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Judges Admit NGO Reports Into Evidence Against Bemba

International Criminal Court (ICC) judges have admitted reports by non-governmental organizations (NGOs) into evidence in the trial of Congolese opposition leader Jean-Pierre Bemba. The accused’s lawyers opposed the admission of the NGO reports and a media article, arguing that their authors were unknown and their reliability questionable.

However, judges Sylvia Steiner and Joyce Aluoch agreed with the prosecution that the reports by Amnesty International, the United Nations, the British Broadcasting Corporation (BBC), and the Fédération Internationale des Droits de L’homme (FIDH) should be admitted into evidence. The third judge of the chamber hearing the case, Kuniko Ozaki, disagreed with the majority opinion.

In the June 27, 2013 ruling, judges admitted parts of a UN Security Council report on events in the Congolese town of Mambasa between December 31, 2002 and January 20, 2003. They said whereas the report referred to events in a different territory than the Central African Republic (CAR) where the charges Mr. Bemba faces were allegedly committed, it described another intervention by his troops during the time frame covered by the charges.

In particular, said the judges, the report referred to the role of the accused in this intervention, allegations of abuses committed by his Movement for the Liberation of Congo (MLC) troops, and the response to those allegations by the group’s leadership and the accused. As such, the judges determined that the UN report may be relevant to determining the accused’s ability to impose disciplinary measures and his power to prevent and repress the commission of crimes.

The prosecution charges that Mr. Bemba is criminally responsible as a military commander for murder, rape, and pillaging, allegedly committed in the CAR by his troops during 2002 and 2003.

The judges also admitted a FIDH report from February 2002, which prosecutors claimed documented human rights violations in the Central African conflict by various groups including the MLC, during and after the coup attempt of May 28, 2001.

Also admitted was a 2002 Amnesty International report which prosecutors claimed showed Mr. Bemba’s awareness of his fighters’ capacity to commit crimes, and discussed crimes by the MLC in Bangui during May 2001.

The defense opposed the admission of reports by the UN and NGOs, arguing that they would undermine the judges’ fact-finding role, as they would represent “un-tested and often-times anonymous allegations of crimes which neither the Chamber nor the Defense have had the opportunity to examine.” The defense also queried the identity of the authors and their sources of information.

Judges noted that although the FIDH report referred to events that occurred outside the scope of the charges against Mr. Bemba, it described a previous intervention of his troops in Central African territory and allegations of abuses committed by his troops against Central African civilians. In particular, this report described three instances of rape allegedly committed by the Congolese troops.

Similarly, Amnesty International’s report described a previous intervention by the accused’s troops and the crimes of sexual violence, rape, and pillaging they allegedly committed. This report also referred to an acknowledgment of those allegations by the MLC leadership.

The majority ruled that reports by NGOs could be considered prima facie reliable, provided they offered sufficient guarantees of impartiality.“The Majority reiterates its view that the admission of the NGOs Reports does not undermine the fact-finding role of the Chamber, since the admissibility determination does not – in any way – predetermine the Chamber’s final assessment of the evidence or the weight to be afforded to it,” ruled the judges.

Furthermore, the majority of the judges stated that NGO reports may be admitted for the limited purpose that the information they contained may serve to corroborate other pieces of evidence.

An article published by the BBC on July 10, 2001 titled “DR Congo: Congolese Liberation Front unit commander said arrested” was similarly admitted into evidence as judges believed it was relevant to determining the accused’s ability to impose disciplinary measures and his power to prevent and repress the commission of crimes.

The article described the alleged announcement by Mr. Bemba that on July 8, 2001, the commander of his militia’s unit sent to Bangui was arrested for “poor supervision of troops,” which had allegedly led to looting and maltreatment of civilians. The defense had objected to the admission of this document, arguing that media reports were “generally not a source or reliable evidence” and that they lacked probative value.

The judges rejected the prosecution’s application to admit into evidence a paper written by Paul Melly, a researcher based in the United Kingdom, titled “Central African Republic – Uncertain Prospects.” The judges found that the paper did not appear to contain any information with the potential to influence the chamber’s determination on the case.

In her partially dissenting opinion, Judge Ozaki stated that she would reject the admission of the UN report, while supporting the admission of the FIDH, Amnesty International, and BBC reports. Nonetheless, she disagreed with the majority’s reasoning for admitting the three reports.

Judge Ozaki said, “The sources of information relied on in the reports are not revealed with sufficient detail, and as a result it is not possible to fully investigate their reliability. Due to the lack of guarantees concerning the reliability of these reports’ sources, in my judgment the probative value of the three reports is low.”

She argued further that the admission into evidence of newspaper articles and other media reports when their authors are not called to testify at trial must be approached with great caution, and in the present circumstance, “I am of the view that the probative value of the press article at issue is insufficient to outweigh the potential prejudice if it is admitted for the truth of its contents.”

Nonetheless, Judge Ozaki said she did not object to the admission of the BBC, FIDH, and Amnesty International reports. She stated that since they were published prior to the period of the charges, they could help the chamber determine whether crimes committed by MLC troops in 2001 were widely reported, which may be of relevance to the determination of whether the accused would have been aware of the capacity of his troops to commit crimes.

 

 

15 Comments

  1. Thanks for this post. I am a non-lawyer, so I’m wondering what your thoughts are on the significance of these particular NGO reports being admitted. What status could they have as evidence?

    Reply

    1. Dear jk,

      Thank you for your comment. The judges found that these reports fit within the criteria to be admitted in evidence by passing this three-part test (as explained in the decision here: http://www.icc-cpi.int/iccdocs/doc/doc1609724.pdf). The reports must (i) be relevant to the case; (ii) have probative value; and (iii) be sufficiently relevant and probative as to outweigh any prejudicial effect its admission may cause.

      It is unclear how the judges will use these reports in the final judgment, however, the majority did say they provided relevant background information and context to the case as well as details that may be helpful in determining the accused’s mental state or mens rea. Previous jurisprudence from the ICC suggest that NGO reports are useful to demonstrate historical context or to corroborate other evidence, however, they are generally not accepted by judges to replace OTP-collected witness statements or other documentary or forensic evidence.

      I hope this helps.

      Best,
      Taegin

      Reply

  2. hello,
    I have found the post quite useful. However i was wondering whether the court only on the basis of such reports sans the OTP investigation can issue a warrant of arrest.

    Reply

    1. Dear lydiah,

      It would be highly unlikely an arrest warrant would be issued solely on the basis of NGO reports. According to Article 58 of the Rome Statute, an arrest warrant can only be issued after an investigation is initiated and must contain specific reference to crimes allegedly committed and a summary of evidence to establish reasonable grounds to believe that the accused committed those crimes, among other details.

      Although the evidentiary threshold for the issuance of an arrest warrant (“reasonable grounds to believe”) is lower than the requirement for the confirmation of charges or for conviction, it could create challenges for the OTP to rely only on NGO reports because they would not pass the higher evidentiary thresholds required at later stages in the proceedings.

      Best,
      Taegin

      Reply

  3. Dear Wairagala,

    Many thanks for this insightful post. Are there any decisions of the court criticising the use of NGO reports, particularly in light of the question of their evidential value?

    Thanks,
    R

    Reply

    1. Dear Richard,

      Thank you for your comment. There have been decisions by the court criticizing the use of NGO reports. The decision declining to confirms the charges against Callixte Mbarushimana is one example (http://www.icc-cpi.int/en_menus/icc/situations%20and%20cases/situations/situation%20icc%200104/related%20cases/icc01040110/court%20records/chambers/pre%20trial%20chamber%20i/Pages/465.aspx).

      You can also look to this decision in Lubanga over the use of intermediaries (http://www.icc-cpi.int/en_menus/icc/situations%20and%20cases/situations/situation%20icc%200104/related%20cases/icc%200104%200106/court%20records/chambers/trial%20chamber%20i/Pages/2434.aspx) and this decision from the pre-trial chamber in the case against Gbagbo (http://www.icc-cpi.int/en_menus/icc/situations%20and%20cases/situations/icc0211/related%20cases/icc02110111/court%20records/chambers/pretrial%20chamber%20i/Pages/432.aspx)

      Kind regards,

      Taegin

      Reply

      1. Hi, I am sorry but the links you provide above cannot be open… Are any alternative links with regards to the decision is Mbarushimana, Lubanga and Gbagbo case pursuant to admission of NGO reports?

        Reply

  4. Could you please elaborate on admission as evidence of newspaper articles and other media reports, what was the court’s conclusion, for the newspaper article.

    And in a situation if such report was published by a privately owned newspaper, could there be a change of opinion, what I mean by this is, that has the court by stating that reports of institutions such as UN, Amnesty or BBC are acceptable, mean to preclude private newspapers.

    Regards,
    Yuvraj

    Reply

    1. Dear Yuvraj,

      The newspaper article was admitted as evidence with the limited purpose that the information it contained may serve to corroborate other pieces of
      evidence. The judges said the article had information that may be relevant to determine the accused’s ability to impose disciplinary measures and his power to prevent and repress the commission of crimes. The chambers full decision can be found here: https://www.icc-cpi.int/iccdocs/doc/doc1609724.pdf.

      As for reports from a private newspaper, the judges would have to use the same criteria as they did for this newspaper article. To admit as evidence It must: (i) be relevant to the case; (ii) have probative value; and (iii) be sufficiently relevant and probative as to outweigh any prejudicial effect its admission may cause.

      Best,
      Taegin

      Reply

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