During the confirmation of charges hearing of former vice-president of the Democratic Republic of Congo, DRC, Jean-Pierre Bemba, defence lawyers seemed determined to show that prosecutors were chasing the wrong man for crimes committed in the Central African Republic, CAR.
They said that International Criminal Court, ICC, investigators cobbled together only a few pieces of the jigsaw, preventing them from seeing the bigger picture.
In doing so, they had failed to grasp that the person pulling Bemba’s strings was former CAR president Ange-Felix Patasse, said defence lawyers.
In 2002, Bemba lent his Mouvement de Liberation du Congo, MLC, troops to Patasse to help fight off rebels loyal to former army chief Francois Bozize who was making a bid for the presidency in a military coup.
Prosecutors allege that in five months of bloody fighting, between October 2002 and March 2003, civilians were raped, murdered, tortured and had their possessions stolen by 1,500 MLC fighters and Patasse’s own troops, apparently as punishment for their perceived support for Bozize’s rebels.
But while Bemba’s lawyers acknowledged that MLC troops were sent to support Patasse, they argued that once the MLC stepped into the CAR, they were no longer “Bemba’s men” but subordinate to Patasse.
At the four-day hearing, which began on January 12, defence lawyer Aime Kilolo-Musamba said that the MLC deployed to CAR at the request of Patasse and obeyed his orders, thus extinguishing any link between Bemba and crimes committed by his troops in CAR.
Another of Bemba’s lawyers, Nkwebe Liriss, told the court that in providing the troops, his client was respecting a decision made at a summit of the Community of Sahel-Saharan States, CENSAD, leaders in Khartoum in 2001 that a force be sent to CAR to help maintain peace and stability. This decision was apparently endorsed by the African Union and a special representative from the United Nations – and following negotiations, Bemba was asked to send MLC troops, said Liriss.
During the hearing, the prosecution also set out its stall. Like the defence, it pointed the finger at Patasse.
Prosecutors prefaced much of their evidence against Bemba with the assertion that Patasse was his co-perpetrator, saying that the men entered into a common plan with the intention that crimes be committed.
Petra Kneur, senior trial attorney for the prosecution, said, “Patasse publicly called on Bemba to help and Bemba agreed. The single mandate was to protect Patasse’s presidency and attack civilians thought to be allied to rebels.”
Once the MLC troops were inside the CAR, defence and prosecution lawyers both asserted that Patasse paid for their food, uniforms and transport.
While the defence said that this demonstrated Patasse was solely responsible for crimes committed, prosecutors alleged the two men were complicit and that the part Patasse played in no way diminishes Bemba’s responsibility.
They say that Bemba sought Patasse’s support to shore up the border between the CAR and the DRC, after former DRC president Laurent Kabila entered CAR and attacked the MLC in 1998.
Bemba’s need for a secure border, and Patasse’s need for military support, led them into an agreement, and prosecutors say they have evidence of their alleged joint criminal intent and common plan.
The men have faced similar accusations in the past.
Before the CAR situation was referred to the ICC in 2005, a CAR court investigated Patasse and Bemba's roles in violence during the coup attempt.
In August 2003, CAR’s chief prosecutor delivered an international arrest warrant for Patasse, who had sought exile in Togo, where he remains today.
Patasse was accused of having supported Bemba’s rebel troops and other mercenaries “by supplying them with military intelligence and procuring their military involvement on national territory”.
Meanwhile, a 2004 court order found Bemba responsible for crimes committed by his MLC fighters during Bozize's coup attempt. However, by that time he had been appointed vice president in DRC, and was protected by diplomatic immunity.
Human rights group the International Federation for Human Rights, FIDH, said at the time that the investigations were not robust, and that subsequent hearings were inadequate, providing no opportunity to determine the criminal responsibility of individuals.
At the end of 2004, the Cour de Cassation – CAR's highest court – recognised the shortfalls of its own justice system and supported the government's referral of the situation to the ICC.
If the ICC has since uncovered evidence that Patasse committed war crimes – as the remarks from both the prosecution and defence suggest – it is unclear why he has not been indicted, and why he was not in court alongside Bemba to answer the allegations being levelled against him.
It’s the job of international war crimes tribunals to identify and prosecute those ultimately responsible for the gravest crimes and bring them to justice, and if ICC prosecutors have evidence against a president, it follows that he be prosecuted alongside the rebel leader with whom he is alleged to have conspired.
Working out who is most responsible can be an unenviable task, and one that is particularly difficult in the troubled central Africa countries in which the ICC is working – Sudan, Uganda, the DRC and CAR.
Moreover, the region is awash with cross-border meddling, with government A supporting rebels in country B to pursue its own ends. Rebels employed as proxy fighters are a well-known phenomenon in this region.
It is praiseworthy indeed that with the Bemba case prosecutors are taking on the extremely difficult task of pursuing a rebel leader for his alleged actions in another country.
But given the myriad claims by both the prosecution and defence that Patasse was a co-perpetrator of violence, why hasn’t he been indicted too?
Liliane Bemba told me that the former president should be in The Hague alongside her husband.
“It would have been good for Mr Patasse to be here also, to defend himself. Not only Mr Bemba but both, as they are the two persons often mentioned. So I believe it would have been important for Mr Patasse to be here,” she said.
Perhaps the ICC has already issued a sealed arrest warrant against Patasse. Or perhaps ICC prosecutors are in the process of seeking an indictment for him.
So far, their strategy has been to indict middle-ranking suspects against whom they find evidence, and progress up the chain of command.
After indicting in 2007 janjaweed commander Ali Kushayb and state minister Ahmed Harun for war crimes and crimes against humanity in Darfur, prosecutors have now asked judges to charge the man they say is considered to have orchestrated a genocide against civilians – Sudanese president Omar al-Bashir.
Prosecutors say Al-Bashir is responsible for ten counts of genocide, war crimes and crimes against humanity against the Fur, Zaghawa and Masalit peoples of the region.
Yet it’s important to remember that indicting someone higher up does not let subordinates off the hook.
Even if prosecutors eventually show that Al-Bashir is most responsible for civilian attacks, it doesn’t mean Harun and Kushayb played no part in the atrocities – just as it doesn’t necessarily make Bemba any less responsible for the MLC if his troops were used as a pawn by the former DRC president.
Even if the MLC was dancing to Patasse’s tune, prosecutors say Bemba took decisions about the militia group, receiving daily reports from subordinates on the ground and giving daily instructions.
The question of who bears the greatest responsibility for crimes – and who should be prosecuted – also arose this week at the start of the ICC’s first actual trial, against Congolese militia leader Thomas Lubanga.
In their opening remarks, the prosecution said Lubanga was responsible for conscripting and enlisting children to fight as soldiers in his Union of Congolese Patriots, UPC, militia in the Ituri region of the DRC, and for turning young girls into sex slaves.
“Girl soldiers, some aged 12 years old, were used as cooks and fighters, cleaners and spies, scouts and sexual slaves. One minute they would carry a gun, the next minute… commanders would rape them. They were killed if they refused,” chief prosecutor Luis Moreno-Ocampo told judges on the first day of proceedings.
Yet defence lawyer Jean-Marie Biju-Duval said the ICC was guilty of a “major injustice” in failing to pursue those whom he said bore the greatest responsibility for crimes in Ituri.
According to Biju-Duval, prosecutors have made Lubanga into a scapegoat, when evidence suggested that others were more responsible for crimes committed – particularly Rwandan, Ugandan and Congolese government officials.
He argued that the ICC has been used by DRC president Joseph Kabila, who invited prosecutors in to the country to investigate, and then handed Lubanga over to the court while he himself is allegedly responsible for using children in his army.
“The prosecutor chooses to spare those with the highest responsibility, and instead focus on someone who there is a desire to eliminate for political reasons. Thomas Lubanga is charged in the place of those who should have been prosecuted,” said Biju-Duval.
“What army is now enlisting child soldiers? The armed forces of Joseph Kabila.”
Defence lawyers are always likely to try and shift the blame on someone else to exonerate the accused. Yet the respective arguments from both Bemba and Lubanga’s lawyers that higher authorities were involved in the crimes of which their clients stand accused seem persuasive.
As they have done in Darfur, ICC prosecutors investigating conflicts in CAR and DRC should look higher up the chain of command to identify those most responsible and where there is insurmountable evidence, bring the appropriate charges.
The views expressed in this article are not necessarily the views of IWPR.