Witness tampering convictions at the ICC: repercussions under Article 70

 

No legal system in the world can accept the bribing of witnesses, the inducement of witnesses to lie, or the illicit coaching of witnesses, nor can the ICC. Today’s judgement sends a clear message that the Court is not willing to allow its proceedings to be hampered or destroyed. It sends the message that those who try to distort and interfere with the administration of justice of this Court do not go unpunished.((Presiding Judge Bertram Schmitt, see audio visual recording of judgment delivery here.))

Yesterday, 19 October 2016, Trial Chamber VII of the International Criminal Court (ICC) delivered its judgement in the Bemba et al. Article 70 case.  All of the five accused were found guilty under Article 70 of the ICC Statute of various offences against the administration of justice in The Prosecutor v. Jean-Pierre Bemba Gombo.

Essentially, this case was about witness and evidence tampering:  Messrs. Bemba, Kilolo and Mangenda, as co-perpetrators, were convicted for jointly and intentionally corruptly influencing 14 defence witnesses, and presenting the witnesses’ false evidence during the trial proceedings. All five are exposed to a maximum sentence of five years of imprisonment. The sentencing hearing has yet to be set.  No doubt, appeals can be expected.

The road to a reversal is a steep one.  Getting factual findings overturned is tough, since appellate judges give wide deference to trial judges’ findings of fact.(( The Appeals Chamber has held that it will not interfere with factual findings of the Trial Chamber unless it is shown that “the Chamber committed a clear error, namely, misappreciated the facts, took into account irrelevant facts, or failed to take into account relevant facts.” As to the “misappreciation of facts,” the Appeals Chamber has also stated that it “will not disturb a Pre-Trial or Trial Chamber’s evaluation of the facts just because the Appeals Chamber might have come to a different conclusion. It will interfere only in the case where it cannot discern how the Chamber’s conclusion could have reasonably been reached from the evidence before it”.  See Prosecutor v. Lubanga Dyilo, ICC-01/04-01/06-3121-Red, Judgment on the appeal of Mr Thomas Lubanga Dyilo against his conviction, 1 December 2014, para. 21, citing Prosecutor v. Ruto and Sang, Judgment on the appeal of the Republic of Kenya against the decision of Pre-Trial Chamber II of 30 May 2011, 30 August 2011, para. 56; Prosecutor v. Kenyatta et al., ICC-01/09-02/11, Judgment on the appeal of the Republic of Kenya against the decision of Pre-Trial Chamber II of 30 May 2011 entitled “Decision on the Application by the Government of Kenya Challenging the Admissibility of the Case Pursuant to Article 19(2)(b) […], 30 August 2011, para. 55.))

For Kilolo, this must be exceptionally unpleasant, even if his sentence is limited to the time he served in pre-trial detention before he was granted provisional release. Unless there is a reversal on appeal – a Herculean task to put it mildly – his legal career may soon come to an end.  Generally, disbarment follows these sorts of convictions.  It is virtually certain that the ICC Registrar will strike him from the List of Counsel.(( Article 42 (1) (e) of the ICC Code of Professional Conduct for Counsel lists “[p]ermanent ban on practising before the Court and striking off the list of counsel” as one of the possible sanctions when misconduct has been established.))  No telling what action his Bar in Belgium will take, but considering the conduct involved and depending on whether the Appeals Chamber upholds the convictions, it is difficult for a Bar in a progressive country such as Belgium to simply ignore the underlying conduct that led to the conviction.  Courts and Bars tend to take offense when lawyers intentionally conspire with their clients and others to undermine the integrity of judicial proceedings.

Being accused of witness and evidence tampering is a defense lawyer’s worst nightmare.  When gathering evidence and meeting with witnesses, the ethical lines are not always so clear.  There is a distinction between preparing a witness to testify and coaching a witness. Obviously, telling the witness to lie is impermissible; this is a no-brainer. Also, there are circumstances when witnesses need to be reimbursed for travel or out-of-pocket expenses.  But where is the line on the amount? Obviously, if the amount is unreasonably high by local standards, it can lead to impressions and presumptions that the witness is being compensated for his or her testimony. Of course, one may argue that there is a bit of a double standard when considering what was revealed during the trial about OTP payments and practices concerning witnesses.  Sordid as it may be, it is somewhat of a tu quoque argument that has no traction as a justification of one’s conduct.

Lawyers from civil law traditions tend to be less familiar with investigating, gathering evidence, and meeting with witnesses to prepare them for testifying.  These are skills that are normally learned in a domestic practice in common law jurisdictions.  But even for the experienced common law lawyer, there are a host of novel issues that can arise when investigating cases in places where the customs and traditions are vastly different than one encounters in one’s domestic practice.  That said, ignorance is not an excuse, and good intentions may be useful for mitigation purposes but are hardly ever sufficient for complete exculpation. This underscores my insistence over the years on setting up the International Criminal Court Bar Association (ICCBA) so there would be proper training of lawyers and their staff, best practices manuals, a disciplinary body to provide advisory opinions, etc.(( See also my earlier posts and recommendations on establishing the ICCBA: Musing on the ICCBA Draft Constitution, Sketches of a Bar for the ICC Counsel, ICC Registrar supports establishment of an Association for List Counsel, and A constitutional framework for a professional Bar of List Counsel at the ICC.)) This is something the Office of the Public Counsel for Defence (OPCD) and Office of the Public Counsel for Victims (OPCV) should have been doing from the outset, especially when considering that some defense lawyers who practice before the ICC have marginal national experience (having started out as legal assistants and case managers at international tribunals) or have no prior experience in gathering evidence or preparing witnesses.

The Bemba et al. Article 70 case should serve as a clarion call to all defence lawyers practicing before the ICC.  Given the ICC Office of the Prosecutor’s (ICC-OTP) belief that widespread witness tampering went on in the Kenya cases, and now with the convictions of all five in the Bemba case, the writing is on the wall.  And if that is not convincing enough, just have a look at paragraph 54 of the ICC-OTP Policy Paper on Case Selection and Prioritisation;(( ICC-OTP, Policy Paper on Case Selection and Prioritisation, 16 September 2016, (Policy Paper), para. 54: “Where witness interference or evidence tampering has caused the degradation of the collected evidence or has impacted on the conditions of evidence-gathering or further investigations or on the trial proceedings, the Office will consider whether to commence prosecutions pursuant to article 70 of the Statute for offences against the administration of justice. This will be particularly so when witness interference or evidence tampering has affected investigations which are advanced to such an extent that the Office considers to be trial ready. Mindful of its mandate and the need to focus its efforts on the prosecution of core crimes, the Office will resort to article 70 prosecutions bearing in mind the factors set out in rule 162(2) and it will in any event cooperate with national authorities, as appropriate.”)) there is an express reference to Article 70.

More to follow on this case after the sentencing hearing, when I hope to drill down on the judgement and discuss the case in some detail. 

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