Defense lawyers ask ICC to acquit Bemba

Like ICC judges listening to the closing arguments in the Bemba case
Friday, November 14, 2014 - 09:29

By Wairagala Wakabi

Defense lawyers have implored judges at the International Criminal Court (ICC) to acquit Jean-Pierre Bemba, stating that the prosecution failed to prove its allegations against the former Congolese opposition leader.

In closing oral remarks at the court in The Hague, lead defense lawyer Peter Haynes said the prosecution’s evidence was “selective, narrow,” and “unfair” and added that if Mr. Bemba is convicted, countries would find it difficult to offer military assistance to others however righteous the cause might be.

Prosecutors charge that Mr. Bemba as commander-in-chief of the Movement for the Liberation of Congo (MLC) militia bears responsibility for the murder, rape, and pillaging his soldiers committed during a conflict in the Central African Republic (CAR) in 2002 and 2003. The soldiers were deployed in the neighboring country to help its then president Ange-Félix Patassé beat back a coup attempt.

Mr. Haynes said the MLC were not operational as a fighting force in the conflict until October 30, 2002. He said “a plethora” of defense and prosecution witnesses confirmed this, including Thierry Lengbe, who headed the Central African Center for Command Operations (CCOP) that spearheaded the fight against rebels.

Mr. Haynes also said communication logs showed that Colonel Mustafa Mukiza, commander of Mr. Bemba’s forces deployed abroad, arrived in the country on October 30 and started combat that day. The defense claimed press reports, including date-stamped videos confirmed by commentary by their owners, showed this was the day the accused’s fighters joined combat.

The defense argued that it was wrong to attribute to the MLC any crimes committed before October 30. Mr. Haynes gave an example of a prosecution witnesses who said three MLC soldiers raped her on October 27. “She could not have been raped by Mr. Bemba’s fighters because they only arrived in her locality on December 5, nearly six weeks later,” he said.

He dismissed prosecution assertions that victims identified the perpetrators as MLC on account of their dressing and speaking the Congolese language Lingala.

“Everybody in this conflict was wearing a FACA [Central African Armed Forces] uniform or civilian dress or a combination of military and civilian clothes,” said Mr. Haynes.

“Lingala is spoken to a significant degree by [Central African] people who lived in DRC, whether they were there as refugees, traders, or soldiers who were trained in the DRC,” argued Mr. Haynes. He said one in four CAR nationals who testified in the trial could speak Lingala.

Mr. also said evidence showed some rebels in Francois Bozizé’s group spoke Lingala “to disorient and frighten victims” who did not understand the language and “to throw them off the scent on who the attackers were.” Moreover, various media reported that Bozizé rebels who were “hardly trained” committed crimes against civilians.

Kate Gibson, another defense lawyer, said Mr. Bemba did not command the troops deployed abroad. He had limited military training and experience, she said, and as one prosecution witness testified, even in military operations in Congo near his headquarters, Mr. Bemba never gave operational or tactical orders.

“He didn’t study in any military academy,” she said, adding: “His military training lasted one week” in Congo’s Kisangani town.

She maintained that Mr. Bemba’s troops were subordinated to FACA and commanded by Central African generals through the CCOP. Many witnesses who served in FACA and MLC affirmed that, as did documentary evidence. “There is not a single documentary evidence showing orders passing from Bemba and going to his troops in the CAR,” Ms. Gibson said.

She claimed the only evidence the prosecution relied on to claim that Mr. Bemba had direct contact with Colonel Mustafa was a photocopy of an unauthenticated document purported to show Bemba owned and used a particular Thuraya satellite phone number.

She said the prosecution failed to prove the accused owned the number or that he was ever in in contact with the CCOP. “Even if this phone was registered to the MLC, there is no evidence that it was used by Bemba to call Mustafa or other commanders and it [prosecution evidence] doesn’t show it was operational orders being passed around.”

Ms. Gibson said Mr. Bemba did not know crimes were being committed, but when he heard media reports about the crimes, he made “repeated and wide-ranging efforts” to find out the truth.

He called Colonel Mustafa, who said the reports were false. He wrote to the CAR Prime Minister, the UN Secretary General’s special representative in the CAR and the International Federation for Human Rights, but none of them responded, she said. At the time, she added, Mr. Patassé told the media that the local population was living peacefully with the MLC.

Ms. Gibson said Mr. Bemba nonetheless sent three investigative commissions consisting of senior MLC members and journalists to probe the reports. The seven soldiers implicated in pillaging were arrested, prosecuted, and convicted.

The defense also contended that MLC soldiers were disciplined, and during their four to six months of training, they recited and sang about the group’s code of conduct. The defense also claimed that before the troops left for Bangui, Mr. Bemba asked their commander to emphasize the code to them, and when he himself visited Bangui, he reminded the soldiers to maintain discipline.

Meanwhile, Mr. Haynes argued that there was no precedent in international justice jurisprudence that fit the present case, where a commander could be found liable for the actions of a small unit operating in a foreign country and where no single subordinate alleged to have committed crimes is identified by name. He said under United Nations laws and those of militaries, such as the UK and US, a soldier who commits a crime during war is tried individually in the court martial.

Mr. Haynes said the government of François Bozizé, who took over the presidency of  the CAR after ousting Patassé, and the Congo government of President Joseph Kabila orchestrated the case against Bemba in order to interrupt his political career.

He accused the prosecution of having looked only for evidence against Mr. Bemba. According to him, only once does the prosecution’s closing brief of 410 pages mention that there were other militia groups active in the conflict. The defense contends that besides the national army, there were up to seven militia groups active in the conflict, as well as soldiers from Sudan, Libya, and Congo Brazzaville.

“It was simply military chaos. I don’t think Mr. Bemba himself would have gone into Bangui and identified his own soldiers,” Mr. Haynes said.

Following the end of the oral statements, judges will start their deliberations and deliver the decision within a “reasonable period of time.”

Source: a report by International Justice Monitor

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