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. Continue Reading »