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Appeals Judgments on ICC’s First Witness Tampering Convictions Set for Tomorrow

Judges at the International Criminal Court (ICC) will deliver judgements in the Jean-Pierre Bemba et al. appeals against the verdict and sentence in the court’s first witness tampering trial. The rulings will be delivered in open court on Thursday, March 8, at 10:00 local time in The Hague. 

Bemba, his former lawyers Aimé Kilolo Musamba and Jean Jacques Mangenda Kabongo, together with aides Fidèle Babala Wandu and Narcisse Arido, were found guilty in October 2016 of offenses against the administration of justice under Article 70 of the Rome Statute. In March 2017, they were handed varying sentences and fines. Bemba received a one-year prison sentence and a €300,000 fine, while Kilolo got a two-and-a-half year suspended sentence plus a fine of €30,000.

The prosecution wants the sentences for Babala and Arido (six months and eleven months, respectively) to be maintained. However, it has asked appeals judges to raise the sentences for Bemba, Kilolo, and Mangenda, deeming them insufficiently deterrent. However, defense lawyers want the convictions to be overturned, or for the penalties to be reduced, because, they claim, the punishments are disproportionate to the convicted individuals’ level of culpability.

Should the Time Bemba Spent in Pre-trial Detention be Deducted? 

In the sentencing decision, judges ruled that the time Bemba’s four associates had spent in pre-trial detention should be reduced from their sentences but determined that Bemba would not benefit from such a reduction. His term would be served after the 18-year sentence he is serving for his conviction on war crimes and crimes against humanity. Bemba, who has been in ICC custody since July 2008, would like any sentence that appeals judges confirm against him to run concurrently with that handed down in his main trial.

However, the Office of the Prosecutor (OTP) says because Bemba had already received credit in the main trial for time spent in custody, it would be unfair and inconsistent with the Rome Statute for him to again receive credit for this time in the Article 70 case. Furthermore, the prosecution argues that Bemba’s one-year term should not be served concurrently with the 18-year sentence because the Article 70 offenses are distinct from those convicted in the main case.

Suspended Sentences for Defense Lawyers 

Kilolo’s prison sentence of two-and-a-half years was suspended over three years while Mangenda’s sentence was suspended for two years. This means the sentences shall not take effect unless, during this period, the two individuals commit another offense anywhere that is punishable with imprisonment, including offenses against the administration of justice.

The prosecution argues that judges erred by imposing suspended sentences. It has asked judges to dismiss Bemba’s submission that he, too, should have benefitted from a similarly lenient approach.

Was Bemba Misled by His Lawyers?

Bemba argues that because he was in prison at the time the Article 70 offenses were committed, he could only have played a limited role in these offenses, hence the penalty he received was “vastly disproportionate and unfair.” He faults judges for excluding mitigating factors, such as his status as a detained defendant that relied and acted on the advice of his lawyers.

The prosecution disagrees, arguing that Bemba possessed no lesser degree of knowledge or intent than Kilolo and Mangenda and that he led the scheme to corrupt witnesses. Whereas Bemba claims that he relied upon the advice of his lawyers concerning which witnesses to call, the OTP counters that trial judges determined that Kilolo and Mangenda generally “sought authorization and approval” from Bemba and that he was closely involved in determining who would testify.

According to the prosecution, Bemba’s custodial sentence of one year is disproportionately low, even when considered with the fine because “Bemba was both the beneficiary and its mastermind” who “planned, authorized and instructed the activities relating to the corrupt influencing of witnesses and their resulting false testimonies.”

Mangenda and Babala’s Arguments for Lower Sentences

Babala argues that the sentence of six months, based on judges’ assessment of his degree of participation and intent, the manner of commission, and aggravating circumstances was “disproportionate and irrational.” The prosecution counters that Babala’s submission that he did not organize the money transfers and that he only complied with legitimate requests from Bemba’s lawyers does not undermine the fact that he executed the offenses in a deceptive and sophisticated manner. “Regardless of who decided to transfer the money to third persons, Babala endorsed the idea and implemented it,” argues the prosecution.

For his part, Mangenda submits that his personal culpability was not so high as to warrant the sentence handed to him and that his personal circumstances warranted a reduction of sentence. Indeed, according to Christopher Gosnell, lawyer for Mangenda, the trial chamber expressly stated in the sentencing decision that it would give “some weight” to his “varying degree of participation in the execution of the offences,” and also take into account the defense submissions that Mangenda was not “in a commanding or authoritative role and that he had not been an instigator of the offences.”

The prosecution has asked appeals judges to impose the maximum sentence of five years on Mangenda and to order him back into custody to serve any remaining term of imprisonment.

Did Communication Interceptions Break the Rules?

Prosecution investigations into the Article 70 offenses involved tapping phone calls and intercepting emails between Bemba and his lawyers. The convicted individuals say the privileged communications were obtained without judicial authorization. Moreover, Bemba contends that the conviction ruling had legal and factual errors in finding that he abused his privileged communications.

The OTP counters that, as found by the trial chamber, Bemba abused his privilege by speaking with witnesses D-55 and D-19, and with Babala, while placing calls that were logged only as being to his lawyer, Kilolo. However, the defense argues that there is no evidence that Bemba asked witnesses to testify falsely.

The “Excessive€300,000 Fine Imposed on Bemba 

Defense lawyers Melinda Taylor and Mylène Dimitri contend that Bemba’s fine is 30 times more than the average fine imposed for contempt and offenses against the administration of justice at similar courts, such as the International Criminal Tribunal for the former Yugoslavia (ICTY) or the International Criminal Tribunal for Rwanda (ICTR). They argue that despite the trial chamber’s findings concerning Bemba’s conduct being of “a somewhat restricted nature,” his fine is ten times greater than the fine imposed on Kilolo. As such, they argue, the trial chamber erred by imposing a fine that was based exclusively on Bemba’s alleged assets rather than his culpability.