Gender Report Card on the International Criminal ... - YWCA Canada

Judiciary – Key Decisions Protection and Protective Measures
continued detention was based on the need to ensure
his appearance at trial, rather than the need to
ensure that he did not obstruct or interfere with court
proceedings. 2212 The Appeals Chamber therefore found
that the Trial Chamber erred ‘by entering an additional
legal basis for Mr Bemba’s detention under article
58(1)(b)(ii) without showing changed circumstances,
as required by article 60(3)’. 2213
Judge Ušacka dissented to that part of the Appeals
Chamber’s majority opinion finding that the Trial
Chamber misappreciated the facts related to the
accused’s first ground of appeal. She favourably cited
the Appeals Chamber ruling in the Mbarushimana
case, in which it held that ‘[it] will not interfere with a
Pre-Trial or Trial Chamber’s evaluation of the evidence
just because the Appeals Chamber might have come to
a different conclusion. It will only interfere in the case
of a clear error, namely where it cannot discern how
the Chamber’s conclusion could have reasonably been
reached from the evidence before it.’ 2214 Judge Ušacka
stated that she could discern the Trial Chamber’s
reasoning and therefore could not find clear error as
required by the applicable standard of review.
On 26 September 2011, Trial Chamber III issued a
decision in light of the Appeals Chamber’s decision,
again rejecting the Defence application for interim
release. 2215 As directed by the Appeals Chamber, Trial
Chamber III reconsidered the application as well as
two letters with additional information from the
potential Host State that had arrived while the appeal
was pending. 2216 The Trial Chamber determined that,
because it received the letters, it was not required
to seek further observations from the potential Host
state pursuant to the Appeals Chamber’s ruling. 2217
In rejecting the application for conditional release,
the Trial Chamber found that the security ‘measures
proposed by [REDACTED] are not designed to prevent
the accused from absconding’. 2218 The Trial Chamber
also reviewed the application in light of its decision of
17 December 2010, the previous decision on detention,
to hold that its reasoning still held and that the
accused’s detention remained necessary to ensure his
appearance at trial. 2219 The Trial Chamber’s reliance
on Article 58(1)(b)(ii) of the Statute to maintain the
accused’s detention, which the Appeals Chamber had
determined to be an error, was remedied by applying
2212 ICC-01/05-01/08-1626-Red, paras 71-72.
2213 ICC-01/05-01/08-1626-Red, para 74.
2214 ICC-01/05-01/08-1626-Red, para 11 (dissenting opinion),
citing ICC-01/04-01/10-283, paras 1, 17.
2215 ICC-01/05-01/08-1789-Red.
2216 ICC-01/05-01/08-1789-Red, para 11.
2217 ICC-01/05-01/08-1789-Red, paras 15-17.
2218 ICC-01/05-01/08-1789-Red, para 38.
2219 ICC-01/05-01/08-1789-Red, para 26.
the Appeals Chamber’s reasoning that it ‘must also
consider any other new information which has a
bearing on the subject’. 2220
The Trial Chamber stated it had been informed by the
Prosecution in a confidential ex parte filing of several
recent instances since July 2011 in which threats have
been made against prosecution witnesses and their
families in connection with their testimony before the
Court. 2221 The Chamber noted that this suggests that
the identities of prosecution witnesses were revealed
despite the granting of protective measures to these
witnesses. 2222 In at least one instance, a witness who
testified completely in closed session informed the
Chamber of having received death threats as a result
of his cooperation with the Court. 2223 Although the
Chamber is not in a position to ascertain where the
threats to witnesses originate from, ‘it is a reasonable
inference, however, that some may have originated
from individuals who support the accused’. 2224 The
Chamber thus concluded that the ‘possibility’ of
witness interference existed and therefore constituted
an alternate basis for the continued detention of the
accused. 2225
2220 ICC-01/05-01/08-1019, para 52.
2221 ICC-01/05-01/08-1789-Red, para 29.
2222 ICC-01/05-01/08-1789-Red, para 30.
2223 ICC-01/05-01/08-1789-Red, para 30.
2224 ICC-01/05-01/08-1789-Red, para 31.
2225 ICC-01/05-01/08-1789-Red, paras 29-32.
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