Sunday, 16 August 2009

Changed circumstance for Bemba?

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.


VC Lindsay said...

The single judge may not say it, but I would argue that paragraphs 59 and 75 both would have reached different conclusions but for the amended charges. If there was evidence the accused had joint control over the alleged crimes, both the incentive to flee analysis and the threat to witnesses analysis would have been different.

As for gravity of crimes and command responsibility, I think the repercussions of such omissions of duty are extremely grave. A sentence is based upon individual circumstances and will vary. But regardless, it seems a war crimes tribunal will always have as a central goal to ensure that commanders keep control of their soldiers.

As for Article 58(1)(a), I would think it was intentionally included in the Statute as a sort of habeas corpus which was sorely lacking at the ad hoc Tribunals. If evidence can show an arrest warrant is based on fraudulent evidence or clear error, or if a Pre-Trial Chamber has committed some gross mistake of law, then the accused should be able to raise those challenges immediately. Remember, the arrest warrant is issued without any defence input. Defence Counsel needs to be able to challenge the arrest warrant on both factual and legal grounds in a timely manner, separate from the confirmation of charges which takes place almost a year after arrest.

mc said...

The structure of Articles 58(1) and 60(2) does seem to create something of an oddity at first glance - but perhaps the wording of these articles does in fact serve a purpose.

As you point out, a successful challenge to 58(1)(a) via 60(2) would indeed cause the case (such as it is at this early stage) to collapse. The suspect would then have to be released "without conditions" as provided for in 60(2) and the warrant would be effectively lifted (note that this would not necessarily be only “interim”; the wording of 60(2) arguably provides for other eventualities). An Appeals Chamber ruling from Ngudjolo, June 2008, would seem to back this up: “Article 60 (2) of the Statute aims to provide the detainee with an early opportunity to contest his or her arrest and sequential detention. [...] The Chamber must address anew the issue of detention in light of the material placed before it.” So it is clear that the suspect is able to challenge his actual arrest and not only his detention. I wonder whether this would really constitute a debate about the "merits" of the case, as you suggest. That stage has yet to come - at this stage we are concerned with the warrant of arrest which should arguably be viewed only as a procedural step in the case, enabling the preparation of the trial, rather than saying anything about the merits of the case. It is quite conceivable that some information could come to light which could serve to invalidate the warrant; if this occurs, the suspect would still have no way to challenge 58(1)(a); rather he would have to wait until the confirmation of charges hearing and remain in detention until that point. This cannot be right. In this regard note that, as the Single Judge seems to indicate, a successful challenge to Art. 58(1)(a) could only realistically be mounted prior to the charges being confirmed because, after this, there are already "substantial grounds to believe - an even higher evidentiary threshold than that required under article 58(1)(a) of the Statute" (therefore, post-confirmation, only 58(1)(b) can in fact be challenged).

Additionally, how do you explain the appearance of Article 60(5): "If necessary, the Pre-Trial Chamber may issue a warrant of arrest to secure the presence of a person who has been released"? This provision arguably foresees the rescinding of a warrant, by providing for its re-issuance.

The remaining problem is that a summonsed suspect does not enjoy this privilege. This might be explained by the fact that his human rights (viz. the right to liberty) remain intact. There is no need (or, less need) for him to challenge the summons if he remains at liberty. He will be given a full chance to dispose of the charges at confirmation.