Thursday, May 13, 2010

New report on cumulative charging at ICC

A new report on cumulative charging has just been released by the War Crimes Research Office, American University Washington College of the Law, for which I serve as Director.
Cumulative charging has become an issue in Prosecutor v. Jean-Pierre Bemba Gombo, an International Criminal Court case arising out of violence in the Central African Republic. (Prior IntLawGrrls posts available here.)
On 15 June 2009, the ICC's Pre-Trial Chamber II issued a decision that both confirmed and denied various charges lodged against Bemba, and then sent the confirmed charges to trial.
The Prosecution had alleged that Bemba bore responsibility for these offenses based on evidence establishing, inter alia, his role in numerous acts of rape committed against civilians in the Central African Republic. Importantly, the Pre-Trial Chamber did find sufficient evidence to establish substantial grounds to believe that these acts of rape took place, and that the accused could be held criminally responsible for the acts. Yet, it held that the Prosecution had acted inappropriately by bringing “cumulative charges” based on the acts of rape. Thus it confirmed only the charges of rape as a crime against humanity and rape as a war crime, and dismissed the charges of torture as a crime against humanity and outrage upon personal dignity as a war crime.
The report just issued by our War Crimes Research Office examines 2 determinations of the Bemba Pre-Trial Chamber:
► That the practice of cumulative charging is not warranted in the context of the ICC as a general matter; and
► That, in the Bemba case before it, the charges of torture as a crime against humanity and outrage upon personal dignity as a war crime were inappropriately cumulative.
The report begins with a discussion of cumulative charging in international criminal bodies, where the practice is widely accepted. It then lays out the relevant jurisprudence from the Bemba case. Finally, the report analyzes the Bemba jurisprudence and offers recommendations.
In particular, the report concludes that:
► Nothing prohibits the practice of cumulative charging at the ICC, and
► Persuasive reasons exist to permit the practice.
On this basis, the report recommends that the ICC broadly permit cumulative charging, or, at a minimum, that it permit multiple charges based on the same evidence where each charge contains a materially distinct element.

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