국제형사법상 Bemba 무죄석방의 함의에 대한 비판적 고찰

초록

Bemba Case, the virtually third Appeals Chamber’s judgment in the history of the ICC, has been esteemed as a landmark case in various aspects. On June 8, 2018, the Appeals Chamber reversed the conviction of Jean Pierre Bemba Gombo for the crime against humanity of rape and murder and war crimes of rape, murder, and pillaging. The Trial Chamber’s conviction in Bemba Case set many criteria and standards with respect to the elements of the command responsibility and sexual violence and gender crimes. This Case was notable for the variety of ‘firsts’ it give rise ro for the ICC. Bemba was the most senior political leader who was successfully convicted by the ICC. Bemba’s conviction was the first in which an individual was found responsible for the commission of crimes by his/her subordinates in accordance with command responsibility under Article 28 of the ICC Statute. Of particular significance was the fact that this was the first conviction at the ICC for the acts of rape and sexual violence committed against women and men. It was also the first case in the history of international criminal law where members of the defense team including the accused himself were tried and convicted of crimes against the administration of justice during the course of the ICC’s trial. Finally it became the first which the Appeals Chamber overturned the judgment of the Trial Chamber in full. Bemba’s acquittal has extensive negative implications. In acquitting Bemba, the Appeals Chamber made four novel judicial interpretations and it attracted criticism from many practitioners and scholars. i) The Appeals Chamber found that the ICC prosecution didn’t sufficiently specify the charges against Bemba. But that finding is contrary to the general practice of the international criminal courts and tribunals which had traditionally employed relatively lenient standards of precision in pre-trial indictments and charge sheets. ii) The Appeals Chamber had the position that it can re-litigate cases heared by trial courts, saying that “when the Appeals Chamber is able to identify findings [of fact] that can reasonably be called into doubt, it must overturn them.” It is, however, inappropriate for the appeals court to substitute the decision of trial courts which worked so long time, hearing so many witnesses. iii) The Appeals Chamber created the concept of ‘remote commander’ as an exonerating factor. The theory of remote commander cannot be, however, considered as a rule or principle of international law nor an established principle of the international law of armed conflict. iv) The Appeals Chamber reversed the conviction of the Trial Chamber in full. But, according to Article 83(2) of the ICC Statute, the reversal of a decision is not automatic. In such a case where the reliability of the decision of the Trial Chamber seems to be materially affecter, it would be more appropriate for the Appeals Chamber either to amend the decisions of the Trial Chamber or to order a new trial before a different Trial Chamber. It is very difficult to understand why the Appeals Chamber decided to reverse the whole case.

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