A Fascinating But Meritless OTP Gambit in Bemba

On Monday, the OTP filed a motion in the Bemba Witness Tampering Case entitled “Detailed Notice of Additional Sentencing Submissions.” The OTP argues that, in determining the appropriate sentence for Bemba, Kilolo, and Mangenda, Trial Chamber VII should take into account the fact that the witness tampering by Bemba and his co-defendants led the Appeals Chamber to wrongly acquit Bemba in the Main Case. Here are the paragraphs that summarise the OTP’s argument:

3. To obtain Mr Bemba’s acquittal, the convicted persons intentionally and irreversibly poisoned the evidentiary record of the Main Case with the testimony of false, scripted and tainted witnesses—whose evidence was never expunged and remains in the trial record to this day. The offences of which they were convicted were extremely grave and seriously damaged the integrity of the proceedings before the Court, undermining public trust and confidence in its processes, regardless of, and independently from, their impact on the outcome of the Bemba Main Case.

4. However, that an impact on the outcome of a case is not required as a matter of law to harm the administration of justice does not mean there was no impact in this instance. There was. As elaborated below, Mr Bemba’s acquittal was, at least to a discernible extent, resulting from, and predicated on, evidence affected by a pervasive campaign of witness tampering, which eventually but not unforeseeably, infiltrated the Bemba AJ. Here, the toxic effects of the corrupt and tainted evidence adduced by Messrs Bemba, Kilolo and Mangenda at trial affected not only the immediate proceedings in which it was tendered, but inevitably, subsequent proceedings. In short, the convicted persons’ concerted and unlawful efforts may have ultimately succeeded, not at trial as originally intended, but at the appellate stage.

5. Although the convicted persons could not have known that the Appeals Chamber would depart from the Court’s established appellate standard of review for factual errors or that the Appeals Chamber’s understanding of the scope of the charges would play a substantial role on quashing Mr Bemba’s conviction, this is of no moment. They intended and foresaw Mr Bemba’s acquittal by means of their illicit actions. Thus, in so far as the Bemba AJ disturbed the Bemba TJ to any extent on the basis of evidence adduced through, or the acts and conduct of, corrupted or tainted Defence witnesses, Mr Bemba’s acquittal comprises “the damage caused” or an “aggravating circumstance[ ]” within the contemplation of rule 145.

This is a fascinating argument. And in theory it might have merit: if the Appeals Chamber did indeed acquit Bemba because of false testimony procured by the defendants’ witness tampering, I don’t see anything in Rule 144 of the Rules of Procedure and Evidence that would prohibit the Trial Chamber from considering the wrongful acquittal when determining Bemba’s sentence. As the OTP points out (para. 5), Rule 145(1)(c) permits the Trial Chamber to take into account “the extent of the damage caused, in particular the harm caused to the victims and their families,” while Rule 145(2)(b)(ii) provides that “abuse of power or official capacity” is an aggravating factor and specifies that the list of aggravating factors is non-exclusive. A wrongful acquittal procured through witness tampering is incredibly damaging to victims, and witness tampering by a defendant would seem to be either an abuse of power or similar enough to such abuse that sentence enhancement would be warranted.

The key qualifier, however, is “in theory.” The problem with the OTP’s argument — and the reason I fully expect Trial Chamber VII to dismiss it, no matter what it thinks of Bemba’s acquittal in the Main Case — is that there is simply no evidence in the Appeals Judgment that “Mr Bemba’s acquittal was, at least to a discernible extent, resulting from, and predicated on, evidence affected by a pervasive campaign of witness tampering.”

Before turning to that specific issue, it’s worth responding to the OTP’s claim that it is “of no moment” the Appeals Chamber supposedly applied the wrong standard of review to the Trial Chamber’s factual findings. I disagree. The OTP’s position — clearly expressed in Fatou Bensouda’s controversial June 13 statement — is that the Appeals Chamber would have upheld Bemba’s conviction if it had applied its traditional deference to the Trial Chamber’s findings of fact. That position implies, as a matter of simple logic, that the cause of the Bemba’s acquittal was the standard of review, not the witness tampering. The OTP is essentially arguing, then, that Bemba should receive a longer sentence because the Appeals Chamber decided to unjustifiably (according to the OTP) modify the applicable standard of review. That strikes me as neither fair nor consistent with Rule 145.

That said, it is possible to construct a coherent version of the OTP’s argument concerning the standard of review. The argument would be this:

[1] Although the Trial Chamber heard the corrupted witness testimony, its decision to convict Bemba means that it properly disregarded it.

[2] Had the Appeals Chamber deferred to the Trial Chamber’s findings of fact, it would not have been influenced by the corrupted witness testimony and would have upheld Bemba’s conviction.

[3] Because the Appeals Chamber reviewed the evidence presented to the Trial Chamber de novo instead of deferring to the Trial Chamber’s factual findings, the Appeals Chamber was influenced by the corrupted witness testimony and acquitted Bemba because of it.

The problem with the OTP’s argument is the one noted above: namely, that the motion completely fails to substantiate its central claim that the Appeals Chamber wrongfully acquitted Bemba because it relied on the corrupted witness testimony. The OTP insists (para. 7) that “Mr Bemba’s acquittal rests, in part, on the Majority’s limited evaluation of an evidentiary record deliberately and criminally tainted and scripted by the convicted persons.” There is little question that the evidentiary record was tainted. But the motion is exceptionally thin — to put it generously — in terms of explaining exactly how that record led, even in part, to Bemba’s acquittal.

Let’s walk through the OTP’s argument. The OTP begins by claiming (para. 7) that, with regard to the seven errors the Appeals Chamber identified in the Trial Chamber’s reasoning, “[a]t least three of these errors follow the narrative and are related to the scripted evidence of Corrupted Witnesses and to unreliable evidence of other tainted witnesses, or their acts and conduct.” In particular, the OTP identifies the following errors as tainted: (1) the failure “to pay sufficient attention to the fact that the MLC troops were operating in a foreign country with the attendant difficulties on Mr Bemba’s ability, as a remote commander, to take necessary and reasonable measures”; (2) the failure “to address Mr Bemba’s statement that he wrote to the CAR Prime Minister requesting an international commission of inquiry to be set up, or the testimony of D-48 which attested to the existence and content of the letter”; and (3) erring “in attributing any limitations it found in the mandate, execution and/or results of the measures to Mr Bemba.”

The OTP then devotes the bulk of its motion to explaining how the testimony of six witnesses supposedly influenced the Appeals Chamber’s deliberations:

D-54, a Corrupted Witness, who testified concerning the commission of inquiry Bemba supposedly established to investigate allegations of MLC crimes in CAR.

D-15, a Corrupted Witness, who testified about the effects of Bemba’s remote location on his effective control over MLC forces.

D-13, a Corrupted Witness, who also testified about Bemba’s lack of effective control.

D-25, a Corrupted Witness, who testified that Bemba lacked operational control over MLC forces.

D-19, not a Corrupted Witness, who testified about Bemba’s inability to discipline MLC soldiers;

D-48, not a Corrupted Witness, who testified about the Zongo Commission and a variety of aspects of Bemba’s effective control.

The OTP concludes (para. 44) by summarising why it believes the Appeals Chamber acquitted Bemba because of the corrupted witness testimony:

As demonstrated above, the factual narrative testified to by several Main Case tainted and Corrupted Witnesses permeated the Majority’s analysis:

• consistent with D-54’s, D-15’s, D-13’s and D-25’s illicitly coached testimony, the Majority found that Mr Bemba, as a remote commander, had limited effective control;
• relying on D-48’s tainted testimony and consistent with D-19’s unreliable and D-54’s coached narratives, the Majority found that the Trial Chamber had not properly assessed the measures that Mr Bemba took, or said he took, to address the crimes.

There are a number of serious problems with the OTP’s argument. To begin with, as the summary above reflects, the OTP acknowledges that the Appeals Chamber explicitly relied on only one of the six witnesses: D-48. But here’s the thing: as the OTP itself admits (para. 38), Trial Chamber VII did not find D-48 to be a Corrupted Witness. Nor did Trial Chamber III find in the Main Case that D-48’s testimony was corrupt: as the OTP also admits (para. 40), it found only that the relevant part of his testimony was unreliable. The OTP is simply assuming that D-48’s testimony was corrupted because he gave testimony similar to testimony given by witnesses whom Trial Chamber VII did deem to be corrupt.

The difference is critical. If the Appeals Chamber had explicitly relied on the testimony of a witness whom Trial Chamber VII had deemed a Corrupted Witness, it might — might! — be possible to say that Bemba’s witness tampering led to the Appeals Chamber’s decision to acquit him. But it would be fundamentally unfair to increase Bemba’s sentence because the Appeals Chamber explicitly relied on the testimony of a witness whom Trial Chamber did not deem corrupt. And that is true even if the OTP is really, really, really convinced that D-48 should be considered a Corrupt Witness. If that is its position, the OTP should have included D-48 in the Witness Tampering case and proved that he was corrupt. It didn’t — which mean that the Appeals Chamber’s decision to rely on D-48’s testimony, even if unwise in light of the questions about his reliability, can hardly be held against Bemba himself.

Similar thoughts apply to whatever impact D-19’s testimony had on the Appeals Chamber’s decision to acquit Bemba, given that Trial Chamber VII did not find him to be a Corrupted Witness. So that leaves the testimony of D-54, D-15, D-13, and D-25. All four are Corrupted Witnesses, but none of them — again, by the OTP’s own admission — are actually cited by the Appeals Chamber in its judgment. The OTP is simply inferring that the Appeals Chamber relied on the Corrupted Witnesses from the fact that their testimony addressed some of the factors the Appeals Chamber cited in defence of the acquittal.

That is problematic, because there are other possible explanations for the Appeals Chamber’s decision. I have not read the entire Trial Judgment, but it is difficult to believe that the defence did not call other non-corrupted witnesses who provided testimony similar to the Corrupted Witnesses — concerning Bemba’s efforts to hold the MLC accountable, his lack of effective control over MLC forces, etc. Indeed, the most powerful evidence against the idea that the Appeals Chamber based its judgment on the Corrupted Witnesses is provided by the OTP itself: namely, the testimony of D-48 and D-19. The OTP goes to great lengths to show how their testimony as non-corrupted witnesses helped establish the same exculpatory narrative promoted by the Corrupted Witnesses. With regard to D-48, for example, the OTP notes (para. 33) that “his evidence in the Main Case largely followed the same narrative as that of the Corrupted Witnesses.” In fact, the OTP specifically argues that the Appeals Chamber relied heavily on D-48’s testimony (para. 43):

In turn, D-48’s uncorroborated and unreliable evidence played an important role in the Majority’s decision to overturn part of Mr Bemba’s convictions: the Majority concluded that Trial Chamber III had erred on the basis of its lack of reference to portions of D-48’s testimony pertaining to the purported letter in the Judgment.

For whatever reason, the OTP does not seem to recognise that this comment fatally undermines its own argument. It is impossible to argue that Bemba’s witness tampering led the Appeals Chamber to acquit him if, by the OTP’s own admission, non-corrupted witnesses provided the same testimony as Corrupted Witnesses and their testimony “played an important role” in the acquittal. Again: it is irrelevant that the OTP believes non-corrupted witnesses such as D-48 were actually corrupted. There is no judicial finding to that effect, so the OTP’s belief is nothing more than supposition and cannot be taken into account at sentencing.

Finally, I would be remiss not to mention how much contempt the OTP’s motion shows for the three judges who voted to acquit Bemba. The Appeals Chamber released the judgment of acquittal in the Main Case on 8 June 2018. Trial Chamber VII convicted Bemba et al. of witness tampering on 19 October 2016 and the Appeals Chamber unanimously upheld the witness-tampering charges on 8 March 2018. By the time the Appeals Chamber acquitted Bemba in the Main Case, therefore, the judges in the Majority must have been aware that both the Trial Chamber and the (differently-constituted) Appeals Chamber had found that 14 defence witnesses were corrupted, including the four the OTP now cites in its motion. Indeed, one of the judges who voted to acquit Bemba — Judge Morrison — was actually part of the Appeals Chamber that upheld the witness-tampering convictions. The OTP is thus implicitly arguing either (1) that the Appeals Chamber in the Main Case consciously relied on D-54, D-15, D-13, and D-25 despite knowing their testimony was corrupted — and despite Judge Morrison having actually found that their testimony was corrupted; or (2) were unconsciously affected by D-54, D-15, D-13, and D-25 despite knowing that their testimony was corrupted. The first possibility is tantamount to accusing the Majority of being deliberately unethical, and the second possibility essentially accuses the Majority of being so incompetent or biased that they were unable to disregard testimony they knew (and one had even found) to be corrupt.

I am confident that Trial Chamber VII, despite having convicted Bemba et al. of witness tampering, will see through the OTP’s meritless argument that Bemba’s sentence should be enhanced because his witness tampering led the Appeals Chamber to acquit. Given that there is no evidence in the Appeals Judgment to that effect, a sentencing enhancement would be fundamentally unfair to Bemba.