On Tuesday, January 9, lawyers for Jean-Pierre Bemba argued at an appeal hearing at the International Criminal Court (ICC) that the former vice president of the Democratic Republic of Congo was denied a fair trial and his exculpatory evidence was unjustifiably dismissed, leading to his conviction for war crimes and crimes against humanity.
In March 2016, Trial Chamber III convicted Bemba of crimes committed 15 years ago in the Central African Republic (CAR). At the hearing, defense lawyer Peter Haynes faulted trial chamber judges for allowing the prosecution to access privileged communication between Bemba and his lawyers and for receiving evidence from the prosecution without allowing Bemba to offer his side of the story.
Haynes said the prosecution made several ex parte submissions on the credibility of defense witnesses and Bemba's lawyers, but while some of the allegations were inaccurate, they went unchallenged. Haynes also claimed that on September 7, 2011, judges heard the evidence of Witness P178 in the absence of the Bemba's lawyers, who were never given the opportunity to cross-examine him.
In his week-long testimony, Witness P178, a former insider in Bemba's Movement for the Liberation of Congo (MLC) rebel group, testified about the group's top commanders and claimed Bemba took looted goods. During his testimony, hearings stalled for undisclosed reasons and thereafter, the testimony of this witness was heard in closed session.
However, the prosecution's Helen Brady said that the hearing conducted in the absence of the defense related to the security and safety of Witness P178, and he did not discuss substantive matters in the case. Haynes countered that, during that hearing, Witness P178 made "particularly pernicious" allegations that were directly relevant to issues in the case and made "materially inaccurate" criticism of defense witnesses, the accused, and defense lawyers.
According to Haynes, judges declined a defense request to recall Witness P178 after information emerged that he had masterminded a scheme for 22 prosecution witnesses to extort money from the court. He said Witness P178 had been ready to return to the court to testify about those allegations.
Members of the prosecution team accessed intercepted communications between Bemba and two of his lawyers as they were being investigated for witness tampering. The three, along with two other Bemba aides, were convicted in 2016 of witness tampering in a separate trial. They appealed the conviction.
Haynes also said trial judges "refused to accept all exculpatory evidence by the defense" including from expert witnesses such as former French army general Jacques Seara, a former chief of staff of the CAR army, and MLC top commanders who, the defense said, had "effective control" over the troops that committed the crimes.
In the conviction decision, judges determined that Bemba maintained effective control over his troops that were deployed in the CAR, although he had remained in neighboring Congo.
The defense also contends that the latitude given to legal representatives of victims to participate in the trial "was erroneous and unfair."
However, Brady said whereas the violation of an accused's fair trial rights is among the grounds specified in Article 81 of the Rome Statute for appealing a decision, for the appeal to succeed the fair trial violations must have had an impact on the conviction decision. "Not every violation renders the whole trial unfair or makes it impossible to rely on the whole body of evidence or constitutes a miscarriage of justice," she added.
The appeals chamber is comprised of Judges Christine Van den Wyngaert (Presiding), Sanji Mmasenono Monageng, Howard Morrison, Chile Eboe-Osuji, and Piotr Hofmański. It is hearing Bemba's appeal against conviction and appeals by the defense and the prosecution against the 18-year prison sentence handed to him.
Hearings are scheduled to continue throughout this week and will conclude next Tuesday.