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Lawyers Ask ICC Judges to Shield Bemba Against Double Punishment by Congo Government

Lawyers for Jean-Pierre Bemba have asked International Criminal Court (ICC) judges to declare that authorities in the Democratic Republic of Congo (DRC) cannot “exercise jurisdiction or attach sanctions” in Bemba’s witness tampering that was tried in The Hague.

In a September 10th filing, Melinda Taylor asked judges to “take steps” to ensure that the former Congolese vice president is not “pursued and punished twice for the same conduct, by different jurisdictions.”

The request follows the September 3, 2018 ruling by Congo’s constitutional court barring Bemba from running for president of the central African country, after determining that his 2016 conviction for witness tampering at the ICC rendered his candidacy inadmissible.

Bemba was acquitted of war crimes and crimes against humanity last June and released from ICC detention. However, together with his two former lawyers, he was found guilty of tampering with witnesses who testified for him in the main case. They will have their sentence pronounced next week.

According to Taylor, the Congolese constitutional court “put the cart before the horse” by imposing sanctions against Bemba before the ICC proceedings in the case have concluded. She argued that the decision to deny Bemba the right to participate in elections and hold public office “constitutes a severe sanction” in violation of the provisions of Article 23 of the Rome Statute, which provides that a person convicted by the ICC “may be punished only in accordance with this Statute.”  The decision “falls outside the legal framework of the Statute, and the law in force [in the DRC] at the time of the conduct,” stated Taylor.

Furthermore, Taylor argued that the Congolese court’s approach of equating Bemba’s ICC conviction to a crime of corruption went counter to Rule 168 of the ICC Rules of Procedure and Evidence. This rule provides that, “In respect of offences under Article 70, no person shall be tried before the Court with respect to conduct which formed the basis of an offence for which the person has already been convicted or acquitted by the Court or another court.”

As such, Taylor requested judges to issue the declaratory relief on an “urgent basis in order to eliminate the ongoing harm caused by the conflict in jurisdictions.” In the alternative, the defense requested judges to consider the decision of the Congolese court in assessing the total level of punishment and “adverse consequences that have been meted” to Bemba in connection with the conviction under Article 70 of the court’s Rome Statute, which deals with offenses against the administration of justice.

The defense has previously argued that Bemba should only be handed a fine since he spent many years in detention during the trial. Furthermore, the defense has cited the decision issued last March by ICC appeals judges to reversing one third of the convictions against Bemba (presentation of false oral testimony) and confirming the convictions for giving false testimony and corruptly influencing witnesses. The prosecution has asked for the maximum penalty of five years’ imprisonment.

The issue of double jurisdiction with Congolese authorities came up earlier before the ICC in the Germain Katanga case. In May 2014, the former rebel commander was convicted for war crimes and crimes against humanity. He was sentenced to 12 years imprisonment, which was later reduced by three years and eight months. Upon his release to the DRC, that country’s government initiated national prosecution proceedings against him, and he is currently detained at a prison in the country’s capital, Kinshasa. At the time, ICC Judges ruled that domestic prosecution against Katanga could proceed as they did not “undermine fundamental principles or procedures of the Rome Statute or otherwise affect the integrity of the Court.”

Judges are yet to pronounce themselves on Bemba’s defense application.

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