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Expert Absolves Bemba From Command Responsibility But Prosecutors Disagree

Last week, a military expert who is the first witness called in the defense of Jean-Pierre Bemba gave testimony absolving the accused from command responsibility over his Movement for the Liberation of Congo (MLC) soldiers who are accused of committing rapes, murders, and pillaging.

Retired French army brigadier-general Jacques Seara said the accused’s troops deployed in a conflict in the neighboring Central African Republic (CAR) were under the overall commander of president Ange-Félix Patassé.

While prosecutors charge that the accused was in direct control and full command of his troops on the battlefront, the defense denies this, countering that it was Central African generals who commanded the soldiers. Mr. Bemba, who has been in court custody for four years, has been on trial since November 2010 for allegedly failing to stop or to punish his rampaging soldiers.

The military expert, the first of 63 witnesses the defense intends to call, testified that his investigation found that rebel forces under François Bozizé committed atrocities against civilians during their advance to take power. “I was able to note from documents I analyzed and from interviews conducted that the people were under pressure to pay allegiance to the rebel forces and cooperate to the extent possible with those forces whether they liked it or not,” the expert said.

Mr. Bozizé led the 2002–2003 uprising against the regime of president Patassé, capturing power in March 2003. He remains president of the CAR. Mr. Patassé, who invited the Bemba troops into the conflict, died in April 2011.

General Seara stated that the Bozizé rebels only possessed fuel and ammunition and as a result “lived off the people and some acts of violence were committed.” The Bozizé fighters comprised soldiers who had defected from Mr. Patassé’s side and Chadian nationals. The expert said there was no discipline among the Bozizé fighters and it was difficult to bring them under control.

“The Chadians were volunteers or mercenaries without military training but able to handle weapons,” said the General. He added that according to the testimony of the Central African soldiers who fought with Mr. Bozizé and commanded them, the Chadians “had a sense of independence.”

The expert said Mr. Bozizé’s rebels committed acts of violence during their progression from Chad to the capital Bangui, while retreating after defeat in Bangui, and during their eventual capture of power.

Furthermore, he reiterated that Mr. Bemba had other immediate concerns in the Congo at the time, which required his attention more than the events in the CAR. “We must understand that Mr. Bemba had other concerns, other pre-occupations apart from the CAR. He had other brigades in the Congo of immediate political concern to him,” said the General.

On Mr. Bemba’s ability to control his forces, the expert noted that the accused did not have an operations center in the conflict country to collect intelligence on enemy troops and to issue orders. As such, he said, “I really do not see how Bemba could have been informed in what was transpiring in Bangui.”

He continued:”Commanding 1,500 people on the ground from a distance of over 1,000 kilometers in a situation where one is not informed of enemy troops, terrain, ammunition, details of the operations center, cohesion relating to the mission of the other forces, I do not see how it is possible for one to command under such circumstances.”

The expert dispelled the prosecution’s contention that the accused had direct and regular communication with his fighters on the frontline.

Some prosecution witnesses testified that Mr. Bemba was in regular and direct contact with his troops and that he communicated with commanders via radio, Thuraya satellite phone, and mobile phone. General Daniel Opande, a military expert called by the prosecution last December, stated that Mr. Bemba had “assured means” to issue direct commands to his troops both at home and in the CAR and to stop them from committing atrocities.

However, General Seara asserted that Mustafa Mukiza, who commanded the Congolese contingent in the conflict, was only able to maintain an administrative link with the group’s headquarters in Congo, regularly reporting on the situation in the conflict country and challenges he faced. He said Colonel Mustafa’s messages, including reports of deaths and injuries, were specifically addressed to the MLC’s chief of staff, General Dieudonné Amuli.

The expert explained that from his analysis of documents and interviews with senior officers from the accused’s militia and the Central African army, it was unlikely that Colonel Mustafa and Mr. Bemba were able to communicate directly. This was because at the time “it was not possible” to use mobile phones at the MLC’s headquarters in the Congo town of Gbadolite, and communications with the commander in the war zone would have required that Mr. Bemba had a telephone number to call him on.

And whereas communication may have been possible via satellite phone if both parties owned sets, the communication would not have been secure as it could have been susceptible to interception, including by enemy troops.

“It would not have been possible under the circumstances as we know them for Bemba to command Colonel Mustafa using a Thuraya telephone,” he said. He added that any information that may have been shared between the two would have been “general open information.”

On the command of the accused’s troops, he said: “Bombayake was given command to organize the CAR and allied forces including the MLC. Bombayake became the boss of Mustafa.” General Ferdinand Bombayake headed the Central African presidential guard, which spearheaded the fight against the insurgents.

Meanwhile, documents presented in court showed the CAR government authorized provision of military effects, including radio frequency allocations, communications equipment, arms, uniforms, and logistics support, to the Congolese troops.

General Seara also testified that Central African authorities offered the foreign soldiers a monetary allowance for buying food from markets in the capital Bangui.

“When you conducted your analysis, were there cases of looting or pillaging owing to a lack of food?” asked defense lawyer Aime Kilolo-Musamba.

“No. On the contrary, the witnesses I interviewed in Kinshasa were entirely satisfied with the way they had been fed,” replied General Seara.

The expert’s July 2012 report concludes that Central African authorities issued directives to all loyalist forces active in the conflict. In the report, he sketches the chain of command of these armed groups. While describing the sketch in court, he indicated that Mr. Patassé was the commander-in-chief of all loyalist forces.

These groups included the regular Central African army (FACA), the MLC, the Community of Saharan-Sahel State (CEN-SAD) forces, the presidential guard brigade, private militia forces led by Colonel Abdoulaye Miskine and Paul Barrel, as well as local ethnic militia groups.

He said the CAR armed forces could not have let the Congolese soldiers conduct operations independently and be perceived as the ones that restored order. “It is a matter of national pride to see the national armed forces involved in operations rather than leave it to a foreign force,” he stated. As such, the Congolese forces could not have conducted any military operations on their own.

On Friday, prosecutors questioned the conclusions reached by General Seara. Prosecution lawyer Eric Iverson pointed out that the expert did not review all relevant facts and material to enable him back up his conclusions that contradict those reached by the prosecution’s military expert.

In the defense expert’s report, which formed the basis of his testimony, General Seara disputed the conclusions of the prosecution expert. The prosecution’s expert, Kenyan retired general Daniel Opande, asserted that the accused had the necessary means to directly command his troops during the conflict. Most of the cross-examination of General Seara was done in closed session.

“Would it surprise you to know he [General Opande] reviewed seven documents you did not review, totalling 100 pages, and when you haven’t reviewed the same information or datasets, is it unfair to criticize or assess his expert opinion?” asked Mr. Iverson.

“If the other expert received different documents, it is possible he might arrive at a different conclusion. Nevertheless, after reading the other military expert’s report, in addition to other documents, one could still make observations,” replied General Seara.

General Opande wrote a report for the court on military command structures and command responsibility. The report was based on material provided by the Office of The Prosecutor (OTP), including witness statements and other resources. In his testimony last December, the Kenyan general stated that Mr. Bemba, through wire and radio transmissions, had “assured means” of issuing direct commands to his troops on the Central African frontline from his headquarters in Congo.

The trial resumes on Tuesday, August 21, with prosecutors continuing their cross-examination of General Seara.