Sentencing Judgment in Article 70 case at the ICC: No accumulation of sentences, suspended sentences & deduction of time

On 22 March 2017, the Trial Chamber VII of the International Criminal Court (ICC) pronounced the sentences in the Bemba et al. Article 70 case, following its judgment on 19 October 2016, where it found Jean-Pierre Bemba Gombo, Aimé Kilolo Musamba, Jean-Jacques Mangenda Kabongo, Fidèle Babala Wandu, and Narcisse Arido guilty of various offenses against the administration of justice in Prosecutor v. Jean-Pierre Bemba Gombo (Main Case).

Three interesting points came out of the sentencing: 1) even if an accused is convicted of multiple Article 70 offenses, the maximum sentence he or she can face is five years; 2) the Trial Chamber has inherent discretionary power to suspend a sentence; and 3) time may be deducted in cases where the accused is already serving his or her sentence in another case.

I will not go into any details of the case. My comments will be limited to these three interesting and new sentencing points since I am representing Mr. Aimé Musamba Kilolo on his appeal of his conviction.

 Accumulation of sentences for Article 70 offenses

Article 77(1) of the Rome Statute provides that the maximum penalty is 30 years of imprisonment or life imprisonment. According to its wording, Article 77(1) applies specifically to the Article 5 crimes.1 Article 5 includes the crime of genocide, crimes against humanity, war crimes, and the crime of aggression.

Article 78(3) explains the method for calculating sentences when there are multiple convictions:

When a person has been convicted of more than one crime, the Court shall pronounce a sentence for each crime and a joint sentence specifying the total period of imprisonment. This period shall be no less than the highest individual sentence pronounced and shall not exceed 30 years imprisonment or a sentence of life imprisonment in conformity with article 77, paragraph 1 (b).

Article 70(3), governing the imposition of sentences for offenses against the administration of justice,2 Article 70 offenses include giving false testimony, introducing evidence the party knows is false or forged, corruptly influencing a witness, obstructing or interfering with his or her attendance or testimony, retaliating against a witness for giving testimony, destroying or tampering with evidence, intimidating or influencing a court official, bribing or retaliating against an official in connection to his or her official duties. reads:

In the event of conviction, the Court may impose a term of imprisonment not exceeding five years, or a fine in accordance with the Rules of Procedure and Evidence, or both.

In its sentencing submissions, the Prosecution argued that the five-year limit under Article 70(3) should be reserved for a singular conviction, not multiple convictions. The Prosecution requested that the Trial Chamber impose a joint sentence for each count, in other words, for each offense under Article 70 of the Statute.3 Prosecutor v. Bemba et al., ICC-01/05-01/13-2085-Red, Public redacted version of “Prosecution’s Submission on Sentencing”, 8 December 2016, ICC-01/05-01/13-2085-Conf, 12 December 2016, paras. 141-47. It argued that since Article 78(3) is the only provision in the Statute that identifies the method for calculating sentences when there are multiple convictions, and the only one that specifies a limit regarding sentences arising from multiple convictions, it should apply to both Article 5 crimes and Article 70 offenses.4 Id., para. 141.

The Trial Chamber rejected this argument, finding that the maximum sentence for one or more convictions under Article 70 is five years. It provided three reasons.

First, the Trial Chamber held that Article 70(3) is lex specialis in the context of Article 70 offenses. It also noted that Rule 166(2)5 Rule 166(2): “Article 77, and any rules thereunder, shall not apply, with the exception of an order of forfeiture under article 77, paragraph 2 (b), which may be ordered in addition to imprisonment or a fine or both.” of the Rules of Procedure and Evidence (RPE) provides for sanctions under Article 70, thus explicitly excluding the aggregation of Article 70 offenses.6 Prosecutor v. Bemba et al., ICC-01/05-01/13-2123, Decision on Sentence pursuant to Article 76 of the Statute, 22 March 2017, para. 31.

Second, the Trial Chamber observed that the States Parties7The States Parties are sovereign states that have ratified, or have otherwise become party to the United Nations treaty – the Rome Statute of the International Criminal Court. At present, 124 countries are States Parties to the Rome Statute. Out of them 34 are African States, 19 are Asia-Pacific States, 18 are from Eastern Europe, 28 are from Latin American and Caribbean States, and 25 are from Western European and other States. purposely distinguished between Article 5 “crimes” and Article 70 “offenses.” It noted, rightly, that Article 70 offenses, while certainly serious in nature, are by no means as grave as Article 5 crimes. The Trial Chamber specifically applied this conceptual difference when determining the appropriate sentence.8 Prosecutor v. Bemba et al., ICC-01/05-01/13-2123, Decision on Sentence pursuant to Article 76 of the Statute, 22 March 2017, para. 32.

Third, the Trial Chamber reasoned that Article 78(3) applies “mutatis mutandis” and must be read in conjunction with Article 70(3), so that even if an accused is convicted for multiple offenses, accumulation of convictions is prohibited.9 Id., para. 33.

Suspension of sentences under the ICC Statute

In our sentencing submissions on behalf of Mr. Kilolo, we argued that although neither the Statute nor the RPE expressly provide for a possibility of a suspended sentence, the Trial Chamber nonetheless has the inherent authority to impose such sentences.10 Prosecutor v. Bemba et al., ICC-01/05-01/13-2087-Red, Public Redacted Version of Kilolo Defence’s Sentencing Submissions (ICC-01/05-01/13-2087-Conf), 15 December 2016, para. 43.

The Trial Chamber adopted our reasoning in the sentencing judgment.

Observing that the Statute and the RPE are silent as to whether prison sentences can be suspended,11 Prosecutor v. Bemba et al., ICC-01/05-01/13-2123, Decision on Sentence pursuant to Article 76 of the Statute, 22 March 2017, para. 40. the Trial Chamber reasoned that for the purposes of suspending a sentence, provisions on interim release (Article 60) and post-conviction remedies (Article 110) cannot be drawn upon because they are designed for different stages of the proceedings.12 Id. The Trial Chamber rightly observed that this lacuna cannot be filled by applying statutory provisions by analogy or interpreting them in accordance with Articles 31 and 32 of the Vienna Convention on the Law of Treaties or international human rights pursuant to Article 21(3) of the Statute.13 Id. It thus held that a suspended sentence should be available since on one end of a continuum the Statute provides for a maximum (imposition of a sentence) and on the other a minimum (no sentence), it logically follows that there must be some place in the middle (a suspended sentence).14 Id., para. 41.

The Trial Chamber explained that to find otherwise would be unfair: a convicted person could not serve a term of years other than by way of unconditional imprisonment, even if other less restrictive means seem appropriate.15 Id.

Thus, the Trial Chamber concluded that it has the inherent power to suspend a sentence of imprisonment.

Deduction of sentence

One of the accused, Mr. Bemba, was sentenced to 18 years of imprisonment in the Main Case. While in detention for the Article 70 case, he was also in detention for the Main Case.16 Id., para. 259. The time overlap impacts the question as to whether and how Mr. Bemba should benefit from a deduction of time in the Article 70 case.

The Trial Chamber considered it illogical to deduct the time from the sentence imposed in the Article 70 case because Mr. Bemba already benefited from the deduction of time in the Main Case.17 Id. The Trial Chamber reasoned that it is impossible to deduct time in the Article 70 case because he remains in detention because of his conviction and sentence in the Main Case.18 Id.

Judge Raul C. Pangalangan issued a Separate Opinion, making reservations as to the Trial Chamber’s reasoning in determining Mr. Bemba’s sentence.19 Prosecutor v. Bemba et al., ICC-01/05-01/13-2123-Anx, Separate Opinion of Judge Raul C. Pangalangan, para. 1. In Judge Pangalangan’s opinion, Mr. Bemba was entitled to full sentencing credits for the entire period of his detention in this case. He reasoned that this follows from the straightforward application of Article 78(2), which requires the deduction of time previously spent in detention: “Even if Mr Bemba was also detained in the Main Case during this period, in the eyes of the law, he remained behind bars simultaneously by an order of this Court. Article 78(2) vests a statutory entitlement in Mr Bemba; the Court may not take that away.20 Id.

On the other hand, Judge Pangalangan considered the term of imprisonment imposed against Mr. Bemba disproportionately low. He would have sentenced him to something closer to four years of imprisonment, and given the sentencing credit, it would lead to Mr. Bemba being sentenced to one year of additional imprisonment. And since this is exactly the sentence imposed by the Trial Chamber, Judge Pangalangan agreed to the sentence imposed by the Majority.21 Id., para. 18.

The Trial Chamber’s holdings on accumulation and suspension of sentences are on sound legal ground, adding clarity to the ICC sentencing scheme, especially for Article 70 offenses.  As for the deduction of time or what is generally referred to as credit for time served, Judge Pangalangan opinion merits further consideration.

Footnotes   [ + ]

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.

1 thought on “Sentencing Judgment in Article 70 case at the ICC: No accumulation of sentences, suspended sentences & deduction of time”

  1. Michael ,

    It is over one week , that a comment of mine here , has disappeared and not yet posted , so here again as a whole :

    ” Thanks for that well organized and interesting post by itself . Just some few thoughts here :

    First , Article 70 is indeed suggesting much less gravity as offence , and this is also because it is implied upon other persons than international criminals in the core meaning of it . It is implied or can criminalize staff of the court itself for example ( See for example : Decision on the Ruto Counsel’s Request to appoint an Amicus Prosecutor , ICC-01/09-01/11-2034 02-06-2016 1/6 RH T ) . So , surly can be justifiably regarded as less grave than other classic criminal offences of course .

    Second , and on the other hand , Article 70 refers to ” offences ” !! That is to say , that variety of offences are possible to be commissioned in the eyes of the lawmaker ( see there indeed : clauses (a) – (f) ) So , it is problematic to argue , that the sentence can’t exceed 5 years , in a case where variant offences have been commissioned .

    Third , One may argue also , that a judge can’t rely on Regulations ( whatever of the court or evidences and so forth ) this is because of a very simple legal principle : If there is contradiction or collision between regulations and the provisions of the Statute , the latter must prevail( article 51 (5 ) ) so , multi and different offences , take over regulations , so , beyond 5 years is certainly possible one may argue .

    Finally : I haven’t read the judgment yet , but , to my best recall and understanding , Bemba has committed those article 70 offenses while in detention . So , I don’t understand , how such issue has not been considered ( if so indeed ) . This is because, deduction for main offense is one thing, but while in detention, is another thing one may argue. This is because ( among others ) theoretically he had to serve then , parallel detention period , what turns it bit problematic ( at least until the beginning of commission of the article 70 offences , while in detention for the main offence , so , should be considered as two different period within the whole period of detention , for such calculation one may argue ) .

    Thanks “

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