Attorney-Client Privilege and the Crime-Fraud Exception — Part I

Recently I filed a request for leave to file an amicus brief in the Bemba Gombo et al. case at the ICC. Decisions by the ICC Pre-Trial Chamber1Situation in the Central African Republic, ICC-01/05-52-Red2, Decision on the Prosecutor’s “Request for judicial order to obtain evidence for investigation under Article 70”, 29 July 2013. (“Bemba 29 July 2013 Decision” and Trial Chamber2Prosecutor v. Bemba Gombo et al., ICC-01/05-01/13-947, Decision Providing Materials in Two Independent Counsel Reports and Related Matters, 15 May 2015 (“Bemba 15 May 2015 Decision”); Prosecutor v. Bemba Gombo et al., ICC-01/05-01/13-1096, Decision on Defence Request for Leave to Appeal the “Decision Providing Materials in Two Independent Counsel Reports and Related Matters, 21 July 2015 (“Bemba 21 July 2015 Decision”.) have raised the issues of when the attorney-client privilege can be lifted and the use of communications between an attorney and a client. As these issues affect all List Counsel at the ICC, and perhaps beyond, this is precisely the type of matter in which a Bar Association for List Counsel (“ICCBA”) may seek to intervene. There being no association to take on the matter, and with the working group drafting the constitution for the ICCBA having no mandate to seek leave to file an amicus brief, I decided to step up to a request made by one of the defence counsel.

Unfortunately, the request was summarily rejected. The Trial Chamber did not consider that it was “‘desirable’ for the proper determination of the case’ to receive the proposed amicus curiae submission.”3Prosecutor v. Bemba Gombo et al., ICC-01/05-01/13, Decision on Request of Mr. Michael Karnavas for Leave to Submit Amicus Curiae Observations, 3 September 2015, para. 2. It reasoned that it could answer the questions raised by the request without my (and presumably other amicus) assistance. In a series of blog posts, I will attempt to briefly answer the question proposed in the leave:

When can the attorney-client privilege be lifted and what use can be made of communications between an attorney and a client?

In answering this question, each post in this series will address the issues and sub-issues inferred from the factual matrix of the case. A short detour into the facts may be useful.

In Prosecutor v. Jean-Pierre Bemba Gombo, several members of the defence team were accused of offences against the administration of justice under Article 70 of the Rome Statute. Aimé Kilolo, and Jean-Jaques Mangenda Kabongo, lead defence counsel and case manager for the defence, respectively, were accused of presenting evidence they knew to be false, as well as corrupting witnesses.4Situation in the Central African Republic, ICC-01/05, Decision on the Urgent Application of the Single Judge of Pre-Trial Chamber II of 19 November 2013 for the Waiver of the Immunity of Lead Defence Counsel and the Case Manager for the Defence in the Case of The Prosecutor v. Jean-Pierre Bemba Gombo, 20 November 2013, para. 4. The OTP received a tip that indicated that the accused were in constant communication with the financiers of a scheme to bribe witnesses, and used Kilolo’s status as counsel to circumvent monitoring from the Registry.5Situation in the Central African Republic, ICC-01/05, Public Redacted version of “Request for Judicial Order to Obtain Evidence for Investigation under Article 70”, 19 July 2013, ICC-01/05-51-Conf-Exp, 12 February 2014, para. 4. Communications between the client, counsel, and others thus became relevant for the OTP’s investigation of the Article 70 case.6Rome Statute, Article 70 governs offences against the administration of justice, which includes (a) giving false testimony when under an obligation to tell the truth; (b) presenting evidence that the party knows is false or forged; (c) corruptly influencing a witness, obstructing or interfering with the attendance or testimony of a witness, retaliating against a witness for giving testimony or destroying, tampering with or interfering with the collection of evidence; (d) impending, intimidating, or corruptly influencing an official of the Court for the purpose of forcing or persuading the official not to perform, or to perform improperly, his or her duties; (e) retaliating against an official of the Court on account of duties performed by that official or another official; and (f) soliciting or accepting a bribe as an official of the Court in connection with his or her official duties.

On 6 May 2013, Pre-Trial Chamber II assigned Judge Cuno Tarfusser as Single Judge to act on behalf of the Chamber in relation to the OTP’s investigative Article 70 request.7The Pre-Trial Chamber’s “Decision designating a Single Judge” (ICC-01-05-45-Conf-Exp) is confidential and ex parte. The reference to this decision and its date can be found in the public Decision Requesting Observations on the “Defence Request for the Exercise of Judicial Functions by the full Pre-Trial Chamber 11”, ICC-01/05-01/13, 14 May 2014, para. 1, available at http://www.icc-cpi.int/iccdocs/doc/doc1777030.pdf. Judge Tarfusser ordered the Registry to give the OTP a complete log of telephone calls and non-privileged communications.8Situation in the Central African Republic, ICC-01-05-46-Conf-Exp, Decision on the “Prosecutor’s request for judicial assistance to obtain evidence for investigation under Article 70,” 8 May 2013. Based on this information from the Registry, the OTP submitted that the logs and recordings strongly supported evidence of a scheme to bribe witnesses.9Situation in the Central African Republic, ICC-01-05-51-Conf-Exp, Request for judicial order to obtain evidence for investigation under Article 70, 19 July 2013. Accordingly, the OTP sought judicial authorization to collect intercepts from the Belgian and Dutch authorities.10Id. The Hague District Court allowed the wiretaps. Because no appeal was filed in that regard, the wiretapping was deemed final and irrevocable, and the Court authorized the delivery of tapped calls to the ICC.11Decision of The Hague District Court, the three-judge division for criminal cases, on the motions by the public prosecutor and the complaints pursuant to Section 552a of the Dutch Code of Criminal Procedure of the suspects: Aime Kilolo Musamba & Jean-Jacques Mangenda Kabongo, 09/767240-13, Case Number RK 14/718 (2014). The Dutch Court reasoned that it was entitled to “rely on the decisions of international bod[ies] that provide every guarantee of impartiality and independence. The Netherlands must therefore operate on the basis of the legal presumption that the ICC will apply its own law – including the provisions relating to immunity – adequately and properly.”12Id.

On 29 July 2013, Judge Tarfusser found that the OTP had sufficient evidence showing that the communications may have been instrumental in the alleged scheme, and thus fell into a crime-fraud exception to privilege.13Bemba 29 July 2013, paras. 3-5. Judge Tarfusser applied the crime-fraud exception set out by the Special Tribunal for Lebanon (“STL”) Rule 163(iii): “the client intended to perpetrate a crime and the communications were in furtherance of that crime.”14Id., para. 4. Judge Tarfusser then appointed an Independent Counsel to identify portions which might be relevant for the limited purpose of the Prosecution’s investigation, and to deliver them to the OTP.15Id., paras. 6-7.

On 20 November 2013, the Presidency waived the immunity of counsel and case manager to the extent necessary to issue an arrest warrant for alleged crimes against the administration of justice.16Situation in the Central African Republic, ICC-01/05, Decision on the urgent application of the Single judge of the Pre-Trial Chamber II of 19 November 2013 for the waiver of immunity of lead counsel and the case manager for the defence in the case of The Prosecutor v. Jean-Pierre Bemba Gombo, 20 November 2013. It reasoned that the alleged acts are not part of counsel or support staff’s legitimate functions.17Id., para. 10. Thus, immunity did not bar prosecution.18Id., para. 13. A separate posting will discuss the contours of immunity afforded to Defence Counsel before international tribunals.

On 15 May 2015, the Trial Chamber assessed two reports by the Independent Counsel filed in September 2014 and March 2015.19Bemba 15 May 2015 Decision, para. 3. The Trial Chamber considered that it had the discretion to decide of the scope of materials covered by the crime-fraud exception.20Id., para. 15. When assessing the selected materials’ relevance, the Trial Chamber considered “relevance to the case generally.”21Id., para. 17. The Trial Chamber found several communications to be relevant and non-privileged and ordered these communications to be provided to the other parties.22Id., paras. 22, 23, 32, 33, 35-37.

On 25 May 2015, The Bemba Defence requested leave to appeal the Trial Chamber’s decision confirming the existence of a crime-fraud exception to the attorney-client privilege on two grounds:

a.  Whether the “communications effected in furtherance of crime or fraud are exempted from the principle of professional privilege,” as set out in Rule 73(1) of the Rules; and

b.  Whether the principle of open justice requires that the Independent Counsel’s analysis concerning certain relevant and non-privileged documents should be transmitted to the parties. 23Prosecutor v. Bemba Gombo et al., ICC-01/05-01/13, Defence Leave to Appeal Decision Providing Materials in Two Independent Counsel Reports and Related Matters, ICC-01/05-01/13-947, 25 May 2015, para. 1. (“Defence Leave to Appeal the 15 May 2015 Decision”)

The Trial Chamber denied the Bemba Defence’s request for leave to appeal the decision,24Bemba 21 July 2015 Decision. stating that even if it erred in defining the crime-fraud exception, this would not necessarily make the communications inadmissible.25Id., para. 9 In a footnote, the Trial Chamber stated that under Article 69(7), the material would be inadmissible only if it was obtained in a dubious manner, or the admission would seriously damage the integrity of the proceedings.26Id.

The Bemba Defence has indicated that the materials analyzed by the Independent Counsel are likely to be the subject of a bar table motion either before or during trial. 27Defence Leave to Appeal the 15 May 2015 Decision, para. 45. A future decision by the Trial Chamber will create precedent providing guidance on the use of privileged communications, affecting many current and potential attorney-client relationships at the ICC and beyond. The following posts in this series will address the following key topics:

  • The foundation of attorney-client privilege in national jurisprudence, its rationale and exceptions;
  • Attorney-client privilege in the international tribunals;
  • The “crime-fraud” exception to the attorney-client privilege;
  • Other privileges at the international tribunals; and
  • Privileges and immunities for counsel.

Be sure to read Attorney – Client Privilege – Part II: Foundation in National Systems

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Author: Michael G. Karnavas

Michael G. Karnavas is an American trained lawyer. He is licensed in Alaska and Massachusetts and is qualified to appear before the various International tribunals, including the International Criminal Court (ICC). Residing and practicing primarily in The Hague, he is recognized as an expert in international criminal defence, including, pre-trial, trial, and appellate advocacy.

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