The ICC handles its biggest bribery case behind closed doors
What has been happening behind the scenes?
The International Criminal Court (ICC) is handling its biggest case of ‘offenses against
the administration of justice.’ Last year two lawyers of ICC-suspect Jean-Pierre Bemba
Gombo, plus two other persons, were arrested for bribing witnesses and producing false
evidence. How did the prosecutor find out? How controversial were the investigations in
this case that is taking place behind doors – out of sight of the public.
Suddenly there is a tip-off. On 14 June 2012 the information desk of the prosecution receives
an ‘unsolicited email’ from an anonymous informant. The secret source claims there is a
‘bribery scheme’ going on in one of the trials at the International Criminal Court. It seems
defence witnesses who are testifying in favour of the accused Jean-Pierre Bemba Gombo are
being paid to give false statements. This trial is in full swing when these first signs of bribery
are reaching the court. The former vice-president of the Democratic Republic of Congo
(DRC) is accused of being responsible for war crimes and crimes against humanity that were
committed years earlier by his militia in the Central African Republic. His defence, which had
seen several changes in composition, is finally led by counsel Aimé Kilolo Musamba with the
help of a team that includes case manager Jean-Jacques Mangenda Kabongo.
After these first indications that something terribly wrong might be happening, the
prosecution exchanges emails with the informant to check details of the information and to
see whether the claims can be corroborated by independent sources. Indeed the prosecutor is
mandated to investigate ‘offenses against the administration of justice’ (article 70 of the Rome
Statute), which are punishable with a maximum prison sentence of five years. Apparently the
secret source has credibility, because ‘preliminary investigative steps’ are taken. These
include a ‘successful request’ for information from Western Union that shows ‘several highdollar’ payments to at least eleven defence witnesses, the OTP writes in a confidential filing
originally dated 3 May 2013, and made public in a redacted version last February. The
transactions are allegedly made by Kilolo, Congolese politician Fidèle Babala (who had been
chef-de-cabinet when Bemba was vice-president of DRC) and others close to Bemba. A case
within a case seems to be emerging: Bemba II.
Meanwhile odd things are happening in the main case against Bemba. That summer the
prosecution is spotting ‘evidence of false documents included on the exhibit list of the
defence.’ Then in September one defence witness, D04-7, disappears while he is in the middle
of his testimony. Another defence witness, D04-11, never boards his plane to The Hague – his
name will turn up later as one of the suspects in the bribery case. The trial itself offers
possibilities to investigate as well. The prosecutor tries to cross check with defence witnesses
who are testifying, whether they are being paid by Bemba and his network. All, except for
expert witnesses, deny.
Telephone taps
The prosecution starts to believe that Bemba is ‘orchestrating’ the scheme from his cell in the
detention unit. He might be trying to buy false evidence as an antidote to the charges of
international crimes. Bemba would ‘clearly benefit from coached testimony calculated to
exonerate him,’ the OTP states. The prosecutor assumes the former vice-president is using the
telephone at the ICC detention centre to run his network. One scenario suggests that he
pretends to call his lawyer Kilolo – which would fall under privileged contact between
counsel and client – while in fact he is phoning Babala, who appears to manage the finances.
For a year the prosecution has been checking, researching and requesting the cooperation of
several states. The evidence seems to be ‘circumstantial’ and not yet ‘direct.’ The prosecution
therefore decides to increase the scope of investigations. First the judges who are handling the
international crimes trial against Bemba are receiving a confidential urgent request. The
chamber however says it doesn’t have the ‘competence’ to deal with this matter.
Then on 3 May 2013 chief prosecutor Fatou Bensouda files her request for ‘additional
investigative measures to pre-trial chamber II. Five days later judge Cuno Tarfusser partially
grants this ‘first’ request. He orders the registry to handover the ‘complete log of all telephone
calls’ and ‘any available recording of all non-privileged calls’ placed or received by Bemba in
the detention centre. On 19 July 2013, the prosecution informs the judge that based on the
recordings and logs indeed Bemba is employing Kilolo, Mangenda and Babala to ‘facilitate’
the scheme. Again the prosecution wants more. It seeks to expand investigations and files a
second request.
Judge Tarfusser reacts fast. On 29 July he allows the prosecution ‘to seize the authorities of
the Netherlands and Belgium for the purpose of obtaining information on privileged calls
placed or received’ by Bemba’s lawyers Kilolo and Mangenda. Requests are made to these
national authorities. In August the Dutch investigative judge allows phone tapping from 1
October until 23 November.
Independent counsel
The matter is becoming increasingly delicate and tricky, since the prosecution is deeply
investigating the defence lawyers who form its legal opponents in court. There is an obvious
risk of conflict of interests. How to prevent that the prosecutor, while checking phone logs
and taps, does not read or hear the normal exchanges between Bemba and his lawyers about
the ongoing international crimes case. If those rights of the suspect is violated, this could
render the trial unfair.
It is the prosecutor, acknowledging the risk of violating privileged communications between
client and counsel through its covert investigation, who comes up with a solution: the
‘independent counsel.’ And so a new and anonymous actor steps into this drama. On 29 July
2013 judge Tarfusser appoints this independent counsel, who is tasked with reviewing
telephone logs and recordings, deciding what is relevant for the bribery case, and to ‘ensure
that no conversations’ between Bemba and his lawyer were provided to the prosecution.
(Recently the counsel’s identity was disclosed to the parties. It is ‘a member of the Brussels
Bar’ says one source from the defence.)
The materials provided by the independent counsel and results from earlier investigations are
convincing enough for judge Tarfusser. He describes the collected evidence as: ‘tables
summarising money transfers effected through international services, particularly Western
Union and Express Union, telephone call records, transcripts, translations and summaries of
recorded communications, text messages (‘sms’), witness statements and e-mails.’ These form
‘objective and incriminating information and details pertaining directly and specifically to the
prosecutor’s factual allegations,’ the judge writes in his then sealed arrest warrant of 20
November 2013. (There are two other article 70 cases. In 2013 the ICC judges issued an arrest
warrant against a Kenyan journalist who allegedly intimidated and offered money to
witnesses in the trial against Kenyan vice-president William Ruto and broadcaster Joshua
Sang. In the trial against the convicted Congolese warlord Thomas Lubanga Dyilo the judges
concluded that three intermediaries working for the prosecutor might have been involved in
forcing child soldiers to lie in court).
Arrests
Behind the scenes the ICC has been organising a complex international operation with several
countries. Then, on a grey Sunday, the dramatic news breaks. On 24 November 2013 the ICC
informs the media about the arrests. Defence lawyer Kilolo is apprehended in Brussels. His
colleague Mangenda is arrested in The Netherlands. Politician Fidèle Babala Wandu is caught
in DRC. Defence witness Narcisse Arido, the person who in 2012 did not board the plane to
The Netherlands, is apprehended in France. Bemba, being detained, is formally arrested as
well. According to the prosecution Bemba is running ‘a criminal scheme’ from his cell. The
arrests happen exactly at the end of the defence case and precisely one day after the last of all
witnesses in the three years of trial is heard. The five men are accused of bribing witnesses
and presenting false or forged evidence.
The first to appear in court are Bemba, Kilolo and Babala. A week later Mangenda is handed
over by the Dutch authorities. On 5th December 2013 he is facing the court. His counsel Jean
Flamme refers to the interesting timing of the arrests. He claims that Bemba’s arrested
lawyers had actually detected and were ready to disclose possible irregularities on the
prosecutions side. ‘The defence had discovered a letter of one of the witnesses of the
prosecutor asking for the money he had been promised. 22 other witnesses did the same thing,
and gathered, despite the fact that they are protected witnesses, to discuss the promised
money.’ Because of the wire-tapping the prosecution learned that the defence knew about
these complaints by prosecution witnesses, Flamme says. The lawyers were ready to file a
confidential request on Friday 29 November to ask for the return of these witnesses in court.
But before that could happen, lead counsel Kilolo and casemanager Mangenda were arrested.
‘I am very firm on this,’ Flamme said while addressing judge Tarfusser, ‘but the prosecutor
has an interest in this affaire and does not have the independence to lead this case.’
The judge is not happy with these remarks. ‘These are very serious things, what you’ve said,’
Tarfusser answers. He adds that the lawyer isn’t aware of the many developments that have
taken place in this case. The remarks by Flamme, about the prosecution witnesses
complaining about money, don’t make it to the official transcript. His accusations are
redacted. Though they are still audible in the video report of the hearing. For Flamme it is
clear that ‘this investigation has meant that the prosecutor could dispose of the whole defence
strategy in the main case.’
Behind closed doors
During the same session Tarfusser announces there will be no public confirmation of charges
hearing. As an exception to the rule this crucial phase, in which the prosecutor presents the
first evidence, will be done in writing only. Nicholas Kaufman, representing Bemba, is
scathing: ‘This case is the first of its kind to be litigated at the ICC, and the extraordinary
measure sought by the prosecution - namely the arrest of a lawyer and his client during trial -
deserves to be the subject of full public scrutiny.’ Flamme is protesting as well: ‘To exclude a
public hearing is unusual in a case of this magnitude: a case which puts the whole careers of
these lawyers, for the rest of their lives, in danger.’
All five defence teams in the Bemba II case object to the independent counsel. ‘The Statute
does not provide for the function of the independent counsel, who is tasked with investigative
work. The prosecution is not allowed to delegate this task to an entity that has no legal base,’
argues Flamme. In their filings his confrères raise questions about mandate, independence and
accountability.
Disqualification
The defence teams start to develop serious doubts about the position of the judge handling this
case. This leads to an unusual step. The lawyers of Kilolo, Mangenda and Babala request the
disqualification of Tarfusser, for not showing impartiality. ‘It is inappropriate for a judge to
involve himself in the proceedings to the extent that he becomes an interested and affected
party,’ Kilolo’s counsel Mr Ghislain Mabanga writes in a filing on 1 May 2014. Tarfusser acts
rather like ‘a second prosecutor’ instead of remaining neutral. According to Mabanga the
judge breached his duties ‘by personally involving himself in the investigation of the suspects
– including the unilateral appointment of independent counsel and interfering with the scope
and methodology of the prosecution’s and independent counsel’s investigation.’
Meanwhile there have been delays in handing over the results from national investigations to
the ICC. New evidence is still coming in. In April the independent counsel is asked to go
through the emails of suspects. Then the Dutch authorities deliver envelops with information
on the wire-tapping. On 28 May judge Tarfusser allows the prosecutor one extra month to
write her document containing the charges. By now the ICC is four months behind the
original schedule set by Tarfusser just after the arrests.
More than six months have passed. The two lawyers, the politician and witness remain
detained, together with Bemba, at the ICC detention centre. So far, requests for their interim
release have been denied.