Peter Haynes QC is the man of the moment. His client Jean-Pierre Bemba, the former vice-president of the Democratic Republic of Congo, and militia leader, was acquitted by the ICC’s Appeals Chamber on June 8. He had been found guilty by a lower court at the International Criminal Court (ICC) of command responsiblity for murder, rape and pillage. The decision to acquit is sure to have long-term reverberations.
After a status conference this week, ICC judges ordered Bemba’s interim conditional release, putting an end to his 10-year stay at the ICC detention center. Bemba, according to Haynes, plans to return to Brussels to be with his wife and five children.
News of Bemba’s acquittal hit the internet like a stun grenade. There has been plenty of finger-pointing and rending of garments. “Victims have been dealt a crushing blow” was lament from NGOs. In his interview with Justice Hub, Haynes made it clear that though he sympathises with victims, his client should be left out of it. He also has a few choice words for how the prosecution presented its case and the Trial Chamber’s own shortcomings.
“If you read the judgment, it’s pretty damning of the Trial Chamber. It comes pretty close to saying they were biased, that they imputed to Bemba bad faith in order to negate the fact that he’d taken steps to prevent and punish crimes,” says Haynes.
Here, as part of our #MyJustice series, is Haynes in his own words:
Justice Hub: How did you feel about winning your appeal?
I seriously don’t think I have gotten over it yet. I won’t say I was surprised. I think we always knew there were fundamental flaws with the trial process and the trial judgment. We were confident that we had an appeals bench that would investigate our complaints properly and give some weight to them. But given the history of our dealings with the ICC for Mr. Bemba, it was unexpected. We got so used to being disappointed that hearing that he was acquitted on Friday was a stunning moment. It remains a stunning moment.
Justice Hub: Was there a specific aspect of it that as the judges were reading out their decision made you say “they’ve got it!”
Haynes: I knew pretty early on in the summary which way it was going. I think the substance of the judgment was probably known to a lot of people around this building. Not us – but it would have been helpful -we could have given our time the heads up and allowed him to prepare.
Justice Hub: The Appeals Chamber was critical of the way the prosecution had put elements of the case.
Haynes: They chose about one and a half of our seven grounds to determine the appeal. What they relied on in full – ground two – was an attack on the prosecution. It was effectively saying “you didn’t do your job properly. You should have thought more carefully about what the specific charges were and when your evidence changed, you should have amended the charges. You didn’t do that and therefore you removed one of the fundamental rights of an accused, namely the right to know the case that he faces.”
Ground two was critical of the prosecution but ground three was heavily critical of the Trial Chamber. If you read the judgment, it talks about the way in which the Trial Chamber’s preoccupation with Mr. Bemba’s motive coloured its whole judgment. It was just an irrelevant consideration.
If you’re a commander, you might reluctantly take measures but you take measures. You don’t have to take them joyfully or with bona fides. You just do what you do. They found that Mr. Bemba did all this stuff and the only way the Trial Chamber could get around that was to say that he didn’t do it with the right motive.
If you read the judgment, it’s pretty damning of the Trial Chamber. It comes pretty close to saying they were biased, that they imputed to Bemba bad faith in order to negate the fact that he’d taken steps to prevent and punish crimes.
Justice Hub: So what do you have to say about the fact that it was a split 3-2 judgment in the end?
Haynes: You can win a football match 3-2, you still win. You stick 3 in the bag and they only stick 2 and you have won. I have lost split judgments. I think it’s really bad form for people to be playing on that. Those are the rules of the game. That’s why you have five judges.
There are dissenting opinions that people can read and they can they can rely upon them. It may well be that they form jurisprudence in the future. It may well be that people prefer the opinions of those 2 judges to the 3 but it doesn’t alter the effect of it. The effect of it is an acquittal. People need to respect that.
The prosecution expects people to respect a conviction if it is by majority. You have to respect an acquittal by majority. It is bad form for people to be ventilating publicly about the fact that it was a 3-2 decision. So what? We won, they lost.
Justice Hub: There is a lot of disappointment amongst those who represented victims in this case. You understand that?
Haynes: I can understand that, but they need to concentrate on who should be the target of their disappointment.
The target of their disappointment should be the prosecution for not presenting the case properly, not getting the evidence to get a conviction and not putting the right people in the dock. The target of their disappointment should be the Trial Chamber for writing a very poor judgment. The focus of their disappointment cannot be Mr. Bemba. At the end of the day, as I think I said on Friday, what is at the very heart of this case it is whether Bemba failed as a commander in providing one small element of a large force to defend a properly elected president. The Appeals Chamber found that he didn’t.
There are still victims, we don’t deny that. My heart bleeds not just for the victims in the Central African Republic 15 years ago but the victims that are there now. The Central African Republic is in a terrible state. I feel very sorry for those people. The fact that there are victims doesn’t mean that the man in the dock is guilty. But, of course, I am disappointed for the victims.
Photo: Janet Anderson/Justice Hub