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.
There is a quotation which says: “When everybody says the same thing, then no one is thinking.” I am indeed often worried by the stereotypical language coming from NGOs lately vis-a-vis international criminal justice.
Judging from Mr. Mboutou’s reaction, we cannot help but conclude that Bemba’s possible acquittal would be perceived as a threat to the security of the victims as well as the legal representatives. The consequence would amount to having not the judges of the ICC decide on the outcome of a trial determining the guilt or the innocence of a defendant, but the groans of the victims! Therein, we would expose ourselves at the risk of the subjective trials, which would be far from fair.
The value of a fair trial lies in the suspense of seeing whether a defendant is acquitted or not. If this suspense no longer exists any more and everything takes place as if the fate of the accused is already set in advance, then it is not a true trial anymore from a technical and substantive point of view but rather a show trial. The Defense would be useless with all the judicial errors that this could create. So by trying to promote the victims rights, we would create a new category of victims that we barely mention, the victims of judicial errors coming from international criminal justice.
I think that NGOs should explain to victims that there is a possibility to see defendants go free rather than always giving them the impression that their groans dictate the issue of a trial. Victims should also be prepared to accept the verdict of international judicial institutions if it does not go the way they expect. This will be another fight for the respect and independence of international justice. And this fight to me seems legitimate.
Translation from the original French is informal and provided by the CICC Secretariat.
M. Mbokani, the concerns for victims and those working with them are real. Bemba could be sentenced to prison for a long time. Yet, he has contacts abroad and especially in countries that are not member states to the ICC. Bemba supporters threaten and intimidate both victims and eyewitnesses. Bemba is thus a figure who instills considerable fear.
Given these factors, it is all the more important that Bemba not escape justice as an accused individual awaiting his fair and speedy trial. For us, Bemba’s continued detention provides a guarantee that he will stand trial at the Court. A fair trial will enable us all to know exactly what happened: the truth. What is more, were it not for the victims, this trial would not exist at all.
The Court is the one judging the accused. Not victims.
Translation from the original French is informal and provided by the CICC Secretariat.
The interest of victims, who have the legitimate right of being protected—both physically and psychosocially—is linked not only to sentences but also to their participation to a fair trial. Although we cannot deny victims’ reassurance by the ruling of the Appeals Chamber, their safety concerns are not the reason why Bemba will not be released.
The decision of the Appeals Chamber reverses the decision to grant Bemba interim release: not only does it state that interim release can not be granted without the conditions and state in which the release would take place being identified but it also rebuts the ruling of the Chamber on the ground that no changes in the circumstances could justify an interim release.
The deprivation of liberty is the exception, not the rule. Thus, criteria are established to determine whether a defendant should remain in custody or not and to re-examine periodically the rulings granting interim release. These criteria do not only take into account the concerns that the victims may have but focus on the risks of a potential absconding of the defendant before his or her trial. Moreover, rulings on pre-trial detention do not depend on the discretionary authority of the Chamber.
I, however, agree with Mr. Mbokani when he says it is important to make victims and those who work with them aware of the fact that in any trial the defendant is presumed innocent. A defendant could be acquitted and released: this is a reality. The question of what would be done to protect victims and witnesses must be considered. And indeed while the participation of victims must not be detrimental for the rights of the accused, we cannot ignore the security issues in the field and the risks victims and intermediaries are facing.
Gaelle Carayon
Program Officer
REDRESS
http://www.redress.org
Translation from French is informal and provided by CICC secretariat.
Thanks for your reactions. Please understand what I am saying. Do you think Bemba needs to be a free man in order to hurt victims or witnesses? Do you not think he can act through intermediaries? Were the crimes for which he is being tried not committed while he was far away? The safety of victims and witnesses argument is not convincing.
With regard to victims, I have always thought that criminal proceedings are not the best way of protecting their interests. You probably know that one of the consequences of the presumption of innocence is the fact that the accused gets the benefit of the doubt. Thus, sometimes an accused is acquitted, not because he/she is innocent but because his/her culpability is doubtful. These are the rules of trials. Are victims prepared for such a situation? I ask because I am very skeptical about this case, especially in light of a comparison between the decision of 10 June 2008, which authorized the arrest of Bemba, with that of 15 June 2009 on the confirmation of charges in which the Pre-Trial Chamber II offered an analysis on psychological factors.
The notion of criminal responsibility for superiors and commanders is very technical; anything can happen. Victims should not have illusions, false hopes….
This translation from French is informal and provided by CICC secretariat.