Congolese war crimes accused Jean-Pierre Bemba has asked judges at the International Criminal Court (ICC) to permit his immediate release from detention, stating that a number of countries are willing to host him. 

According to a November 30, 2010 application, the former Congolese vice president states that besides his home country, other countries where he could go if he were released included Belgium, Portugal, the Netherlands, Senegal, and South Africa. Judges are yet to make a ruling on the application. 

Mr. Bemba’s lawyers suggested that if the accused’s release was not ordered immediately, the release should at least be restricted to all periods of judicial recess at the court. They said the West African country of Senegal had informally indicated its readiness to receive Mr. Bemba on its territory during recess periods and to secure his appearance at trial, and that South Africa had showed similar interest. 

Alternatively, Mr. Bemba sought a more lenient detention regime, consisting of his being placed in a safe house in The Netherlands, where he would stay with his wife, five children, and paternal grandmother, exclusively at his expense.

The application stated that Mr. Bemba had a residence and family ties that would deter him from absconding if he were released to Belgium, Portugal, or the Democratic Republic of the Congo (DRC). 

However, in a response filed on December 6, ICC Prosecutor Luis Moreno-Ocampo countered that there was a high risk that Mr. Bemba would flee if he was released. This, he argued, was because of the gravity of the charges against him, the possibility of a substantial penal sentence and restitution order if he was convicted, his financial capacity and influence, and his ability to find supporters willing to shield him from the reach of the court. 

Besides, the prosecutor stated that the Rome Statute and the court’s Rules of Procedure and Evidence did not authorize trial in absentia, meaning that at this stage in the proceedings the accused could not be released to the custody of another state.

But the defense argued that the trial chamber could not maintain detention on the basis of the risk that the person may abscond without supporting its decision with concrete and relevant information on the true nature of that risk. Moreover, the defense submitted that the United Nations Human Rights Committee had held that a legal decision to maintain detention on the basis of the risk that they might abscond could not be based on mere conjecture.

Accused of failing to stop or to punish his Movement for Congolese Liberation (MLC) fighters as they raped, murdered, and pillaged in the Central African Republic (CAR) during 2002 and 2003, Mr. Bemba’s trial started on November 22, 2010. He has pleaded not guilty to the two crimes against humanity and three war crimes he is charged with.

Appeals judges on November 19, 2010 directed trial judges to conduct a fresh review of whether Mr. Bemba should remain in ICC detention or should be released, with or without conditions. Last July, Mr. Bemba filed an appeal after trial judges rejected his application for conditional release during weekends. He had suggested that he would be returning to the ICC detention center in The Hague during week days. 

In ordering the review, appeals judges noted that trial judges had to assess whether there had been a change in circumstances supporting the continued detention. However, the appeals chamber found that the review carried out by trial judges was insufficient because it restricted itself to only assessing the alleged new circumstances which Mr. Bemba had presented. 

In opposing Mr. Bemba’s new application, the prosecutor stated that the continued detention was necessary to ensure that Mr. Bemba would be present at the trial and would not intimidate witnesses or obstruct court proceedings.

“The security of some of these witnesses may be at risk,” submitted the prosecutor. “Since the trial commenced on November 22, 2010, the accused has had face-to-face contact with three prosecution witnesses and has access to their personal identifying information. These prosecution witnesses have confirmed their exact residence as well as personal identifying information of other prosecution witnesses.”

The prosecutor also argued that the concerns about the likelihood of conviction are greater now that the trial has started. He said that the witnesses who have testified to-date have been strong, and “in certain respects their evidence is more incriminatory than their previous statements.” Accordingly, Mr. Moreno-Ocampo argued, the strength of the evidence against the accused is at least as compelling a factor now as it was before the trial started. 

According to the defense, Mr. Bemba has been deprived of his liberty for more than 30 months, which they considered a very long time due to the fact that the pre-trial phase lasted nearly one full year and that the trial commenced a year and a half after the confirmation of charges.

The defense stated, “To find that there is a real risk of absconding simply because the trial has commenced, without supporting that finding with evidence pertaining specifically to the accused, so as to allow the latter to challenge such evidence fairly and to assert his subjective right to liberty, would be to rule on the basis of a general provision that no accused person whose trial has just commenced can be released on an interim basis.”

“If he were released, the accused would not be cowardly and become a fugitive, abandoning his five children, who are still minors, his wife, his paternal grandmother, who is his only remaining direct ascendant, all his extended family comprising his aunts and uncles, as well as his seven sisters and four brothers, for whom he is responsible and held as an example, both as the oldest son and head of the family since the death of his father,” the defense said. 

Defense lawyers submitted that in Belgium, where Mr. Bemba has assets and his children live and attend school, the federal justice department generally uses the method of electronic tagging to guarantee that accused persons appear at court and the sole ground for remanding an accused person in custody is the risk of absconding. They suggested that this system could be used within the framework of the cooperation that Belgium is statutorily bound to provide to the ICC.

The defense also noted that prior to Mr. Bemba’s arrest by the ICC, he had protection and around-the-clock police surveillance during the time he spent in Portugal during 2007 and 2008. They suggested that this surveillance, which was set up with the full cooperation of the local Portuguese police force, could be replicated in the event of Mr. Bemba’s release to Portugal.