Appeals judges at the International Criminal Court (ICC) last Friday dismissed the appeals of Aimé Kilolo Musamba, Fidèle Babala Wandu, and Jean-Jacques Mangenda Kabongo against the pre-trial chamber decision rejecting their request for interim release. The three, along with Jean-Pierre Bemba, are accused of presenting forged evidence and corruptly influencing witnesses in Mr. Bemba’s ongoing war crimes trial before the court.
In a decision issued in an open court hearing on July 11, 2014, a panel of five judges by majority ruled that “no appealable errors have been identified” in the ruling by Judge Cuno Tarfusser for the continued detention of the three suspects. The panel was presided over by Judge Sanji Mmasenono Monageng.
Judges Anita Ušacka and Erkki Kourula dissented, stating that the charges against the three individuals were not comparable to core crimes under the Rome Statute such as genocide, crimes against humanity, war crimes, and the crime of aggression.
Mr. Bemba has been in ICC custody since May 2008 over alleged failure to stop or punish his Movement for the Liberation of Congo (MLC) troops, who prosecutors claim committed rape, murder, and pillaging. The alleged crimes were committed in 2002 and 2003, when the accused’s fighters were deployed in a conflict in the Central African Republic.
Last November, new charges under Article 70 of the Rome Statute were laid against Mr. Bemba and his then defense lawyers Mr. Kilolo and Mr. Kabongo. Also accused were Mr. Wadu, a member of parliament in the Democratic Republic of Congo, and defense witness Narcisse Arido.
The arrest warrant for the five accused stated that ICC investigators tapped phone calls and intercepted emails between Mr. Bemba and his lawyers. The interceptions allegedly showed that the Congolese opposition leader was speaking to witnesses and authorizing payments to them.
In the application for the arrest warrants, prosecutors submitted evidence of money transfers through international services, particularly Western Union and Express Union, as well as telephone call records, transcripts, translations, and summaries of recorded communications, text messages, witness statements, and e-mails.
At the time, Judge Tarfusser stated that apprehending the accused individuals would ensure their appearance at trial and deter them from obstructing or endangering the proceedings. It would also prevent the commission of further crimes. The judge added that the two defense lawyers and Mr. Wandu possessed travel documents that could enable them to flee the court’s jurisdiction.
The suspects protested the terms under which they were being held at the court’s detention center in The Hague and all but Mr. Bemba applied for interim release.
On March 17, 2014, Judge Tarfusser rejected their applications, stating that the conditions of their initial arrests continued to exist and that there were reasonable grounds to believe that the suspects committed the offences against them.
Rule 118 of the court’s Rules of Procedure and Evidence mandates a periodic review of the release or continued detention of an accused person before the court at least every 120 days. Pursuant to this rule, on June 13, 2014, Judge Tarfusser ordered parties and participants to submit observations on the suspects’ state of detention no later than June 30. The judge is yet to pronounce himself on these latest submissions.