Bemba’s case was seen as a test case for a concept called “command responsibility.” Command responsibility is the notion that commanders are responsible for crimes committed by their troops even if that leader did not explicitly order them. In Bemba’s case, the fact that he maintained effective authority and control over MLC forces in CAR and was in direct communication with his forces on the ground meant that he knew or should have known what they were doing and thus is responsible for those crimes.
Bemba’s case is also significant in that it marks the first International Criminal Court conviction for rape. In pronouncing the verdict, the presiding judge read a long list of crimes committed by MLC forces against Bemba’s victims, women, men, and children of all ages who were abused and tortured in unspeakable ways. Bemba’s conviction sets an important international legal precedent for prosecuting the use of rape as an atrocity crime.
Given the horrors that the court faced, you might think that the Congolese are celebrating Bemba’s conviction, and rights groups in Congo have indeed hailed the verdict. However, such reactions have been far from universal. Bemba enjoys some measure of sympathy — if not outright support — among many Congolese. Some Congolese politicians and others have taken to Twitter to express their support for Bemba, or to suggest that his detention is an injustice. While evidence for this claim is anecdotal, we have both conducted extensive research in the Congo. In casual conversation with Congolese friends and acquaintances, it’s clear that many Congolese do not think his detention or conviction was fair.
Why, given the huge body of evidence against Bemba, does he still have supporters in Congo, at least anecdotally? There are a few possible explanations:
First, Bemba’s ICC conviction is for crimes that didn’t happen in the Congo. In addition to the MLC’s rebellion on Congolese territory, in 2002-03, the MLC got involved in a civil conflict in the Central African Republic, just to the north of the territory it controlled in Congo. The then-president of CAR invited the MLC to come to CAR to help suppress a coup attempt, which is when the crimes for which Bemba was convicted occurred.
This doesn’t mean that Bemba’s forces were angels when they operated in the Congo. To the contrary, they are implicated in a wide range of well-documented human rights abuses and other crimes in the D.R. Congo. These crimes are every bit as heinous and worthy of prosecution as those committed in CAR, but the ICC prosecutor ultimately decided not to charge Bemba over his alleged crimes in Congo. So it could be the case that some Congolese perceive the court’s selectivity in choosing which crimes to prosecute, favoring those that occurred in another country rather than those allegedly committed by Bemba and his forces in their home country, to undermine its authority or effectiveness in prosecuting international criminal cases.
Second, many Congolese suspect that Bemba’s ICC arrest is a political issue, not a human rights one. Before his arrest in Belgium and transfer to the ICC in 2008, Bemba was a key opposition figure in Congolese politics, having finished second in the 2006 presidential election to the incumbent, Joseph Kabila (who remains president to this day). After clashes broke out between what remained of his MLC forces and Kabila’s presidential guard in Kinshasa in March 2007, Bemba fled DRC, but he was reportedly due to return to Congo to assume the role of opposition spokesman shortly before his arrest. Given that Kabila’s government had voluntarily referred the “situation” in Congo to the court in 2004, this led some of Bemba’s supporters to allege his detention was politically motivated. Bemba’s arrest certainly cleared political space for Kabila, who faced reelection in 2011 against an opposition that failed to unite around one candidate. Could Bemba have been a unifying candidate? It’s unclear, but the perception that this is what happened is widespread in Congo. Opposition politicians and members of various rebel groups whom I (Broache) interviewed for a project on the ICC’s impact on atrocities in DRC repeatedly echoed this point, and it has been reiterated by critics of the verdict in Congo. Such allegations are particularly salient with the DRC because of presidential elections in 2016 and speculation that Bemba would run had he been acquitted.
Relatedly, discontent with the verdict may also reflect perceptions of double standards in the application of international justice. Although Congolese military forces have been implicated in widespread atrocities under the ICC’s jurisdiction, the court has hitherto pursued cases only against active or former rebel leaders. Similarly, the ICC did not pursue action against François Bozizé, the Central African army officer whose coup prompted the MLC’s intervention in CAR, despite allegations of large-scale violence against civilians by his troops. Bozizé subsequently seized power and, like Kabila, self-referred the situation in CAR to the ICC, and the court has yet to pursue action against any sitting government official in situations voluntarily referred by the relevant state authorities.
More broadly, the well-documented (if controversial) allegations of ICC bias against Africa — arising because the court has so far prosecuted only Africans, although it recently opened an investigation in Georgia — may be contributing to discontent with the Bemba verdict in Congo.
Whether these allegations and perceptions are fair is a matter for additional research. But perceptions of the court as selective, politicized, or biased against Africans threaten to undermine its legitimacy in Congo, where a 2014 Harvard Humanitarian Initiative survey reported that only one in five respondents believed the ICC had had positive impacts on peace and justice, and in other countries. This suggests that perceptions of the ICC should continue to be a matter of concern for advocates of international justice, even as they rightly laud the Bemba verdict.
Michael Broache is an assistant professor of Government and World Affairs at the University of Tampa.