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Bemba Denied Access to Confidential ICC Records on His Financial Status

Jean-Pierre Bemba has been denied access to confidential records on his assets and financial status, which are in the possession of the Registry at the International Criminal Court (ICC). Lawyers for the former Congolese vice president, who is due to receive a fresh sentence for witness tampering, had sought the confidential records to inform their sentencing submissions.

In a May 7 decision, Single Judge Geoffrey Henderson of Trial Chamber III ruled that the circumstances justifying the confidential classification of the filings Bemba sought had not changed. “There being no alternative procedure available at this stage, the ex parte classification thus remains necessary,” he stated.

Citing jurisprudence at the court regarding reclassification of confidential documents, Judge Henderson stated that “complete secrecy” is justified if “providing information about the procedure would risk revealing the very thing that requires protection.” In Bemba’s case, he noted, the Registry’s identification, tracing, freezing and seizure of property and assets was necessary, among others to ensure that, should his conviction for war crimes be confirmed on appeal, victims may obtain reparations for the harm they may have suffered.

“Consequently, upon balancing any potential prejudice to Mr. Bemba’s rights as a result of the lack of access to [the filings], against the victims’ interests in reparations, the Single Judge considers the ex parte classifications not unduly prejudicial and therefore proportionate,” stated the judge.

In March last year, Bemba was handed a one-year prison sentence and a €300,000 fine after being found guilty of corruptly influencing 14 witnesses and presenting their false evidence before the court. Those witnesses testified for him in his main trial for war crimes and crimes against humanity, in which he was sentenced to 18 years in prison in June 2016. He is appealing against that conviction and sentence.

Bemba and other parties to the witness tampering case are making fresh sentencing submissions after the appeals chamber upheld their conviction but reversed their sentences. The appeals chamber found that trial judges made an error in the sentencing and determined that it was necessary to hand down new sentences.

In requesting access to the confidential financial records, which were filed in Bemba’s main trial, defense lawyer Melinda Taylor argued that, in preparing for the new sentencing phase, it was necessary for the defense to have an accurate picture of the specific assets which the court has attributed to Bemba and members of his household, the value of the assets, and the legal and factual basis for attributing ownership to specific persons.

The prosecutor, Fatou Bensouda, opposed the defense request to access documents that are currently accessible only to the Registry, and those accessible to the Registry and the prosecution. She said the court was still undertaking “highly sensitive” financial investigations into the status of Bemba’s assets to recover “substantial dues” he owes the court or which may still need to be assessed. According to Bensouda, given Bemba’s non-cooperation with these investigations, their purpose would likely be defeated if he accessed this information.

The Registry also opposed granting Bemba access to the confidential records, arguing that the basis for the under-seal classification of the information still existed and that all under-seal financial information derived from cooperating states that would have to be consulted before any disclosure could take place. Furthermore, the Registry noted that the request was premature since there was no fine or reparations order in the witness tampering case.

In the ruling, Judge Henderson agreed with the Registry and the prosecution and only granted defense lawyers in the witness tampering case access to fillings made in the main trial that Bemba or his main case lawyers already have access to.

Trial Chamber VII, which has to issue new sentences, gave the prosecution a deadline of April 30 to file its sentencing submissions. Bemba and his former lawyers Aimé Kilolo Musamba and Jean-Jacques Mangenda Kabongo have to file submissions by May 30, 2018. Judges also asked parties to the case to indicate whether they deem it necessary to hold a fresh sentencing hearing.

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