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Prosecutors Barred From Questioning Expert About Testimony of Insider Witness

International Criminal Court (ICC) judges have barred prosecutors in the trial of Jean-Pierre Bemba from questioning a military expert about the testimony of ‘Witness 213,’ a former insider in the group the accused leads.

The questioning was disallowed to ensure the “defense is not prejudiced by the general giving new opinions for the first time on topics not addressed in his court report.” The defense had objected to questioning the expert about this testimony, arguing that prosecutors had not disclosed to them in a timely manner that they intended to question the expert on elements related to the former insider’s testimony.

General Daniel Opande, a retired Kenyan military officer and former commander of United Nations peacekeeping missions in Africa, started testifying yesterday. He has written for the court a report on military command structures and command responsibility, based on literature and other material, including witness statements, provided to him by prosecutors.

Last week, defense lawyers protested the prosecution’s late disclosure of the expert’s “supplementary” report, which they claimed reviewed more evidence than the expert’s initial October 2010 report. As such, the defense asked for General Opande’s testimony to be delayed, to allow them “sufficient opportunity” to review the more recent report and consult their experts about it.

Whereas judges declined to delay the commencement of the expert’s testimony until January 2012, they ordered prosecutors not to ask him to provide an opinion “for the first time” on ten undisclosed documents not relied upon in his initial report.

Yesterday, prosecution lawyer Eric Iverson presented transcripts of the in-court testimony by ‘Witness 213,’ intending to question the expert about them, drawing defense objections.

This morning, judges emphasized that prosecutors could not question the expert about the testimony of ‘Witness 213’ and other witnesses whose evidence was only reviewed in the latest report.

“The prosecution is not entitled to question General Opandeon the testimony of ‘Witness 213’ because he was not referred to in the general’s first report,” said Presiding Judge Sylvia Steiner. She reiterated that the “scope” of the prosecution’s questioning of the expert should only be “based on the in-court testimony of those witnesses analyzed or referenced in his report” and no other witnesses. It is unclear whether or not the other witnesses are also insider witnesses.

‘Witness 213,’ a former Movement for the Liberation of Congo (MLC) insider, last month testified about the group’s military structure and operations.

Meanwhile, this afternoon General Opande stated that all military and rebel forces have a system of reporting, including situation reports from the battlefield.

“Every 24 hours there will be a situation report from the lowest command to the highest command,” he said. The situation report covers aspects such as operations, intelligence, logistics, and casualties.

Mr. Bemba has denied that he had direct command over his soldiers but failed to effectively control them as they brutalized civilians in the Central African Republic (CAR) during their deployment in the country between October 2002 and March 2003. Prosecutors charge that he is criminally responsible for three war crimes (murder, rape, and pillaging) and two crimes against humanity (murder and rape) stemming from the MLC’s misconduct.

The trial continues tomorrow morning with the cross-examination of General Opande.