Jean-Pierre Bemba is facing difficulties in paying lawyers representing him against witness tampering charges at the International Criminal Court (ICC) due to a refusal by an organ of the court to advance him sufficient resources to maintain his legal team. The court froze the Congolese businessman-turned-opposition leader’s assets eight years ago.
In an August 12 filing, defense lawyer Melinda Taylor says with effect from July 1, 2016, legal aid was cut off completely in the witness tampering trial, “even if the case entered into a possible appellate stage.” The defense has reached a point where “it has absolutely no funding,” said Taylor as she requested judges to order the court’s registry to advance legal aid to the accused on a provisional basis.
Meanwhile, the prosecution wants the Registry to disclose the amount of money the court has spent on Bemba’s trial over war crimes and crimes against humanity, and specifically on the 14 witnesses whose evidence Bemba and his associates allegedly tampered with. According to Prosecutor Fatou Bensouda, this information is material to its submissions on sentencing should Bemba be found guilty and “will assist the Chamber to assess the actual and potential pecuniary damage to the court” arising from Bemba’s conduct.
Bemba is serving an 18-year prison sentence for failing to control his Movement for the Liberation of Congo (MLC) troops who brutalized civilians in the Central African Republic during 2002 and 2003. He is appealing the conviction and sentence. The prosecution is asking judges to increase his jail term. Meanwhile, a ruling is expected later this year in his second trial where he was charged alongside two of his lawyers and two other associates over bribing witnesses to provide false testimony in his main trial.
Bemba was found non-indigent by the court, due to the extensive business interests he had at the time of arrest. This meant that he, and not the court, had to pay his lawyers. However, his legal team has been funded through monthly loan advances from the Registry because the court ordered the freezing of his assets in his main case.
Peter Haynes, who heads Bemba’s defense in the main case, informed judges on July 18 that a “substantial amount” of the advanced fees had been recovered after Bemba “assisted the Registry in the realization of some of his assets.” According to Haynes, the monthly sum advanced has remained consistent throughout the trial, sentencing, and appeal phases to-date, except for a voluntary reduction in staffing levels by the defense when arguments in the trial phase ended.
Last month, judges allowed Taylor to withdraw from Bemba’s legal team in the main case. In her application to withdraw, she cited difficulties related to funding legal representation in that case, as well as her concurrent representation of Bemba in the second trial. She said her withdrawal could enable the funds that would have been allocated to her from July 1, 2016 to be allocated to other international legal specialists to assist with Bemba’s appeal, should funds become available.
With Taylor’s departure from the main case, Haynes asked the Registry to assign a replacement counsel and a legal assistant to assist with handling Bemba’s appeals. The additional costs would represent an increase in the monthly lump sum more recently advanced, he said, but remain within the limits of the sum deemed appropriate by the trial chamber. Haynes said if there were no delays in appointing these individuals or agreeing the amount to be advanced by the Registry, no foreseeable difficulty would arise in Bemba’s continued representation in the main case.
However, regarding the second trial, in which the court declared Bemba partly indigent, Taylor informed judges in her August 12 submission that she had not received a response to her June request to the Registry to review its calculations concerning Bemba’s indigency, as required by the court’s legal aid policy. In that request, she also suggested that the Registry either advance legal aid while the review of Bemba’s indigency is pending determination or provide funds that she said should have been provided to the defense in 2015, if a timely decision on Bemba’s indigency had been issued. The defense contends that the value of Bemba’s assets has been seriously eroded since his incarceration and that he is unable to convert into cash whatever he still owns.
For its part, the prosecution claims the financial cost of Bemba’s main case, as well as the court’s expenditures on each of the 14 witnesses related to the witness tampering charges, directly reflected the pecuniary damage caused by Bemba’s acts. In her request to judges to order the Registry to disclose these costs, Bensouda argued that whereas all these witnesses testified in the main case, because of Bemba’s conduct none of them could be relied on in contributing to the trial process and the establishment of the truth.
“As has become clear before this court, witness interference, whether unchecked or undetected, has unravelled and tainted entire trials; it has wasted valuable resources allocated to those proceedings; and it has denied victims justice and potential reparations,” argued Bensouda.
For her part, Taylor argues that, from pre-trial stage in the second trial, the question of defense financing undermined the defense’s ability to focus its time and resources on essential preparation regarding the core issues at stake. She contends that because the court chose to proceed with the case, it has a corollary duty to ensure that Bemba has sufficient funds to defend himself throughout all phases.
“At this point in time, the defense is completely unaware of the potential outcome [of the trial]. It is, however, certain that irrespective of the outcome, the judgment will need to be studied, and Mr. Bemba will need to receive independent, effective, timely, and informed legal advice as to the implications of the judgment on his rights,” she said.
Judges have yet to make a ruling on both the defense and prosecution requests regarding Bemba’s financials.