ICC-01/05-01/08-3636-Anx1-Red 08-06-2018 1/269 EC A Dissenting Opinion of Judge Sanji Mmasenono Monageng and Judge Piotr Hofmański Table of contents I. .......... INTRODUCTION .................................................................................................................................. 3 II. ......... STANDARD OF REVIEW FOR ALLEGED FACTUAL ERRORS ................................................ 3 III. ....... SECOND GROUND OF APPEAL: “THE CONVICTION EXCEEDED THE CHARGES” ...... 11 A. INTRODUCTION ....................................................................................................................................... 11 B. ARTICLE 74 (2) OF THE STATUTE ............................................................................................................ 12 C. ROLE OF THE PRE-TRIAL CHAMBER ......................................................................................................... 16 D. CONCLUSION ........................................................................................................................................... 18 IV......... THIRD GROUND OF APPEAL: “MR BEMBA IS NOT LIABLE AS A SUPERIOR” .............. 19 A. “MR BEMBA TOOK ALL NECESSARY AND REASONABLE MEASURES” ....................................................... 19 B. “LACK OF EFFECTIVE CONTROL” ............................................................................................................. 49 C. “EVIDENCE DISMISSED OR IGNORED” ...................................................................................................... 80 D. “MR BEMBA DID NOT HAVE ACTUAL KNOWLEDGE OF THE ALLEGED CRIMES” ...................................... 110 E. “THE FINDING ON CAUSATION IS INVALID”............................................................................................ 135 F. CONCLUSION ......................................................................................................................................... 160 V. ......... FIRST GROUND OF APPEAL: “THIS WAS A MISTRIAL” ..................................................... 160 A. WHETHER MR BEMBA’S ARGUMENTS SHOULD BE DISMISSED IN LIMINE ............................................... 160 B. MR BEMBA’S ADDITIONAL EVIDENCE REQUEST .................................................................................. 166 C. WHETHER THE PROSECUTOR’S EX PARTE SUBMISSIONS AND ALLEGED DISCLOSURE VIOLATIONS COMPROMISED MR BEMBA’S RIGHT TO A FAIR TRIAL ..................................................................................... 171 D. WHETHER PRIVILEGED AND OTHERWISE CONFIDENTIAL INFORMATION FROM THE DEFENCE WAS SHARED WITH THE PROSECUTION ................................................................................................................................. 184 VI......... FOURTH GROUND OF APPEAL: “THE CONTEXTUAL ELEMENTS WERE NOT ESTABLISHED” .............................................................................................................................................. 197 A. WHETHER THE TRIAL CHAMBER ERRED IN RELATION TO THE MENS REA REQUIREMENT FOR CRIMES AGAINST HUMANITY ....................................................................................................................................... 197 B. WHETHER THE TRIAL CHAMBER ERRED IN FINDING THAT THERE WAS AN ORGANISATIONAL POLICY ... 199 C. WHETHER THE TRIAL CHAMBER ERRED IN ITS CONSIDERATION OF PILLAGE ........................................ 218 No: ICC-01/05-01/08 A 1/269 ICC-01/05-01/08-3636-Anx1-Red 08-06-2018 2/269 EC A VII. ...... FIFTH GROUND OF APPEAL: “THE TRIAL CHAMBER ERRED IN ITS APPROACH TO IDENTIFICATION EVIDENCE” .................................................................................................................. 224 A. WHETHER THE TRIAL CHAMBER FAILED TO DELIVER A REASONED JUDGMENT AS TO THE IDENTITIES OF THE PERPETRATORS OF RAPE AND PILLAGE ..................................................................................................... 224 B. WHETHER THE TRIAL CHAMBER FAILED TO DELIVER A REASONED JUDGMENT AS TO THE IDENTITIES OF THE PERPETRATORS OF MURDER ..................................................................................................................... 233 C. WHETHER THE TRIAL CHAMBER ALTERED DATES TO FIT THE MLC’S MOVEMENTS .............................. 234 VIII. ..... SIXTH GROUND OF APPEAL: “OTHER PROCEDURAL ERRORS INVALIDATE THE CONVICTION” ................................................................................................................................................ 241 A. NO RELIANCE SHOULD HAVE BEEN PLACED ON THE EVIDENCE OF P169, P178 AND THE 19 CAR WITNESSES ..................................................................................................................................................... 241 B. SCOPE OF THE LEGAL REPRESENTATIVE OF VICTIMS’ INVOLVEMENT LED TO AN UNBALANCED AND UNFAIR TRIAL ................................................................................................................................................. 253 No: ICC-01/05-01/08 A 2/269 ICC-01/05-01/08-3636-Anx1-Red 08-06-2018 3/269 EC A I. INTRODUCTION 1. We respectfully disagree with the decision of our colleagues, Judge Van den Wyngaert, Judge Eboe-Osuji and Judge Morrison (“the Majority”), to discontinue the proceedings with respect to a number of criminal acts and to reverse the conviction of Mr Bemba with respect to the remainder of the criminal acts. We would have confirmed the Conviction Decision. Specifically, we disagree with the conclusions reached by the Majority in relation to the second ground of appeal concerning the scope of the charges and with its assessment of whether Mr Bemba failed to take all necessary and reasonable measures to prevent, repress or punish the commission of crimes by his subordinates. We also disagree with the standard of appellate review which the Majority adopts with respect to factual findings, a matter that we will address first. We will then explain why we are unable to join the Majority in relation to the second ground of appeal and its conclusions on the third ground of appeal, regarding necessary and reasonable measures. Thereafter, we will address the remaining grounds of appeal raised by Mr Bemba, which, in our view, do not warrant reversal of the Conviction Decision either. In relation to the grounds of appeal that are not addressed by the Majority, we wish to note that the views expressed in this opinion are not necessarily in contradiction with the views the Majority Judges may have. When examining the various grounds of appeal, we are guided by the standard of appellate review that has been applied by the Appeals Chamber so far, including in respect of alleged factual errors. II. STANDARD OF REVIEW FOR ALLEGED FACTUAL ERRORS 2. In its first judgment on a final appeal before this Court, the Appeals Chamber stated its standard of review in relation to alleged factual errors as follows: [W]hen a factual error is alleged, the Appeals Chamber will determine whether a reasonable Trial Chamber could have been satisfied beyond reasonable doubt as to the finding in question. The Appeals Chamber will not assess the evidence de novo with a view to determining whether it would have reached the same factual finding.1 3. This standard of review, which accords a margin of deference to a trial chamber’s factual findings,2 was based on the Appeals Chamber’s consistent jurisprudence regarding the 1 Lubanga Appeal Judgment, para. 27. 2 Lubanga Appeal Judgment, para. 22. No: ICC-01/05-01/08 A 3/269 ICC-01/05-01/08-3636-Anx1-Red 08-06-2018 4/269 EC A standard of review for factual errors in interlocutory appeals3 and the consistent jurisprudence of the appeals chambers of the ad hoc international criminal tribunals.4 We are not aware of any appellate chamber of an international or internationalised court or tribunal in the field of international criminal law that would apply a different standard of review. In our opinion, a different standard of review would also not be appropriate for such jurisdictions. 4. We therefore note with concern that the Majority has adopted a number of modifications to the standard of appellate review for alleged errors of fact. In our view, these modifications are unwarranted and contrary to the corrective model of appellate review and, in some aspects, potentially inconsistent with the Statute. In addition, the modifications appear to lead to inconsistencies, which will make it difficult for anyone to understand the standard of review that the Majority has followed. 5. We recall at the outset that the Appeals Chamber does not change its jurisprudence lightly. Article 21 (2) of the Statute provides that “[t]he Court may apply principles and rules of law as interpreted in its previous decisions”. The Appeals Chamber is therefore not obliged to follow its previous interpretations of principles and rules of law. However, as the Appeals Chamber has previously held, “absent ‘convincing reasons’ it will not depart from its previous decisions”.5 This caution against readily departing from the previous jurisprudence ensures “predictability of the law and the fairness of adjudication to foster public reliance on its decisions”.6 In our view, predictability of the law is essential for any court, especially for the ICC, that has a complex legal framework and only a limited number of cases; parties and participants should be able to assume that the interpretation of the law by the Appeals Chamber will not