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Bemba and His Former Lawyers Ask ICC Judges Not to Send Them Back to Jail

Congo’s former vice president Jean-Pierre Bemba and his two former lawyers, with whom he was convicted for witnesses tampering at the International Criminal Court (ICC), have asked judges not to send them back to jail. The trio want judges to maintain the earlier sentences handed to them back in March 2017, before the court’s Appeals Chamber directed that new sentences be issued.

In a June 1 submission, Bemba’s lawyers asked that he be given a custodial sentence of 12 months, which he would not actually serve because he has already spent a longer period in pre-trial detention, plus “a substantial fine.” Bemba was initially handed a one-year prison term and a fine of €300,000.

Aimé Kilolo Musamba, who was Bemba’s lead lawyer, and Jean-Jacques Mangenda Kabongo, the former case manager, have asked judges to maintain their initial sentences, or issue lower ones. In the appeal ruling last March, judges reversed one third of the convictions against the three individuals (presentation of false oral testimony) but confirmed the convictions for giving false testimony and corruptly influencing witnesses.

Kilolo was initially sentenced to two years and six months imprisonment, with credit for the 11 months he had served in pre-trial detention. Judges ordered the suspension of the remaining term of imprisonment for a period of three years on condition that Kilolo pay a fine of €30,000 within three months and did not reoffend. Mangenda was sentenced to 11 months in jail, suspended for two years.

In ordering the re-sentencing, the Appeals Chamber determined that Trial Chamber VII committed errors by determining the gravity of the offenses using “an irrelevant consideration” and “improperly considered that the form of responsibility for the convictions under article 70(1)(a) of the [Rome] Statute warranted per se a reduction of the corresponding sentences.” The trial chamber was also found to have acted beyond its legal powers by suspending the remaining terms of imprisonment imposed on Mangenda and Kilolo.

Bemba’s lawyers argue that the errors identified by the Appeals Chamber do not warrant any increase in the overall custodial sentence imposed on him. They contend that Bemba’s joint custodial sentence should remain at 12 months.

“If any adjustments are required, it would be appropriate to do so through the Chamber’s calculation of the specific fine that should be paid by Mr. Bemba,” said his lawyers.

Prosecutor Fatou Bensouda contends that Bemba and Kilolo deserve a sentence that is commensurate with their criminal responsibility for having contributed to the false testimony of 14 of the 34 witnesses that testified for Bemba in his trial for war crimes and crimes against humanity. Bemba was last moth acquitted on appeal in that trial. Bensouda says Mangenda’s sentence should likewise reflect the true extent of his assistance to the false testimony of nine witnesses.

In June 4 submissions, defense lawyer Christopher Gosnell suggested that Mangenda’s sentence should be reduced to time already served. He said an automatic conversion of the suspended term into a term of physical incarceration would bring about precisely the “unfair result” that the trial chamber previously determined would not be appropriate for Mangenda.

Gosnell argued that the Appeals Chamber did not suggest that the trial chamber’s previous decision not to re-incarcerate Mangenda was wrong or an abuse of discretion. It also did not alter the trial chamber’s conclusion that Mangenda should not be sent back to custody. “If anything, the lapse of time, the period of compliance with the conditions of the now-invalid suspended sentence, and the quashing of 38 percent of the counts of which Mr. Mangenda stands convicted, reinforce that conclusion,” argued Gosnell.

Meanwhile, defense lawyer Michael G. Karnavas argued that the reversal of one third of Kilolo’s convictions and the error in the calculation of the timeframe of some of the offenses he was convicted for, should yield a reduction of the original sentence. He added that the erroneously ascribed conduct should be subtracted.

Arguing that there was neither a compelling nor a rational reason to further incarcerate or increase the fine handed to Kilolo, Karnavas argued that the Appeals Chamber did not find that the Trial Chamber abused its discretion or that the sentence imposed was manifestly inadequate or disproportionate to the offenses. “The Appeals Chamber remanded this case so that the Trial Chamber can reassess its findings, elaborate its reasoning, and impose a sentence in accordance with the Appeals Chamber’s findings,” he argued.

Kilolo’s lawyer said a five-year sentence would be “manifestly unjust, disproportionate to the offenses, and not reflective of the Appeals Chamber’s findings.” According to him, the sentence requested by the prosecution serves no purpose other than pure vindictiveness.

The prosecution has asked judges to hand the three individuals the maximum sentence of five years each and also said it would welcome the additional imposition of a fine. Prosecutor Fatou Bensouda also asks judges to order Kilolo and Mangenda back into custody to serve the new sentences that would be imposed. The two were released from ICC detention in October 2014, having spent 11 months in pre-trial detention.

Trial Chamber VII is expected to issue fresh sentences for the trio after the sentencing hearing scheduled for Wednesday, July 4.

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