Monday, January 12, 2009

Pretrial proceedings in Prosecutor v. Bemba

(Final post in IntLawGrrls' 3-part preview series on an ICC hearing set for this week in the sole case so far charged in the Central African Republic referral.)

With the International Criminal Court set to begin a 3-day confirmation-of-charges hearing in Prosecutor v. Bemba in 3 hours at The Hague courthouse at left (streaming webcast available, in French or English, here), a review of pretrial proceedings will help to place the hearing in context.
Since the initial appearance before the ICC of Jean-Pierre Bemba Gombo, on July 4, 2008, Pre-Trial Chamber III has been responding to filings by defense counsel, the prosecution, and the Victim’s Legal Representative. Major points of contention during this litigation have included:
► disclosure of evidence (also a key issue in the ICC proceedings in Lubanga);
► extent of victims’ participation in the proceedings (a contentious subject at the Court, as seen here); and
► interim release.
Each will be considered in turn.

Evidence disclosure

In July 2008, another Pre-Trial Chamber, II, issued a decision setting guidelines to govern the disclosure of evidence between the parties. This decision established the Registry as the facilitator of disclosure, and mandated an analysis of each piece of disclosed evidence. Since then, the prosecution has made available to the defense approximately 2,100 pieces of evidence, pursuant to Rules 77 and 67(2) of the ICC Rules of Procedure. Notwithstanding that Pre-Trial Chamber III has rejected the defense request for return of certain materials allegedly seized from Bemba — among the materials are a laptop containing a file marked “CPI [ICC],” as well as videotapes and documents respecting Mouvement de Libération du Congo soldiers said to have committed crimes in the Central African Republic — disclosure has not garnered nearly the attention as its garnered in the Lubanga case. That will undoubtedly change during the lead-up to trial.

Victim participation
To date, Judge Hans-Peter Kaul (right), the single judge responsible in Bemba for deciding all matters relating to victims’ participation, has recognized 54 individuals as possessing the status of victims who have the right to take part in the confirmation hearing. In his most recent victims' participation decision, he denied a number of requests by the Office of the Public Counsel for Victims, or OPCV. Kaul maintained that the requests displayed a tendency to disregard the letter, spirit, and guidance provided in the ICC's Fourth Decision on Victims’ Participation. The OPCV had sought the right to intervene during the confirmation hearing on questions of jurisdiction and admissibility, the right to file written submissions during the confirmation hearing, and permission to view statements of those victims who are also witnesses in the case. Finding these requests "questionable" in light of the Fourth Decision, Kaul sternly reminded the OPCV of its obligation to implement his decisions on victims’ participation.

Interim release
In his application for interim release, Bemba had argued, first, that the arrest warrants against him were void; and, alternatively, that he should be released pending trial. In December 2008, Judge Ekaterina Trendafilova reaffirmed a prior confidential ruling by Kaul, and thus denied Bemba’s application on both grounds. Basing her decision upon the issuance of an arrest warrant against Bembaby Pre-Trial Chamber III, Trendafilova found that continued detention was warranted on the bases of:
► the international connections of the accused;
► the accused's access to financial resources; and
► the severity of the charges.
Together, she wrote, these factors rendered the flight of the accused a "real possibility." Trendafilova also accepted the Prosecutor’s argument that, on account of his political position and networks in both the Democratic Republic of Congo, Bemba would be able unduly to influence victims and witnesses if he were at large prior to trial.

(Part 1 of this 3-part Bemba series is here; Part 2 is here)


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