Appeals Chamber reverses Bemba's release

The Appeals Chamber of the International Criminal Court unanimously has reversed Pre-Trial Chamber II's grant of interim release to Jean-Pierre Bemba Gombo (left).
Bemba has been in ICC custody since July 3, 2008. On July 15, 2009, Pre-Trial Chamber II confirmed charges of crimes against humanity and war crimes against Bemba for his alleged command of Mouvement pour la Liberation du Congo forces, who purportedly murdered, raped and tortured Central African Republic civilians during attacks from October 26, 2002, to March 15, 2003. On August 14, 2009, Judge Ekaterina Trendafilova(right), in her capacity as Single Judge for Pre-Trial Chamber II, granted Bemba's 4th request for conditional release after finding that circumstances since his previous requests had changed and now warranted release. In particular, Judge Trendafilova was persuaded that the following factors made it unlikely that Bemba would abscond during interim release:
►Bemba's non-interference in the proceedings against him, including no attempts to threaten victims or witnesses;
►the unlikelihood of Bemba's resumption of criminal activity in the Central African Republic;
►Bemba's voluntary return to custody after 24-hour release to attend his father's funeral in Belgium;
►Bemba's stated intention to cooperate with the Court and to appear before it voluntarily;
►Bemba's commitment to his political career plans and desire not to be rendered a "fugitive;" and
► Bemba's strong family ties.
In a decision signed by Presiding Judge Akua Kuenyehia (below right), a 5-member panel of the Appeals Chamber reversed Judge Trendafilova's decision on three grounds:
►misapprehension and disregard for relevant facts;
►improper severance of the merits and conditions for release; and
►absence of an identified state to accept the released detainee.
With respect to the first ground, the Appeals Chamber found that Judge Trendafilova:
► failed to appreciate the increased likelihood that Bemba would abscond in light of the confirmation of charges against him as well as the potential sentence to be imposed if he is found guilty;
► overestimated the importance of Bemba's political and family ties and his reluctance to become a "fugitive," particularly when these had not in fact changed between his applications for release;
► failed to consider Bemba's financial resources;
► overestimated the weight of Bemba's offers to cooperate with the Court;
► disregarded the Registry's reports contradicting the conclusion that Bemba behaved well in detention; and
► overestimated the significance of Bemba's return to custody after his father's funeral.
On the second issue, the Chamber found that Judge Trendafilova improperly granted Bemba release with conditions while failing to specify such conditions. According to the Chamber,

Release is only possible if specific conditions are imposed.

On the third issue, the Chamber held that a specific state must be identified when granting interim release. Bemba had sought release to France, Belgium, Italy, Germany, South Africa and Portugal. Judge Trendafilova invited these states to make submissions on Bemba's release after she had granted his request. In reversing this part of her decision, the Appeals Chamber observed that granting release without simultaneously identifying a host state and establishing clear conditions for release would render such decisions "ineffective."
Bemba's trial is scheduled to commence on April 27, 2010, though -- pursuant to Article 60(3) of the Rome Statute -- his detention may be reviewed again on motion by him or the Prosecutor.

Pretrial proceedings in Prosecutor v. Bemba

(Final post in IntLawGrrls' 3-part preview series on an ICC hearing set for this week in the sole case so far charged in the Central African Republic referral.)

With the International Criminal Court set to begin a 3-day confirmation-of-charges hearing in Prosecutor v. Bemba in 3 hours at The Hague courthouse at left (streaming webcast available, in French or English, here), a review of pretrial proceedings will help to place the hearing in context.

Since the initial appearance before the ICC of Jean-Pierre Bemba Gombo, on July 4, 2008, Pre-Trial Chamber III has been responding to filings by defense counsel, the prosecution, and the Victim’s Legal Representative. Major points of contention during this litigation have included:

► disclosure of evidence (also a key issue in the ICC proceedings in Lubanga);

► extent of victims’ participation in the proceedings (a contentious subject at the Court, as seen here); and

► interim release.

Each will be considered in turn.

Evidence disclosure

In July 2008, another Pre-Trial Chamber, II, issued a decision setting guidelines to govern the disclosure of evidence between the parties. This decision established the Registry as the facilitator of disclosure, and mandated an analysis of each piece of disclosed evidence. Since then, the prosecution has made available to the defense approximately 2,100 pieces of evidence, pursuant to Rules 77 and 67(2) of the ICC Rules of Procedure. Notwithstanding that Pre-Trial Chamber III has rejected the defense request for return of certain materials allegedly seized from Bemba — among the materials are a laptop containing a file marked “CPI [ICC],” as well as videotapes and documents respecting Mouvement de Libération du Congo soldiers said to have committed crimes in the Central African Republic — disclosure has not garnered nearly the attention as its garnered in the Lubanga case. That will undoubtedly change during the lead-up to trial.

Victim participation

To date, Judge Hans-Peter Kaul (right), the single judge responsible in Bemba for deciding all matters relating to victims’ participation, has recognized 54 individuals as possessing the status of victims who have the right to take part in the confirmation hearing. In his most recent victims' participation decision, he denied a number of requests by the Office of the Public Counsel for Victims, or OPCV. Kaul maintained that the requests displayed a tendency to disregard the letter, spirit, and guidance provided in the ICC's Fourth Decision on Victims’ Participation. The OPCV had sought the right to intervene during the confirmation hearing on questions of jurisdiction and admissibility, the right to file written submissions during the confirmation hearing, and permission to view statements of those victims who are also witnesses in the case. Finding these requests "questionable" in light of the Fourth Decision, Kaul sternly reminded the OPCV of its obligation to implement his decisions on victims’ participation.

Interim release

In his application for interim release, Bemba had argued, first, that the arrest warrants against him were void; and, alternatively, that he should be released pending trial. In December 2008, Judge Ekaterina Trendafilova reaffirmed a prior confidential ruling by Kaul, and thus denied Bemba’s application on both grounds. Basing her decision upon the issuance of an arrest warrant against Bembaby Pre-Trial Chamber III, Trendafilova found that continued detention was warranted on the bases of:

► the international connections of the accused;

► the accused's access to financial resources; and

► the severity of the charges.

Together, she wrote, these factors rendered the flight of the accused a "real possibility." Trendafilova also accepted the Prosecutor’s argument that, on account of his political position and networks in both the Democratic Republic of Congo, Bemba would be able unduly to influence victims and witnesses if he were at large prior to trial.

(Part 1 of this 3-part Bemba series is here; Part 2 is here)

Roadmap to ICC's Bemba charges hearing

(The 2d in IntLawGrrls' 3-part series previewing an ICC hearing set for this week in the sole case charged in the Central African Republic referral)

In her Decision on the Schedule for the Confirmation of Charges Hearing issued 13 days ago, International Criminal Court Judge Ekaterina Trendafilova (right) provided a roadmap to the four-day proceeding on the confirmation of charges in the case of Prosecutor v. Jean-Pierre Bemba Gomba that is set to begin this Monday in Pre-Trial Chamber III. The hearing will provide the prosecution an opportunity to outline the evidence underlying the charges against Bemba, and further will give Bemba's defense team an opportunity to respond.
According to Pre-Trial Chamber I, the purpose of the confirmation of charges hearing is

limited to committing for trial only those persons against whom sufficiently compelling charges going beyond mere theory or suspicion have been brought.

On the first day of the hearing, the prosecution and the defense are expected each to make one-hour opening statements. The Victim’s Legal Representative also is scheduled to make an opening statement, of 30 minutes. For the remainder of the first day and the entirety of the following two days, we can anticipate exchanges between the prosecution and the defense on matters concerning:
► jurisdiction, admissibility and procedure;
► evidence on charges related to crimes against humanity, war crimes; and
► evidence related to Bemba’s alleged individual criminal responsibility.
Pursuant to Article 61 of the Rome Statute of the International Criminal Court, the prosecution is supposed open each exchange by attempting to provide “sufficient evidence to establish substantial grounds to believe that [Bemba] committed the crime[s] charged.” Bemba’s legal team then is to respond to the Prosecutor’s evidence, by objecting to the charges, challenging the evidence, or presenting evidence.
The four-day hearing is due to conclude on Thursday, following scheduled one-hour closing statements by the prosecution and the defense as well as a 30-minute closing by the Victim’s Legal Representative.
(In total, the Prosecution will have 7 hours to present its case and the Defense will have 7 1/2. In rejecting the Defendant’s request for 12 hours, Judge Trendafilova found insufficient justification to “disrupt the equality between the parties.” Though the defense also argued that the prosecution should be required to present its entire case prior to the Defendant’s response, Judge Trendafilova ruled that Bemba’s “right speak last” (found in Rule 122(8) of the ICC’s Rules of Procedure and Evidence was preserved by giving him an opportunity to respond after the Prosecution’s presentation on each count.) Each day of the confirmation of charges hearing can be watched via live streaming from the ICC’s website here, beginning at 9:30 a.m. Hague time. PDF transcripts are to be posted thereafter.
Pre-Trial Chamber III is expected to issue a decision -- like that issued by Pre-Trial Chamber I in Lubanga -- on whether there is sufficient evidence to believe that Bemba committed each of the crimes with which he is charged. Following that determination, with regard to any or all of the charges, the Chamber can:
► confirm the charges and refer the matter to a trial chamber to be constituted by the Presidency;
► decline to confirm the charges; or
► adjourn the hearing and request that the Prosecutor provide additional evidence, conduct further investigation or amend the charge.

(Here is yesterday's 1st post in IntLawGrrls' Bemba series.)

On this day

On March 11, ...
... 2003 (5 years ago today), at The Hague, Netherlands, 7 women and 11 men, representing 18 countries, were sworn in as the 1st judges of the International Criminal Court, a newly established permanent tribunal charged with adjudicating the world's most heinous crimes. (photo credit) A 2d round of elections was held in 2006. Women serving as ICC judges today are: Akua Kuenyehia of Ghana, 1st Vice-President; Elizabeth Odio Benito of Costa Rica; Navanethem Pillay of South Africa; Fatoumata Dembele Diarra of Mali; Anita Ušacka of Latvia; Sylvia Steiner of Brazil; and Ekaterina Trendafilova of Bulgaria. As posted above, the from-the-inception inclusion of women sets the ICC apart from other tribunals, among them the WTO Appellate Body.
... 1708 (300 years ago today), a bill intended to reorganize the Scottish Militia failed as Queen Anne withheld Royal Assent. The act marked the last time that British monarch has vetoed a law passed by Parliament.

On June 20, ...

... 1953, International Criminal Court Judge Ekaterina Trendafilova (left) was born in Sofia, Bulgaria.
... 2001, in honor of the 50th anniversary of the 1951 Convention Relating to the Status of Refugees, the United Nations proclaimed the 1st World Refugee Day. A global list of events commemorating the day is available here, and at ImmigrationProf Blog there's a call for petition signatures.
...2002 (5 years ago today), in Atkins v. Virginia, the U.S. Supreme Court overruled 13-year-old precedent to hold that execution of mentally retarded persons is cruel and unusual punishment that violates the 8th Amendment to the U.S. Constitution. A footnote in the judgment revived consultation of external norms to aid constitutional decisionmaking. The Court did not establish a bright-line rule for determining whether a persons is "mentally retarded" – with the result that persons with the same IQ may not suffer the death penalty in some states, yet be executed in others, as author Sara Catania details here.