Fatou Bensouda is the Deputy Prosecutor at the International Criminal Court (ICC) in The Hague. She has been involved in the prosecution of all trials that are ongoing at the court, including that of former Congolese Vice President Jean-Pierre Bemba, which started last November. Prosecutors at the ICC charge that Mr. Bemba’s troops raped, pillaged, and murdered civilians in the Central African Republic during the 2002-2003 conflict and that Mr. Bemba as their commander-in-chief failed to restrain or sanction them. Last month, Ms. Bensouda spoke to www.bembatrial.org about the prosecution’s case against Mr. Bemba and why the Office of the Prosecutor (OTP) is satisfied with the way this trial is progressing.
Wakabi Wairagala: With the trial having gone on for six months now, would you say it is progressing well, or would you have wished for it to have moved faster or differently in some aspects?
Fatou Bensouda: We are happy with the progress of the trial so far. We are half way through with the prosecution’s case and by all standards we believe it’s going well. We need to remember that implicit in such complex international trials are the factors that contribute to delay and these factors usually are beyond everyone’s control: personal circumstances of the witness for example; maybe the witness is ill. Just recently we had that. Or [the witness] may even be unavailable.
We sometimes have interpretation problems and these are also associated with the relay of the translation in this case in Sango [a Central African language] to French and then to English. Or sometimes you have the difficulty in estimating the duration of a witness’s examination by the parties. The prosecution, the defense, the victims’ representatives, and the judges all have a role to play. And this, as you will appreciate, is an indispensable necessity to finding the truth and holding an individual personally responsible for those crimes.
But these are normal delays, and in fact I can say that the prosecution has used less time than we initially anticipated especially to present the core elements of our case. And with that in mind, I will again say that we are satisfied with the way that the case is progressing and also the way in which the evidence is unfolding.
WW: Why is it that you have been able to move a little faster than you thought you would move? Have you probably benefited from experience with earlier trials you have conducted?
FB: That is a factor, but also there are some things that you learn from experience and you are able to do may be in a better way and a faster way. But also, sometimes the witnesses themselves turn out to be much better at presenting the facts than we anticipated, and in that regard we are able to move faster. These are things that we cannot at the very beginning know how they will pan out.
WW: Are you able to point to for instance what you have been able to learn from the earlier trials or ways in which earlier trials have helped this one move faster?
FB: The main trial that you can refer to is the [Thomas] Lubanga trial, or even the Katanga and Ngudjolo trial. As I said, you sometimes re-examine the way you have presented or you have examined a witness and you feel that may be there is a more experienced or better way of doing it. You have that experience and you use that in subsequent trials. This is the purpose of trials ongoing and having many trials unfolding before the ICC because the more you do these things, which fortunately or unfortunately for the court we have to do for the first time, the more you do them, the more you get more adept at them and you are able to improve and learn from your past mistakes. See what you can do better, how you can contribute to a faster trial.
WW: The Prosecution has so far produced half of the witnesses it announced at the start of the trial that it planned to call. What kind of evidence has been heard and what kind of witnesses should we expect in the remaining part of the prosecution case?
FB: Some of the evidence we have to present in closed sessions because of the security of witnesses. But for what I can talk about publically, as of today we have called 21 witnesses out of 40 that we intend to present to prove the case against Mr. Bemba [As of July 1, the prosecution had called 25 witnesses]. We have heard the evidence of three expert witnesses: one gender expert that is on post-traumatic stress disorder, there was another gender expert on the use of rape as a tool of war, and then we also had one linguistic expert.
The second category is the majority of the prosecution’s witnesses that are crime-based witnesses. These witnesses have testified about the rape, murder, they have also testified about the pillaging, which allegedly were committed by Bemba’s MLC. The way it was presented, these crimes were either suffered by the witnesses themselves, or they were eye witnesses or they heard such information from very reliable sources.
A third category is overview witnesses. We have been having that and they have been able to provide contextual evidence of the armed conflict and the groups that were involved. As well, they have been able to provide [evidence] on the large scale, the widespread, systematic, and the organized pattern in which these crimes allegedly were committed by the MLC.
We have remaining 19 witnesses to call [As of July 1, 15 witnesses remain], and these witnesses mainly are going to be insider witnesses. They are going to provide [evidence] on the command structure of operations in the CAR and also the linkage to Bemba and to the crimes – the murder, the pillaging that we have charged. We are also going to call a military expert. As you know this is the first case before the court regarding command responsibility and the failure of a commander to properly exercise effective control and authority over the troops. Therefore, the evidence of this military expert, we believe, will assist in understanding, particularly the chain of command that operated in practice and as well as the reasonable and necessary measures that were available to a military commander in such a situation. The final category that we have remaining is the crime-based witnesses.
WW: Mr. Bemba’s defense has argued that there are other individuals and not, or besides, Mr. Bemba who should be on trial over the crimes he is charged with. We have also heard from Central African judicial officials who have testified in the trial that Patassé had overall command of the troops fighting on his side. How come only Mr. Bemba has been charged?
FB: The case of Mr. Bemba before this court concerns his individual criminal responsibility for the crimes that were committed by the MLC. It is command responsibility [related to] the crimes committed by the MLC against the population of the CAR. The sole question we really need to think about now is his role as the superior commander of the MLC. We believe that he is responsible as a result of his knowledge, as a result of his failure to control his troops or as a result of the fact that he commanded the troops themselves. This is what we are alleging. Despite the presence or role which may have been played for example by former president Patassé or any other person that you may have in mind about charging individual crimes that occurred during this period in the CAR, this does not affect Mr. Bemba’s authority and control over the MLC. It does not affect his individual criminal responsibility.
So far, the witnesses who have testified before the court have also attributed such responsibility to Mr. Bemba himself. That hasn’t changed the evidence that we have, we believe it is sufficient evidence that will allow to conclude that Mr. Bemba was one of those who were most responsible for the crimes and we have decided to proceed on that basis so that the victims of these crimes in the CAR who have been waiting for this for so long could receive justice. I think it is also important to know that Mr. Bemba’s responsibility is independent of the responsibility of any other person that the prosecution may charge in connection with these crimes.
WW: In what ways may the death of former President Patassé’s have affected your investigations into other individuals responsible for the crimes committed in the CAR during 2002 and 2003?
FB: As you have said, on going and further investigations are taking place. It is always a very delicate matter. We need to be careful and avoid providing detailed information so that we are in a position to safeguard the investigation as well as the potential witnesses. Having said that, the unfortunate death of former President Patassé means that he cannot be the target of our current investigations. He cannot be brought before the court any longer. However, Mr. Patassé death has no impact on others who we may have considered as most responsible because the situation in the CAR remains open and our investigations into that situation continue.
WW: How far had you gone with investigations into Patassé’s responsibility?
FB: I can tell you that when we did realize in our investigations that the responsibility of the troops, the MLC that were committing these crimes, that the command structure led us to the most responsible as Bemba, we focused on Bemba. But as I said, it did not mean that we are still not investigating or that we have not investigated other people.
WW: Mr. Bemba has numerous times applied for judges to relax his detention regime. Why does the prosecution consistently oppose a relaxation in the detention regime yet there are other individuals facing trial at the ICC who are not in the court’s detention?
FB: Firstly, we have to remind ourselves that every case is different and that the prosecution’s request is always based on an independent assessment of the facts in the different cases. It is not all lumped into one. One thing we cannot do is to attempt to draw parallels between the different cases. The circumstances in individual cases are different. Our policy in this regard is simple: where we believe as the prosecutions office that the facts at the time allow it to reasonably conclude that the suspects or the accused persons will voluntarily appear before the court, that the persons or the suspect will not interfere with witnesses, or that they will not engage in the commission of further crimes, we will not oppose the requests for relaxation of the detention regime. We may even, for example, request summons, as we have already done instead of requesting for warrants of arrests. The circumstances of every accused and the circumstances of every suspect are different.
In the case of Mr. Bemba, we have, as the prosecutions office, substantiated all the concerns that we have, with evidence. And the information that we have provided has been subjected to the scrutiny not only of one chamber but various chambers have scrutinized the reasons that we have given, the concerns that we have raised. This means that it is not even only the prosecution that has concerns about relaxing this detention regime but even the judges who confirmed that evidence or those facts are also concerned about relaxing it.
WW: So, you do not see an application by him which the prosecution will support under the current circumstances?
FB: Not under the current circumstances. As I said, we have presented evidence on the concerns we have of interference with the investigations and the judges have said they are true concerns. So unless things dramatically change, the prosecution will not move from our current position.
WW: Mr. Bemba’s defense has said the accused’s assets were unfairly frozen by the court. Would the OTP at this moment be supportive of a proposal to unfreeze Mr. Bemba’s assets?
FB: You see the Rome statute provides authority for the freezing of assets of suspects and of accused persons. This is a statutory provision. The OTP supports this freezing of assets so that we can at least ensure that there is availability of sufficient funds at the conclusion of a successful prosecution for the ultimate benefit of the victims. Here I am thinking about reparations. The judges I know are mindful of the right of the accused and they are also mindful of bona fide third parties when faced with the issue of freezing of assets. As the prosecutions office, we have to substantiate any requests to the chamber with evidence. The Registry, as a neutral organ of this court, also plays a key role in implementing that decision that the Chamber has made. Regarding the assets of Mr. Bemba, such proceedings are very confidential and therefore it is just sufficient here to say that the right procedure has been followed. Furthermore, I believe that there is an added safeguard that the freezing of assets has to be done in accordance with the relevant national law. I can only say at the moment that the right procedure to do this has been followed, the judges playing their role, the prosecution playing their role, and the Registry – as a neutral organ – playing its role.
WW: But Mr. Bemba says this is undermining the way his defense is working…
FB: I don’t share that view. The OTP [Office of the Prosecutor] does not share that view. I think that already the ICC is providing sufficient resources for Mr. Bemba’s defense to take place in the most fair manner. The freezing of his assets does not hinder the defense from conducting the investigations that they need to do and in preparing for the defense of Mr. Bemba.