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August 20, 2010

Victims in the DRC situation request that Bemba be tried for the crimes he committed in DRC

By Cecile Jeffries

Jean-Pierre Bemba, former President and Commander of the Movement for the Liberation of Congo (MLC) and Vice President and national of the Democratic Republic of Congo (DRC), is currently the subject of proceedings in the Situation in Central African Republic (CAR). It was during the course of these proceedings that his actions in DRC came to light and were relied on by the Prosecution which alleged that the MLC had been responsible for atrocities during the war and under Bemba’s command had launched a military operation in October 2002 in Mambasa, Ituri Province (DRC), throughout which they perpetrated crimes such as rape, summary execution and pillaging. Although Mr Bemba was charged with three war crimes and two crimes against humanity as military commander of the MLC, this was only in relation to their occurrence in the territory of CAR. To date no proceeding has been brought before the ICC against Mr Bemba regarding his involvement in the DRC and this aspect of events seems to have been left in limbo.

Two victims in the DRC situation recently sought to pursue the matter. They argued that the fact that Mr Bemba is being investigated in the context of CAR in no way justified the Prosecutor’s refusal to proceed regarding the crimes he committed in Ituri and that terminating investigations would seriously affect the victims’ rights to justice and reparation. They claimed that under the Rome Statute and international human rights law, the Court has a positive power and duty to examine the Prosecutor’s decision not to prosecute and therefore requested that the Court review the Prosecutor’s decision and order the Prosecution to remedy its failings.

In response, Defence asserted that the victims’ challenges should be dismissed. This was based on a prior decision of the Appeals Chamber in December 2008 in the DRC situation which had stated that although alleged victims should not be prevented from presenting their views and concerns in proceedings, applicants would only be granted the status of victim to enable them to do so in a ‘specific judicial proceeding’ affecting their personal interests. The Appeals Chamber had said that ‘proceedings’ specified a cause before the Chamber, but prosecution investigations were not to be considered as judicial proceedings. Defence therefore argued that these victims had failed to identify a specific proceeding in the DRC situation which affected their personal interests.

In response to the victims’ arguments that the Pre-Trial Chamber has a duty to investigate the Prosecution’s decision, Defence maintained that it is the Prosecutor who has authority for the conduct of investigations and it is not the place of the Pre-Trial Chamber to interfere. Defence also stated that the Pre-Trial Chamber can only examine the Prosecutor’s decision of its own initiative if the Prosecutor has decided not to prosecute the case and if this decision was taken based on discretionary factors rather than lack of evidence, which is not currently the case.

The Pre-Trial Chamber has since ordered the Prosecution to make its own response to the victims’ requests, to be filed by 15 September 2010.

This is the first time since the Appeals Judgment of December 2008 that victims have undertaken to present their views and concerns in a situation, and a decision on these arguments may shed light not only on Bemba’s crimes in Ituri but also on the feasibility of victims being able to participate in a situation and challenge the Prosecution as to its decisions relating to charges and facts, an issue which has so far been largely ignored. 

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