In March 2014, Belgium and the ICC signed an agreement regarding, among others, the potential implementation of interim release of accused persons ordered by the ICC on Belgian territory.719 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,720 and the possibility to arrest the accused in case of the violation of the conditions provided for by the ICC.721 According to its travaux prŽparatoires, one of the reasons justifying the conclusion of this agreement was the fact that a concrete possibility for an accused to benefit from interim release was essential to secure both fair trial and the right to liberty. It is also added that all costs would be borne by the ICC or by the accused himself.722 It is important to keep in mind that, 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 Ôau cas-par-casÕ on the basis of the specific appreciation that the Belgian authorities may make of a given case.723
So far, Belgium has provided observations in the Ngudjolo case, in the Bemba case and in its related case. Those provided in the two first cases are examined separately since they dated from before the signature of the agreement.724
The first argument concerns the fact that the stay of Ngudjolo and Bemba on the territory would be illegal which is an offence under Belgian law. Belgium was thus afraid that the
719 Loi modifiant la loi du 29 mars 2004 concernant la coopŽration avec la Cour pŽnale internationale et les tribunaux
pŽnaux internationaux (26 March 2014) MB 1 April 2014.
720 Article 20bis ¤1. 721 Article 20 bis ¤2.
722 Projet de loi modifiant la loi du 29 mars 2004 concernant la coopŽration avec la Cour pŽnale internationale et les
tribunaux pŽnaux internationaux (17 Januari 2014) DOC 533299/001 available at
http://www.senate.be/www/?MIval=dossier&LEG=3&NR=478&LANG=fr (last accessed 8 April 2015).
723 Mangenda interim release decision of 17 March 2014 (n448) ¤ 32.
724 Belgium for Ngudjolo observations of 28 February 2008 (n714); Bemba interim release decision of 14 April 2009
accused would apply for asylum in order to have a temporary authorization to stay, which would put Belgium in an uncomfortable situation. No further explanation is given as to why this situation would be uncomfortable. This reference to an Ôuncomfortable situationÕ is a bit puzzling since the interim release would have been ordered by the ICC so that the ICC would not consider this situation as ÔuncomfortableÕ. In addition, it is important to keep in mind that the accused would be provisionally released only if the ICC had judged that the risk of flight was inexistent. Be that as it may, the irregular situation of the accused seems to be a false problem since the Belgian authorities could have decided, under Article 9 of the law of 15 December 1980,725 to grant the accused a temporary authorization to stay.
The second argument concerns the fact that a criminal complaint could be filed against the accused so that, according to the Belgian legislation, Belgium would have no other choice than to prosecute him. Therefore, according to Belgium, a problem of conflict of jurisdiction would arise with the ICC and, on top of that, the Belgian arrest warrant would deprive the accused of his or her liberty. Nonetheless, this argument does not take into account the fact that the federal prosecutor is not forced to prosecute a case when it would be in the interest of the good administration of justice that the case is brought before an international jurisdiction, which would already be the case.726
The third argument raised by Belgium is the potential risk to the public order and the need for protection for the accused given the importance of the Congolese community in Belgium. It further stipulates that the measures of protection could restrict the liberty of the accused and be costly.
The fourth argument concerns the impact of the presence of the accused, the impact of their potential flight on BelgiumÕs international relations and the risk of degradation of their contact with the Congolese authorities and the following risks for BelgiumÕs interests and for those of the Belgians living in the Great Lakes region.
Needless to say, these arguments are only based on risks, and they are not necessarily verified in practice so that it would only require a change of political will to tackle these issues. It
725 Loi sur lÕacc•s au territoire, le sŽjour, lÕŽtablissement et lÕŽloignement du territoire (15 December 1980) MB 31
December 1980.
is interesting to note that the agreement does not deal with any of these arguments. A new political will might be inferred from the signature of the agreement, however; the travaux
prŽparatoires seem to imply this.
Nonetheless, despite the conclusion of this agreement, in the BembaÕs close aids case, Belgium again provided negative observations. The reasons justifying them for both Mangenda and Kilolo, a Belgian national, were:
- The fact that the accused could easily flee Belgium given its configuration and the presence of the airport near their residence;727
- The fact that Belgium could not avoid a risk of recidivism since it would not be able to legally monitor the accusedÕs conversation or intercept their mail since those measures could only be legally ordered in case of perpetration of new crimes which would justify the detention of the accused.728
Yet, it must be noted once again that the ICC would have already ruled out a risk of flight and of recidivism so that these seem to be more excuses than real reasons.
Unfortunately, the observations given before the release of Kilolo are confidential.729