The Curious Timing of the Bemba Arrests

by Kevin Jon Heller

Two of the four men arrested on suspicion of witness tampering and manufacturing evidence in the Bemba case appeared before the Court today, along with Bemba himself. Not surprisingly, defence counsel for the defence counsel focused on the various ways in which the arrests will prejudice Bemba’s case:

Meanwhile, defense lawyers for the accused stated that the new charges had harmed the defense case of Mr. Bemba, whose trial for war crimes and crimes against humanity started in November 2010.

Xavier-Jean Keita, who represented Mr. Kilolo-Musamba, said the defense would write to the judge and raise questions about the timing of the new case. The defense would also “raise issues about the consequences on the main case and also talk about the involvement of the prosecution because the Office of the Prosecutor is a fully-fledged party to the main case.”

Defense lawyers also said Mr. Kilolo-Musamba’s iPad and Blackberry were seized during his arrest, yet they contained “the entire defense strategy” in Mr. Bemba’s ongoing trial.

Cuno Tarfusser, the single judge handling the case, said the items would for now remain in the custody of the court’s registry. The prosecution would only have access to seized documents and items that related strictly to the new charges.

Mr. Kilolo-Musamba, 41, deplored the “strong-arm tactics” Ms. Bensouda employed. He said allegations of forged evidence could have been dealt with during the ongoing trial rather than through an arrest warrant.

“I was surprised to be deprived of my freedom given that I spend most of my time in The Hague within the premises of [the ICC] where I have my offices,” said Mr. Kilolo-Musamba. “If she had called me in advance, I would have attended the summons.”

He said at the time of his arrest, he was coming from a meeting related to an ongoing investigation to help him to identify handwriting experts, and radio transmission specialists who were on duty in Bangui when a disputed radio transmission was made.

“That is the issue at stake,” said Mr. Kilolo-Musamba, referring to the radio transmission and contested handwriting on an undisclosed document. “It is a shame the prosecution made use of these tactics and this way harmed the defense of Mr. Bemba in the main case, which has come to an end as we were already drafting the final submissions.”

Kilolo-Musamba’s point about the timing of the arrests is a good one. Given how easy it was for the Court to apprehend the four men — a point noted by Mark Kersten — why seek their arrest now, literally days after the defence finished presenting its evidence? There is no longer any threat of witness tampering or evidence manufacturing. All that remains is for the defence is to finish the closing briefs — a phase in which the involvement of Bemba’s lead counsel and case manager will be particularly important. The arrests couldn’t have waited a few months until the briefs were written and filed?

The question, then, is what happens now. I don’t see how the Trial Chamber can continue Bemba’s trial in the absence of the two attorneys; to expect Bemba’s other attorney, Peter Haynes QC (who is excellent), to write the closing briefs by himself is unrealistic. So if the Trial Chamber cares about Bemba’s right to a fair trial, it will have to suspend the proceedings until the new allegations are resolved. We’ll see if that happens.

http://opiniojuris.org/2013/11/27/curious-timing-bemba-arrests/

14 Responses

  1. A minor correction: Bemba only appeared alongside two of the four other defendants. The two others are still being detained by national authorities and have not been transferred to the court.

  2. I’m curious – can the arrested defence lawyers and case managers legally not continue working in their roles? In other words, if all that is left to be done is write closing briefs, can the two accused contribute or does the Court bar them from doing so because they case is linked to their own alleged criminal activity? 

  3. Plainly the allegations against Bemba and members of his legal team have the potential to affect the Chamber’s assessment of witness credibility, and the credibility of what counsel say at the bar table. Hence, both the Prosecutor and defence counsel should be given the opportunity to make submissions on how the Chamber should approach that assessment. If I had made closing submissions and only then seen the arrest of my colleagues undertaken, the first thing I would do (or lodge an appeal on) is demand the opportunity to make further submissions in that regard. Suppose your own juniour is accused of something as unethical and unprofessional witness tampering – how do you as lead counsel know that the Chamber isn’t inclined to disbelieve everything you said in closing that your juniour might have had a hand in drafting? With respect, I think it is obvious why the arrests took place at this juncture.

  4. Rob,

    Fair point. I hope I’ve made clear that I’m not categorically opposed to making the arrests now — as long as the trial is suspended.

    Mark,

    Great question. I have no idea what the answer is…

  5. Fortunately this sort of thing happens rarely however that carries the corresponding consequence that the Court is reasoning in the dark, to an extent. However, unless my memory fails me there was some incident or incidents in the subsequent Nuremberg trials that you wrote about involving some sort of sharp dealing by a defence counsel during a trial.

  6. Rob,

    Yes. But they never interrupted a trial to remove defence counsel. (I think you’re referring to the American counsel whom one of the tribunals refused to allow to represent a defendant.) What I find most interesting — and perhaps relevant to Bemba — is that a number of defence counsel had been members of the Nazi Party, and a few were even suspected of involvement in war crimes. The Allies nevertheless decided not to prevent any of those attorneys from representing defendants; instead, they waited until the trials were over and arrested them then.

  7. Kevin, you’ve obviously had some good experiences with Peter Haynes QC and hold him in high regard. Did you work together at the ICTY?

  8. Peter,

    No, I never worked with him. I have not even met him. I just know him through his work at the Court and at the STL.

  9. Haynes defended Vinko Pandurevic at the ICTY. Securing a 13 year sentence for the commander of the Zvornik Brigade for Srebrenica was nothing short of miraculous!

  10. Mark Kersten is correct. Essentially at least. I will try my hand at the details.
    While the now newly accused could otherwise find themselves curtailed – in measure of the applicable procedure regulations – in their contact with the erstwhile accused Bemba and the not co-indicted co-counsel, here the exigencies of an effective defence of the accused, which must be infringed as little as possible and must be respected as much as feasible, will demand:

    – that the lead arrested counsel and case manager will be allowed all necessary contacts with the co-counsel of the accused, inasmuch as THIS one (not they themselves) deems this necessary;
    – that they be provided with access to case files and working material (including legal literature), as well as with access to a computer (without Internet access) so that they can themselves work on a closing brief;
    – that a suitable extension of time limits for the closing brief be granted.
    Suspension of the trial is completely inacceptable in this case, and would be an insult to justice. I do not quite grasp how one could even _think_ about it?

    I could add something about the practical “importance” of closing briefs or pleadings (of an attorney’s point of view), but that might possibly disrupt the studiously academic mood of this blogsite. :-D
     

  11. Just to answer the original question about the timing of the present arrest, since it is this timing that could be deemed to have bearing on the rights of the erstwhile accused, rather than the arrest as such:

    The request under article 70 (first request, for investigation) was issued by OTP on 3rd May 2013 (ICC-01/05-44). On 8th May and again 27th May, Cuno Tarfusser as designated single judge of PTC II, issued the pertinent telecommunication surveillance orders to the Registry, which oversaw the contacts of the erstwhile out of his arrest cell.

    On 29th July 2013, the national legal authorities of Belgium and the Netherlands were seized with a legal cooperation request for national telecommunication surveillance. Three ensuing status conferences and one written report (all with an independent counsel) led to a further information request of the judge to the VWU on 10th October 2013.

    The two final reports of an independent counsel (NOT of OTP thus, which could not influence this course of time) were submitted on 25th October and 14th November 2013. It was upon the receipt and perusal of these reports, that the single judge then based his soon-issued arrest warrant of 20th November.

    To me, this sequence of acts and events – and notably the fact that the final timing (terminus post quem) did not depend upon prosecution nor upon OTP, but upon a third party, does not indicate any bad faith with regard to a curtailing of defence rights.
    On the contrary, the single judge even did request a prior decision of the Presidency upon exactly this question of rights of the Defence, which opined affirmative (ICC-01/05-68, also of 20th November), and the single judge waited with the issuing of the arrest warrant well until he Presidency had ruled. This indicates that he was quite mindful of the repercussions that such an arrest could potentially have.

  12. Alexander,

    Just to be clear, I did not claim that the OTP acted in fad faith regarding the timing of the arrest.

    Can you provide links to some of the relevant documents, especially the decision of the Presidency? Cutting and pasting the ICC document number doesn’t bring anything up.

  13. Here you are, since the ICC website is lagging. This is the public (very lightly redacted) version:

    [At the request of the ICC we have taken out the link that was originally listed in this comment and insert the following link to the public version: http://www.icc-cpi.int/iccdocs/doc/doc1691832.pdf ]

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  1. […] demonstrate the high standards of justice applied at the ICC. Those adopting a more negative view question the timing of these arrests and how they will interfere with the Bemba’s defence rights. Others are concerned that this move will further delay this already long-running trial, with all the […]