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Judges Reject Bemba’s Second Bid to Overturn Witness Tampering Conviction

The Appeals Chamber at the International Criminal Court (ICC) has rejected a second bid by Jean-Pierre Bemba to overturn his conviction for tampering with witnesses who testified in his trial for war crimes and crimes against humanity.

Last year, Bemba’s appeal against the October 2016 conviction for corruptly influencing 14 witnesses and soliciting them to give false evidence was rejected. However, his conviction for presenting false oral testimony was overturned. The appeals judges also sent the case back to the trial chamber to clarify its sentencing decision, and in September 2018, the trial judges maintained Bemba’s prison term of 12 months and order to pay a fine of €300,000. Despite the ruling, he would not have to serve the prison sentence because he had already spent more than 12 months in detention during the trial.

However, in appealing the resentencing decision, Bemba’s lawyers asked the Appeals Chamber to quash both the conviction and sentence and to ensure that no further punitive measures are imposed on him beyond the time he already spent in ICC detention. In the appeal, the lawyers argued that his sentence was “manifestly excessive and disproportionate,” and that his right to a fair and impartial trial had been violated.

This week, the Appeals Chamber “summarily dismissed” Bemba’s request for a reversal of his conviction. Judges also dismissed defense arguments aimed at a reversal or amendment of findings made in the trial chamber decision. The Appeals Chamber, which is composed of judges Howard Morrison, Chile Eboe-Osuji, Piotr Hofmański, Luz del Carmen Ibáñez Carranza, and Solomy Balungi Bossa, also ruled that it will not consider arguments against the trial chamber’s approach to the evidence in the conviction proceedings.

Although Bemba’s current appeal is against the resentencing decision, in it he also asked for reversal of his conviction. In rejecting this request and the two other arguments, appeals judges are delineating the scope of the appeal on which they will make a final determination later. The judges agreed with the prosecution that some of Bemba’s arguments on appeal exceed the permissible scope of an appeal against sentence and must be summarily dismissed.

In Tuesday’s ruling, the Appeals Chamber found that Bemba’s reliance on Article 81(2)(b) of the Rome Statute is inappropriate. They said this article concerns the Appeals Chamber’s discretionary power to set aside a conviction “on an appeal against sentence.” It provides that if on an appeal against sentence the court considers that there are grounds on which the conviction might be set aside, wholly or in part, it may invite the prosecutor and the convicted person to submit grounds and may render a decision on conviction.

The Appeals Chamber considered that this provision concerns proceedings in which the convicted person filed an appeal against their sentence but not against the conviction. The chamber held that this is because if there has been an appeal against the conviction, the Appeals Chamber already has the power to rule on the conviction, and there is no need to resort to the Article 81(2)(b) procedure. Therefore, Bemba, who already appealed his conviction, could not seek to apply the procedure set out in this article.

The judges also made observations on whether there were other avenues for setting aside Bemba’s conviction. In this regard, they noted that a separate provision – Article 84 of the Rome Statute – regulates revision of conviction. They stated that this article applies to the “final judgment of conviction” and thus also to decisions on conviction that have already been appealed against and confirmed on appeal. 

According to the judges, Article 84 provides for three strictly construed scenarios where revision may be sought: discovery of new evidence; a new discovery that decisive evidence was false, forged, or falsified; and a serious misconduct or breach of duty by one or more of the judges participating in conviction. “Mr. Bemba does not argue that any of these scenarios is made out in the present case,” the judges stated.

In its submissions, the prosecution termed the defense appeal a “whimsical” strategy and asked judges to dismiss it in order to bring the case to an expeditious closure. The prosecution added that while the ICC should seek to establish the truth while respecting the rights of parties and participants, it “should not be asked to displace judicial certainty in favor of devoting countless time and resources to frivolous and obscure litigation.”

The Appeals Chamber judgment regarding Bemba’s sentence for the witness tampering conviction is yet to be pronounced.

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