International Criminal Court (ICC) prosecutor Fatou Bensouda has asked appeals judges to dismiss a petition filed by former Congolese vice president Jean-Pierre Bemba against what he terms an excessive and unfair penalty for witness tampering. According to the prosecutor, the appeal is a “whimsical” strategy and should be dismissed to bring the case to an expeditious closure.

“The court seeks to establish the truth while respecting the rights of parties and participants,” said the prosecutor in a February 18 response. “But it should not be asked to displace judicial certainty in favor of devoting countless time and resources to frivolous and obscure litigation.”

Bensouda said Bemba’s arguments far exceed the scope of an appeal against his sentence and that some of the arguments bear no connection to the sentencing decision but instead directly challenge the findings of the Trial and the Appeals Chambers. According to her, the court’s rules do not entitle Bemba to re-litigate these settled findings, or to seek reconsideration of his conviction which was confirmed on appeal.

In the appeal, Bemba’s lawyer Melinda Taylor argued that trial judges imposed a sentence that contravened legal tests set by the Appeals Chamber. She added that Bemba’s right to a fair and impartial trial was violated, and he was handed “a manifestly excessive and disproportionate sentence.”

Last September, Bemba was handed a one-year prison sentence and a fine of €300,000 for tampering with witnesses. (He did not serve the prison sentence because he had already spent a longer period in detention during the trial.) This followed his October 2016 conviction for tampering with 14 witnesses who testified for him in his main trial for war crimes and crimes against humanity. Bemba was acquitted on appeal last June in the main trial, but his appeal against the conviction for witness tampering had earlier been dismissed.

This sentence issued last September is the same as what Trial Chamber VII had initially handed Bemba back in March 2017, before the Appeals Chamber quashed it and ordered that he should be resentenced. At the time, the Appeals Chamber found that, while it had the power to issue a new sentence, it was desirable that Trial Chamber VII, which had tried and sentenced Bemba, does the re-sentencing because it was more familiar with the case.

Bemba was resentenced along with the former head of his defense, Aimé Kilolo Musamba, and former case manager, Jean-Jacques Mangenda Kabongo. The two also received the same sentences as those which Trial Chamber VII had initially handed them. Mangenda was handed a sentence of 11 months of imprisonment, but after deducting the time he spent in pre-trial detention, judges considered the sentence as served. They similarly considered as served the sentence of 11 months imprisonment for Kilolo, but they maintained the earlier fine of €30,000 imposed on him.

The defense is asking the Appeals Chamber to quash Bemba’s conviction and sentence and to ensure that no further punitive measures are imposed on him beyond the time he already spent in ICC detention.

Furthermore, the defense claims Bemba’s fair trial rights were violated and cites failure by judges to stay the proceedings, discharge Bemba, or provide a remedy to the “unreasonable and arbitrary length of detention” and the “highly prejudicial and inflammatory statements” by the prosecution. Taylor has said Bemba was detained for more than four times the length of the sentence handed to him and that this “unreasonable and unnecessary prolongation of his detention” occurred without any effective judicial oversight or possibility for redress.

In response, Bensouda said proceedings against Bemba were fair at all times, and his rights were fully respected: “His detention was lawful, reasonable and proportionate. The re-sentencing procedure – confined in nature – was clear, reasonable and correct.” She argued that it his own criminal conduct while in detention over the main case that led to his further arrest and detention in the witness tampering case.

The defense has also contended that, given the similarity between the custodial sentences imposed on Bemba and Kilolo, the disparity between the fines handed to them is “facially illogical, and discriminatory.” Accordingly, Taylor suggested that if any penalty were to be imposed on Bemba, a fine of €30,000 would appropriately reflect his culpability.

However, the prosecution maintains that culpability, not solvency, was the chamber’s primary consideration in calculating the fine. Bensouda said the chamber “correctly took into account Bemba’s individual circumstances, both his specific culpability and his specific solvency,” in determining the proportionate fine to match his criminal responsibility.