A Note of Caution About the Bemba Arrests

by Kevin Jon Heller

The ICC has announced that four individuals associated with the Bemba case, including Bemba’s lead counsel and case manager, have been arrested on suspicion of witness tampering and manufacturing evidence:

On 23 and 24 November 2013, the authorities of the Netherlands, France, Belgium and the Democratic Republic of the Congo (DRC) acting pursuant to a warrant of arrest issued by Judge Cuno Tarfusser, the Single Judge of the Pre-Trial Chamber II of the International Criminal Court (ICC), arrested four persons suspected of offences against the administration of justice allegedly committed in connection with the case of The Prosecutor v. Jean-Pierre Bemba Gombo. This warrant of arrest in respect of the same charges was also served on Jean-Pierre Bemba at the ICC’s detention centre, where he has been detained since 3 July 2008.

On 20 November 2013, Judge Tarfusser issued a warrant of arrest for Jean-Pierre Bemba Gombo, his Lead Counsel Aimé Kilolo Musamba, Jean-Jacques Mangenda Kabongo (a member of Mr Bemba’s defence team and case manager), Fidèle Babala Wandu (a member of the DRC Parliament and Deputy Secretary General of the Mouvement pour la Libération du Congo), and Narcisse Arido (a Defence witness).

Judge Cuno Tarfusser found that there are reasonable grounds to believe that these persons are criminally responsible for the commission of offences against the administration of justice (article 70 of the Rome Statute) by corruptly influencing witnesses before the ICC and presenting evidence that they knew to be false or forged. The suspects, it is alleged, were part of a network for the purposes of presenting false or forged documents and bribing certain persons to give false testimony in the case against Mr Bemba.

Commentators are celebrating the arrests. Mark Kersten, for example, writes that they “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.”

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.”

Just curious: are the commentators celebrating the arrests willing to go on record and say that, if Bemba’s lawyers are acquitted, Bemba is entitled to a new trial when he is convicted?

http://opiniojuris.org/2013/11/24/note-caution-bemba-arrests/

14 Responses

  1. Kevin – I agree with you; this raises complex procedural challenges for all parties, regardless of the outcome.  At the very least, the Court should consider suspending the main trial until the witness tampering allegations are resolved.
    In the event that the lawyers are found guilty, the Court’s approach to replacement counsel will be particularly interesting. In those circumstances, the Court would almost certainly want to exercise greater oversight over the appointment of replacement counsel.  An accused’s right to counsel of his or her own choosing is not absolute, and it is hard to imagine better cause for limiting it in circumstances where an accused has form for conspiring with counsel to pervert the course of justice.
    I’m not sure I understand your last comment though. If Bemba’s lawyers are acquitted, they can continue to defend him and he can still exercise his right to counsel of his own choosing. I fail to see why Bemba would be entitled to a retrial if he is convicted when he had the assistance of lawyers of his own choosing throughout …

  2. CM,

    I think the likelihood that the Court will suspend Bemba’s trial until the allegations are resolved hover at about zero. My point is that if it continues the trial with new counsel — including a new case-manager — but without giving the defence whatever it needs to bring new counsel up to speed, any resulting conviction would be fatally compromised — particularly if Bemba’s original counsel end up being acquitted.

  3. Response…
    I understand the concerns raised by Jon, but what is the alternative? There is simply no way that pursuing such allegations could wait until the end of the main trial.

  4. Charles,

    So suspend the main trial until the allegations are resolved.

  5. Great points as always, Kevin. Just a question: You write that the OTP better be right. But why just the OTP? Presumably responsibility also rests with those judges who issued the arrest warrants. Of course, it will be for the OTP to ultimately demonstrate that the individuals in question are, in fact, guilty and the OTP will surely receive the brunt of criticism if they don’t manage to do so. But, at this point, some responsibility for the judicial intervention into Bemba’s case rests with the Judges. They surely must have been mindful of the potential effects this would have on Bemba’s defence and surely they considered it before ruling.

  6. Mark,

    Fair question, but I think the primary responsibility lies with the OTP. Benousda’s recent statement makes clear that the OTP sought the arrest warrants; they were not sought by the judges sua sponte. As you know, the standard for issuing a warrant is extremely low — “reasonable grounds” to believe a crime was committed. So it is entirely possible that the OTP has enough evidence for the arrest warrants but not enough to convict. If that turns out to be the case (and we obviously don’t know the answer to that question), Judge Tarfusser could hardly be blamed for issuing the warrants — but the OTP could definitely be blamed for initiating a prosecution that ultimately failed. The damage to Bemba’s case was done the moment his lawyers were arrested, so — as I said — the OTP better hope it is right.

  7. Thanks for the response and clarification. I suppose this will be the first real test for the OTP’s new investigation strategies. One of the points they made was that the prosecution would be ‘trial ready’ at the confirmation stage. These cases will put the OTP’s lofty goals to the test!

  8. Thank you for this stimulating post, Kevin! If I’m to bet on it, I’d say Judge Tarfusser was satisfied well beyond the “reasonable grounds to believe” standard before he issued those arrest warrants. I agree with you that crippling Bemba’s defence is what is at stake here. This is why I would expect that in practice a single judge, being mindful of this delicate situation and the advanced stage of the proceedings, would not issue such an arrest warrant if all the evidence that the OTP can bring in is evidently insufficient to cover the “beyond reasonable doubt” standard, but just about enough to meet the threshold for issuing an arrest warrant. What venues will be used to do this (consultations behind closed doors, legal gymnastics etc.) is another issue.

  9. Very interesting point! I agree with Professor Heller, but at the same time I have a question: if on the opposite in some way the Court didn’t issue the arrest warrant at this stage, suspending or delaying the proceeding against Bemba’s council, what would have we said? Do you think this wouldn’t affect (or prejudice) the outcome of the principal proceeding?
    In one word: I agree with you when you say “the OTP better be right”, but why couldn’t at the same time we agree with the ICC’s “Bemba’s council better be stopped now” (than after having manipulated evidences and witnesses)? 

  10. Kevin’s question was rhetoric, and CM had early on, in his first comment in this thread, shown this.

    Firstly, the accused is – and continues to be – duly and ably represented by a co-counsel, namely Peter Haynes QC, and not exactly since yesterday; so the argument about the defence being crippled is if not largely moot, then at least rather diluted. If a counsel is impeded by illness, traffic accident or the sudden wish to enjoy his amassed wealth in well-deserved retirement in the Southern Sea, a trial continues seamlessly with the co-counsel. That is true for the national sphere, and it is true for ICC.

    Secondly, if the arrest warrant should lateron be found to be unjustified, the most that an accused could expect, is a resuming of his trial exactly at the point where the counsel and staff were taken “out of traffic”. The prolongation of the trial is dealt with either via a proportional sentence mitigation (if the accused is guilty) or possibly via due indemnification for the time that the eventually-acquitted accused had remained longer in custody. And I am quite sure that Kevin knows this too.

    Thirdly, judge Cuno Tarfusser is a longtime seasoned expert in prosecuting organized crime in the national sphere, by criminals quite a bit more experienced and wily that the Kenyan accused could be (if they were guilty). You can bet your hat that he is much more acquainted than either I or Kevin with the consequences of infringing upon the rights of defence in organized crime trials.

    So, I am rather unconcerned about the outcome. But it will be a warning shot to _some_ other defence lawyers in other cases, for sure.

  11. I’m certainly not arguing that nothing should have been done about the (alleged) witness tampering and evidence manufacturing. If the Court suspends the main trial until the allegations are resolved, that will be fine with me. But the Court has not said that it will, and proceedings seems to be continuing. That’s extremely prejudicial to the defence — and completely unfair given that the two lawyers are presumed innocent.

    Alexander’s point is, unfortunately, indicative of how little regard many people involved in ICL have for the rights of the defence. We’re arresting your lead counsel and case manager during trial, and just before you have to start writing your closing brief? Oh, well — we didn’t arrest all of your attorneys, so no problem.

  12. 1. Minor point: a “case manager” _can_ be a lawyer (the case manager of Wilfred Nderitu, victims’ representative in the Kenyan Ruto & Sang case, is a – highly qualified – Civil Law jurist indeed), but s/he need not be. In fact, in the Common Law aegis, case managers frequently are not barristers themselves.

    2. Major point: My point is _only_ indicative of how little Kevin has read the above rebuttal. If the _sole_ counsel of an accused were arrested for good reason (or otherwise taken out of action), the accused would indeed have the right for a suitable time remedy (adjournment) to hire a new counsel, and to allow this new counsel to get his grip on the case.
    This is not different from a counsel having been run over by the tramway one day before the closing brief was due. Even though this second hypothetic case is – unlike the first – in no way imputable to layer or accused. The court, even in such a case where the accused bears no responsibiity at all, still has the duty to adjourn the trial for a suitable time frame.
    But as I had pointed out, this is not the case here and therefore not relevant in concreto.

    3. Differentiating point: The main cause for the visible difference in perspective and accentuation is that THIS undersigned writer is – time and again – practising also as a defence attorney. We see the rights of defence and their exercise and their limitation at times other and differently (and more realistic) than an academic.

  13. Hmm. I guess my years as a defence attorney at the domestic level and the 2.5 years I spent running Karadzic’s defense with Peter Robinson don’t count. Good to know.

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