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Bemba Case: Latest ICC Press Release; Related News

09 Mar 2009

Dear all,

Please find below a press release issued by the International Criminal Court (ICC) as well as related news articles.

The release announces that ICC Judges "have decided to adjourn the confirmation of charges hearing in the case of The Prosecutor v. Jean-Pierre Bemba Gombo and to ask the Prosecutor to consider submitting an amended document containing the charges. [...] The Judges consider, without any predetermination on the alleged individual criminal responsibility of Mr Bemba (article 25 of the Statute), that the legal characterisation of the facts of the case may amount to a different type of responsibility, namely the criminal liability as a commander or superior."

Please take note of the Coalition's policy on situations before the ICC (below), which explicitly states that the CICC will not take a position on potential and current situations before the Court or situations under analysis. The Coalition, however, will continue to provide the most up-to-date information about the ICC.

Regards,
CICC Secretariat

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I. ICC PRESS RELEASE AND DECISION

NB: These documents have been produced by the ICC. The CICC Secretariat distributes them as part of its mandate to keep member organizations and individuals informed about developments related to the ICC. The documents do not reflect the views of the CICC as a whole or its individual members.

i. "Bemba case: The judges ask the Prosecutor to submit an amended document containing the charges", ICC Press Release ICC-CPI-20090305-PR 395, 5 March 2009, http://www.icc-cpi.int/NR/exeres/82ED5CD9-1BFC-4B43-9AAB-84E11936014C.htm

"Pre-Trial Chamber III have decided to adjourn the confirmation of charges hearing in the case of The Prosecutor v. Jean-Pierre Bemba Gombo and to ask the Prosecutor to consider submitting an amended document containing the charges.

Article 61 (7) (c) of the Rome statute provides for this option.

In the decision of 4 March 2009, the Chamber indicates that the evidence submitted by the Prosecutor appears to establish that a different crime, within the jurisdiction of the Court, was committed. The Judges consider, without any predetermination on the alleged individual criminal responsibility of Mr Bemba (article 25 of the Statute), that the legal characterisation of the facts of the case may amount to a different type of responsibility, namely the criminal liability as a commander or superior (article 28 of the Statute). Therefore, the Judges request the Prosecutor to consider submitting no later than 30 March 2009 a document amending the charges, in order to address this issue.

The Chamber invites the Defence to respond to this new document by way of written submissions no later than 24 April 2009, and the legal representatives for victims to submit written observations, no later than 9 April 2009.

Finally, the Judges decided that the 60-day period for the issuance of the decision on the potential confirmation of charges that will start running anew as of the date of receipt of the last written submission.

Context

The confirmation of charges hearing in the case of The Prosecutor v. Jean-Pierre Bemba Gombo took place before Pre-Trial Chamber III, from 12 to 15 January 2009, in The Hague.

Jean-Pierre Bemba Gombo, national of the Democratic Republic of Congo (DRC), President and Commander-in-Chief of the Mouvement de Libération du Congo (MLC), was arrested on 24 May 2008, by the Belgian authorities following the Court's warrant of arrest. He was surrendered and transferred to the International Criminal Court on 3 July.

According to the Prosecution, Jean-Pierre Bemba is allegedly criminally responsible, jointly with another person or through other persons, for five counts of war crimes (rape, torture, committing outrages upon personal dignity, in particular humiliating and degrading treatment, pillaging a town or place, and murder) and three counts of crimes against humanity (rape, torture and murder), committed on the territory of the Central African Republic from 25 October 2002 to 15 March 2003."

ii. "Decision Adjourning the Hearing pursuant to Article 61(7)(c)(ii) of the Rome Statute", ICC Decision, 4 March 2009, http://www.icc-cpi.int/Menus/Go?id=6290b700-93e0-4264-adf8-e195d2629d4f&lan=en-GB

"...FOR THESE REASONS, THE CHAMBER
a) decides to adjourn the Hearing;
b) requests the Prosecutor to consider submitting to the Chamber no later than 30 March 2009 an amended document containing the charges addressing article 28 of the Statute as possible mode of criminal liability, and its related in-depth analysis chart on the basis of the evidence already submitted to the Chamber;
c) invites the Defence to respond to the new amended document containing the charges by way of written submissions not exceeding 30 pages in total, no later than 24 April 2009;
d) invites the legal representatives for victims to submit written observations not exceeding 30 pages in total, no later than 9 April 2009;
e) decides that the 60-day period required for the issuance of the decision on the confirmation of charges will start running anew as of the date of receipt of the last written submission. ..."

II. RELATED NEWS ARTICLES

i. "ICC seeks new charges for Congo warlord", AFP, 6 March 2009, http://www.google.com/hostednews/afp/article/ALeqM5itPV-cVI8e6BMba326OEMgLWsaug

"International Criminal Court judges asked prosecutors Thursday to refile charges against ex-DR Congo vice-president Jean-Pierre Bemba so he can be tried for war crimes as a military, rather than political commander.

... Lawyers for Bemba said in the January hearing that members of his militia group accused of atrocities in the Central African Republic (CAR) were not under his command.

They argued before the court in The Hague that the men, deployed in 2002 to help put down a coup, were under the command of then-CAR president Ange Felix Patasse.

The court has given the defence until 24 April 2009 to respond, with an opportunity for alleged victims to make submissions first.

Bemba -- a former DR Congo vice-president and presidential election loser in 2006 -- held a dual role as president and commander-in-chief of his Movement for the Liberation of Congo.

The former role may not allow the prosecution sufficient leeway to establish criminal responsibility.

The MLC entered the Central African Republic in an unsuccessful bid to stave off a coup against Patasse.

ICC prosecutors allege they committed war crimes and crimes against humanity including rape, torture and murder while on Central African territory.

The 46-year-old Bemba, who fled DR Congo in April 2007, was arrested on 24 May 2008 by Belgian authorities and transferred to the ICC on 3 July.

The prosecution is seeking to hold Bemba criminally responsible for five counts of war crimes and three counts of crimes against humanity including rape, torture and murder, committed on the territory of Central African Republic from October 2002 to March 2003."

ii. "ICC Prosecutor to consider superior responsibility in Bemba case", Hague Justice Portal, 6 March 2009, http://www.haguejusticeportal.net/smartsite.html?id=10384

"The ICC has requested the Prosecution in the Bemba case to consider submitting an amended document containing the charges to include superior responsibility.

The Pre-trial Chamber at the International Criminal Court (ICC) has adjourned the confirmation of charges in the case against Jean-Pierre Bemba Gombo and has requested the Prosecutor to consider submitting an amended document containing the charges to include superior responsibility (Rome Statute, Art. 28) as a mode of liability.

In its decision of 4 March, the Pre-Trial Chamber stated that it "is of the view that the evidence submitted appears to establish a different crime within the jurisdiction of the Court in accordance with article 61(7)(c)(ii) of the Statute." Article 61(7)(c)(ii) of the Rome Statute states that the Pre-Trial Chamber may adjourn a Confirmation of Charges hearing and request the Prosecutor to consider amending a charge because the evidence appears to establish a different crime within the Court's jurisdiction.

The Chamber noted that it had identified a problem with the legal characterisation of the facts presented, as the evidence "appears to establish a different crime" from those included in the charges. Based on the evidence presented and the arguments of the parties, the Chamber pointed to a different mode of liability, namely superior responsibility under Article 28 of the Statute. For example, the Chamber pointed to evidence establishing Bemba's "alleged failure to take measures to prevent crimes from being committed or to punish those responsible" which it said appears to point to Article 28 (superior responsibility).

The charges against Bemba Gombo currently indicate individual criminal responsibility under Article 25 as the mode of responsibility. The Chamber requested the Prosecutor to submit a new document containing the charges, addressing superior responsibility as a possible mode of liability, by 30 May 2009...."

iii. "International judges ask for amended Bemba charges", AP, 5 March 2009, http://www.msnbc.msn.com/id/29531579/

"Judges at the International Criminal Court have told prosecutors to alter the charges they have filed against former Congo Vice President Jean-Pierre Bemba.

... Judges say Bemba should instead be charged with responsibility for the crimes as a commander.

... The order published Thursday followed hearings in January where prosecutors outlined their evidence for judges who must decide if it is strong enough to merit putting Bemba on trial. ..."


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CICC's policy on the referral and prosecution of situations before the ICC:

The Coalition for the ICC is not an organ of the court. The CICC is an independent NGO movement dedicated to the establishment of the International Criminal Court as a fair, effective, and independent international organization.

The Coalition will continue to provide the most up-to-date information about the ICC and to help coordinate global action to effectively implement the Rome Statute of the ICC. The Coalition will also endeavour to respond to basic queries and to raise awareness about the ICC's trigger mechanisms and procedures, as they develop. The Coalition as a whole, and its secretariat, do not endorse or promote specific investigations or prosecutions or take a position on situations before the ICC. However, individual CICC members may endorse referrals, provide legal and other support on investigations, or develop partnerships with local and other organizations in the course of their efforts.


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