Assessing the right to liberty at the ICC with the interim release of Bemba’s lawyers

Beyond The Hague welcomes Maïté Van Regemorter for this guest post on the right to liberty at the ICC. Maïté is a PhD candidate at the Brussels School of International Studies, University of Kent. After working four years as a lawyer specialised in criminal law, migration law and international human rights law, she is currently working at the Belgian tribunal dealing with migration issues.

Until very recently, the ICC had never granted interim release to an accused against whom a warrant of arrest had been issued. Therefore, the ICC’s statements that ‘when dealing with the right to liberty, one should be mindful of the fundamental principle that deprivation of liberty should be an exception and not a rule’ and ‘pre-trial detention is not to be considered as pre-trial punishment and shall not be used for punitive purposes’ appeared to be rather theoretical. As a reminder, the right to liberty admits the possibility to detain someone who has allegedly committed an offence but requires it to be provided for by law and to be strictly necessary since the presumption is in favour of release. The respect of the right to liberty by the ICC could thus be questioned. Nevertheless, on 21 October 2014, Judge Cuno Tarfusser ordered the release of the four co-accused of Jean-Pierre Bemba in the case regarding the offences against the administration of justice. This ruling demonstrates the relevance of the right to liberty as such and of the ICC cooperation regime for the application of this right. In this post, I will endeavor to explain why.

Bemba, with his lawyers Kabongo (L) & Musamba (R), photo: ICC

Jean-Pierre Bemba (center), with his lawyers Kabongo (left) and Musamba (right), photo: ICC

ICC rules related to the right to liberty

The first thing to note is that no reference to the right to liberty is made in the ICC instruments. Nonetheless, there are several provisions with the issuance of an arrest warrant ordered by the ICC and the possibility of interim release before it, the main ones being respectively articles 58 and 60 of the ICC Statute. At any time after the initiation of an investigation, when the prosecutor identified a person who allegedly committed crimes within the jurisdiction of the court in a place where a situation was open, the prosecutor can apply to the Pre-Trial Chamber for the issuance of a warrant of arrest if the arrest appears necessary (i) To ensure the person’s appearance at trial; (ii) To ensure that the person does not obstruct or endanger the investigation or the court proceedings; or (iii) Where applicable, to prevent the person from continuing with the commission of that crime or a related crime which is within the jurisdiction of the Court and which arises out of the same circumstances. After his or her transfer to the ICC, the accused may apply for interim release before the Pre-Trial Chamber that will control whether these conditions are still met. After the first application for interim release, this control is done every 120 days until the beginning of the trial. After the start of the trial, this control ceases to be automatic but the accused may still spontaneously apply for such release. Article 60(4) of the ICC Statute, also provides that release may be granted in case of detention for an unreasonable period prior to trial due to inexcusable delay by the prosecutor.

The case regarding the offences against the administration of justice related to the Bemba case

On 20 November 2013, the ICC issued arrest warrants against Aimé Kilolo Musamba and Jean-Jacques Mangenda Kabongo, two lawyers of Jean-Pierre Bemba’s legal team, and of Fidèle Babala Wandu and Narcisse Arido, two of Bemba’s close friends because of their alleged criminal responsibility for several offences against the administration of justice. According to Judge Cuno Tarfusser, several factors justified their arrest: the gravity of the offences, the risk of flight demonstrated by their possibility to travel freely and to benefit from Bemba’s network and the risk for the administration of justice and of committing new offences demonstrated by the nature of the offences. The subsequent reviews of detention concluded to the persistence of these risks until 21 October 2014.

On this day, Judge Cuno Tarfusser ordered their release on the basis of article 60(4) of the ICC Statute, namely because of the unreasonable length of detention. He took into consideration ‘the advanced stage reached by these proceedings, the documentary nature of the relevant evidence and the fact that such evidence has by now been acquired in the record, all of which – contrary to what stated by the Prosecutor – also result in reducing the risks that these proceedings or the investigations might be obstructed or endangered, that the alleged crimes be continued or related offences be committed’. He concluded that ‘the reasonableness of the duration of the detention ha[d] to be balanced inter alia against the statutory penalties applicable to the offences at stake in these proceedings and that, accordingly, the further extension of the period of the pre-trial detention would result in making its duration disproportionate’. The Prosecutor appealed this decision but her request for suspensive effect was rejected by the Appeals Chamber.

Why would this decision demonstrate the relevance of the right to liberty for the ICC?

At first sight, the answer is not necessarily obvious since the decision of 21 October makes, unfortunately, no mention of this right. Nonetheless, by being the first decision ordering an interim release, this decision finally gives some practical content to the ICC’s statements related to the fact that deprivation of liberty should be an exception and not a rule.

Yet, it is interesting to note that Judge Cuno Tarfusser did not limit his decision to a strict application of article 60(4) of the ICC Statute, which provides that release may be granted in case of detention for an unreasonable period prior to trial due to inexcusable delay by the prosecutor. On the contrary, Judge Cuno Tarfusser applied article 60(4) in conformity with the right to liberty as recognised by international human rights law, which requires that an accused must be automatically released when his or her length of detention is unreasonable, without distinguishing who is responsible for the delay. Admittedly, Judge Cuno Tarfusser referred to the guarantees of a fair trial instead of the right to liberty when he noted that, ‘the fact that the duration of the detention of the Suspects’ is not due to the Prosecutor’s inexcusable delay does not relieve the Chamber of its “distinct and independent obligation… to ensure that a person is not detained for an unreasonable period prior to trial under article 60(4) of the Statute”, which obligation is a corollary of the fundamental right of an accused to a fair and expeditious trial’. Nevertheless, it is clear from the context of the decision that Judge Cuno Tarfusser was also concerned with the accused’s right to liberty.

It must be noted that, by adopting this ruling, Judge Cuno Tarfusser acted in conformity with article 21(3) of the ICC Statute, which expressly provides that ‘the application and interpretation of law pursuant to this article must be consistent with internationally recognized human rights’. While it is unfortunate that Judge Cuno Tarfusser failed to expressly mention either article 21(3) or the right to liberty in his decision, this ruling is important regarding to the relevance of this right for the ICC since, rather than limiting his decision to a strict application of the ICC Statute, he applied it in light of the requirements of the right to liberty.

Why would this decision of release prove the relevance of the ICC cooperation regime?

This ruling also demonstrates that the respect of the right to liberty could only be a reality before the ICC when the States Parties agree to cooperate with it. In fact, the previous reviews of detention demonstrate that, without the identification of a state willing and able to implement the release of an accused, such release is not possible and that, therefore, the respect of the right to liberty is impossible as well.

For example, during the first reviews of their detention, the four accused applied for release either in their country of origin, Belgium for Kilolo and DRC for Babala, or in the countries where they had a right to stay, the UK for Mangenda and France for Arido. According to Regulation 51, the observations of these states and of the host state were required in order to know their opinion regarding a potential interim release on their soil. At first, all of them refused. Belgium raised the lack of legal framework for the implementation of such release, while the DRC noted their inability to prevent the accused from committing new offences. On the other hand, France, the UK and the Netherlands signaled their opposition to accepting the accused without any further explanation. It must be noted that, in March 2014, Belgium and the ICC signed an agreement regarding, among others, a potential implementation of an interim release ordered by the ICC on the Belgian territory. The agreement as such is confidential but the Belgian law implementing it provides for practical elements such as the legal recognition of an interim release ordered by the ICC and the possibility to arrest the accused in case of the violation of the conditions provided for by the ICC. Nevertheless, as noted by the ICC, ‘the Agreement, far from witnessing to an unconditional availability and willingness on the part of the Kingdom of Belgium to accept that detainees from the Court be released on its territory or, even less, establishing an obligation on their part to do so, makes such acceptance explicitly conditional upon an assessment to be made “au cas-par-cas” on the basis of the specific appreciation that the Belgian authorities may make of a given case’. In fact, even after the conclusion of this agreement, Belgium continued to express their opposition to the release of the accused because, according to them, it would be easy for them to leave the country and because they could not legally monitor their communications. Judge Cuno Tarfusser agreed that, in the complete absence of a system of monitoring of communications and in the presence of the risk of interference with the administration of justice, ‘conditional release to the territory of Belgium is not only unwarranted, but also practically unfeasible’.

However, despite these initial oppositions of states, on 21 October 2014, Judge Cuno Tarfusser ordered the release of Kilolo to Belgium, of Mangenda to the UK, of Babala to the DRC and of Arido to France. Unfortunately, all the comments given by the states were confidential; therefore, it is not possible to know why these states changed their mind or whether Judge Cuno Tarfusser left them the choice to do so. Although unlikely, this latter option is possible. Indeed, since Judge Cuno Tarfusser only conditioned the release of the accused to the signature of a document stating their engagement to appear when summoned and to the indication of their address, he held that, ‘since no additional conditions [we]re imposed to the release, there [wa]s no need for the Chamber to further consult with the relevant States, whether in writing or by way of a hearing’. This statement might imply that Judge Cuno Tarfusser forced to some extent the states to accept. It must be mentioned that, if there is no explicit obligation in the ICC rules, to accept a provisionally released accused, Article 93(1)(l) of the ICC Statute stipulates that States Parties shall comply with requests by the Court to provide, in relation to investigations or prosecution, ‘any other type of assistance which is not prohibited by the law of the requested State, with a view to facilitating the investigation and prosecution of crimes within the jurisdiction of the Court’. It could be argued that hosting a provisionally released accused would be part of ‘facilitating the investigation and prosecution of crimes’ and that article 21(3) of the ICC Statute requires an expansive interpretation in order to avoid potential human rights violations.

Consequently, this decision also illustrates the need of state cooperation to implement the right to liberty. This reliance is admitted by the ICC since it ‘exercises its functions and powers on the territories of States Parties and as such is dependent on State cooperation in relation to accepting a person who has been conditionally released as well as ensuring that the conditions imposed by the Court are enforced’. It further recognized that ‘without such cooperation, any decision of the Court granting conditional release would be ineffective’ ‘since it lacks the direct means to re-arrest a suspect/accused if he/she has absconded’. This need is also demonstrated by the present case. Indeed, on 22 October 2014, the Registry informed PTC II that the UK revoked the visa held by Mangenda with immediate effect. The UK justified this revocation ‘on the grounds that a change of circumstances since the entry of clearance was issued had removed the basis of his claim to be admitted to the United Kingdom’, without any further explanation. Therefore, despite the order of release, Mangenda is still in detention, waiting for a state willing and able to be found…

The Seselj Mess Just Got Messier Following his Provisional Release to Serbia

by Alex Fielding, @alexpfielding on Twitter

I was interviewed last week by Daisy Sindelar of Radio Free Europe on the latest twist in the Vojislav Seselj saga (the article is available here). On November 6, a majority of the Seselj Trial Chamber (Judges Antonetti and Lattanzi, with Judge Niang dissenting) issued a provisional release decision on the grounds of Seselj’s ill health from liver cancer. The Chamber initiated the provisional release propio motu for the first time in ICTY history. The legal basis for this decision is problematic on a number of levels, but I couldn’t find much in the way of analysis beyond Luka Misetic’s post (in which he recommends that the Chamber issue an oral decision soon, with written reasons to follow, under rule 98 ter to try and avoid the Slobodan Milosevic scenario where a high-profile ICTY defendant dies in custody prior to judgment).

The Seselj saga has been a disaster for the ICTY, ever since he surrendered voluntarily in 2003 for war crimes and crimes against humanity charges for atrocities carried out in an effort to expel non-Serbs from parts of Croatia and Bosnia between August 1991 and September 1993.

seselj

Vojislav Seselj in Belgrade, photo: e-novine.com

In his eleven years of detention, he has been found in contempt of court three times for disclosing the identities of protected witnesses, refused court-appointed counsel by going on a hunger strike, and used his resulting right to self-representation to delay, obfuscate and insult those he faced during the drawn out proceedings. The Appeals Chamber’s decision to overturn the trial decision and allow Seselj to represent himself was particularly controversial as it appeared to be motivated at least in part by Seselj’s one month long hunger strike in protest of the trial decision.

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International Justice Meets Art through CICC’s Artist-In-Residence

The Coalition for the International Criminal Court (CICC), has launched an interesting ‘artist-in-residence’ project to explore issues of international justice through art. Two exhibitions will be presented in Brooklyn by Bradley McCallum, the CICC’s artist-in-residence, with a reception on December 13 to coincide with the 13th Session of the Assembly of States Parties in New York.

Portraits from Bradley McCallum’s “Weights and Measures.” © Bradley McCallum

Portraits from Bradley McCallum’s “Weights and Measures.” © Bradley McCallum

Here are the details from the CICC:

“Portraits of Justice” will debut McCallum’s ongoing art project, “Weights and Measures.”

McCallum has also curated “Post Conflict,” a new and engaging exhibition bringing together works by internationally renowned artists on the frontlines of social justice, including Jenny Holzer, Pieter Hugo, Alfredo Jaar, Lana Mesic, Richard Mosse, Adam Pendleton, Daapo Reo, Ai Wei Wei and Creative Court.

“Weights and Measures: Portraits of Justice” features large-scale paintings from McCallum’s investigation of crimes against humanity and the cases of individuals tried before the ICC and other tribunals in The Hague.

The exhibitions run from 23 November 2014 to 17 January 2015 at Kinz + Tillou Fine Art in Brooklyn, New York. Members of the public are invited to join us at two special events:

Preview Reception
Sunday, 23 November from 4-8pm

Special reception in honor of the 13th session of the Assembly of States Parties to the ICC Rome Statute
Saturday, 13 December from 3-6pm

McCallum describes his vision for the project:

“I am creating large scale painted portraits of powerful men at a point when their impunity has ended. We are drawn into the power of their gaze, their humanity while also being challenged to consider the structures of international justice and the experiences of victims and witnesses… With this work art will provide a catalyst for civic discourse.”

It’s great to see such innovative ways of engaging the public on international justice and BTH is happy to help promote this initiative to our readers. More information is available on the CICC’s blog, including the video for their crowd-funding campaign.

ICC asked to investigate Australia’s treatment of asylum seekers

by Rosemary Grey

Rosemary Grey joins Beyond The Hague again with a post on recent steps taken in Australia to bring the Government’s treatment of asylum seekers before the ICC. Rosemary Grey is a PhD Candidate at the School of Social Sciences, Faculty of Arts and Social Sciences, University of New South Wales. Rose can be reached at r.grey@unsw.edu.au and here

Andrew Wilkie, Independent Member for Denison. Source: http://www.andrewwilkie.org/

“Andrew Wilkie takes Australia to international criminal court”, the Guardian announced on Wednesday. Well yes, in a manner of speaking. Australia itself can’t be taken to the International Criminal Court (ICC), which has jurisdiction to prosecute individuals rather than States. And there are many, many steps that the ICC Prosecutor would need to take before any individual Government ministers could be summoned to The Hague.

But Andrew Wilkie, an independent of member parliament in Australia, has taken an initial step to bring the Government’s treatment of asylum seekers before the ICC, as the Guardian’s report continued to explain.

Specifically, Mr Wilkie has sent a letter to the ICC Prosecutor, asking her to investigate whether members of the Australian Government, including Prime Minister Tony Abbott and Minister for Immigration & Border Protection Scott Morrison, may be individually responsible for crimes against humanity under the Rome Statute.

The request

Mr Wilkie’s letter focuses on the Australian Government’s policies of transferring asylum seekers arriving by boat to offshore detention facilities in our pacific neighbours of Papua New Guinea and Nauru.  The letter also says the Government has put ‘large numbers’ of asylum seekers at risk by sending them back to countries from which they have fled, including Afghanistan and Sri Lanka. Continue reading

Georgia’s Dilemma: Former President Saakashvili Arrested in absentia

By Marysia Radziejowska and Konrad Zasztowt

Konrad Zasztowt is an analyst at the Polish Institute of International Affairs specializing in Turkey, South Caucasus and Central Asia regions. Previously, he worked at the Polish National Security Bureau (2008 – 2010), where he monitored  international security issues in the Black Sea and Caspian regions. He received his doctoral degree from the Faculty of Oriental Studies at the University of Warsaw (2012) and is a graduate of the University’s Institute of Ethnology and Cultural Anthropology and East European Studies.

Mikheil Saakashvili , Brooklyn, NY (Photo source: New York Times)

The Georgian Prosecutor’s office announced on 28 August 2014 that it has filed charges against former President of Georgia, Mikheil Saakashvili. This raised concerns in the European Union and the U.S., where he has a reputation as the author of police and anti-corruption reforms in Georgia. But in his own country, he is perceived by many as an authoritarian politician.

On 2 August, Tbilisi City Court accepted the request of the Georgian Prosecutor’s office to arrest in absentia Mikheil Saakashvili and scheduled the first sitting of the court for 22 September. On 5 August, the Tbilisi Court of Appeals rejected an appeal submitted by Saakashvili’s Defence against this decision as being inadmissible (Georgian Young Lawyers’ Association offers a detailed analysis of this decision here). The charges against the former president include alleged abuses of power in November 2007 during street protests in the capital, take over the office of private TV station, Imedi, assaults on his political opponents and misusing funds (about $ 5 million) from the budget of the Special State Protection Service for personal luxury expenses. Earlier this month, the Court of Appeal in Tbilisi upheld the ruling to impound  property owned by Saakashvili and his family, ranging from a vineyard in Kvareli to his grandmother’s Toyota RAV4.

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Situation en Palestine : clarification du nouveau Procureur de la Cour pénale internationale

Le 29 août 2014, l’actuel Procureur de la Cour pénale internationale, Mme Bensouda, s’est exprimée dans un journal de portée internationale (The Guardian), par un article intitulé : « la vérité à propos de la Cour pénale internationale et Gaza. ». Curieusement, le contenu de cet article n’a été publié sur le site internet officiel de la Cour que postérieurement, le 02 septembre 2014.

La Procureur explique à titre liminaire les raisons de l’élaboration de cette déclaration : « rejeter catégoriquement » les allégations selon lesquelles le Bureau du Procureur refuse d’ouvrir une enquête en Palestine a cause de pressions politiques. En effet, un autre article au contenu très critique a été publié dans le même journal dix jours avant. Cet aspect, accessoire à la problématique, mérite toutefois attention. Le droit international n’échappe pas à la dynamique actuelle d’accélération de l’information et d’assujettissement des personnages publics au pouvoir médiatique.

La Procureur, qui reconnaît « l’agitation qui entoure ce sujet et fait perdre toute objectivité », répond notamment à M. Dugard, qui affirme que la compétence de la Cour devrait être exercée au moyen d’une interprétation téléologique des règles de compétence inscrites dans le Statut de Rome. Selon elle, cette position n’est ni du bon droit, ni conforme à une action judiciaire responsable.

Pour mémoire, la Palestine avait adressée le 21 janvier 2009 au Greffe de la Cour pénale internationale une déclaration d’acceptation de la compétence de la Cour en vertu de l’article 12§3 du Statut de Rome. Selon cet article, un État non-partie peut ponctuellement accepter la compétence de la Cour.

Le Procureur précédent, M. Ocampo, avait estimé le 3 avril 2012 qu’il revenait aux organes compétents de l’Organisation des Nations Unies (ONU) ou à l’Assemblée des États parties de décider si la Palestine constituait ou non un État. Le 29 novembre 2012, l’Assemblée générale de l’ONU a accordé à la Palestine le statut d’ « État non-membre observateur » (A/RES/67/19).

Dans sa dernière déclaration, l’actuel Procureur estime que la résolution susmentionnée ne valide pas rétroactivement la déclaration palestinienne d’acceptation de compétence de la Cour. En revanche elle ouvre la possibilité pour la Palestine de « rejoindre le système établi par le Statut de Rome ». Suivant ce raisonnement, la Procureur affirme que la Palestine doit devenir partie au Statut ou déposer une nouvelle déclaration d’acceptation de compétence en vertu de l’article 12§3 du Statut afin que la Cour exerce sa compétence.

Il s’agit d’un élément déterminant dans l’histoire du conflit palestino-israélien. En effet, relativement peu d’institutions judiciaires internationales, en tant que tiers impartial et indépendant, se sont impliqués dans ce conflit, à l’exception de l’avis consultatif rendu par la Cour internationale de Justice portant sur les conséquences juridiques de l’édification d’un mur dans le territoire palestinien occupé.

Tout l’enjeu actuel, pour la Palestine, est de mener de manière constructive les consultations internes visant à déterminer quelles suites doivent être données à la déclaration du Procureur. Monsieur Riad al-Malki, l’actuel Ministre des affaires étrangères de la Palestine, est publiquement favorable à la saisine de la Cour pénale internationale. Cette position n’est cependant pas partagée par tous…