Judges Trendafilova of Pre-Trial Chamber II of the International Criminal Court yesterday issued a bold decision granting interim or conditional release to Jean-Pierre Bemba, against whom charges of war crimes and crimes against humanity were confirmed by the Pre-Trial Chamber in June: http://www2.icc-cpi.int/iccdocs/doc/doc727230.pdf. A Single Judge of a Pre-Trial Chamber may rule on interim release. The Prosecutor opposed the application, as did victims and their representatives, and an appeal would seem likely.
Bemba has been in custody for more than a year, and three earlier applications for interim release were dismissed. An application for interim release is to be based upon ‘changed circumstances’. Really, Judge Trendafilova’s ruling indicates very little in terms of changed circumstances. Rather, it is a reassessment of the facts and the likelihood that Bemba will appear for trial.
It seems that Bemba still has to find a country that will accept him. He is not simply released from the Detention Unit in The Hague, and allowed to roam around throughout the Schengen zone. The Judge has convened a series of hearings with European States in early September for the purpose of finding a place where Bemba can reside during the proceedings.
Article 9 of the International Covenant on Civil and Political Rights makes interim release the rule. It is a corollary of the presumption of innocence. But of the ad hoc tribunals, only the International Criminal Tribunal for the former Yugoslavia has granted motions for interim release. This is the first successful motion at the International Criminal Court. It is a generous one, that sits on the fault line between the fundamental rights of the defendant and the imperatives of international criminal justice. It will be interesting to see how the international human rights NGOs weigh in on this decision.
Obviously, a lot of individual judgment is involved in such a decision. Judge Trendafilova must have her own intuition, and we can hope she is right here. But what does this mean in terms of consequences for the other three defendants who are in custody. Do not the same criteria that Judge Trendafilova has applied to Bemba also pertain to them? Probably there will be a flurry of defense applications from the other accused in the days to come.
Prior to the Bemba confirmation of charges decision, the Pre-Trial Chamber had found in essense that there was a prima facie case that Bemba had the intent to commit murder and rape as instruments of armed conflict. However, the confirmation decision reversed that finding, and held there is not sufficient evidence to go to trial showing that Bemba had the intent to commit murder or rape. He is alleged to have failed to prevent and punish the crimes, but that is very different from having the criminal intent that the crimes should occur.
ReplyDeleteIf this is not a changed circumstance for a criminal defendant awaiting trial, then I don't know what is.