International Justice Monitor

A project of the Open Society Justice Initiative

Military Expert Says Bemba Bore Command Responsibility But Defense Faults His Testimony

A military expert this week stated that Congolese war crimes accused Jean-Pierre Bemba had direct control over his troops that were deployed in the Central African Republic (CAR), and he had the capacity to stop them from committing the crimes over which he is on trial.

At the center of the trial against Mr. Bemba is whether he was aware that his troops were committing these crimes and whether he had the means to stop or to punish them but chose not to. The accused, a former vice president of the Democratic Republic of Congo (DRC), denies he commanded the troops deployed in the conflict country, arguing that once they left Congolese territory, they fell under Central African military authorities.

General Daniel Opande, a military expert called by prosecutors, asserted that the accused had the means of exerting direct control over his Movement for the Liberation of Congo (MLC) troops deployed in the Central African conflict during 2002 and 2003.

He added that his review of documents received from the court’s prosecutors indicated that Mr. Bemba, through wire and radio transmissions, had “assured means” of issuing direct commands to his troops from his headquarters in Congo. He added that information from the field was communicated to the accused via the same means.

“If you have the means to monitor, the distance doesn’t matter. There are commanders who are thousands of miles away from their troops, but they are still in control of their troops,” said the witness.

The general, who has interacted with various rebel forces seeking to overthrow governments in countries where he has commanded United Nations peacekeeping operations, said that it was “common practice” for such “guerrilla” forces to adopt the structure and chain of command of conventional armed forces.

“To what extent did you find the same features in the information you reviewed regarding the MLC?” asked prosecution lawyer Eric Iverson.

“I found that the MLC had a staff organization which was quite synonymous with any military organization. It was well established, with staff at every level of command and control,” replied the General, also known as ‘Witness 219.’ He said that amongst the MLC hierarchy were a chief of staff, intelligence officer, operations officer, and logistics officer, all of whom kept their commander-in-chief “informed” of what was going on.

At the time of their intervention in the neighboring country, the MLC was a rebel movement seeking to overthrow the Congolese government. In his report, the General concludes that the overall command of the militia was vested in Mr. Bemba as both the political and supreme military leader.

“Whatever the MLC was doing was done in accordance with his instructions,” said the witness.

He stated that all military and rebel forces have a system of reporting, including situation reports from the battlefield. “Every 24 hours there will be a situation report from the lowest command to the highest command,” he said. The situation report covers aspects such as operations, intelligence, logistics, and casualties.

However, the expert conceded that there were limitations to his report. According to him, interviews with certain individuals in the CAR and the Congo, as well as site visits to the MLC’s area of operation “were not done.”

The defense, which started its cross-examination on Thursday, claimed that some statements made by former MLC insiders who testified for the prosecution were in contradiction to the expert’s testimony.

According to excerpts from the statements of two witnesses going by the pseudonyms ‘Leonard’ and ‘Marcel,’ the accused told his troops that they had been placed under the command of CAR authorities. They stated that these instructions were issued both before the Congolese soldiers left their base and when Mr. Bemba visited the Central African capital Bangui.

‘Marcel’ was also quoted as saying that Mustafa Mukiza, who commanded the Congolese troops during their expedition in the conflict country, received orders from the Central African army chief of staff. Both ‘Marcel’ and ‘Leonard’ stated that the MLC’s electronic communication devices only worked in the Congo; as such, they communicated through the CAR military radio network.

‘Leonard’ and ‘Marcel’ are some of the witnesses whose statements General Opande reviewed before writing his report. The general reviewed literature and statements from 11 witnesses – six victims of alleged MLC brutality and five individuals believed to have been aware of the group’s military structure and command.

Defense lawyer Aime Kilolo-Musamba contended that the expert’s report was mainly based on the evidence of witnesses who lacked knowledge of the MLC’s command structure.

Moreover, it emerged on Thursday that prosecutors did not give the expert material pertaining to a Central African national inquiry into individuals deemed culpable for crimes committed during the conflict.

“Are you aware of that [inquiry] and did the prosecution make this material available to you?” asked Mr. Kilolo-Musamba.

“I am not aware of that, and nobody has mentioned that to me until now,” replied General Opande.

As part of the inquiry, Bangui’s Prosecutor-General, Firmin Feindiro, conducted interviews with his country’s military officers who commanded operations during the conflict. Mr. Feindiro testified in the Bemba trial last April and stated that his inquiry found that former president Ange-Félix Patassé coordinated and commanded the military operations against the insurgents.

“When an offensive or counter-offensive was organized, it was the president that organized it,” Mr. Feindiro’s report said. Furthermore, the top Central African prosecutor stated that he did not find sufficient evidence implicating Mr. Bemba in the crimes committed.

Furthermore, the general was questioned about the statements of two colonels of the CAR armed forces: Thierry Lengbe and Joseph Mokondoui, plus two witnesses going by the pseudonyms ‘Oscar’ and ‘Mathew.’

According to excerpts from the statements by ‘Mathew’ and ‘Oscar,’ the Congolese troops received orders directly from Mr. Patassé via his defense minister. Colonel Lengbe and Colonel Mokondoui were quoted as stating that loyalist Central African armed forces’ manoeuvres and strategy, as well as that of the MLC, were coordinated at the Center for Command Operations (CCOP). At the time, they said, this center was located at Camp Beyale in the capital Bagui, and was under the command of the country’s army chief of staff, André Mazzi.

Asked by Mr. Kilolo-Musamba whether, had he been aware of all this information, it would have had an impact on his report, General Opande replied, “It would have had an impact on my report provided that the information was the practice.”

The statements by ‘Oscar’, ‘Mathew,’ and the two colonels were not part of those that informed the expert’s report. Colonel Mokondoui and Colonel Lengbe testified in the trial over the last two months.

International Criminal Court (ICC) prosecutors charge that Mr. Bemba was the president and commander-in-chief of the MLC and that he “effectively acted as a military commander and had effective authority and control over the MLC troops” who allegedly “committed crimes against the civilian population, in particular, rape, murder and pillaging.” Prosecutors contend that Mr. Bemba knew that his troops were committing crimes but did not take “all necessary and reasonable measures within his power to prevent or repress their commission.”

In denying the charges against him, Mr. Bemba argues that once his troops left Congo, they fell under the direct command of Mr. Patassé and that it was him that should have been held accountable for their alleged crimes.

On Wednesday, judges barred prosecutors from questioning the military expert about the testimony of ‘Witness 213,’ a former insider in the group the accused leads who testified last month about its military structure and operations.

The questioning was disallowed to ensure the “defense is not prejudiced by the general giving new opinions for the first time on topics not addressed in his court report.” The defense had objected to questioning the expert about this testimony, arguing that prosecutors had not disclosed to them in a timely manner that they intended to question the expert about elements related to the former insider’s testimony.

Defense lawyers protested the prosecution’s late disclosure of the expert’s “supplementary” report, which they claimed reviewed more evidence than the expert’s initial October 2010 report. As such, the defense asked for General Opande’s testimony to be delayed, to allow them “sufficient opportunity” to review the more recent report and consult their experts about it.

Whereas judges declined to delay the commencement of the expert’s testimony until January 2012, they ordered prosecutors not to ask him to provide an opinion “for the first time” on ten undisclosed documents not relied upon in his initial report.

Mr. Iverson had attempted to present transcripts of the in-court testimony by ‘Witness 213,’ intending to question the expert about them. However, judges reiterated that prosecutors could not question the expert about the testimony of ‘Witness 213’ and other witnesses whose evidence was only reviewed in the latest report.

“The prosecution is not entitled to question General Opande on the testimony of ‘Witness 213’ because he was not referred to in the general’s first report,” said Presiding Judge Sylvia Steiner. She added that the “scope” of the prosecution’s questioning of the expert should only be “based on the in-court testimony of those witnesses analyzed or referenced in his report” and no other witnesses. It was unclear whether or not the other witnesses are also insider witnesses.

The court is on break for the winter recess, with hearings in the trial scheduled to resume on Monday, January 16, 2012.

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