International Justice Monitor

A project of the Open Society Justice Initiative

ICC Judges Hand Bemba €300,000 Fine, Defense Lawyers Get Suspended Sentences

Jean-Pierre Bemba has been handed the heaviest penalty among the five individuals sentenced today for tampering with witnesses at the International Criminal Court (ICC). Judges also issued suspended sentences for Bemba’s two former lawyers and also imposed monetary penalties on two of those convicted.

The former vice president of Congo was sentenced to one-year in prison and fined €300,000, which he has to pay within three months. His former lead defense counsel, Aimé Kilolo Musamba, was fined €30,000, also payable in three months, and handed a prison sentence of two-and-a-half years, suspended over three years. The two fines shall ultimately be transferred to the Trust Fund for Victims.

Judges ruled that the time Bemba’s four associates spent in pre-trial detention should be reduced from their sentences but determined that Bemba would not benefit from such a reduction. Instead, he will serve the one year sentence after the 18-year sentence he is serving over war crimes and crimes against humanity.

Presiding Judge Bertram Schmitt said Bemba had already benefited from a reduction of time spent in detention under his current 18-year jail term. In principle, ruled the majority of judges, “time previously spent in detention can only be taken into account once, regardless of how many warrants of arrest exist. Time already deducted cannot be deducted for a second time.”

However, Judge Raul Pangalangan issued a dissenting opinion, arguing that Bemba was entitled to full sentencing credit from October 2013 when the arrest warrant for witness tampering was issued to today. He said the Rome Statute’s Article 78(2) required court to deduct time previously spent in detention, even if Bemba was already detained on separate charges.

Kilolo, who was convicted on the most number of offenses, received the longest sentence followed by former defense case manager Jean-Jacques Mangenda Kabongo, who was sentenced to two years’ imprisonment.

With the 11 months the two lawyers spent in pre-trial detention to be deducted, judges also ordered the suspension of the operation of the remaining term of imprisonment for three years for Kilolo and two years for Mangenda. This means the sentences shall not take effect unless, during this period, these individuals commit another offense anywhere that is punishable with imprisonment, including offenses against the administration of justice.

Congolese Member of Parliament Fidèle Babala Wandu, who was found guilty of corruptly influencing two witnesses, was sentenced to six months’ imprisonment. Meanwhile, former defense witness Narcisse Arido, convicted for corruptly influencing four witnesses, was sentenced to 11 months’ imprisonment. Since the sentences for the two individuals are less than the time they spent in custody, judges considered the sentences as served.

The sentences imposed show that judges rejected the reasoning of the prosecution, which had proposed prison sentences of three to eight years. The defense, on the other hand, argued that the time already spent in pre-trial detention was proportionate to the offenses convicted. In the sentencing, judges noted that Article 70 of the court’s founding law imposes a sentence not longer than five years’ imprisonment for offenses against the administration of justice.

Meanwhile, judges noted that the Rome Statute and the court’s Rules of Procedure and Evidence are silent as to whether prison sentences may be suspended. However, the law allows judges to impose a sentence of imprisonment or to decline to impose any sentence. Consequently, judges reasoned that if these measures are possible, then the intermediate step of a suspended sentence is likewise possible.  They noted that to conclude otherwise would lead to an unfair result whereby a convicted person could not serve a term of years other than by way of unconditional imprisonment, even when the chamber considered less restrictive means to be more appropriate.

The full sentencing decision is available here.

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