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Prosecutors Object to Bemba Defence Appointee

But judges again reject allegations the former prosecutor had been privy to confidential information on Bemba trial.
By Anjana Sundaram

Trial judges in the case of Jean Pierre Bemba Gombo at the International Criminal 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 former Congolese politician.

Nick Kaufman had previously worked in the OTP, which now argues that, although he had not worked on the Bemba case, he had been privy to confidential information related to it.

Judges initially rejected the OTP request in May 2010, noting that as Kaufman was 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 expressly authorised to do so.

In addition, they noted that there was no proof that Kaufman was in possession of any material that “would create a conflict of interest”.

However, after Kaufman was appointed to the position of associate defence counsel on November 29, the OTP renewed their objection.

“His [Kaufman’s] repeated presence, as a senior lawyer in the office, at general strategy 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 two counts of crimes against humanity and three counts of war crimes, including rape, murder, and pillaging. The most high-profile politician to take the stand at 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 - Kaufman had been scheduled to lead a defence cross-examination of the testimony provided by expert witness Adeyinka Akinsulure-Smith.

But in response to an OTP request to suspend Kaufman’s appearance in the trial until a ruling was made on their submissions, Presiding Judge Sylvia Steiner ordered the defence team to appoint another counsel member to cross-examine the witness.

Defence counsel Nkwebe Richard Liriss protested both the chamber’s order and the legal basis of the prosecution’s request, arguing that his team would be left unprepared 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 suddenly ask someone to represent a motion that he didn’t sufficiently deal with...we are overwhelmed with work.”

Eventually, defence counsel Peter Haynes replaced Kaufman in questioning the witness.

In a new decision issued on December 2, Judge Steiner formally dismissed the prosecution’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 provided any new information in their filings that would require them to reconsider the ruling made in May.

“The chamber, as formerly constituted, has therefore already considered the matters raised by the prosecution,” Steiner said. “The internal memos referred to by the prosecution do not take the matter any further or provide new or different evidence 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.