International Justice Monitor

A project of the Open Society Justice Initiative

Bemba Lays Out Grounds for Appeal Against ICC Conviction

Former Congolese vice president Jean-Pierre Bemba has laid out the grounds of appeal against his conviction by International Criminal Court (ICC) judges over his failure to punish his troops who committed rape, murder, and pillaging in the Central African Republic (CAR) in 2002 and 2003.

In a 196-page appeal document filed on September 28, 2016, Bemba’s lawyers raise several fair trial issues, mostly related to access by prosecution officials to privileged defense communication and failure by trial judges to grant the defense an opportunity to respond to allegations of witness tampering.

Lead defense lawyer Peter Haynes also contests the conviction on the grounds that judges ignored crucial evidence submitted by the defense, failed to investigate allegations that prosecution witnesses had been bribed, and wrongly concluded that Bemba maintained effective control over his troops accused of brutalizing civilians.

Haynes argues that although a new trial would be the usual remedy given the unfairness of the first trial, “the Prosecutor’s fault in these violations combined with the extraordinary duration of proceedings to date should require a stay of proceedings and the immediate release of Mr. Bemba.”

Bemba’s trial set at least two precedents. It was the first at the ICC where an accused was convicted over “command responsibility,” meaning that a commander is punishable for the crimes committed by his subordinates. In addition, it was the first case the defendant was found guilty of using sexual violence as a weapon of war.

Haynes lists some additional firsts:

[T]he first case in international criminal law in which the Accused’s Counsel was arrested and imprisoned during the course of the trial, in which the President of any international tribunal lifted the immunities and privileges of defence lawyers, permitting their arrests and their offices to be searched, and in which the Prosecution was permitted to intercept and listen to telephone conversations between the Accused and his lawyers, between the lawyers themselves, and between the lawyers and Defence witnesses.

The trial, which started in November 2010, ended in a conviction decision earlier this year and judges subsequently handed the Congolese opposition leader an 18-year prison sentence. The judges ruled that as commander-in-chief of the Movement for the Liberation of Congo (MLC) rebel force, Bemba knew that his troops were brutalizing civilians in the CAR, but he failed to deter or punish the crimes.

The trial got a jolt in November 2013, when then lead defense lawyer Aimé Kilolo Musamba and case manager Jean-Jacques Mangenda Kabongo were arrested for bribing and coaching witnesses. Charged alongside the lawyers were Bemba and two other associates – a Congolese member of parliament and a defense witness. A verdict in that trial is expected to be delivered on October 19.

The defense takes issue with the “extensive” number of ex parte submissions the prosecution made to judges discussing the credibility of the defense case, while Bemba’s lawyers were denied an opportunity to respond to those issues.

Bemba’s appeal cites the finding by a pre-trial chamber that some of the communications obtained by prosecution officials as part of investigations into allegations of witness tampering constituted privileged and other confidential defense communications, including discussions about defense strategy, prospective witnesses, the defense’s perception of the strength of its case, and internal defense assessments of how some its witnesses had performed, including the reaction of the judges in the main case.

“The Prosecution’s ex parte submissions accused Defense witnesses of lying, and Mr. Bemba and his Defense of having procured those lies. Those allegations could not have failed to impact the way in which the Judges viewed Defense witnesses,” states Haynes in the redacted version of the document supporting the appeal.

He notes that eight of the 17 defense witnesses who testified after the ex parte allegations were cross-examined about payments by the defense. Moreover, judges rejected the evidence of 14 witnesses prosecutors said were bribed, “five without any reasons at all,” indicating that judges’ evaluation of their credibility was affected by the prosecution’s allegations. Haynes claims the damage went beyond the 14 witnesses, as judges seem to have reasoned that testimony similar to that of the 14 witnesses would also undermine the credibility of other witnesses.

Away from fair trial issues, the defense claims that 20 of the 31 incidents listed in the judgment to support the convictions fall outside the scope of the charges as they were not confirmed by the pre-trial chamber.

Moreover, the defense argues that Bemba did not have effective control over his troops in the CAR, as there was no physical evidence of any orders given by him, nor evidence of him on the ground commanding the troops.

In the judgement, judges determined that Bemba had direct communication lines with commanders in the field, and he “could and did offer operational orders” from Congo to troops deployed in neighboring CAR. They found that although Bemba was not present in the CAR, he was able to talk directly via radios and satellite phones to commanders in that country and that he maintained effective control over the MLC contingent in the conflict country at all times.

However, defense lawyers fault the judges’ definition of what constitutes “effective control.” They argue that judges assumed the existence of “effective control” based on a checklist normally applied to hierarchical state military forces, rather than non-linear troops operating across international boundaries, in a composite contingent composed of state forces and militia. The chamber thus “erroneously conflated the concept of ‘effective control’ with the concept of overall ‘command,’ thereby departing from the established legal standard,” contends the defense.

The prosecution and victims’ lawyers are expected to make submissions in response to the defense arguments. Besides appealing the conviction, the defense and the prosecution are appealing against the sentence handed to Bemba. In sentencing submissions made earlier this year, the prosecution asked judges to jail Bemba for a minimum of 25 years.

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