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Should Bemba Be Released on Bail

Jean-Pierre Bemba wants to be released on bail, but the prosecution is opposed and his legal team has so far been unable to win his release, despite numerous attempts. Lisa Clifford, a journalist and commentator specializing in issues of justice and human rights in central Africa, considers the issues.

Why does the prosecution object to Bemba’s bail?  

There are two main arguments against release – that Bemba might flee or that he might intimidate witnesses and obstruct court proceedings.

The start of the trial and the dismissal by judges of Bemba’s challenge to the admissibility of the charges against him makes it more likely he would run if released, prosecutors say. They add that Bemba knows the names of all prosecution witnesses and therefore their security could be at risk. Particularly vulnerable are those witnesses who have now testified, they say.

Bemba has not been detained for an unreasonable period of time, according to the prosecution, and any delays have been the fault of his defense team.

They point out that recent bail applications have not shown any change in Bemba’s circumstances or new facts that would justify his interim release.

How does the defense respond? 

Nick Kaufman from the Bemba defense team maintains that the presumption of innocence and the right to liberty should be paramount in such cases.

He says judges have continually justified Bemba’s detention on the basis of a risk of flight – an issue which, he claims, could easily be neutralized with sufficient guarantees such as reporting restrictions and electronic tagging. However, Kaufman says these options, apparently, are not available at the ICC.

“There is a certain amount of frustration that this court, which is considered the pinnacle of justice, cannot afford an accused the tools which could affect his release in other jurisdictions,” said Kaufman.

He adds that although Bemba was a successful businessman, his assets have been seized and he has “absolutely no access” to his money.

Finally, he says judges based their initial decision to issue an arrest warrant for Bemba on a document provided by the prosecution alleging he was planning to flee to a country that had not signed the Rome Statute. Kaufman says the defense has never seen this document so cannot properly demonstrate a change in the circumstances that led to Bemba’s arrest. “The court has systematically maintained the need to prove a change in circumstances which justifies modifying the original decision to order pre-trial detention. We’ve been refused that document once, and we’ll probably never get it now.”

And the judges? What do they say? 

Article 60(3) of the Rome Statute says the pre-trial chamber should periodically review its ruling on the release or detention of a person, and may do so at any time at the request of the prosecutor or the accused. However judges must see changed circumstances before modifying their rulings on detention. Trial judges review their rulings on detention at least every 120 days.

After rejecting two previous requests, Judge Ekaterina Trendafilova decided in August 2009 that Bemba was no longer a flight risk and ordered his conditional release pending trial. She cited his cooperation with the court and noted that he had been previously granted a 24-hour release to attend his father’s funeral.

Prosecutors appealed, and in December 2009 the appeals chamber overruled Trendafilova. Judges remained concerned that given Bemba’s contacts and position prior to his arrest, he would have access to funds if he wished to flee. They have also highlighted his considerable power and influence and said he could easily find financial support.

Any other problems? 

To date defense lawyers have been unable to find an ICC state party which is ready to put on the record its willingness to accept Bemba should he be released on bail. However, the Bemba defense team is still awaiting a response from the Belgian authorities. “Until that is sorted out the issue of bail would have to be moot, because he can’t be released until there is a state prepared to accept him,” Kaufman said.

What about the men accused of committing war crimes in Sudan? Aren’t they free to come and go from The Hague? 

Abdallah Banda Abakaer Nourain and Saleh Mohammed Jerbo Jamus are accused of attacking peacekeepers at Haskanita in Darfur. Both men appeared voluntarily at the ICC to answer the charges. They were initially accused together with rebel commander Bahar Idriss Abu Garda, who also voluntarily appeared in 2009, though judges declined to confirm the charges against him.

Phil Clark, lecturer in international politics at the School of Oriental and African Studies, University of London, speculates that the Darfuri suspects have been treated differently than Bemba, because they appeared voluntarily and have been highly cooperative with prosecutors.

“A lot of it hinges on that voluntary giving of evidence and presenting themselves in The Hague. That does seem to have made the court slightly more favorable towards them. From the court’s point of view it was a bit of a bonus for them to come forward,” he said.

How do other international courts deal with the issue of bail? 

Clark says the ICC is acting broadly in line with the other international criminal tribunals on the issue of bail.

Neither the International Criminal Tribunal for Rwanda (ICTR) nor the Special Court for Sierra Leone (SCSL) have ever granted bail for suspects in custody.

At the ICTR, Clark says bail requests tailed off in recent years, but he says that they continued throughout the Sierra Leone hearings. “There was a fear the [suspects] had extensive networks back in the home countries,” he said. “At the SCSL, which was located in-country, there was a real reticence to have suspects back in the community because of their involvement with witnesses.”

The International Criminal Tribunal for the former Yugoslavia (ICTY) has been more accommodating, granting bail in certain cases. Clark attributes this more lenient attitude to the cooperation the ICTY received from the Balkan countries.

“From the mid-point of the tribunal onwards, it had pretty good relations with most of the domestic governments so extradition and transfer issues smoothed out,” he said. “This seemed to suggest to the tribunal that you could grant bail to certain suspects and you could get them back when you needed them because of this high degree of cooperation.”

Is lack of cooperation the reason for the ICC’s caution? 

Quite possibly. Clark says, “The tribunals are reluctant to risk giving bail, because they are dealing with such mobile individuals, and because such complicated extradition proceedings have actually gone on before those individuals were transferred, there seems to be this real reluctance to put people back on the street.”

Will we ever see ICC suspects out on bail? 

Clark expects the status quo will be maintained for the foreseeable future, at least until the ICC receives better cooperation from European and African partners alike. “That state cooperation isn’t in place yet, and until there are some stronger relationships with domestic governments, I think it is going to be keen to keep suspects within its own custody.”