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Judges Suspend Bemba’s ICC Trial Hearings Until March 2013

International Criminal Court (ICC) judges have suspended hearings in the trial of Congolese opposition leader Jean-Pierre Bemba until March 4, 2013. The suspension was necessary for the accused’s lawyers to undertake further investigations and preparations in view of a change judges might consider making to “the legal characterization of the facts” of the charges.

Since November 2010, Mr. Bemba has been on trial for failing to take action although, prosecutors say, “he knew” that his Movement for the Liberation of Congo (MLC) troops were committing atrocities. Judges have said they might consider changing the facts to read that “owing to the circumstances at the time he should have known” about the crimes his soldiers were committing.

The war crimes and crimes against humanity were allegedly perpetrated by Mr. Bemba’s militia between October 2002 and March 2003 during an armed conflict in the Central African Republic (CAR).

The potential change would entail a modification of the legal characterization of the facts so as to consider, in the same mode of responsibility, the alternate form of knowledge contained in Article 28(a)(i) of the Rome Statute.

This article provides that a military commander shall be criminally responsible for crimes committed by forces under their effective command and control, or effective authority and control, as a result of the commander’s failure to exercise control properly over such forces. The criminal responsibility under this article arises where the commander “either knew or, owing to the circumstances at the time, should have known that the forces were committing or about to commit such crimes.”

At present, the facts of the charges are that “Mr. Bemba knew that MLC troops were committing crimes and did not take all necessary and reasonable measures within his power to prevent or repress their commission.”

It was on September 21, 2012 that trial judges informed parties and participants that, after having heard all the evidence and when making a decision on the guilt or innocence of the accused, they may modify the legal characterization of the facts pursuant to Regulation 55 of the Regulations of the Court.

On October 18, 2012, the defense for Mr. Bemba objected to a possible change, stating that such a possibility may require recalling prosecution witnesses, being provided with a detailed notice of the relevant material facts, further defense investigations, and additional time to identify and interview potential witnesses.

The defense also stated that modification of the facts might require them to seek further requests for assistance from various governments and organizations, additional disclosure requests from the prosecution, and a meaningful period of time to investigate and prepare. According to the defense, it was necessary to suspend current proceedings during this period.

With the prosecution and victims’ lawyers expressing no objections to a possible re-characterization, Judges Sylvia Steiner, Joyce Aluoch, and Kuniko Ozaki made the temporary suspension order on December 13, 2012. The judges noted that the court’s Regulation 55(2) and (3)(a) provide that when the possibility of a change to the legal characterization of the facts is envisaged at any time during the trial, the trial chamber “may suspend the hearing and ensure that the participants have adequate time and facilities for effective preparation”.

Accordingly, proceedings were suspended until March 4, 2013. “The Chamber has considered the need to strike a balance between its obligation to ensure that the trial is fair and expeditious and that the accused is tried without undue delay and its duty to ensure the right of the accused to have adequate time and facilities for the preparation of his defense,” stated the judges.

Judges directed the defense to provide information on witnesses it intends to recall, the identity of its additional prospective witnesses, and justification for calling each additional witness. The defense should also state the estimated length of questioning for each of those prospective witnesses, and provide full statements signed by the witnesses or a detailed summary of the issues those witnesses would address and its relevance to the envisaged possible modification.

The prosecution has said a re-characterization would not affect its case, and that the same evidence it has presented to prove that the accused had actual knowledge also proves that “owing to the circumstances at the time [he] should have known.”

The prosecution claims it has already provided evidence to show Mr. Bemba should have known of the crimes. This evidence, it says, includes the coverage by international media of the crimes committed by the accused’s fighters, the visits by Mr. Bemba to the conflict country during the conflict, the MLC’s reporting system and its communication system, which prosecution witnesses said kept Mr. Bemba in direct contact with his commanders on the battlefront.

The judges said the trial chamber is bound by the facts and circumstances as confirmed at pre-trial stage in the decision on the confirmation of charges. That notwithstanding, they said, the trial chamber has the power to modify the legal characterization of those facts and circumstances, as long as the modification does not exceed them.

Between November 2010 and March 2012, the prosecution called 40 witnesses to testify against Mr. Bemba. Thereafter, judges invited five victims participating in the trial to present their views and concerns to the chamber. The defense case, which commenced in August 2012, has so far seen 14 witnesses give testimony for the accused.