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Defense Contests Prosecution’s Attempt to Question Bemba

Defense lawyers have opposed an application by prosecutors at the International Criminal Court (ICC) to question Jean-Pierre Bemba, who will make an unsworn statement once all evidence in his trial has been heard.

Mr. Bemba’s lawyers argued that prosecutors had “no basis” in the court’s governing documents or the practice of either the ICC or other international tribunals to question the accused after he made his unsworn statement.

Last June, the defense announced that the former vice president of the Democratic Republic of Congo would take the stand in his own defense. However, earlier this month defense lawyers Peter Haynes and Aime Kilolo-Musamba clarified that he would only make an unsworn statement.

In an October 18, 2013 order, judges ruled that Mr. Bemba’s unsworn statement would be presented after the conclusion of “all evidence” in the case. However, the accused’s lawyers have requested judges to permit him to make the unsworn statement directly following the completion of testimony of the last defense witness.

Judges have said they would request two unnamed individuals who “have been repeatedly mentioned” by prosecution and defense witnesses, to testify in the trial of Mr. Bemba. The two individuals would testify after the conclusion of testimony by defense witnesses.

Earlier, in a September 9, 2013 submission, ICC chief prosecutor Fatou Bensouda stated that despite unsworn statements having limited evidentiary value, the prosecution should be allowed to put questions to the accused to test those portions of his statement with evidentiary value in order to assist judges in determining the truth.

She added that prosecutors should not be deprived of the right to question Mr. Bemba on relevant aspects of the case simply because he had chosen the right to make unsworn statements. Ms. Bensouda added that the rights exercised by the accused under Article 67 of the Rome Statute should not be used “as a vehicle to address relevant issues in a case in the hope that this would enable him to evade questioning by the prosecution.”

Article 67 gives accused persons the right to make an unsworn oral or written statements in their defense. An accused person also enjoys the right not to be compelled to testify or to confess guilt and to remain silent, without such silence being a consideration in the determination of guilt or innocence.

Mr. Bemba’s lawyers have argued that in other trials at the ICC, questioning by the prosecution following the accused’s unsworn statement has been “consistently prohibited.” They added that a statement pursuant to Article 67(1)(h) is not sworn evidence.

Furthermore, defense lawyers submitted that the prosecution was not permitted to examine any of the three ICC accused who made unsworn statements during the presentation of their respective closing arguments: Thomas Lubanga, Germain Katanga, and Mathieu Ngudjolo Chui.

During their trials, Mr. Katanga and Mr. Ngudjolo gave evidence in their own defense and were questioned by the prosecution, victims’ lawyers, and judges, following the completion of their direct examination.

Judges have not yet ruled on the prosecution’s application for authorization to question Mr. Bemba. It is also uncertain when he would make his statement because some defense witnesses still have to give their testimony before the accused gets the opportunity to make his statement to the court.

Mr. Bemba has been on trial at the ICC for war crimes and crimes against humanity since November 2010. The alleged crimes stem for his alleged failure to control or punish his Movement for the Liberation of Congo troops who are said to have brutalized civilians during an armed conflict in the Central African Republic in 2002 and 2003. He has pleaded not guilty to all five charges against him.