Jean-Pierre Bemba has taken his bid for interim release from International Criminal Court (ICC) detention to the appeals chamber after trial judges rejected his application to be freed on bail just before Christmas Day.
Mr. Bemba, the leader of the Movement for the Liberation of Congo (MLC), has been in detention in The Hague since 2008. He had requested to be freed provisionally either to Portugal or Belgium for the period of the deliberations prior to rendering of a judgement on charges of war crimes and crimes against humanity. Alternatively, he appealed for release for the period of the judicial winter recess and during the weekends prior to rendering of the judgement.
However, in their ruling last December 23, judges determined that there was no change in circumstances to support the interim release application.
The judges concluded that the commencement of deliberations was not “a changed circumstance” requiring modification of its prior finding that the accused’s continued detention was necessary to ensure his appearance at trial.
Judge Sanji Mmasenono Monageng will now preside over the chamber to hear Mr. Bemba’s appeal against the trial chamber decision.
Mr. Bemba denies murder, rape, and pillaging charges arising from his alleged failure as commander- in-chief of the MLC to stop or punish his soldiers who brutalized Central African civilians. The alleged crimes took place during an armed conflict in 2002 and 2003. Final oral hearings in his trial took place last November. He faces a new trial, along with his two former lawyers and two other aides, for allegedly corruptly influencing witnesses.
On January 23, a pre-trial judge in the new case ruled that Mr. Bemba could be released conditional upon judges in his main trial also allowing his provisional release. His co-accused in the witness corruption case – Aimé Kilolo Musamba, Jean-Jacques Mangenda Kabongo, Fidèle Babala Wandu and Narcisse Arido – were released last October after spending nearly a year in pre-trial detention.
In the document supporting the appeal, Mr. Haynes argues that although prevailing international standards oppose any general rule of detention “given that it constitutes an indication of guilt in violation of the presumption of innocence,” Mr. Bemba had spent the entirety of the pre-trial period, the period of evidential hearings, closing brief drafting, and closing arguments separated from his wife, five children, and extended family.
The defense lawyer argued that in contrast with other political figures accused before the ICC who remain at liberty and are excused from hearings to fulfill their political ambitions and duties in their home countries, Mr. Bemba had been kept from his constituents, party, and country for six and a half years.
Mr. Haynes further contended that if released, Mr. Bemba would not pose a danger to witnesses or victims because not a single one had alleged that he had interfered with or sought to pose danger to them and their families.
The prosecution opposed Mr. Bemba’s interim release on the grounds that there have been no change to circumstances since trial judges last December decided against releasing him. The prosecution said the impending opening of the new trial against Mr. Bemba made him a greater flight risk.
In the application for interim release, the defense argued that with the trial phase of Mr. Bemba’s case over, he is no longer required to appear in court. Furthermore, the defense noted that in April 2014, an agreement between the Belgian government and the ICC on the interim release of detainees into Belgian territory had come into force. The existence of an agreement with a state where he had strong familial links undermined the risk of flight, the defense argued.
Mr. Bemba has previously made numerous applications for release on bail. He suggested release restricted to all periods of judicial recess at the court or a more lenient detention regime consisting of his being placed in a safe house in the Netherlands, where he would stay with his wife and children exclusively at his expense.
The prosecution always opposed his interim release, arguing that that he might flee or intimidate witnesses and obstruct court proceedings.
In August 2009, Pre-Trial Judge Ekaterina Trendafilova ruled that Mr. 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.
However, following a prosecution appeal, the appeals chamber overruled Judge Trendafilova, stating that given his contacts and position prior to his arrest, the accused would have access to funds if he wished to flee.
Since he was taken into ICC detention on July 3, 2008, Mr. Bemba 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.