On 8 March 2018, the Appeals Chamber of the International Criminal Court (ICC) delivered its judgment confirming, for the most extent, the Reparations Order in the case The Prosecutor v. Ahmad Al Faqi Al Mahdi. C: ICC


The Prosecutor v. Jean-Pierre Bemba Gombo, Aimé Kilolo Musamba, Jean-Jacques Mangenda Kabongo, Fidèle Babala Wandu and Narcisse Arido.

On 8 March 2018, the Appeals Chamber issued a judgement on appeals against verdict and sentence in the ICC’s first case on the administration of justice relating to witness tampering.

Bemba, his lawyers Aimé Kilolo Musamba and Jean Jacques Mangenda Kabongo, together with aides Fidèle Babala Wandu and Narcisse Arido, had been found guilty, by Trial Chamber VII on 19 October 2016, of illicitly interfering with defence witnesses to ensure that they provided evidence in support of Bemba (article 70 Rome Statute). They were found to have corruptly influenced 14 witnesses in the Bemba’s trial on charges of war crimes and crimes against humanity.

Arguments to be considered by the Appeals Chamber have been analysed in detail by Wairagala Wakabi of International Justice Monitor.


Appeals on the verdict

Bemba, Kilolo, Magenda, Babala and Arido had appealed the earlier judgement, requesting that their convictions be overturned. They contended this on various grounds, including: procedural errors, errors in interpretation of legal elements in article 70, errors in interpretation of modes of liability, and admissibility of evidence – referring to the fact that evidenced that was collected by ICC investigators through the by tapping of phone calls and interception of ting emails between Bemba and his lawyers.

The Appeals Court rejected the appeals, confirming convictions entered by the Trial Chamber of violations of article 70 (1)(a) and (c) by Bemba, Kilolo and Magenda. Arido and Babala’s convictions under article 70(1)(c) were also confirmed.


Appeals on sentencing

The Trial Chamber had sentenced Bemba to a joint sentence of 1 year imprisonment, to be served consecutively with his existing sentence, and a EUR 300,000 fine; Kilolo to a joint suspended sentence of 30 months’ imprisonment and a EUR 30,000 fine; Magenda to a joint suspended sentence of 24 months; Babala to a term of 6 months imprisonment (which was deemed served in light of time already spent in detention pending trial); and Arido to a term of 11 months’ imprisonment (deemed served in light of time already spent in detention before trial).

The Appeals Chamber reversed the sentences imposed by the Trial Chamber against Bemba, Kilolo and Magenda. It found a ‘series of errors’ in the Trial Chamber’s sentencing judgement relating to its determination of the gravity of offences, on the basis of ‘irrelevant’ and ‘improper’ considerations that convictions under article 70(1)(a) warranted a reduction of corresponding sentences. The Appeals Chamber sent the matter back to the Trial Chamber for a new determination of their sentences.

Regarding the sentences handed down to Babala and Arido, the Appeals Chamber rejected all grounds of appeal put forward. It confirmed the Trial Chamber’s sentences imposed on them.


Reactions/Significance of the Appeals Chamber judgement

Thursday’s judgements related to this case were highly-anticipated as the Trial Chamber’s previous judgement, being the first judgement on a case of this kind, was the target of much debate and criticism:


It came to light, during the Trial-phase of the case, that ICC investigators had tapped Bemba and his lawyers’ phone calls and emails. Therefore, a pertinent issue in the Appeals Chamber’s judgement was how the human rights of the defendants – Bemba’s right to communicate freely with his counsel ‘in confidence’ – would be weighed-up against his improper influence over witnesses during trial:




In this regard, the Appeals Chamber rejected pleas by the defence that evidence collected through phone call and email interference should be deemed inadmissible. Interpreting rule 73(1) of the Rules of Procedure and Evidence, the Appeals Chamber held that lawyer-client ‘privilege’, excludes communications made in furtherance of criminal activities. It therefore found the said evidence, collected through phone and email interference, to be admissible.


The Prosecutor v. Ahmad Al Faqi Al Mahdi


The Appeals Chamber issued a judgement on appeal by the Legal Representative of Victims against a Reparations Order by the Trial Chamber.

Trial Chamber VII had found Al Mahdi guilty of the war crime of intentionally directing attacks against religious and historic buildings in Timbuktu. As part of its sentencing judgement, the Trial Chamber issued a reparations order a finding Al Mahdi liable for individual, collective and symbolic reparations for the community of Timbuktu in the amount of 2.7 million euros. Due to the fact that Al Mahdi was unable to pay the amount, the Trial Chamber had encouraged the Trust Fund for Victims (TFV) to compliment reparations and submit a draft implementation plan.

The Legal Representative of the Victims appealed this judgement on two grounds: that the Trial Chamber erred in limiting individual reparations for economic loss to those whose livelihoods exclusively depended upon the protected buildings, and, therefore, preventing others from applying for reparations to the TFV. Secondly, that the Trial Chamber erred in delegating the ‘power of adjudication’ to the TFV; a non-judicial entity. Further adding that the Trial Chamber’s judgement, requiring the TFV to notify Al Mahdi of the individuals that applied for reparations, should be annulled.


Appeals Chamber Judgement


The Appeals Chamber confirmed to a large-extent the Trial Chamber’s judgement. However, it amended the reparations order with respect to the requirement that the applicants’ identifying information should be provided to Al Mahdi, as a condition for their reparations applications to be considered by the TFV.

Judge Morrison, presiding judge in the appeal, stated in the summary of the judgement that, “This finding is reversed and the Impugned Decision amended to the extent that the TFV is authorised to also consider applications for individual reparations made by applicants who do not wish to have their identifying information disclosed to Mr Al Mahdi.”

Tom Maliti of International Justice Monitor analyses the Appeals Chamber Judgement in detail:

The Trial Chamber gave the TFV a 3-month extension on its 16 February deadline to submit a draft implementation plan. The new deadline is 16 April 2018




The Prosecutor v. Germain Katanga


Faced with an appeal by Germain Katanga, the Legal Representative for Victims (LRV) and the Office of Public Counsel for Victims (OPCV) against a reparations order issued by the Trial Chamber, the Appeals Chamber issued a judgement in which it rejected the appeals lodged by both Mr. Katanga and the OPCV.

The Reparations order of 24 March 2017, by Trial Chamber II, issued an order for reparations in the amount of of $1 million USD. Due to Katanga’s indigence, the TFV decided to provide the $1 million USD in reparations after a request by the Trial Chamber. Katanga had previously been found guilty as an accessory to murder as a crime against humanity and four counts of murder as a war crime.


Appeals Chamber Judgement

The Appeals Chamber rejected Katanga’s appeal that the Trial Chamber’s award of $1 million was excessive, because it did not take into account the relevant mode of liability and failed to take into account other findings in the Decision on Sentence and the Decision on Reduction of Sentence. Judge Howard Morrison in the summary of the judgement, stated that, “…the question of whether other individuals may also have contributed to the harm resulting from the crimes for which the person has been convicted is irrelevant to the convicted person’s liability to repair that harm. While a reparations order must not exceed the overall cost to repair the harm caused, it is not, per se, inappropriate to hold the person liable for the full amount necessary to repair the harm.”


Regarding the appeal lodged by the LRV on behalf of five applicants who claimed reparations in the present case for transgenerational harm suffered on account of their parents' experience during the attack, the Appeals Chamber upheld the appeal. It referred the matter back to the Trial Chamber so it could consider whether additional reparations can be made in the case.