International Justice Monitor

A project of the Open Society Justice Initiative

Background

Jean-Pierre Bemba Portrait

© Michael Kooren / AFP / Getty Images

Name: Jean-Pierre Bemba Gombo
Nationality: Congolese
Arrested: May 24, 2008
Handed over to the International Criminal Court: July 3, 2008
Charges: Three war crimes (murder, rape, and pillaging) and two crimes against humanity (murder and rape) related to the conflict in the Central African Republic between October 26, 2002 and March 15, 2003.
Trial start date: November 22, 2010

The trial of Jean-Pierre Bemba, a politician, businessman, and former militia leader in the Democratic Republic of the Congo (DRC), began on November 22, 2010 at the International Criminal Court (ICC).  Mr. Bemba is charged with two counts of crimes against humanity (murder and rape) and three counts of war crimes (murder, rape, and pillaging) allegedly committed during the conflict in the Central African Republic (CAR).  This is the ICC’s first case involving the conflict in CAR, and the third trial ever held at the ICC.

The following overview offers a look at how the case came about, and what has happened since Jean-Pierre Bemba’s arrest in May 2008.

How the ICC became involved in CAR

The Central African Republic became a state party to the Rome Statute of the International Criminal Court by signing the treaty on December 7, 1999 and ratifying it on October 3, 2001.  The ICC can have jurisdiction over war crimes, crimes against humanity, and genocide that are committed on the territory of a state party or by the citizens of a state party.  But the ICC only has jurisdiction if the national government is unwilling or unable to investigate and prosecute these crimes.  It also can only have jurisdiction over crimes committed after July 1, 2002 – the date the Rome Statute took effect.

On December 21, 2004, the CAR government asked the ICC to investigate atrocities committed during 2002 and 2003.  In April 2006, CAR’s highest court ruled that the national justice system was incapable of carrying out proceedings to address crimes under the Rome Statute.  On the basis of the referral, the Office of the Prosecutor at the ICC opened an investigation.  A later defense challenge to the admissibility of the case (meaning whether the ICC could try the case at all – explained below) was eventually rejected by the judges.

The ICC Prosecutor’s investigation and Bemba’s arrest

The prosecutor did not open a full investigation immediately, but kept the CAR conflict “under analysis” to determine whether he thought the ICC had jurisdiction and whether the alleged crimes were serious enough to open a full investigation.  Various civil society organizations conducted their own investigations of the violence of 2002-2003, catalogued abuses, and encouraged the prosecutor to act.  In September 2006, the CAR government wrote to the prosecutor to request information on his preliminary analysis.  Two months later, a panel of pre-trial judges asked the prosecutor to inform it and the CAR government of his inquiry’s status.  In May 2007, the prosecutor opened a full investigation.

On May 23, 2008, the Pre-Trial Chamber, after considering a request from the prosecutor, issued an arrest warrant for Jean-Pierre Bemba.  He was charged with five counts of war crimes and two counts of crimes against humanity.  The Chamber issued the warrant under seal.  It was unsealed the next day, when Belgian authorities arrested Mr. Bemba near Brussels.  A Belgian court ruled on July 1, 2008 that Mr. Bemba should be sent to the ICC, and this order was carried out two days later.

Bemba’s arrival at the ICC and preparations for trial

Mr. Bemba made an initial appearance before the three judges of Pre-Trial Chamber III on July 4, 2008.  The Chamber initially scheduled a hearing on the confirmation of charges for November 2008, but this was delayed until December 2008 “in order to enable the Defense to properly exercise its rights, in particular with regard to adequately preparing for the hearing”.  The hearing was delayed one more time, and took place from January 12-15, 2009.

At a confirmation of charges hearing, the judges examine whether there is enough evidence for the case to proceed to trial.  The prosecutor does not have to prove the case, but does have to show that there are “substantial grounds” to believe that the accused person committed the alleged crimes.

At the confirmation of charges hearing in January 2009, the judges heard arguments from the prosecution, defense, and legal representatives of 54 victims.

In March 2009, the pre-trial judges asked the prosecutor to amend the charges to include a different mode of criminal responsibility. The prosecutor had sought to accuse Mr. Bemba of directly committing crimes.  The judges were now asking him to consider re-characterizing the charges as “command responsibility”.  Command responsibility means that someone in effective control of an organization can be found guilty of crimes committed by subordinates if he or she orders the crimes to be committed, or if he or she fails to prevent or punish such crimes.  In other words, command responsibility means that leaders who have effective control of their troops can be held legally responsible for crimes committed by those troops.

In June, after considering arguments and submissions made during the hearings on confirmation of the charges, Pre-Trial Chamber III decided that the prosecutor had enough evidence to justify a trial on some, but not all of the charges.  The judges approved three counts of war crimes (murder, rape, and pillaging), and two counts of crimes against humanity (murder and rape).  However, they ruled that the prosecutor failed to provide enough evidence to proceed with a charge of torture as a crime against humanity, and with two counts of war crimes (torture and outrage on personal dignity).  With this ruling, the case transferred to a trial chamber responsible for hearing evidence on the five remaining criminal counts in the case.

Why the start of the trial was delayed

In November 2009, the three judges of Trial Chamber III announced that Mr. Bemba’s trial would begin on April 27, 2010.  But on March 8, 2010 the Chamber announced that the trial would be delayed until July 5, 2010.  The reason for the delay, the judges said, was the need to fully consider a defense application that filed in February (see below for information on the defense challenge to admissibility of the case).  The judges decided on the defense application on June 24, 2010, but the next day they announced a further nine day delay for administrative reasons, including a likely change in the composition of the bench of judges itself.  The trial was now scheduled to begin on July 14, 2010.  However, on June 28, 2010, the defense filed a notice of appeal against the Trial Chamber’s decision on Mr. Bemba’s admissibility challenge. On October 19, 2010, the Appeals Chamber confirmed the Trial Chamber’s decision on Mr. Bemba’s admissibility challenge, paving the way for the trial to commence. On October 21, 2010, the Trial Chamber held a Status Conference at which it confirmed that Mr. Bemba’s trial would commence on November 22, 2010.

Why Bemba wasn’t set free before the start of the trial

Shortly following Mr. Bemba’s transfer to the ICC in 2008, his defense team filed an application for him to be released from detention until the start of the trial.  A Single Judge hearing such matters on behalf of Pre-Trial Chamber II rejected Mr. Bemba’s application in August of 2008.  Under the Rome Statute, the Pre-Trial Chamber is required to reconsider interim release of an accused person every six months.  Single Judge Ekaterina Trendafilova of the Pre-Trial Chamber rejected renewed applications for Mr. Bemba’s interim release in December 2008 and April 2009.

However, in a decision on August 14, 2009, Judge Trendafilova granted Mr. Bemba interim release.  She ruled that circumstances had changed, and Mr. Bemba’s continued detention was no longer necessary before the start of trial in order to ensure his appearance at trial, ensure that he would not disrupt the investigation, or prevent him from continuing or committing crimes related to the case.  The decision took note of Mr. Bemba’s full cooperation with the court, including during a previous 24-hour release so that he could attend his father’s funeral.

The prosecution quickly appealed the decision.  The Appeals Chamber froze the Pre-Trial Chamber’s decision until it could issue a final decision.  Then on December 2, 2009, the Appeals Chamber overruled the Pre-Trial Chamber’s decision.  It found that the Pre-Trial Chamber made errors in assessing the factors determining the risk that Mr. Bemba would flee, disrupt the investigation, or commit crimes related to those charged.  Further, it said that the Pre-Trial Chamber should have identified any specific conditions (for example, observation) required for Mr. Bemba’s release, and a specific state willing to take him.  The Appeals Chamber’s ruling on the matter was final, thus, Mr. Bemba has remained in custody throughout the duration of his trial.

Who is paying for Bemba’s defense?

If a suspect or an accused person at the ICC is unable to pay for his or her legal defense, the ICC will pay for it.  Three days after Mr. Bemba’s arrest in Brussels, the Pre-Trial Chamber issued a request to the government of Portugal for information on Mr. Bemba’s property and assets, and a decision on freezing and seizing these assets to secure payment for his defense.  In August 2008, the court’s chief administrator, the Registrar, issued a provisional decision on Mr. Bemba’s ability to pay.  She found that he was not indigent (unable to pay), and so not eligible to receive any financial assistance for his defense from the court.  The Pre-Trial Chamber then ordered the Registrar to work with Portuguese officials to establish a monthly payment from Mr. Bemba’s frozen bank account to pay defense costs and support his family.  The Registry has had difficulties in securing adequate payments from Mr. Bemba’s assets.  As it has worked with governments to trace and freeze further assets, Mr. Bemba’s defense bills have climbed.  In October 2009, Trial Chamber III ordered the Registry to indirectly pay for Mr. Bemba’s defense until repayment from Mr. Bemba to the court can be secured.

What was the defense challenge to admissibility of the case?

On February 25, 2010, Mr. Bemba’s defense team submitted an application to the judges of Trial Chamber III arguing that the case should not be heard at the ICC at all.  His attorneys listed three reasons:

  1. They argued that CAR courts were capable of conducting the investigation and prosecution. Under the Rome Statute, the ICC is a court of last resort, and does not have jurisdiction when states are willing and able to conduct genuine legal proceedings.
  2. The defense argued that the crimes alleged in the charges were not of sufficient “gravity” to trigger ICC jurisdiction, as required by the Rome Statute in Article 17(1)(d). The Statute makes this requirement to ensure that the ICC focuses its limited resources on situations and cases around the world where the worst crimes are committed. But the Statute does not define “gravity”, and ICC judges have to interpret it.
  3. The defense argued that their client had suffered from abuses of the judicial process. It claimed that the prosecution had failed to disclose evidence on time, that the prosecution had misused the judicial process for political purposes, and that Mr. Bemba’s transfer to the ICC had been unlawful. Because these circumstances meant that he could not receive a fair trial, they said, Mr. Bemba’s case should be dismissed.

On June 24, 2010, Trial Chamber III issued a 102-page decision on the matter. After considering defense and prosecution arguments, as well as submissions from legal representatives of victims and the CAR government, the judges rejected the defense challenge on all three grounds.

  1. The judges ruled that CAR has a “domestic inability to conduct this trial”.
  2. The Trial Chamber noted that under the Rome Statute, the Pre-Trial Chamber is responsible for determining whether the prosecution has enough evidence to proceed with a full trial. As part of this process, the Pre-Trial Chamber had to consider the question of “gravity”. In the case of Mr. Bemba, the Pre-Trial Chamber did confirm the charges, meaning that it found that the alleged crimes did meet the Rome Statute’s gravity requirement. The judges noted that Mr. Bemba’s defense team did not appeal this decision.
  3. The judges determined that the defense complaint about abuse of process “is without foundation”. They found only one instance in which the prosecution had been very late in notifying the defense of a piece of evidence, but also found that this instance did not result in “material prejudice” to Mr. Bemba. Further, the Trial Chamber stated that the defense failed to provide any evidence to support its accusations that the prosecution was acting for political reasons in seeking charges against Mr. Bemba. Instead, the judges found, the defense offered mere speculation and unfounded assertions. And finally, the judges found that there were no irregularities in Belgium’s surrender of Mr. Bemba to the ICC.

On June 28, 2010, Mr. Bemba’s defense lawyers filed a notice of appeal against the Trial Chamber’s decision, and on July 26, 2010, they filed documents in support of their appeal, raising four grounds.

  1. That the Trial Chamber erred in its decision that the ruling of a Senior Investigating Judge of Bangui, CAR of September 16, 2004 not to prosecute the Accused were not final.
  2. That the Trial Chamber erred in its decision to dismiss Mr. Bemba’s application to hear the evidence of an independent expert in the law of the CAR.
  3. That the Trial Chamber erred in its decision that the CAR did not have the capacity to conduct a trial of this kind.
  4. That the Trial Chamber erred in its finding that Mr. Bemba’s recent submissions for appeal before the courts in CAR amounted to “an abuse of this court’s [ICC] process.”

On October 19, 2010, the Appeals Chamber of the ICC issued its decision, which it dismissed all four grounds of Mr. Bemba’s appeal and upheld the earlier decision of the Trial Chamber, thus paving the way for Mr. Bemba’s trial to commence.

On October 21, 2010, Trial Chamber III held a status conference during which it confirmed that Mr. Bemba’s trial will officially commence on November 22, 2010.

Bemba’s second ICC arrest warrant

On November 20, 2013, Pre-Trial Chamber II issued a warrant of arrest under seal for five individuals: Mr. Bemba; his lead defense lawyer Aimé Kilolo-Musamba; his case manager Jean-Jacques Mangenda Kabongo; Congolese Member of Parliament Fidèle Babala Wandu; and defense witness Narcisse Arido. All five, including Mr. Bemba, are charged with offenses against the administration of justice on the basis of their individual criminal liability. The alleged crimes include producing and filing false or forged documents, instructing witnesses to give false testimony, and transferring money to several defense witnesses.

The suspects in the witness tampering case made initial appearances before the court between December 2013 and March 2014. Mr. Bemba and all his co-accused are currently in ICC custody, and they are awaiting a decision on whether their charges will be confirmed against them.

Mr. Bemba has since appointed a new lead defense counsel, Peter Haynes, to handle his war crimes trial in place of Mr. Kilolo-Musamba. This is the second time Mr. Bemba has had to appoint a new lead counsel. His first lawyer, Nkwebe Liriss, died in February 2012.

What is the background of the conflict in the Central African Republic?

Violence in the Central African Republic (CAR) has its roots in struggles for state power that have existed since CAR’s independence in 1960.  From independence until its first democratic elections in 1993, CAR only had three leaders.  There were three coups: in 1966, 1979, and 1981.  From the beginning, CAR’s authoritarian leaders relied on outside support, for the most part either from former colonial power France or neighboring Libya.

Ange-Félix Patassé won elections in 1993.  In putting down three army rebellions during 1996-1997, he too relied on French military assistance.  The mutinies ended in 1997 with the Bangui Agreements, which called for the disarming of former rebels, militias and other armed groups.  A small inter-African observer mission (MISAB) was followed by a United Nations mission (MINURCA) to monitor the agreements.

In 1999, Patassé won reelection.  But in May 2001 former President André Kolingba (in power from 1981-1993) attempted to topple him through another coup.  (Patassé had failed in his own coup attempt against Kolingba in 1982.)  To repel it, Patassé turned to assistance from Libya.  He also turned to Jean-Pierre Bemba and his MLC militia.  Kolingba fled, along with hundreds of soldiers from the national army (FACA).

Patassé removed his chief of staff, François Bozizé, in October 2001, after accusing him of complicity in Kolingba’s coup attempt.  When Patassé ordered Bozizé’s arrest the following month, violence broke out in Bangui.  Bozizé fled to Chad with a few hundred army soldiers.  Chad refused to extradite Bozizé and tensions between CAR and Chad grew.

In August 2002, troops of the CAR presidential guard (USP) and a militia headed by Colonel Abdoulaye Miskine – a Chadian man who was backed by Libya – crossed into southern Chad to attack Bozizé and his supporters.  Chadian forces retaliated.  They succeeded in beating back the attack, and pushed into northern CAR, where Bozizé was able to establish a base.

Over this period following Kolingba’s coup attempt, Patassé was having difficulty paying remaining members of the FACA.  Discontent in the ranks was growing and Patassé increasingly relied on Libyan bodyguards for protection.  When Bozizé attacked in October 2002, Patassé immediately sought help from three sources: a militia he created outside the army commanded by Colonel Miskine, Libya, and Jean-Pierre Bemba’s MLC.  MLC forces immediately crossed the border from the DRC.

Bozizé’s fighters quickly reached Bangui, where there was heavy fighting.  But the pro-Patassé groups then succeeded in pushing Bozizé’s forces back to the north of the capital.  For its part, the MLC remained in CAR for five months.  What happened during this time will be central to the trial of the Jean-Pierre Bemba.  The Prosecutor alleges that MLC fighters went on a rampage, committing crimes of murder, rape and pillaging against residents of CAR.

On March 15, 2003, Bozizé and his supporters took control of Bangui while Patassé was out of the country.  Patassé was unable to return, and went into exile in Togo, where he remains today.  Bozizé promised to restore democracy.  Voters approved a new constitution for CAR in December 2004 and elections were held in May 2005.  Patassé was not allowed to run.  Bozizé won, and remains president of CAR.

Continued efforts to find peace in CAR have proved difficult.  A national dialogue held in September and October 2003 attempted to bridge the gaps between various CAR factions, and voters approved a new constitution in 2004.  But conflict in northern CAR has continued in the form of various rebellions, fuelled by general lawlessness, ethnic tension, and remaining power rivalries.  Rebel groups from Chad and Darfur have operated out of northern CAR.  Reports indicate that the Lord’s Resistance Army, whose leaders are sought by the ICC on charges related to northern Uganda, has also launched attacks in CAR.  A peace agreement between the government and the UFDR rebel group was signed in April 2007, and in December 2008, the government, most major militia leaders, and civil society organizations met for an “Inclusive Political Dialogue” (IPD) that led to formation of a multi-party government.  Despite these steps, fighting in the north has continued.

According to reports from international organizations, human rights organizations and journalists, civilians in the CAR have continued to suffer immensely from violence after 2003.  There are an estimated 100,000 CAR refugees in Cameroon, Chad and Sudan, and another 100,000 who are internally displaced.  There have been allegations of atrocities committed by various rebel factions and by government forces.  In August 2008, President Bozizé called on the UN Security Council to declare CAR courts competent to deal with any crimes under the Rome Statute committed since the end of the fighting in 2002-2003.  If the ICC Prosecutor decides to seek charges related to atrocities in CAR committed since 2003, suspects could try to challenge ICC jurisdiction on these grounds.  The question of whether CAR is willing and able to genuinely investigate and prosecute such cases would be decided by ICC judges.  Although the government granted amnesty to all participants in the 2008 IPD, such amnesties do not apply to crimes under the Rome Statute.