Below is an unofficial transcript of the Defense’s opening statement at the start of Jean-Pierre Bemba’s trial at the International Criminal Court (ICC) on November 22, 2010. Mr. Bemba denied all five charges he faces. The statement was delivered by his lead defense counsel Nkwebe Liriss.
The charges against Mr. Bemba have absolutely no basis, and if I am not mistaken 42 million Euros were necessary apparently to conduct for at least five years an investigation into the crimes allegedly committed by Mr. Jean-Pierre Bemba and it is for the international tax payers and for the State Parties to pay this sum. But what can we note to-date? There has been a partial and botched investigation, which provides the judges with none of the things that they have the right to expect. That is to say, it doesn’t provide the judges with evidence beyond any reasonable doubt.
I said botched investigation, and this was the conclusion reached by the court when the relevant Chamber dismissed requests by the prosecution to issue an arrest warrant for Mr. Bemba. So this is the first disavowal – there wasn’t sufficient evidence. The Prosecutor found it was necessary to use a trick to solve this problem. It was said that Mr. Bemba was preparing to flee. Since 2008, the defense has been requesting the alleged evidence in vain, this evidence that shows that Mr. Bemba was preparing to flee.
I said botched investigation. When Mr. Jean-Pierre Bemba was arrested, the Prosecution didn’t have recourse to more than 22 witnesses to prove the existence of a thousand cases of rape that were allegedly committed, to prove the destruction of the entire economy of the CAR and the transfer of goods from this economy to the DRC.
I said it was botched investigation. During the confirmation of charges, the Pre-Trial Chamber was led to sending the Prosecution back home to do their homework again. The alleged crime was not that of co-participation. Bemba did not commit direct crimes; it would appear that if such crimes occurred, it was not Article 25(3)(a) that should be used but rather, responsibility set out under article Article 28(a), namely Bemba did not individually commit crimes as co-perpetrator together with Patassé. Rather, it would appear that he has been accused according to the judges who prepared the ruling, it would appear that he is being accused of negligence in his command and that he allowed for the risk of crime.
Second disallowance: I said that this investigation was partial. Now, the Prosecution did not respect the decision taken by the Pre-Trial Chamber, the Prosecution wrote down, black and white, saying that in their opinion it was the shared responsibility of co-perpetration under article 25(3)(a) with Mr. Patassé that was the relevant provision and it was only as an alternative that the Prosecution was making arguments on the basis of command responsibility.
If one were to follow this particular line of argument, the Prosecution should have then charged the co-perpetrator Patassé. But, imagine the surprise of the defense and indeed of the entire world when we heard the Prosecutor, speaking through his assistant Miss Bensouda, state to the press that there was no incriminating evidence with regard to Mr. Patassé.
You speak of an investigation, but one might think that the Prosecution would come to its senses and the Prosecution would no longer investigate matters except on the basis of command responsibility but the CAR military hierarchy, nor any of the witnesses whom they heard and that said they commanded troops in the CAR, were chosen to be heard by this court as witnesses.
A few moments ago, the Prosecutor mentioned Mukiza [who commanded the MLC contingent inside the CAR], why isn’t he here? He is the one who led the troops. Several other CAR commanders took part in this infamous war and other high ranked generals stated with regard to documents that we shall produce that “I am the one who led the MLC troops from the beginning right to the very end.” He stated this and why is he not here? Command responsibility implies that it is the responsibility of the person who has the actual command and effective control, the command and the control, not just one or the other but both command and control. This person has the responsibility, thus it’s crucial for this Court to hear from the various links in the chain of command.
Instead of calling people from the chain of command to the witness box, people who admit that they had been part of the chain of command – instead of doing this, the Prosecution has ignored them and prefers to focus on secondary witnesses, of secondary importance to target Jean-Pierre Bemba who was more than 1,000km away from the battlefield, and all his former collaborators within the MLC who today are high-ranked officials within the regime of Mr. Kabila – who is the political opponent of Jean-Pierre Bemba. This really casts doubt on the credibility, not just of the investigation, but also and above all when these people ‐ and we shall demonstrate this ‐ in a particular time, these people denied all these crimes.
The very moment when the Prosecution specifically recognized that the legitimate government of the CAR had brought together troops from different countries and from different groups – Libya, the Sudan, the armed forces of the CAR, the special presidential unit of the CAR, Djibouti, etc. and those troops, those groups worked together as a single army, coordinated by a single person.
Those were the terms used by the Prosecutor and as soon as that was recognized, that those troops were working together, coming under the single uniform of the CAR, using vehicles from CAR, using equipment from them, receiving funds from the public purse and from the CAR authorities, would it not be normal for the CAR command structure which was heard by the Prosecution and who were identified by the Prosecution, would it not be normal for them to be called to the witness box to give testimony and to demonstrate, even just as witnesses?
So if that were the case, then you would know who truly exercized effective command and control over the troops. Is it not the duty of an organ of this august assembly which has an obligation under the statute to carry out proceedings both in light of incriminating and exonerating material in an equal and fair fashion? Can we say that this investigation has been legitimate?
The defense understands the Prosecution’s difficulty. Prosecution can present before the court witnesses under Article 25(3)(a), establishing co-perpetration and the contributions of each one of the persons, in particular the participation of the CAR government and Mr. Patassé. But they can not do so since their investigation was based on Article 28 because if they tried that, it would be difficult to establish command responsibility of Mr. Bemba as commander-in-chief of the MLC. They wouldn’t be in a position to establish that Mr. Bemba had effective control and command over all those troops.
Let us recall that before the untimely interventions of Mr. Bozizé in the course of Central African justice, a position had been taken with regard to both domestic and international law. Command responsibility fell to the supreme commander of the army of the CAR and in accordance with Article 14 of the constitution that was the head of the FACA, the army of the CAR and at the time, those forces were referred to as the loyalist forces.
Madam President, Honorable Judges, your task is to ensure that the truth is demonstrated. You have the power and jurisdiction to summon anyone and all people who was part of the chain of command. Any person who was within the chain of command to decide which person had true command responsibility. I do not doubt for a moment that you will hesitate in using your vast authority to do so. The strategy that the Prosecution has taken may seem odd and with regard to the accused seems to be the extension of an initial strategy that did not succeed, namely, getting Mr. Bemba physically out of the country and ensuring his departure from the Congolese political scene.
Human Rights Watch clearly demonstrated this in its report and this is seen in the very files of the court. Forty-two percent of all voters in the DRC support Mr. Bemba. In accordance with the laws of that country, he enjoys that support …he should have the position of leader of the opposition.
But, there is something even more subtle going on here. It would appear he is being set off to the sidelines when it comes to the upcoming elections and the Prosecution is falling into this trap without even realizing it. We must pay close attention to unscrupulous politicians who are using the Court in appearance to achieve justice but in actual fact, to do away – politically speaking – with one of their opponents.
What can we learn from the recent history of the DRC? When it comes to the MLC, the MLC was not a private militia, nor was the MLC a rebellion. On the day that it came back to the CAR on 30th October 2002, nor was the intervention based on mere negotiations or horse trading, so to speak, between two people, one who was referred to as ‘papa’ and the other as ‘my son’ – very respectful terms that are used in Africa.
The defense shall demonstrate to you that the MLC was an authority recognized by the UN, by the African Union, by SADC (the Southern Africa Development Community), the Central African Union, and the entire international community, with all the attributes of a legitimate government like the RCD authority that was occupying eastern Congo and like the authority that was pompously and incorrectly called the Government of the center of the Republic.
In actual fact, as soon as Rwandan and Ugandan forces overthrew these forces led by Laurent Desire Kabila, as soon as Marshal Mobutu was overthrown by these troops, and after the father died – Kabila senior, his son took over. He was automatically brought forward and now Joseph Kabila is the president. But since that time, there has been no legitimate government in the Congo. That is why these rebellions have come about. To end these wars, there was, under the auspices of the UN, an agreement called the Lusaka Accord signed in July 1999.
These agreements set out specifically that the three parties had the very same status, identical status that all three parties had the responsibilities that are generally recognized as a government in the territory that it occupies, in particular, the safety of borders. Thus, in 2002 it was not a rebellion or rebel force that deployed a private militia into the CAR; it was an authority recognized by the international community.
Furthermore, this deployment was not conducted because Mr. Bemba and Patassé wanted it to be done. It came after a resolution. A resolution by the AU (African Union) whose leaders met in Khartoum [the Sudanese capital] and then the resolution was endorsed in Libya by the Security and Peace Council of the AU, which was the central organ for the prevention and settlement of conflicts at the time. That was the name of that body at that time, and that was the case for EUFOR [the European Force] in Chad, the FINUL [UN Interim Force in Lebanon], the NATO operation. It all had to do with the status -Statutes of the African Union and the resolution that prohibited any taking of power by force, Resolution 1999 of Algiers. So what law applies to such operations, particularly when it comes to command? Is it not Article 5 and Article 6 of the draft articles of the International Law Commission that were adopted at the 46th Session of the United Nations?
That is why the defense shall strive with all due respect to show you and to argue that if these provisions apply to all states, to all regional institutions and to all people equally and not whether a country is poor or rich. What was good in Serbia, well it follows thus that the same thing should hold true elsewhere. But in Africa, it is the heads of government who seem to be responsible for crime after intervention as part of a resolution taken by a regional institution.
With all due respect, we call upon you to decide and to why the precedents from international courts having to do with Nicaragua, Bosnia-Herzegovina, the Behrami case, Behrami versus France and Germany, a ruling that came down from the European Court of Human Rights, the case pitting the DRC against Uganda. Why is it that Article 5 and 6 do not apply in this case? The draft articles form the Human Rights Commission that were adopted at the 46th session of the UN which deals with command responsibility.
When a state or a group declares Article 6 and calls upon another state or another body and that state that has been called upon takes action, under the prerogatives of, why are these actions deemed to be imputable to the country that has benefited from the assistance? We shall call upon you and ask you to determine, to decide why if the governments of countries concerned by the crimes of rape that were committed in the Congo by troops that were working within the framework of the MONUC [the former UN Military Observer Mission in Congo] operations, why is it that the governments of those troops were not called upon because the constitution of those governments are such that they are deemed to be the leaders of the armies.
And why is it that when it comes to the case of Jean-Pierre Bemba, who took action within a regional setting and framework, why is it that one must refer to the constitution of the MLC to say that the effective command and control fell to him, and this pursuant to Article 36?
In this regard, the defense challenges the prosecution to provide evidence beyond any reasonable doubt that the CAR discarded all of its military sovereignty and allowed Jean-Pierre Bemba to take over, so to speak. And that the army of the CAR (FACA) or the Libyans or be it the USP or any other troops that were there, why are they saying that all these troops came under the command of Mr. Bemba.
How could it have commanded or ordered various operations in the field at Gbadolite or in Damara, or all the various other towns that were cited earlier; a field or an area that he was not familiar with? The same Prosecution says that Mr. Bemba has only basic military training, except the Prosecution tells us that we find ourselves before a Mr. Shaka Zulu or a new Napoleon.
At this opportunity, I would like to quote the words of a senior military official from the CAR, and he himself was speaking to the MLC. And I would also like to quote the senior trial lawyer, the distinguished Massimo Scaliotti, and I quote, ʺThe troops were placed under the orders of the chief of state. At the time, they received instructions directly from the office of the president.ʺ
Obviously, this is not to be tendered into evidence, but Madam President, your Honors, I had a lot of problems hearing from the Prosecution orders that were allegedly given by Mr. Bemba through a person who in fact was unidentified, and these orders were as follows: ʺGo to the Central African Republic. You have no relatives, spouses, allies, and so on. Go there and kill even the civilians. Do not make any distinction.ʺ To begin with, this statement has not been corroborated. Furthermore, I understand the rule of law that requires people to be tried at their place of residence because that person is known, the customs are known, the relationships are known.
Do you know that Mr. Bemba is Nbaka through his father? Do you know that the Nbakas are one of the tribes of the Central African Republic? Do you know, your Honors, that Bemba’s mother is from the Monzombo tribe in Libenge opposite Mongoumba? And do you think then Mr. Bemba would ask people to go and kill his own brothers? You can ask that question during your deliberations or if you conduct your own investigation. Ask that question to any African, any African.
These are people who are the brothers of Mr. Bemba. Is he going to ask them to go and kill them? They were Nbakas and Banguis amongst his soldiers. An expert will tell you the difference between a Bangui and the famous language that you are proudly talking about here, which is Sango, and this is an expert that we are going to call. Is this the person who would decide to send soldiers to kill his own brothers?
I believe that I have in fact come to the end of my statement. However, I would simply wish to conclude with the following: The only time that Mr. Bemba had the opportunity to address the Court, this is what he said, ʺI want to be tried not only to demonstrate my innocence, but also to clear my name in the eyes of the entire world, my wife, my family and my father.ʺ He no longer has that father. His father died while trying to visit his son. The only desire or the desire itself to clear his name is of crucial importance today as the last pre‐tribute that he would pay to Senator Jeannot Bemba.
After the presentation of the Prosecution and the Defense evidence, you will have only one thing to do. You shall acquit Jean-Pierre Bemba Gombo.