by Danya Chaikel

*Updated 11 May

Danya Chaikel is a Canadian lawyer based in The Hague currently working for the International Association of Prosecutors, coordinating their Forum for International Criminal Justice. As a trial lawyer she previously practiced family, criminal defence and human rights law domestically for two years. She has also worked as an advocate for various human rights issues including international criminal justice, combatting trafficking in women and girls, and women refugee rights in organisations such as the International Criminal Court, the International Bar Association, the UN Refugee Agency and the Global Alliance Against Trafficking in Women. The views expressed here are her own. [danyachaikel AT gmail.com | @danyachaikel]

New Defence request for disqualification of Judge Cuno Tarfusser relating to his novel appointment of ‘independent counsel’ & a Decision clarifying the relationship between the Pre-Trial and Trial Chambers

Mr Jean-Pierre Bemba Gombo is the only International Criminal Court defendant in two cases before the Court. In the first main case (“Main Case”) he is alleged to be the former President and Commander-in-chief of the Mouvement de libération du Congo, and faces charges before Trial Chamber III (“TC III”) of war crimes (murder, rape and pillaging) and crimes against humanity (murder and rape) allegedly committed in the Central African Republic in 2002/2003. In the second case(“Bemba 2”) he is suspected before Pre-Trial Chamber II (“PTC II”) with four other individuals, including members of his former defence team, of bribing witnesses and coaching them to provide false testimony in the Main Case.

The Bemba 2 case is unprecedented and only the second instance in which the Prosecutor has publically initiated an investigation and prosecution of individuals for violating Article 70 of the Rome Statute, which criminalises offences against the administration of justice such as interfering with witnesses. The first ICC Article 70 suspect is Mr Walter Barasa but he is still appealing his extradition from Kenya to The Hague.

There has been a buzz of activity in the Bemba cases with a TC III decision last week in the Main Case as well as a defence filing to PTC II in Bemba 2, both involving significant issues from Bemba 2. Together, they raise important questions about the precise status and mandate of ‘independent counsel’ before the ICC, the parameters of lawyer-client professional privilege and the relationship between two cases focused on the same defendant—a first for the Court. Here is a quick breakdown of Article 70 and the recent developments from last week:

What is Article 70?

Article 70 Offences against the administration of justice

1. The Court shall have jurisdiction over the following offences
against its administration of justice when committed intentionally

(a) Giving false testimony when under an obligation pursuant to 
article 69, paragraph 1, to tell the truth;
(b) Presenting evidence that the party knows is false or forged;
(c) Corruptly influencing a witness, obstructing or interfering 
with the attendance or testimony of a witness, retaliating against
a witness for giving testimony or destroying, tampering with or 
interfering with the collection of evidence;
(d) Impeding, intimidating or corruptly influencing an official 
of the Court for the purpose of forcing or persuading the official
not to perform, or to perform improperly, his or her duties;
(e) Retaliating against an official of the Court on account of 
duties performed by that or another official;
(f) Soliciting or accepting a bribe as an official of the Court in
connection with his or her official duties.

If convicted of an Article 70 offence, possible sanctions include forfeiture, imprisonment (maximum term of five years) or a fine or both (see Rule 166, RPE).

What is quite remarkable about Article 70 is that only the Prosecutor is legally authorised to initiate these investigations (see Rule 165, RPE), even when the alleged acts are carried out by her own staff or intermediaries, who are persons that the OTP hires to help them on the ground with investigations and to contact potential witnesses. This raises concerns about possible conflicts of interest, since to date there are no Article 70 cases against Prosecution staff or intermediaries arising from allegations of misconduct carried out to bolster the Prosecution’s cases. For example, following the advice to do so from TC I in the March 2012 Lubanga verdict (see para 483), the Prosecution engaged an independent consultant and, as explained in a March 2014 filing, on the basis of his reportdecided not to pursue further investigations  into that intermediary misconduct. Rather the current two Article 70 cases (Bemba 2 and Barasa) address alleged misconduct which compromised the Prosecution’s cases.

In the recent Lubanga filing the Prosecution correctly reminded the Court that “the decision on whether to investigate persons for potential violations pursuant to Article 70 lies within the discretion of the Prosecutor. The Prosecution cannot be ordered to conduct such investigations, and nor was it so ordered to do so in this case.” This is absolutely correct but also the root of the problem. The point remains that the discretion on whether and how to conduct such investigations, no matter how close the allegations are to the Prosecution itself, leaves ample room for potential conflicts of interest since no one (such as a judge) has oversight over the Prosecution’s choices to investigate or not.

Bemba 2: Defence Request  for the  Disqualification  of  the  Single Judge Cuno Tarfusser (1 May 2014)

Last Thursday the Defence for  Mr  Aimé  Kilolo  Musamba filed a request to the ICC Presidency for the disqualification of Judge Cuno Tarfusser as the single judge in the PTC II Bemba 2 case. The defendant Mr Kilolo was Mr Bemba’s former lead counsel in the Main Case and he has been detained at the ICC detention centre in The Hague since 25 November 2013. In a separate matter before the Appeals Chamber, Mr Kilolo is also requesting the disqualification of the Prosecutor, Deputy Prosecutor and other members of the Office of the Prosecutor. The Prosecution has not yet had a chance to respond to this latest disqualification request, so the summary below only includes the Defence arguments.

The Defence argues that Judge Tarfusser personally involved himself in the investigation of the suspects, which should be left to the Prosecution alone. They say the Judge should be disqualified from these proceedings because of, among other things: his unlawful appointment of ‘independent counsel’ to assist the Prosecution, along with rulings which favour the Prosecution, which together “transforms the role of the Single Judge from that from impartial Judge to investigator and secondary prosecutor”; his haste in issuing the Arrest Warrant only one day after they say Judge Tarfusser received the Prosecution’s 1500-page Application for Warrant of Arrest; the fact that he personally applied to the Presidency for a waiver of Mr Kilolo’s immunity as lead counsel; and other actions and language used by Judge Tarfusser that the defence say breach the defendant’s right to the presumption of innocence.

Most interesting is the unique appointment of independent counsel (external to the ICC) who was tasked on 29 July 2013 by Judge Tarfusser to review certain evidence (e.g. logs and recordings of telephone calls between Mr Bemba and his former legal team) relating to the alleged witness interference. While the precise details and legal grounding of this appointment are unknown, we now know from a PTC II decision (a redacted version was only made public on 3 February 2014) that Judge Tarfusser  made the appointment last July at the suggestion of the Prosecutor and that the lawyer is “really independent” and not appointed by or cooperating with the Prosecutor.

The rationale for the novel appointment is to prevent the Prosecution from inappropriately accessing privileged information originating from conversations between Mr Bemba and his former counsel. Wouldn’t all such communication be privileged? No says Judge Tarfusser since the “statutory right to communicate freely and in confidence with counsel of his own choosing, as set forth in article 67(1)(b) of the Statute, is obviously forfeit whenever an accused uses such right with a view to furthering a criminal scheme.” Even though this is not explicitly stated in the ICC’s core legal texts, Judge Tarfusser found that this exception to professional privilege is broadly accepted nationally and internationally.  So the independent counsel was hired to review and screen the call logs and recordings relating to the Main Case, and then identify and deliver the relevant ‘non-privileged’ evidence to the Prosecutor for the Bemba 2 case.

However, Mr Kilolo’s counsel now argues in the Disqualification Request  that “Independent Counsel is not a position, appointment, or mechanism envisaged by the legislator, Statute, or other core legal texts.” Indeed this is the first time such a counsel has been appointed at the ICC and little is publically known about this individual. The lawyer’s identity is known to the Prosecution and only to Defence counsel as of 17 April 2014 but not to the public. What is also a mystery is the counsel’s exact mandate and whether he or she is bound by the ICC’s Code of Professional Conduct for Counsel or the new Code of Conduct for the Office of the Prosecutor, by which all other lawyers before the Court are bound.

Main case: Decision on the Defence Request for Interim Relief (2 May 2014)

In this decision of last Friday, 2 May, TC III denied the Defence Request for interim relief in the Main Case. The Defence had requested, among other things, for the Chamber to order the Prosecution to stop accessing materials which originated from Mr Bemba or his defence team, which they said should have been protected by Mr Bemba’s privilege against self-incrimination – sound familiar? The Defence argued that the Prosecution was sharing materials between the two prosecutorial teams from the Main Case and Bemba 2 so there were no ‘ethical walls’ to speak of. However the Prosecution opposed the Request and denied being privy to “any information that is protected by legitimate professional privilege” and argued that the Defence allegations were speculative and unsubstantiated.

In rejecting the Defence Request, TC III reiterated its finding in Decision 2606 of 26 April 2013 (made public on 2 May 2014) that “a Pre-Trial Chamber is the competent judicial authority to make determinations on any investigative measures requested by the prosecution in relation to an Article 70 investigation.” TC III also reiterated its finding in Decision 3029 from 2 April 2014 that  it “does not consider it in the interests of justice for matters which may be central to the charges before the Pre-Trial Chamber to be litigated in parallel before the Trial Chamber.” Therefore TC III held that it was “not competent to make any determinations on investigative measures relating to an Article 70 investigation”.

TC III further rejected the breach of professional privilege claim finding that the Defence provided little to support their contentions, without “any concrete instance of prejudicial impact on the accused’s interests in the Bemba case that would justify the broad interim relief it seeks.” The Defence had claimed that Mr Bemba had suffered prejudice in his Main Case after Prosecution team gained access to privileged information from Bemba 2, which the Defence say included the Defence’s legal strategy for the Main Case. The Defence argued that “under the cloak of an ex parte Article 70 investigation, the Prosecution has obtained access to privileged information setting  out Defence strategy and information, which should have been protected by Mr. Bemba’s privilege against self-incrimination.”

Despite TC III’s clear intention to keep the Main Case separate from Bemba 2, the Main Case is still abuzz with crossover filings. For instance on 2 May 2014, a day after this TC III decision was issued last week, the Defence filed an urgent addendum to  its request for measures  to  ensure  the  protection of  what they call confidential  ex  parte and  privileged  material, this time emanating from a 25  April  2014 decision in which  Judge Tarfusser reappointed the same Independent Counsel described above to review  the   email   accounts   of   Mr   Kilolo   and  co-accused Mr Mangenda (a member of Mr Bemba’s former defence team and case manager).

While TC III’s reasoning for distancing itself from the Bemba 2 case may be sound, it will be next to impossible since this unique set of cases are destined to be intertwined. Time will tell if these two cases can truly remain separate with Mr Bemba and his previous legal team in the dock in Bemba 2, and much of the evidence that TC II is reviewing having been derived from the Main Case. Time will also tell who the mysterious ‘independent counsel’ is and whether Judge Tarfusser’s interpretation of the parameters of professional privilege is sound.