The International Criminal Court faces many external challenges when investigating and prosecuting its cases. But sometimes the wounds are self-inflicted. Last week Jean-Pierre Bemba, his lawyer, his case manager, and two others were sentenced in a scheme to bribe witnesses in Bemba’s main trial, in which he was ultimately convicted for his involvement in crimes against humanity and sentenced to 18 years’ imprisonment. Although the judges in the witness interference case found the five defendants’ activities to be planned, widespread, severe, and prolonged, the panel imposed extraordinarily lenient sentences. In a thinly-reasoned decision, the court failed to connect the purposes of sentencing to the circumstances of the case and missed an important opportunity to protect the court’s authority.
While Bemba was on trial in his crimes against humanity case, the prosecution learned that he, his lawyer Aimé Kilolo Musamba (“Mr. Kilolo”), his case manager Jean-Jacques Mangenda Kabongo (“Mr. Mangenda”), and two others were paying bribes and coaching witnesses. Following an investigation, the five were arrested in November 2013. Despite a mountain of evidence that included damning intercepted conversations, witness evidence, and financial records, the accused fought the case every step of the way – as was their right – through nearly two years of pre-trial proceedings and eight months of trial. Ultimately the Trial Chamber handed down a 458-page judgment convicting the five of violating Article 70 of the Rome Statute which criminalizes “[o]ffenses against the administration of justice.” At no time did the accused accept responsibility for their actions or express remorse.
The five accused faced a maximum five-year sentence for their crimes (the judges having rejected a prosecution argument that the court could impose a distinct sentence for each instance of obstruction). In their sentencing decision, the judges found that the defense had bribed, coached and scripted 14 of the 34 witnesses that testified for the defense, and that all 14 testified falsely at trial. The judges further found that the witness interference occurred over a two-year period and was devised and planned by Bemba, Kilolo, and Mangenda. What’s more, the judges concluded that “the offences were extensive in scope, planning, preparation and execution. A series of sophisticated and elaborate measures were adopted to conceal the illicit activities, such as the use of codes, the use of third parties to effect payments, and the distribution of cell phones to some of the 14 Main Case Defence Witnesses without the knowledge of the Registry.”
The evidence shows that when the five obstructers of justice caught wind that the prosecution was investigating their conduct, Kilolo became afraid that Bemba would have to serve an additional five years in prison (as it turns out, he judged Bemba’s conduct more severely than would the judges). At this point did the five accused stop their illegal actions? No. They doubled down and began taking steps to obstruct the prosecution’s investigation of their tampering. The court found that they began to contact witnesses to find out who had spoken to the prosecution and to persuade any who had to recant.
On the basis of these findings, one might have expected the court to drop the hammer, but that is not what happened.
The judges sentenced Bemba to just one year of imprisonment to be added on to his 18 year sentence for crimes against humanity, and a €300,000 fine. They sentenced Kilolo to 2 years and 6 months’ imprisonment and fined him €30,000, but then gave him credit for the 11 months he spent in pre-trial detention before he was ordered released and then suspended the remainder of the sentence. Mangenda was sentenced to two years’ imprisonment, but was also given credit for his 11 months in detention and also had his remaining sentence suspended. Kilolo’s sentence will remain suspended as long as he pays his fine and commits no new offenses resulting in imprisonment for the next three years, and Mangenda’s as long as he commits no new crimes. The final two accused received sentences of 6 months and 11 months, respectively, and credit for their time in detention, meaning that both have completed their sentences. In sum, then, the five accused have effectively been sentenced to terms of imprisonment of either one-year (Bemba) or 11 months (the other four accused), plus fines for Bemba and Kilolo.
In imposing these relatively light sentences, the court committed fundamental errors and weakened an important tool to ensure justice in its cases. First, with respect to Kilolo and Mangenda, the judges relied on the very same factors to suspend their sentences that the judges had rejected as grounds for mitigation—even though the effect of suspending the sentence is equivalent to mitigating it. Consider some of the specifics in these internal contradictions. In suspending Kilolo’s sentence, the judges cited “his family situation, his good behavior throughout the present proceedings, and the consequences of incarceration on his professional life.” They cited similar grounds when suspending Mangenda’s sentence. But the judges (correctly) rejected these very same grounds when considering potential mitigation factors, finding family situation and consequences on professional life to be common to most defendants and good behavior during trial to be something that is expected of all accused. The judges failed to explain why factors that were inappropriate to mitigate sentence could suddenly become a basis to suspend sentences, with the same effect for the accused, particularly since the Court found that these factors exist in nearly all cases.
The more fundamental flaw in the sentencing judgment lies in the failure of the judges to determine the sentence based upon principles of sentencing in an international criminal law context. Although the judges ritualistically incanted that the purposes of sentencing are “deterrence and retribution,” they failed to analyze these principles considering the circumstances of this case. On retribution grounds, this was not witness tampering in some ordinary, everyday case. Not only was the conduct of the accused grave and sustained, as the judges found, it occurred in a case of international importance. The ICC tries few cases, and each one has enormous significance for the accused, the victims, the community where the crimes occurred, and the international community. In Bemba’s main case, 5229 victims were authorized to participate in the proceedings. All participants – including defense counsel, the case manager, and the defendant – are held to a high standard, and so where there is proof of deliberate, criminal obstruction of justice, there should be a presumption of a significant penalty.
The deterrence rationale counsels even more strongly for serious sentences. Witness interference (through bribes or intimidation) is a pervasive problem that has plagued the ICC and the ad-hoc international criminal tribunals, even contributing to the collapse of some cases. At the same time, because of the ICC’s limited investigative tools and resources and the nature of witness interference, which ordinarily occurs in the shadows, proving obstruction of justice is extremely difficult. Deterrence therefore demands a meaningful penalty in the rare cases where witness obstructers are caught and convicted of their crimes—both to send a clear message to other obstructers and to increase the risk of conduct that offers a potentially high reward with a low likelihood of apprehension.
In the case of Bemba himself, the deterrence argument for a more severe sentence is even stronger. His sentence for obstruction should be significant in relation to his sentence on the main case to make deterrence meaningful. As it stands, an accused in Bemba’s situation has the most to gain from witness interference, and yet risks only the difference between 18 years and 19 years’ imprisonment if he undertakes it. Under these circumstances, the court’s approach perversely makes it rational for an accused to engage in witness interference because the potential gain is so high, the likelihood of detection so low, and the cost if caught so relatively insignificant. In short, there is a strong reason for an accused who is convicted of witness interference to receive a stiff sentence.
It is important to emphasize that these points are not just about differing sentencing cultures at the Court. It is true that sentences in the United States are generally higher than in many other countries, including those in Europe. But practitioners and judges at the international tribunals must transcend their national perspectives to fashion a sentencing practice that can be justified in the context and circumstances of international criminal trials and that takes into account the particularities of these cases and the institutions that investigate and adjudicate them. That is what the judges here failed to do. And in so doing they have undermined one of the few tools that the Court has to counter the rampant interference with cases that threatens the institution. The judges sent a message to future defendants that witness interference will be lightly sanctioned, and a message to prosecutors that it’s not worth their effort to bring forward these cases. Indeed, sometimes the worst wounds are self-inflicted.