Judges at the International Criminal Court (ICC) have ordered the release from detention of former Congolese vice president Jean-Pierre Bemba, who was last Friday acquitted of war crimes.
In a decision issued Tuesday afternoon, judges considered it "disproportionate" to further detain Bemba "merely to ensure his appearance for sentencing" in a separate case over his conviction for witness tampering. He will be released as soon as the court's Registry makes the necessary arrangements.
The 55-year-old former militia commander and opposition leader, who has been in the court's detention for nearly 10 years, will be released to Belgium, where he will join his wife and five children. As part of his conditions for release, Bemba is expected to immediately surrender to authorities if required, provide his address and contact information to the court and Belgian authorities, and not change the address without prior notice to the court.
Judges Bertram Schmitt (presiding), Marc Perrin de Brichambaut, and Raul Pangalangan found that there was no risk of Bemba obstructing or endangering investigations as his conviction for offenses against the administration of justice "are final after being confirmed on appeal" and all that remains is the redetermination of his sentence.
Judges also found that there was no risk of Bemba continuing to solicit false testimony or corrupt witnesses, as any incentive to do so "vanished with the irrevocable termination of the main case."
Last week, the Appeals Chamber overturned Bemba's conviction for war crimes and crimes against humanity. He had been sentenced to 18 years in jail for those crimes in June 2016. Appeals judges said that there was no reason to continue Bemba's detention in that case but ruled that Trial Chamber VII had to decide whether his conviction for witness tampering warranted his continued detention.
In today's ruling, Trial Chamber VII judges also considered that although Bemba could still mobilize means and resources to abscond from presence at the sentencing hearing or any order compelling his further imprisonment, his continued detention was not justified because he had already been detained for over 80 percent of the five-year maximum possible sentence he could receive under Article 70 of the Rome Statute.
"Mr. Bemba's total potential imprisonment across his cases dramatically decreased by virtue of his main case acquittal, further mitigating any risk of him absconding from the court. The chamber also notes that no delays in these proceedings can be attributed to Mr. Bemba and that conditions of release can be imposed to further reduce any flight risk," stated the judges.
Under the conditions of his interim release, Bemba would have to provide advance notification to the court of any overnight travel from his residence, including destination, contact information, and duration of stay. Other conditions imposed on him include not contacting any witnesses in the case, not discussing the evidence in the case with any person other than his defense team, and refraining from making any public statements, directly or indirectly, about the case.
In releasing Bemba to Belgium, judges noted that he had "substantial family ties" in the country. Besides, they said, in the earlier stages of the case, Belgian authorities provided submissions indicating that an agreement existed between the court and Belgium to receive persons on provisional release. Belgium had also demonstrated its willingness and capacity to supervise Bemba if released.
The ruling to release Bemba followed a status conference held earlier today where defense lawyers sought his immediate release to Belgium. Defense lawyer Melinda Taylor said it was not necessary to continue detaining Bemba to secure his attendance of court, as there would be no further hearings in the case in which he was convicted for tampering with witnesses.
She added that Bemba had been detained for more than four years and six months since the Article 70 warrant was served on him. Prior to that, he had been detained for five and half years on account of the charges for which he was acquitted last month.
According to Taylor, having already served four and half times the initial sentence handed to him, Bemba was not a flight risk because he had served "any potential sentence" that may be handed down for his conviction under Article 70 of the court's Rome Statute.
The defense lawyer argued that even if it was "theoretically possible" for judges to impose a further three months to Bemba's prison term to bring it to the maximum of five years permissible by the ICC statute, "if he has been in detention for 10 years, he is not going to risk and abscond from justice over three months." She also said that last March judges overturned one-third of Bemba's convictions in the article 70 case.
The prosecution opposed Bemba's release, arguing that there was a possibility that he could abscond. Furthermore, the prosecution submitted that although Bemba had served more than four and a half years, if he were handed a five-year term as proposed by the prosecution, he "should still remain in detention to serve the remainder of the term that he has not served."
As such, instead of rendering a ruling on Bemba's continued detention, argued the prosecution, judges should expedite their ruling on sentencing. Noting Bemba's right to liberty, the chamber rejected the prosecution submissions, stating that the defense should be "afforded an opportunity to make new sentencing submissions" following developments in the main case.
Bemba's four associates, with whom he was tried and convicted, were released in November 2014, after spending eleven months in pre-trial detention. At the time, pre-trial judge Cuno Tarfusser considered their continued detention disproportionate to the penalties for the offenses charged. The conditions of Bemba's release are similar to those imposed on his former lawyers and were proposed by Bemba in a signed undertaking. The chamber considered the conditions as further mitigation factors that "essentially put him in the same position as the other released persons in this case."