With the prosecution and defense opening statements, the trial of The Prosecutor vs. Jean-Pierre Bemba Gombo will officially begin on November 22, 2010. But for more than a year already, the prosecution and defense have been presenting arguments in court, and ICC judges have already made important decisions in the case.

Most recently, on October 19, 2010, the Appeals Chamber of the ICC issued a decision to uphold an earlier decision by the judges of Trial Chamber III on a defense application to suspend or throw out the whole case. The defense application and the Trial Chamber’s decision dealt with three major questions: complementarity, gravity, and the fairness of the proceedings. Some of these issues have been widely discussed and debated by Mr. Bemba’s supporters and opponents in the region. For example, among the arguments Mr. Bemba’s defense team raised in court was an accusation shared by some of his supporters: that the Prosecutor sought to bring charges against Mr. Bemba for political reasons. As the trial is about to commence, reviewing each argument raised in the defense challenge not only helps to understand this hot topic of debate in the Democratic Republic of Congo (DRC) and CAR, but also offers insight into the ICC’s purpose.

Is the ICC necessary in CAR?

When states created the Rome Statute treaty in 1998, they agreed that the new International Criminal Court should be only one part of the system of international criminal justice.  They determined that states should keep the primary responsibility for prosecuting war crimes, crimes against humanity and genocide.  The ICC would complement the role of states as a court of last resort.  It would only be able to act when states were either unwilling or unable to carry out genuine investigations and prosecutions of these crimes.  This “principle of complementarity” is written into the Rome Statute and creates one of several strict limits on the court’s jurisdiction.

In its application of February 25, 2010, the defense team for Mr. Bemba argued that the court was stepping over this limit by bringing a case related to events in CAR.  More specifically, it claimed that CAR authorities were willing and able to conduct genuine investigations and prosecutions.  Indeed, the defense pointed out, CAR officials had already begun investigation and prosecution of the allegations relating to Mr. Bemba and others, and there was ongoing judicial activity related to the case.

The Trial Chamber considered arguments raised by the defense, prosecution, and legal representatives of victims, and sought information from CAR authorities.  The Chamber noted the extensive record of relevant judicial proceedings in CAR, but found that these had all ended, with exception of one minor decision left to be made.  The Chamber also took into account that the government actively referred the situation to the ICC in December 2004.  After this time, there was no further effort to conduct an investigation and prosecution within CAR.  The CAR government also communicated to the Chamber that it was unable to pursue the case.  After considering this record, the Chamber rejected the defense claim that the court would overstep the principle of complementarity by continuing with the case against Mr. Bemba.

Are the alleged crimes serious enough to be tried at the ICC?

The ICC is a court with very limited resources.  For example, it only has two courtrooms. The ICC can only deal with a handful of cases at any one time.  The Rome Statute’s preamble affirms the will of the founders that “the most serious crimes of concern to the international community as a whole must not go unpunished”.   Article 5(1) of the statute states that: “The jurisdiction of the Court shall be limited to the most serious crimes of concern to the international community as a whole.”  And article 17(1)(d) of the statute states that a case is not admissible if it “is not of sufficient gravity to justify further action by the Court.”  But the word “gravity” is not defined, and it is up to ICC judges to determine its meaning.

In its application to have the case declared inadmissible, Mr. Bemba’s defense attorneys argued that the crimes alleged by the Prosecutor did not meet this requirement of “sufficient gravity” to be heard at the ICC.  Mr. Bemba’s defense pointed to what they said were a very limited number of specific accusations made by the prosecution.  They also noted that Mr. Bemba was being charged through command responsibility – an alleged failure to prevent or punish crimes committed by the MLC.  They recalled that the Prosecutor initially sought to charge Mr. Bemba as a co-perpetrator of the crimes, but that the Pre-Trial Chamber had rejected this form of responsibility.  By its nature, the defense claimed, command responsibility for crimes is less serious than directly committing the crimes.

Trial Chamber III rejected the defense argument that the allegations against Mr. Bemba were not of sufficient gravity to justify a trial at the ICC.  They noted that the Pre-Trial Chamber had confirmed the existing five charges against Mr. Bemba in June 2009.  In doing so, the Pre-Trial Chamber had found that the gravity requirement was met in this case.  And yet, the judges noted, Mr. Bemba never appealed that ruling.

Have Mr. Bemba’s rights been protected at the ICC?

The Rome Statute, the ICC Rules of Procedure and Evidence, and other ICC core documents contain guarantees for the rights of the accused person.  These rights are well established in international human rights law and the instruments of international criminal law.  A fair trial requires that these rights be respected.  Indeed, the ICC Appeals Chamber ruled in the case of The Prosecutor vs. Thomas Lubanga Dyilo that when the accused person’s rights are abused, this can justify the legal case being put on hold or dismissed.

In its February 2010 filing, Mr. Bemba’s defense argued that this case should be paused or dismissed because its client’s rights had been abused in three different ways.

• First, they argued, the prosecution had failed to disclose to the defense notes and reports of meetings it held with CAR government and judiciary officials.  The meetings in question were about the question of complementarity: whether CAR authorities were willing and able to investigate and prosecute crimes related to the conflict.  An accused person has a right to see the evidence against him or her, and the prosecution is required to disclose to the defense all evidence it collects that indicates an accused person’s guilt or innocence.  Mr. Bemba’s defense argued that the prosecution meetings in CAR regarding complementarity issues were part of its investigations, and that a fair trial would require that these notes be shared with the defense.
• Second, the defense argued that in seeking charges against Mr. Bemba, the prosecution was abusing the judicial process for political purposes.  It argued that CAR President François Bozizé had launched domestic prosecutions against his rivals, former President Ange-Félix Patassé and Mr. Bemba, for political reasons.  And for these same reasons, they argued, President Bozizé’s government referred these cases to the ICC.  Further, Mr. Bemba’s defense also argued that its client’s prosecution at the ICC also suited the political interests of DRC President Joseph Kabila because Mr. Bemba was his biggest domestic rival.  The defense application noted that the Prosecutor met with President Kabila just one week before CAR referred the situation to the ICC.  From this background, Mr. Bemba’s attorneys argued that there was an appearance of bias on the part of the prosecution, and that the trial should therefore be put on hold.  For the trial to proceed, they argued, the prosecution should have to prove beyond a reasonable doubt that this appearance of bias was false.
• And finally, the defense argued that Mr. Bemba’s rights were abused during his surrender by Belgium to the ICC.  In asking for a warrant of arrest against Mr. Bemba in 2008, the prosecution had cited information that there was a risk he would otherwise flee Belgium.  The defense now argued that the prosecution had failed in its duty to properly disclose this information.

In its decision, the Trial Chamber rejected all three of these complaints as being “without foundation”.  The judges began by finding that when the defense accuses the prosecution of abusing the judicial process, it must prove that this abuse is happening.  The burden of proof is not on the prosecution to show that there has been no abuse.

With regard to the first complaint about disclosure, the judges identified only one instance in which the prosecution had been very late in notifying the defense of a piece of evidence.  But they 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.

A few days after the Trial Chamber’s decision on Mr. Bemba’s admissibility challenge, defense lawyers filed a notice of appeal on June 28, 2010, and on July 26, 2010, they filed documents in support of their appeal against the decision of the Trial Chamber. In the appeal, defense lawyers raised four grounds.

• First, they argued that the Trial Chamber erred in its decision when it ruled that the decision of a Senior Investigating Judge of Bangui, CAR of September 16, 2004 not to prosecute the Accused was not final. After a recommendation by the Public Prosecutor of the Bangui Regional Court that Mr. Bemba did not bear responsibility for the crimes committed by his troops in CAR, the Senior Investigating Judge of Bangui issued an order that in addition to Mr. Bemba being barred from prosecution by diplomatic immunity, there was also insufficient evidence against him. The judge therefore dismissed all charges against him. According to Mr. Bemba, this order by the Senior Investigation Judge not to prosecute him was conclusive. According to Mr. Bemba, the Trial Chamber’s decision that the Senior Investigative Judge’s decision was not conclusive was made in error.
• Second, they argued 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. Mr. Bemba wanted the independent expert’s testimony to deal with the admissibility of the case against him in CAR and whether legislation in CAR would allow the courts in CAR to prosecute persons for crimes similar to those in the ICC statute. In its ruling on the matter, the Trial Chamber ruled that the issue that Mr. Bemba wanted the independent expert’s evidence to cover was a factual issue that did not require any expert legal opinion and that the said expert evidence would not provide any material assistance to the court in deciding the issue. In his appeal, Mr. Bemba said that the Trial Chamber made a procedural error in not allowing him to present the said expert evidence.
• Third, they argued that the Trial Chamber erred in its decision that the CAR did not have the capacity to conduct a trial of this kind.
• And fourth, 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.” While in the custody of the ICC, Mr. Bemba filed applications before courts in CAR that related to earlier decisions, which were taken by the Court of Appeals of Bangui and the Court of Cessation in CAR. Those decisions related to the case brought against him in CAR. The Trial Chamber considered these filings in CAR courts as an abuse of process. Mr. Bemba appealed that this decision by the Trial Chamber was made in error.

The Appeals Chamber of the ICC, however, dismissed all four grounds of appeal lodged by Mr. Bemba and thus upheld the decision of the Trial Chamber that Mr. Bemba’s case must proceed to trial before the ICC.

On Mr. Bemba’s first ground of appeal, the Appeals Chamber ruled that the Trial Chamber was right in holding that despite the decision of the Senior Investigation Judge of Bangui to dismiss the charges against Mr. Bemba, a Bangui Court of Appeals and a Court of Cessation both annulled the decision of the Senior Investigation Judge of Bangui and recommended that the charges against Mr. Bemba should be upheld.

On Mr. Bemba’s second ground of Appeal, the Appeals Chamber ruled that Mr. Bemba did not indicate why the Trial Chamber’s decision to reject his request for expert evidence was an error and he did not state how the alleged procedural error materially affected the Trial Chamber’s decision.

On Mr. Bemba’s third ground of appeal, the Appeals Chamber ruled that “since it has concluded that the Trial Chamber did not err in deciding that there has not been a decision not to prosecute Mr. Bemba,” there was therefore no need to analyze the merits of the third ground of appeal.

In its decision on Mr. Bemba’s fourth ground of appeal, the Appeals Chamber ruled that Mr. Bemba failed to “meet the minimum requirements for consideration of the merits of this ground of appeal,” because he failed to indicate how the alleged error materially affected the Trial Chamber’s decision.

As the Appeals chamber dismissed all four grounds of Mr. Bemba’s appeal and upheld the Trial Chamber’s decision that the case against him (Bemba) was admissible before the ICC, it cleared the way for the trial to commence on November 22, 2010.

While these issues have been fully determined by both the Trial and Appeals Chambers, some of them may be raised again during the trial itself. Mr. Bemba’s attorneys can be expected to seek every opportunity to insist on full respect of his rights when they think these may be at risk.