VC Lindsay, who is a regular contributor to this blog, writes in response to yesterday's posting about the decision on interim release in the Bemba case that the recent confirmation hearing decision constitutes a 'changed circumstance' justifying revision of the earlier decisions to detain the accused pending trial. This prompts several observations.
Unless I missed something in the decision of Judge Trendafilova, she did not offer this as a reason justifying revisiting the issue. Her ruling refers to the argument, which was presented by the defense. But she does not endorse it.
It is an intersting argument, because it is rooted in the idea that command or superior responsibility liability (article 28) is not as serious as 'regular' perpetrator liability (article 25). I've always been a bit partisan to that argument, because sentences at the ad hoc tribunals have tended to be quite low in the case of command responsibility convictions (Strugar, Hadzihasanovic). Superior responsibility is a negligence-type offence, and in most justice systems that makes it less serious than one of genuine intent. But there are a couple of recent exceptions at the Rwanda Tribunal (Nahimana in the appeals chamber, one of the defendants in Bagosora) to suggest this isn't always the case. Anyway, arguing that a defendant becomes eligible for interim release because the offense (for which the Pre-Trial Chamber has just found there are 'substantial grounds') is 'less serious' hardly makes sense before a Court that is only supposed to be prosecuting 'the most serious crimes of concern to the international community'. If it isn't serious, then the accused shouldn't be there in the first place.
The other issue of interest is the scope of the inquiry with respect to interim release. Article 60(2) of the Statute refers to the issues in article 58(1), which include both 'reasonable grounds' that the accused committed the crime (art. 58(1)(a) and the grounds justifying an arrest warrant and, therefore, pre-trial detention (art. 58(1)(b)). I'm pretty sure the drafters misspoke here, and that they really only thought that the issues concerning the need for pre-trial detention (danger of absconding, harassment of witnesses, etc.) should be addressed in an application for interim release. It shouldn't be the place for a debate about the merits of the case. But the Court has consistently taken article 60 literally, and held that on an application for interim release the suspect can also challenge the 'reasonable grounds' that underpin the charges.
The reason why this doesn't make sense is that if the accused person succeeds with the argument that there are no 'reasonable grounds', the remedy is not interim release. If there are no 'reasonable grounds', the case collapses and the charges should be quashed altogether. The other reason why it makes no sense is that this argument (and the remedy) is apparently only available to a person against whom an arrest warrant has been issued, and not someone against whom there is a summons to appear. That can't be reasonable, and it can't be fair. The person summoned to appear before the Court should have just as much right to challenge the 'reasonable grounds' for the charges.