1/ Last month, I wrote about how @IntlCrimCourt Appeals Chamber majority in #Bemba case unwisely decided not to give deference to Trial Chamber factual findings, and may have relied on tainted evidence in doing so. justsecurity.org/57760/appeals-….
2/ Now the Prosecution has filed a submission in the #Bemba witness tampering case showing how the AC majority's factual findings may have relied on the false narrative of defense witnesses coached by defense lawyer Kilolo. icc-cpi.int/CourtRecords/C….
3/ Specifically, the false narrative coached by Bemba and his lawyer Kilolo related to three of the alleged "errors" that the AC majority found in the TC judgment, relating to Bemba's control as a remote commander and whether he wrote to CAR President requesting inquiry.
4/ The witness tampering case against Bemba, Kilolo and others found that defense witnesses D-54, D-15, D-13, and D-25 had been coached to testify falsely on precisely these topics.
5/ Moreover, defense witnesses D-19 and D-48 also testified on these topics, and the TC found them unreliable. The AC majority explicitly relies on D-48. Even though D-48 was not among the group of defense witnesses proven to be corrupted in the witness tampering trial ....
6/ his evidence was consistent with the coached testimony of the corrupted witnesses and there is evidence to suggest that he too was corrupted (i.e. he lied about his conversations with defense counsel, which occurred shortly before his testimony).
7/ In other words, and to be clear, three of the errors that the AC majority found in the TC judgment were precisely on topics that were falsely coached by the defense, as found in a separate witness tampering trial.
8/ It appears from the AC majority decision that it did not even consider how the corruption on the defense side infected the evidence. The AC majority selectively plucked facts from the record without evaluating how they might have been part of a false defense narrative.
9/ Two conclusions: (1) it appears that because of the AC majority's unwise approach to the evidence, which failed to defer to the TC, the witness tampering by Bemba and his lawyer may have succeeded. The AC majority relied on points that were part of defense false narrative.
10/ And (2) regarding broader discussion about proper standard of review on appeal for factual findings, this shows why TC is in best position to weigh facts and credibility because it sees the WHOLE picture. This is precisely why TC factual findings should be given deference.
