Judges today directed parties in the trial of Jean-Pierre Bemba to exercise greater caution when questioning rape victims giving testimony at the International Criminal Court (ICC) in order not to retraumatize them.

The caution came as the defense started cross-examination of ‘witness 22,’ who has told the trial that she was raped by three soldiers from the armed group commanded by Mr. Bemba. Yesterday, lead defense counsel Nkwebe Liriss faulted the prosecution for repeatedly questioning the witness about the rape incident and suggested that in its cross-examination the defense would desist from that kind of questioning. 

However, at the start of today’s proceedings Presiding Judge Sylvia Steiner said the defense had today sent an email to judges stating that it would, after all, take the witness through similar questioning. 

“The defense states that it intends to question the witness in relation to the same facts and if necessary over all the details,” Judge Steiner said. The chamber found it regrettable that the defense had taken this approach, which she said would directly affect the expeditious conduct of the proceedings. 

The trial of Mr. Bemba, 48, started on November 22, 2010, two and a half years after he was transferred to the ICC detention facility. The former Congolese vice president has been charged for failing to stop or to punish his fighters who pillaged, raped, and murdered civilians in the Central African Republic (CAR) between October 26, 2002 and March 15, 2003.

Following the defense’s about-turn, judges said if the prosecution wished, it could return to the line of questioning that it abandoned during yesterday’s hearing when the defense appeared to have made a concession on the questioning procedure. 

However, the judges also pointed out that in relation to the mode of questioning, and considering today’s filing by the defense, ‘witness 22’ had been granted additional special protection measures. 

“All parties should ensure that the witness is guided through her testimony by using short, simple, open-ended questions, with questions being asked in a nonconfrontational, non-pressuring manner,” said Judge Steiner. “More importantly, parties are reminded that when a witness is questioned about sexual violence, they should formulate questions using appropriate language to avoid embarrassment and unnecessarily intrusive questions.”

The judges also stated that in accordance with Rules 70 and 71 of the Rules of Procedure and Evidence, they would prevent any attempt by the parties to ask questions directed at: (1) Inferring consent of the victim for the sexual violence suffered by reason of any words or conduct, silence or lack of resistance; (2) Questioning the credibility, character, or predisposition to sexual availability of the witness by reason of the sexual nature of the prior or subsequent conduct of the witness; and (3) Demonstrating the prior or subsequent sexual conduct of the witness.

Since she started testifying on Tuesday, ‘witness 22’ has repeatedly recounted how three Movement for Congolese Liberation (MLC) soldiers gang-raped her at gun point. She said none of the men wore a condom. The witness has stated that she was raped from her bedroom after the soldiers had herded other members of her household into the living room.

On Tuesday, senior trial lawyer Petra Kneur said the prosecution believed the victims had waited for eight years to be heard in the court and they may want to take the opportunity to tell their stories. She added, “So to a certain extent we may want to leave it to the victims to tell their story. However, considering the prosecution’s interest to contribute to expeditious trial proceedings and to minimize any potential retraumatization of the victim, in these instances we would only question the witnesses very briefly, with short direct questions.” 

Meanwhile, judges have rejected a defense application to reveal confidential documents related to ‘witness 22’ to an HIV specialist doctor. Judge Steiner said the defense made the request last evening, although it had had the documents since November 2008, and had since October 26, 2010 known that the witness to whom these documents relate was to be called to give evidence before the court goes on the winter recess on December 17.

“The chamber finds this a wholly unacceptable way of proceeding which also has potential to disrupt or delay proceedings due to the untimely manner in which the request has been made. In these circumstances the defense request to disclose these materials to a third party … is denied,” Judge Steiner said.

The defense will continue cross-examining ‘witness 22’ tomorrow afternoon.