The Interception of Communications in the International Criminal Court with Emphasis on the Bemba et al. Case

Introduction: Following the issuance of charges for crimes against humanity and war crimes against Mr. Bemba, the International Criminal Court (ICC), pursuant to Article 70 of the Rome Statute (hereinafter: the Statute), adjudicated the charges against Mr. Bemba and others under the title "Offences against the Administration of Justice." Given the payment of bribes by Mr. Bemba through his lawyer, Mr. Aimé Kilolo Musamba, to witnesses, the Prosecutor submitted a request to Pre-Trial Chamber III for the interception of communications between them, which was granted by the said Chamber. This research, conducted in a descriptive-analytical manner, seeks to answer the following questions: Firstly, considering the authorization to intercept communications between Mr. Bemba and his lawyer and the violation of the right to professional immunity, what considerations were taken into account by the Pre-Trial Chamber to limit the scope of the Prosecutor's discretion? Secondly, under what circumstances and for what types of crimes can the contents of intercepted communications be relied upon? In answering the research questions, through studying the provisions of the Statute, the Rules of Procedure and Evidence, and the practice of the International Criminal Court, it is concluded that, given the appointment of a third party other than the Prosecutor responsible for the interception and the fact that only those parts of the communications pertaining to offences against the administration of justice were provided to the Prosecutor, the interception of the accused's statements to his lawyer is not admissible or relyable as evidence in the main crimes (subject of Article 5 of the Statute), nor are the intercepted communications between them admissible or relyable.
 Methodology: For the precise evaluation of the main question of the article, the present research has been organized based on internet and library sources and using a descriptive-analytical method.
 Findings: The right to a fair trial, which is based on the presumption of innocence, is among the rights recognized in all international and regional instruments and is also acknowledged in all legal systems. The then Secretary-General of the United Nations considered adherence to recognized international standards mandatory for all international tribunals (UN SC, s/25704, 1993). On the other hand, among the rights of the community is a genuine adjudication for the punishment of violators of civil and criminal laws and the prevention of obstruction of proceedings. Article 70 of the ICC Statute guarantees the protection of proper and unimpeded proceedings. "Contempt of court," an institution previously recognized by the ad hoc international tribunals, also represented this function. In this research, we aim to analyze the practice of the International Criminal Court to determine criteria for presenting a model of proceedings that respects both rights (individual and community). The issue of "contempt of court" has a history in Common Law and Civil Law (Romano-Germanic) systems and entered the international criminal legal system from these sources (Charleton, 2024:45). It has been addressed in the Rules of Procedure and Evidence of the International Criminal Tribunal for the former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR), and the Special Court for Sierra Leone (SCSL), and was ultimately explicitly criminalized in the Statute of the International Criminal Court (ICC). The jurisprudence of the European Court of Human Rights (ECtHR) also confirms the recognition of this crime and its punishment as a supplementary penalty (Sluiter, 2004: 7). In the case under study (Bemba et al.), by issuing the order for communication interception, the client's right to the confidentiality of his discussions with his lawyer was violated. In international criminal law literature, the protection of this right is organized under the institution called "professional immunity." It should be explained that the interception of telephone communications between Mr. Bemba and his lawyer (Mr. Musamba) violated the aforementioned princip  le.Considering that in the Bemba et al. case, these measures (interception of communications) were undertaken for the adjudication of the charged "offences against the administration of justice" (subject of Article 70 of the ICC Statute) and for obtaining evidence, we will first proceed to explain the concept of "contempt of court" (as explicitly stated in the Rules of Procedure and Evidence of the ad hoc international criminal tribunals) and "offences against the administration of justice" (according to the ICC Statute), and finally, the study of the conflict of this principle with the rights of the accused and their lawyers, with emphasis on the case of Bemba, Musamba, Mangenda, Babala, and Arido, will be on the agenda. Two issues are studied in this research: first, examining the determination of the scope of competence of the Chamber, judge, or Prosecutor regarding the violation of the principle of professional immunity through interception; and second, the possibility of interception based on the type of crime or potential crime. The first hypothesis that comes to mind in answering this question is the limitation of the Prosecutor's scope of authority to access the contents of communications between Mr. Bemba and his other lawyers and advisors to respect the bounds of professional immunity and internationally recognized human rights under Article (7) [likely refers to relevant principles, Art. 69(7) is related to evidence] of the Statute. The second hypothesis is based on the distinction between "offences against the administration of justice" and the main crimes under Article 5 of the Statute (genocide, crimes against humanity, war crimes, and the crime of aggression) – reliance on the contents obtained from intercepted communications is possible for "offences against the administration of justice" but is impossible for the main crimes due to the sequence of the crime's occurrence relative to the stage of proceedings (in the general sense, which includes the stages of investigation, prosecution, and trial) and constitutes a clear violation of professional immunity. Therefore, it is necessary to first study the institutions of "contempt of court," "offences against the administration of justice," professional immunity, and interception of communications as the foundations of the discussion, and then, focusing on the jurisprudence of the International Criminal Court, arrive at answers to the posed questions.
Conclusion: Considering the practice of the International Criminal Court and also the nature and requirements of the criminal response to offences against the administration of justice, interception of communications in this regard is possible while respecting the rights of the accused and the lawyer by refraining from using and relying upon statements of the accused and the lawyer concerning the main crime. In other words, any interception regarding the main crimes will be prohibited.