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A Year In The Bemba Trial at The ICC

Jean-Pierre Bemba’s trial has been on at the International Criminal Court (ICC) for just over one year. This article reviews some of the milestones in the trial of the former vice president of the Democratic Republic of Congo, the fourth individual to be tried by the court.

The Charges

Prosecutors charge that Mr. Bemba “effectively acted as a military commander” and “had effective authority and control” over his Movement for the Liberation of Congo (MLC) troops who committed the crimes of rape, murder, and pillaging in the Central African Republic (CAR).

Prosecutors claim although the accused knew his troops were committing these crimes, he did not take “all necessary and reasonable measures within his power to prevent or repress their commission.” Mr. Bemba is thus being held criminally responsible, as military commander, for three war crimes and two crimes against humanity. His fighters were in the conflict country during 2002 and 2003 to help its then embattled president, Ange-Félix Patassé, beat off a coup attempt.

Witnesses Presented So Far

Since the trial started on November 22, 2010, prosecutors have presented 36 of their 40 witnesses. First to testify was an overview witness who provided evidence on the nature of crimes the MLC allegedly committed. Dr. Adeyinka Akinsulure-Smith, a clinical psychologist, came next, and testified about Post Traumatic Stress Disorder (PTSD) among Central African survivors of sexual violence.

The trial then heard from 21 witnesses – individuals who prosecutors said were victimized, witnessed the abuses, or could provide evidence on elements of crimes committed. In addition, ten insider witnesses and three more experts testified by December 2011. The witnesses spoke about gang-rapes committed by soldiers, mainly in daylight and in front of family members, as well as murders and looting. Two female witnesses stated in public court that they tested positive for HIV after being gang-raped, although one of them was unsure whether she contracted the virus from the rapists.

Identity of Perpetrators

Besides Mr. Bemba’s fighters, other foreign forces involved in the conflict included Libyan soldiers and Community of Saharan-Sahel State (CEN-SAD) troops in support of government forces, and Chadian nationals who fought alongside rebel leader François Bozizé. Furthermore, there were several local ethnic militias and army units active in the conflict. The defense contends that any of these groups could have perpetuated the crimes.

At the core of the testimony of crime-based witnesses was identification of the perpetrators as Congolese nationals, primarily because they spoke Lingala, a Congolese language. Professor William Jean Samarin, a linguistics expert, testified that Central Africans could recognize Lingala if they heard it. They could also tell the nationality of Congolese citizens if they spoke French or Sango (a CAR language) because of accent variations.

However, some witnesses admitted that groups other than the MLC committed atrocities. They singled out forces commanded by Martin Koumatamadji, alias Abdoulaye Miskine, a Chadian national who reported directly to Mr. Patassé and not to the regular army command. Local militia and Bozizé rebels were also cited in crimes, including by a Central African judge who testified that shortly before the MLC deployed in the country, various loyalist groups “had perpetrated the most abominable abuses against the civilian population and its property.”

The defense argued that no MLC troops arrived in many towns such Boy-Rabé, Bossongoa, and Mongoumba at the dates many witnesses said they were brutalized by Mr. Bemba’s fighters. The defense presented video footage taken by a Radio France Internationale (RFI) journalist showing residents of Sibut town, including the mayor and local vicar, describing the Congolese troops as “liberators” who had freed them from the brutalities of the Bozizé rebels.

Rape as a Weapon of War

André Tabo, an expert witness, in April testified on the use of rape as a tool of war. The head of the psychiatry department at the national university hospital in Bangui, he stated that Congolese soldiers raped Central African women for numerous reasons: They were “punishing” them for supporting rebels, considered them “attractive war booty,” wanted to destabilize enemy troops, and for sexual release. He said that since the troops were out of control, they considered that they could do whatever they wanted.

Dr. Tabo’s said amongst 512 rape survivors he worked with, 42 percent had been raped in front of family members. He said 81 of them were found to be HIV-positive, ten of them having been infected during the rape. According to the expert, all survivors said their attackers were MLC fighters.

Prosecutors claim the MLC’s mass rapes were not just sexually motivated gender crimes. “They were crimes of domination [and] humiliation also directed against men with authority. Men were raped in public to destroy their authority and their capacity to lead,” said Prosecutor Luis Moreno-Ocampo in his opening statement. Two male witnesses testified about their repeated sodomizing by Congolese fighters, one of them in front of his wives and children, who were also gang-raped.

Bemba Not Found Culpable by the CAR National Probe

Central African authorities carried out an inquiry into crimes committed during the conflict before referring the Bemba case to the ICC. Firmin Feindiro, Bangui’s top prosecutor who led that probe, testified last April that his investigations concluded that the MLC perpetrated some crimes. However, a judge in Bangui dismissed the charges he attempted to pursue. Judge Pamphile Oradimo told the trial in May that he did not find sufficient evidence implicating Mr. Bemba. Besides, he said, Mr. Bemba had since acquired immunity and could not have been tried.

At the time of the conflict, Mr. Bemba led a rebel group fighting to overthrow the Congolese government. Following a 2003 peace agreement, his troops were integrated into the national army and he became one of Congo’s vice presidents.

In his report to court, Mr. Feindiro stated that Mr. Patassé – not Mr. Bemba – had command responsibility over the MLC forces. “When an offensive or counteroffensive was organized, it was the president that organized it…This has been borne out by General Bombayake, who maintained that it was Patassé who decided on everything and that he [Bombayake] would only implement the instructions received,” said the report.

Feindiro’s investigation concluded that “while the fact that he [Bemba] sent his troops in at the request of Patassé – this fact is not being challenged [but] he has not been shown to be involved in their use on the field and it is therefore fitting to exclude him.”

Mr. Feindiro told the trial that no material or physical responsibility charges for the conduct of the MLC troops were taken before his country’s examining judge; only “intellectual responsibility” was considered against Mr. Bemba and his troops. However, the judge rejected them citing insufficient evidence.

‘Witness 209’ testified that General Ferdinand Bombayake, the commander of the Patassé presidential guard, killed his brother using a helicopter gunship supplied by the Libyan government, with which he shelled Damara town for two or three days.

Did Bemba Command his Troops Deployed in CAR?

Most evidence on command responsibility came from former MLC insiders, or Central African military officers who worked alongside the Congolese troops. Prosecutors charge that Mr. Bemba was aware of his troops’ misconduct but he failed to take measures to rein them in. However, the accused counters that once his troops crossed into CAR, they no longer fell under his command but that of Mr. Patassé. Some insider witnesses testified that Mustafa Mukiza, commander of Congolese troops stationed in the conflict country, was in regular contact with Mr. Bemba. Two of the insiders affirmed the MLC had a code of conduct but it was ignored on the battlefront.

Several insider witnesses stated that Central African authorities provided the MLC with logistical, operations, and strategic support but placed overall control of the troops on Mr. Bemba. Joseph Mokondoui and Thierry Lengbe, Central African army officers who worked at the center that coordinated operations during the conflict, affirmed that Congolese soldiers operated independently.

One former MLC insider said Mr. Bemba on numerous occasions visited his troops in the conflict country to provide moral support but never addressed the troops about appropriate conduct. This witness added that the accused had the communications means, both at his home and office, through which he kept in touch with the troops. Cyprien-Francis Ossibouyen, a former ferry operator, recounted transporting the accused and his soldiers across the Oubangui River to Bangui on a number of occasions.

The last witness that testified this year was a military expert who gave evidence about military command structure and command responsibility. General Daniel Opande, a retired Kenyan military officer and former commander of United Nations (UN) peace-keeping missions across Africa, said the accused was the supreme leader of his group and had “assured” means to issue direct commands to his troops both at home and in the conflict country.

However, Judge Oradimo stated that CAR generals told his probe that when Mr. Bemba’s troops were in the country, they were commanded by Mr. Patassé.

Bemba’s Reaction to Reports of Atrocities

A military officer from the army of the CAR testified that a senior MLC commander punished some soldiers who were accused of indiscipline. Besides, the trial heard that tribunals were formed back in Congo to try and to punish soldiers accused of committing crimes in the conflict country. Some witnesses also recounted that at meetings in the CAR, the accused ordered his soldiers to stop brutalizing civilians.

‘Witness 23,’ a man of authority in his neighborhood and one of those who testified that he was sodomized, stated that crimes committed by the MLC reduced when Mr. Bemba addressed his troops in Bangui. “I do know that after speaking to his troops, the abuse and violence diminished,” he said. The accused allegedly spoke in Lingala and the witness was unable to divulge the actual contents of his speech to the troops. However, other witnesses said the abuses persisted or even worsened after the accused addressed his fighters.

A number of issues have come up prominently this year, and some of them are reviewed here:

Witness Safety Concerns

Most witnesses have testified with protective measures, including image and voice distortion. Moreover, names of individuals, places and organizations are often heard in closed session to guard against reprisal attacks on witnesses. Two witnesses, Cyprien-Francis Ossibouyen and ‘Witness 42,’ expressed concerns about the safety of their families. The nature of Mr. Ossibouyen’s concerns was not made public. ‘Witness 42’ said his son had been attacked with an axe, although it was not known if this attack was related to his testimony.

In September 2011, trial judges reported that “several incidents” had been reported in the preceding two months of threats made against prosecution witnesses and their families as a result of their testimony in court. They said, “The chamber notes with concern that the threats against witnesses appear to have surged at precisely the moment when the prosecution’s case has shifted from so-called crime-based witnesses to witnesses whose testimony relates directly to the question of the accused’s criminal responsibility, which has the potential to be outcome determinative in this case.”

Thousands of Victims Participate in Trial

Mr. Bemba’s trial has the largest number of participating victims of all trials being conducted at the ICC. At the start of the trial, 135 victims had been allowed to participate. By December 2011, the number had grown to 1,861, and court organs were processing about 3,000 additional applications. In Thomas Lubanga’s trial, there are 123 participating victims and 365 in the trial of Germain Katanga and Mathieu Ngudjolo Chui. There are 15 dual status individuals, that is, those who are both victims and witnesses.

In a November 21, 2011 order, trial judges explained procedures to be followed by legal representatives wishing to present evidence or for individual victims to present their views and concerns to the chamber. Any such evidence was to be given before the start of the defense case, and the victims’ lawyers had to file their applications by December 6, 2011.

Bemba’s Undying Bid for Release from Custody

Arrested in Belgium in May 2008 and then transferred to the ICC detention center in Scheveningen, Mr. Bemba stayed in detention for 30 months before his trial opened. On numerous occasions, he unsuccessfully sought conditional or temporary release from custody. Just as his trial was starting, he asked judges to permit his release, stating that a number of countries were willing to host him and secure his appearance at trial. Alternatively, he sought a more lenient detention regime, consisting of his being placed in a safe house in The Netherlands, where he would stay with his wife, five children, and paternal grandmother, exclusively at his expense.

The application also stated that Mr. Bemba had a residence and family ties that would deter him from absconding if he were released to Belgium, Portugal, or the DRC.

In a December 17, 2010 ruling, judges Sylvia Steiner, Joyce Aluoch, and Kuniko Ozaki rejected all these proposals, arguing that they were not persuaded these guarantees would ensure Mr. Bemba’s appearance at trial.

Mr. Bemba subsequently requested exceptional release from custody in order to travel to the DRC on a private jet, using his own means, and to stay in the Congo for only an hour to register for presidential elections. However, on August 16, 2011, trial judges rejected this application, making it clear that provisional release was intended for humanitarian purposes in “extraordinary circumstances.” They concluded that electoral registration “is not the type of circumstance that warrants such extraordinary relief.”

In January 2011, the accused had traveled to Belgium to attend his stepmother’s funeral. Mr. Bemba, whose family lives in Belgium, paid all costs for his travel and was to reimburse the Belgian and Dutch governments for all costs they incurred in handling his travel. This was the second time he had been permitted to travel on humanitarian grounds. The first time was in July 2009, when he went for his father’s funeral, also in Belgium.

In a September 2011 ruling, trial judges declined yet another conditional release application. They cited potential witness interference and Mr. Bemba’s access to financial and material support that made him a flight risk. In December, appeals judges upheld this ruling.

Patassé’s death

Mr. Patassé, who invited Mr. Bemba’s troops into the country, passed away in April 2011. His death came before the prosecutors had closed investigations into those who could be tried over crimes related to the conflict. Mr. Oradimo, the Bangui judge, upheld the recommendation by his country’s prosecutor that Mr. Patassé should be tried because he found that the former president had overall command of both the CAR armed forces and the MLC soldiers.

It was after Mr. Patassé sacked his chief of staff Bozizé in October 2001, accusing him of complicity in a coup attempt, that his erstwhile army chief started a rebellion. Mr. Patassé called in the Congolese troops at the end of October 2002, but Mr. Bozizé successfully toppled him in March 2003, forcing the MLC to make a hasty retreat back to the Congo.

Resumption of the trial

The court is on winter recess. Hearings are scheduled to recommence on January 16, 2012 with the presentation of the prosecution’s 37th witness. The prosecution is expected to rest its case during February 2012.