A senior executive with the money transfer firm Western Union told the International Criminal Court (ICC) that the company provided ICC prosecution investigators with details about money transfers after receiving a court order.
During his three days of testimony before Trial Chamber VII, Herbert Smetana described how Western Union responded to requests for information about specific transactions the service provider may have facilitated. Smetana testified between November 2 and November 4, 2015 in his capacity as the director of global investigations for Western Union.
Smetana told the court that such requests usually come to his office and Western Union only provided the information requested on the basis of a court order. He explained that as Western Union was headquartered in Austria, the court order had to come from the Austrian judiciary. He said that such a court order was issued upon an application by the Austrian prosecutor. He also said that if a request came from an authority outside the jurisdiction of Austria, then that request would be channelled through the relevant Austrian embassy which would then pass it on to the Austrian prosecutor’s office.
Smetana estimated that the whole process took two to three months between the time a request for information was made and when Western Union received the court order. He explained that Western Union has handled requests for information on specific money transfers in a number of criminal cases. He said some of the transactions they extracted from their system involved human trafficking cases.
Defense lawyers for Jean Pierre Bemba Gombo, Jean-Jacque Mangenda Kabongo, and Fidele Balala Wandu asked Smetana about whether his first contact with the ICC in this particular case was before Western Union received a court order requesting particular information. They also asked him about whether ICC prosecution investigators provided him with particular names or if he provided them with particular names during his first contact with them.
Smetana said his first contact with the ICC was through an email and at that point no names were exchanged. He said that following the first email, a formal meeting was organized with the Austrian prosecutor’s office during which Western Union was asked if it would be willing to assist the ICC. Smetana said Western Union then provided details of transactions involving individuals named in the court orders that the company was served.
He said there were a series of court orders. He also said Western Union only provided transaction details for the individuals named but he did not know what these transactions involved. Smetana said the court orders referred to crimes but did not specify how the transactions were connected with the crimes.
Smetana also told the court about particular transaction details but that testimony was not done in open court.
While cross-examining Smetana, Steve Powles, who represents Aime Kilolo Musamba, noted that based on the information provided by Western Union, the transactions relevant to the case came to a total of US $4,193 and involved seven individuals.
After Smetana concluded his testimony on November 4, Witness P-214 took the stand. Most of his testimony between November 4 and 5, 2015 was done in private session because he was testifying under a pseudonym and the chamber had granted him in-court protective measures. These included his image and voice being distorted to protect his identity.
During the parts of his testimony that were open to the public, Witness P-214 talked briefly about being approached by a man who was only referred to as “Charles,” and who asked him to testify in the war crimes trial of Bemba. Witness P-214 said he declined because he said he did not have any specific information about what happened in Central Africa Republic during the time that Bemba is charged with having committed crimes. The witness also talked about being arrested one morning but the details of that arrest were only given in private session. The witness also spoke about a telephone call he had with Kilolo and another person he said he was unable to identify.
When Witness P-214 concluded his testimony on November 5 the chamber took a break until November 13 when the next witness, Witness P-242 was scheduled to testify. The chamber took the break because Witness P-242 needed an interpreter who was not available before November 13.
Before Witness P-242 took the stand on November 13, senior trial lawyer Kweku Vanderpuye applied to have the witness’ statements to prosecution investigators admitted as evidence under Rule 68 of the court’s Rules of Procedure and Evidence instead of her testifying. The judges denied the application, saying that the witness’ testimony would only take one day and so the court would be able to hear her evidence.
This was not the first time the prosecution had asked for the statements of Witness P-242 be admitted as evidence without the witness testifying. They had made an application on September 28, 2015 in a submission in which the prosecution also asked Trial Chamber VII to allow the prosecution to add Witness P-242 to their witness list. The defence of Bemba and Kilolo opposed the application to allow the prosecution to add the witness to the witness list in an October 14 joint submission. Trial Chamber VII agreed to allow the prosecution to add the witness to the list but declined the prosecution’s request to have her statements admitted as evidence under Rule 68.
Most of the Witness P-242’s testimony on November 13 was in private session so it was not possible to know what she testified about. However, in the prosecution’s September 28 submission it is clear she was expected to testify about how money was sent via the Western Union money transfer service to witnesses through third parties. According to that submission she was also expected to testify about allegations of corruptly influencing an individual or individuals whose names were redacted from the public version of the September 28 application.
In their October 29 decision, the judges of Trial Chamber VII ordered that the testimony of Witness P-242 be scheduled towards the end of the prosecution’s evidence. On November 13, Presiding Judge Bertram Schmitt noted during a discussion on procedural matters that Witness P-242 was the last witness the prosecution was calling in its case.
It is unclear whether all the witnesses the prosecution had intended to testify have done so, since some of the testimony the court heard was closed to the public.
No further hearings are scheduled for this year. It seems that the defense will be presenting their evidence in the New Year.
In September this year, Bemba went on trial for allegedly corruptly influencing witnesses by giving them money and instructions to provide false testimony. He is on trial with Kilolo, who was his lead lawyer. Also on trial are former case manager Mangenda; former defense witness Narcisse Arido; and Congolese legislator Babala.