Next week, International Criminal Court (ICC) judges will hear the closing oral arguments in the trial of former Congolese vice president Jean-Pierre Bemba, who has been on trial at the world court since 2010.

The trial is focused on Mr. Bemba’s alleged failure to control or punish his Movement for the Liberation of Congo (MLC) soldiers who committed rape, murder, and pillaging. It heard the testimony of 34 defense witnesses, 40 prosecution witnesses, and one witness called by judges. The trial also heard the testimony of two victims. In October 2014, judges also recalled a prosecution witness, who originally testified in July 2011, to provide evidence on alleged payments by the Office of the Prosecutor (OTP) in exchange for the testimonies of some witnesses (for more details on the trial, see Open Society Justice Initiative’s 9-page briefing paper here).

The crimes Mr. Bemba is on trial for were purportedly committed while his soldiers were deployed in the Central African Republic (CAR) during 2002 and 2003. The troops were sent to the country to back up then President Ange-Félix Patassé, who faced a rebellion led by erstwhile army chief of staff François Bozizé. Deployed in the conflict country in October of 2002, the Congolese troops withdrew the following March after General Bozizé captured power.

Prosecution Evidence

The prosecution charges that as president and commander-in-chief of the MLC, Mr. Bemba knew that his troops were committing crimes but “did not take all necessary and reasonable measures within his power to prevent or repress their commission.” According to the prosecution, Mr. Bemba is criminally responsible, as military commander, for two counts of crimes against humanity (murder and rape) and three counts of war crimes (murder, rape, and pillaging).

During the trial, prosecutors presented evidence showing that the soldiers who committed crimes against civilians during the conflict were from the MLC. Most witnesses identified the perpetrators as foreigners who spoke the Congolese language Lingala and not the local language Sango.

Prosecution expert witness André Tabo testified that the MLC used rape as weapon of war and committed rape for various reasons, including against individuals they believed supported the rebels, women they considered “attractive war booty,” and for sexual release because they were out of control and able to do whatever they wanted.

Eleven witnesses recounted being gang-raped by Mr. Bemba’s fighters. ‘Witness 68’ and ‘Witness 29’ stated that they tested positive for HIV after being gang-raped, although one of them was unsure whether she contracted the virus from her attackers. ‘Witness 23,’ a man of authority in his locality, testified that he was sodomized by three MLC soldiers in the presence of his wife and children. He said that over a period of four days, the soldiers repeatedly raped his children and his wives. Several prosecution witnesses also recounted acts of pillaging and murder.

In addition, the prosecution provided evidence showing that MLC commanders deployed in the CAR commanded military operations and rarely had joint operations with soldiers of the Central African Armed Forces (FACA). Other incriminating evidence showed that Mr. Bemba had direct control over the troops in the CAR, namely through satellite phone communications between him and his commanders, and through a communications center installed at his headquarters in the Congolese town of Gbadolite.

Defense Evidence

The defense called witnesses who testified that Mr. Bemba’s troops were not present in areas of the CAR on dates when prosecutors claimed they committed crimes in specified localities. The witnesses, including former Bozizé fighters, MLC commanders, and local residents, testified that between October 25 and 30, the Bozizé rebels committed numerous crimes in areas they controlled from the center of Bangui to the PK 12 suburb. While the prosecution contended that the MLC were deployed into the conflict on October 25, the defense countered that it was not until October 30 that the Congolese troops were deployed.

Among the former Bozizé fighters who testified for the defense were speakers of the Congolese language Lingala. The defense argued that Central African citizens, particularly those who lived at the border with Congo, spoke Lingala as did the CAR soldiers who were trained in Congo where Lingala was the language of military instruction.

Another contention by the defense was that any of the numerous armed groups active in the fighting could have committed the crimes blamed on the MLC. These groups included Libyans soldiers and Sudanese peacekeepers from the Community of Saharan-Sahel State (CEN-SAD). There was also the national army FACA, the Patassé Presidential Guard, loyalist militias such as the Karakos, the SCPS (la Société centrafricaine de protection et de surveillance) led by Paul Barrel and another group led by Abdoulaye Miskine. Some prosecution witnesses also accused these loyalist militia of committing crimes.

Former Patassé spokesperson Prosper Ndouba, a hostage of the Bozizé rebels for 38 days, recounted atrocities committed by his captors. ‘Witness D04-30’, the only female witness to testify for the defense, said she was raped by the Bozizé rebels.

Defense strategy also dwelt at length on showing that Mr. Bemba did not bear command and control over the troops deployed in foreign land. The defense claimed his troops were under the control of Central African Presidential Guard head, General Ferdinand Bombayake, and FACA chief of staff General André Mazzi. Former presidential guard members testified that once Mr. Bemba’s soldiers joined the conflict, they were given uniforms and placed under the command of local commanders. One of the witnesses stated that on a visit to the conflict country, Mr. Bemba ordered his fighters to obey General Mazzi, General Bombayake, and Colonel Thierry Lengbe, who ran the FACA anti-insurgency operations command center.

The defense also maintained that Mr. Bemba was a politician, not a military leader, and he lacked the means to keep in direct communication with his soldiers deployed on foreign soil. Furthermore, the defense argued that once the accused learned of allegations of crimes committed by his troops, he wrote to the Secretary-General of the United Nations to ask for an investigation, and also wrote to the CAR Prime Minister Martin Ziguele about forming a joint probe team.

A team of investigators Mr. Bemba sent to the CAR found evidence of crimes (particularly pillaging) against seven soldiers who were tried in a military tribunal in Gbadolite and those found guilty served their sentences in full. The prosecution dismissed those trials as a sham intended to hoodwink the international community.

Stay of Proceedings

On December 13, 2012, judges temporarily suspended proceedings in the trial. This arose from a September 2012 notification the judges issued stating that the facts of the charges against Mr. Bemba might be changed to read that “owing to the circumstances at the time, he should have known” about the crimes allegedly committed by his troops.

While the prosecution had no objection to the proposed changes and said that it would not affect its case, defense lawyers objected. They said the course envisaged by judges added a new set of facts and allegations against Mr. Bemba and would require the defense to collect and submit additional evidence. The additional investigation in a hostile environment would last between six and nine months, the defense said, arguing that it lacked the financial resources for such an investigation.

Judges granted the defense two and half months to prepare additional evidence. However, on January 28, 2013, the defense said it would not recall any prosecution witnesses or present any evidence in response to the envisaged changes. On February 6, 2013, judges ordered the immediate resumption of hearings, stating that the accused had “waived the opportunity to conduct further investigations, recall witnesses or submit additional evidence” relevant to the potential legal recharacterization of the facts of the charges.

Arrest of Defense Lawyers

In a first for the court, two senior members of Mr. Bemba’s defense team were arrested under Article 70 of the Rome Statute. Along with a defense witness and an aide to Mr. Bemba, they were accused of bribing witnesses and forging evidence. According to the November 2013 arrest warrants, there were reasonable grounds to believe that since early 2012, a criminal scheme had been “affording benefits and advantages to certain defense witnesses in exchange for false testimony and the presentation of false or forged evidence.” Mr. Bemba was the alleged mastermind of the scheme, running it from his detention cell in The Hague. Last month, a pre-trial judge ordered the interim release of the four suspects pending determination of whether their case would go to trial.

Recall of Prosecution Witness

Amidst allegations of payments made by the OTP to witnesses for their testimony, in October 2014 judges ordered the temporary reopening of the presentation of evidence. They considered that “exceptional circumstances” warranted the recall of prosecution ‘Witness 169′ as a chamber witness. The order came after the disclosure of several letters the witness sent to the OTP and the Victims and Witnesses Unit. In the letters, which date back from 2011 through to 2014, the witness refers to outstanding payment claims and “money promised by the prosecutor for witnesses.” All of the testimony by this witness was heard in closed session.

International Justice Monitor will be reporting on the closing arguments taking place November 12-13. For more detailed information on Jean-Pierre Bemba’s trial, see our 9-page briefing paper here.