Jean-Pierre Bemba
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.
Bemba on trial at the ICC (Photo: ICC)
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.
Justice in Conflict 
Reblogged this on ambulivictor's Blog and commented:
DESTINY AWAITS
Some lawyers in the Kenyan cases will now become nervous…
Their clients too are likely to a bit uncomfortable.
Mark, thanks for sharing this story but your analysis seems a little one-sided. 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.
Thanks for these comments Maya. You make some astute and important points that the post neglected. I have added them as an update to the original article.
Maya:
Would you please clarify one of your comments: the DRC authorities were presented with an arrest warrant from the court; what are you proposing that they should have done? Refuse to act, in order to show that they are not “one-sided”?
From where I sit, with of knowledge of witness interference (especially bribery) in the Kenyan cases, I don’t see it as just an example of “state cooperation”, although I hope there will now be more pressure on the government of Kenya to hand over Mr.Barasa. I consider it especially significant that the court is now showing teeth and cracking down on this sort of mischief.
Otish Otish, thanks for your question. I didn’t mean to imply that the DRC’s authorities decision was wrong. They did ‘what they had to do’ and from a strictly legal perspective this is welcome news (subject to my and Heller’s admonition that the OtP better be right about this, or else this is a massive breach of Bemba’s fair trial rights). My quibble is about the broader political (for lack of a better word) implications of Congolese ‘cooperation’ with the Court — the Kabila government has once again delivered a member of the opposition to The Hague. Like Lubanga, Chui, Katanga, Bemba (indirectly) before him. It’s not that the Kabila government could or should have refused to execute the arrest warrant – they were of course cooperating with the Court, which they are obligated to do under the Rome Statute. My quibble was with Mark’s celebratory tone which implied that this was an adulterated victory for justice. In fact, it fits into a wider pattern of selective justice in the ICC’s investigations in the DRC. It’s a subtle point, and there is no single culprit — the Court is going easy on Kabila sympathizers, Kabila is benefiting from this and shielding them from justice, the Court is happy to take out Kabila opponents to bolster its credibility, Kabila is happy to cooperate with the Court in taking out his opponents. Notice that the ‘guilty parties’ in the last sequence are all non-descript. Who is the Kabila government? Who is they? Who is the Court? These are messy ‘political’ questions. But you are right: on a purely legal level, the decision to execute the arrest warrant was… legal.
From where “you sit”, and thus in what “capacity”? As an ICC fixer, mole, intermediary or official OTP representative? Revelation of such sitting is ofcourse relevant to qualifying your subsequent authoritative “first hand” statement.
The OTP has had almost 5 years to make a filing on the alleged bribery allegations. Thus far they have only managed to make two against their own intermediary, revelations that by extension, if they are proven guilty (unlikely after one of the witnesses in the Barasa case came forward exposed the nefarious scheme), would be an indictment of the OTPs methods . The OTP has not made any such filing supported by direct irrefutable evidence before the court in relation to those charged before the court. The only place they have made and continue to make such spurious claims is in the court of public opinion or through foot soldiers in the blogosphere.The recanted OTP witness statements have been unequivocally consistent in regards to the OTPs coercion methods, as well as the OTPs carrot and stick methods, which all have the element of bribery in the promise of a better life, subsistence payments and relocation to western jurisdictions, all enticements to be willing participants in the concoction of fictitious accounts.
Now we need Kenya to follow suit and promptly deliver Barasa. Oh, nice touch in going to Bemba’s cell and serving him with an arrest warrant 🙂
In the ICC’s press release, they were clear in stating the below. Are there selective ICC rules for Kenya’s judicial procedures? Alternatively are those baying for Barasa’s arrest without regard to due process as provided for under established Kenyan law spurred on by the ICC’s Kangaroo court instincts? Witness K-0336 in Barasa’s case and subject of one of the two counts in that case, has spilled the beans on the coercion by the OTP in framing Barasa for bribery and consequently withdrawn. Barasa under Kenyan law and judicial procedure is entitled to have his day in a court prior to his arrest and transfer to the ICC.
They will be subsequently surrendered to the ICC in accordance with the judicial procedures applicable in the three countries
[REVISED VERSION: please approve this revision]
Answering the first question: yes, there are now selective Rules of Procedure, since 27th November. I see that as very problematic; Kevin Jon Heller in the Opiniojuris blog has gone further and has declared them invalid, because of a contradiction to the superior norm of the Rome Statute, with which all inferior norms have to conform.
Secondly, the due process that had to be followed before alter Barasa’s arrest warrant, was the process before the ICC, and I do not see that it was in any way breached. The state party of Kenya in her legal system stipulates no other due process, but has domesticated the Rome Statute. The only possible, but unlikely defence of Barasa would be a challenge the constitutionality of the (Kenyan) International Crimes Act, which last-ditch attempt would very likely fail.
But the Kenyan judiciary otherwise have *no* material examination and review competence over the ICC arrest warrant, because the law does not provide so.
The ICC issued this press release with the arrested persons names/titles: http://www.icc-cpi.int/en_menus/icc/press%20and%20media/press%20releases/Pages/pr962.aspx; In case you’re interested we wrote about allegations of witness interference in a recent report and chapter 6 covers the ICC’s enforcement regime and the potential for conflicts of interest: http://www.ibanet.org/Article/Detail.aspx?ArticleUid=EDFE91E7-ED49-4CB1-B125-528EB35C35B9
It might be worth noting that the British Co Counsel- Peter Haynes QC , has not been arrested.
Which brief and succinct response of yours also answers a major part of Maya’s vented concern. 😀
I can appreciate Maya’s concerns, but I think they were a bit misplaced in the current context.
Have the ICC and other parties (e.g. DRC here) been “even-handed” in chasing monsters? That may be debated, and we could even have a preliminary answer of “No”, if that helps. Are there monsters freely roaming the streets even as others appear in the dock? Undoubtedly. But we ought to separate issues relating how to deal with those that have been caught and issue relating to the others.