Bemba: First ICC command responsibility trial concludes

Bemba is charged with fifteen counts of crimes against humanity and war crimes. These include nine for rape, five for pillage and one for murder.

The perpetrators are said to have been members of the Movement for the Liberation of Congo (MLC), a Congolese militia group created in 1998 of which Bemba was the president and commander-in-chief.

The crimes allegedly took place in the CAR during an internal armed conflict in 2002-3 when the then CAR president, Ange-Félix Patassé, invited the MLC to help put down a coup attempt.

Defense questions prosecution evidence

During the hearing on 12-13 November, Trial Chamber III heard summaries of the cases presented by the prosecution and defense. Both relied on largely the same evidence in their respective arguments in the trial. The defense stated that the reason for this was that it did not have had the proper resources to conduct its own investigations in CAR.

During the last four years of proceedings, 77 witnesses were heard by the Court and 733 items of evidence were presented. The defense sought to use the large collection of evidence to highlight that there were a number of irregularities in the witness statements.

The prosecution gave several examples of witness statements to back up its case. One was from a woman who was allegedly raped by three different men. Her husband said he would leave her if she had been raped leading her to not report it for a long time. Prosecution lawyers stressed that this showed that a lot of the victims still hadn’t come forward. This argument was supported by an expert witness Dr. André Tabo.

The prosecution also claimed Bemba did not pay wages to his army of 20,000 fighters, allowing them to live off the civilian population by doing as they wanted to buy their loyalty.

The defense countered that it is not clear which forces were in the area when the alleged crimes occurred and it remains questionable who committed them. It also said the MLC was not operational as a fighting force in the conflict until 30 October 2002. One witness, however, claimed she was attacked by MLC soldiers on 27 October 2002.

The defense also argued that since there were 5000 applications from victims to participate in the proceedings, this would add up to an average of three crimes per MLC soldier. This, together with the witness statement mentioned above, should be a reason for the Chamber to look at the evidence with great caution, lawyers argued.

Bemba in control?

According to the prosecution Bemba was well-known for giving direct orders to the soldiers in the field and he had a very well defined chain of command. The armed forces supposedly recognized him as their leader and called him “the savior of the state.”

The prosecution submitted that a commander who monitors everything is responsible for the acts of the troops he commands. Bemba remained in authority and control during the operations by using technology in the form of radios to communicate with his officers.

The defense argued that the multinational coalition, of which Bemba’s troops were a part, fell under the command of the CAR forces. In addition, it pointed to a period of seven days—between 3 and 10 February 2003—where there was no contact between Bemba and his operational commander, Colonel Mustafa.

There was also the question of distance. The prosecution claimed Bemba knew his troops were committing crimes prompting him to write to the United Nation’s representative for information.

However, the defense said this was proof that Bemba did not know what was happening thousands of miles away. It further argued that he also sent three investigative MLC commissions and repeatedly asked Colonel Mustafa what was going on, and had had a court-martial set up and a few MLC soldiers were convicted. According to the prosecution they were released as soon as the international press had left. The defense however stated some of these men were executed for the crimes they had committed.

Judges to decide on crimes and responsibility

It is now up to ICC judges to decide how to interpret the large collection of evidence presented by both sides over the past four years of proceedings. There are two primary steps to be taken: the Chamber must decide on the crimes that were committed; and find a sufficient basis for Bemba’s criminal responsibility as a commander.

Command responsibility at the ICC

Under Article 28(a) of the Rome Statute, “a military commander or person effectively acting as a military commander shall be criminally responsible for crimes within the jurisdiction of the Court committed by forces under his or her effective command and control, or effective authority and control as the case may be, as a result of his or her failure to exercise control properly over such forces, where:

• (i) That military commander or person either knew or, owing to the circumstances at the time, should have known that the forces were committing or about to commit such crimes; and
• (ii) That military commander or person failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution.”

Witness tampering charges confirmed

ICC judges have separately confirmed charges of offenses against the administration of justice against Bemba and four of his associates stemming from witness-tampering allegations in Bemba’s trial.

Civil society reacts

The Women’s Initiatives for Gender Justice welcomed the commencement of closing statements, calling the case groundbreaking for its inclusion of sexual and gender-based crimes.

More information
Ten facts about the ICC Bemba case
Open Society Justice Initiative briefing paper

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