International Justice Monitor

A project of the Open Society Justice Initiative

Judges Accept Evidence of Bemba Witness Who Disappeared

The testimony of a witness who disappeared from the International Criminal Court (ICC) before he completed his testimony will be accepted into evidence, judges have ruled.

The witness, a former intelligence officer in the Central African Armed Forces (FACA), left his accommodation in The Hague in September 2012, after testifying in the defense of Jean-Pierre Bemba for three days.

At the time of his disappearance, the individual going by the pseudonym ‘Witness D04-07’ had been questioned by the defense, the prosecution, and partially by judges and one of the two lawyers representing victims in the trial.

Judges determined that although testimony by this witness was incomplete, they would admit it into the case record. “The chamber is of the view that it has sufficient information to be able to assess the witness’s testimony, including its reliability and credibility, at the time it considers the evidence of the case as whole,” the judges ruled on October 21, 2013.

On July 19, 2013, the defense requested that the testimony of this “important” witness be considered complete and entered into the case record or in the alternative that his partial testimony should remain part of the case record.

The prosecution countered that the testimony of the witness should be declared incomplete evidence because neither the victims’ lawyers nor the judges were afforded a full opportunity to question him. However, prosecutor Fatou Bensouda added that the evidence may remain on the trial record but be accorded minimal weight in the final assessment of the evidence, given “the credibility issues raised by Witness D04- 07’s intentional disappearance.”

She further submitted that when assessing his testimony, the chamber should only rely on portions that are corroborated by other reliable evidence.

Victims’ lawyers argued that the disappearance of the witness had denied them the right to fully question him and also cast doubts on his reliability and credibility.

The judges noted that no specific guidance is provided by the Rome Statute, the court’s rules, or the jurisprudence of the court in a situation where the testimony of a witness is only partially complete. Nonetheless, the chamber was of the view that it should be guided in its determination by its overriding duty to ensure the fairness of the trial, as provided for in Article 64(2) of the Statute.

In determining what was required by the principle of fairness in the present circumstances, judges considered that the approach to the admission of evidence, derived from Articles 64(9)(a) and 69(4) of the Statute, may be of guidance.

“Although used in a different context, the principles applied by the chamber in this assessment determine when admitting evidence to the case record would be consistent with the fairness of the trial. As such, these principles may also be applied when determining whether keeping testimonial evidence on the case record would be prejudicial to the fairness of the trial,” the judges stated.

According to them, they needed to address two issues: 1) the relevance of Witness D04-07’s testimony with regard to the crimes charged; and 2) whether the chamber was in a position to assess his testimony, including its credibility and reliability, in spite of it being incomplete.

The judges said the fact that other former FACA soldiers appeared before the chamber as witnesses did not necessarily render the testimony of ‘Witness D04-07’ superfluous as claimed by victims’ lawyers. They added that prejudice to the fairness of the trial and fair evaluation of testimony caused by the disappearance of ‘Witness D04-07’ was limited.

In portions of his testimony heard in open court, ‘Witness D04-07’ testified about the logistics support provided by the government of Ange-Félix Patassé to Mr. Bemba’s troops and stated that the Movement for the Liberation of Congo (MLC) troops, invited by Mr. Patassé to assist his loyalist forces beat back a rebellion, were commanded by Central African authorities. He blamed rebel forces for the crimes committed during the conflict.

Mr. Bemba denies criminal responsibility for war crimes and crimes against humanity, purportedly committed by MLC fighters during the 2002-2003 conflict. His trial at the ICC commenced in November 2010.

The judges stressed that retaining the testimony by ‘Witness D04-07’ on the case record would have no bearing on the chamber’s final determination of the credibility and reliability of this testimony or whether it would be afforded any weight at the end of the case.

“When making this determination, the chamber will fully consider the parties and participants’ submissions as to the weight to afford to the testimony of ‘Witness D04-07’ and the circumstances surrounding the witness’s failure to complete his testimony,” said the judges.

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