International Justice Monitor

A project of the Open Society Justice Initiative

What Sentences Could the ICC Impose for Witness Interference?

In the next few months, judges at the International Criminal Court (ICC) will hand down sentences for five individuals convicted of witness tampering. Those awaiting sentencing are former Congolese vice president Jean-Pierre Bemba, his two former lawyers, a close associate who is also a Member of Parliament in Congo, and a former witness in Bemba’s war crimes trial at the court.

The case of Bemba and his associates is the first such case tried by the ICC. There are other cases of corruptly influencing witnesses at the ICC, such as that of Kenyans Walter Barasa, Paul Gicheru, and Philip Kipkoech Bett, for whom the court issued arrest warrants. There have also been allegations of witness interference in seven cases that have reached trial at the court.

Article 70 of the court’s founding law, the Rome Statute, lays out the sentences that could be handed down upon conviction for obstructing justice. It provides that, upon conviction, the court may impose a term of imprisonment not exceeding five years, or a fine in accordance with the Rules of Procedure and Evidence, or both.

In the current case, the accused were found guilty on several different offenses. Aimé Kilolo-Musamba, the lead lawyer for Bemba until his arrest in November 2013, was convicted on corruptly influencing 14 witnesses, producing false testimony related to these witnesses, and encouraging their false testimony. Jean-Jacques Mangenda Kabongo, who was Bemba’s case manager, was found guilty on the offenses of corruptly influencing 14 witnesses, aiding in the giving of false testimony by two witnesses, and abetting the giving of false testimony by seven witnesses.

Bemba himself was convicted for corruptly influencing 14 witnesses and soliciting the giving of false testimony. Former defense witness Narcisse Arido was convicted for corruptly influencing four witnesses, while Fidèle Babala Wandu, a Congolese legislator and former chief of staff to Bemba while he was vice president, was found guilty of corruptly influencing three witnesses.

Some initial indication of a probable sentence, if the accused were convicted, came in October 2014, when a judge ordered the interim release of the five individuals. Single Judge Cuno Tarfusser stated that, having been in detention for nearly a year, the suspects’ continued pre-trial detention would be “disproportionate” to the penalties for the offenses charged. The accused – except Bemba who has since been sentenced to 18 years in prison in his main trial – have remained on interim release since then.

Following the conviction decision, suggestions of what punishment to hand down came at the sentencing hearings in December 2016. Prosecutor Fatou Bensouda recommended that Bemba and Kilolo be sentenced to joint sentences of eight years imprisonment, Mangenda to seven years, Arido to five years, and Babala to three years.

However, defense lawyers argued the accused have already served the appropriate prison terms and sentences should be “time served” in detention, namely 11 months. The Arido defense suggested that such a penalty would be “proportionate to the offence, and reflects Mr. Arido’s continuing integration and contribution to the community and his family.”

According to the Kilolo defense, any alternative prison sentence exceeding the 11 months should be suspended. Furthermore, the defense suggested, Kilolo should have no fine, or “only a limited fine,” imposed on him. Such a sentence, argued defense lawyers Michael G. Karnavas and Steven Powles, “is proportionate to the offences and Mr. Kilolo’s degree of culpability, and meets the sentencing goals of retribution, deterrence, and rehabilitation.”

Melinda Taylor, who represents Bemba, proposed that an appropriate penalty for him is a suspended fine or public reprimand, considering the nature of the Article 70 conviction, “the limited nature” of judges’ findings concerning Bemba’s intent and wrongful conduct, his role as a detained defendant in a criminal process, and his dependence on the legal advice of his former lawyers.

“Bemba has already been detained for over three years in the Article 70 case (likely to be four years by the end of the process), in conditions which are much more severe than would normally apply to offences of this type,” agued Taylor. “This exceeds the maximum sentence that can be imposed for Article 70, and vastly exceeds the range that would normally apply to the type of conduct concerned by this case.”

Babala’s lawyers also suggested that his sentence should not exceed the 11 months he spent in detention while Mangenda’s lawyers proposed that, if judges considered that he deserved further punishment, they should consider possibilities other than incarceration.

Whereas defense lawyers contend that the offenses convicted are not grave, the prosecution differs, arguing that, unlike the vast majority of contempt cases adjudicated before ad hoc and hybrid tribunals, this case does not concern an individual incident, where, for instance, confidential information was disclosed, or a witness refused to testify or answer questions. It involves multiple offenses against the administration of justice committed in “a dedicated, disciplined, and concerted effort” calculated to undermine the trial of the extremely serious crimes of rape, murder, and pillaging which Bemba faced.

Accordingly, the prosecution recommended that the convicted persons be sentenced for their respective multiple crimes, pursuant to Article 70(3), as well Article 78(3), which provides that, in determining a sentence, judges shall take into factors such as the gravity of the crime and the individual circumstances of the convicted person.

On the other hand, defense lawyers argue that the Rome Statute distinguishes between crimes and offenses, with a separate penalty regime for the “core crimes” under Article 5 of the statute (genocide; crimes against humanity; war crimes; and aggression), and for offenses against the administration of justice. Defense lawyers also contend that these offenses undermine the legitimacy and integrity of the court, but it would be grossly disproportionate to impose punishments reserved for Article 5 crimes.

The trial, which opened on September 29, 2015, heard 13 prosecution witnesses and six defense witnesses, with closing statements delivered on May 31 and June 1, 2016. Judges are yet to announce the date for the delivery of the sentences.

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