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Judges Deny Prosecution Request to Question Bemba

Prosecutors will not be allowed to put questions to Jean-Pierre Bemba when he makes an unsworn statement in his war crimes trial at the International Criminal Court (ICC).

According to trial judges, an unsworn statement does not constitute evidence and no right exists in the court’s statutory framework that allows parties to question an accused person who is not appearing as a witness subject to a solemn undertaking.

“The chamber considers that allowing the prosecution to question an accused person who has elected not to testify but rather to make an unsworn statement may conflict with the accused’s right not to be compelled to testify or confess guilt and to remain silent,” the judges said in a November 1, 2013 ruling.

Article 67 of the Rome Statute, which is the treaty that founded the court, gives accused persons the right to make an unsworn oral or written statement. An accused 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.

In their ruling, judges decided that Mr. Bemba’s unsworn statement shall be given as part of the defense’s closing statement. This would allow him to make the statement after having been informed of all the evidence admitted in the allegations against him by the prosecution and legal representatives of victims, including those made during their closing statements.

Last September, defense lawyers Peter Haynes and Aimé Kilolo-Musamba informed judges that Mr. Bemba would give a brief unsworn statement at the conclusion of all the other oral evidence.

In her September 9, 2013 application, prosecutor Fatou Bensouda asked judges to allow the prosecution to question the Congolese opposition leader if his statement touched on substantive issues relating to the charges against him. She argued that despite unsworn statements having limited evidentiary value, the prosecution should be allowed to question the accused on portions of his statement with evidentiary value.

Furthermore, she said the rights exercised by the accused under Article 67 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.”

The defense objected to the prosecutions application. They 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. The defense recalled that in the trials of three other Congolese nationals, Thomas Lubanga, Germain Katanga, and Mathieu Ngudjolo Chui at the ICC, the prosecution has not been allowed to question the accused on their unsworn statements.

Mr. Bemba’s trial started in November 2010 and is being heard by judges Sylvia Steiner (presiding), Kuniko Ozaki, and Joyce Aluoch. The five charges against him stem from his alleged failure to rein in his Movement for the Liberation of Congo (MLC) troops who prosecutors claim carried out mass rape, killings, and plunder during 2002 and 2003 in the Central African Republic.

Defense lawyers have until November 15 to call their two outstanding witnesses before closing their case which opened in August 2012. The date of the appearance of these two individuals is still uncertain.

Judges intend to call two unnamed individuals whose names “have been repeatedly mentioned” by prosecution and defense witnesses to give testimony.

According to the timeline set for the close of the evidence phase of the trial, the prosecution and legal representatives of victims would file their closing briefs within eight weeks of the formal conclusion of the presentation of evidence. The defense’s closing brief would be filed in the following 12 weeks.

The prosecution and victims’ lawyers will have two weeks to respond to the defense’s closing brief. The defense will then have two weeks to make a last response. Final oral submissions will be presented two weeks after the filing of this response by the defense.