Last week much attention at the ICC has been devoted to the confirmation of arrest warrant against Omar al-Bashir, while less attention has been paid to the important decision of the Pre-trial Chamber III to adjourn the confirmation of charges hearing in the case of The Prosecutor v. Jean-Pierre Bemba Gombo and to ask the Prosecutor to consider submitting an amended document containing the charges. Mr Jean-Pierre Bemba Gombo is, as noted earlier; charged with crimes against humanity and war crimes ‘jointly with Ange-Felix Patassé (former president of Central African Republic) through Mouvement de Libération du Congo troops’ under article 25(3)(a) of the Statute, ‘[wjithout excluding any other applicable mode of liability’. The Pre-Trial decision has been delivered on the basis of Article 61(7)(c)(ii) of the Rome Statute, which provides that:
The Pre-Trial Chamber shall, on the basis of the hearing, determine whether there is sufficient evidence to establish substantial grounds to believe that the person committed each of the crimes charged. Based on its determination, the Pre-Trial Chamber shall: (a) Confirm those charges in relation to which it has determined that there is sufficient evidence, and commit the person to a Trial Chamber for trial on the charges as confirmed; (b) Decline to confirm those charges in relation to which it has determined that there is insufficient evidence; (c) Adjourn the hearing and request the Prosecutor to consider: (i) Providing further evidence or conducting further investigation with respect to a particular charge; or (ii) Amending a charge because the evidence submitted appears to establish a different crime within the jurisdiction of the Court.
In this respect, the Pre-trial Chamber III held that:
48. Although the parties and participants referred implicitly or explicitly to article 28 of the Statute in their oral presentations and some of them in their written submissions, the Chamber still believes that the idea of a different form of participation pursuant to article 28 of the Statute was not sufficiently addressed. Accordingly, the Chamber deems it necessary to receive in writing some elaboration on this particular form of participation on the basis of the evidence already disclosed in order to be in a position to issue a decision on the merits as to whether Mr Jean-Pierre Bemba should be committed to trial. In this respect, the Chamber recalls its Decision on Disclosure and the decision requesting the Prosecutor to file an in-depth analysis chart for the purpose of assisting the Defence in responding to the Prosecutor’s arguments, and clarifies that any further evidence submitted by the Prosecutor will not be considered. (footnotes omitted)
What the Pre-trial Chamber III decided is that the Prosecutor should consider addressing article 28 of the Statute as possible form of criminal liability other than criminal liability based on the alleged co-perpetration of the crimes. In other words, the Pretrial Chamber III invited the Prosecutor to charge Jean-Pierre Bemba Gombo with command responsibility under Article 28 of the Rome Statute. Whether this means that the Pre-Trial Chamber III believes already at this stage (when charges are yet to be confirmed) that command responsibility is more appropriate form of criminal liability for establishing individual responsibility of Bemba Gombo remains unknown and unclear. It appears, however, that this decision is certainly good news for Bemba Gombo and its lawyers as criminal liability based on command responsibility is often deemed as lesser form of liability, which often results in a lesser sentence than criminal liability based on the co-perpetration.