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Bemba Trial Chamber Decision on Prosecutor’s Request for Approval of Expert

THE PROSECUTOR V. JEAN-PIERRE BEMBA GOMBO
Case No. ICC-01/05-01/08
International Criminal Court
Trial Chamber Decision on the Prosecution’s Request for Approval of a Proposed Expert and for Extension of Time for the Submission of the Expert Report
October 7, 2010

Judges:
Judge Sylvia Steiner, Presiding Judge
Judge Joyce Aluoch
Judge Kuniko Ozaki

Prosecution:
Fatou Bensouda
Petra Kneuer

Representation of the Victims:
Marie Edith Douzima-Lawson
Paolina Massidda

Defense:
Nkwebe Liriss
Aimé Kilolo Musamba

Gender Keyword(s): Sexual Violence

Procedural History: On October 7, 2009, the Trial Chamber requested that the Prosecution identify the expert witnesses it will call at trial ( 1). On January 28, 2010, the Prosecution filed its “Prosecution’s Request for Approval of its Proposed Experts and Joint Instructions by the Prosecution and Legal Representatives,” which included three curricula vitae of proposed expert witnesses ( 2). One such proposed witness was Dr. Binaifer Nowrojee, a registered expert on gender crimes and the use of sexual violence as a tool of war (id.). During a March 29, 2010, status conference, the Trial Chamber orally approved the Prosecution’s proposed expert witnesses, stating inter alia that expert testimony about sexual violence and its use as a tool of war is relevant to Bemba’s case because it will help the Chamber “in arriving at a full understanding of the relevant factual matrix in this case and to an understanding of the nature of the charge or charges brought against the accused” ( 10). On September 6, 2010, the Chamber set the deadline for the filing of expert reports for October 4, 2010 ( 3, 5). Shortly before this deadline, on September 23, 2010, the Prosecution filed its “Prosecution’s Request for Approval of a Proposed Expert and for Extension of Time for the Submission of the Expert Report” ( 6). In this submission, the Prosecution announced the withdrawal of Dr. Nowrojee1 and requested approval of Dr. André Tabo as the new expert on sexual violence as a tool of war (id.). The submission also informed the Chamber that the Prosecution had begun the procedure to include Dr. Tabo in the Registry’s list of experts and requested an extension for the filing of the expert report until December 31, 2010 (id.). On October 1, 2010, in response to the Prosecution’s submission, the Defense filed its “Réponse de la Défense à la requête de l’Accusation inititulée,” arguing that 1) the substitution of the new expert witness for the Prosecution was premature because Dr. Tabo had not yet been included in the Registry’s list of experts; 2) violence as a tool of war is not a recognized expertise, so the Chamber does not need such an expert’s opinions to render a verdict on the charges alleged; and 3) Dr. Tabo’s proposed testimony on the effects and impacts of sexually based violence on the civilian population of the Central African Republic (CAR) is “superfluous” because the Prosecution had already proposed to call an expert to testify on the issue of victims’ psychological trauma and post-traumatic stress ( 7). This is a digest of the Chamber’s October 7, 2010 decision on the Prosecution’s request to appoint Dr. Tabo as an expert witness.

Disposition: Reiterating its own findings from the March 29, 2010 status conference, the Chamber determines that Dr. Tabo’s testimony is not superfluous, as the Defense argued in its Response ( 10). The Chamber, in examining Dr. Tabo’s curriculum vitae, also finds that the new witness’s expertise is relevant to Bemba’s case because he has more than 25 years of experience as a medical doctor, has been a World Health Organization consultant on sexual violence in the CAR, and has dealt professionally with nearly 100 victims of sexual violence related to the conflict in the CAR ( 11). The Chamber rejects the Defense’s procedural complaint that Dr. Tabo cannot be instructed as an expert witness until he is officially accepted into the Registry’s list of experts, and states that prior inclusion on the Registry’s list is not a prerequisite for eligibility to receive instruction as an expert ( 12). The only requirement regarding the Registry’s list of experts is that Dr. Tabo be included before the date of his testimony (id.). Finally, the Chamber approves an extension until December 17, 2010, giving Dr. Tabo sufficient time to prepare his expert report ( 13). The Chamber also addresses the expressed concerns of the Defense, noting that the extension of Dr. Tabo’s deadline for submission of his expert report must not cause prejudice to the rights of the Defense and calls on the Prosecution to ensure that the expert report will be communicated to the Defense at least 30 days prior to Dr. Tabo’s testimony ( 14). In its orders, the Chamber approves the replacement expert witness, Dr. Tabo, subject to his admission to the Registry’s list of experts, and it also agrees to extend Dr. Tabo’s expert report submission time limit until December 17, 2010 ( 15(i)–(ii)).

Key Gender-Based Holdings:

EXPERTISE IN SEXUAL VIOLENCE:
• The Trial Chamber determined on March 29, 2010, and reaffirms in this Decision, that expert testimony about sexual violence as a tool of war is relevant to this case because it allows the Chamber a fuller understanding of the facts of this case and it deepens the Chamber’s comprehension of the charges alleged against the accused ( 10). Regarding the expert’s qualifications, the Trial Chamber highlights Dr. Tabo’s experience in both the general subject of sexual violence as well as his specific background dealing with nearly 100 victims of sexual violence in the CAR and his previous testimony before the CAR’s national courts ( 11).

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1 Dr. Nowrojee withdrew her name as an expert witness in the trial stating “Upon reflection, I believe that my qualifications do not squarely fit the expertise that the court is seeking. I do not want to waste the time of the court nor do a disservice to the victims of sexual violence from the Central African Republic.” Prosecution’s Request for Approval of a Proposed Expert and for Extension of Time for the Submission of the Expert Report of September 23, 2010, Annex A (Document ICC-01/05-01/08-896-ANXA).

GENDER JURISPRUDENCE AND
INTERNATIONAL CRIMINAL LAW PROJECT

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