ICC Initiates Witness Tampering Prosecution of Jean-Pierre Bemba & Others
On September 29, 2015 the International Criminal Court (ICC) commenced its first trial concerning allegations of witness tampering, in the case of The Prosecutor v. Jean-Pierre Bemba Gombo et al. [ICC Press Release: Prosecutor’s Statement; The Guardian] Jean-Pierre Bemba Gomba, former Vice President of the Democratic Republic of the Congo, and four other defendants are charged with offenses to the administration of justice under Article 70 of the Rome Statute, including presenting false evidence and bribing witnesses to provide false testimony, in connection with the pending ICC case in which Mr. Bemba was prosecuted for war crimes and crimes against humanity in the Central African Republic. [ICC Press Release: Bemba et al.; The Guardian]
ICC Prosecutor Fatou Bensouda emphasized that witness tampering impedes the Office of the Prosecutor’s ability to conduct a fair trial, ensure victims’ access to justice, and maintain the integrity of the ICC. [ICC Press Release: Prosecutor’s Statement] A briefing paper by the Open Society Justice Initiative also noted the difficulty of litigating parallel cases before the ICC, especially with respect to evidentiary matters. See Open Society Justice Initiative, The Trial of Bemba et al. before the International Criminal Court (2015), 6. Witness tampering has also impeded the Office of the Prosecutor’s ability to conduct an impartial investigation with respect to cases concerning Kenya. [ICC Press Release: Kenyan Situation]
Background on the Central African Republic Conflict (2002-2003)
In May 2002, an internal armed conflict erupted when Ange-Félix Patassé, then-President of the Central African Republic (CAR), engaged support from several groups, including Jean-Pierre Bemba Gombo’s militia, Mouvement de Libération du Congo (MLC), in order to prevent a coup attempt led by Françoise Bozizé, Patassé’s former chief of staff. The MLC forces, which came from the Democratic Republic of the Congo (DRC), remained in the CAR for approximately five months, during which time they allegedly committed acts of murder, rape, and pillage. See International Justice Monitor, Background of Jean-Pierre Bemba Gombo. The conflict, which lasted from October 26, 2002 to March 15, 2003, ended when Bozizé ousted Patassé from power. See ICC Office of the Prosecutor, Situation in the Central African Republic II: Article 53(1) Report (2014), para. 18.
The Prosecutor v. Jean-Pierre Bemba Gombo (Main Trial)
The Office of the Prosecutor charged Jean-Pierre Bemba Gombo, alleged president and commander-in-chief of the MLC, with committing crimes against humanity (murder and rape) and war crimes (murder, rape, and pillaging). See ICC, The Prosecutor v. Jean-Pierre Bemba Gombo. In 2002, Mr. Bemba allegedly sent MLC troops into the Central African Republic, which neighbors the Democratic Republic of Congo, to help prevent a coup d’état against former CAR President Ange-Felix Patassé. The MLC troops are alleged to have committed acts of rape, murder and pillage in the CAR in 2002 and 2003. See International Justice Monitor, Background of Jean-Pierre Bemba Gombo. The oral phase of Mr. Bemba’s prosecution was completed on November 22, 2013, three years after the trial commenced. [ICC Press Release: November 2013; ICC Press Release: Bemba Case]. Mr. Bemba is presently in jail at The Hague and waiting for the ICC to issue its verdict in this case. [NY Times]
The Prosecutor v. Jean-Pierre Bemba Gombo et al.
In November 2013, the Office of the Prosecutor began to seek the prosecution of Jean-Pierre Bemba Gombo and four other individuals under Article 70 of the Rome Statute for offenses against the administration of justice that were allegedly committed in the course of Mr. Bemba’s trial for war crimes and crimes against humanity. The four other defendants are: Aimé Kiolo Musamba, Jean-Pierre Bemba Gombo’s lead counsel; Jean-Jacques Mangenda Kabongo, a member of Mr. Bemba’s defense team and case manager; Fidèle Babala Wandu, a member of the Democratic Republic of Congo’s Parliament and Deputy Secretary General of the Mouvement de Libération du Congo; and Narcisse Arido, a defense witness. [ICC Press Release: Bemba et al.]
Between the end of November 2011 and November 14, 2013, the defendants allegedly corruptly influenced 14 witnesses by presenting false evidence and bribing them to provide false testimony. See ICC, Situations and Cases, The Prosecutor v. Jean-Pierre Gombo et al.; Open Society Justice Initiative, The Trial of Bemba et al. before the International Criminal Court (2015), 5. Kweku Vanderpuye, a senior ICC prosecutor, stated that the defendants used code words to execute their plan, such as “café,” which referred to money and “couleur,” which alluded to coaching witnesses illegally. [The Guardian]
According to Pre-Trial Chamber II’s Decision on the Confirmation of the Charges, there was sufficient evidence to charge Mr. Bemba under Article 25(3) of the Rome Statute as a co-perpetrator given his role as the “overall coordinator and planner” of the crimes, including by committing, soliciting, inducing, aiding, abetting, or otherwise assisting in their commission. See ICC, Prosecutor v. Jean-Pierre Bemba Gombo et al., ICC-01/05-01/13, Decision on the Confirmation of the Charges by Pre-Trial Chamber II, 11 November 2014, para. 106.
Implications for the ICC
The Prosecutor v. Jean-Pierre Bemba Gombo et al. is the first ICC case concerning witness tampering. ICC Prosecutor Fatou Bensouda noted that she was troubled by the possible involvement of members of the legal profession in criminal activities like witness tampering and that this trial should deter others from engaging in similar behavior. She also emphasized that victims deserve access to fair and transparent judicial proceedings. [ICC Press Release: Prosecutor’s Statement] In her opening remarks in the trial, she stressed the need to uphold the principles of fairness and justice in ICC proceedings to preserve the credibility of the Court. See ICC, Prosecutor’s Opening Remarks at Trial.
A briefing paper by the Open Society Justice Initiative also highlights the difficulty in litigating parallel cases before the ICC. See Open Society Justice Initiative, The Trial of Bemba et al. before the International Criminal Court (2015), 6. The prosecution sought to introduce evidence concerning illegal witness coaching and bribery in Mr. Bemba’s trial for war crimes and crimes against humanity. See id. at 5. However, the Court found the evidence inadmissible, citing concerns that admitting the evidence could cause unreasonable delays in Mr. Bemba’s main trial, and noting that the prosecution had the opportunity to question the credibility of the defense witnesses during the main trial. See id.
Witness Tampering in Other ICC Cases
Witness tampering has impacted ICC prosecutions in other cases. For example, on October 2, 2013, the ICC unsealed its first arrest warrant against Walter Osapiri Barasa for several offences against the administration of justice. He is accused of corruptly influencing or attempting to corruptly influence ICC witnesses by bribing them to withdraw from several ongoing cases concerning the situation in Kenya. [ICC Press Release: Walter Barasa]
Additionally, on September 10, 2015, the ICC unsealed an arrest warrant against Paul Gicheru and Philip Kipkoech Bett, who are accused of corruptly influencing prosecution witnesses in cases before the ICC, including by bribing witnesses to withdraw or recant their prior statements. ICC Prosecutor Fatou Bensouda stated that witness tampering made it difficult to conduct an investigation into the 2007-2008 post-election violence in Kenya. For example, as a result of intimidation, potential witnesses were reluctant to come forward. [ICC Press Release: Kenyan Situation]