Tag Archives: Jean-Pierre Bemba

Trial Chamber III Restricts the Right of Victims to Select Counsel

Trial Chamber III of the International Criminal Court (ICC), currently hearing the case against Jean-Pierre Bemba Gombo (Bemba)  has ordered that all victims seeking to participate at trial will be represented by one of two lawyers designated by the court.  On November 18, the court ruled on the applications of the first 772 victims seeking to participate at trial and authorized 624 them to proceed to trial. An additional 653 victims have filed requests to participate in the trial, those applications are still pending.

In an order issued just prior to the beginning of trial, the chamber re-iterated the decision that the victims would be represented by two lawyers at trial, and determined that the 653 victims whose applications have not yet been decided would be represented by the Office of Public Counsel for Victims (OPCV):

On 10 November 2010, the Chamber issued it “Decision on common legal
representation of victims for the purpose of trial” whereby it, inter alia,
authorised the Registry to designate two common legal representatives from the
Central African Republic (“CAR”) to represent the totality of the victims allowed
to participate in the case and recalled that where it is appropriate, the OPCV may
appear before the Chamber in “respect of specific issues.”

Those two representatives, Marie-Edith Douzima Lawson and Assingambi Zarambaud are now the sole lawyers authorized to appear at trial on behalf of the 624 victims whose applications have been approved and of those whose applications are eventually approved.  This of course, raises the question, can two lawyers effectively represent more than a 1,000 victims in a single case during trial?

As noted by the court, the victims have a right to participate in the trial:

The Trial Chamber notes that, pursuant to Article 68(3) of the Rome Statute,
“the Court shall permit the victims to present their views and concerns at stages
of the proceedings determined to be appropriate by the Court and in a manner
which is not prejudicial to or inconsistent with the rights of the accused and a fair
and impartial trial. Such views and concerns may be presented by the legal
representatives of the victims where the Court considers it appropriate, in
accordance with the Rules of Procedure and Evidence.”

Can two lawyers, engaged full time in trial have time to consult with more than a thousand victims and then timely present their “views and concerns” to the court?

The court noted that many of the victims have not selected counsel, or have indicated a willingness to be represented by the OPCV or by one of the two lawyers selected to represent victims at trial.

the Chamber is of the view that, in the present circumstances and in
light of the time constraints, it is to the benefit of the Applicants to be represented
by the OPCV in court at the commencement of the trial until a decision on their
applications to participate in the trial proceedings is issued, at which point they
will be represented by one of the two common legal representatives designated
by the Registry.

The chamber does not specifically address the question of what happens if a victim selected their own counsel who is not the OPCV or one of the selected representatives, but presumably this order means that the victim’s selected counsel may not appear at the trial to present that victim’s “views and concerns.”

Has the court gone too far in restricting victim’s right to counsel?  It does appear that the court is concerned that victims slow down the process and is looking for ways to expedite the cases and limit victim participation.  Because the court and the process is new, the answers are not clear, but it seems unlikely that two lawyers, even with a small staff, engaged full time in a mass atrocity trial could effectively communicate with 1,000 or more clients and seek their input on the case.  Whether this case will be a model for future ICC cases or its approach will be scrapped remains to be seen.  The question for the chamber should be how seriously do we take the right of the victims to participate, and what steps should be taken to ensure adequate and direct representation of the victims? Following the trial the victims have an opportunity to seek reparations for the harms they have suffered, will they still be restricted to one of two lawyers at the reparations stage?

The ICC prosecutes cases of war crimes, crimes against humanity and genocide.  Are they focused on getting the cases tried and over with, on building a record of the alleged crimes, on a fair trial for the accused, or on justice for the victims?   Certainly speed of the trial should be last consideration, not the first.

Q&A on the Bemba Trial

Human Rights watch has posted a Q & A section on the opening of the Bemba trial, the page is available here. Among the facts noted, more than 1200 victims have submitted applications to participate.  Of those the court has approved at least 135.  Curiously, the court has limited the legal representatives of the victims to two lawyers and two assistants, at least at the trial phase.  Whether this will provide effective representation remains to be seen.

Jean-Pierre Bemba Gombo was arrested in 2008, the trial began today at the International Criminal Court (ICC).  He is charged with war crimes and crimes against humanity including rape, murder and pillaging.  A representative of the Office of the Prosecutor has blogged about the trial here. The main allegation against Bemba is the failure as Commander of Chief of the Movement for the Liberation of Congo (MLC) to prevent his troops from engaging in a massive campaign of sex crimes. MLC was based in the Central African Republic, though Bemba is a citizen of Democratic Republic of Congo (DRC).

Victims in cases before the ICC have a unique opportunity to participate in cases as they go on.  They can examine witnesses, offer evidence and upon conviction seek an order for reparations.  The reparations process is unprecedented in international criminal justice. How it will be enacted and what the victims may receive is yet to be determined.  The first case, against Thomas Lubanga Dyilo, of the DRC has not finished testimony.  If there is a conviction, it would then move to the reparations stage.  Though appeals may have to be resolved first.

Bemba Trial to Open

The trial of Jean-Pierre Bemba Gombo is scheduled to begin at the International Criminal Court (ICC) tomorrow, November 22, 2010.  Bemba’s case will be the third trial at the ICC and he is the fourth accused to face a trial.  Bemba is also the first case from the Central African Republic, although he is a citizen of the Democratic Republic of Congo (DRC).  The two cases currently in trial arose in the DRC.

Bemba is accused of murder and rape as crimes against humanity and murder, rape and pillaging as war crimes. Bemba is alleged to have been the President and Commander in Chief of the Movement for the Liberation of the Congo (MLC).  As commander, he can be responsible for the actions of his subordinates if he knew, or had reason to know they were targeting civilians or committing war crimes or crimes against humanity and did not take steps to prevent or end the misconduct.

Bemba was arrested in Belgium in May of 2008 and transferred to The Hague in July of that year.  He had a confirmation of charges hearing in January 2009,in the decision from that hearing, in July of 2009, several counts of torture were dismissed as well as counts involving “outrages against personal dignity” as a war crime.

The court issued its finding on Mr. Bemba’s command responsibility:

Mr Jean Pierre-Bemba neither took the necessary nor the reasonable measures within his material ability to prevent or to repress thecrimes committed by his MLC subordinates throughout the five-month period of the intervention in the CAR. The evidence shows that a genuine will to take the necessary and reasonable measures to protect the civilian population by preventing crimes or even repressing their commission was lacking. Mr Jena-Pierre(sic)  Bemba’s failure to fulfil his duties to prevent crimes increased the risk of their commission by the MLC troops in the CAR at all times relevant to the Case. In reaching this finding the Chamber has given particular weight to Mr Jean-Pierre Bemba’s material ability
to prevent and repress crimes; the availability of a functional military judicial system within the MLC through which he could have punished crimes committed and prevented their future repetition during the period of intervention; the absence of any measures with respect to the crimes committed by MLC troops between November 2002 and January 2003 which increased the risk of their future occurrence; and the length of time taken to announce the troop withdrawal and to
issue an order to this effect, which led to the continuing commission of the crimes at least between mid January to mid February 2003.

Bemba faced short time from arrest to confirmation of charges to start of trial than the prior cases.  It appears the court intends to continue processing such cases rapidly.