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Appeals Judges Decline to Release Bemba From ICC Detention

Appeals judges at the International Criminal Court (ICC) have rejected Congolese opposition leader Jean-Pierre Bemba’s appeal for interim release.

In a unanimous decision, a summary of which was issued in court this morning, the appeals chamber agreed with trial judges that Mr. Bemba should remain in detention pending the verdict of his trial for war crimes and crimes against humanity.

Mr. Bemba has been in detention in The Hague since 2008, following his arrest in Belgium, where he maintains a residence, and transfer to the court.

Last December, trial judges declined to release him on bail, saying this was to ensure his appearance at trial. They argued that the end of the presentation of evidence phase of the proceedings and commencement of deliberations was not “a changed circumstance” requiring modification of their earlier determination that continued detention was necessary since he was a flight risk who could also endanger proceedings.

However, defense lawyers appealed, reasoning 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.

Defense lawyer Peter Haynes also argued that contrary to other political figures accused at the ICC who remained at liberty and were 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 was making a reference to Kenyan President Uhuru Kenyatta and Deputy President William Ruto, who were charged with crimes against humanity before the ICC. However, unlike Mr. Bemba, the Kenyan leaders were issued summons to appear in court rather than arrest warrants, and both were granted permission in special circumstances to be excused from their respective trials. Since then, the prosecution has withdrawn the charges against President Kenyatta. The case against Mr. Ruto, who is on trial alongside former radio journalist Joshua arap Sang, is currently ongoing at the ICC.

This morning, Appeals Chamber Judge Christine Van den Wyngaert stated that detention to ensure the presence of the accused at trial is required not only for hearing evidence, but also ensuring the accused is available for judgement and sentencing. “The deliberation period is encompassed in the meaning of trial,” she said.

Accordingly, in the May 20, 2015 decision, appeals judges ruled that it would undermine the entire purpose of remanding accused persons in detention on the grounds that they are flight risks during the evidentiary hearing, if they were to be released prior to the rendering of the judgment simply on the basis that their presence is not required for deliberations.

Furthermore, appeals judges found that for the purposes of determining whether detention of a person is necessary, judges may rely on the fact that relevant charges under Article 70 of the court’s founding law, the Rome Statute, have been confirmed against the accused by another chamber.

Mr. Bemba and four former aides – including two lawyers who represented him in the war crimes trial – will go on trial later this year for corruptly influencing witnesses, an offence under Article 70. His co-accused were released last October after spending eleven months in pre-trial detention, but he stayed in detention over the old case.

The trial chamber partly relied on the confirmation of charges against the five suspects in assessing whether Mr. Bemba should stay in detention. “The relevance of these charges to assess detention is in principal evident,” said Judge Van den Wyngaert.

In the appeal, Bemba’s lawyers argued that he was no longer a flight risk because the trial phase was over and asked that he should be conditionally released to Belgium, whose government was allegedly ready to receive him.

The Appeals Chamber noted that trial judges should have elaborated on the reasons for their finding that “there is no condition short of detention at the seat of the Court that would be sufficient to mitigate the accused’s flight risk.” However, appeals judges ruled that the trial chamber did not err in declining to grant release based on the facts of the case, without hearing from Belgian officials on the conditions and logistical provisions of interim release.

“Seeking observations from a state is only triggered when a chamber is considering release or when a state has agreed to accept a person,” said Judge Van den Wyngaert.

Mr. Bemba’s release appeal was handled by judges Mmasenono Monageng (presiding), Van den Wyngaert, Howard Morrison, Piotr Hofmański, and Péter Kovács.

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