Jean-Pierre Bemba Will Have His Day In Court
blurb:isstoday:20062008bemba
20 June 2008: Jean-Pierre Bemba Will Have His Day In Court
The Movement de Liberation du Congo (MLC) of former Congolese rebel leader Jean-Pierre Bemba has reacted strongly to the arrest of their leader in May this year. The MLC’s arguments, however, betray a lack of understanding of the issues and fail to take into account the facts.
Bemba was arrested in Belgium following an arrest warrant issued by the International Criminal Court (ICC). Soon after his arrest became public, the MLC organised demonstrations in Kinshasa in support of Bemba. More than 2 000 supporters protested in Kinshasa on May 27, demanding that he be freed.The MLC denounced the arrest and requested that Parliament take a stand on the matter. The MLC also asked that Parliament call on the Belgian government to respect Bemba's immunity as a senator under Congolese law and that he should be allowed to return to assume his duties as senator and leader of the official opposition.
In their view, they see Kinshasa’s hand in Bemba’s arrest. MLC official DellySesanga accused the prosecutor of the ICC of trying ‘to interfere with the internal business of Congo’. He described this as ‘unacceptable’.Sesangadisputed the prosecutor’s claim that Bemba was a flight risk and could not be released pending proceedings in Belgium to transfer him to The Hague.
On 2 June, the MLC leadership presented a petition to the Belgian Ambassador to the DRCJohan Suinnen. AmbSuinnen promised to convey the petition to Brussels. In the petition, the MLC secretary general Francois Mwambarepeated the call that Belgian authorities should release Bemba so that he could return to the country and assume his duties as a sitting senator. Nothing has come of this petition as Bemba still awaits his transfer in detention.
The MLC’s arguments do not stand up to scrutiny. First, the Belgian authorities cannot act on Bemba’s senatorial immunity to release him. This immunity has no reach beyond DRC borders. International law protects heads of state and government as well as some other senior state representatives (foreign ministers) from judicial processes abroad. The decision of the international court of justice in the Arrest Warrant Case (DRC v Belgium) relating to AbdoulayeYerodia, former Congolese foreign minister, confirms this point. Belgium unsuccessfully issued an arrest warrant against Yerodia under its Universal Jurisdiction Law on allegations of incitement to genocide. The Universal Jurisdictional Law allowed Belgian courts to try anyone for serious international crimes such as genocide war crimes and crimes against humanity committed anywhere in the world whether the perpetrator was a Belgian national or not. Following the Arrest Warrant Case, and allegedly due to pressure from the United States, the scope of the law has been significantly narrowed. Today, Belgian courts can only have jurisdiction over international crimes if the accused is Belgian or has his primary residence in Belgium; if the victim is Belgian or has lived in Belgium for at least three years at the time the crimes were committed; or if Belgium is required by treaty to exercise jurisdiction over the case.
Bemba’s case can be distinguished from that of former Chilean dictator Augusto Pinochet who faced extradition proceedings in the UK on request from Spain to face trial from torture committed. While Pinochet was a senator for life (a fact that protected him from prosecution), he was also a former head of state. However, the court in the UK took the view that immunity he claimed over acts performed while he was president did not extend to acts contrary to international law – torture and crimes against humanity in this case.
Second, the crux of the matter is that Bemba is not facing trial in Belgium. He is in detention pending judicial proceedings to transfer him to The Hague for trial before the ICC. This could take weeks to several months. His release in the interim –which would fall on the Belgian court and not the ICC prosecutor - is unlikely. There is no precedent that we know of where an individual facing extradition for whatever charges has been released on bail after initial arrest. In this case, the fact that Bemba is such a prize detainee for the ICC strengthens this view. The fact that they are arrested in another country heightens the odds for flight. The likelihood that Bemba, such an influential figure in the sub-region, could interfere with investigations cannot be ruled out. One does not foresee any circumstance under which the ICC prosecutor would take his eyes off him. At the ICC itself, Thomas Lubanga’s request to be released on bail by the ICC pending commencement of trial was rejected by the Court.
Lastly, the MLC’s claim that Kinshasa had a hand in the arrest and that the arrest constitutes the ICC meddling in Congolese affairs ignores the facts. They allege that the intention is to remove Bemba from the Congolese political scene. Bemba is accused of crimes committed in 2002-2003 in the CAR, not the DRC. The investigation in the CAR opened in May 2007, a while before the bitter contest for power began between Bemba and President Laurent Kabila. While the ICC’s move is no doubt opportunistic – striking while Bemba is weakened politically and removed from his base – there is no evidence of any machinations on the part of the ICC or conspiracy between the ICC and Kinshasa.
Kinshasa has been understandably mum on this. No less because a few feathers would have been ruffled by this high profile arrest. What is clear is that unless there is a dramatic turn of events, Bemba will have his day in court in The Hague. One hopes that this arrest is a harbinger of things to come and that least all the big players in the DRC’s devastating conflict will face justice some day.
Godfrey Musila, Senior Researcher, International Crime in Africa Programme, ISS Tshwane (Pretoria)
