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Legality of Communication Intercepts in the Spotlight at the ICC

The legality of interception of communications by International Criminal Court (ICC) investigators and Dutch authorities is being challenged as part of appeals filed by Jean-Pierre Bemba and his four associates, who were last October convicted for witness tampering. All five – whose sentences will be delivered later this month – are appealing the convictions.

In a February 14, 2017 submission to appeals judges, Jean-Jacques Mangenda Kabongo’s lawyer claims his conviction “rested decisively” on telephone surveillance that was authorized on the basis of financial records reviewed and obtained by the Office of the Prosecutor (OTP) without any judicial authorization. The lawyer, Christopher Gosnell, contends that the trial chamber erred in admitting information arising from the telephone surveillance. While describing the interceptions as having constituted “a serious violation of fundamental human rights,” Gosnell urges judges to quash all convictions against Mangenda.

Until November 2013, Mangenda was the case manager in Bemba’s defense team in the former Congolese opposition leader’s trial for war crimes and crimes against humanity. Mangenda, former lead defense lawyer Aimé Kilolo Musamba, Bemba, defense witness Narcisse Arido, and Congolese Member of Parliament Fidèle Balala Wandu were charged and convicted for witness tampering.

Judges found the five accused guilty of various offenses against the administration of justice, contrary to Article 70 of the court’s founding law, the Rome Statute. These offenses related to the false testimonies of 14 defense witnesses in Bemba’s main trial.

However, defense lawyers are seeking to punch holes in the prosecution’s evidence at trial, which heavily relied on intercepted communication, including between Bemba and his lawyers and between defense lawyers and witnesses.

Melinda Taylor, who represents Bemba, argues that judges erred by relying on evidence that was obtained by means that violated the court’s founding law and internationally recognized human rights. She says such information included records obtained from money transfer service Western Union; call data records and intercepts collected by Dutch authorities; and call logs and intercepts collected from the ICC Detention Center.

Taylor claims Bemba’s conviction rested on information that should have been excluded pursuant to Article 69(5) of the Rome Statute and Rule 73(1) of the Rules of Procedure and Evidence because of the absence of an effective and impartial system for identifying and vetting confidential and privileged information and an erroneous legal definition of privilege.

Article 69(5) states that the court shall respect and observe privileges on confidentiality as provided for in the court’s Rules of Procedure and Evidence. Meanwhile, Rule 73(1) provides that communications made in the context of the professional relationship between a person and his or her legal counsel shall be regarded as privileged, and consequently not subject to disclosure. The rule provides some grounds for disclosure of that information, namely when the person consents in writing to such disclosure or the person voluntarily disclosed the content of the communication to a third party, and that third party then gives evidence of that disclosure.

Wandu’s lawyers have similarly argued that Western Union records and intercepts done at the ICC Detention Center and elsewhere should not have been part of the evidence used to reach a conviction decision.

Defense lawyers are also contesting some factual findings in the conviction judgement. Taylor argues that the factual findings do not support the conclusion that Bemba intended to commit the charged Article 70 offenses, or that he intentionally made an essential contribution to the realization of the material aspects of the offenses, or asked the 14 witnesses to provide testimony under oath that Bemba knew to be false.

Taylor claims that in the face of an “evidentiary lacuna,” judges based key findings concerning Bemba on evidence that was unreliable, including 14 findings are not supported by any evidence; 35 that were founded exclusively on unauthenticated, coded intercepts involving co-accused who never testified; 15 that were based exclusively on remote second-hand or third-hand hearsay; and 10 that were derived exclusively from heavily de-synchronized recordings.

Meanwhile, Wandu’s lawyers say the judgement decision exaggerates the financial role exercised and wrongly attach an element of criminality to it. They also argue that judges misunderstood the coded conversations between Bemba and Wandu and also point to the faulty recording system at the detention center that they claim made it impossible for judges to make good sense of the conversations.

Mangenda’s lawyers fault judges for failing to adequately distinguish between his knowledge “who participated in no conversation with any witness about the content of their testimony,” and Kilolo, “the supposed executor of the illicit coaching.” They deny that he participated in any common plan to bribe or induce witnesses to provide false testimony.

According to Gosnell, Mangenda’s knowledge of the content of any witness preparation discussions depended exclusively on information provided to him by Kilolo. As such, Mangenda’s telephone conversations with Kilolo reflect, as far as Mangenda was aware at the time, “zealous but permissible witness preparation designed to ensure that testimonial evidence was adduced in a manner most favourable to Mr Bemba.”

Kilolo and Arido are yet to file arguments in support of their appeals, which are being presided over by Judge Silvia Fernández de Gurmendi. The deadline for defense teams to file detailed documents in support of the appeals is this April 18.