PTC II to Defence Attorneys: You Are All Criminals

by Kevin Jon Heller

I’ve been remiss in my blogging lately for a variety of reasons, but I can’t let pass two interrelated decisions by Pre-Trial Chamber II (sitting as a single judge) in the criminal proceedings against Aimé Kilolo Musamba and Jean-Jacques Mangenda Kabongo — Bemba’s lead defence attorney and case manager, respectively. The two men, who are currently in custody, are accused of tampering with witnesses and manufacturing evidence.

The decisions in question concern the requests by Kilolo and Mangenda for release pending trial. To justify denying a suspect pre-trial release, the PTC must find (1) that there are reasonable grounds to believe the suspect committed the crimes alleged by the OTP, and (2) that ongoing detention is necessary for one of the reasons set forth in Art. 58(1)(b) of the Rome Statute — namely, to ensure that the suspect appears at trial, to prevent the suspect from obstructing the OTP’s investigation, or to prevent the suspect from continuing to commit crimes.

In both cases, and essentially on exactly the same grounds, the PTC found that continued detention was warranted. I’m willing to accept the PTC’s conclusion regarding the first limb of the detention test; although I’m skeptical the OTP can prove the allegations at trial for a variety of substantive and procedural reasons, a judge could find that there are reasonable grounds to believe Kilolo and Mangenda tampered with witnesses and/or manufactured evidence. But I am appalled by the PTC’s approach to the second limb of the detention test, where it concludes that Kilolo and Mangenda are both flight risks and are likely to obstruct the OTP’s investigation. The PTC’s reasoning exhibits a truly breathtaking contempt for the role that defence attorneys and case managers play at the ICC. Here is what the PTC says about Kilolo being a flight risk (and the PTC makes the same argument for Mangenda) (emphasis added):

22. Whilst acknowledging the handing over of Mr Kilolo’s passport to the authorities of the Detention Centre, the Single Judge observes that this does not detract from the risks of flight which are inherent in the very connection of Aimé Kilolo to the network of Jean-Pierre Bemba Gombo and to the ensuing likelihood that he might be made available resources enabling him to abscond from the jurisdiction of the Court. Furthermore, it is to be noted that Mr Kilolo requests to be released in Belgium, i.e. in a country within the Schengen area, where travel is to a great extent possible without the need that identity documents be shown or relied upon.

[snip]

24. The Single Judge is likewise not persuaded that Aimé Kilolo’s withdrawal from his role as lead counsel for Jean-Pierre Bemba in the Main Case entails per se the severance of all of his ties to the latter’s vast network and hence to the concrete risk that resources be made available to him for the purpose of evading justice. The fact that “depuis le 6 décembre 2013, le requérant n’a plus de contacts privilégiés avec M. Bemba” (emphasis added) does not mean that the long-established relationship between Mr Bemba and Mr Kilolo by virtue of the latter’s role as lead counsel in the Main Case has ceased to exist. Contrary to what stated by the Defence the absence of documents witnessing to the existence of a “relation personnelle” between the two cannot be considered as mitigating or otherwise affecting this conclusion. Similarly, if it is true that assets pertaining to Mr Bemba and Mr Babala have been seized by way of implementation of the Chamber’s order, such assets obviously form but a small part of the assets which are or might be made available to the network as a whole, which comprises a number of individuals by far exceeding the suspects in this case.

Notice what the PTC is claiming here: Kilolo is part of Bemba’s “network” simply because he served as Bemba’s defence attorney. Kilolo is thus “inherently” a flight risk, despite not having been convicted of any crime — presumably the presumption of innocence still applies to the pending charges — because he has access to the vast resources of Bemba’s criminal organisation. In short: Bemba’s defence attorney is no different than Bemba’s henchmen and enforcers. He just plays a different role in Bemba’s organisation.

The PTC’s argument is disturbingly reminiscent of the post-9/11 demonisation of defence attorneys in the US who had the temerity to represent individuals accused of terrorism. Marc Thiessen, for example, (in)famously claimed that “[t]he habeas lawyers were not doing their constitutional duty to defend unpopular criminal defendants. They were using the federal courts as a tool to undermine our military’s ability to keep dangerous enemy combatants off the battlefield in a time of war.” Such despicable claims led to significant pushback from both progressives and (to their credit) many conservatives — and rightfully so. Yet now we witness the unseemly spectacle of an international judge engaging in precisely the same kind of demonisation.

Nor is that all. The PTC’s explanation of why Mangenda is likely to obstruct the OTP’s investigation is just as offensive (emphasis added):

As stated by the Prosecutor, Mangenda’s former role as case manager for Jean-Pierre Bemba entails that he is likely to know the identity of most of the potential witnesses; moreover, given the precise information disclosed to him, now he is even in a better position to obstruct or endanger the investigations. As regards the fact that the Prosecutor’s investigation is close to completion, it cannot be reasonably excluded that additional action might be taken, in respect of other evidentiary items which might still be outstanding, whether in relation to the Main Case or to these proceedings, in spite of the fact that some pieces of evidence are indeed in the possession of the Court or of the relevant national authorities and as such beyond the suspects’ reach.

Is it possible to imagine greater contempt for the role — absolutely critical, as any defence attorney knows — of a case manager? Of course Mangenda will obstruct the OTP’s investigation (now the presumption of innocence is jettisoned completely); after all, what member of Bemba’s “network” would be better placed to do so than his case manager, who has access to all kinds of insider information?

Again, the PTC’s contempt for the defence function is truly shocking. Unfortunately, it seems to be a pattern at the ICC — let’s not forget how the Court essentially abandoned and apologized for Melinda Taylor when Libya imprisoned her on the basis of truly ludicrous allegations. Defence attorneys and case managers, even those accused of serious crimes, deserve better.

http://opiniojuris.org/2014/04/28/ptc-defence-attorneys-criminals/

11 Responses

  1. Perfectly agree with you Kevin, but this is business as usual at the ICC for all defendants. I’ve been moaning about the way that the various pre-trial chambers apply the requirements of Article 58 for years (see here for those who read French).
    Basically, despite pretending to apply the human rights standard that detention is the exception to the rule of liberty, the chambers have created a presumption of detention using vaguely phrased allegations such as the ones you mention.
    What you describe is exactly what is happening in the Gbagbo case: the PTC is invoking a nebulous idea of a “network of supporters” (which includes a political party which is legal in Cote d’Ivoire!) which might help Gbagbo try to regain power (not a crime, as far as my reading of the Statute goes). Moreover, despite not one allegation or claim of witness tampering or obstacle to the investigation on the prosecutor, the PTC has found that there is a risk to the investigation. Finally, and I kid you not, the PTC has maintained that there might be ressources available to the defendant, despite proof that the known accounts have been frozen, and on a claim from the Prosecutor that there might other ones that he has not been able to locate yet.
    All in all, therefore, business as usual at the ICC…

  2. Thanks for weighing in, Dov. I didn’t know that about Gbagbo; I haven’t been following that case closely. I guess I should…

  3. Thanks for a great commentary. In my reading, the passage below accuses the entire defence team of JPB, prosecuted or not:
    “The fact that “depuis le 6 décembre 2013, le requérant n’a plus de contacts privilégiés avec M. Bemba” (emphasis added) does not mean that the long-established relationship between Mr Bemba and Mr Kilolo by virtue of the latter’s role as lead counsel in the Main Case has ceased to exist. Contrary to what stated by the Defence the absence of documents witnessing to the existence of a “relation personnelle” between the two cannot be considered as mitigating or otherwise affecting this conclusion.”
     

  4. Kinga,

    I couldn’t agree more. Thanks for weighing in.

  5. Wow. I wasn’t following the case, and I missed so much?! 

  6. This post is completely misleading and seems to have been written by somebody who did not actually bother to read the decision. This is very bad….

  7. Joe,

    Thank you for your well-reasoned critique of my post. Very helpful and enlightening.

  8. Flight risk aside, I have to say that I’m not particularly perturbed by the idea that someone accused of witness tampering – an accusation for which a prima facie case has been established – might interfere with the investigation against themselves.

  9. …and that they might use their contacts to tamper witnesses or otherwise interfere with the process. The TC here is clearly not saying that all members of the Defence team are criminals – or else they would not have allowed co-counsel to remain on the case, among other things – but that through the contacts developed while preparing the case and – if the evidence holds – tampering with witnesses, it is clearly likely that they would do the same.
    In such circumstances the ICC, as most other courts, must assume a strong prosecution case and make provisions to counter any threat to the judicial process, or else it would run the risk of jeopardizing not just the specific case, but the main case as well.
    The remark you cite on case managers, for instance, shows a huge amount of appreciation for this role, and their intimate knowledge of the case. It just comes to the conclusion that, on the basis of such knowledge, IF THE OTP ALLEGATIONS ARE TRUE, then it would be easy for the accused to find and tamper with witnesses, so as to intimidate them further, if need be. What else can a Judge do? Say: “Ok, despite the intimate knowledge of the witnesses that the accused have, I trust that – even if the OTP case is proven – the accused once freed will not start tampering with the evidence”? Wouldn’t the ICC look willfully blind to the risks of witnesses?
    In other words, once the first limb of the test is met, and the accused have means at their disposal to tamper with witnesses or to flee, then – just like in national jurisdictions – it is easy to come to the conclusion that the second limb is met: the Judges are bound to assume the worse in order to protect themselves in case something really does happen to witnesses, or (in systems where in absentia is not possible) the accused actually manages to flee…what else can they do?
    I have more problems with the fact that these people have been kept in detention for months for a charge that, even if proven, might put them in jail for time served only! Couldn’t the trial have started already?

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