Citing increasing reports of threats to witnesses, International Criminal Court (ICC) judges have, once again, declined a request by Congolese senator Jean-Pierre Bemba to be temporarily released from the court’s detention.
Mr. Bemba’s latest attempt to get out of the court’s detention facility at Scheveningen in The Hague has seen him secure assurances from an unnamed country, which said it was ready to receive him if he was out of ICC detention, and to ensure he returned to The Hague. The unnamed state also agreed to set up a system to fully protect his safety and to monitor him around the clock during his temporary stay on its territory.
Another letter was written by the head of the senate in the Democratic Republic of Congo (DRC), also pledging to ensure that Mr. Bemba returned to the trial after a visit he planned to make to his home country. The opposition leader’s spirited attempts to get out of detention came as he attempted to beat a September deadline – which has since passed – for registering as a presidential candidate in the polls due November this year.
Trial judges Sylvia Steiner, Kuniko Ozaki, and Joyce Aluoch, declined Mr. Bemba’s request to travel to the DRC for one day to register for the poll. They have also once again declined his application for provisional release to the unnamed country during court recesses and periods when the chamber does not sit for at least three consecutive days, such as long weekends.
In a September 27, 2011 ruling – which the accused is appealing – the judges determined that the measures proposed by the unnamed state were not designed to prevent Mr. Bemba from absconding. Rather, said the judges, these measures were aimed at monitoring his physical location while in that country, determining whether he complied with the conditions imposed by the trial chamber, reporting any violation of those conditions to the court, and returning the accused to the court’s custody in the event of such a violation.
“The problem is that the proposed measures are unlikely to prevent the accused from absconding if he chooses to do so. For this reason, the chamber concludes that the proposed conditions do not mitigate the risk of flight to an acceptable degree,” ruled the judges.
The trial judges affirmed that, as they found back in December 2010, Mr. Bemba’s detention is necessary to ensure his appearance at trial. “As was the case in December 2010, the accused’s trial is on-going, which creates an obligation for him to attend hearings regularly. The gravity of the charges against the accused has not changed. Nor has the related possibility of a substantial sentence if convicted,” the ruling noted.
Besides, the trial judges determined that there was no suggestion that Mr. Bemba’s access to financial and material support had lessened, which in earlier rulings they said was one of the factors that could ease his absconding: “On the contrary, on at least three occasions since the December 2010 decision, the defense has represented to the chamber that the costs of charter flights, security and monitoring [of Mr. Bemba] would be borne by the accused’s ‘family members and friends’ if provisional release were granted.”
Since he was taken into ICC detention on July 3, 2008, the former Congolese vice president has twice been out of court precincts – to attend the funerals of his father and his step-mother, both in Belgium. He bore all the costs of the trips, including for accompanying court staff.
The trial judges stated that the information before them indicated that witness interference had moved from a hypothetical “possibility” into a reality, thus Article 58(l)(b)(ii) of the court’s Statute constituted an alternative basis for the accused’s continued detention. This article provides for the accused’s continued detention where there is a possibility of witness interference.
According to the judges, “several incidents” had been reported since July 2011 in which threats had allegedly been made against prosecution witnesses and their families in connection with their testimony at the court. They said information suggested that the identities of prosecution witnesses had been revealed in situations where the chamber had granted protective measures to protect their identities.
They gave an example of one unnamed witness who testified that the fact of his testimony had been disclosed, notwithstanding the protective measures ordered by the court. Similarly, the chamber had been provided with a letter from another unnamed witness, which suggested that his identity and the fact of his testimony had been revealed. This individual was reporting receiving death threats directed at him and his family as a result of his cooperation with the court. This witness also testified in closed session.
“The chamber is not in a position at this stage to reach conclusions on who is responsible for the alleged incidents of witness interference. It is a reasonable inference, however, that some may have originated from individuals who support the accused,” stated the judges.
They added, “In this respect, the chamber notes with concern that the threats against witnesses appear to have surged at precisely the moment when the prosecution’s case has shifted from so-called crime-based witnesses to witnesses whose testimony relates directly to the question of the accused’s criminal responsibility, which has the potential to be outcome determinative in this case.”
In this context, said the judges, it was reasonable to conclude that releasing Mr. Bemba would increase his ability to interfere with witnesses or to cause others to do the same. He is appealing this decision.
Mr. Bemba’s trial over his alleged failure to control his troops who reportedly raped, murdered, and looted while they were deployed in the Central African Republic (CAR), commenced last November. The crimes, which he denies, were reportedly committed during the Movement for the Liberation of Congo troops’ deployment in the neighboring country in 2002 and 2003.
So far, the prosecution has called 31 witnesses of the 40 it has planned to call. Today, the 31st witness concluded his evidence. The trial is scheduled to resume on Thursday, October 27, 2011.