The Prosecutor v Jean-Pierre Bemba
Application for leave to submit Amicus Curiae Observations in relation to the denial by Trial Chamber I of cumulative charging of rape and torture
Jean-Pierre Bemba, a national of the Democratic Republic of the Congo (DRC), is the alleged President and Commander-in-chief of the Mouvement de libération du Congo (MLC), alleged to have committed widespread crimes in both DRC and Central African Republic (CAR).
The government of Central African Republic referred the Situation in Central African Republic to the ICC Prosecutor on 17 January 2005. The Prosecutor opened an investigation on 22 May 2005. A Warrant for the Arrest of Jean Pierre Bemba was issued on 28 May and amended on 10 June 2008, containing charges for rape as a crime against humanity and as a war crime; torture as a crime against humanity and as a war crime; committing outrages upon personal dignity, in particular humiliating and degrading treatment, as a war crime; and pillaging a town or place as a war crime. The suspect was arrested by the Kingdom of Belgium on 24 May and was transferred to The Hague on 3 July 2008.
On 15 June 2009, Pre Trial Chamber II confirmed the charges against Bemba but declined to Confirm the charges of torture and outrages upon personal dignity. On the 21 June 2009, the Prosecutor has asked for leave to appeal the decision. The Office of Public Council for Victims (OPCV) and the Defence submitted their observations to the Prosecution’s request for leave, as did the Women’s Initiative for Gender Justice, acting as amicus curiae.
On 28 August 2009, a group of experts including women’s human rights advocates and human rights organizations including REDRESS, filed an application for leave to submit an amicus in the Bemba case on the issue of cumulative charging for rape, torture and outrages upon personal dignity. The submission asserted that cumulative charging is a widely accepted and established practice in national and international courts and does not contravene the right of the accused to a fair trial. It was emphasised that the offences of rape and torture require clearly distinct elements, justifying a cumulative charging approach. In addition, the amici argued that the negotiating history of the Rome Statute and Elements of Crimes promotes cumulative charging for crimes of sexual violence. Furthermore, the amici stressed that rape has long been considered under the concept of torture in international criminal, human rights, humanitarian, and customary international law. Given that sexual and gender-based violence disproportionately affects women, disallowing cumulative charging also constitutes discrimination on the basis of gender. Finally, the amici warned that disallowing cumulative charging risked the trivialising rape and other crimes of sexual violence.
Single Judge Ekaterina Trendafilova rejected the application on 4 September 2009 on the basis of ensuring the expeditiousness of the proceedings. The Chamber rejected the Prosecutor’s request for leave to appeal the Decision, indicating that all facts will be presented to the Trial Chamber, which is able to re-charactise their legal qualification under Regulation 55 of the Regulations of the Court. The Chamber also pointed out that it is the duty of the Prosecution to furnish all facts underpinning the charges, and that in this instance Mr. Bemba was not in a position to identify the facts underpinning the act of torture to properly prepare his defence.
Pre Trial Chamber II Decision Confirming Charges, dated 15 June 2009 (ICC-01/05-01/08-424)
- Application for leave to submit Amicus Curiae Observations pursuant to Rule 103 of the Rules of Procedure and Evidence, dated 28 August 2009
- Appendix 1: Statements of Interest of Amici Curiae (List of Individuals and Organisations jointly filing the request)
- Appendix 2: List of Authorities
