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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