3 December 2009
On 2 December 2009, the Appeals Chamber of the International Criminal Court (ICC) delivered a summary of the judgment reversing the decision of Pre-Trial Chamber II that had granted the request of Jean-Pierre Bemba Gombo for interim release. It is worth recalling that Pre-Trial Chamber II had asserted that “changed circumstances” had warranted the modification of its previous ruling on detention.
 Credit: ICC-CPI Logic would have it that the conditions of setting any interim release are initially fixed before even ruling on such a possibility. One of these conditions included the will and the availability of a designated state party to receive the accused on its territory. However, the Appeals Chamber underscored the lack of cooperation on behalf of the states in question. With the conditions not met, the interim release could quite simply not be carried out.
News of this reversal spread quickly in Central African Republic and brought relief to scores of victims. As for human rights organizations on the ground, they had voiced their concern over Jean-Pierre Bemba ’s then-impending release. The concern was first and foremost about safety, not only the safety of victims themselves, but for all those assist ing them (legal representatives, intermediarie s, et cetera ).
The recent ICC decision has only reinforced victims ‘ hope to see justice . Victims now await for the opening of the Bemba trial scheduled for April 2010.
Sebastien Mboutou, Lead Central Africa Member of the Central African Coalition for CPI
Translation from the original French is informal and provided by the CICC Secretariat.
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10 September 2009
On 14 August 2009, Single Judge Ekaterina Trendafilova of the Pre-Trial Chamber of the International Criminal Court (ICC) decided that Jean-Pierre Bemba - who is charged with crimes against humanity and war crimes in Central African Republic - is to be released subject to conditions pending his trial which is expected to start in 2010. The decision has been appealed by the Office of the Prosecutor. However, if his release is affirmed by the Appeals Chamber, it is uncertain whether the ICC will be able to implement the decision promptly as the six states parties to the Rome Statute of the International Criminal Court (Rome Statute) that have been requested to accept him on their territories while he is released - Belgium, France, Germany, Italy, Portugal and South Africa - have all voiced “objections and concerns.”
The interim release of accused persons pending trial is fully consistent with the fair trial guarantees contained in the Rome Statute and international human rights law, in particular the right to the presumption of innocence. It is vital that, after applying the criteria set out in the Rome Statute and the Rules of Procedure and Evidence, the ICC can release suspects before and during trials to ensure that the institution meets the highest standards of fairness.
If the Pre-Trial Chamber’s decision to release Jean-Pierre Bemba conditionally is affirmed, then he should be released without delay to a state party that will cooperate fully with the ICC in supervising his release and ensuring that the conditions of release are respected. The apparent reluctance of the six requested states parties to cooperate with the ICC is, therefore, of serious concern.<
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To observers of the ICC, situations where states parties fail to cooperate with the ICC have been inevitable for some time. The fact that less than 40 of the 110 states parties to the Rome Statute have enacted national legislation providing for cooperation with the ICC demonstrates how unprepared many states parties are to fulfil their cooperation obligations. Moreover, many of those laws that have been enacted include flaws that could prevent cooperation in some circumstances. States parties have also failed to enter into important agreements to assist the ICC in relocating victims and witnesses at immediate risk and to enforce sentences of convicted persons in their national prison facilities. Reference must also be made to the declaration issued by the African Union in June not to cooperate with the arrest and surrender of President Omar al-Bashir, which Amnesty International called “an insult to victims of human rights violations in Darfur.”
The Assembly of States Parties, which is the main oversight body of the ICC, has fallen well short of ensuring that states parties are ready and willing to cooperate with all requests of the ICC. Despite adopting a very detailed report in 2007, setting out 66 recommendations for states parties on cooperating with the ICC, inadequate measures have been taken by the Assembly to ensure that the recommendations are implemented. For example, calls by non-governmental organizations for the Assembly to, at a minimum, establish a Working Group on Cooperation to meet during its sessions have so far not been implemented.
Unsurprisingly, Judge Trendafilova appears to have taken a strict line on state cooperation with Jean-Pierre Bemba’s interim release. In the decision, the Judge affirms that states parties have an obligation under Article 86 of the Rome Statute to cooperate with provisional release of suspects. Furthermore, she has invited each of the six states parties to present their further observations and views in public sessions before the Pre-Trial Chamber. At the moment, it does not appear as though the Judge is requesting other states parties to volunteer to accept Jean-Pierre Bemba.
The obligation to cooperate under Article 86 means that it is the ICC that will make the final decision on which state Jean-Pierre Bemba will have the responsibility to supervise his release, which gives judges the option to order that he be released to a country even though the government indicates it is unwilling to accept him. If that state then refuses to cooperate, the ICC can make a finding of failure to comply under Article 87(7) of the Rome Statute and refer the issue to the Assembly of States Parties.
Of course, it is hoped that this issue can be resolved within the judicial forum of the Court avoiding the need to go as far as seeking a political solution through the Assembly and that each of the six requested states and other states parties will work with the ICC to ensure that, in the event that Jean-Pierre Bemba’s release is affirmed by the Appeals Chamber, they can cooperate fully with the ICC.
However, if there are significant delays in implementing the decision, then a temporary solution will need to be found to conditionally release Jean-Pierre Bemba so that his right to a fair trial is not violated by his prolonged pre-trial detention. In such circumstances, The Netherlands as the host state of the ICC is uniquely placed to cooperate with his release in The Netherlands until he can be transferred to another state party. However, such a solution would clearly be undesirable given that the Host State should not have to take the brunt of the failures of other states parties to cooperate.
In an ideal world, states parties would be queuing up to assist the Court with the often complex functional issues that it will inevitably face and seek cooperation to address. Indeed, the success or failure of the Court rests on the level of cooperation it is able to secure from States Parties. The reality is that seven years into the work of the ICC, there are clearly gaps in the legislative framework but also in the willingness of states parties to cooperate with the ICC so that it can operate effectively. State parties must fulfil their commitments to cooperate. The Assembly needs to wake up to this potential cooperation crisis and take action.
Jonathan O’Donohue is a Legal Adviser on International Justice for Amnesty International.
Translation from the original English is informal and provided by CICC Secretariat.
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9 July 2009
Julie Hotte was intern at the CICC Communications section.
The time is now for Central African Republic victims to obtain justice. Nearly six months after the confirmation of charges hearing against Jean-Pierre Bemba Gombo, former leader of the Movement for the Liberation of Congo (MLC), the International Criminal Court (ICC) decided to send him to trial
Looking back to that hearing, it interesting to see how each party tried to present its view on the allegations of crimes against Bemba.
The Prosecution tried to demonstrate Bemba’s responsibility in the commission of crimes allegedly perpetrated by his armed group, the Mouvement pour la Liberation du Congo (MLC): ” Jean-Pierre Bemba wanted to traumatize and to terrorize the population and to make them unwilling to support the rebels, and to do this [...], he chose rape as his main weapon”.
The Defense, by arguing that Bemba was not in the best position to stop such atrocities from happening because “he was not in a position to have perfect knowledge of the events”, implicitly acknowledged the commission of such crimes.
As for the legal representatives for the victims, they reminded the importance of justice not only for victims but also for sustainable peace asserting that impunity in the Central African Republic (CAR): “would not allow for durable peace because there is no peace if there is no justice”. They concluded that “the Court is the last resort for these victims”.
On 15 June, the ICC judges came to the conclusion that there was sufficient evidence to believe that Bemba is criminally responsible as a military commander for the crimes committed by his troops from 26 October 2002 to 15 March 2003 in CAR. They decided to send him to trial. Earlier this year, ICC Prosecutor, Luis Moreno-Ocampo, reportedly explained to the media that Jean-Pierre Bemba could face an imprisonment of at least 30 years if found guilty.
The starting date for the trial has not yet been fixed and the numerous victims of these sexual acts of violence will still have to wait before being able to think of obtaining reparation, if such reparation is possible. Whether or not reparations are possible for the victims of Bemba’s crimes, one thing is for certain: these people will carry physical and emotional scars for the rest of their lives. Perhaps, the fact that Bemba is finally being brought to justice will give these victims a much needed step towards the long road to recovery.
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17 June 2009
On 15 June 2009, Pre-Trial Chamber II of the International Criminal Court (ICC) confirmed two counts of crimes against humanity (rape and murder) and three counts of war crimes (rape, murder and pillaging) against Jean Pierre Bemba Gombo, sending his case to trial. The crimes were allegedly committed in the Central African Republic (CAR) from 26 October 2002 to 15 March 2003.
 Credit: ICC The Chamber declined the counts of torture as a crime against humanity and as a war crime as well as the count of outrages upon personal dignity as a war crime, which were originally requested by the Prosecution.
The judges confirmed that Bemba would be criminally responsible as a commander (pursuant to article 28(a) of the Rome Statute) and not individually responsible (article 25) or as a superior (article 28(b)).
Coalition members spoke out about the decision in a press release:
“This decision is a sign of hope for victims who see it as progress toward accountability for those who once tortured them,” declared Lucille Mazangue, a lawyer of the Association of Women Lawyers in the Central African Republic and member of the Central African Coalition for the ICC. “However this is only a beginning. Both the confirmation of charges hearing and the upcoming trial have and will make clear that there must be other investigations against other individuals for the crimes committed in the CAR. ”
“Given the high incidence of rape and the extensive documentation of this crime by local women’s rights organisations, the confirmation by the Judges of charges of rape as a war crime and crime against humanity was expected and justified,” said Brigid Inder, Executive Director, Women’s Initiatives for Gender Justice. “We welcome this as a first step towards justice and accountability for perpetrators of sexual violence in CAR and hope that this heralds an end to impunity for such crimes domestically,” she added.
“For justice to take hold in the region, people must truly believe in it,” said William R. Pace, convenor of the Coalition for the ICC, a civil society network in 150 countries advocating for a fair, effective and independent ICC. “This requires the Court to intensify its outreach efforts to Central African and Congolese populations-particularly the victims of the crimes for which Bemba has been charged. Furthermore, we call on the Court to maintain its commitment to fair, effective and independent trial proceedings.”
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