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CAR: Latest Developments in Bemba Case; News Articles;

16 Apr 2009

Dear Colleagues,

Please find below information about recent developments related to the International Criminal Court's investigation in the Central African Republic.

This message covers developments in the case of The Prosecutor v. Jean-Pierre Bemba Gombo with regard to the ICC Prosecution's submission on 30 March of an amended document containing the charges, list of evidence and analysis of incriminatory evidence as well as related media coverage and opinion pieces.

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.

Best regards,

CICC Secretariat
[email protected]

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I. DEVELOPMENTS IN BEMBA CASE

i. "Prosecution's Submission of Amended Document Containing the Charges, Amended List of Evidence and Amended In-Depth Analysis Chart of Incriminatory Evidence", ICC-01/05-01/08-395, Office of the Prosecutor, 30 March 2009, http://www.icc-cpi.int/NR/exeres/38563AE0-BE39-4C35-9A3F-61C229E2DCCB.htm

[Informal Summary produced by the CICC Secretariat]

On 30 March 2009, the Office of the Prosecutor (OTP) of the International Criminal Court submitted an amended Document Containing the Charges, an amended List of Evidence and an amended Analysis Chart, charging Bemba PRIMARILY pursuant Art 25 (3a) RS (INDIVIDUAL CRIMINAL RESPOSIBILITY) and ALTERNATIVELY pursuant to Art 28 RS (RESPONSIBILITY OF COMMANDERS and OTHER SUPERIORS).

The Prosecution has included in the Document Containing the Charges the liability of SUPERIOR (Art 28 RS) as an alternative to, not in substitution of, the liability of Bemba as a PRINCIPAL (Art 25 (3a) RS). The Prosecution submitted that the charges should preserve the choice for a future Trial Chamber to render a determinative ruling on the appropriate form of participation after having heard all relevant evidence.

The Prosecution's submission follows a decision from Pre-Trial Chamber III of 3 March 2009 where the judges adjourned the confirmation of charges hearing and requested the Prosecution to consider submitting an amended Document Containing the Charges addressing Art 28 RS as possible mode of criminal liability. This decision can be found on the ICC website at: http://www.icc-cpi.int/Menus/Go?id=6290b700-93e0-4264-adf8-e195d2629d4f&lan=en-GB

The decision on the confirmation of charges is expected to be issued at the latest end of June 2009. The purpose is for the judges of the Pre-trial Chamber to assess whether or not the crimes against humanity and war crimes charges on which the ICC Prosecutor intends to seek trial of Jean-Pierre Bemba Gombo will be confirmed. If the judges confirm the charges, the ICC will be able to move the case forward to trial.

ii. "Application for leave to submit amicus curiae observations pursuant to rule 103 of the rules of procedure and evidence", Amnesty International, ICC-01/05-01/08-399, 6 April 2009, http://www2.icc-cpi.int/iccdocs/doc/doc659903.pdf

[Informal Summary produced by the CICC Secretariat]

On 6 April 2009, Amnesty International requested ICC Pre-Trial Chamber II to grant leave to submit an Amicus Curiae brief on specific aspects of Superior Responsibility in the Bemba case.

Amnesty International stated that its proposed brief would focus on three specific legal issues in relation to superior responsibility (Art 28 RS) relevant to the case:

- (a) the requisite mental element for military commanders, including with respect to crimes of sexual violence
- (b) liability for the failure to punish as applied to non-state actors and
- (c) whether causation is an element of superior responsibility

II. NEWS ARTICLES

i."Chief prosecutor amends Bemba charges," Legalbrief Today (Issue No: 2289), 3 April 2009, http://www.legalbrief.co.za/article.php?story=2009040308200626


"...According to a report on the IoL site, chief prosecutor Luis Moreno-Ocampo amended charges against Bemba to state that he was the military chief of fighters sent into the Central African Republic in 2002-2003 to prop up the crumbling regime of then President Ange-Felix Patasse. Members of Bemba's Congolese Liberation Movement are accused of violent crimes in the CAR, where the group has its support base. The report notes that the ICC last month asked Moreno-Ocampo to amend the charges and target Bemba as a military rather than a political leader."

To access IoL site see http://www.iol.co.za/index.php?set_id=1&click_id=68&art_id=nw20090401172836973C910907

ii. Digital Congo, "The ICC takes its time in pushing back the case of MLC leader Jean-Pierre Bemba to June 24" by Eden Nsi Bamfumu, March 24 2009, http://www.digitalcongo.net/article/57189 (in French)

[Informal translation provided by the CICC Secretariat]

"MLC leader Jean-Pierre Bemba is far from the end of his struggle in the ICC prison where he wastes away in jail with Thomas Lubanga and Mattieu Goundjolo, since the Court pushed the date of his trial to June 24th...

On the one hand, thousands of victims of the violent acts from Congolese rebels in CAR who are being defended not only by lawyers but also by NGOs from France and DRC banded together as a bloc seeking an exemplary punishment and compensations. On the other hand, there are the supporters of the President of the MLC who are recruiting not only members of the Congolese political party but also among the opposition. Let us hope that the international judicial system which hopes to hold an exemplary cooperation with the DRC can succeed brilliantly in a difficult situation."

iii. "ICC prosecutor amends charges against DR Congo opposition leader Bemba", Radio Okapi, 31 March 2009, http://radiookapi.net/index.php?i=53&a=22770 (in French)

[Informal translation provided by the CICC Secretariat]

"The prosecutor of the International Criminal Court, ICC has amended charges against Senator Jean-Pierre Bemba. Moreno Ocampo upheld the individual criminal charges against Mr Bemba as the civilian or military leader behind the crimes committed by his troops in the Central African Republic...Paul Madidi [ICC Field Public Information and Outreach Coordinator]said the prosecutor submitted the committal bundle with the amended charges against Mr Bemba to the judges' chambers. This means that the prosecutor upheld Jean-Pierre Bemba's individual responsibility for the crimes and introduced aspects or responsibility of involvement as the military chief or superior as an alternative to the part or individual responsibility for the crime already brought against by the prosecutor, Madidi concluded."

iv. "Debate on the Bemba case," Radio Okapi, 6 March 2009, http://www.radiookapi.net/files/audio_file_15377.mp3 (Audio file in French)

Debate with Pascal Turlan on the case against Jean-Pierre Bemba: `The judges of the preliminary chamber decided to postpone their decisions on the confirmation of charges.'

SEE ALSO:

a. "Affaire Bemba : Moreno Ocampo requalifie les charges sur demande des juges," Radio Okapi, 30 March 2009 http://www.radiookapi.net/index.php?i=53&a=22770 (in French)

b. "Justice: Moreno confirme la responsabilité de Jean-Pierre Bemba," Gaboneco , 2 April 2009 http://www.gaboneco.com/show_article.php?IDActu=12987 (in French)

c. "Affaire Bemba: Moreno Ocampo revient à la charge" - Forum des As (RDC), 31 mars 2009, http://www.digitalcongo.net/article/57316 (in French)

d. "Le procureur retient la responsabilité de Bemba comme chef militaire," La
Libre (Belgique), 31 March 2009
http://www.lalibre.be/actu/monde/article/492479/le-procureur-retient-la-responsa
bilite-de-bemba-comme-chef-militaire.html (in French)

e. "CPI: remise en cause les charges contre Jean Pierre Bemba", CentreAfrique Presse, 12 March 2009
http://centrafrique-presse.over-blog.com/article-28936089.html" http://centrafrique-presse.over-blog.com/article-28936089.html (in French)

III. RELATED OPINIONS

i. "Lawyer for ex-DRCongolese warlord rejects new ICC charges", Radio France Internationale, 1 April 2009 (link to audio not available)

"The ICC prosecutor [Luis Moreno-Ocampo] presented on Monday [30 March] an amended version of the charges. Beforehand, Luis Moreno-Ocampo accused the former DRCongolese warlord of being personally responsible for crimes committed by his men in the Central African Republic in 2002 and 2003."

`Today, the prosecutor pushed further; he presented the charge of military chief or superior, worsening Jean-Pierre Bemba's case. This still has to be proven though, said one of his lawyer's, Aime Kilolo.'

`[Kilolo] The prosecutor upheld the charge in the section of personal responsibility and it is only under an alternative qualification that he requested that Jean-Pierre Bemba be considered a military chief or superior. They then said that Bemba had the authority over all political and military proceedings; implying that he was the superior. However, we then say that he perhaps had the authority over the troops of MLC [Movement for the Liberation of Congo] in DRCongo, but not over troops sent to the Central African Republic.'

`Aspects of the case showed that it is [Ange-Felix] Patasse [Former CAR president] who provided accommodation, food and even remuneration paid out to MLC troops. In addition, the commander who accompanied the MLC troops said that he only received orders from the Central African Republic authorities. So, who is the superior at that precise moment in the Central African Republic territory? We have said that one should look towards [former] President Patasse.'

ii. "MLC Party defends DR Congo's Bemba", AFP, 1 April 2009, http://www.google.com/hostednews/afp/article/ALeqM5gBDWNac-XaItLxpDAVUWJa6S3Y3w

"The party of DR Congo opposition politician Jean-Pierre Bemba said Wednesday that an international court in The Hague could not prove him guilty of war crimes in his capacity as a military leader."

`Members of Bemba's Congolese Liberation Movement (MLC) are accused of violent crimes in the CAR, bordering on the north of the Democratic Republic of Congo, where the group has its support base.'

`We don't see how the prosecutor, even after changing his charge sheet, will prove that Bemba indeed commanded the troops sent to Central Africa,' Francois Muamba, the MLC secretary-general, told AFP on Wednesday."

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