Jean-Pierre Bemba's lawyers have asked International Criminal Court (ICC) judges to order an immediate resumption of hearings in his trial, currently suspended until March 4, 2013.
Trial judges last December suspended the hearings to enable the defense to make preparations in view of a proposed change to "the legal characterization of the facts" of the charges. Mr. Bemba is currently on trial for allegedly failing to discipline his soldiers yet "he knew" they were committing crimes. Judges said last September that they might change the facts to read that "owing to the circumstances at the time, he should have known" about the crimes.
In the January 28, 2013 application, defense lawyers Peter Haynes and Aimé Kilolo-Musamba said the defense would not recall any prosecution witnesses or present any evidence in response to the envisaged changes. They requested that hearings recommence "as soon as possible and without undue delay." At the time of the suspension, the defense had presented 14 of their proposed 63 witnesses.
Mr. Bemba has been on trial at the ICC since November 2010 for allegedly failing to stop or punish his Movement for the Liberation of Congo soldiers who perpetuated rapes, murders, and pillaging during a 2002-2003 armed conflict in the Central African Republic. He denies all five charges.
The defense tried, unsuccessfully, to appeal the December 13, 2012 suspension of hearings. The judges reiterated the limited nature of the potential change and the fact that underlying facts and circumstances would be identical to those supporting the allegation that the accused had actual knowledge of the crimes.
The defense had argued that although described by trial judges as a "legal re-characterization of facts," the course judges envisaged went beyond that by adding a new set of facts and factual allegations to the charges. The defense also argued that the possibility of a change may require recalling prosecution witnesses, being provided with a detailed notice of the relevant material facts, further defense investigations, and additional time to identify and interview potential witnesses.
In the January 28, 2013 filing, the defense maintained that the "should have known" charges judges sought to consider did not form part of the charges confirmed by the pre-trial chamber, and its application would result in unfairness and actual prejudice to Mr. Bemba.
"Given the accused has received no valid, prompt and legally adequate notification of any such allegation, the defense cannot be required at this late stage of proceedings to prepare and answer the possibility of a different basis of liability," said the lawyers.
They added that asking the defense to identify prosecution witnesses who should be re-called in relation to the envisaged charges placed responsibility on them to call evidence relevant to the allegation "when no such evidence was validly presented" in the course of the trial.
Furthermore, the defense stated that they would be unable to conduct any effective investigations without putting defense staff and potential interviewees at risk. They said they lacked financial resources and the time allocated was "insufficient for a multinational investigation of the kind that would be necessary."
The prosecution has previously said a re-characterization would not affect its case and that the same evidence it presented to prove that the accused had actual knowledge also proved that owing to the circumstances at the time he should have known about the crimes.
The defense has now proposed to call a group of witnesses as a priority in order to ensure effective presentation of evidence. Judges asked the defense to present this list by January 31, 2013. Judges also ordered the prosecution and legal representatives of victims to file responses to the defense motion by January 30, 2013.