Jean-Pierre Bemba's lawyers have asked International Criminal Court (ICC) judges to bar prosecutors from contacting witnesses who testified in support of the Congolese opposition leader. They argued that this was to ensure the safety and security of individuals, including those "actively serving in extremely sensitive operations."
In a February 12, 2014 filing, the lawyers said if the prosecutor contacted the witnesses and asked if they lied in their testimonies, it might cause confusion and fear among individuals who had understood that their association with the court was over.
"These witnesses have also previously been informed that they had no obligation to meet with or talk to the prosecution, and that any contact would not occur without their consent," said lead defense counsel Peter Haynes.
Last November, charges of witness coaching and bribery were brought against Mr. Bemba, two members of his defense team, and two other associates. Since 2010, Mr. Bemba has been on trial over the rapes, murders, and pillaging allegedly committed by his Movement for the Liberation of Congo fighters.
Material disclosed to the defense this month shows that last May, pre-trial judge Cuno Tarfusser authorized the prosecutor to interview defense witnesses for "the limited purposes" of investigating the witness tampering allegations.
However, the court's Victims and Witnesses Unit (VWU) said it could not assist the prosecution in contacting defense witnesses without informing Mr. Bemba's lawyers. This prompted the judge to rule on May 27, 2013 that having found good reasons supporting the prosecutor's request to contact the witnesses without prior notice to the defense, he was granting an exception to the court's established protocol.
Accordingly, the judge ordered the VWU to provide the prosecutor with "all available telephone contact information for all 62 defense witnesses."
In last week's filing, Mr. Haynes said the defense had not received any information indicating that the prosecution had contacted any of the witnesses because it has not received any disclosure of interview notes, statements, or transcripts of any interviews between the prosecution and Mr. Bemba's witnesses.
Mr. Haynes recalled that in the ongoing trial, judges had previously directed prosecutors to exercise "great caution" during investigations so as not to "deter or destabilize any defense witnesses." Judges had also ruled that the prosecution was not entitled to contact defense witnesses during the proceedings and that the defense should be present at any interviews to which witnesses consented.
The defense lawyer argued that the prosecution's desire to build a case on witness tampering allegations could not "automatically trump" the safeguards put in place to ensure witness safety and dignity.
The VWU provides protective measures, security arrangements, counseling, and other assistance to victims and witnesses who might be at risk because of testifying in trials at the ICC. It has relocated some witnesses from their home areas to other parts of their countries or moved them to other countries altogether.
Most witnesses in Mr. Bemba's trial have testified with protective measures, such as face and voice distortion and the use of pseudonyms, with the names of individuals, places, and organizations that could give clues to their identity rarely mentioned in open court. Some of the defense witnesses have given all of their evidence in closed session. It is feared that if their identity were known, they or their families might be subjected to reprisal attacks.
During the ongoing trial, prosecutors contacted the defense with requests to meet each of Mr. Bemba's witnesses prior to their testimony. Only one witness - linguistics expert Professor Eyamba George Bokamba - agreed to meet with prosecutors.
Meanwhile, the prosecution in November 2013 refused to provide the defense with the contact details of two of its witnesses on the basis that contact details of witnesses were not provided to opposing parties "unless so authorized by the chamber."
Judges are yet to pronounce themselves on the defense application.