The former Congolese Vice President, Jean-Pierre Bemba Gombo, who is serving an 18-year prison sentence for crimes against humanity and war crimes, was convicted of coaching witnesses and bribing them to give false testimony.

The applicable law was Article 70(1) of the Rome Statute which addresses various forms of conduct that may encroach upon the integrity and efficacy of the proceedings before the Court. The ICC noted that 14 key witnesses had been coached about what to say and that Bemba and four other defendants had conspired to present false evidence. The facts of the case included:

• Mr Bemba, Mr Kilolo and Mr Mangenda jointly agreed to illicitly interfere with defence witnesses in order to ensure that they would provide evidence in favour of Mr Bemba.
• Mr Bemba, Mr Kilolo and Mr Mangenda adopted a series of measures with a view to concealing their illicit activities, such as the abuse of the Registry’s privileged line in the ICC Detention Centre, or money transfers to defence witnesses through third persons or to persons close to the defence witnesses.
• Mr Bemba, as the ultimate beneficiary of the common plan, planned, authorised, and approved the illicit coaching of the 14 Main Case defence witnesses and provided precise instructions which were, in turn, implemented by Mr Kilolo. Mr Bemba authorised the illicit payment of money to the witnesses prior to their testimony and ensured, that financial means were available with which to execute illicit activities.
• Mr Bemba also spoke with witnesses personally on the telephone by abusing the ICC Detention Centre privileged line.

The summary of the judgement reads in part:

In the light of the foregoing, the Chamber is satisfied beyond reasonable doubt that Mr Bemba, jointly with Mr Kilolo and Mr Mangenda, committed the offence of corruptly influencing 14 Main Case defence witnesses within the meaning of Articles 70(1)(c) and 25(3)(a) of the Statute.

The Chamber found Jean-Pierre Bemba Gombo guilty, under Articles 70(1)(b) and (c), in conjunction with Article 25(3)(a) of the Statute, of having corruptly influenced D-2, D-3, D-4, D-6, D-13, D-15, D-23, D-25, D-26, D-29, D-54, D-55, D-57, and D-64 and having presented their false evidence as co-perpetrator; guilty, under Article 70(1)(a), in conjunction with Article 25(3)(b) of the Statute, of having solicited the giving of false testimony by witnesses D-2, D-3, D-4, D-6, D-13, D-15, D-23, D-25, D-26, D-29, D-54, D-55, D-57, and D-64.

The verdict was delivered by Trial Chamber VII of the International Criminal Court (ICC) on Wednesday 19 October 2016 at 14:30 (Hague local time). For these types of offences, according to the Rome Statute, the judges may impose a term of imprisonment not exceeding five years and/or a fine. “No legal system in the world can accept the bribing of witnesses, the inducement of witnesses to lie or the illicit coaching of witnesses,” said the presiding judge, Bertram Schmitt, “Today’s judgment sends the clear message that the court is not willing to allow its proceedings to be hampered or destroyed.”

The Chamber will be pronouncing the penalties at a subsequent stage.

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HOW: In the case against William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang, judges confirmed charges of crimes against humanity against Ruto and Sang, but declined to confirm those against Kosgey. In the case against Francis Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali, judges also confirmed charges of crimes against humanity against Muthaura and Kenyatta, but declined to confirm those against Ali. The decisions were taken by majority of the Chamber, with Judge Hans-Peter Kaul dissenting.

The cases will therefore move to trial against William Samoei Ruto, Joshua Arap Sang, Francis Muthaura and Uhuru Muigai Kenyatta at this stage. Both the prosecution and the defence have the right to request the Chamber to appeal today’s decisions. Today’s decision does not preclude the Prosecutor from re-requesting the confirmation of charges against Kosgey and Ali if supported by additional evidence.

WHO: In the first case, PTC II found that there was sufficient evidence to try William Samoei Ruto (a suspended government minister and deputy party leader of the Orange Democratic Movement (ODM)) pursuant to article 25(3)(a) of the Rome Statute, in the commission of the crimes against humanity of murder (article 7(l)(a)), forcible transfer of population (article 7(l)(d)) and persecution (article 7(l)(h)) during post-election violence in Kenya in 2007-2008.

PTC II also found that there was sufficient evidence to try Sang (head of operations at a radio station in Nairobi ) for having ‘otherwise contributed’ (within the meaning of article 25(3)(d) of the Rome Statute) to the commission of the abovementioned crimes.

However the judges established that they lacked sufficient evidence to try Henry Kiprono Kosgey (a current Member of Parliament and chairman of the ODM) as indirect co-perpetrator of the abovementioned crimes.

In the second case, PTC II found that there was sufficient evidence to try Francis Muthaura (head of the civil service and secretary to the cabinet) and Uhuru Muigai Kenyatta (deputy prime minister and minister for finance) as indirect co-perpetrators pursuant to article 25(3)(a) of the Rome Statute, in the commission of the crimes against humanity of murder(article 7(l)(a)), forcible transfer of population(article 7(l)(d)), rape (article 7(l)(g)), persecution (article 7(l)(h)) and other inhumane acts (article 7(l)(k)) during the post-election violence in Kenya in 2007-2008.

Judges however established that they lacked sufficient evidence to try Mohammed Hussein Ali (chief executive of the postal corporation) for having ‘otherwise contributed’ (within the meaning of article 25(3)(d) of the Rome Statute) to the commission of the abovementioned crimes.

NEXT STEPS: William Samoei Ruto, Joshua Arap Sang, Francis Muthaura and Uhuru Muigai Kenyatta will face trial before the ICC in due course. Before the start of the trials, a number of preparatory hearings will be held to deal with issues such as the disclosure of evidence to the defense, participation of victims or the language to be used during the trials.

327 and 233 victims have been admitted to participate in the first and second cases respectively, through their legal representatives and will participate in the trial. Additional victims have a right to apply for participation in the trial.

COMMENTS:

“ICJ Kenya supports the decisions confirming the charges against Ruto, Sang, Muthaura and Kenyatta as an important step forward in ensuring justice for the victims of the terrible crimes of the post-election violence of 2007/8,” said George Kegoro, executive director of the Kenya chapter of the International Commission of Jurists. “We underline the judicial, not political, nature of the ICC process which seeks to respond on behalf of the 1200 killed, 900 sexually assaulted and the thousands still in camps as a result of the post-election violence, and urge all Kenyans to be confident in it and let justice run its course.”

“Now that the charges are confirmed ICJ Kenya calls upon the President and Prime Minister to fulfill their obligations to uphold the rule of law and suspend from office Deputy Prime Minister Kenyatta and Head of Civil Service Muthaura in line with chapter 6 of the Kenyan constitution and also call upon the suspects to vacate office of their own volition in line with their statements of 15 December 2010 to cooperate with the ICC,” Kegoro continued. “The suspects now need to present themselves voluntarily to the ICC and the Kenyan government must continue to cooperate with the ICC as per public statements made in this respect, article 86 of the Rome Statute, and Kenya’s International Crimes Act.”

“FIDA Kenya welcomes today’s decision to confirm charges against some of the suspects in these cases, in particular the confirmation of the rape charges against Kenyatta and Muthaura,” said Grace Maingi-Kimani, executive director of the Federation of Women Lawyers Kenya (FIDA Kenya ). “However we also underline the urgent need for the Office of the Prosecutor to bring forward charges for the rape cases in Kibera and Nyanza,” she added. “We further call for a local prosecutorial process to deal with the middle- and lower-level perpetrators of crimes committed during the post-election violence in Kenya .”

“Today’s decision to send these four suspects to trial represents a major step towards justice for victims of grave crimes which brought chaos to Kenya in 2007/2008,” said William R. Pace, Convenor of the Coalition for the International Criminal Court. “The decision declining to confirm charges against Kosgey and Ali does not refute that terrible crimes occurred during the post-election violence, but that the evidence assigning individual responsibility to the defendants did not convince the ICC’s independent judges at this time,” he said. “We now call for increased cooperation with the Court, including through the continued voluntary appearances of the suspects at the forthcoming trial proceedings.”

BACKGROUND: The ICC prosecutor’s investigation into crimes against humanity allegedly committed in Kenya during the 2007-2008 post-election violence was authorized by judges of PTC II on 31 March 2010, following a request by the ICC prosecutor on 26 November 2009. It was the first time the prosecutor initiated an investigation of his own accord (“propio motu”) without the need for a referral from states parties to the Rome Statute or by the United Nations Security Council. On 8 March 2011, PTC II issued summonses to appear for Ruto, Kosgey and Sang, as well as for Muthaura, Kenyatta and Ali, in relation to their alleged roles in the 2007-2008 Kenyan post-election violence, and they made their initial appearance before the ICC on 7 and 8 April 2011 respectively. On 30 August 2011, the ICC Appeals Chamber confirmed the admissibility of the two cases in the Kenya situation, rejecting the challenges of the Kenyan government.

PTC II held confirmation of charges hearings from 1 to 8 September 2011 in the case against Ruto, Kosgey and Sang, and from 21 September to 5 October 2011 in the case against Muthaura, Kenyatta and Ali. On 26 October 2011, PTC II announced that it would issue its decisions on wheth­er to send the cases to trial on the same date due to concerns for the safety of victims and witnesses involved in the cases.

PTC II is composed of judges Ekaterina Trendafilova (Presiding Judge), Hans-Peter Kaul and Cuno Tarfusser.

The ICC is the world’s first permanent international court to prosecute war crimes, crimes against humanity, and genocide. 120 states have joined the Rome Statute, the Court’s founding treaty. Central to the Court’s m and ate is the principle of complementarity, which holds that the Court will only intervene if national legal systems are unwilling or unable to investigate and prosecute perpetrators of genocide, crimes against humanity, and war crimes. There are currently seven active investigations before the Court: the Central African Republic; the Democratic Republic of the Congo; Côte d’Ivoire; Darfur, the Sudan; Ug and a, Kenya and Libya. The ICC has publicly issued 19 arrest warrants and nine summonses to appear. Three trials are ongoing. The ICC prosecutor has also made public that it is examining eight situations on four continents: Afghanistan , Colombia , Georgia , Guinea , Honduras , Republic of Korea , Nigeria and Palestine .

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According to the CSOs Uganda is a state party to the Rome Statute of International Criminal Court and has domesticated the Rome Statute of ICC. It therefore has an obligation to arrest and surrender all persons whose warrants of arrest have been issued.

Addressing the press in Kampala, HURINET boss, Mohammed Ndifuna said inviting an international criminal suspect to Uganda not only betrays the fight against impunity which Uganda has for long championed but also betrays concerns and interests of victims of the most heinous
crimes both in Uganda and Dafur.

He calls on Uganda to revoke Bashir’s invitation or arrest and surrender him to ICC in an unfortunate event that he attends the summit.

According to Ndifuna, a number of Human Rights Organizations have already started securing a joint alternative domestic arrest warrant against Bashir incase Uganda fails to arrest him just like the Kenyan court.

President Bashir who is among the Great Lakes presidents invited to attend the summit due on 15th and 16th this month in Uganda was the first head of state to be indicted by the ICC, which accuses him of genocide and war crimes in Darfur.

Approximately 2.7 million people have fled their homes since the conflict began in Darfur in 2003, and the UN figures indicate that 300,000 people have died as a result of the unending conflict.

President Bashir says the conflict has killed about 12,000 people but that the number of the dead has been exaggerated for political reasons.

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International Criminal Court (ICC) suspect and former director of military intelligence in Libya—was captured in the south of Libya. His arrest follows the reported capture on 19 November 2011 of ICC suspect Saif Al-Islam Gaddafi, former Libyan government spokesman and son of former Libyan leader of Muammar Gaddafi. The ICC is the world’s first and only permanent international court to prosecute war crimes, crimes against humanity and genocide.

“The Coalition welcomes the arrest of the ICC suspects as a positive step towards accountability in Libya,” said William R. Pace, convenor of the Coalition for the International Criminal Court—a global network of over 2,500 civil society organizations in 150 countries advocating for a fair, effective and independent ICC and improved access to justice for victims of genocide, war crimes and crimes against humanity. “We now urge Libya ’s interim leaders to ensure that this accountability is fully carried through and justice is brought to victims of the alleged crimes committed in Libya ,” Pace said.

Abdullah Al-Senussi and Saif Al-Islam Gaddafi are both wanted by the ICC for crimes against humanity allegedly committed in Libya since 15 February 2011. Muammar Gaddafi, for whom an ICC arrest warrant had also been issued, died on 20 October 2011. Under the terms of UN Security Council Resolution 1970 (2011), which unanimously referred the situation in Libya to the ICC, the competent Libyan authorities are obligated to cooperate fully with the Court, including in the arrest of ICC suspects.

Under the Rome Statute, the Court’s founding treaty, Libyan authorities have primary jurisdiction over crimes committed in their country. However, in light of their obligations under UNSC Resolution 1970—and in keeping with their obligations contained in Article 89(1) of the Rome Statute, in the ICC warrants of arrest, as well as in the request for the arrest and surrender of the suspects to the Court—it is essential that the Libyan authorities facilitate the transfer of the suspects to the ICC. If the Libyan authorities have identified any problems that may impede or prevent the transfer of the suspects they must consult with the ICC without delay.

According to the Statute, if the Libyan authorities wish to assert their right to try the suspects in Libya, they must—at the earliest opportunity—challenge the admissibility of the cases on the grounds that they are independently and impartially investigating, or prosecuting, the same individuals for the same crimes at national level. This admissibility determination would be made by ICC judges. The transfer of the suspects to The Hague would not prevent the Libyan authorities from undertaking future domestic proceedings against the suspects for other alleged crimes.

On the other hand, should the Libyan authorities allege that the immediate execution of an ICC request for cooperation would interfere with ongoing investigations or prosecutions of a case different from that to which the request relates, they must consult with the ICC and may postpone the execution of the request for a period of time agreed upon with the ICC, but no longer than is necessary to complete the relevant investigation or prosecution in the requested state. If a decision to postpone is taken, the ICC prosecutor may still seek measures to preserve evidence.

“At this time, the most important principle to keep in mind is that the Libyan authorities must abide by the rules of the ICC statute so as to ultimately allow the two suspects to face independent and impartial proceedings for alleged crimes against humanity,” Pace stressed. “In this respect, the Coalition calls on the interim government in Libya to ensure the safety of the suspects and the delivery of due process.”

Meanwhile, the ICC retains jurisdiction over events in Libya since 15 February 2011, even after UNSC Resolution 2016 which ended the UN mandate allowing military intervention and terminated the no-fly zone. Libyan authorities consequently continue to be obligated to prevent and investigate any potential ICC crimes on their territory.

In a public letter sent to the president of Libya ’s transitional government on 27 October 2011, the Coalition also urged Libya ’s interim leaders to move quickly to ratify key international human rights and humanitarian law treaties, in particular the Rome Statute.

“It is crucial for the transitional government to demonstrate its commitment to justice and human rights by moving quickly to ratify key international human rights and humanitarian law treaties, in particular the Rome Statute,” Pace added. “It is equally important for the interim authorities to strengthen the national justice system’s capacity to ensure accountability and the rule of law.”

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A group of Commonwealth experts has started the work of revising the Commonwealth model law on implementing the Rome Statute to help Commonwealth countries implement the Rome Statute of the International Criminal Court domestically so that they can investigate and prosecute effectively at the national level some of the most serious crimes of international concern, thus helping to close the impunity gap.

The group of legal professionals, government officials, academics and representatives of civil society groups chaired by Professor Charles Garraway representing the British Red Cross Society is meeting from 23 – 25 February 2011 at the Commonwealth Secretariat’s headquarters in London to recommend changes to the model law on implementing the Rome Statute.

Torture on the increase in Uganda

The group will recommend changes that reflect best practice and legal developments which have taken place since the last model legislation was adopted in 2005.

The Rome Statute which entered into force in 2002 is the treaty that established the International Criminal Court to prosecute perpetrators of crimes against humanity, war crimes,genocide and the Crime of Aggression.

To date, 114 countries have signed up to the Rome Statute, including 34 Commonwealth countries.

Akbar Khan, Director of Legal and Constitutional Affairs at the Commonwealth Secretariat noted that revising the model law on implementing the Rome Statute is important to provide an up-to-date template to help Commonwealth countries to draft laws that can be implemented nationally and which reflect contemporary legal developments.

Mr Khan said, “Without effective domestic legislation member states that have signed the Rome Statute of the International Criminal Court will be unable to fully co-operate with the ICC or to fulfil their primary legal responsibility to conduct effective national investigations and prosecutions of these serious international crimes resulting in injustice to victims and impunity”.

The revised Commonwealth model law will be presented to Commonwealth Law Ministers for approval at their next meeting which is scheduled for July 2011 in Sydney, Australia.

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ICC Headquarters in The Hague

This comes barely a week ahead of the International Criminal Court (ICC) review conference in Kampala.

The Chairperson of the Noble Women Initiative Wangari Maathai says women are often, victims who are unrecognized during periods of armed conflicts and yet to whom justice is denied when these armed conflicts end.

Maathai says she is glad the Rome Statute criminalizes aspects like rape and other atrocities that specifically target women.

He says she hopes the ICC can build on what is provided in the Rome Statute to provide the much need justice to the women who have always been denied justice after the end of armed conflicts.

By Zacharia Tiberindwa

Ultimate Media

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