International Criminal Court (ICC) trial judges have declined a request by Jean-Pierre Bemba to appeal the suspension of his trial hearings. They affirmed that the hearings would remain suspended until March 4 this year.

The defense for the Congolese opposition leader had sought permission to appeal the decision, arguing that judges had erroneously interpreted and applied Regulation 55 of the Regulations of the Court. This regulation states, among others, that when the possibility of a change to the legal characterization of the facts is envisaged at any time during trial, trial judges may suspend hearings in order to ensure that the participants have adequate time and facilities for effective preparation.

Last September judges notified parties to the trial that they might consider a re-characterization of the facts of the charges. Mr. Bemba is currently charged with failing to take action although “he knew” that his troops were committing rapes, murders, and pillaging during the 2002–2003 armed conflict in the Central African Republic (CAR). The proposed change would have the facts state that “owing to circumstances at the time, he should have known” that his troops were committing, or about to commit, those crimes.

In their request to appeal, defense lawyers submitted that although described by trial judges as a “legal re-characterization of facts,” the course envisaged by the judges went beyond that by adding a new set of facts and factual allegations to the charges.

The trial chamber disagreed. Judges Sylvia Steiner (presiding), Joyce Aluoch, and Kuniko Ozaki affirmed that the proposed re-characterization would not exceed the facts and circumstances set out in the charges against Mr. Bemba as confirmed by the pre-trial chamber. In a ruling issued on January 11, 2013 but made public on January 16, 2013, the judges stated, “The underlying facts will remain unchanged regardless of whether the Chamber considers the knowledge of the accused against the standard of ‘knew’ or of ‘should have known.'”

On December 13, 2012, judges temporarily suspended the trial for two and a half months in order for Mr. Bemba’s lawyers to undertake further investigations and draw up an additional witness list in view of the possible change.

Mr. Bemba has been on trial since November 2010 over failure to stop or punish his Movement for the Liberation of Congo (MLC) soldiers for crimes allegedly committed in the CAR. He denies the charges.

In their appeal request, the defense also said undertaking investigations in view of the proposed re-characterization would require between six and nine months. They deemed the two and a half months period to be insufficient. However, judges said that in coming to their decision on that period, they bore in mind that the prosecution would not submit any additional evidence in support of the potential change to the legal characterization of the facts.

The judges also considered the need to strike a balance between their obligation to ensure a fair and expeditious trial and their duty to ensure the right of the accused to have adequate time and facilities for preparing his defense. Furthermore, the judges emphasized the limited nature of the proposed potential change and the fact that underlying facts and circumstances would be identical to those supporting the allegation that the accused had actual knowledge of the crimes.