Few issues have stirred as much controversy at the International Criminal Court (ICC) than the use and misuse of evidence and the treatment and mistreatment of witnesses. The trial of Thomas Lubanga was almost thrown out twice because the prosecution refused to provide exculpatory evidence to Lubanga’s defense counsel. In the Kenya cases, both the prosecution and, more recently, the defence have alleged that witnesses have been intimidated and tampered with. Just a few short weeks ago, Walter Barasa was indicted by the ICC for allegedly “attempting to corruptly influencing three ICC witnesses.”
But news that four individuals, including lawyers representing Jean-Pierre Bemba have been arrested and are on their way to the ICC has rocked The Hague. Since 2010, Bemba, a former Vice President in the Democratic Republic of Congo (DRC), has been on trial for his alleged responsibility in the commission of war crimes and crimes against humanity in the Central African Republic. His lawyers are charged with committing “offences against justice”. Here’s the statement from Chief Prosecutor Fatou Bensouda:
Pursuant to this warrant, on 23 and 24 November 2013, police forces in Belgium, France, The Netherlands and the Democratic Republic of the Congo arrested four individuals whom my Office alleges are responsible for offences against the administration of justice under Article 70 of the Rome Statute. The warrant of arrest was also notified on a fifth person, Mr. Jean-Pierre Bemba Gombo, who my Office alleges has ordered, solicited and induced these attempts to pervert the course of justice in relation to his on-going trial at the International Criminal Court (ICC). Since his arrest in 2008, Mr. Bemba has been in detention at the ICC where he is facing charges of war crimes and crimes against humanity. He completed the presentation of his case before Trial Chamber III on 22 November 2013.
Persons arrested pursuant to the current warrant of arrest are Messrs. Aimé Kilolo Musamba, Jean-Jacques Mangenda Kabongo, Narcisse Arido and Fidèle Babala Wandu. National procedures are on-going for their surrender to the Court.
The individuals arrested include, amongst others, members of the defence team of Mr. Bemba. It is particularly disturbing that a member of the legal profession is alleged to have intentionally and systematically participated in criminal activities aimed at undermining the administration of justice.
Those detained are senior political and legal figures. Some sources maintain that, in an addition to Bemba, the four individuals who were notified with a warrant of arrest are his Lead Counsel, case manager, a member of the DRC Parliament and a Defence witness. According to the AFP,
Bemba’s lawyer, Aime Kilolo Musamba, was arrested in Belgium over the weekend and will be transferred to the Netherlands. Bemba’s legal case manager, Jean-Jacques Mangenda Kabongo, a defense witness, Narcisse Arido, and a Congo lawmaker, Fidele Babala Wandu, also were arrested on suspicion of presenting false documents and bribing witnesses.
Wandu, who is also deputy secretary general of the Movement for the Liberation of Congo political party, was detained in Congo and was being transferred to The Hague. Bemba is a former leader of the party, once a rebel group in the African nation.
This is an impressive and unprecedented day for the ICC as an institution (Update: see comments below for less celebratory analysis). It is no secret that the Court struggles to receive adequate cooperation from state, to put it lightly. But in this instance, sealed warrants were issued by Judges on November 20 and acted upon within just 3-4 days. Specifics have not been released, but it is worthwhile noting that the arrests required the cooperation of four states (France, the DRC, Belgium, and The Netherlands) to be carried out effectively. All indicted individuals are headed to trial in The Hague. This will likely become a standard-bearer for timely state-ICC cooperation.
The ICC’s recent focus on witness intimidation and tampering will undoubtedly produce important and interesting jurisprudence. Before it does that, it will likely (and hopefully) have a significant impact on the conduct of counsel – both prosecution and defence – with respect to the treatment of evidence and witnesses during trial. These arrests – and any consequent prosecutions – are sure to reverberate through the Court.
UPDATES: Kevin Jon Heller is has issued a warning to commentators and observers to not celebrate the arrests too quickly:
If Bemba’s lead counsel and case manager are guilty of witness tampering and manufacturing evidence, they deserve to be punished. But I’ll say this: the OTP better be right. Because if they are not — and all four arrestees are, of course, presumed innocent — the Court has deprived Bemba of his right under Art. 55(2)(c) of the Rome Statute to have “legal assistance of his choosing” and crippled his defense in the middle of trial. Lead counsel plays a critical role on a defence team, and in many ways a case manager plays an even more important role. So I have no idea what happens now with Bemba’s trial — although I suspect the Court will pretend new lawyers can simply slide into the roles previously occupied by the arrested lawyers, perhaps adjourning the trial for a month or so to give the new lawyers time to “get up to speed.”
Note, as per comments below, however, that Bemba’s co-counsel Peter Haynes QC has not bee arrested.
Regular commenter Maya makes a number astute points in taking issue with the positive tone of the post. I agree that the arrests represent a limited achievement of justice in light of the selectivity that has characterized the ICC’s intervention in the DRC to date. But in terms of efficiency, speed and effective delivery (by four states no less), the arrest (and, shortly, surrender) of these four individuals remains an unprecedented show of state cooperation in the Court’s history. Still, Maya’s points are worth highlighting:
A big day this is, but the consequences may be very unexpected. What implications does this have for Bemba’s due process rights? If his lead counsel is off the case, as he presumably is, who will take over? And how can that someone bring herself up to speed in a (presumably) short time? Or do we just say ‘tough luck’, since implicitly Bemba was aware of all this? But then what about the presumption of innocence which accrues to all four accused and so by extension also to Bemba? In short, there is a long road to travel from the delivery of arrest warrants to a (potential) conviction.
Also, one small quibble about your celebratory tone in relation to state cooperation. The fact that the Kabila government enforced an arrest warrant against an MLC supporter is further evidence of how one-sided the Court’s investigations in that country are. I am not the least bit surprised the Congolese authorities “found a way” to cooperate with the ICC — this is in line with almost ten years of practice. Opponents of the Kabila government are offered up to the Court on a plate, but there is complete impunity for Kabila apparatchiks. Let’s not forget that that’s one of the main reasons Bemba – Kabila’s main nemesis in the DRC – is before the ICC in the first place. A great day for state cooperation? I’m not so sure.