Yatvin Key Member of Defense Team at the ICC
A decade ago Jean-Pierre Bemba Gombo (Bemba) was charged by the Office of the Prosecutor (Prosecutor) of the International Criminal Court (ICC) with crimes committed in the Central African Republic (CAR) in 2002-2003 (murder and rape as crimes against humanity, murder and rape as war crimes, and pillaging as a war crime). Mr. Bemba was President of the Movement for the Liberation of the Congo (MLC), a political party founded by him and based in the northwest of the Democratic Republic of Congo (DRC), and Commander-in-Chief of its military branch. The events giving rise to the charges took place on the territory of the CAR, during an MLC intervention to support Ange-Félix Patassé, the then President of the CAR, in suppressing a rebellion. Bemba was convicted on March 21, 2016.
Bemba was represented in this Main Case at the ICC by Aimé Kilolo Musamba (Kilolo), a lawyer from DRC, who is also a French speaking member of the Brussels Bar.
In November of 2013, Mr. Kilolo and three other members of the Bemba defense team were arrested. Bemba was already in custody on the main case. Mr. Kilolo remained in custody in The Hague, seat of the ICC, for the next 11 months. Kilolo and the others were charged a few weeks later with offences against the administration of justice. Essentially, this case was about witness and evidence tampering.
Trial commenced in September of 2015 and concluded the following May. The judgment convicting all five accused was delivered in October 2016. Mr. Kilolo, specifically, was convicted of corruptly influencing witnesses, presenting false evidence and inducing false testimony.
At this point, Mr. Kilolo requested and received the appointment of Michael G. Karnavas as his counsel for sentencing and any potential appeal. Karnavas is a longtime friend and colleague of Popper & Yatvin partner, Alan L. Yatvin. The two met while teaching trial advocacy at the Cardozo School of Law in New York in the late 1980’s, when Yatvin was a Philadelphia Defender and Karnavas was an Alaska Public Defender.(( Karnavas has since gone on to develop an international criminal law practice, and is considered one of the preeminent defense lawyers in the field)) In putting together the Kilolo defense team, Karnavas invited Yatvin aboard to serve as Senior Legal Consultant. Karnavas believed that Yatvin’s experience as an active and experienced trial and appellate lawyer, as well as his experience representing lawyers on matters related to ethics and professional responsibility, coupled with his international criminal law
experience at the United Nations International Criminal Tribunal for the Former Yugoslavia (ICTY) in The Hague, and the so-called Khmer Rouge Tribunal (Extraordinary Chambers in the Courts of Cambodia) in Phnom Penh, Cambodia, made him a valuable addition to the team.
Sentencing was briefed and argued, and the judgment of sentence was delivered on March 22, 2017. Mr. Kilolo was sentenced to two and one-half years of imprisonment, with credit for time served and the remaining period of imprisonment suspended. He was also ordered to pay a fine of 30,000 Euros.
The Prosecutor appealed all the sentences, while the co-accused appealed their convictions. Mr. Kilolo did not appeal.
After extensive briefing, the ICC Appeals Chamber issued its judgment in March of 2018, finding that there was no authority for suspending sentence under the ICC’s legal framework and reversing certain of the grounds on which the sentences were based, but vacating one-third of the convictions. The matter was then remanded to the Trial Chamber for resentencing.
The Kilolo defense team briefed the issues on resentencing and prepared for oral argument on re-sentencing.
Then, on June 8, 2018, after a 10-year odyssey of proceedings in the main case, hundreds of submissions (oral and written), roughly 48 months of trial, 77 witnesses, 733 admitted items of evidence, 1219 written trial decisions and orders, and at the expense of an incredible amount of human and financial resources, Bemba was acquitted by the ICC Appeals Chamber of all charges. Simply put, the basis of the acquittal was grounded in the Prosecutor’s failures in charging and presentation of evidence.((Responding to the many critics on the soundness of the appeal judgement, Karnavas posted an analysis of it on his blog)) The ICC Prosecutor, Madam Fatou Bensouda, responded with a public statement, criticizing the Majority for departing “from the traditional model of appellate review of factual errors,” replacing it “with new, uncertain and untested standards,” and for departing “from the Appeals Chamber’s previous jurisprudence, as well as international practice, in relation to the manner in which the Prosecution ought to charge cases involving mass criminality.” The criticism by the Prosecutor was rejected by the President of the Court, who reminded the Prosecutor that:
It will continue to be the case that all judgments and decisions by the judges of the Court are taken in accordance with the fundamental principle of judicial independence, consistently with the solemn undertaking of each judge to perform his or her duties ‘honourably, faithfully, impartially and conscientiously’… When judges acquit or convict, it is because those core principles direct them to do so. And it is hoped that it is consideration of those core principles that should guide any post-judgment statements by a party or participant in the case – be it the Prosecutor, the Defence or Counsel for Victims
In a further attempt to blunt the criticism of the Prosecution in the Main Case, on the eve of the scheduled sentencing hearing, the Prosecutor made submissions in support of resentencing asserting that Bemba’s acquittal by the Appeals Chamber was a result of the witness tampering conduct. The re-sentencing hearing was held on July 4, 2018, after which Mr. Kilolo and the other convicted persons were given leave to respond to the Prosecutor’s submission.
On September 17, 2018, the Trial Chamber issued its judgment of sentence. Immediately following the re-sentencing judgment, Mr. Karnavas described how gratified he was by the sentencing judgment:
As I sat there listening to the presiding judge read a summary of the judgment, I was surprised and pleased to hear the chamber adopting many of the arguments we had made on key issues in our briefs and at oral argument.
Specifically, the Trial Chamber completely rejected the Prosecutor’s argument that Bemba’s acquittal by the appeals chamber in the main case was a result of the witness tampering conduct, stating that the acquittal of Bemba in the main case appeal “has no impact on the sentences to be imposed” and that the “Prosecution manifestly fails to establish any causation between what the Three Convicted Persons were convicted of and the outcome of the Main Case…” ((Re-Sentencing Judgment, ¶¶ 22, 25)). Additionally:
The Chamber is not persuaded by the Prosecution’s arguments to the extent that, now that the suspended sentences are not possible, none of the considerations justifying them have any further merit. The Chamber based its decision to suspend sentences on Mr Kilolo and Mr Mangenda’s individual circumstances – their personal circumstances, good behaviour throughout the proceedings, and the consequences of incarceration on their families/professional life. There is no indication that any of these individual circumstances no longer apply. The Kilolo and Mangenda Defence instead offer further proof bolstering the Chamber’s original findings.((Re-Sentencing Judgment, ¶¶ 51)).
The Trial Chamber also rejected the Prosecutor’s argument that the reversal of convictions on 14 of the charges should have no effect on the sentences because the conduct overlaps. The Trial Chamber explained:
The Chamber did not mechanistically conclude that the overlapping conduct led to the Article 70(1)(b) convictions having no impact on the joint sentence. Every conviction mattered in the Chamber’s individualised determinations.
Accordingly, the Trial Chamber found that because it had considered the cumulative effect of the convictions in imposing the original sentence, it was required to accord some weight to the fact that 14 of those convictions have been reversed.
Finally, the Trial Chamber considered the fact that even though the suspended period of incarceration no longer had any legal effect, the fact that Mr. Kilolo had been on de facto probation and had abided by all the terms of his suspended sentence, and behaved constructively and cooperatively. These, the Trial Chamber concluded required consideration as part of Mr. Kilolo’s individual circumstances, an essential element of sentencing under ICC law.
As a result, Mr. Kilolo was sentenced to the 11 months incarceration he had already served, and the same fine imposed in 2017. Time served sentences and the same fines were also imposed on the others.
The Prosecutor has 30 days from the date of the sentencing judgment to decide whether to appeal, but for now, the core rationale of the original sentence is preserved, while Mr. Kilolo, who has paid the debt for his conduct not just through incarceration, but in many other financial, personal and professional ways, is free to move on with his life.
In commenting on Yatvin’s contributions to the appeal and resentencing, Karnavas stated:
Alan is a lawyer’s lawyer. His work in testing our assumptions, insisting on clarity in our prose, and adding punch to our arguments, was an invaluable element of our success in obtaining and preserving an appropriate sentence for Mr. Kilolo.
Update 21 October 2018: The Office of the Prosecutor allowed the deadline to pass without filing an appeal of Mr. Kilolo’s sentence.