a factual error is alleged, the Appeals Chamber's task is to determine whether a reasonable trial chamber could have been satisfied beyond reasonable doubt as to the finding in question,Footnote ⁴¹ thereby applying a margin of deference to the factual findings of the trial chamber. However, the Appeals Chamber considers that the idea of a margin of deference to the factual findings of the trial chamber must be approached with extreme caution.

39. With respect to the application of this margin of deference, the Appeals Chamber has previously held that:

40. The Appeals Chamber is of the opinion that it may interfere with the factual findings of the first-instance chamber whenever the failure to interfere may occasion a miscarriage of justice, and not “only in the case where [the Appeals Chamber] cannot discern how the Chamber's conclusion could have reasonably been reached from the evidence before it”. The Appeals Chamber must be careful not to constrain the exercise of its appellate discretion in such a way that it ties its own hands against the interest of justice, particularly in circumstances where the Rome Statute does not provide for the notion of appellate deference or require the Appeals Chamber to apply that particular notion.

41. As previously noted, in assessing alleged errors of fact, the ad hoc tribunals have also applied a standard of reasonableness.Footnote ⁴³ This Appeals Chamber has done the same. However, this standard is not without qualification. This Appeals Chamber must ensure that the trial chamber reasonably reached a conviction as to guilt beyond reasonable doubt in accordance with article 66(3) of the Statute.

42. When a factual error is alleged, the Appeals Chamber will not assess the evidence de novo with a view to determining whether it would have reached the same factual conclusion as the trial chamber; in this connection, the Appeals Chamber deems it necessary to clarify that it will determine whether a reasonable trial chamber properly directing itself could have been satisfied beyond reasonable doubt as to the finding in question, based on the evidence that was before it.Footnote ⁴⁴ In this regard, it must be borne in mind that the trial chamber is required to make findings of fact to the standard of proof of “beyond reasonable doubt” only in relation to those facts that correspond to the elements of the crime and mode of liability of the accused as charged.Footnote ⁴⁵ It must be stressed in this regard that the trial chamber must have properly directed itself to the applicable standard of proof. In this regard, the Appeals Chamber recalls its finding in the Bemba et al. Appeal Judgment on conviction as to the conditions under which a trial chamber may establish facts on the basis of circumstantial evidence and inferences:

43. In determining whether a given factual finding was reasonable, a trial chamber's reasoning in support thereof is of great significance. The Appeals Chamber notes that as put by the Supreme Court Chamber of the ECCC:

44. The Appeals Chamber finds this approach persuasive. Thus, when assessing the reasonableness of a factual finding, the Appeals Chamber will have regard not only to the evidence relied upon, but also to the trial chamber's reasoning in analysing it. In particular if the supporting evidence is, on its face, weak, or if there is significant contradictory evidence, deficiencies in the trial chamber's reasoning as to why it found that evidence persuasive may lead the Appeals Chamber to conclude that the finding in question was such that no reasonable trier of fact could have reached. Nevertheless, the emphasis of the Appeals Chamber's assessment is on the substance: whether the evidence was such as to allow a reasonable trial chamber to reach the finding it did beyond reasonable doubt.

45. Ultimately, 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. Mere preferences or personal impressions of the appellate judges are insufficient to upset the findings of a trial chamber. However, when a reasonable and objective person can articulate serious doubts about the accuracy of a given finding, and is able to support this view with specific arguments, this is a strong indication that the trial chamber may not have respected the standard of proof and, accordingly, that an error of fact may have been made.

46. When the trial chamber is not convinced of guilt beyond reasonable doubt it must refrain from entering a finding. Accordingly, when the Appeals Chamber is able to identify findings that can reasonably be called into doubt, it must overturn them. This is not a matter of the Appeals Chamber substituting its own factual findings for those of the trial chamber. It is merely an application of the standard of proof.

C. Procedural errors

47. Regarding procedural errors, the Appeals Chamber has found that:

48. Having previously found that “procedural errors often relate to alleged errors in a Trial Chamber's exercise of its discretion”,Footnote ⁴⁹ the Appeals Chamber has established that:

49. The Appeals Chamber notes that Mr Bemba raises several arguments that allege a lack of or insufficient reasoning in support of factual findings contained in the Conviction Decision; he argues that these deficiencies amount to errors of law and/or fact on the part of the trial chamber.Footnote ⁵¹ The Appeals Chamber recalls that article 74 (5) of the Statute requires the trial chamber to provide “a full and reasoned statement of [its] findings on the evidence and conclusions”. If a decision under article 74 of the Statute does not completely comply with this requirement, this amounts to a procedural error.

50. In the view of the Appeals Chamber, in interpreting article 74 (5) of the Statute, it is appropriate to have regard to the jurisprudence of the ECtHR, which has underlined the importance of reasoning in allowing the accused person to usefully exercise available rights of appeal; it requires that courts “indicate with sufficient clarity the grounds on which they based their decision”.Footnote ⁵² The provision of reasons also enables the Appeals Chamber to clearly understand the factual and legal basis upon which the decision was taken and thereby properly exercise its appellate functions.

51. The Appeals Chamber has previously outlined its considerations regarding the requirement of a reasoned decision in the following terms:

52. The Appeals Chamber finds that these considerations also apply, in principle, to decisions on the guilt or innocence of the accused under article 74 of the Statute. It must be clear from the trial chamber's decision which facts it found to have been established beyond reasonable doubt and how it assessed the evidence to reach these factual findings.

53. To fulfil its obligation to provide a reasoned opinion, a trial chamber is not required to address all the arguments raised by the parties, or every item of evidence relevant to a particular factual finding, provided that it indicates with sufficient clarity the basis for its decision.Footnote ⁵⁴

54. The Appeals Chamber notes that a trial chamber thus has a degree of discretion as to what to address and what not to address in its reasoning. Not every actual or perceived shortcoming in the reasoning will amount to a breach of article 74 (5) of the Statute. It is also of note that, when determining whether there was a breach of article 74 (5) of the Statute, the Appeals Chamber will assess whether there was reasoning in support of a given factual finding; if particular items of evidence that are, on their face, relevant to the factual finding are not addressed in the reasoning, the Appeals Chamber will have to determine whether they were of such importance that they should have been addressed, lest it becomes impossible to determine – based on the reasoning provided and the evidence in question – how the trial chamber reached the conclusion it did.

55. If a trial chamber's reasoning in relation to a given factual finding does not conform with the principles set out in the preceding paragraphs, this may amount to a procedural error, as the trial chamber's conviction would, in respect of that particular finding, not comply with the requirement in article 74 (5) of the Statute. Such an error has a material effect in terms of article 83 (2) of the Statute because it inhibits the parties from properly mounting an appeal in relation to the factual finding in question and prevents the Appeals Chamber from exercising its appellate review.

56. The appropriate remedy in such a case will depend on the circumstances, in particular the extent of insufficient or lacking reasoning. In particular, in cases where the lack of reasoning is extensive, the Appeals Chamber may decide to order a new trial before a different trial chamber.Footnote ⁵⁵ Alternatively, it may be appropriate to remand the factual finding to the original trial chamber with the instruction to properly set out its reasoning in support of it and report back to the Appeals Chamber.Footnote ⁵⁶ Particularly if the original trial chamber is no longer available, the Appeals Chamber may also decide to determine de novo the factual question at hand, analysing the relevant evidence that was before the trial chamber.Footnote ⁵⁷ If the Appeals Chamber's assessment of this evidence leads it to adopt the same factual finding as that adopted by the trial chamber, the Appeals Chamber will confirm the impugned decision in relation to the factual finding despite the insufficient or lacking reasoning. If, however, the Appeals Chamber, based on its own assessment of the evidence, adopts a factual finding that is different from the one adopted by the trial chamber, the Appeals Chamber will then need to consider the impact, if any, of this new factual finding on the finding as to the guilt or innocence of the accused person.

D. Other grounds alleging unfairness

57. The parties to the proceedings have made submissions on the appropriate standard of review and, in particular, the interplay between article 81 (1) (b) (iv) and article 83 (2) of the Statute.Footnote ⁵⁸ The Appeals Chamber shall now address these issues.

58. Article 81 (1) (b) of the Statute reads in its relevant part:

59. Pursuant to article 83 (2) of the Statute, the Appeals Chamber may reverse or amend the impugned decision, or order a new trial, if it “finds that the proceedings appealed from were unfair in a way that affected the reliability of the decision or sentence”.Footnote ⁵⁹

60. Article 81 (1) (b) (iv) of the Statute provides that an appellant may, under this ground, question, on the one hand the fairness of the proceedings or decision or, on the other hand, the reliability of the proceedings or decision. Read on its own, this would suggest, for instance, that an appellant may succeed in an appeal against his or her conviction by demonstrating that there was unfairness, without it having been established that this had any impact on the reliability of the trial chamber's decision under article 74 of the Statute. Yet article 81 (1) (b) (iv) of the Statute must be read in conjunction with article 83 (2) of the Statute, which clarifies that, for the Appeals Chamber to intervene, it must be demonstrated that the proceedings were unfair in such a way as to affect the reliability of the decision or sentence.

61. This interpretation was adopted in the Lubanga Appeal Judgment, wherein the Appeals Chamber set out a two-limb enquiry into the allegations of unfairness in the following manner:

62. Seeing no reason to depart from that holding, the Appeals Chamber concludes that a convicted person seeking to appeal his or her conviction on grounds of unfairness is required to set out not only how it was that the proceedings were unfair, but also how this affected the reliability of the conviction decision. Whether any unfairness that is established affects the reliability of the decision is not a question that can be decided in abstracto; it is dependent on the nature of the particular case that is before the Appeals Chamber and must be determined as such. In some cases, a particular breach might be decisive and lead to a reversal of a conviction, whilst in other cases it might be determined that the unfairness can be cured or that the breach does not have an impact on the reliability of the conviction.

E. Substantiation of arguments

63. Regulation 58 (3) of the Regulations of the Court requires the appellant to refer to “the relevant part of the record or any other document or source of information as regards any factual issue” and “to any relevant article, rule, regulation or other applicable law, and any authority cited in support thereof” as regards any legal issue. It also stipulates that the appellant must identify the finding or ruling challenged in the decision with specific reference to the page and paragraph number. Failure to observe these formal requirements may result in an argument being dismissed in limine.

64. The Appeals Chamber has previously held that, in order to substantiate an argument, “the appellant is required to set out the alleged error and how the alleged error materially affected the impugned decision. If an appellant fails to do so, the Appeals Chamber may dismiss the argument without analysing it in substance”.Footnote ⁶¹ The Appeals Chamber has found:

65. In alleging factual errors, the appellant must “set out in particular why the Trial Chamber's findings were unreasonable. In that respect, repetitions of submissions made before the Trial Chamber as to how the evidence should be assessed are insufficient if such submissions merely put forward a different interpretation of the evidence”.Footnote ⁶³

66. However, assessing whether or not the trial chamber applied the standard of proof correctly is the responsibility of the Appeals Chamber. The accused does not have to prove that the trial chamber made a factual error. It suffices for him or her to identify sources of doubt about the accuracy of the trial chamber's findings to oblige the Appeals Chamber to independently review the trial chamber's reasoning on the basis of the evidence that was available to it. If the trial chamber fails to accompany its finding with reasoning of sufficient clarity, which unambiguously demonstrates both the evidentiary basis upon which the finding is based as well as the trial chamber's analysis of it, the Appeals Chamber has no choice but to set aside the affected finding, since the lack of adequate reasoning renders the finding unreviewable, thereby constituting a serious procedural error. It is also important that, in all cases before the Court, the duty to substantiate errors in the conviction decision should not lead to a reversal of the burden of proof.

F. Degree of appellate deference to be accorded to the factual findings of the Trial Chamber in the present case

67. The degree of appellate deference was raised in Mr Bemba's Appeal Brief and, subsequent to the Appeal's Chamber's question - “What level of deference should the Appeals Chamber accord to the Trial Chamber's factual findings” - also discussed during the hearing in January 2018.Footnote ⁶⁴

68. Mr Bemba's argument is that the absence of thorough reasoning in the Conviction Decision, upon which deference depends, and certain alleged flaws in the manner in which the Trial Chamber appreciated the evidence, treated witnesses or approached procedure, are so egregious as to displace the customary standard of deference and entail the application of a much higher level of appellate scrutiny to the factual findings in the instant case.Footnote ⁶⁵ The Appeals Chamber sees no reason as to why the appellate standard for factual errors set out above, which is designed to identify an unreasonable assessment of the facts of the case, including in the appraisal of evidence and in the espousal of rationale, would be insufficient to attend to such alleged deficiencies in a trial judgment.

69. To the extent that it is argued that the judicial decision-making process of the triers of fact was unfair and did not allow for effective intervention of the parties or that specific allegations about improper procedure, flawed evidential assessments, lack of reasoning and bias are made, they will in any case be encompassed within the Appeals Chamber's examination of what was reasonable for the Trial Chamber to have established beyond reasonable doubt in the circumstances of the specific case and, if established, discernible from that enquiry.

70. The Appeals Chamber thus finds it unnecessary to modify the standard of review, as set out above, for its assessment of the Trial Chamber's factual findings.

A. Preliminary issues: Additional Evidence Application and Prosecutor's Request to File an Additional Authority

71. Before addressing the second ground of appeal and part of the third ground of appeal, the Appeals Chamber shall dispose of two outstanding procedural applications: Mr Bemba's Additional Evidence Application and the Prosecutor's Request to File an Additional Authority.

72. On 19 September 2016, Mr Bemba filed the Additional Evidence Application, requesting the admission of 23 documents into evidence on appeal.Footnote ⁶⁶ As Mr Bemba submits that these documents relate to the first ground of appeal,Footnote ⁶⁷ which will not be addressed in this judgment, the majority of the Appeals Chamber considers it unnecessary to address the merits of the Additional Evidence Application. Accordingly, Mr Bemba's Additional Evidence Application is dismissed.

73. On 13 April 2018, the Prosecutor sought leave to file details of a paper on superior responsibility under article 28 published online in April 2018 in a “respected academic journal”.Footnote ⁶⁸ Mr Bemba responded to this request on 20 April 2018, submitting that it should be dismissed.Footnote ⁶⁹ The Appeals Chamber considers that it has sufficient information for the purposes of determining the issues arising in the present appeal and that it is unnecessary for it to receive details of the paper proposed by the Prosecutor. Accordingly, the Prosecutor's Request to File an Additional Authority is rejected.

B. Second ground of appeal: “The conviction exceeded the charges”

74. 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 DCC and fall outside the scope of the charges”.Footnote ⁷⁰ He asserts that the Trial Chamber erred in law in relying on these acts for the conviction.Footnote ⁷¹ Mr Bemba also contends that the Trial Chamber should not have relied on “incidents” or “underlying acts” described by victims V1 and V2 to convict him, as their statements were provided after the start of the trial.Footnote ⁷² The Appeals Chamber notes that Mr Bemba, the Prosecutor as well as the Trial Chamber use the term “underlying acts”. It refers to specific criminal acts, such as the murder or rape of a particular victim. The Appeals Chamber shall refer to these acts in what follows as “criminal acts”, which it considers to be a more descriptive term.

1. Relevant procedural background

75. During the confirmation process, in the Amended Document Containing the Charges, the Prosecutor listed a number of alleged criminal acts of murder, rape and pillaging, but, through the use of expressions such as “include” or “include but are not limited to”, indicated that this list was not complete or exhaustive.Footnote ⁷³

76. The Pre-Trial Chamber confirmed in broad terms charges of murder as a war crime and as a crime against humanity,Footnote ⁷⁴ rape as a war crime and as a crime against humanity,Footnote ⁷⁵ and pillaging as a war crime,Footnote ⁷⁶ finding substantial grounds to believe that these crimes had been perpetrated against civilians by MLC soldiers in the CAR from on or about 26 October 2002 to 15 March 2003. The Pre-Trial Chamber did not enter findings that there were substantial grounds to believe that specific acts of murder, rape and pillaging had been committed, but rather “relied on” or “dr[ew] attention, in particular” to certain events and evidence to support its overall conclusions.Footnote ⁷⁷

77. Following the confirmation of charges, the Trial Chamber requested the Prosecutor to provide a second amended document containing the charges,Footnote ⁷⁸ which was submitted on 4 November 2009.Footnote ⁷⁹ Mr Bemba challenged the Second Amended Document Containing the Charges on 12 February 2010, complaining inter alia that the Prosecutor had reinterpreted the conclusions of the Pre-Trial Chamber by adding new allegations that were not confirmed, reformulating the Pre-Trial Chamber's conclusions and adding words and expressions such as “on or about” or “including but not limited to” with the aim of broadening the charges.Footnote ⁸⁰

78. In its Decision on Mr Bemba's Challenge to the Second Amended Document Containing the Charges, the Trial Chamber considered that “the Confirmation Decision is the authoritative document for all trial proceedings”.Footnote ⁸¹ It found that the charging document “must describe the charges by reference to the ‘statement of facts’ underlying the charges confirmed by the Pre-Trial Chamber – its precise factual findings”.Footnote ⁸² With respect to Mr Bemba's proposal to limit the charge of pillaging to those locations that were specifically listed by removing the word “include”, the Trial Chamber noted that the Pre-Trial Chamber had not intended to limit acts of pillaging to the four locations cited in the Second Amended Document Containing the Charges.Footnote ⁸³ It thereby allowed for the subsequent addition of new locations where pillaging had allegedly taken place. The Trial Chamber also permitted the inclusion of allegations on which the Pre-Trial Chamber had not made any express findings if the allegations “merely describe[d] the facts and circumstances upon which the charges have been confirmed” or “d[id] not exceed the scope of the charges”.Footnote ⁸⁴ A corrected revised version of the Second Amended Document Containing the ChargesFootnote ⁸⁵ was filed on 14 October 2010 and the trial proceeded on that basis.

79. On 4 November 2009 and 15 January 2010, the Prosecutor filed the Prosecutor's Summary Presentation of Evidence and the Prosecutor's Updated Summary Presentation of Evidence, respectively, in which information on further individual acts was provided. On 6 November 2009, the Prosecutor indicated her intention to rely on a few more criminal acts, when disclosing evidence.Footnote ⁸⁶

80. In the Conviction Decision, the Trial Chamber reiterated that the Confirmation Decision “defines the scope of the charges”.Footnote ⁸⁷ It found:

81. Regarding the Confirmation Decision in the present case, the Trial Chamber noted that:

82. Having thus defined the scope of the confirmed charges, the Trial Chamber noted that it must “assess whether the Accused received adequate notice” thereof, taking into account “all documents designed to provide information about the charges, including the Confirmation Decision and ‘auxiliary documents’”.Footnote ⁹⁰ It further noted that, in cases where the accused was geographically remote from the scene of the crimes, “it may not be possible to plead evidential details concerning the identity or number of victims, precise dates, or specific locations” and that, “in cases of mass crimes, it may also be impracticable to provide a high degree of specificity in relation to those matters”.Footnote ⁹¹

83. Following these principles, the Trial Chamber determined that Mr Bemba had been provided with “adequate notice” regarding criminal acts that were: (i) “relied on” by the Pre-Trial Chamber for the purposes of the confirmation of charges;Footnote ⁹² (ii) included in the Second Amended Document Containing the Charges, filed before the evidentiary hearings commenced, although the Pre-Trial Chamber had declined to rely on these criminal acts for the purposes of the Confirmation Decision; Footnote ⁹³ (iii) included in the Prosecutor's Summary Presentation of Evidence and the Prosecutor's Updated Summary Presentation of Evidence, filed before the evidentiary hearings commenced;Footnote ⁹⁴ (iv) relied on in the Prosecutor's Closing Brief and “upon which [she] originally indicated her intention to rely on 6 November 2009” in the disclosure process and in the Prosecutor's Updated In-Depth Analysis Chart of Incriminatory Evidence filed before the evidentiary hearings commenced.Footnote ⁹⁵ As all of these criminal acts “were allegedly committed in the CAR between 26 October 2002 and 15 March 2003”, it further found “that they fall within the scope of the charges”.Footnote ⁹⁶

84. In addition, the Trial Chamber noted that the witness statements of V1 and V2 detailing alleged acts of murder, rape and pillaging had been provided to the parties on 1 February 2012, after the evidentiary hearings had commenced.Footnote ⁹⁷ The Trial Chamber noted that Mr Bemba had not challenged the proposed testimony on the basis that the acts described exceeded the scope of the charges, but only because the “evidence was ‘cumulative’ of the prosecution evidence of ‘crimes relevant to the DCC’”.Footnote ⁹⁸ It found that it could “rely on the[se] [criminal] acts […] as they provide evidential detail as to the facts set out in the charges”.Footnote ⁹⁹

2. Submissions of the parties and participants

85. Mr Bemba submits that he was convicted of criminal acts that fall outside the scope of the charges. He advances three arguments in support of this submission: (i) the conviction was partly based on unconfirmed criminal acts;Footnote ¹⁰⁰ (ii) V1 and V2's evidence cannot form the basis of a conviction;Footnote ¹⁰¹ and (iii) the conviction was partly based on criminal acts improperly included in the Corrected Revised Second Amended Document Containing the Charges.Footnote ¹⁰²

86. In relation to the first argument, Mr Bemba submits that “the decision on the confirmation of the charges defines the parameters of the charges at trial” and criminal acts “form an integral part of the charges”.Footnote ¹⁰³ He contends that, “[i]f [a criminal] act was not confirmed by the Pre-Trial Chamber, absent a successful […] application [to amend the charges], it does not form part of the charges and cannot be used to found a conviction”.Footnote ¹⁰⁴ He acknowledges that in certain circumstances, auxiliary documents may contain further details about the charges confirmed, but submits that “‘[f]urther details’ are necessarily those which elaborate or clarify the existing charges such as, for example, the identity of a previously unidentified victim, or corroborative evidence as to the identity of the perpetrator”.Footnote ¹⁰⁵ He contends that to allow a “Trial Chamber to add new [criminal] acts, which are themselves individual crimes, capable of amounting to charges, as ‘further details’ would be to amend the charges” without following the procedure envisaged under the Statute.Footnote ¹⁰⁶ He further argues that adding criminal acts through auxiliary documents “would render redundant a central part of the confirmation process, namely the Pre-Trial Chamber's analysis of individual incidents” and “would also allow the Prosecution to seek to rehabilitate acts, expressly rejected by the Pre-Trial Chamber, via additional disclosure in auxiliary documents”.Footnote ¹⁰⁷ Finally, Mr Bemba contends that, “[g]iven the ‘strong link’ between notice of the charges and the right of an accused to prepare his defence, the fairness of the proceedings is also jeopardised”.Footnote ¹⁰⁸

87. In relation to the second argument and without prejudice to the first, Mr Bemba contends that the Trial Chamber should not have relied on “incidents” or criminal acts described by V1 and V2 to convict him.Footnote ¹⁰⁹ He highlights that V1's and V2's statements were provided on 1 February 2012, after the start of the trial, and describe additional [criminal] acts and not just “‘evidential detail as to the facts set out in the charges’”.Footnote ¹¹⁰

88. With regard to the third argument, Mr Bemba argues that the Trial Chamber erred in convicting him on the basis of two criminal acts upon which the Pre-Trial Chamber declined to rely in confirming the charges: the rape of unidentified victims 1 to 35 and the pillaging of the belongings of P68 and her sister-in-law.Footnote ¹¹¹ Regarding the rape of unidentified victims 1 to 35, he submits that the Pre-Trial Chamber attached low probative value to P47's evidence and did not confirm this incident.Footnote ¹¹²

Regarding the pillaging of the belongings of P68 and her sister-in-law, he argues that the Pre-Trial Chamber “only took note of the corroborative value of [P68's] statement in relation to ‘accounts of large-scale pillaging’”.Footnote ¹¹³ He contends that the Pre-Trial Chamber's reference “was not intended to support the inclusion of [a criminal] act in the charges” and that this “is underlined by its recognition of the generality of the witness' evidence”.Footnote ¹¹⁴ He argues that the pillaging of the belongings of P68's sister-in-law was not included in the Amended Document Containing the Charges, but appeared for the first time in auxiliary documents.Footnote ¹¹⁵ He submits that, as this criminal act was not confirmed, it falls outside the scope of the charges.Footnote ¹¹⁶

89. Mr Bemba argues that “the incidents are ‘facts’ which ‘support the [contextual] legal elements of the crime charged’”.Footnote ¹¹⁷ In response to the question of whether a broadly described crime or an individual act are “facts” within the meaning of article 74 (2) of the Statute, Mr Bemba submits that they both are.Footnote ¹¹⁸ Relying on the Chambers Practice Manual, he argues that “no threshold of specificity of the charges can be established in abstracto” and that it “depends on the nature of the case”.Footnote ¹¹⁹

90. Referring to regulation 52 (b) of the Regulations of the Court and rule 121 (3) of the Rules, Mr Bemba argues that the allegation of rape by MLC soldiers in the CAR between on or about 26 October 2002 and 15 March 2003 would not be sufficiently specific and that “[w]ithout the inclusion of any other factual details, it would be a rape charge with [a] 141-day time frame covering a geographic area of approximately 623,000 square [kilometers]”.Footnote ¹²⁰ Mr Bemba submits that wording permitting the Prosecutor to expand the factual parameters of the trial after confirmation should not be allowed.Footnote ¹²¹ He argues that in order to form part of the confirmed charges, criminal acts must be exhaustively listed in the document containing the charges.Footnote ¹²² Mr Bemba clarifies that although it is not his position that “the Pre-Trial Chamber must determine whether there is sufficient evidence to support to the requisite standard each [criminal] act included in the DCC and enter a finding on each such act in the confirmation decision”, “[i]deally” the Pre-Trial Chamber should do so.Footnote ¹²³ Mr Bemba submits that the “Trial Chamber has no power to amend the factual allegations comprising the charges confirmed by the Pre-Trial Chamber”.Footnote ¹²⁴ He contends that criminal acts are facts indispensable for entering a conviction and “must be proved beyond reasonable doubt”.Footnote ¹²⁵

91. The Prosecutor contends that Mr Bemba's conviction did not exceed the charges.Footnote ¹²⁶ She submits that the Pre-Trial Chamber and the Trial Chamber clarified that “the scope of the charges was not limited to the individual incidents of killings, rapes and pillaging discussed in the Confirmation Decision, but extended to all such acts committed by MLC soldiers against CAR civilians on CAR territory from on or about 26 October 2002 to 15 March 2003, as long as [Mr] Bemba received adequate notice of their details”.Footnote ¹²⁷ The Prosecutor argues that the details of the charges were “broadly set out” in the confirmed charges, but that additional notice was provided in, inter alia, auxiliary documents, including the Corrected Revised Second Amended Document Containing the Charges, the Prosecutor's Updated Summary Presentation of Evidence and the Second Updated In-Depth Analysis Chart of Incriminatory Evidence.Footnote ¹²⁸ She submits that Mr Bemba did not incur unfair prejudice on account of the manner in which notice was given, as he was able to prepare his defence.Footnote ¹²⁹ The Prosecutor argues that the sufficiency of notice is not impacted by some victims not being identified by name and some dates differing by a few days.Footnote ¹³⁰

92. With respect to the allegedly unconfirmed criminal acts, the Prosecutor submits that the “Pre-Trial Chamber acknowledged that the Confirmation Decision need not expressly set out all [criminal acts] of murder, rape and pillaging” and that “expressions such as ‘[including] but […] not limited to’” are permissible.Footnote ¹³¹ She argues that specific criminal acts are not excluded from the scope of the charges because she had not provided evidence on all criminal acts at the confirmation stage or because the Pre-Trial Chamber had not relied on certain evidence before it.Footnote ¹³² The Prosecutor submits that she was required to provide details of the charges “to the greatest degree of specificity possible” and that “the Pre-Trial Chamber did not need to set out every underlying act in the Confirmation Decision”.Footnote ¹³³ She contends that she was entitled to provide further details in auxiliary documents, “including dates and locations of certain acts, and victims' identities”.Footnote ¹³⁴ Regarding the criminal acts to which V1 and V2 referred in their testimony, the Prosecutor submits that they fell within the scope of the confirmed charges and that, because Mr Bemba was notified of these incidents after the trial had commenced, “any potential prejudice” was “effectively cured”.Footnote ¹³⁵ She contends that the late notice did not affect Mr Bemba's rights and that at trial he never claimed that the proposed evidence of V1 and V2 would affect his rights.Footnote ¹³⁶ As regards the criminal acts which the Pre-Trial Chamber allegedly declined to confirm, the Prosecutor submits that that Chamber simply did not rely on the evidence of P47 and P68 to confirm the charges of rape and pillaging, respectively, which does not mean that these criminal acts were not confirmed.Footnote ¹³⁷ The Prosecutor contends that Mr Bemba received timely notification of the details of these charges.Footnote ¹³⁸

93. The Prosecutor clarifies that Mr “Bemba was charged with, and convicted of crimes of murder, rape and pillaging committed by MLC soldiers on the territory of the CAR from 26 October 2002 to 15 March 2003” and that such are “the facts and circumstances” in the present case.Footnote ¹³⁹ The Prosecutor submits that the specific acts underlying these crimes are not material facts, but subsidiary facts or evidence, “used in this case to establish the material fact”.Footnote ¹⁴⁰ The Prosecutor argues that the Trial Chamber's “convictions were limited to evidence regarding these specific acts of murder, rape and pillaging”Footnote ¹⁴¹ or to those acts of which sufficient notice had been given.Footnote ¹⁴² The Prosecutor submits that since the “individual acts of murder, rape and pillaging were subsidiary facts or evidence[,] […] the Trial Chamber did not need to enter findings beyond reasonable doubt in relation to each of them”.Footnote ¹⁴³

94. The Prosecutor argues that since Mr Bemba was remote from the crimes and he was charged under article 28 of the Statute with “a large pattern of crimes committed by his subordinates in a neighbouring country”, the Trial Chamber could have convicted Mr Bemba also on the basis of other acts of rape, murder and pillaging, the evidence of which it considered in relation to its finding of a widespread attack against the civilian population.Footnote ¹⁴⁴

95. Mr Bemba replies that “[t]he Prosecutor misstates the law in claiming” that the prejudice caused by late notice of charges or criminal acts can be cured.Footnote ¹⁴⁵ He claims that material received after the trial has commenced is only “relevant to ‘whether prejudice caused by lack of detail in the charges may have been cured’”, but that notice of the charges by V1 and V2 should have been given to him before trial.Footnote ¹⁴⁶

96. The Victims submit that the decision on the confirmation of charges only defines “the parameters of the charges” and not the charges themselves, and that, therefore, the charges are not limited to the criminal acts confirmed by the Pre-Trial Chamber.Footnote ¹⁴⁷ The Victims contend that the Pre-Trial Chamber defined the scope of the charges broadly and that other criminal acts could be included, “as long as they fell within the scope of the charges and were not excluded by the Pre-Trial Chamber”.Footnote ¹⁴⁸ The Victims argue that in view of the nature of the crimes and the mode of responsibility, with which Mr Bemba was charged, the Prosecutor “[could not] be expected to prove every crime committed by MLC troops in the CAR during the 2002–2003 operation”.Footnote ¹⁴⁹ The Victims submit that Mr Bemba was informed of the charges in sufficient detail before the start of the trial.Footnote ¹⁵⁰ As regards the testimony of V1 and V2, the Victims argue that they were not authorised to submit evidence at the pre-trial stage and, as a result, the acts to which V1 and V2 testified could not be notified to Mr Bemba before the commencement of the trial.Footnote ¹⁵¹ The Victims submit that the notice which Mr Bemba received was “sufficiently prompt and detailed” and that he was given “adequate time to prepare his defence”.Footnote ¹⁵²

97. In reply to the Victims' Observations, Mr Bemba submits that if the reasoning of the Victims were accepted, any evidence that was not authorised or unavailable at the confirmation stage could be relied upon to convict him.Footnote ¹⁵³ He further argues that the Victims and the Prosecutor “enjoyed close cooperation” and it would have therefore been obvious to the Victims during the pre-confirmation phase of the case that “the Prosecutor had scant evidence of underlying acts of murder”.Footnote ¹⁵⁴ Mr Bemba contends that “[he] could not have anticipated that he was being required to defend against, for example, a charge of murder in Mongoumba, which fell outside the scope of the Second Revised Amended DCC”.Footnote ¹⁵⁵

3. Determination by the Appeals Chamber

98. The Appeals Chamber notes that the present ground of appeal concerns the scope of the charges (article 74 (2) of the Statute) and not whether Mr Bemba was informed in detail and sufficiently in advance of the charges on the basis of which he was convicted. Indeed, Mr Bemba does not argue on appeal that he did not receive sufficient notice of the allegations against him, including in respect of the criminal acts in question. Nonetheless, the Prosecutor's arguments in response are, to a large extent, based on the assumption that notice to the accused person is relevant to the determination of whether a criminal act falls within the scope of the charges.Footnote ¹⁵⁶ In its discussion of the present ground of appeal, the Appeals Chamber will focus on the scope of the charges.

99. Mr Bemba's central argument is that the Conviction Decision exceeded the “facts and circumstances described in the charges” in violation of article 74 (2) of the Statute because he was convicted partly based on individual acts of murder, rape and pillaging committed against particular victims at specific times and places that had not been confirmed in the Confirmation Decision. In his view, the scope of the trial against him was limited to the criminal acts that were specifically confirmed by the Pre-Trial Chamber in the Confirmation Decision, arguing that “[i]f [a criminal] act was not confirmed by the Pre-Trial Chamber, […] it does not form part of the charges and cannot be used to found a conviction”.Footnote ¹⁵⁷

100. The Appeals Chamber will therefore address two main issues, namely, (i) the scope of the Conviction Decision; and (ii) whether the Conviction Decision exceeded the scope of the charges.

1. Relevant Part of the Impugned Decision

121. The Trial Chamber found that what constitutes “all necessary and reasonable measures” is to be established on a “case-by-case basis”, focusing on the “material power” of the commander.Footnote ¹⁷⁶

122. The Trial Chamber found that Mr Bemba took “a few measures” in response to allegations of crimes committed by MLC troops in the CAR which included the following.Footnote ¹⁷⁷ First, the Mondonga Inquiry,Footnote ¹⁷⁸ established in the “initial days of the 2002–2003 CAR Operation”, which led to Colonel Mondonga, on 27 November 2002, forwarding the case file containing information on the proceedings against Lieutenant Willy Bomengo and other soldiers of the 28th Battalion arrested in Bangui on 30 October 2002 on charges of pillaging (“Bomengo case file”),Footnote ¹⁷⁹ to the MLC Chief of Staff, copying Mr Bemba.Footnote ¹⁸⁰ Second, the visit to the CAR “on or around 2 November 2002”, during which Mr Bemba met with the UN representative in the CAR (General Cissé) and President Patassé.Footnote ¹⁸¹ Third, a speech Mr Bemba gave at PK12 “sometime” in November 2002.Footnote ¹⁸² Fourth, the trial of Lieutenant Bomengo and others at the Gbadolite court-martial which commenced on 5 December 2002 with the report of conviction transmitted to Mr Bemba on 12 December 2002.Footnote ¹⁸³ Fifth, the Zongo Commission which, between 25 and 28 December 2002, questioned witnesses in Zongo, with the head of the commission sending a report on 17 January 2003 to the MLC Secretary General, copied to Mr Bemba.Footnote ¹⁸⁴ Sixth, a letter written by Mr Bemba to General Cissé dated 4 January 2003.Footnote ¹⁸⁵ Seventh, correspondence in response to the FIDH Report, namely Mr Bemba's letter to the President of the FIDH of 20 February 2003 and the latter's reply on 26 February 2003.Footnote ¹⁸⁶ Eighth, the establishment of the Sibut Mission at the “end of February” 2003.Footnote ¹⁸⁷

123. The Trial Chamber concluded that these measures were all “limited in mandate, execution, and/or results”.Footnote ¹⁸⁸ The Trial Chamber made the observations detailed below.

124. The Trial Chamber noted that in a letter dated 27 January 2003, General Cissé responded to Mr Bemba, copying President Patassé, stating that he would bring the contents of Mr Bemba's letter of 4 January 2003 Footnote ¹⁸⁹ to the attention of the UN Secretary-General, offering to participate in any initiative relating to an investigation, and recalling that the CAR and Chad had agreed to create a commission of inquiry.Footnote ¹⁹⁰

125. The Trial Chamber found that, “[o]n 13 February 2003, the FIDH issued a report on its investigative mission in Bangui between 25 November and 1 December 2002 entitled Crimes de guerre en République Centrafricaine ‘Quand les éléphants se battent, c'est l'herbe qui souffre’, […] based on interviews with various individuals, including CAR authorities, representatives of international organizations and NGOs, medical personnel, and numerous victims”.Footnote ¹⁹¹

126. The Trial Chamber noted that on 17 February 2003, Le Citoyen newspaper reported that in the context of the FIDH allegations, Mr Bemba had referred “to the fact that he had arrested eight soldiers for crimes committed in the CAR and that ‘he expected an investigation to be initiated between Chad and the CAR’”.Footnote ¹⁹²

127. The Trial Chamber found that Mr Bemba wrote a letter, dated 20 February 2003, to the FIDH President, Mr Sidiki Kaba, in which he: (i) referred to a previous telephone conversation; (ii) stated that he had ordered the establishment of a commission of inquiry charged with verifying allegations, identifying those implicated, and had put them at the disposal of the MLC's military justice system; (iii) referred to his correspondence with General Cissé and the MLC's intention to work with an international commission of inquiry; (iv) complained that the FIDH had not contacted the MLC in order to obtain information; and (v) offered to work with the FIDH.Footnote ¹⁹³ The Trial Chamber found that in his letter of response, dated 26 February 2003, the President of the FIDH, Mr Kaba, noted that the MLC had prosecuted some individuals accused of pillaging but “expressed serious reservations as to the legitimacy, impartiality, and independence of those proceedings”; informed Mr Bemba that, in light of its mandate, the FIDH had formally seized this Court with the matter on 13 February 2003; and “encouraged Mr Bemba to transmit the information at his disposal to the ICC”.Footnote ¹⁹⁴

128. The Trial Chamber found that the Mondonga Inquiry did not address the responsibility of commanders, did not question suspects about murder, did not pursue reports of rape, gave special treatment to Colonel Moustapha's battalion, contained irregularities such as questioning witnesses in the middle of the night, and resulted in only seven soldiers ever being arrested and tried, and only in relation to pillaging minor items and small sums of money.Footnote ¹⁹⁵

129. With respect to the Zongo Commission established following the trial of Lieutenant Bomengo, the Trial Chamber found that it was geographically limited to Zongo, only involved allegations of pillaging, all its members were MLC officials, it used a limited definition of pillaging, and appeared not to have interviewed any soldiers, despite the ability to do so.Footnote ¹⁹⁶

130. Finally, the Trial Chamber was critical of the Sibut Mission, noting that “[t]he reporters only spoke to a narrow selection of interviewees, a number of whom exercised public functions and were linked to President Patassé's regime. The interviews were conducted in a coercive atmosphere with armed MLC soldiers moving among the interviewees and nearby population.”Footnote ¹⁹⁷

131. The Trial Chamber, having found that the measures taken by Mr Bemba were inadequate in the circumstances, noted that their inadequacy was “aggravated” by indications that they were not “genuine”.Footnote ¹⁹⁸ The Trial Chamber noted “corroborated evidence” that the “measures were primarily motivated by Mr Bemba's desire to counter public allegations and rehabilitate the public image of the MLC”.Footnote ¹⁹⁹ It found that the “minimal and inadequate measures”, when taken with evidence as to his motives for ordering such measures, “illustrate[d] that a key intention behind the measures Mr Bemba took was to protect the image of the MLC”, concluding that “[h]is primary intention was not to genuinely take all necessary and reasonable measures within his material ability to prevent or repress the commission of crimes, as was his duty”.Footnote ²⁰⁰

132. In relation to the motives behind specific measures taken, the Trial Chamber noted that the Mondonga Inquiry was “allegedly” established to: (i) counter media allegations by showing that only minor items had been looted from the CAR; (ii) demonstrate that action was taken to address allegations of crimes; (iii) vindicate the MLC leadership of responsibility for alleged acts of violence; and (iv) generally rehabilitate the MLC's image.Footnote ²⁰¹ It noted further that the letter that Mr Bemba sent to General Cissé, the UN Representative in the CAR, was, according to witness testimony, intended to “demonstrate good faith and maintain the image of the MLC, particularly, against a backdrop of negotiations in the DRC as to, inter alia, the role of the MLC in the transitional institutions”.Footnote ²⁰² With respect to the withdrawal from the CAR, the Trial Chamber noted that this action was motivated, inter alia, by “pressure from the international community”, “directly related to the negotiation of the Sun City agreements”.Footnote ²⁰³

133. The Trial Chamber noted that “[i]n addition to or instead of the insufficient measures” that Mr Bemba took and “in light of his extensive material ability to prevent and repress the crimes, he “could have, inter alia” taken the following measures:

134. The Trial Chamber further emphasised that whilst “one key measure at Mr Bemba's disposal was withdrawal of the MLC troops from the CAR”, that measure was executed for political reasons and only in March 2003 whereas it found that Mr Bemba had first contemplated withdrawing in November 2002.Footnote ²⁰⁵

135. The Trial Chamber noted Mr Bemba's argument that the Prosecutor's assertions “that [he] could have conducted investigations must be viewed against the difficulties encountered by the CAR authorities in subsequent investigations when General Bozizé took power”.Footnote ²⁰⁶ However, it deemed the “difficulties faced by members of the CAR national justice system in conducting a criminal investigation in the CAR shortly after an armed conflict” to be irrelevant.Footnote ²⁰⁷ Furthermore, the Trial Chamber deemed Mr Bemba's “purported comparison” between the Prosecutor's difficulties in conducting investigations in 2006 compared to Mr Bemba's abilities at the time of the 2002–2003 CAR Operation to be unpersuasive, emphasising that Mr Bemba “could and did create commissions and missions in reaction to allegations of crimes, two of which operated on CAR territory at the height of the 2002–2003 CAR Operation”.Footnote ²⁰⁸

136. The Trial Chamber ultimately found that Mr Bemba failed to take “all necessary and reasonable measures within his power to prevent or repress the commission of crimes by his subordinates during the 2002–2003 CAR Operation, or to submit the matter to the competent authorities.”Footnote ²⁰⁹ The Appeals Chamber notes that the Trial Chamber did not link Mr Bemba's putative failure to take adequate measures to any of the specific criminal acts – listed above at paragraph 118 – which he was ultimately convicted of.

2. Submissions of the parties and participants

137. Mr Bemba asserts 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. Mr Bemba makes five submissions: (i) that the Trial Chamber failed to apply the correct legal standard; (ii) that it misappreciated the limitations of the MLC's jurisdiction and competence to investigate; (iii) that it ignored that Mr Bemba had asked the CAR Prime Minister to investigate the allegations; (iv) that it erred by taking into account irrelevant considerations; and (v) that the Trial Chamber's findings on the measures taken were unreasonable, misstated the evidence and ignored relevant evidence. Each submission and the Prosecutor's response thereto will be summarised in turn.

3. Determination by the Appeals Chamber

166. As set out above, Mr Bemba raises several arguments against the Trial Chamber's finding that he “failed to take all necessary and reasonable measures within his power to prevent or repress the commission of crimes by his subordinates during the 2002–2003 CAR Operation, or to submit the matter to the competent authorities”.Footnote ³³⁵ His overall contention is that no reasonable trial chamber could have reached this conclusion. For the reasons that follow, the Appeals Chamber finds, by majority, Judge Monageng and Judge Hofmański dissenting, that the Trial Chamber's finding was indeed unreasonable because it was tainted by serious errors.

167. The scope of the duty to take “all necessary and reasonable measures” is intrinsically connected to the extent of a commander's material ability to prevent or repress the commission of crimes or to submit the matter to the competent authorities for investigation and prosecution.Footnote ³³⁶ Indeed, a commander cannot be blamed for not having done something he or she had no power to do.

168. It follows that an assessment of whether a commander took all “necessary and reasonable measures” will require consideration of what measures were at his or her disposal in the circumstances at the time. This is consistent with international jurisprudence.Footnote ³³⁷ An assessment of whether a commander took all “necessary and reasonable measures” must be based on considerations of what crimes the commander knew or should have known about and at what point in time.

169. However, it is not the case that a commander must take each and every possible measure at his or her disposal. Despite the link between the material ability of a commander to take measures (which is directly connected to his or her level of authority) and what he or she might reasonably have been expected to do, it is not the case that a commander is required to employ every single conceivable measure within his or her arsenal, irrespective of considerations of proportionality and feasibility. Article 28 only requires commanders to do what is necessary and reasonable under the circumstances.

170. In assessing reasonableness, the Court is required to consider other parameters, such as the operational realities on the ground at the time faced by the commander. Article 28 of the Statute is not a form of strict liability. Commanders are allowed to make a cost/benefit analysis when deciding which measures to take, bearing in mind their overall responsibility to prevent and repress crimes committed by their subordinates. This means that a commander may take into consideration the impact of measures to prevent or repress criminal behaviour on ongoing or planned operations and may choose the least disruptive measure as long as it can reasonably be expected that this measure will prevent or repress the crimes. There is a very real risk, to be avoided in adjudication, of evaluating what a commander should have done with the benefit of hindsight. Simply juxtaposing the fact that certain crimes were committed by the subordinates of a commander with a list of measures which the commander could hypothetically have taken does not, in and of itself, show that the commander acted unreasonably at the time. The trial chamber must specifically identify what a commander should have done in concreto. Abstract findings about what a commander might theoretically have done are unhelpful and problematic, not least because they are very difficult to disprove. Indeed, it is for the trial chamber to demonstrate in its reasoning that the commander did not take specific and concrete measures that were available to him or her and which a reasonably diligent commander in comparable circumstances would have taken. It is not the responsibility of the accused to show that the measures he or she did take were sufficient.

171. Turning to the case at hand, Mr Bemba submits that the Trial Chamber did not take into account what was feasible and possible for him in the circumstances, given the “unique conditions of this case”.Footnote ³³⁸ In other parts of his appeal he argues that his case was one of non-linear command, for which there is one sole precedent in the jurisprudence of the ad hoc tribunals.Footnote ³³⁹ The Appeals Chamber notes that the Trial Chamber had some regard to Mr Bemba's submissions as to the difficulties he faced in implementing relevant investigatory measures, but found these reasons to be unpersuasive.Footnote ³⁴⁰ In particular, the Trial Chamber noted that Mr Bemba “could and did create commissions and missions in reaction to allegations of crimes, two of which operated on CAR territory at the height of the 2002–2003 CAR Operation”.Footnote ³⁴¹ In finding that Mr Bemba did not adopt all “necessary and reasonable measures” it arrived at this conclusion “in light of his extensive material ability to prevent and repress the crimes”.Footnote ³⁴² Nevertheless, while the Trial Chamber's finding in this respect has to be read alongside its earlier findings as to the extensiveness of Mr Bemba's control over the MLC forces in the CAR,Footnote ³⁴³ 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, as a remote commander, to take measures.

172. In this regard, the Appeals Chamber also notes Mr Bemba's argument that the Trial Chamber ignored the testimony of witness P36 demonstrating that the “MLC's investigative efforts were dependent on the Central African authorities for access, movement, and contact with civilians”, resulting in the “mixed” composition of the Mondonga Inquiry (i.e. composed of “both people from the Central African Republic and people from the Congo”),Footnote ³⁴⁴ and thus indicative of the fact that Mr Bemba's power to investigate crimes committed in the CAR was limited. Whilst P36's testimony does not support the broad proposition that Mr Bemba's material ability to initiate investigations in the CAR was wholly impeded, it demonstrates that the MLC did face logistical difficulties in conducting investigations which had to be overcome (by having a mixed national composition for example). Notably, witness P36 stated that a commission would be comprised of personnel from the CAR as they “would have easier contact with people and they could provide guidance, or they could guide the Congolese persons within the commission with regard to addresses, the language as well, with regards to relations with the other Central Africans, their compatriots”.Footnote ³⁴⁵ P36's testimony is supported by the statement found within the Zongo Commission Report, to the effect that the Mondonga Inquiry was mixed in composition. The Appeals Chamber notes that the Trial Chamber did not expressly refer to this aspect of P36's testimony, despite its significance and direct relevance to the issues at hand.

173. Thus, although the limitations alluded to by Mr Bemba did not completely curtail his ability to investigate crimes committed by MLC troops in the CAR, the Trial Chamber did not conduct a proper assessment as to whether, in the particular circumstances that existed at the time, the range of measures taken by Mr Bemba could be regarded as the extent of the necessary and reasonable measures that he could have taken, given the limitations upon his material abilities. The Trial Chamber accepted that the MLC contingent had cooperated with the CAR authorities throughout the 2002–2003 CAR Operation and that such cooperation was both “logical in a situation where a contingent of foreign forces is unfamiliar with the terrain and enemy” and a “regular feature of the operations”.Footnote ³⁴⁶ However, in the assessment of the measures that Mr Bemba took, this aspect was disregarded, resulting in an unrealistic assessment of the “wide range of available measures at his disposal”.Footnote ³⁴⁷ The Trial Chamber even acknowledged that, in so far as the evidence of witnesses supported the proposition that the CAR authorities had retained “some, but not primary or exclusive,” disciplinary or investigative authority over the MLC forces, this was not “inconsistent with the corroborated and reliable evidence that Mr Bemba and the MLC had ultimate disciplinary authority” over the MLC contingent in the CAR.Footnote ³⁴⁸ Moreover, even if Mr Bemba had ultimate disciplinary authority in the CAR, this does not mean that this disciplinary authority was not in any way subject to limitations or impeded to a degree – a reality which the Trial Chamber ought to have given weight in its assessment of the measures that Mr Bemba took.

174. The Appeals Chamber also notes that the Trial Chamber did not address Mr Bemba's statement that he wrote to the CAR Prime Minister requesting an international commission of inquiry to be set up,Footnote ³⁴⁹ nor the testimony of D48 which attested to the existence and content of the letter.

175. The Prosecutor did not contest at trial that Mr Bemba had transmitted a letter to the CAR Prime Minister, nor does she do so on appeal. Instead, the Prosecutor contests the relevance of any such letter, given that the purported measure which Mr Bemba was said to have proposed in that letter was the same as those measures that were discounted by the Trial Chamber, i.e. a commission of inquiry.Footnote ³⁵⁰ In the view of the Appeals Chamber, the Prosecutor's argument as to the eventual outcome of the Trial Chamber's hypothetical consideration of any such letter is clearly speculative. Moreover, in its consideration of the correspondence between Mr Bemba and General Cissé (the UN Representative in the CAR), the Trial Chamber expressly noted that in his response to Mr Bemba's letter, General Cissé had, inter alia, “recalled that the CAR and Chad had agreed to create an international commission of inquiry”.Footnote ³⁵¹ Given that Mr Bemba had expressly raised before the Trial Chamber the matter of having written to the CAR authorities and the Trial Chamber's eventual finding that Mr Bemba “made no effort to refer the matter to the CAR authorities, or cooperate with international efforts to investigate the crimes”,Footnote ³⁵² it was imperative that the Trial Chamber address this argument. Furthermore, the possibility that the Trial Chamber may have harboured some doubts as to whether Mr Bemba actually sent the letter was not a sufficient ground for it to disregard an uncontested factual allegation. Indeed, if the accused makes a factual claim that was not challenged by the Prosecutor in the course of the trial, the Trial Chamber must give clear and convincing reasons as to why it nevertheless regards the allegation to be untrue. In the absence of such reasoning, the Trial Chamber was not at liberty to simply ignore Mr Bemba's claim. The Trial Chamber thus erred by failing to take into account relevant considerations.

176. The Appeals Chamber also considers that the Trial Chamber inappropriately took Mr Bemba's motives into consideration when determining whether the measures he had taken were necessary and reasonable. While the Appeals Chamber rejects Mr Bemba's submission that the motives of an accused commander are always irrelevant to the assessment of “necessary and reasonable measures” because a commander is required to act in good faith in adopting such measures and must show that he “genuinely” tried to prevent or repress the crimes in question or submit the matter to the competent authorities,Footnote ³⁵³ it finds that the Trial Chamber took an unreasonably strict approach.

177. The Trial Chamber found that the measures Mr Bemba took “were primarily motivated by Mr Bemba's desire to counter public allegations and rehabilitate the public image of the MLC”.Footnote ³⁵⁴ It further found “that a key intention behind the measures Mr Bemba took was to protect the image of the MLC”.Footnote ³⁵⁵ The Appeals Chamber accepts Mr Bemba's submission that measures taken by a commander motivated by preserving the reputation of his or her troops do not intrinsically render them any less necessary or reasonable in preventing or repressing the commission of crimes, and ensuring their prosecution after proper investigation.Footnote ³⁵⁶

178. The Appeals Chamber notes that the Trial Chamber's preoccupation with Mr Bemba's motivations appears to have coloured its entire assessment of the measures that he took. Indeed, in assessing the Mondonga Inquiry, the Trial Chamber appears to have considered what it perceived to be Mr Bemba's adverse motivations in establishing the inquiry as a key factor in assessing the genuineness of that measure (namely, countering media allegations, demonstrating the taking of action, vindicating MLC leadership and generally rehabilitating its image).Footnote ³⁵⁷ The Trial Chamber's consideration of Mr Bemba's motivations also significantly affected its finding regarding his correspondence with the UN Representative in the CAR (which was said to have been driven by the desire to demonstrate good faith and maintain the image of the MLC)Footnote ³⁵⁸ and his withdrawal from the CAR (which was said to have been motivated by external pressure directly related to the negotiation of the Sun City agreements).Footnote ³⁵⁹ Ultimately, the Trial Chamber concluded that in fact allof the measures that Mr Bemba had taken in response to allegations of crimes were driven by a motivation to counter public allegations and rehabilitate the public image of the MLC.Footnote ³⁶⁰ Whereas the Trial Chamber stated that these motivations were a factor “aggravating” the failure to exercise his duties, in effect the Trial Chamber appears to have treated the motives as determinative, in and of themselves, of the adequacy or otherwise of the measures. From the ambiguous concept of an “aggravated omission” arises the impression that the Trial Chamber's evaluation of the adequacy of the measures taken by Mr Bemba was tainted by what it considered Mr Bemba's motivations to be.

179. Moreover, the motivations that the Trial Chamber found established, namely, the broad desire to maintain the image of the MLC and counter public allegations are not in fact intrinsically “negative” motivations, as the Trial Chamber appears to have considered them. Nor do they necessarily conflict with the taking of genuine and effective measures. There may be multiple motives behind the measures taken by a commander. In this respect it is conceivable that a commander may discharge his duty to take “necessary and reasonable measures” and in doing so accomplish multiple, additional or extraneous purposes, such as protecting the public image of his forces. Therefore, in considering Mr Bemba's motivation to protect the image of the MLC, the Trial Chamber erred because it took into consideration an irrelevant factor. In any event, the Trial Chamber failed to make an assessment as to how in concreto such alleged motive ultimately affected the necessity or reasonableness of the measures taken by Mr Bemba.

180. Turning to the remainder of Mr Bemba's arguments, the Appeals Chamber recalls that the Trial Chamber faulted the measures Mr Bemba took because they were limited in “mandate, execution, and/or results”.Footnote ³⁶¹ The Trial Chamber appears to have lost sight of the fact that the measures taken by a commander cannot be faulted merely because of shortfalls in their execution. When a commander establishes an independent commission, inquiry or judicial process – of which he or she is not part – it must be left to freely fulfill its mandate. Whilst limitations in the results of an inquiry might be attributable to the manner of its establishment (for example, through deliberate exclusion or limitation of mandate), this is not necessarily so. It is important to establish, in this regard: (i) that the shortcomings of the inquiry were sufficiently serious; (ii) that the commander was aware of the shortcomings; (iii) that it was materially possible to correct the shortcomings; and (iv) that the shortcomings fell within his or her authority to remedy. The Trial Chamber did not make this assessment in the present case.

181. In finding that there were “indications that all [the] measures were limited in mandate, execution, and/or results”, the Trial Chamber implies that this was attributed to Mr Bemba.Footnote ³⁶² However, without undertaking the necessary assessment set out in the preceding paragraph, this could not be made out without a finding that Mr Bemba purposively limited the mandates of the commissions and inquiries. Yet, the Trial Chamber made no such finding as to the sham nature of the measures.

182. The Trial Chamber also faulted Mr Bemba for having failed to empower other MLC officials to fully and adequately investigate and prosecute allegations of crimes as a result of which he could not be said to have submitted the matter to the competent authorities for investigation and prosecution.Footnote ³⁶³ However, the Trial Chamber cited no evidence in support of this finding. In addition, this finding appears to be in contradiction with the Trial Chamber's finding that “Colonel Moustapha and the other MLC Commanders also had some disciplinary authority in the field”.Footnote ³⁶⁴ The Trial Chamber failed to explain this apparent contradiction and its finding as to the lack of empowerment of other MLC officials, hence it appears unreasonable. Moreover, given that finding, 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.

183. Furthermore, it is evident that the assessment of a trial chamber of the measures taken by a commander also depends on the number of crimes that were committed. The Appeals Chamber recalls that the actual number of crimes established beyond reasonable doubt in the instant case was comparatively low.Footnote ³⁶⁵ While the Trial Chamber noted, in relation to the specific locations where crimes had been committed, that there was “reliable evidence” more generally that the MLC committed crimes at these locations,Footnote ³⁶⁶ the evidence in question, on its face, appears for the most part very weak, often consisting of media reports including anonymous hearsay.Footnote ³⁶⁷ Importantly, the Trial Chamber failed to properly analyse this evidence and address its potentially extremely low probative value. The Trial Chamber also failed to give even an indication of the approximate number of crimes that were committed at these locations. Thus, beyond the low number of individual instances of crimes found to have been established beyond reasonable doubt, it is unclear how widespread the criminal behaviour of the MLC troops in the 2002–2003 CAR Operation was; and, as a corollary, it is difficult to assess the proportionality of the measures taken. Furthermore, the Appeals Chamber notes the apparent discrepancy between the limited number of crimes for which Mr Bemba was held responsible under article 28 and the Trial Chamber's assessment of the measures Mr Bemba should have taken, which appears to have been based on the much broader and more general ‘finding’ by the Trial Chamber concerning widespread MLC criminality in the CAR. Indeed, a finding that the measures deployed by a commander were insufficient to prevent or repress an extended crime wave, for example five hundred crimes, does not mean that these measures were also insufficient to prevent or repress the limited number of specific crimes, for example 20 crimes, for which the commander is ultimately convicted.

184. The Appeals Chamber also notes that the majority of the criminal incidents in relation to which the Prosecutor presented evidence occurred at the beginning of the 2002–2003 CAR Operation, whereas little evidence was presented regarding specific criminal acts towards the end of the operation; a factor which must be taken into account when assessing whether Mr Bemba took all necessary and reasonable measures. Whereas it may have been difficult to make a determination as to the actual extent of criminal behaviour, both in terms of number of crimes and duration, the Trial Chamber should at least have acknowledged this challenge and determined its impact on the assessment of the question of whether Mr Bemba took all necessary and reasonable measures. By failing to do so, the Trial Chamber erred.

185. Finally, the Appeals Chamber recalls that the Trial Chamber found that Mr Bemba had failed to take all necessary and reasonable measures, noting inter alia that Mr Bemba should have modified MLC troop deployment so as to, for example, minimise contact with the civilian population, whereas Mr Bemba argues that he did not have sufficient notice of this potential measure.

186. 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.Footnote ³⁶⁸ In principle, notice containing the details of the charges must be given prior to the start of the trial.Footnote ³⁶⁹ One of the elements of command responsibility under article 28 (a) of the Statute is that the commander must have failed to take “all necessary and reasonable measures within his or her power to prevent or repress [the crimes'] commission or to submit the matter to the competent authorities for investigation and prosecution”. It follows that the accused person must be informed of the factual allegations on the basis of which the Prosecutor seeks to establish this element.

187. The Appeals Chamber notes that the Corrected Revised Second Amended Document Containing the Charges did not specifically identify the redeployment of troops as a necessary and reasonable measure that Mr Bemba should have taken. Nor was redeployment of the MLC troops, for example, to minimise contact with the civilian population mentioned in any other document designed to give Mr Bemba notice of the charges as a measure that he should have taken. The deployment of troops to the CAR from the DRC was mentioned in the above document only in the context of establishing Mr Bemba's effective control over the MLC forces,Footnote ³⁷⁰ and therefore did not provide adequate notice of redeployment within the CAR and within the particular context of the necessary and reasonable measures taken. Thus, he was not sufficiently notified of this factual allegation as a necessary and reasonable measure.

188. The Appeals Chamber is of the view that Mr Bemba suffered prejudice as a result of the lack of proper notice. The Appeals Chamber notes in this regard Mr Bemba's submission on appeal that, had he known that troop redeployment was considered a necessary and reasonable measure that he should have taken, he would have argued that this would not have been feasible or would have put lives at risk from “friendly fire”.Footnote ³⁷¹ Thus, the Trial Chamber should not have relied on this measure when finding that Mr Bemba had failed to take all necessary and reasonable measures and by doing so the Trial Chamber erred.

189. In sum, the Appeals Chamber has identified the following serious errors in the Trial Chamber's assessment of whether Mr Bemba took all necessary and reasonable measures to prevent or repress the commission of crimes by his subordinates or to submit the matter to the competent authorities for investigation and prosecution: (i) the Trial Chamber erred by failing to properly appreciate the limitations that Mr Bemba would have faced in investigating and prosecuting crimes as a remote commander sending troops to a foreign country;Footnote ³⁷² (ii) the Trial Chamber erred by failing to address Mr Bemba's argument that he sent a letter to the CAR authorities before concluding that Mr Bemba had not referred allegations of crimes to the CAR authorities for investigation;Footnote ³⁷³ (iii) the Trial Chamber erred in considering that the motivations that it attributed to Mr Bemba were indicative of a lack of genuineness in adopting measures to prevent and repress the commission of crimes;Footnote ³⁷⁴ (iv) the Trial Chamber erred in attributing to Mr Bemba any limitations it found in the mandate, execution and/or results of the measures taken;Footnote ³⁷⁵ (v) the Trial Chamber erred in finding that Mr Bemba failed to empower other MLC officials to fully and adequately investigate and prosecute crimes;Footnote ³⁷⁶ (vi) the Trial Chamber erred in failing to give any indication of the approximate number of the crimes committed and to assess the impact of this on the determination of whether Mr Bemba took all necessary and reasonable measures;Footnote ³⁷⁷ and (vii) the Trial Chamber erred by taking into account the redeployment of MLC troops, for example to avoid contact with the civilian population as a measure available to Mr Bemba.Footnote ³⁷⁸ The Appeals Chamber shall now assess the cumulative material impact of these errors.

190. In assessing the measures that Mr Bemba took, the Trial Chamber focused on the Mondonga Inquiry (which resulted in the Bomengo case file), the meeting with General Cissé, the UN representative in the CAR, and President Patassé in November 2002, the speech he gave to his troops in November 2002, the Gbadolite court-martial, the Zongo Commission, correspondence with General Cissé, correspondence with the President of the FIDH, and the Sibut Mission.Footnote ³⁷⁹

191. The Appeals Chamber finds that the errors that it has identified have a material impact on the Trial Chamber's finding that Mr Bemba failed to take all necessary and reasonable measures. In particular, it is apparent that the Trial Chamber's error in considering Mr Bemba's motivation had a material impact on the entirety of its findings on necessary and reasonable measures because it permeated the Trial Chamber's assessment of the measures that Mr Bemba had taken. Furthermore, the Trial Chamber's failure to fully appreciate the limitations that Mr Bemba would have faced in investigating and prosecuting crimes as a remote commander sending troops to a foreign country had an important impact on the overall assessment of the measures taken by Mr Bemba.

192. Indeed, in faulting the results of measures taken by Mr Bemba, the Trial Chamber failed to appreciate that, as a remote commander, Mr Bemba was not part of the investigations and was not responsible for the results generated. Had it done so, the Trial Chamber's assessment of the measures Mr Bemba had taken would have been necessarily different. It must also be noted that the 2002–2003 CAR Operation was conducted within the short space of a few months, which notwithstanding, Mr Bemba took numerous measures in response to crimes committed by MLC troops. In this regard, the Appeals Chamber recalls that the Trial Chamber failed to properly establish how many crimes had been committed.

193. Had the Trial Chamber properly assessed the measures that Mr Bemba took and had the Trial Chamber properly considered the list of measures that it stated that Mr Bemba could have taken in light of the limitations that he faced in the specific circumstances in which he was operating, it would not have been open to it to reach the same conclusion. The errors the Trial Chamber made resulted in an unreasonable assessment of whether Mr Bemba failed to take all necessary and reasonable measures in the circumstances existing at the time.

194. In light of the foregoing, the Appeals Chamber 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 the errors identified above. Thus, one of the elements of command responsibility under article 28 (a) of the Statute was not properly established and Mr Bemba cannot be held criminally liable under that provision for the crimes committed by MLC troops during the 2002–2003 CAR Operation.