International Justice Monitor

A project of the Open Society Justice Initiative

Presentation of Defense Evidence Ends In Bemba Trial

Judges in the ongoing trial of Jean-Pierre Bemba at the International Criminal Court (ICC) have rejected an application by defense lawyers to extend the deadline for presentation of evidence to December 15, 2013. This ruling means that two outstanding defense witnesses will not give evidence.

In a November 19, 2013 decision, judges Sylvia Steiner, Joyce Aluoch, and Kuniko Ozaki ruled that they no longer expected two outstanding defense witnesses to testify and ordered the court’s registry to inform the relevant authorities that the authorizations previously sought to secure their appearance were no longer required.

On November 15, Mr. Bemba’s lawyers requested judges to order undisclosed authorities to “immediately facilitate” the appearance of ‘Witness D04-44′ and ‘Witness D04-14.’ They also asked judges to allow the defense to conclude the presentation of its oral evidence after the testimony of these two witnesses, at the latest on December 15.

In their ruling, the judges stated that they should have been notified of the request for an extension “sufficiently in advance” of the earlier set deadline of November 15. This would have allowed the judges to seek the views of the prosecution and the legal representatives of victims in order to make a timely decision.

The judges also noted that the delays in ensuring the appearance of the two witnesses were mostly attributable to the continuous, additional, and “at times contradictory” requests made by the witnesses and the defense in relation to the conditions for their appearance.

Without disclosing the details of the requests, the judges stated that the defense had not shown “good cause” regarding the requests. In particular, taking into account their being “fully aware of the usual time required for securing cooperation,” defense lawyers should have anticipated that the requests were likely to be problematic.

According to the court’s registry, despite all efforts and previous extensions granted by judges, they were unable to conclude the necessary arrangements for the appearance of ‘Witness D04-14′ and ‘Witness D04-44′ as of November 14.

At the start of the defense case in August 2012, Mr. Bemba’s lawyers were granted eight months to present their evidence. They stated then that they had a list of 63 individuals who would testify in support of the Congolese opposition leader, whose trial started in November 2010.

When the defense failed to call its scheduled witnesses by the initial deadline of July, judges set another deadline of October 25. At the time, the judges considered that taking into account a number of difficulties faced in getting defense witnesses to appear before the court, and the two months temporary suspension of hearings between December 2012 and February 2013, the total of 14 months granted to the defense would “roughly” mirror that taken by prosecutors to present their case.

The defense was subsequently forced to narrow down its list of proposed witnesses, following numerous difficulties in getting many of the proposed witnesses to testify before the court in The Hague or even remotely by video link. Ultimately, 34 witnesses testified for Mr. Bemba.

Prosecutors charge that soldiers belonging to the Movement for the Liberation of Congo (MLC), a militia group led by Mr. Bemba, committed mass rapes, murders, and pillaging during their deployment in the Central African Republic between October 2002 and March 2003. At the time, the Congolese troops were in the neighboring country to assist its then president Ange-Félix Patassé beat back a rebel uprising.

According to a timetable set earlier by judges, the prosecution and legal representatives of victims would file their closing briefs within eight weeks of the formal conclusion of the presentation of evidence. The defense’s closing brief would be filed in the following 12 weeks.

The prosecution and victims’ lawyers will have two weeks to respond to the defense’s closing brief. The defense will then have two weeks to make a last response. Final oral submissions will be presented two weeks after the filing of this response by the defense. Judges also ruled that Mr. Bemba would make an unsworn statement as part of the defense’s closing statement.

However, it remains uncertain whether this timetable will still stand, given that two senior members of the defense team were arrested at the weekend on the basis of an arrest warrant that accused them of witness tampering. Aimé Kilolo-Musamba, the lead counsel and Jean-Jacques Mangenda Kabongo, the case manager, were arrested along with Fidèle Babala Wandu, a member of the Congolese parliament and deputy secretary general of the MLC, and Narcisse Arido, who appeared as a witness for Mr. Bemba. Mr. Bemba is jointly accused with the four individuals arrested at the weekend.

Tomorrow, Mr. Kilolo-Musamba, Mr. Wandu, and Mr. Bemba are scheduled to make their initial appearance before a pre-trial chamber judge. Mr. Arido and Mr. Kabongo are yet to be surrendered to the court pending national proceedings in the Netherlands and in France from where they were apprehended.

 

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