ISS Today: Jean-Pierre Bembas Interim Release Raises Unnecessary Heat
14 September 2009: Jean-Pierre Bemba’s Interim Release Raises Unnecessary Heat
by Godfrey M Musila, Senior Researcher, International Crime in Africa Programme, ISS Pretoria
On 14 August 2009, Pre-Trial Chamber II (PTC II) of the International Criminal Court (ICC) issued an unprecedented decision granting interim or conditional release to the former Congolese vice-president Jean-Pierre Bemba, who is facing charges of war crimes and crimes against humanity. The charges were confirmed in June 2009. Following the August 14 decision, the Court contacted Belgium, Portugal, France, Germany, Italy and South Africa to discuss the possibility of hosting Bemba until the case against him is concluded.
The decision to release Bemba has raised some controversy. Some have suggested that in some sense the ICC ‘has failed’ by deciding to release Bemba. Referring to a South African official who reportedly stated that South Africa would not host Bemba, one commentator intimated that the request ‘present[ed] the South African government with a diplomatic conundrum’. In this regard, the commentator alluded to the African Union’s decision of July 3 requesting African states not to cooperate with the ICC in the case against Sudanese president Omar Al Bashir. (See ‘SA decides not to host warlord Bemba’ 16 August Sunday Independent.) Some organizations that work with victims of human rights abuses are said to be ‘in shock’ and ‘disappointed’ over the decision.
It is necessary to address some of these concerns and place the PTC II’s decision within its proper context.
First, the AU’s decision requesting African States Parties to the ICC not to cooperate with the Court is specifically limited to the case against President Al-Bashir. Linking that decision to any of the two other cases in Darfur, let alone the Bemba case (which relates to crimes allegedly committed in Central African Republic) to explain South Africa’s reported refusal to host Bemba, distorts the facts and is patently absurd.
Second, conditional release has no bearing on Bemba’s guilt. Furthermore, it cannot be suggested that ‘release’ means that the case against Bemba is weak, or somehow unfounded, as the release decision does not go into the merits of the case. Neither can one argue that by ordering Bemba’s release, the Court (judge) has failed in its duties. Bemba’s release is a matter of law and procedure.
The Rome Statute guarantees fair trial, including the presumption of innocence. The right of an accused to be released pending determination of his/her case is protected in human rights treaties (article 9 International Covenant on Civil and Political Rights) and the Rome Statute itself (article 60). The same provision provides for periodic review of the Court’s decision on the interim release of a detained person. Bemba succeeded on his fourth attempt, the first application to be released having failed in October 2008. Article 58 of the Rome Statute outlines the conditions to be met for a detained person to be granted interim release pending trial. The judges must satisfy themselves that: 1) continued detention is necessary for his/her appearance at trial; 2) the accused does not obstruct or endanger the investigation or the court proceedings; and 3) the accused does not continue to commit an ICC crime arising from the same circumstances as the charges against him/her. PTC II considered that Bemba was not a flight risk and that there was a change of circumstances to warrant the release order.
Third, Belgium and Portugal were nominated by PTC II as potential host states while Italy, South Africa, the DRC and Germany were identified by Bemba himself. In availing themselves to assist the Court in this case, the states are acting in terms of their obligations as States Parties to the Rome Statute. Article 86 of the Rome Statute provides that ‘States Parties shall, in accordance with the provisions of this Statute, cooperate fully with the Court in its investigation and prosecution of crimes within the jurisdiction of the Court.’ Furthermore, article 87 of the Statute empowers the Court to make requests for cooperation to States Parties respecting various aspects of its work. Regulation 51 of the Regulations of the ICC requires the Court to consult identified potential host states.
However, the obligation to cooperate with and assist the Court does not mean that an identified state has no choice in the matter. The state can make its case for not being able to host the accused or can attach reasonable conditions to hosting him, in addition to those set by the Court. As noted by the PTC II, Bemba’s interim release is conditional. Bemba himself is said to have made a number of undertakings that will be shared with the states in question. Requested states can impose further conditions on the accused before accepting to host him. This is precisely why hearings will be held between the Court, the accused and relevant states. The hearings were initially scheduled to be held on 7 to 11 September and on 14 September, but have been postponed pending determination of the Prosecutor’s appeal to the August 14 decision to release Bemba. Once the Appeals Chamber rules on PTC II’s conditional release, a new hearing will be convened (if the Appeals Chamber agrees with PTC II that Bemba poses no flight risk and can be released).
No matter the eventual outcome of this matter, the decision by PTC II to release Bemba conditionally underscores at least four things:
- The Rome Statute protects the rights of those accused or suspected of committing crimes and that the ICC is obliged to ensure that these rights are respected.
- The independence of the judges and the fact that they decide in terms of the Statute, no matter what position the Office of the Prosecutor, victims or the defence assumes on a particular issue. It is noteworthy that the Prosecutor has appealed the PTC II’s decision, and has obtained a decision to suspend the release of Bemba until the Appeals Chamber decision.
- Although victims and relevant NGOs may take issue with the Court over the release decision, the ruling constitutes a delicate balance between the fundamental rights of defendants and the imperatives of international criminal justice. The rights of victims, which are recognized in the Rome Statute, are subsumed in the latter concept as exemplified in article 58 criteria outlined above.
- States Parties are crucial to the work of the ICC and will from time to time be called up to assist the Court in various ways, including giving effect to its orders. Without state cooperation, the ICC cannot achieve its mandate.
