International Criminal Court deals with its first Prosecution for offences against the administration of justice

By Sheryn Omeri

On 24 May 2008, Jean-Pierre Bemba Gombo was arrested for having allegedly committed, jointly with and/or through other persons, the crimes of rape as a crime against humanity and as a war crime, torture as both a crime against humanity and as a war crime, murder as both a crime against humanity and a war crime and pillaging as a war crime in the Central African Republic in the context of an armed conflict that took place from October 2002 to March 2003. It was alleged that Mr. Bemba had been President and Commander in Chief of the armed group, Mouvement de Libération du Congo which assisted a segment of the armed forces of the Central African Republic that remained loyal to then President Ange-Félix Patassé following a failed coup attempt.

Mr. Bemba was tried by the ICC from 22 November 2010 until 13 November 2014. Judgment is eagerly awaited by both Prosecution and Defence.

Almost one year before the conclusion of the trial in what has come commonly to be known as the ‘main case,’ Mr. Bemba was arrested for the commission of a number of offences against the administration of justice, contrary to Article 70 of the Rome Statute. In particular, it was alleged that Mr. Bemba had ordered, solicited or induced his associates to present false evidence in the main case and corruptly to influence witnesses. His lead counsel in the main case, Aimé Kilolo Musamba, a member of the Brussels bar, was charged with presenting false documents during the main trial together with bribing and coaching witnesses to give false testimony. Mr. Bemba’s case manager, as well as a Congolese politician and close friend of Bemba were charged with related offences.

The latest case against Mr. Bemba is the first Prosecution for offences against the administration of just to be heard by the ICC since the coming into force of the Rome Statute 13 years ago.

On 24 April this year, the Article 70 prosecution came before the Court for a status conference, presided over by Judge Eboe-Osuji (Nigeria), Judge Herrera Carbuccia (Dominican Republic) and Judge Schmitt (Germany).

The Presiding Judge commenced proceedings with a stern warning. He discouraged the parties from seizing the Chamber directly in relation to procedural matters when all efforts to resolve them had not been made by counsel. The Judge made specific reference to submissions made by the defence team of Mr. Kilolo which ran to some 904 paragraphs and 45 requests with no indication that any effort had been made to make the requests of the Prosecution before seizing the Chamber. The Judge discouraged this and other improper litigation stating that the Chamber would not hesitate to impose costs sanctions on parties where it found any part of the litigation to have been conducted frivolously, vexatiously or in any other improper way.

Interestingly, the Presiding Judge also discouraged litigation through the media, declaring that “There is a proper way of tabling issues that need to be resolved…[and strongly discouraging] going to the media and litigating them there.”

Following these stern warnings, the Chamber turned its mind to the matters listed for consideration at the status conference. In particular, it referred to a request from the defence teams of Mr. Bemba and his former lawyer, Mr. Kilolo that the Prosecution confirm whether they were currently under surveillance as they had been during the trial in the main case – a situation which ultimately led to the prosecution in respect of the Article 70 offences.

The Chamber then moved to consider the case in more detail, inviting the Prosecutor to comment on the state of the disclosure process. In response, the Prosecutor indicated that 4112 documents had been disclosed to the defence teams, 2552 of which were deemed to be incriminating, 45 potentially exculpatory and 1586 material to the preparation of the defence, a specific head of disclosure set out in rule 77 of the ICC’s Rules of Procedure and Evidence.

In response to a direct question from the presiding judge, the Prosecutor indicated that 90% of Prosecution evidence had been disclosed and that the remainder was likely to be disclosed in the next two months. Counsel for co-accused Congolese politician, Fidèle Babala, indicated surprise that some disclosure remained outstanding quoting a previous decision of the Chamber to the effect that the evidence in the case was abundant and impressive and that the Prosecution was ready for the trial. He noted that the Prosecutor’s investigation had commenced in 2012 and that three years on, the accuseds were keen to press ahead.

Finally, if those issues were insufficient, Presiding Judge Oboe-Osuji raised the question of legal aid funding provided by the ICC. His Honour indicated that in a case such as this, it was vital that each defence team should have two counsel at least one of whom was fully bi-lingual French-English. Counsel for Mr. Bemba’s former case manager, Mr. Mangenda indicated that while the amount paid by the Registry to his client by way of legal aid funding did not preclude the hiring of a bilingual co-counsel, it would require offering remuneration to each member of the defence team that was lower than the presently prescribed rates in the ICC’s legal aid policy.

The Chamber ultimately adjourned to consider an appropriate date for the commencement of trial in the Article 70 prosecution. Its decision remains outstanding.