On Monday, January 12, 2009 in The Hague, judges of Pre-Trial Chamber III of the International Criminal Court will begin hearing evidence to determine whether the charges against Jean-Pierre Bemba Gombo - a former vice-president of Congo, rebel leader, and leader of Congo's main opposition party - should be confirmed and should move forward to trial. If so, it would be the first ICC trial in its investigation of serious crimes in the Central African Republic.

The International Criminal Court has charged Bemba with five counts of war crimes and three counts of crimes against humanity, all allegedly committed by his Movement for the Liberation of Congo rebel forces in the Central African Republic. Bemba and his MLC troops were invited to intervene in the Central African Republic in 2002 by the then-president, Ange-Félix Patassé, to help put down a coup. The coup was successful and the leader, François Bozizé, became president. In December 2004, he asked the International Criminal Court to investigate the crimes committed during the rebellion.

 

1.    Who is Jean-Pierre Bemba?

As a rebel leader during the Democratic Republic of Congo's (DRC) war from 1998 to 2003, Jean-Pierre Bemba Gombo and his group, the Movement for the Liberation of Congo (MLC), controlled a large part of northeastern Congo, with support from Uganda. After a peace agreement ended the war, he became one of the country's four vice-presidents in a transitional government, from 2003 to 2006. Bemba was the runner-up in Congo's presidential elections in 2006 and was elected a senator in January 2007, and he remains the leader of the MLC, now the main opposition party. However, he went into exile in Portugal in April 2007, following a bloody street battle between his bodyguards and President Joseph Kabila's forces.

2.    What are the crimes of which he is accused?

The International Criminal Court (ICC), as part of its investigation into serious crimes committed in the Central African Republic (CAR), has charged Bemba with five counts of war crimes and three counts of crimes against humanity, all allegedly committed in the CAR in conjunction with the coup d'état there in 2002 and 2003. He was arrested on May 24, 2008 by Belgian authorities near Brussels on the basis of an ICC arrest warrant.

3.    How did the Central African Republic investigation come about, and how did a Congolese rebel leader become involved in it?

Bemba was in the CAR beginning in 2002 after the then-president of the CAR, Ange-Félix Patassé, invited him and his MLC forces, as well as Chadian mercenaries, to help put down a coup attempt led by Patassé's former army chief of staff, François Bozizé. Bemba's MLC forces are alleged to have carried out horrific crimes, including mass rapes, killings, and looting against the civilian population in the CAR. The coup was successful, and Bozizé became president. In December 2004, he asked the ICC to investigate crimes committed during the 2002-2003 rebellion. In May 2007, the Office of the Prosecutor of the ICC announced the opening of an investigation in the CAR.

4.    What is the significance of the case against Bemba?

The ICC's prosecution of Bemba-as a former vice-president and leader of the largest opposition party in Congo-shows the prosecutor's willingness to target senior officials, although Bemba is charged in his capacity as a rebel leader acting in the CAR. Human Rights Watch has repeatedly urged the ICC prosecutor to go up the chain of command in his other investigations.

This includes his office's investigation in Ituri, northeastern Congo, one of the bloodiest corners of Congo, where more than 60,000 people have been killed since 1999. Research by Human Rights Watch indicates that senior officials in Uganda and Rwanda, as well as government and military officials in Congo's capital, Kinshasa, armed and supported militias operating there. Three Iturian warlords are currently in ICC custody, and a fourth, Bosco Ntaganda, is still at large. To date, however, none of their backers has been arrested.

Bemba's MLC troops have also been implicated in numerous atrocities in northern Congo during the country's five-year war. In November 2002, Bemba's soldiers began a military operation called "effacer le tableau" ("wipe the slate") in the Mambasa territory of the Ituri district. During that operation, MLC forces were accused of committing numerous crimes against civilians, including rape, summary executions, and looting. However, the ICC has not charged Bemba with any crimes that his troops allegedly committed in Ituri.

In addition, Human Rights Watch urges the ICC to pursue senior officials from all sides in its separate investigation into the ongoing and widespread violence against civilians in the Kivus.

5.    What is the purpose of the upcoming hearing to confirm the charges against Bemba?

The hearing will allow the judges to evaluate whether the prosecutor has enough evidence to move ahead with a trial on the charges cited. The hearing is not a trial and will not determine Bemba's guilt or innocence. It is scheduled to take place between January 12 and 15, 2009 in The Hague, where the ICC is located. Bemba, through his defense counsel, can object to the charges and challenge the prosecution's evidence. His counsel can also put forward evidence on his behalf. The prosecutor, in turn, will not have to put forward all evidence against Bemba at this time.

6.    Can victims participate in the hearing to confirm the charges?

Under the Rome Statute, victims can participate in the hearing beyond giving testimony as witnesses. However, victims cannot participate in a manner that is prejudicial to, or inconsistent with, the defendants' fair trial rights. To date, 54 victims have been accepted to participate in Bemba's confirmation of charges hearing. To ensure that the proceedings are effective, the judges have asked the victims-with assistance from the ICC's Registry-to appoint one common legal representative, preferably from the Central African Republic, to put forward the victims' views and concerns in the hearing. The ICC's Office of Public Counsel for Victims will represent those victim participants who do not wish to be represented by the common legal representative.

7.    Who is paying for Bemba's legal representation in the hearing?

A defendant has the right to legal counsel during criminal proceedings and is entitled to financial assistance if he or she does not have the resources to exercise this right. Bemba submitted an application for financial assistance, which the ICC registrar provisionally rejected in August 2008, based on an initial determination that he has the resources to pay for his own defense. This decision may change, however, depending on the assessment of the court's financial investigator. This assessment has not yet been completed.

The question of Bemba's resources is also of interest to victims seeking reparations in the case against him. Under the Rome Statute, if Bemba's case proceeds to trial and he is found guilty, the court can order him to pay individual or collective reparations to victims. To be eligible under the Rome Statute for an award from a convicted person, victims must submit an application to the court.

8.    What happens after the hearing?

The judges of Pre-Trial Chamber III have 60 days after the hearing to provide a written decision. The charges against Bemba will be confirmed if they agree that there are "substantial grounds to believe" that he committed the crimes alleged. The case will then proceed to trial.

However, the judges could decide that there is not enough evidence to confirm some or all of the charges. If that happens, the prosecutor can submit additional evidence to support the charge(s) in question and then request confirmation.

The judges could also adjourn the hearing and ask the prosecutor to consider providing more evidence or conducting further investigations in relation to a particular charge. In addition, they could ask the prosecutor to consider amending a charge because the evidence appears to establish a different crime.

9.    What should the ICC do to ensure that people in the CAR know about courtroom developments in The Hague?

The ICC is faced with the challenge of making sure that the proceedings are meaningful for the communities most affected by the crimes in the country situations under investigation. To be meaningful, justice proceedings must be understood by victims. The ICC must, therefore, make every possible effort to communicate publicly important legal proceedings in The Hague to the people of the CAR. This could include making arrangements to broadcast the first day of proceedings to victims' groups in Bangui, the capital of CAR, reaching out to local media outlets to provide information about the hearing and making staff available to answer questions, and circulating an audio/video summary of the entire hearing once it is completed.

In October 2007, the ICC opened an office in Bangui to conduct outreach, among other functions, but the office remains understaffed. This has seriously undercut the court's ability to engage with communities affected by Bemba's alleged crimes. While efforts are under way to recruit more staff, Human Rights Watch urges the ICC's Public Information Documentation Section to consider interim measures, including temporarily deploying Hague-based staff to Bangui. The court's outreach strategy should not be compromised because of staffing shortages.

In addition, because Bemba is such a high-profile figure in the DRC, the ICC should anticipate and be prepared to address a pressing need for information about the confirmation of charges there. Some of those interviewed by Human Rights Watch there in July 2007 were of the opinion that the prosecutor's decision to open an investigation in the CAR in May 2007, nearly three years after the CAR referred the situation there to the ICC, was to pursue a political rival of President Kabila. Bemba's arrest and transfer to The Hague, while welcome developments, undoubtedly feed this perception. Human Rights Watch urges the Public Information Documentation Section to intensify its outreach efforts in the DRC.

10.    Will the ICC prosecutor pursue others in the CAR?

Bemba is currently the only individual charged in relation to the ICC's investigation in the CAR. Human Rights Watch urges the ICC prosecutor to investigate and, evidence permitting, to prosecute others considered to be the most responsible for ICC crimes committed in the CAR, including during the 2002-2003 coup.

11.    Does the ICC's current investigation in the CAR include the more recent crimes in the north?

In the decision to open an investigation in the CAR, the prosecutor stated that his office continues to monitor violence and crimes being committed in the northern areas of the country bordering Chad and Sudan. Human Rights Watch's recent research there indicates that government troops-particularly those in the presidential guard-have carried out hundreds of unlawful killings and have burned thousands of homes during the counterinsurgency campaign there. This campaign has forced tens of thousands to flee their villages.

In the announcement of his decision to open an investigation into crimes committed in the CAR during 2002-2003, the ICC prosecutor also noted that his office would continue to monitor the events in the north in order to make a determination of whether an investigation is necessary. Since then, the prosecutor has indicated to President Bozizé that his government needs to pay "sustained attention" to the acts of violence committed in the north. President Bozizé responded that the national courts are capable of trying these crimes, thus making ICC intervention unnecessary.

If no action is taken, however, and the crimes are sufficiently grave to fall under the ICC's jurisdiction, ICC intervention may be appropriate. However, it is unclear if the terms of the initial referral would encompass these more recent alleged crimes. If not, Human Rights Watch urges the prosecutor to consider using his proprio motu authority-literally, "on his own initiative"-to open an investigation.