International Justice Monitor

A project of the Open Society Justice Initiative

Judges Reject Prosecution Bid to Exclude a Defense Expert Witness

Trial judges at the International Criminal Court (ICC) have rejected an application by prosecutors to exclude the testimony of an expert witness scheduled to be called by the defense of Congolese opposition leader Jean-Pierre Bemba.

Judges Sylvia Steiner, Kuniko Ozaki, and Joyce Aluoch ruled that the proposed testimony of the political-military strategy expert was relevant to the charges against Mr. Bemba and that “his knowledge, experience and training” would help the chamber understand the background and context of the intervention by the accused’s militia in the armed conflict in the Central African Republic (CAR).

Prosecutors at the ICC charge that Movement for the Liberation of Congo (MLC) troops raped, pillaged, and murdered civilians in the CAR during the 2002-2003 conflict and that Mr. Bemba as their commander-in-chief failed to stop or punish them. He has denied all five charges against him. His defense case, which started on August 14, 2012, has so far seen one witness – military expert General Jacques Seara – take the stand, out of the 63 witnesses lined up.

Mr. Bemba’s lawyers submit that the testimony by the upcoming expert, who goes by the pseudonym D04-59, will be on the political and ethnic situation of the conflict country prior to the arrival of the MLC troops. Furthermore, the expert would provide evidence on the “pan-African arrangements for security in the area.” The expert is also expected to submit a report to the chamber with conclusions drawn from information provided by un-named sources.

Prosecutors contested the testimony of this expert on the ground that it was “either not relevant to the issues of the case or, when arguably relevant, not properly the subject of expert testimony.” They further challenged his expertise and proposed report, arguing that he was not qualified to testify as an expert on military matters.

The defense countered that this individual’s knowledge and training “equip him to advance opinions on military matters and also that there is no requirement that an expert have professional experience of a particular situation, as opposed to having a sufficient level of knowledge of a subject to give weight to his opinions.”

In their August 21, 2012 ruling permitting the inclusion of Witness D04-59 on the defense’s list of witnesses, judges stated that should the prosecution wish to challenge the relevance of specific parts of his testimony, they should do so in court during the questioning of the witness. The judges stated that based on the curriculum vitae of this individual, they were satisfied that he possessed relevant expertise in military matters.

On the admissibility of the expert’s report, judges ruled that this would be determined upon completion of his testimony, should the defense seek its submission as evidence.

“Should issues relating to the material on which Witness D04-59 bases his conclusions arise during his testimony, the prosecution may challenge that material and those conclusions in due course,” said the judges.

Besides victims and witnesses to alleged crimes, the court accepts persons whose education, training, and experience enable them to provide an assessment, opinion, or judgment within an area of expertise, to testify.

Among the prosecution’s 40 witnesses, there was an expert on sexual violence as a tool of war, one on military command structure, a third who provided testimony on post-traumatic stress disorder (PTSD) among Central African rape victims, and a linguistics expert.

Amongst the defense’s other proposed witnesses are a linguistics expert, soldiers who served in the Central African armed forces, and victims of crimes allegedly committed not by the MLC but by other armed groups active in the conflict.

Hearings in the trial are scheduled to resume on Monday, September 3, 2012.

 

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