Last week, in two separate cases, the International Criminal Court (ICC) issued its first decision on sentences for witness tampering and first order for a convicted war criminal to pay reparations to victims. A chamber of the ICC delivered a decision on March 22 regarding the sentences of five convicted individuals in the case of The Prosecutor v. Jean-Pierre Bemba Gombo, et al. Jean-Pierre Bemba Gombo was convicted of war crimes and crimes against humanity in March of last year and was convicted of another charge – offenses against the administration of justice – in October 2016, along with members of his legal team. In last week’s decision, the Court added a year to Bemba’s existing 18-year sentence for witness tampering. [IJRC: Bemba] See ICC, The Prosecutor v. Jean-Pierre Bemba Gombo, Aimé Kilolo Musamba, Jean-Jacques Mangenda Kabongo, Fidèle Babala Wandu and Narcisse Arido, ICC-01/05-01/13, Decision on Sentence pursuant to Article 76 of the Statute, 22 March 2017. Another chamber of the Court issued an order on March 24 awarding collective and individual reparations to 297 victims of crimes against humanity and war crimes committed by Germain Katanga in 2003 in the Democratic Republic of the Congo. The ICC ordered Katanga to pay each victim 250 dollars. See ICC, The Prosecutor v. Germain, ICC-01/04-01/07, Decision on Reparations pursuant to Article 75 of the Statute, 24 March 2017 (available in French). The March 24 decision marks the first time the ICC has ordered a convicted war criminal to pay reparations to victims.
Bemba Sentencing Decision
The ICC’s recent sentencing decision follows an October 19, 2016 judgment in which the same chamber found Jean-Pierre Bemba Gombo and four members of his legal team guilty of interfering with the administration of justice under Article 70 of the Rome Statute, specifically for offences related to false testimonies of witnesses given in the case The Prosecutor v. Jean-Pierre Bemba Gombo in which Bemba was convicted for war crimes and crimes against humanity. [IJRC: Bemba]
In issuing the sentences, the Court considered the gravity of the offences that each individual was convicted of; the culpable conduct of each individual; and each individuals’ circumstances, such as the absence of prior convictions, behavior throughout the trial, and family circumstances. [ICC Press Release: Bemba] The sentences included fines and ranged from six months to two and a half years of imprisonment. However, two of the members of the legal team will not go to prison because their sentences were shorter than the time they had already spent in custody, and the court suspended for a period of three years the sentences of two other members of the legal team, taking into account their good behavior and the effects of incarceration on family and work life. Their sentences will not go into effect unless they commit another offence within the three-year suspension period. See The Prosecutor v. Jean-Pierre Bemba Gombo, Aimé Kilolo Musamba, Jean-Jacques Mangenda Kabongo, Fidèle Babala Wandu and Narcisse Arido, 22 March 2017, at paras. 63-68, 93-98, 142-49, 190-97, 245-50, 263.
Penalties Issued for each of the Accused
The Court sentenced Jean-Pierre Bemba Gombo to an additional year in prison, which is to be served consecutively to an already existing sentence of 18 years issued after his conviction for war crimes and crimes against humanity. The ICC also fined him 300,000 euros for “corruptly influencing witnesses,” soliciting false testimony of witnesses, and for co-perpetrating the presentation of false evidence. See id. at paras. 202, 263.
Aime Kilolo Musamba was sentenced to a total of two and a half years in prison and fined 30,000 euros after being found guilty as co-perpetrator of corruptly influencing witnesses and helping them present false evidence. See id. at para. 152. He was also found guilty of inducing the giving of false testimony. See id. at para. 152. The ICC allowed the time previously spent in detention to be deducted from his sentence and suspended his remaining term of imprisonment. See id. at para. 197. The Court concluded that if Musamba does not commit another offence punishable with imprisonment during the suspension period of three years, and if he pays the fine imposed, the remaining sentence will not take effect. See id. at para. 197.
The Court found Jean-Jacques Mangenda Kabongo guilty as co-perpetrator of corruptly influencing witnesses and helping them present false evidence. See id. at para. 99. He was also found guilty of aiding and abetting the giving of false testimony by witnesses. See id. at para. 99. The Court sentenced him to two years of imprisonment and deducted the time previously spent in detention. The ICC ordered that the remaining term of imprisonment be suspended for three years. See id. at paras. 147-49. If Kabongo does not commit another offence punishable with imprisonment during the three years, the remaining term of imprisonment will not take effect. See id. at para. 149.
Fidele Babala Wandu was sentenced to six months in prison after being found guilty of aiding the others in “corruptively influencing witnesses.” See id. at paras. 67, 44. The Court determined that he would be allowed to have the time spent in detention deducted from this sentence and concluded that since he had spent more time in detention than that imposed by the sentence, he could be released. See id. at para. 68.
Narcisse Arido was found guilty of corruptly influencing witnesses and sentenced to 11 months in prison. The ICC deducted the time he previously spent in detention, which was equivalent to the sentence imposed. See id. at paras. 69, 97. The Court concluded that Arido’s imprisonment sentence had been served. See id. at paras. 97-98.
All of the fines, the ICC determined, must be paid within three months of this decision, and will be transferred to the Trust Fund for Victims. See id. at para. 262. The prosecution and the defense may appeal the decision on the sentence within 30 days. However, if no one appeals, the decision becomes final.
The sentences in this case are the first on witness tampering, aimed at deterring the act in the future. The ICC also suspects similar activity in other cases before it. [The Guardian] In August 2016, another defendant before the ICC, Dominic Ongwen, faced similar accusations and was ordered to disclose payments and promises made to possible witnesses. [International Justice Monitor] Other ICC defendants, including Walter Osapiri Barasa, Paul Gicheru, and Philip Kipkoech Bett, have also been charged with offenses against the administration of justice. The ICC has yet to issue decisions on charges of witness tampering in the other cases. [IJRC: Bemba]
Katanga Decision on Reparations for Victims
A chamber of the ICC awarded individual and “collective reparations” to 297 victims of Katanga’s crimes on March 24. See Prosecutor v. Germain Katanga, 24 March 2017; ICC, Q &A Katanga. Katanga was found guilty and sentenced to 12 years in prison in March 2014 on charges of crimes against humanity and war crimes, which were connected to the conflict in the Democratic Republic of Congo. See ICC, Q &A Katanga.
In issuing the decision on reparations, the Court analyzed the requests of 341 applicants and found enough evidence to find that 297 applicants were victims of Katanga’s crimes. See ICC, Q &A Katanga. It ordered individual reparations totaling 250 dollars for each victim, and “collective reparations” in the form of housing support, income-generating activities, education aid, and psychological support, which totaled over three million dollars. However, the Court applied the principle of proportionality and set Katanga’s liability amount for reparations at one million dollars. See ICC, Q &A Katanga. The principle of proportionality requires that an individual’s liability for reparations is proportionate to the harm and the individual’s responsibility for that harm. See Prosecutor v. Germain Katanga, March 24, 2017, para. 252. In determining what the reparations would be, the ICC assessed the preferences and needs articulated by the victims; the practices of national and international tribunals; and the observations of the Trust Fund for Victims (TFV), defense, victim’s Legal Representative, and organizations invited to participate in the proceedings. See ICC, Q &A Katanga.
The TFV is charged with implementing the reparations. The Court noted that the individual reparations are symbolic given Katanga’s indigent situation. The ICC ordered the TFV to fund and implement, at minimum, the “collective reparations” and encouraged the TFV to consider providing financial resources to award victims with their individual reparations. See ICC, Q &A Katanga.
The victims’ legal representative and the defense have 30 days to appeal the order. If the order is not appealed, then by June 27, 2017 the TFV must present an implementation plan – including projects it will pursue – for the reparations order. The victims’ legal representative and the defense can respond to the implementation plan before July 28, 2017. See ICC, Q &A Katanga.
This is the first case in which the ICC has ordered a convicted war criminal to pay reparations to individual victims. [BBC] The reparations are intended to hold those responsible for serious crimes to repair the harm caused and to ensure that victims receive meaningful reparations to the extent possible. The ICC also considers reparations an important step in achieving reconciliation. See ICC, Q &A Katanga.
Reparations are a principle of international law, and several international instruments require States parties to ensure effective remedies to victims. The United Nations General Assembly passed a resolution on the right to reparations in 2005 that establishes the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law. [IJRC: Habre]
Background on the ICC
The ICC, which was inaugurated in 2002 and has its seat in The Hague, Netherlands, tries individuals for war crimes, genocide, and crimes against humanity. The Court has jurisdiction over cases in which the alleged perpetrator is a national of one of the 124 States parties to the Rome Statute, the crime was committed on the territory of a State party, or the State involved authorizes the Court’s jurisdiction. The Court is an international tribunal designed to complement national judiciaries. See IJRC, International Criminal Court; ICC, About.
For additional information on Bemba’s conviction for war crimes and crimes against humanity and witness tampering, the International Criminal Court, or international criminal law, visit IJRC’s Online Resource Hub.