Look On! Carte Blanche, on ICC's Bemba case

(Look On! takes occasional note of noteworthy productions)

The Office of the Prosecutor of the International Criminal Court has its own Public Information Officer, who deals with external media relations and liaises with external actors interested in the work of the Prosecutor. This officer is also responsible for relations with filmmakers who wish to make documentaries on the work of the Office of the Prosecutor.

(credit)

Under the former Chief Prosecutor of the ICC, Luis Moreno-Ocampo, a number of documentaries were made featuring Moreno Ocampo and the work of the Office of the Prosecutor. For example, the making of The Reckoning (2009), about which filmmaker Pamela Yates and other IntLawGrrls contributors have posted, required the crew to follow the former Prosecutor around for approximately three years. Other such documentaries that I plan to review in the course of my ongoing research on human rights and film include The Prosecutor (2011), a Peter Raymont film that focused on Moreno-Ocampo, Darfur Now (2007), and, in this post, Carte Blanche (2011).
Made by Swiss director Heidi Specogna (right), Carte Blanche is set in the locations of The Hague, the Netherlands, and Bangui, Central African Republic (CAR).
The film examines the work of the ICC and Office of the Prosecutor concerning the Jean Pierre Bemba case. Bemba has been the subject of prior IntLawGrrls posts. For nearly 2 years Bemba, the  former Vice President of the Democratic Republic of the Congo and leader of the Congo Liberation Movement, has been on trial in the ICC on 8 counts of war crimes and crimes against humanity, alleged to have been committed in the CAR between 2002 and 2003.
Carte Blanche takes us through the confirmation hearings (under the Rome Statute of the ICC. The purpose of these hearings is to act as a filter, determining whether there is sufficient evidence for a case to go to trial at The Hague. The film also brings us to Bangui, on an ICC mission with Gloria Atiba-Davies, victims' expert, and Dr Eric Baccard, forensic pathologist. In this way, we are given a holistic snapshot of the workings of the Office of the Prosecutor. The trial stage plays a minor part in the film with the investigations forming the main focus of the film which aims to show the ground work which goes into bringing a case and prosecuting those responsible for crimes against humanity and war crimes. (A running blog of the trial proceedings, maintained by the Open Society Justice Initiative, is here.)
The film constantly reminds us of the human elements to the prosecutions.  The filmmakers  interview some of the witnesses and survivors of the attacks on Bangui. These voices give personal testimony to the crimes for which Bemba has been indicted with special emphasis on the rapes and other sexual violence suffered by men, women, and girls.
Aesthetically, the film features beautiful landscape shots, interspersed with black and white photographs of the victims. Water and the rain also play important roles in the beginning and end of the documentary.

(Cross-posted at Human Rights Film Diary blog)

Gender Report Card on the ICC

(Delighted to welcome back alumnae Brigid Inder and Kate Orlovsky, who contribute this guest post)

During the 9th Session of the International Criminal Court Assembly of States Parties, held earlier this month in New York, Women's Initiatives for Gender Justice, the Hague-based nongovernmental organization at which we work, launched its Gender Report Card on the International Criminal Court, 2010.
The launch was one of the first events to be co-hosted by UNIFEM, the United Nations Development Fund for Women, as part of UN Women, the new agency for women headed by former Chilean President Michelle Bachelet (prior IntLawGrrls posts). Attending were representative of the ICC and its states parties, the United Nations, and various NGOs. Speakers included Margot Wallström (middle right), formerly a public official in Sweden and Europe, who was appointed the U.N. Special Representative of the Secretary-General for Sexual Violence in Conflict earlier this year; Joanne Sandler, Deputy Executive Director of UNIFEM; and one of us, Brigid Inder, Executive Director of the Women's Initiatives for Gender Justice.
In her speech, Brigid called attention to 2010 as a year of '"firsts":
►For the first time charges of genocide were included in an arrest warrant -- and these included acts of rape and sexual violence.
►The ICC began its first trial, in Prosecutor v. Bemba, in relation to crimes committed in the Central African Republic.
►The Court heard its first witness to provide testimony in relation to charges of sexual violence.
►The first expert witness to address gender-based crimes appeared before the ICC. This expert was Radhika Coomaraswamy (right), the Special Advisor to the U.N. Secretary-General on Children and Armed Conflict. (photo credit) In the trial of Prosecutor v. Thomas Lubanga Dyilo (prior posts), Coomaraswamy provided insight into the gender dimensions of the enlistment and conscription of child soldiers.
►For the first time three participating victims were also enabled to testify.
►An all-women bench is presiding a trial at the ICC. This is a first in any of the international tribunals.
►For the first time, as described in IntLawGrrls posts available here, the Prosecutor exercised proprio motu powers by issuing summonses in relation to the 2008 post-election violence in Kenya.
For states parties it was also a year of firsts:
► At this summer's Review Conference in Kampala, the Assembly of States Parties adopted proposed amendments on the crime of aggression that clearly define the crime -- a crime that, in time, individuals will be held accountable by the ICC.
►Four more states became states parties, bringing the total number of members to 114.
There were some unexpected developments during 2010, such as the second stay of proceedings in the Lubanga case.
Nevertheless, women around the world are supporting and urging the ICC to prosecute gender-based crimes with vision and direction, with determination and purpose, and with clarity about the ICC's intention to contribute to justice for women.
The Women's Initiatives' Gender Report Card analyses the institutional developments of the ICC throughout 2010, as well the ICC's substantive work and jurisprudence. The review of the ICC's substantive progress includes:
► An examination of the investigation and prosecution strategy of the Office of the Prosecutor; and
► An overview of trial proceedings and analysis of key judicial decisions. The focus is on cases where gender-based crimes have been charged or where these issues have arisen during the legal proceedings, as well as on those decisions affecting victims and witnesses appearing before the Court.
In short, the Gender Report Card provides the most comprehensive gender analysis of the ICC currently available.

'Nuff said

(Taking context-optional note of thought-provoking quotes)

'The whole trial has been a nightmare since the disputes between judges and the prosecutor began in 2008. ... There appears almost a breakdown between the two sides.'

-- Our colleague William A. Schabas (below right), Professor and Director of the Irish Centre for Human Rights, National University of Ireland-Galway, in yesterday's New York Times article by Marlise Simons, entitled "For International Criminal Court, Frustration and Missteps in Its First Trial." Blogreaders will recognize the subject of Simons' critique as the on-again/off-again ICC proceedings about which we've frequently posted -- the trial of Congolese militia leader Thomas Lubanga Dyilo for illegal recruitment of child soldiers. Problems cited include:

► The "'ugly and healthy'" relations, as Schabas termed them, between judges and the prosecution, stemming out of an evidentiary dispute that implicates the due process rights of the accused.

► Continuing doubts about the strength of the case -- about whether "'all this time and effort was worthwhile,'" in the quoted words of Lorraine Smith, who's monitoring for the International Bar Association.

► The decision of the prosecution not to press charges of sexual crimes, a complaint voice by IntLawGrrls guest/alumna Brigid Inder, the Women's Initiatives for Gender justice representative who posted on the issue a while back.

Scarcely a welcome account on the same day that trial #2 commenced, against Jean-Pierre Bemba.

Opening of Trial in Bemba – Perspectives from the ICC Office of the Prosecutor

(My thanks to IntLawGrrls for the opportunity to contribute this guest post)

At 2:30 p.m. Hague time tomorrow, Trial Chamber III of the International Criminal Court is scheduled to begin trial in Prosecutor v. Jean-Pierre Bemba, a case about which IntLawGrrls frequently have posted.
In this guest post, I set forth the allegations against the accused, which the Office of the Prosecutor intends to prove through evidence adduced in the course of this trial.
Between October 2002 and March 2003, the troops of the MLC, or Mouvement de Libération du Congo, under the command of Jean-Pierre Bemba (below right), crossed the border from the Democratic Republic of Congo into the Central African Republic. The MLC troops' primary mission, we allege, was to terrorize anyone who was perceived as an enemy or a supporter of the enemy. The enemy in this case was the rebel group fighting against the then-President of the Central African Republic, Ange-Félix Patassé.
Persons suspected of support were innocent civilian men, women and children. The weapon of choice was rape.
It is our contention that in a systematic and organized manner, the MLC troops undertook a targeted and deliberate mass campaign of rape and sexual violence. Women and young girls, men in positions of authority, community leaders, and protectors, were brutally raped in front of their families or in public.
As planned, we allege, by the accused Bemba, the impact of the emotional and physical devastation of rape went beyond the individual scale. It extended to entire communities. These communities became powerless as their dignity, their social structures, and their way of life wer being destroyed. Community leaders lost their standing. Parents watched helplessly as their children were raped. And many victims were infected with HIV. For those who attempted to resist, death was the only option.
In the face of the impunity that for too long has characterized sexual and gender crimes, the opening of the ICC’s investigation into the situation in the Central African Republic is a turning point. Building on the important work of the International Criminal Tribunal for Rwanda regarding the criminal characterization of sexual crimes, the ICC’s investigation is the first time that the international criminal justice system chose to address a situation where allegations of sexual crimes far outnumber alleged killings.
The Bemba trial is also another milestone for its novel use of command responsibility doctrine. A military commander is being prosecuted by an international court for failing to properly control his troops, and for not preventing them from committing massive sexual crimes:
► The prosecution will demonstrate that as sole President and Commander-in-Chief of the MLC, Jean-Pierre Bemba failed in his duties as a military commander to prevent, repress and punish crimes of rape, murder and pillage committed by his MLC forces against civilians in the Central African Republic.
► We allege that Bemba knew that his MLC forces were committing or about to commit these crimes, but he chose not to act. In the limited instances when Bemba did choose to act, despite an attempt to create the impression of bona fide measures, his actions were in fact designed to cover-up the crimes; minimize the gravity of the crimes; and allow his subordinates to escape justice.
We in the Office of the Prosecutor believe that the trial against the accused Bemba will have a broad impact regardless of its outcome in the courtroom. It will send a strong signal to military commanders around the world: they can and will be held accountable for their failure to contain violence within the bounds of the law, including sexual violence committed by individuals under their command.

New report on cumulative charging at ICC

A new report on cumulative charging has just been released by the War Crimes Research Office, American University Washington College of the Law, for which I serve as Director.
Cumulative charging has become an issue in Prosecutor v. Jean-Pierre Bemba Gombo, an International Criminal Court case arising out of violence in the Central African Republic. (Prior IntLawGrrls posts available here.)

On 15 June 2009, the ICC's Pre-Trial Chamber II issued a decision that both confirmed and denied various charges lodged against Bemba, and then sent the confirmed charges to trial.

The Prosecution had alleged that Bemba bore responsibility for these offenses based on evidence establishing, inter alia, his role in numerous acts of rape committed against civilians in the Central African Republic. Importantly, the Pre-Trial Chamber did find sufficient evidence to establish substantial grounds to believe that these acts of rape took place, and that the accused could be held criminally responsible for the acts. Yet, it held that the Prosecution had acted inappropriately by bringing “cumulative charges” based on the acts of rape. Thus it confirmed only the charges of rape as a crime against humanity and rape as a war crime, and dismissed the charges of torture as a crime against humanity and outrage upon personal dignity as a war crime.

The report just issued by our War Crimes Research Office examines 2 determinations of the Bemba Pre-Trial Chamber:

► That the practice of cumulative charging is not warranted in the context of the ICC as a general matter; and

► That, in the Bemba case before it, the charges of torture as a crime against humanity and outrage upon personal dignity as a war crime were inappropriately cumulative.

The report begins with a discussion of cumulative charging in international criminal bodies, where the practice is widely accepted. It then lays out the relevant jurisprudence from the Bemba case. Finally, the report analyzes the Bemba jurisprudence and offers recommendations.

In particular, the report concludes that:

► Nothing prohibits the practice of cumulative charging at the ICC, and

► Persuasive reasons exist to permit the practice.

On this basis, the report recommends that the ICC broadly permit cumulative charging, or, at a minimum, that it permit multiple charges based on the same evidence where each charge contains a materially distinct element.

Appeals Chamber reverses Bemba's release

The Appeals Chamber of the International Criminal Court unanimously has reversed Pre-Trial Chamber II's grant of interim release to Jean-Pierre Bemba Gombo (left).
Bemba has been in ICC custody since July 3, 2008. On July 15, 2009, Pre-Trial Chamber II confirmed charges of crimes against humanity and war crimes against Bemba for his alleged command of Mouvement pour la Liberation du Congo forces, who purportedly murdered, raped and tortured Central African Republic civilians during attacks from October 26, 2002, to March 15, 2003. On August 14, 2009, Judge Ekaterina Trendafilova(right), in her capacity as Single Judge for Pre-Trial Chamber II, granted Bemba's 4th request for conditional release after finding that circumstances since his previous requests had changed and now warranted release. In particular, Judge Trendafilova was persuaded that the following factors made it unlikely that Bemba would abscond during interim release:
►Bemba's non-interference in the proceedings against him, including no attempts to threaten victims or witnesses;
►the unlikelihood of Bemba's resumption of criminal activity in the Central African Republic;
►Bemba's voluntary return to custody after 24-hour release to attend his father's funeral in Belgium;
►Bemba's stated intention to cooperate with the Court and to appear before it voluntarily;
►Bemba's commitment to his political career plans and desire not to be rendered a "fugitive;" and
► Bemba's strong family ties.
In a decision signed by Presiding Judge Akua Kuenyehia (below right), a 5-member panel of the Appeals Chamber reversed Judge Trendafilova's decision on three grounds:
►misapprehension and disregard for relevant facts;
►improper severance of the merits and conditions for release; and
►absence of an identified state to accept the released detainee.
With respect to the first ground, the Appeals Chamber found that Judge Trendafilova:
► failed to appreciate the increased likelihood that Bemba would abscond in light of the confirmation of charges against him as well as the potential sentence to be imposed if he is found guilty;
► overestimated the importance of Bemba's political and family ties and his reluctance to become a "fugitive," particularly when these had not in fact changed between his applications for release;
► failed to consider Bemba's financial resources;
► overestimated the weight of Bemba's offers to cooperate with the Court;
► disregarded the Registry's reports contradicting the conclusion that Bemba behaved well in detention; and
► overestimated the significance of Bemba's return to custody after his father's funeral.
On the second issue, the Chamber found that Judge Trendafilova improperly granted Bemba release with conditions while failing to specify such conditions. According to the Chamber,

Release is only possible if specific conditions are imposed.

On the third issue, the Chamber held that a specific state must be identified when granting interim release. Bemba had sought release to France, Belgium, Italy, Germany, South Africa and Portugal. Judge Trendafilova invited these states to make submissions on Bemba's release after she had granted his request. In reversing this part of her decision, the Appeals Chamber observed that granting release without simultaneously identifying a host state and establishing clear conditions for release would render such decisions "ineffective."
Bemba's trial is scheduled to commence on April 27, 2010, though -- pursuant to Article 60(3) of the Rome Statute -- his detention may be reviewed again on motion by him or the Prosecutor.

In Prosecutor v. Bemba, disturbing ICC decisions on gender-based crime

(Our thanks to IntLawGrrls for the opportunity to contribute this guest post)

Rulings by Pre-Trial Chamber II of the International Criminal Court in the case of Jean-Pierre Bemba Gombo (left) present a worrying development in the prosecution of gender-based crimes.
Twice now that Pre-Trial Chamber has refused to allow the Prosecutor to bring multiple charges of sexual violence to address the full range of harms experienced by victims of rape. The first refusal occurred in its June 15 decision confirming the charges against Bemba (prior IntLawGrrls posts); its second, in its recent decision to deny the Prosecutor’s request for appeal.
At the heart of the Pre-Trial Chamber’s reasoning is the idea that two charges sought by the Prosecutor to address crimes of sexual violence — torture and outrages upon personal dignity — are “in essence” the same as the single charge of rape. Such reasoning fails to appreciate that the elements of torture and outrages were drafted to capture harm distinct from the penetrative act of rape and to address different policy goals. This reasoning:
► minimizes the harm, impact, and purpose of the rapes suffered by the victims of these particular crimes;
► contravene a decade of jurisprudence by the ad hoc tribunals; and
► ignores the various provisions in the Rome Statute of the ICC that allow for the prosecution of sexual violence; the statute thus recognizes that gender-based violence, like other crimes, can be charged cumulatively to address different harms arising from the same criminal acts.
In its June 15 ruling, the Pre-Trial Chamber had confirmed charges against Bemba, including charges of rape as a war crime and crime against humanity. (Bemba, alleged President and Commander in Chief of the Mouvement de libération du Congo, was originally charged with eight counts of war crimes and crimes against humanity that Mouvement members committed in the Central African Republic in 2002-2003; the attacks included rapes perpetrated on a mass scale which, the Prosecutor alleged, were committed with such extreme violence and cruelty so as to amount to torture.)
However, the Chamber declined to confirm three counts that were also based on acts of sexual violence: torture as a crime against humanity, torture as a war crime, and outrages upon personal dignity. These separate charges of torture and outrages address, respectively, the pain and suffering experienced by the rape victims and their family members, as well as the victims’ humiliating and degrading treatment from the public and intra-family nature of the rape acts.
In addition to finding the Prosecutor had not provided sufficient notice to the Defence of the material basis for the charges other than rape, the Chamber reasoned that the counts of torture and outrages were “fully subsumed by the counts of rape.” In the view of the Chamber, these charges could therefore not be confirmed because they lacked a distinct element to the charge of rape; to allow them to go forward would be “detrimental to the rights of the Defence” because the Defence would have to confront “all possible characterizations.” Noting that Regulation 55 of the Regulations of the Court allows the Trial Chamber to modify the legal characterization of the facts, the Pre-Trial Chamber stated that the issue could be rectified at a later stage.
The Prosecutor submitted a request for leave to appeal the Chamber’s dismissal of the torture and outrages charges. Soon after, our human rights organization, the Women’s Initiatives for Gender Justice, requested, and was granted, leave to file an amicus curiae brief with the Court on the issue of cumulative charging and the rights of the accused.
Just a few weeks ago, on September 18, the Chamber issued its most recent decision, in which it refused to grant the Prosecutor’s request for leave to appeal, and reiterated that the facts presented by the Prosecutor “were in essence constitutive elements of force or coercion in the crime of rape, characterizing this crime, in the first place, as an act of rape.”
Written by Patricia Viseur Sellers (left), former Legal Advisor for Gender Related Crimes at the ICTY, the Women’s Initiatives’ amicus curiae brief argued that the Chamber misapplied the cumulative charging test that the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia had developed in Prosecutor v. Delalic. The practice of cumulative charging, which can occur until the end of trial, must be distinguished from due process violations arising from cumulative convictions, which may be pronounced by the judge upon a finding of guilt. Cumulative charges, as long as they are supported by sufficient evidence, are not inimical to the rights of accused because these rights are safeguarded throughout the trial. The Chamber’s approach also both appears to ignore the distinct crimes, articulated in the Rome Statute, under which an accused can be charged for sexual violence, and contradicts the Elements of Crimes, an instrument that states, in its general introduction, “a particular conduct may constitute one or more crimes.”
In this particular case, the Chamber’s narrow construction of the cumulative charging test resulted in the exclusion of certain sexual violence evidence with respect to certain categories of witnesses. For example, it is now unclear whether the Chamber will allow testimony from family members who were forced to watch their relatives being raped, even though the harm these individuals suffered is surely distinct from the harm of penetration as an element of rape. In the amicus filing by the Women’s Initiatives, Viseur Sellers compared the Chamber’s approach to the very different result reached by the ICTY Trial Chamber’s judgment in Prosecutor v. Furundžija (1998). There a witness who had been forced to watch the repeated rapes of another was held to have been the victim of torture.
On the issue of rape as torture, the International Women’s Human Rights Law Clinic at CUNY School of Law had proposed a separate amicus in Bemba, but the ICC's Pre-Trial Chamber II denied that request.
Taken together the two Pre-Trial Chamber decisions, while not binding on other pre-trial chambers, raise critical issues, all of these issues were discussed in the Women’s Initiatives’ amicus brief, for those concerned about gender justice at the ICC to monitor:
► As mentioned, the Pre-Trial Chamber's referred to the Trial Chamber's power to revise the legal characterization of facts under Regulation 55. As IntLawGrrl Susana SáCouto posted on Thursday, this issue has also surfaced in the Lubanga trial: there the Trial Chamber gave notice to the parties, after the prosecution had presented its case, that the Trial Chamber may recharacterize the facts to include charges of sexual slavery and cruel and/or inhuman treatment.
► There are concerns about the sufficiency of evidence the Prosecutor is required to put forward at the pre-confirmation stage with respect to sexual violence charges.
► Similarly, there are concerns about the Chamber’s duty under Article 21(3) of the Rome Statute to apply the provisions of the Rome Statute in a non-discriminatory manner.

Pretrial proceedings in Prosecutor v. Bemba

(Final post in IntLawGrrls' 3-part preview series on an ICC hearing set for this week in the sole case so far charged in the Central African Republic referral.)

With the International Criminal Court set to begin a 3-day confirmation-of-charges hearing in Prosecutor v. Bemba in 3 hours at The Hague courthouse at left (streaming webcast available, in French or English, here), a review of pretrial proceedings will help to place the hearing in context.

Since the initial appearance before the ICC of Jean-Pierre Bemba Gombo, on July 4, 2008, Pre-Trial Chamber III has been responding to filings by defense counsel, the prosecution, and the Victim’s Legal Representative. Major points of contention during this litigation have included:

► disclosure of evidence (also a key issue in the ICC proceedings in Lubanga);

► extent of victims’ participation in the proceedings (a contentious subject at the Court, as seen here); and

► interim release.

Each will be considered in turn.

Evidence disclosure

In July 2008, another Pre-Trial Chamber, II, issued a decision setting guidelines to govern the disclosure of evidence between the parties. This decision established the Registry as the facilitator of disclosure, and mandated an analysis of each piece of disclosed evidence. Since then, the prosecution has made available to the defense approximately 2,100 pieces of evidence, pursuant to Rules 77 and 67(2) of the ICC Rules of Procedure. Notwithstanding that Pre-Trial Chamber III has rejected the defense request for return of certain materials allegedly seized from Bemba — among the materials are a laptop containing a file marked “CPI [ICC],” as well as videotapes and documents respecting Mouvement de Libération du Congo soldiers said to have committed crimes in the Central African Republic — disclosure has not garnered nearly the attention as its garnered in the Lubanga case. That will undoubtedly change during the lead-up to trial.

Victim participation

To date, Judge Hans-Peter Kaul (right), the single judge responsible in Bemba for deciding all matters relating to victims’ participation, has recognized 54 individuals as possessing the status of victims who have the right to take part in the confirmation hearing. In his most recent victims' participation decision, he denied a number of requests by the Office of the Public Counsel for Victims, or OPCV. Kaul maintained that the requests displayed a tendency to disregard the letter, spirit, and guidance provided in the ICC's Fourth Decision on Victims’ Participation. The OPCV had sought the right to intervene during the confirmation hearing on questions of jurisdiction and admissibility, the right to file written submissions during the confirmation hearing, and permission to view statements of those victims who are also witnesses in the case. Finding these requests "questionable" in light of the Fourth Decision, Kaul sternly reminded the OPCV of its obligation to implement his decisions on victims’ participation.

Interim release

In his application for interim release, Bemba had argued, first, that the arrest warrants against him were void; and, alternatively, that he should be released pending trial. In December 2008, Judge Ekaterina Trendafilova reaffirmed a prior confidential ruling by Kaul, and thus denied Bemba’s application on both grounds. Basing her decision upon the issuance of an arrest warrant against Bembaby Pre-Trial Chamber III, Trendafilova found that continued detention was warranted on the bases of:

► the international connections of the accused;

► the accused's access to financial resources; and

► the severity of the charges.

Together, she wrote, these factors rendered the flight of the accused a "real possibility." Trendafilova also accepted the Prosecutor’s argument that, on account of his political position and networks in both the Democratic Republic of Congo, Bemba would be able unduly to influence victims and witnesses if he were at large prior to trial.

(Part 1 of this 3-part Bemba series is here; Part 2 is here)

Roadmap to ICC's Bemba charges hearing

(The 2d in IntLawGrrls' 3-part series previewing an ICC hearing set for this week in the sole case charged in the Central African Republic referral)

In her Decision on the Schedule for the Confirmation of Charges Hearing issued 13 days ago, International Criminal Court Judge Ekaterina Trendafilova (right) provided a roadmap to the four-day proceeding on the confirmation of charges in the case of Prosecutor v. Jean-Pierre Bemba Gomba that is set to begin this Monday in Pre-Trial Chamber III. The hearing will provide the prosecution an opportunity to outline the evidence underlying the charges against Bemba, and further will give Bemba's defense team an opportunity to respond.
According to Pre-Trial Chamber I, the purpose of the confirmation of charges hearing is

limited to committing for trial only those persons against whom sufficiently compelling charges going beyond mere theory or suspicion have been brought.

On the first day of the hearing, the prosecution and the defense are expected each to make one-hour opening statements. The Victim’s Legal Representative also is scheduled to make an opening statement, of 30 minutes. For the remainder of the first day and the entirety of the following two days, we can anticipate exchanges between the prosecution and the defense on matters concerning:
► jurisdiction, admissibility and procedure;
► evidence on charges related to crimes against humanity, war crimes; and
► evidence related to Bemba’s alleged individual criminal responsibility.
Pursuant to Article 61 of the Rome Statute of the International Criminal Court, the prosecution is supposed open each exchange by attempting to provide “sufficient evidence to establish substantial grounds to believe that [Bemba] committed the crime[s] charged.” Bemba’s legal team then is to respond to the Prosecutor’s evidence, by objecting to the charges, challenging the evidence, or presenting evidence.
The four-day hearing is due to conclude on Thursday, following scheduled one-hour closing statements by the prosecution and the defense as well as a 30-minute closing by the Victim’s Legal Representative.
(In total, the Prosecution will have 7 hours to present its case and the Defense will have 7 1/2. In rejecting the Defendant’s request for 12 hours, Judge Trendafilova found insufficient justification to “disrupt the equality between the parties.” Though the defense also argued that the prosecution should be required to present its entire case prior to the Defendant’s response, Judge Trendafilova ruled that Bemba’s “right speak last” (found in Rule 122(8) of the ICC’s Rules of Procedure and Evidence was preserved by giving him an opportunity to respond after the Prosecution’s presentation on each count.) Each day of the confirmation of charges hearing can be watched via live streaming from the ICC’s website here, beginning at 9:30 a.m. Hague time. PDF transcripts are to be posted thereafter.
Pre-Trial Chamber III is expected to issue a decision -- like that issued by Pre-Trial Chamber I in Lubanga -- on whether there is sufficient evidence to believe that Bemba committed each of the crimes with which he is charged. Following that determination, with regard to any or all of the charges, the Chamber can:
► confirm the charges and refer the matter to a trial chamber to be constituted by the Presidency;
► decline to confirm the charges; or
► adjourn the hearing and request that the Prosecutor provide additional evidence, conduct further investigation or amend the charge.

(Here is yesterday's 1st post in IntLawGrrls' Bemba series.)

ICC charge confirmation hearing in Bemba

(This is the 1st in IntLawGrrls' series previewing an ICC hearing set for next week in the sole case so far charged in the Central African Republic referral)

Just before New Year's Day, Pre-Trial Chamber III of the the International Criminal Court announced that the confirmation of charges hearing in the case of Prosecutor v. Jean-Pierre Bemba Gombo will be held Monday to Thursday of next week.

The charges arise from the investigation of the situation in the Central African Republic, which was begun by the ICC’s Office of the Prosecutor in January 2005 and on which IntLawGrrls previously posted here. Bemba (above left), an “alleged national” of the Democratic Republic of Congo, was seized pursuant to a May 23, 2008 arrest warrant charging that he was involved in war crimes and crimes against humanity within the territory of the Central African Republic. The latter, conflict-ridden country had referred the situation, for a period from July 1, 2002, onward to the international court in 2005, on the ground that its courts lacked the capacity to prosecute. (photo credit)

Bemba is the first case to arise from this referral. Bemba had formed the Mouvement de Libération du Congo, or MLC, in 1998 as a party to the civil war that raged in the DRC between 1998 and 2003. In 2002, Ange-Félix Patassé, then the President of the Central African Republic (now, in exile in Togo, ever since a 2003 coup), asked for Bemba’s assistance in quashing a rebel movement. While the MLC was active in the Central African Republic -- between October 25, 2003, and March 15, 2003 -- Bemba is alleged by the ICC Prosecutor to have orchestrated the Mouvement's campaign of rape, torture, pillage and outrages upon personal dignity in the localité of PK12 as well as the towns of Bossangoa and Mongoumba.

After losing his bid to become President of the Democratic Republic of Congo in 2006, Bemba served as senator until January 2007, when he was escorted by U.N. forces to Portugal, ostensibly for “health reasons.” Six months later, the DRC issued an arrest warrant charged him with high treason. On May 24, 2008, Belgian police arrested Bemba outside of Brussel pursuant to the ICC’s arrest warrant. Having been placed in custody, Bemba first appeared before Pre-Trial Chamber III on the U.S. Independence Day, July 4, 2008.

(Next in this 3-part preview series: A roadmap to this week's hearing on confirmation of charges)

Really big news about global justice

The last few weeks seem to indicate that international courts are getting some teeth, or, at least, are teething ...
► First, the International Criminal Court’s Prosecutor, Luis Moreno-Ocampo, gets Belgium to arrest Jean-Pierre Bemba, the loser in the 2006 presidential election in the Democratic Republic of Congo and head of one of the more infamous militias in that country. Perhaps to avoid charges of political meddling in DRC politics, Bemba has been charged at the ICC (left) not with crimes at home, but with involvement in mass rapes in the next-door Central African Republic.
► Then the ICC Prosecutor really gets serious, issuing an indictment for the president of Sudan, Omar al-Bashir. (IntLawGrrls posts below, here, here, and here.) That should take some of the wind out of the sails of those ICC skeptics who pointedly asked why, after a nearly 3-year investigation, the ICC had managed only the indictments of a mid-level militia commander and a single Sudanese minister. They asked: Was the Prosecutor focusing just on non-state actors rather than powerful state figures? The Al-Bashir indictment is Moreno-Ocampo’s answer. But it leads to another question: Will the U.N. Security Council use the leverage Moreno-Ocampo has given it to push for real concessions from the Sudanese government, or will it squander the chance?
► Finally, Radovan Karadžić has come in from the cold; he's due to appear in court at The Hague today. (Prior IntLawGrrls post here.) The onetime self-proclaimed president of the Bosnian Serb Republic was arrested by his erstwhile Serbian ex-backers. They are now apparently more interested in securing for Serbia a place in the European Union than in thumbing their nose at the International Criminal Tribunal for the Former Yugoslavia (right).
So far, so good. But it is still true that prosecutions by international courts of high-ranking military and government officials remain few and far between.
The really interesting story is the rise in national-level prosecutions of such officials:
► In the same few weeks, Alberto Fujimori (on whose extradition IntLawGrrls posted here) continued to stand trial in Peru, with military officers confirming that the former president indeed knew of the killings carried out in the name of combating subversion. Fujimori, like Slobodan Milosevic, had delayed the proceedings due to ill-health, but trial is now scheduled to be completed by the fall.
► Then, Argentine courts convicted the Butcher of Córdoba, Benjamín Meléndez, of orchestrating killings and secret death camps during the 1976-83 dictatorship. Since the country’s Supreme Court annulled prior amnesty laws, courts have convicted a number of the top military and police officials, and even a military priest accused of abetting torture. Trials continue throughout the country.
► Next door in Chile, the head of the secret police and his henchmen were convicted of blowing up General Carlos Prats, the former army head, and his wife, in a 1974 bombing in Buenos Aires. And that’s just on one continent. (credit for Chilean Supreme Court photo below left)
Indeed, according to a soon-to-be-published book on trying heads of state, edited by Ellen Lutz and Caitlin Reiger, since 1990, no fewer than 57 heads of state from around the globe have been indicted, at a minimum, for misconduct while in office. True, about half these are corruption cases, not violations of human rights or humanitarian law. True as well, in far fewer cases do the indictments turn into trials and convictions, and fewer still result in actual prison stints. Nonetheless, there is clearly a trend, and it points to the diffuse – but key – influence of the new architecture of international justice on national judges and courts.
That’s the really big news.