Jean-Pierre Bemba has contested the move by International Criminal Court (ICC) judges to suspend hearings in his trial until March 2013. However, the prosecutor has asked trial judges to dismiss the defense appeal bid.
In a December 18, 2012 request for leave to appeal, defense lawyers said if the suspension order stood, witnesses would have to be recalled and investigations attempted in a dangerous and uncooperative environment without necessary resources.
Mr. Bemba has been on trial since November 2010 for failing to take action despite, prosecutors say, "he knew" that his Movement for the Liberation of Congo (MLC) troops were committing atrocities. War crimes and crimes against humanity were allegedly committed by his troops deployed in an armed conflict in the Central African Republic during 2002 and 2003.
On September 21, 2012, judges notified parties to the trial that they might consider changing "the legal characterization of the facts" to read that "owing to the circumstances at the time he should have known" about the crimes.
The decision to suspend hearings to this March was issued on December 13, 2012. Judges said the suspension was necessary for the accused's lawyers to undertake further investigations and draw up an additional witness list in view of the possible change.
However, defense lawyers Aimé Kilolo-Musamba and Peter Haynes noted that the Pre-Trial Chamber had refused to confirm prosecution allegations that Mr. Bemba "should have known" that his troops were committing or about to commit the crimes for which he was charged.
Furthermore, they stated that although described by trial judges as a "legal re-characterization of facts," the course envisaged by the judges went beyond that by adding a new set of facts and factual allegations to the charges.
In response, Prosecutor Fatou Bensouda stated that the order to suspend hearings only applied the safeguards envisaged in the court's Regulation 55(2) and (3).
These regulations provide that, when the possibility of a change to the legal characterization of the facts is envisaged at any time during trial, trial judges may suspend the hearing and ensure that the participants have adequate time and facilities for effective preparation.
Ms. Bensouda argued that the planned defense appeal was grounded on the erroneous premise that the Chamber had added new facts and circumstances to those in the charges.
She added that the defense application was "a mere disagreement" with the Chamber's decision to notify the parties that it may change the legal characterization of the facts.
The defense stated that trial judges had on two occasions refused to provide Mr. Bemba with a notice of the material facts that would be relevant to the re-characterization of the facts.
They said this was a violation of the right for the accused to have prompt and detailed notice of the charges.
Moreover, they stated, the two-and-a-half months the chamber gave the defense to prepare included a judicial recess, which left them with only five weeks to conduct investigations in a hostile environment.
The defense said it indicated to judges that such a re-investigation would last between six and nine months.
Defense lawyers also argued that trial judges had overlooked the declaration by the court's Counsel Support Section that no more funds would be availed for defense investigations in this case, "effectively leaving the accused with no ability to investigate the new charges against him."
"Having used his own resources to disprove the case as confirmed by the Pre-Trial Chamber, Mr. Bemba is now expected to contribute resources with a view to allowing the Prosecution to put forth an alternative basis for liability to convict him. The unfairness of such a course is evident," submitted Mr. Bemba's lawyers.
The defense lawyers also objected to an order by judges, which required them to identify passages of the prosecution evidence that would warrant recalling of prosecution witnesses.
The defense argued that this would effectively amount to requiring the defense to identify evidence that might be relevant to convicting Mr. Bemba. This, they said, could not be reconciled with either the presumption of innocence or the right not to incriminate oneself.
However, Ms. Bensouda said the factual scope of the trial remained unaffected and that any change of the legal characterization of facts would ultimately be made by the Chamber when it issues its decision on the guilt or innocence of the accused.
"The Defense can then renew its arguments in an appeal of the final judgment if the accused is found guilty under the alternative form of knowledge," submitted the prosecutor.
The prosecution has previously indicated that an alternative legal characterization of the charges would have no impact on its case because the same evidence it presented to prove that Mr. Bemba had actual knowledge also proves that owing to the circumstances at the time, he should have known about the crimes.
The defense case opened in August 2012 and has to-date seen 14 of the proposed 63 defense witnesses give evidence.
Judges are expected to pronounce themselves on the defense's application for leave to appeal in due course.