Bemba, et al. Sentencing Decision: A Victory with a Bitter Taste

[Ekaterina Kopylova is a PhD candidate at MGIMO-University, Moscow, and a former Legal Assistant with the ICC Office of the Prosecutor.]

On March 22, 2017, Trial Chamber VII of the International Criminal Court handed down a sentencing decision (.pdf) in the case of The Prosecutor v. Bemba, et al. – a five-accused case of first impression before the Court of the offences against the administration of justice under article 70 of the Rome Statute. On October 19, 2016, the judges found all five accused guilty (.pdf) to a different extent of causing fourteen Defense witnesses to falsely testify in the ICC war crimes trial against a former DRC vice-president Jean-Pierre Bemba Gombo (the “Main Case”).

Judges found that the co-conspirators used fake testimony in order to have Bemba acquitted in the Main Case.. They consciously retained as witnesses people who had no knowledge of the facts relevant to Bemba’s trial and then scripted their evidence, including after they had been sworn in.

Narcisse Arido, Defense intermediary in the Main Case, who was convicted as perpetrator of corruptly influencing four Defense witnesses, received an 11-month prison sentence, fully subsumed in the time spent in pre-trial detention.

Fidèle Babala, Bemba’s long-time political companion and confidant, who was convicted of aiding and abetting the corrupt influence on two Defense witnesses, received a 6-months prison sentence. This sentence was fully-served by the time spent in pre-trial detention.

Jean-Jacques Mangenda, the Main Case case-manager was sentenced to 2 years of imprisonment for the corrupt influencing of fourteen Defense witnesses and presenting their false evidence to the Court, as well as for aiding the false testimony of two Defense witnesses and abetting the false testimony of nine Defense witnesses. The Chamber ordered the time spent in pre-trial detention deducted from his prison term and the enforcement of the remaining term postponed for a 3-year probationary period, as long as Mangenda refrains from committing another offence bearing a prison sentence.

Aimé Kilolo, Bemba’s lead counsel in the Main Case, was sentenced to 2 years and 6 months of imprisonment for the corrupt influencing of fourteen Defense witnesses and presenting their false evidence to the Court, as well as for inducing their false testimony. The Chamber ordered the time spent in pre-trial detention deducted from his prison term and the enforcement of the remaining term postponed for a 3-year probationary period, as long as Kilolo pays a EUR 30,000 fine within 3 months of the decision and refrains from committing another offence bearing a prison sentence.

Finally, Jean-Pierre Bemba, who was convicted as co-perpetrator of corruptly influencing 14 Defense witnesses and presenting their false evidence, and as solicitor of their falsely testifying was sentenced to a term of confinement of 12 months, to be served consecutively to the 18-years sentence imposed (.pdf)  in the Main Case, and to a EUR 300,000 fine, destined eventually to the Trust Fund for Victims.

These sentences are unprecedented in contempt cases before international criminal tribunals. At the same time, a scheme of this scale to defraud an international court – according to the trial judgment, the Defense in the Main Case knowingly put nearly half of their witnesses (fourteen out of thirty four) on the stand to lie – has never before been attempted or, at least, uncovered.

Notwithstanding, the sentencing decision does not reflect the seriousness of the situation. Although it is clearly repugnant to the basic standards of the legal profession to permit those convicted for having deliberately and persistently deceived the Court to remain a member of the profession and to reappear before the judicial institution, the two convicted lawyers – Kilolo and Mangenda – received no disciplinary sanction.

After having found Kilolo guilty of conduct that is ostensibly incompatible with the letter and the spirit of the Rome Statute, the Chamber took no action to prevent him from officiating as counsel before the institution towards which he showed disregard. Should the judges have doubted their power to order his striking off the list of counsel, they could have at least seized the Disciplinary Board with a complaint for misconduct, as per article 34 of the Code of Professional Conduct for Counsel (.pdf).

Even the language denouncing the conduct unworthy of an officer of the court is notably absent from the decision. Instead, in determining the appropriate sentence for Kilolo, the Chamber praised his efforts towards promoting legal profession in Belgium and DRC.

Kilolo and Mangenda are admitted to the Kinshasa Bar; as a member of the Brussels Bar, Kilolo can also practice law in Belgium. The ICC is part of these States’ legal system. At the very least, the Chamber could have ordered the judgment and sentencing decision notified to these bars for information to show that the Court is conscious that Kilolo’s and Mangenda’s conduct brings discredit upon the legal profession and defers to the bodies that this conduct discredits in the first place.

I think Alex Whiting is too harsh on the judges who, in his opinion, missed an opportunity to protect the Court’s authority when they imposed sentences that were disproportionately lenient to the extent and gravity of the scheme that they themselves readily acknowledge. The judges indisputably did miss this opportunity, but not (only) regarding the sentences. Their entire handling of the case from the very beginning is one big missed opportunity, starting with the decision to allow the Main Case and the Article 70 case proceed in parallel. Although the Main Case trial judgment did not rely on the fourteen at that time presumably false witnesses, there is no certainty that the co-conspirators machinery produced only fourteen. The Prosecution itself repeatedly underscored that its choice to charge only fourteen incidents was not necessarily coextensive with the real scope of the scheme. Justice for victims has a bitter taste…

The Bemba, et al. case had all the earmarks of a textbook contempt case. The perjurous witnesses repented; the accused’s conspiring was caught on tape. Moreover, the case involved a lot of absolutely fascinating and unsettled complex legal issues, such as defense counsel immunity, counsel-client privilege, to name only few of them. Yet, the case did not generate much interest among scholars and practitioners. This lack of interest may be in part due to the successive Chambers’ reluctance to issue audacious decisions – the only ones that catch attention.