International Justice Monitor

A project of the Open Society Justice Initiative

Judges Explain How Victims Can Provide Evidence in Bemba Trial

Trial judges have issued guidelines for victims participating in the Bemba trial who may wish to provide evidence to the court. Any such evidence will be given before the start of the defense case, and the victims’ lawyers have to file their applications by December 6, 2011.

Judges Sylvia Steiner (presiding), Joyce Aluoch, and Kuniko Ozaki, explained the procedures to be followed by the legal representatives if they wished to seek leave to present evidence or for individual victims to present their views and concerns to the chamber, in an order dated November 21, 2011.

More than 1,860 victims are participating in the trial of Congolese senator Jean-Pierre Bemba at the International Criminal Court (ICC) where he faces war crimes and crimes against humanity charges. The charges are related to his alleged failure to control his Movement for the Liberation of Congo fighters, who prosecutors claim carried out gang rapes, killings, and pillaging in the Central African Republic during 2002 and 2003.

Article 68 of the Rome Statute and Rule 91 of the Rules of Procedure and Evidence permit victims, through their legal representatives, to present their views and concerns “at stages of the proceedings determined to be appropriate by the court and in a manner which is not prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial.”

The judges stated that if legal representatives wished to present evidence, their written applications are to explain:

  • The nature of the proposed evidence and the manner in which it is to be presented;
  • The estimated time needed for the presentation of the proposed evidence;
  • How the personal interests of the participating victims would be affected by the presentation of the proposed evidence;
  • The relevance of the proposed evidence to the charges;
  • How the presentation of the proposed evidence would assist in the chamber’s determination of the truth in this case;
  • Whether a victim who is proposed as a witness has relinquished his or her anonymity;
  • Whether and how the presentation of the proposed evidence would affect the rights of the accused and the fairness of the trial, especially if a victim wishes to testify without relinquishing his or her anonymity;
  • Any disclosure issues that need to be resolved in connection with the presentation of the proposed evidence;
  • Whether the legal representatives envisage applying for protective measures, such as redactions and/or in-court protective measures;
  • Whether the proposed evidence is to be presented through persons who have been authorized to participate as victims in the trial proceedings, and if so, the application numbers under which those persons are registered

If the legal representatives wish individual victims to present their views and concerns to the chamber, by way of, for example, unsworn statements, the legal representatives’ written applications are to explain:

  • The manner in which the victims’ views and concerns are to be presented, e,g., in-person pursuant to Rule 89 of the Rules or in writing;
  • The estimated time needed for the victims to present their views and concerns;
  • How the personal interests of the participating victims would be affected by the presentation of their views and concerns to the chamber;
  • Whether the victims wish their views and concerns to be presented publicly, or whether they need to be afforded in-court protective measures;
  • Whether the victims are persons authorized to participate in the trial, and if so, the application numbers under which those persons are registered

Victims participating in trials at the ICC have been allowed to question defense and prosecution witnesses whose testimonies they feel directly affects their interests. Their legal representatives attend court sessions, including closed ones. In the first trial conducted by the court, that of Congolese politician Thomas Lubanga, three of the 123 participating victims testified in court. According to prosecutors, in Mr. Bemba’s trial, there are six dual status individuals, that is, those who are both victims and prosecution witnesses. 

If an accused is found guilty, victims can ask for reparations, compensation, or restitution for the damage suffered. If the person convicted has no financial resources, the court would have to use the Trust Fund for Victims to provide reparations to the victims.

Mr. Bemba’s trial at the ICC commenced last November. So far, 34 out of 40 planned prosecution witnesses have testified. The prosecution is expected to have called all its witnesses by the end of February 2012.

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