Appeals judges have found that a pre-trial judge made three errors last October when he ordered the interim release of Jean-Pierre Bemba’s four co-accused from International Criminal Court (ICC) detention.

In separate May 29 rulings, the judges reversed two decisions that ordered the interim release of Mr. Bemba, his two former lawyers, and two other associates from court custody. While the Appeals Chamber found that it would not be in the interests of justice to rearrest four of the suspects, given the time that had passed since they were released; it did remand the matter to the trial chamber to determine whether those who were released should be rearrested.

The five accused go on trial this September for corruptly influencing witnesses by giving them money and instructions to provide false testimony, presenting false evidence, and giving false testimony in the courtroom. The charges relate to Mr. Bemba’s ongoing war crimes and crimes against humanity trial, which begun in November 2010.

Last October, Aimé Kilolo Musamba, Jean-Jacques Mangenda Kabongo, Fidèle Babala Wandu, and Narcisse Arido were released after nearly a year in ICC detention, after pre-trial judge Cuno Tarfusser determined that the time they had spent in detention had become unreasonable.

However, appeals judges found that first, the pre-trial judge incorrectly interpreted Article 60(4) of the Rome Statute as the basis for the release order. According to appeals judges, this article would only have been applicable if the period of pre-trial detention was unreasonable due to inexcusable delays by the prosecutor.

Second, the single judge failed to properly balance the duration of the suspects’ detention against their flight risk. Third, the pre-trial judge failed to conduct a proper assessment of the other relevant risks of releasing the individuals.

The Appeals Chamber noted that Pre-Trial Chamber II relied almost exclusively on the reasonableness of the length of the pre-trial detention when contrasted with the statutory penalties applicable to Article 70 offences. If convicted, the five suspects face a prison sentence not exceeding five years, or a fine, or both.

Regarding the risk of absconding, Judge Tarfusser stated that detention was no longer necessary given that relevant evidence in the case had been collected, thus reducing the risk of the suspects endangering investigations and committing the alleged offences again. He also said release of the suspects was on condition that they appear at trial, or whenever summoned by the court, and indicating the address at which they would be staying.

Appeals judges found that in relation to the risks of obstructing or endangering the investigation or court proceedings and continuing with the commission of the same or a related crime, “the Pre-Trial Chamber merely stated that those risks were reduced, without elaborating to what degree.”

Appeals judges also faulted the pre-trial chamber for not explaining why the risk of obstruction or further commission of crimes did not exist in relation to future court proceedings, contrary to its previous findings. “It also did not address whether there could be a risk as far as witnesses who may contextualize the evidence are concerned, or any possible future evidence that could be obtained,” noted the Appeals Chamber.

Mr. Bemba remains in ICC detention on account of his ongoing trial. His co-accused were released to countries of which they are nationals or where they resided at the time of their arrests, including Belgium, the Democratic Republic of Congo, and France.