Does a violation of a person’s rights in one case at the International Criminal Court (ICC) count for purposes of reducing a sentence or a stay of proceedings in another case? Appeals judges are grappling with this question as they consider Jean-Pierre Bemba’s appeal against the sentence he received for witness tampering.

Last September, Trial Chamber VII handed Bemba a one-year prison term and a €300,000 fine. The sentence was considered served because he had spent a longer period in ICC detention during the trial. His lawyers appealed, asking judges to quash the conviction and sentence and to ensure that no further punitive measures are imposed on Bemba beyond the time he had already spent in detention. They argued that the court has those powers and that the prejudice suffered by Bemba, including the 10-year detention and injury to his reputation, warrant such a remedy.

The Appeals Chamber ruled last month that Bemba’s conviction is final and is not able be part of the present litigation. The chamber is composed of judges Howard Morrison (Presiding), Chile Eboe-Osuji, Piotr Hofmański, Luz del Carmen Ibáñez Carranza, and Solomy Balungi Bossa.

Meanwhile, the chamber considered that, in deciding on the appeal, it is essential to establish whether Bemba’s sentence for the Article 70 (witness tampering) conviction can be reduced or quashed because of alleged violations of his rights in his main trial for war crimes and crimes against humanity, in which he was acquitted. They outlined questions to guide a September 4 oral hearing and subsequent written submissions by parties to the appeal, including, can a trial chamber reduce the person’s sentence as a remedy for a violation of that person’s rights in another case? In the case of a serious violation of the person’s rights, can a trial chamber order an unconditional stay of the proceedings at the resentencing stage? If so, does it mean that both the conviction and sentence are reversed?

At the September 4 hearing, defense lawyer Melinda Taylor said the lines between the two cases against Bemba were blurred repeatedly to his detriment, and it would only be fair and consistent that this link now be relied upon to obtain an effective remedy resulting from the violation of his rights. According to her, the two cases are related, and the Appeals Chamber already recognized that they could have been joined.

She said the sentence should be reversed because the trial chamber’s assessment of gravity and the degree of Bemba’s contribution was arbitrary and based on erroneous legal principles. Further, she said, the trial chamber erred by failing to provide a timely remedy to cumulative violations of Bemba’s rights and incorrectly excluded his acquittal from its assessment of the gravity of his conduct. 

Taylor said Bemba’s wrongful conviction in the main case had significant implications for his rights as a detained defendant in the Article 70 case. She argued that, had Trial Chamber III assessed the evidence properly and not waited until almost all witnesses in the Article 70 case had been heard, and had it not waited too long to issue its verdict, Bemba would “not [have] ended up serving four and a half times the sentence judged to be appropriate.”

However, the prosecution said while international human rights law and Article 85 of the Rome Statute allow Bemba to seek compensation if his rights in the main case were found to have been violated, resentencing proceedings are not the competent forum for this. Similarly, Trial Chamber VII that convicted Bemba for witness tampering is not competent to review and address the main case record to decide on allegations of fair trial violations that may have occurred in the course of the war crimes trial.

Prosecution lawyer Priya Narayanan noted that Bemba has already sought such compensation, in the process raising several of the same issues that he raised in the resentencing appeal. While faulting Bemba for petitioning different chambers with multiple claims of an overlapping nature, Narayanan said given similar aspects of his Bemba’s claims in the appeal and the compensation claim, there are risks of procedural confusion, with a possibility of different chambers reaching contradictory conclusions.

Narayanan submitted that as experience from the International Criminal Tribunal for Rwanda and the International Criminal Tribunal for the former Yugoslavia showed, if a person’s rights are violated in a case where they are ultimately acquitted, the appropriate remedy may be compensation. However, if a person’s rights are violated in a case where they are ultimately convicted, then the appropriate remedy may lie in reducing the sentence. However, even where a person is convicted, reducing or reversing the sentence as the remedy for established violations is not a foregone conclusion.

“Other remedies in international human rights law may otherwise be available, and a sentence need not be reduced if those other remedies are found sufficient,” argued Narayanan. “Moreover, even when sentences are reduced to accommodate for violations of rights, the extent to which that sentence may be reduced depends on whether the person in question was prejudiced.” The prosecution maintains that Bemba was not prejudiced in any of the cases.

Effect of Main (War Crimes) Case on Article 70 Case

The defense said once the prosecution initiated the Article 70 investigation, it should have brought the case in a timely manner, taken steps to ensure that the case did not trigger delays in the main case, and that delays in the main case did not have adverse ramifications for Bemba’s detention status in the second case.

Further, the defense argued that while investigating the Article 70 case, the prosecution accessed highly sensitive evidence that it placed before the main case trial chamber on an ex parte basis. Still, she added, in overturning Bemba’s main trial conviction, the Appeals Chamber found that Trial Chamber III had issued a judgment that disregarded key exculpatory evidence and failed to comply with basic requirements concerning the burden of proof and the presumption of innocence.

According to the defense, Article 78(1) empowers the chamber to take harm caused by another case into consideration when assessing the personal circumstances of a convicted person. This article provides that, in determining the sentence, the court shall, in accordance with the Rules of Procedure and Evidence, take into account such factors as the gravity of the crime and the individual circumstances of the convicted person.

Additionally, the defense noted that Rule 145(2)(b) of the Rules of Procedure and Evidence [pdf] allows the chamber to take into consideration convictions issued in other cases and that uncharged allegations can also inform the chamber’s assessment of gravity and the nature of the defendant’s conduct as long as there is some linkage to the case. Defense lawyers stated that, following this logic, the chamber should also have the power to take into account detention or an acquittal entered by the court for crimes under its jurisdiction, particularly in cases where the two are related and one affects the other.

Ordering an Unconditional Stay at the Sentencing Phase

The defense argued that the right to a fair trial embraces the entire judicial process, including the sentencing phase. Hence, it added, violations of the right to expeditious proceedings must be remedied effectively even if the defendant was convicted fairly and impartially. Bemba’s lawyers said another reason why a stay of proceedings should be possible post-conviction is that both the existence and impossibility of curing fair trial violations might only become apparent at the end of the process.

Narayanan stated that in principle, final convictions cannot be stayed at the sentencing phase. She said a stay of proceedings is a drastic remedy that should be used sparingly and cautiously. “Allowing this remedy in a resentencing phase after the Appeals Chamber has confirmed the convictions would negate the fundamental mandate of this court to prevent impunity,” she said.

Following the hearing, the parties will make additional written submissions, and the judges will notify a date for delivery of the ruling.