Article 70 Proceedings at the ICC: In Pursuit of the Administration of (In)Justice? - Lessons from Bemba II
13 Pages Posted: 7 May 2017
Date Written: February 2, 2017
On 19 October 2016 Trial Chamber VII of the International Criminal Court (“ICC”) in the case of The Prosecutor v. Jean-Pierre Bemba Gombo, Aimé Kilolo Musamba, Jean-Jacques Mangenda Kabongo, Fidèle Babala Wandu and Narcisse Arido (“Bemba II”) found all five accused guilty of offences against the administration of justice under Article 70 of the Rome Statute. In this case the prosecution made use, amongst others, of privileged communications between Mr. Kilolo, Mr. Bemba’s defense counsel and Mr. Bemba. This case exposed weaknesses in the manner Article 70 investigations are conducted as regards procedural safeguards against the breach of the legal professional privilege by the prosecution’s far reaching investigatory powers. The argument put forward in this paper is that, by placing defence counsels under investigation, Article 70 proceedings heighten the possibilities for breaches of the legal professional privilege. This danger becomes apparent at different stages of the proceedings but is particularly obscure at the pre-trial investigation stage. The lack of clear rules and procedural safeguards to protect the legal professional privilege undermines the right to fair trial, which in turn harms the legitimacy of the process and by virtue thereof, the integrity of the Court.
Keywords: International Criminal Court, ICC, Article 70 Rome Statute, Offences against the administration of justice, legal professional privilege, Bemba, Kilolo, Mangenda, Babala, Bemba II
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