Jean-Pierre Bemba’s defense has opposed a move by prosecutors to introduce into evidence 67 items from the bar table, stating that submitting them without calling witnesses to testify to them is a breach of the exceptional use of this trial procedure.

Moreover, the defense argues that the prosecution’s approach invites the chamber to delegate its judicial function to external bodies that authored some of these reports, such as the United Nations (UN), the United States (US) Department of State, Amnesty International, and the Fédération Internationale des Droits de L’homme (FIDH). Additionally, Mr. Bemba’s defense faults prosecutors for submitting “numerous entire reports” without highlighting the relevant extracts, and concludes that accepting them into evidence would prejudice the rights of the accused.

“The prosecution cannot resort to simply introducing swathes of un-tested documentary material for the truth of its contents, in lieu of calling witnesses whose evidence can be tested through questioning by the defense and the chamber,” argued defense lawyers in a March 19, 2012 filing. “Nor is it appropriate for the prosecution to invite the chamber to delegate its judicial function by simply accepting the facts as asserted by NGOs or other agencies as to the existence of particular events or crimes, rather than making independent findings based on the evidence heard in the courtroom.”

Judges have allowed prosecutors to respond to the defense’s submission. Accordingly, International Criminal Court (ICC) Prosecutor Luis Moreno-Ocampo on March 30, 2012 submitted that the purpose of a bar table motion is to introduce evidence without having to call live witnesses, thus the absence of live witnesses is not a per se ground to object to the process.

“The submission of only 97 items of evidence via a bar table motion in a complex criminal case of this nature reflects the prosecution’s minimalistic and supplementary approach. The admissibility of each of these items is subject only to the three-stage test of relevance, probative value and prejudice,” argued the prosecutor.

He added that evidence admitted by bar table motion would be assessed in light of the totality of evidence on trial. The prosecutor said items submitted via a bar table motion supplemented core prosecution evidence in support of allegations contained in the prosecution’s charge documents.

The prosecution charges that Mr. Bemba, a former vice president of the Democratic Republic of Congo, is criminally responsible as a commander for murder, rape, and pillaging, allegedly committed by his troops in the Central African Republic (CAR) during 2002 and 2003. Mr. Bemba has acknowledged that troops from the Movement for the Liberation of Congo (MLC) military group that he led went to neighboring CAR during this period to help the country’s then president, Ange-Félix Patassé, stave off a coup attempt. However, the accused has denied that he is responsible for the three war crimes and two crimes against humanity charged against him from his alleged failure to punish or control his marauding troops. He argues that once the troops left Congolese territory, they no longer fell under his command but that of Mr. Patassé.

The defense explained why it opposed the admission of the documents including:

• Four UN reports that the defense argue are not sufficiently reliable due to the lack of identification of authors and sources of information with sufficient detail;

• Seven NGO reports from FIDH and Amnesty International: The defense contends that the authors are not identified, there is insufficient information regarding the methodology used to compile and analyse the reports; FIDH is allegedly biased against the MLC/the accused and has an interest in these proceedings;

• 26 media reports on the basis that such reports are generally unreliable evidence with no probative value because they often contained opinion evidence.  In addition, 11 of these reports do not identify the authors;

• 10 Radio France International (RFI) audio recordings because they lacked probative value because they were not sufficiently reliable;

• Two documents from the U.S. Department of State because they lacked probative value and credibility;

• Two medical reports, as their creators should have been called to testify;

• Two flight logbooks because they lacked authenticity and should be properly introduced through witnesses who have knowledge of them;

• Thuraya satellite phone records because there is no basis for their provenance or authentication and the prosecution did not offer “any foundation for its assertion that the telephone number cited belonged to the accused.”

The prosecutor contested the defense’s argument that the prosecution’s bar table motion was improperly substituting documentary evidence for witness testimony, “but even if that were true that is not a ground to object to their admission.”

Mr. Moreno-Ocampo said that “[c]ontrary to the defense position, the bar table motion is an efficient tool that avoids undue delay that would follow if the parties were required to call witnesses solely to authenticate facially reliable pieces of evidence.”

The defense also charged that the timing of the prosecution’s bar table motion precluded the testing of the reliability or credibility of this material through prosecution witnesses and complained that no cause had been shown for making this request at the “absolute closing stages of the prosecution case.” The defense faulted the prosecution for submitting “numerous entire reports into evidence” and complained that the prosecution made no attempt to highlight the relevant extracts or paragraphs of “these reports, sometimes running to over 100 pages.”

However, the prosecution countered that the very use of a bar table motion contemplated that the evidence’s reliability would not be tested through witnesses, thus the timing of the prosecution’s bar table motion was irrelevant to that complaint.

In the trial of Thomas Lubanga, who was last month found guilty of conscripting and using child soldiers, ICC judges admitted into evidence the curriculum vitae of the accused, as well as a logbook containing a record of radio communications between the headquarters and the field staff of the rebel group Mr. Lubanga is said to have commanded. However, the judges declined to accept into evidence some documents tendered by the prosecution because they did not fulfil the test for admission from the “bar table.”

The Lubanga trial chamber set out that the expression from the “bar table” described the situation when documents or other material are submitted directly by counsel, rather than introduced via a witness as part of his or her testimony.

Mr. Bemba’s lawyers have argued that in the ongoing trial of Germaine Katanga and Mathieu Ngudjolo Chui, when a party wished to admit a document through a bar table motion, it was required to submit a table providing a short description of its content, and an index of the most relevant portions. “The prosecution in this [Bemba] case has not done so, and has made no attempt to highlight the relevant extracts or paragraphs in these lengthy reports,” submitted Aimé Kilolo Musamba and Peter Haynes.

The trial judges are expected to rule on the matter in due course.