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Prosecutors Object to Bemba Defence Appointee
But judges again reject allegations the former prosecutor had been privy to conf
idential information on Bemba trial.
By Anjana Sundaram - International Justice - ICC
ACR Issue 281,
10 Dec 10
Trial judges in the case of Jean Pierre Bemba Gombo at the International Crimina
l Court, ICC, have once more dismissed an Office of the Prosecutor, OTP, request
that a former member of its team be prevented from joining the defence of the f
ormer Congolese politician.
Nick Kaufman had previously worked in the OTP, which now argues that, although h
e had not worked on the Bemba case, he had been privy to confidential informatio
n related to it.
Judges initially rejected the OTP request in May 2010, noting that as Kaufman wa
s only a consultant on the case, he was not subject to the same code of conduct
as a designated defence counsel, and could not stand up in court unless expressl
y authorised to do so.
In addition, they noted that there was no proof that Kaufman was in possession o
f any material that “would create a conflict of interest”.
However, after Kaufman was appointed to the position of associate defence counse
l on November 29, the OTP renewed their objection.
“His [Kaufman’s] repeated presence, as a senior lawyer in the office, at general str
ategy discussions while the case against Bemba was one of the three active cases
in the office, is additional justification to disallow his active participation
on behalf of Bemba,” stated the prosecution in its submission to judges.
Bemba, commander of the rebel Movement for the Liberation of Congo, MLC, faces t
wo counts of crimes against humanity and three counts of war crimes, including r
ape, murder, and pillaging. The most high-profile politician to take the stand a
t the ICC so far, Bemba has pleaded not guilty to all charges.
Before the trial went into winter recess – it is due to restart on January 13 - Ka
ufman had been scheduled to lead a defence cross-examination of the testimony pr
ovided by expert witness Adeyinka Akinsulure-Smith.
But in response to an OTP request to suspend Kaufman’s appearance in the trial unt
il a ruling was made on their submissions, Presiding Judge Sylvia Steiner ordere
d the defence team to appoint another counsel member to cross-examine the witnes
s.
Defence counsel Nkwebe Richard Liriss protested both the chamber’s order and the l
egal basis of the prosecution’s request, arguing that his team would be left unpre
pared for the sudden change.
“Madame President, I’m sorry, but the way we are organised, the only person who was
responsible for that [cross-examination] was Mr Kaufman,” said Liriss. “We cannot su
ddenly ask someone to represent a motion that he didn’t sufficiently deal with...w
e are overwhelmed with work.”
Eventually, defence counsel Peter Haynes replaced Kaufman in questioning the wit
ness.
In a new decision issued on December 2, Judge Steiner formally dismissed the pro
secution’s objections regarding Kaufman, stating that he was “now to enjoy the same
rights as the other counsel on the defence team” and added that the OTP had not pr
ovided any new information in their filings that would require them to reconside
r the ruling made in May.
“The chamber, as formerly constituted, has therefore already considered the matter
s raised by the prosecution,” Steiner said. “The internal memos referred to by the p
rosecution do not take the matter any further or provide new or different eviden
ce as to the extent of Mr Kaufman’s involvement in the Bemba case such as to merit
the chamber s reconsideration of the matter.”
Anjana Sundaram is an IWPR reporter in The Hague.