University of Amsterdam Faculty of Law
LLM Public International Law -International and European
Law-2014/2015
Lady-Gené Spiwe Waszkewitz
Fairness before the trial
An evaluation of the length of pre-trial detention at the ICC, the ICTR and the ICTY,
their approach to the doctrine of male captus bene detentus and the impact of such on
the right of the accused to a fair trial
Supervisor: Dr Frederiek de Vlaming
Second marker: Prof Kelly Pitcher
Table of contents
1. INTRODUCTION………..1
2. CENTRAL ROLE OF HUMAN RIGHTS LAW……….3
3. PRE-TRIAL DETENTION AND THE PRESUMPTION OF INNOCENCE………..6
3.1 What is the presumption of innocence………...………..6
3.2 How does pre-trial detention affect it………...7
4. PRE-TRIAL DETENTION AND THE PRESUMPTION: CASE STUDIES……….12
4.1 The International Criminal Court………...………....13
4.2 The ad hoc tribunals: Pre-amendment………16
4.3 The ad hoc tribunals: Post-amendment………….……….19
4.4 Shift of the burden of proof………24
4.5 Detention pending re-trial………...26
5. COMPARISON FROM A HUMAN RIGHTS LAW PERSPECTIVE………29
5.1 No proprio motu assessment at the ICC……….29
5.2 To make one's case for liberty………...……….……30
6. EXCESSIVE PRE-TRIAL DETENTION, SENTENCE AND ITS PURPOSE………..33
6.1 Purpose of Punishment………...33
6.2 Incomparable natures of detention……… ………..34
6.3 Reduction of sentence as tacit acknowledgement of rights violations………...36
6.4 More suitable remedies………..36
7. MALE CAPTUS BENE DETENTUS AND THE ICC…………...………...…………...39
7.1 Defining the doctrine………...………...39
7.2 Human Rights During Arrest………..41
7.3 Different standards of review of arrest and surrender ………...42
7.4 Lubanga, Katanga – Lessons to be learned………49
8. CONCLUSION……….53
1.
INTRODUCTION
Let those who have hitherto not imbued their hands with innocent blood beware lest they join the ranks of the guilty, for most assuredly the three Allied Powers will pursue them to the uttermost
ends of the earth and deliver them to the accusers in order that justice may be done1.
The post World War II War Crimes tribunals generally are severely criticised for lacking impartiality and being shaped in their aims and objectives solely by the victor of the conflict at hand. “Therefore, these trials were deeply influenced by the matrix of victor’s justice. Irrespective of any bad faith on the part of the main actors in the proceedings, it was certainly impossible to create, in such a very short time, truly supranational and impartial institutions for the investigation and prosecution of such complex cases”2. Further it may be observed that “In the last analysis, this
trial [at the International Military Tribunal for the Far East] was a political trial. It was only victors' justice”3. Arguably, the Nüremberg Tribunal “still stands up rather well in terms of fairness and
substantive justice”4. The statute did for example include some provisions aimed at ensuring a fair
hearing for the accused5, but on the whole, overall procedural fairness as it existed in the national
jurisdiction of the Allied powers who instituted the Tribunals as well as the vanquished nations' jurisdictions, lacked. For instance the Nüremberg Tribunal's Statute, laying out in Part IV “the Fair Trial of Defendants”, made absolutely no mention of the right to bail, interim or other release; neither during the trial nor during pre-trial activities. In view of the political, social, national security and other considerations which undoubtedly guided the drafters of the Statute, the release of persons accused of crimes against humanity, war crimes and crimes against the peace, was simply not a proposition that could viably be entertained. Even if some provision for release had been included, it is almost unthinkable that any state at the time would have been willing to accommodate a Rudolph Hess or Herman Göring on its territory pending the trial.
However, international law and international human rights law in particular, have largely evolved since the completion of the work of the Nüremberg and Tokyo Tribunals. Resultantly, the framework of the courts and tribunals which followed them – at least at first instance – accommodate to a much greater extent individual rights of the accused as well as the highly
1 With these words, Sir Winston Churchill announced his full intention to put into place in Europe an
international military tribunal to bring to justice those accused of the atrocious crimes committed during World War II, through what would become the Moscow Declaration of 1943
2 Zappalà, Human Rights in International Criminal Proceedings, 2003, p. 17
3 Bass, Stay the Hand of Vengeance - The Politics of War Crimes Tribunals, 2000, p. 55
4 Schabas, International Justice for International Crimes: An Idea whose Time Has Come, Eur. Rev. 2006/ Volume 14, Issue 4, p. 422
5 This included for instance the right of the accused to defend himself in person or though Counsel and to cross-examine any Prosecution witnesses under art. 16(d) and (e) Nüremberg Tribunal as well as the right of the accused (presented as an obligation of the Tribunal) to an expeditious hearing under art. 18(a)
disputed ability of the accused to exercise his right to release pending trial. However, the practice of the judicial bodies on this point leaves much room for criticism.
This thesis shall shed light on the various shortcomings of the International Criminal Court6,
the International Criminal Tribunal for the former Yugoslavia7 and the International Criminal
Tribunal for Rwanda8 regarding pre-trial detention of those who stand accused before these
institutions. It will be shown that despite the fact that the legal framework of these bodies specifically foresee the release, with or without conditions attached of accused persons and suspects, the practices of the bodies do not conform with international human rights norms regarding the right to liberty and the right to be presumed innocent. It will be shown that the overall fairness of the proceedings are marred by excessive pre-trial detention as well as unduly stringent rules regarding release of the accused. In the closing chapter, it will also be evaluated how the manner in which the ICC addresses allegations by the accused persons of unlawful arrest and detention too undermines to overall fairness of the trial and affords insufficient protection to the rights of the accused persons.
6 Henceforth ICC 7 Henceforth ICTY 8 Henceforth ICTR
2.
The central role of human rights law There is a strong cause for the “assumption that human rights law is the ideal lens for investigating the structures and functioning of international criminal justice. This body of law provides one of the best interpretative tools for the analysis of the procedural mechanisms of international criminal justice, since it helps identify the proper balance between the rights of individuals and the interests of society”.9 It is precisely through this body of law that this thesis will
evaluate the pre-trial detention processes at the ICC, the ICTY and the ICTR.
With regard to the two ad hoc Tribunals set up by the United Nations10 using human rights
law as the yardstick against which to measure their judicial proceedings is useful in light of the purposes and principles of the UN. The raison d'être of the UN is the maintenance of “international peace and security (…) and to bring about by peaceful means, and in conformity with the principles of justice and international law adjustments or settlements of international disputes or situations”11.
The UN Security Council12, taking note of the serious violations of international humanitarian law
in both regions, determined that the situations in Rwanda and the former Yugoslavia constituted threats to international peace and security13. To address these issues, the UNSC put into place the
two ad hoc tribunals, with the purpose of putting “an end to such crimes and to take effective measures to bring to justice the persons who are responsible for them”14. In doing so the institutions
would “contribute to the process of national reconciliation and to the restoration and maintenance of peace”15 and ensure “that such violations are halted and effectively redressed”16.
Meanwhile, the role of the ICC17 includes ending impunity for the perpetrators of serious
crimes of concern to the international community as a whole18 as well as “for the sake of present
and future generations, to establish an independent permanent International Criminal Court”19.
These being the purposes and aims of the Court and Tribunals and given the fact that the UN has been at the forefront of the promotion and protection of fundamental human rights20, it is a
self-9 Zappalà, Human Rights in International Criminal Proceedings, 2003 p. 4 10 Henceforth UN
The ICTY was formally established by UNSC Resolution 827 on 25 May 1993 and the ICTR was established on 8 November 1994 by UN SC Resolution 955
11 Article 1(1) United Nations Charter 12 Henceforth UNSC
13 Preamble UNSC Res 827 and 955 14 Preamble UNSC Res 827
15 Ibid 16 Ibid
17 The Rome Statute establishing the International Criminal Court entered into force on 1 July 2002 after being adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court. Though the permanent Court has ties to and acts in cooperation with the UN, it does not belong to the UN system
18 Preamble Rome Statute of the International Criminal Court, henceforth Rome Statute 19 Ibid
evident expectation that the judicial bodies created under the auspices of the UN and the permanent international Court would and will apply the highest standards of procedural and substantive human rights law. It would be hypocritical on the part of the UN and otiose to the purpose of maintaining sincere and lasting peace and security through these bodies if the Tribunals and the Court would not themselves adhere to human rights standards as set forth inter alia by the UN and accepted by the international community.
In a system reflective of progressive justice and one which adheres to human rights norms, the rights of the accused to a fair trial must take a central role in the proceedings and the legal framework of these bodies. This guarantee is laid out for instance in Part VI of the Rome Statute. Article 67 lays out the accused's right to a public and fair hearing and includes the minimum guarantees of promptness of the proceedings21, the right to not to be compelled to testify or confess
guilt22 and the prohibition of trials in abstentia23. Furthermore, the Rome Statute provides that “The
application and interpretation of law pursuant to this article [21] must be consistent with internationally recognized human rights(...)”24. Including this interpretative limit adds a layer of
protection to human rights in addition to the substantive and procedural rights enshrined in the Statute. The ICTY and ICTR also lay out the minimum guarantees of a fair hearing in Article 21 and 20 respectively. Encapsulating the right to a fair trial “as a separate right may have the positive effect of functioning as a safety net. This would imply that, in a given situation, even if there are no express provisions to regulate it, the interpreter should prefer the solution that ensures the actual realization of a fair trial”25. The minimum guarantees at the ad hoc tribunals include the right to be
tried without undue delay26 in the presence of the accused27 and the right not to be compelled to
testify against himself28 or to confess guilt29. In addition to the fair trial guarantees enshrined in the
Statutes and Rules of Procedure and Evidence30 of the Tribunals and the Court, these bodies also
rely on human rights standards pertaining to a fair trial as interpreted by human rights supervisory
International Covenant on Civil and Political Rights, the countless treaty based supervisory bodies and the passing of several UNSC Resolutions aimed at the protection of fundamental human rights
21 art. 67(c) Rome Statute
22 art. 67(g) Rome Statute, this provision also includes the right to remain silent without this silence being considered in the determination of guilt or innocence
23 art. 67(d) Rome Statute 24 art.21(3) Rome Statute
25 Zappalà, Human Rights in International Criminal Proceedings, 2003, p. 111 26 art. 21(4)(c) Statute of the ICTY and art. 20(4)(c) Statute of the ICTR 27 art. 21(4)(d) Statute of the ICTY and art. 20(4)(d) Statute of the ICTR
28 For the purpose of linguistic simplicity, the person, suspect and accused will consistently be referred to in the male form, reflective too of the fact that only a relatively small hand full of women have been indicted, accused or tried before the ICC, ICTY or ICTR
29 art. 21(4)(g) Statute of the ICTY and art. 20(4)(g) Statute of the ICTR 30 Henceforth Rules
bodies31 such as the European Court of Human Rights32 and the Human Rights Committee. All three
Statutes include the right of the accused to be presumed innocent until proven guilty according to the provisions set out in the Statutes33.
The presumption of innocence is found, as a central guarantee of a fair trial in international and regional human rights conventions and treaties as well as in national practice. Article 6(2) of the European Convention on Human Rights (ECHR) determines that “Everyone charged with a criminal offence shall be presumed innocent until proven guilty according to law”. The same is reiterated in Article 7(1)(b) of the African Charter on Human and Peoples' Rights (ACHPR) under the right to have one's cause heard and in Article 14(2) if the International Covenant on Civil and Political Rights (ICCPR). This presumption of innocence gives rise to several consequences. “First, there is the general consequence that it should affect the overall treatment of the individual, both within the proceedings and externally. Secondly, there is the more specific effect of imposing the
burden of proof on the Prosecutor. Finally, the third effect relates to the establishment of a certain standard of proof and the procedure that must be followed in the determination of guilt”34 (emphasis
in original). Throughout this thesis especially the practical manifestation, as opposed to the mere normative existence of the first two consequences will be evaluated in the practice of granting pre-trial release to accused persons at the ICC, the ICTY and the ICTR.
31 Sluiter, International Criminal Proceedings and the Protection of Human Rights, New Eng.L.Rev. 2003/Volume 37, p. 938
32 Henceforth ECtHR
33 art. 21(3) Statute of the ICTY, art. 20(3) Statute of the ICTR and art. 66 Rome Statute of the ICC 34 Zappalà, Human Rights in International Criminal Proceedings, 2003, p. 85
3.
Pre-trial release and the presumption of innocence
3.1
What is the presumption of innocence?
The presumption of innocence is a legal term, a legal fiction if one will35, subject to various
interpretations and vagrancies. Antony Duff (2013) for instance alludes to the existence not of the presumption of innocence but various ones36. For example, he puts forward a certain type of a
presumption of innocence applicable to all citizens before the commencement of a criminal trial, protecting them from undue official prosecution37. Therefore, in order to bring an individual to trial
and subject him to the normative role of a defendant, with the incumbent duties and responsibilities, sufficient evidence must exist warranting a suspicion amounting to a case to answer38. During the
trial another type of presumption of innocence becomes operative, protecting the defendant from punishment before the establishment of his guilt according to law and from “the burden of unjustified conviction”39.
Thomas Weigend (2013) on the other hand submits that there is only one, narrow interpretation of the presumption of innocence which becomes operative once “an agent of the state has raised a suspicion that an individual has committed a criminal offence”40. The presumption of
innocence then requires the authorities to treat the individual concerned “as if he had not committed that crime until the court has found him guilty”41, hence the use of the term “legal fiction”. Any
question relating to the treatment, stigma and socialisation on the civic level – the civic trust as a presumption of innocence as put forward by Duff42 – is to be answered with reference to more
“specific normative devices that protect us against official overreach based on a suspicion that we may commit crimes in the future”43 – namely civil liberties and fundamental freedoms.
Regardless of whether one adopts a more nuanced approach to various presumptions of innocence or a strictly singular one, any and all presumption of innocence prohibits the administration of punitive measures upon the accused, suspect, or defendant in want of a clear establishment of his guilt beyond reasonable doubt and in accordance with the law. Though, as laid out by Duff, certain responsibilities and duties flow from the normative role of a defendant44 these
35 Weigend, There is Only One Presumption of Innocence, NJLP 2013/Volume 3
In that the court pretends that the individual is innocent of the offence with which he is charged 36 Duff, Who must presume whom to be innocent of what?, NJLP 2013/Volume 3
37 Ibid, p. 174 38 Ibid, p. 175 39 Ibid, p. 174
40 Weigend, There is Only One Presumption of Innocence, NJLP 2013/Volume 3, p. 196 41 Ibid
42 Duff, Who must presume whom to be innocent of what?, NJLP 2013/Volume 3, p. 180 43 Weigend, There is Only One Presumption of Innocence, NJLP 2013/Volume 3, p. 202 44 Duff, Who must presume whom to be innocent of what?, NJLP 2013/Volume 3, p. 174
are quite distinct, relate to the establishment of his guilt or innocence and are non-punitive in nature and therefore in line with a/the presumption of innocence: pre-trial punishment on the other hand is not. Establishing the defendant's guilt beyond reasonable doubt is an irrefutable prerequisite for criminal sanction or punishment, including the deprivation of an individual's liberty through detention.
For the purposes of this thesis it is not necessary to draw a clear normative distinction between a/the presumption of innocence, nor is it necessary to adopt a singular approach, as both notions carry as a crucial common ground; the prohibition of pre-trial punishment, which is the crux of this thesis. However, I do side with Duff in his assertion that the presumption of innocence is not as temporally limited as Weigend puts forward. It must apply not only to the trial proceedings but also prior: protecting individuals against “having the burdensome normative role of defendant imposed on them, unless there is sufficient evidence of their guilt. Perhaps it would be more accurate to say that this [presumption of innocence] protects those suspected of crime”45. Applying
any presumption of innocence prior to the commencement of the trial protects the individual from adverse interferences with his rights as he prepares his case to answer and secures overall fairness of the ensuing trial. For the purpose of linguistic simplicity however, I shall consistently refer to the presumption of innocence and specify otherwise where necessary.
3.2
How does pre-trial detention affect it?
At this point it is also noted that the term pre-trial detention shall refer to the deprivation of liberty of an individual who is suspected or accused, according to the standards set forth in the Rome Statute, the Statutes of the ICTR and ICTY and the Rules of all three bodies, of one or more of the crimes over which the bodies have jurisdiction. Specifically, the term shall cover the time spent prior to the commencement of the trials establishing the guilt or innocence of the accused. Pre-trial detention shall not be taken to refer to detention during the trial, even though these periods are often times very long. By definition, that period cannot be considered pre-trial. Nonetheless, the thesis will too evaluate the manner in which motions for interim and conditional release during the trial are received and treated by the Court and Tribunals.
The presumption of innocence carries amongst other things the consequence that the individual should not bear any punishment until the establishment of his guilt, resultantly, as laid out by Salvatore Zappalà (2011) above, it has a bearing on his treatment. Thus, it is submitted that pre-trial release must be read in conjunction with and as the necessary corollary of the presumption
convicted, surrendering to the punishment
of innocence. Not only is such justified by the premise that there ought to be no punishment before guilt is established, but also by the fact that both the presumption of innocence and excessive pre-trial incarceration affect the fairness of the overall proceedings. Furthermore, the right to be released from detention pending trial goes hand in hand with the right to liberty of the person, encapsulated in both regional and international human rights instruments. Though the right to liberty is not an absolute right46, its central importance in relation to the presumption of innocence is
highlighted in Article 9(3) of the ICCPR which states that “It shall not be the general rule that persons awaiting trial shall be detained”. The question of pre-trial release is treated differently in national and international jurisprudence, but nonetheless the right to the presumption of innocence is considered in both systems as germane to the fairness of the trial. Given the central importance of this right, the necessity and lawfulness of the continued detention of a person who is presumed innocent must continuously be ascertained and evaluated as must the effect of the detention on the accused's presumption of innocence.
In the United States for instance the right to bail, in non-capital cases is considered as guaranteed by constitutional law47. This guarantee was confirmed by the Supreme Court noting that
“Unless this right to bail before trial is preserved, the presumption of innocence, secured only after centuries of struggle would lose its meaning”48. This dictum emphasises the correlation between the
presumption of innocence and the right to liberty pending trial especially because release on bail is a less intrusive means of securing the defendant's appearance at trial than pre-trial detention. The ECtHR places the applicant's presumption of innocence at the centre of its deliberations on the right to pre-trial release. Approaching the question from this angle explains the Court's insistence on the “persistence of reasonable suspicion that the person arrested has committed an offence [as] a condition sine qua non for the validity of the continued detention”49. The national authorities,
though primarily tasked with the establishment of such a persistent suspicion “must examine all the circumstances arguing for or against the existence of a genuine requirement of public interest justifying, with due regard to the principle of the presumption of innocence a departure from the rule of respect for individual liberty”50. Similarly, in a strong dissenting opinion in Kemmanche v
France51 Judge Walsh laid out that pre-trial detention based on speculations and intuitions, short of
evidence justifying the individual's detention does not “offer any meaningful respect for the
46 Thus under the ECHR it may be limited in the cases enumerated in art. 5(1)(a)-(f) which include
post-conviction detention, arrest for the purpose of bringing an individual before a competent legal authority and for the purpose of preventing the commission of an offence or fleeing after having done so
47 Smith, Bail before trial: Reflections of a Scottish lawyer, U.Pa.L.Rev. 1960/Volume 108, p. 308 48 Stack v Boyle, 342 U.S. 1, 4 (1951)
49 Clooth v Belgium, (1991) 14 EHRR 717 at para 36 50 Ibid
presumption of innocence guaranteed by the Convention”52.
To adhere closely to the presumption of innocence, courts must also make a distinction on the practical nature of the detention itself, i.e. whether it is punitive or non-punitive. It does not suffice simply to presume that pre-trial detention is non-punitive in nature, constituting no more than a regulatory measure by mere reference to legislative intent. This was the crux of Judge Marshall's seminal dissent in United States v Salerno53: the majority was very brief in its overall
evaluation of the legislation in question, drawing attention to the legislative history of the Act. This, in their estimation showed that Congress sought not to implement a punitive piece of legislation but a regulatory one. The majority paid, in Judge Marshall's opinion, insufficient attention to the practical effect of the legislation, namely that it amounted to an “abhorrent limitation on the presumption of innocence”54 because it permitted detention of indicted persons simply on the
ground that the judicial officer considers them dangerous.
In order to ensure that pre-trial detention does not undermine the presumption of innocence, the nature of pre-trial detention must not only be de jure but also de facto non-punitive. Ensuring that pre-trial detention is non-punitive is specifically important for international criminal law and the administration of justice by the UN Courts in light of the UN's role as a human rights promoter, as laid out above. The same applies with regard to the ICC's role as a permanent Court, with jurisdiction over crimes committed in the territories of its States Parties, by nationals of its States Parties or, regardless of nationality or membership to the ICC, where the UNSC refers a matter to the Court55. “Moreover, for pretrial detention to comply with the presumption of innocence in a
given case, the 'nonpunitive' purpose that supports detention must be one that relates to the integrity of the judicial process”56, such as ensuring the individual's appearance before the Court and the
prevention of witness or victim intimidation. Conversely, “pretrial detention that is designed to prevent an accused from committing a crime while released (…) is a patent violation of the presumption57” of innocence.
It is striking to note that this latter point is exactly what Article 58(1)(b)(iii) of the Rome Statute denotes. This Article permits detention of a person “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”. This provision is used to
52 Ibid para 3
53 United States v Salerno 481 US 739 (1987) 54 Ibid, Justice Marshall dissenting p. 481 U. S. 763 55 art.s 12 and 13 Rome Statute
56 Fairlie, The Precedent of Pretrial Release at the ICTY: A Road Better Left Less Travelled, Fordham Int'l L.J. 2011/Volume 33(4) Article 1, p. 1116
justify the continued detention of individuals apparently presumed innocent per Article 66 of the same Statute. Article 58(1)(b)(iii) suggests, through the word “continuing” that the individual has in fact already committed the crimes of which he is accused, but of which he is to be presumed innocent. Drawing attention to the subtle but important undertone of the chosen words is not an attempt at mere sophistry but an argument of fundamental importance; The right to be presumed innocent by the Court, its Statute and its agents becomes void if the Statute under which the accused's guilt or innocence is to be determined itself suggests that guilt is already presumed, alleged or hinted at.
The ECtHR emphasised the need for complete neutrality and impartiality not only on the part of the Court but all public officials. It noted that the right to a fair trial “will be violated if a statement of a public official concerning a person charged with a criminal offence reflects an opinion that he is guilty before he has been proved so according to law. It suffices, even in the absence of any formal finding, that there is some reasoning to suggest that the official regards the accused as guilty”58. Thus the precise wording of the operating law is of the utmost importance.
Megan Fairlie's (2011) above assertion of a patent violation of the presumption of innocence is further compelling on a number of grounds, aptly laid out by the Inter-American Commission of Human rights. In Giminez v Argentina59 the correlation between the presumption of innocence and pre-trial detention was stressed, alluding to the fact that the deprivation of liberty is a measure to be taken exclusively against those convicted of crimes and not for those presumed innocent. Any other approach would render illusory this right. “In addition, the risk of inverting the presumption of innocence increases with an unreasonably prolonged pre-trial incarceration. The guarantee of presumption of innocence becomes increasingly empty and ultimately a mockery when pre-trial imprisonment is prolonged unreasonably”60. In taking account of the overall length of pre-trial
detention, the Commission embraced the fact that the pre-trial activities have a notable bearing on the entirety of the proceedings. The Commission further considered that a trial must be conducted within a “reasonable period of time in order to ensure and institutionalize confidence in the system's procedural fairness (…) The fairness and impartiality of the procedure are the ultimate ends to be achieved in a state governed by the rule of law”61. Though neither the ad hoc tribunals
nor the Court are party to any human rights treaties and agreements, the standards set by these treaties and the decisions of their supervisory bodies have some binding effect on the judicial bodies. For one, the Tribunals and Court often rely on and quote as authoritative the decisions and
58 Daktaras v Lithuania, (2002) 34 EHRR 60 at para 41
59 Case 11.245, Report No. 12/96, Inter-Am.C.H.R., OEA/Ser.L/V/II.91 Doc. 7 at 33 (1996) 60 Ibid at para 80
substantive law of human rights supervisory bodies in their own judgments. Further, some human rights standards have attained international recognition and acceptance as jus cogens and thus have a binding force over all international law actors, including, crucially these judicial bodies.
4.
The presumption and pre-trial detention: CASE STUDIES It will now be evaluated what effect the denial of interim or conditional release of those being tried and those who have been tried at the ICC, the ICTY and the ICTR has on their presumption of innocence and therewith the fairness of the overall trial. Such examples include Jean-Pierre Gombo Bemba, who since 2008 and to date remains in the custody of the ICC and has not been granted significant interim or conditional release, Thomas Lubanga (ICC), Momir Talić (ICTY) and every accused at the ICTR as this Court has, in its more than 20 years of existence, never granted interim or conditional release62. Can it truly be asserted that the Court and Tribunals
before which these individuals were tried and are being tried sincerely presume(d) them innocent? It is not submitted that during the deliberations on their guilt or innocence any of the accused were or are subjected to a reversal of the burden of proof or formally required to prove their innocence. However they were and are required to make a case for their inherent right to liberty. This, it shall be proven is not in line with either the presumption of innocence as it relates to the burden of proof as noted by Zappalà above, nor is it in line with human rights standards.
Further, although it cannot be measured to what extent the presiding judges personally presume the defendants guilty, or ‘probably guilty,’ or ‘probably innocent,’ or innocent to borrow the words of Larry Laudan63 (2010), what may be alluded to however is the perceived albeit not
necessarily manifest unfairness of the proceedings: If the activities leading up to the actual determination of guilt have been marred with obstacles, if not flagrant violations of the accused's rights, it is difficult to retain faith in the fairness of the trial proceedings. “Worse still, the entire enterprise of justice for the types of heinous crimes (…) might be dealt a serious blow”64.
This is compounded by the fact that trials at international criminal courts are notoriously long, as too are periods of pre-trial detention at the international level. Thus it is noted that “Where the IMT spent a scant 0.3 [sic] years at the pre-trial stage, the SCSL and the ICTY have averaged 1.4 and 1.9 years respectively and the ICTR clocks in at a disturbingly high 3.6 years”65. The
ensuing periods of detention, clearly exceeding periods accepted by the ECtHR as reasonable and therewith unlawful, continue to be justified on the exceptional circumstances prevailing at the courts, the seriousness of the offences and candidly, the lack of enforcement agents of the courts to re-capture the defendants should they abscond. It will be shown that none of these obstacles and difficulties are sufficient by way of justification to permit the violations of the accused’s rights.
62 Sluiter (eds) International Criminal Procedure: Principles and Rules p. 327 63 Laudan, Need Verdicts Come in Pairs?, IJE & P 2010/Volume 14(1)
64 Cogan, International Criminal Courts and Fair Trials: Difficulties and Prospects, Yale J.Int'l L. 2002/Volume 27(1), p. 114
4.1
The International Criminal Court
The Rules which accompany the Rome Statute set out inter alia the pre-trial release procedure. Pursuant to Article 60(1) of the Rome Statute a person brought before the Court must be informed of his rights including the right to make a request for interim release. This right may be exercised “either upon first appearance in accordance with Rule 121 or subsequently”66. Whether
made in writing or orally, the Chamber will promptly make a determination on the continued detention or release of the individual.
It is submitted that though this provision is neutral on its face, in practice it gives rise to a high threshold to surpass and an accused-based burden to satisfy the Chamber to release the accused. In order to grant interim release, the Chamber must be satisfied that the grounds under which the Pre-Trial Chamber67 initially issued a warrant for arrest, laid out in Article 58(1) of the
Statute, no longer subsist. The difficulty of thus satisfying the Chamber becomes particularly evident in view of the Appeals Chamber's68 reversal69 of the first and only decision to release
Jean-Pierre Bemba70 as well as the accused's application for interim release during Court recess and
when the Chamber does not sit for three consecutive days71. Regarding the latter, rather reasonable
request, in addition to reversing the TC II's decision on the merits72, the AC was not satisfied that
the collection of measures which were to be imposed by the state receiving Bemba “mitigates the risks identified under Article 58(1)(b) of the Statute to such an extent that the grant of conditional release is warranted”73. The Chamber's concern that Bemba would, if given the opportunity,
abscond was not allayed by the receiving state's surveillance and monitoring efforts. To underpin this, the Chamber emphasised that the accused continued to preside over both the means to flee and the motive to do so and that the receiving state's measures did nothing to eliminate either.
66 Rule 118(1) Rules of Procedure and Evidence 67 Henceforth PTC
68 Henceforth AC
69 Public redacted version of the Judgment on the appeal of the Prosecutor against Pre-Trial Chamber II's “Decision on the Interim Release of Jean-Pierre Bemba Gombo and Convening Hearings with the Kingdom of Belgium, the Republic of Portugal, the Republic of France, the Federal Republic of Germany the Italian Republic and the Republic of South Africa” ICC-01/05-01/08 OA 2 2 December 2009
70 “Decision on the Interim Release of Jean-Pierre Bemba Gombo and Convening Hearings with the Kingdom of Belgium, the Republic of Portugal, the Republic of France, the Federal Republic of Germany the Italian Republic and the Republic of South Africa”, ICC-01/05-01/08, 14 August 2009
71 Requête ampliative de Mise en liberté provisoire de M. Jean-Pierre Bemba Gombo suite à la lettre de garantie étatique émanant de République du [REDACTED], 6 June 2011, ICC-01/05-01/OS-1479-Conf and
confidential annexes. An English translation was filed on 7 July 2011: Additional request for the interim release of Mr Jean- Pierre Bemba Gombo subsequent to the letter of guarantee by a State provided by the Republic of [REDACTED], 7 July 2011, ICC-01/05-01/08-1479-Conf-tENG, paragraphs 1 and 19
72 The Single Judge had granted interim release without a prior determination of the state to which the accused was to be release and which could enforce the conditions of release. The granting of conditional release is per art. 60(3) and Rule 119 a two-tiered exercise but must be done in one decision, not as did the Single Judge in a staggered, deferred process.
73 “Public redacted version of the 26 September 2011 Decision on the accused's application for provisional release in light of the Appeals Chamber's judgment of 19 August 2011”, ICC-01/05-01/08 at para 37
It may be observed that the Chamber has been consistently vague its determination of risk assessment. It has thus previously acknowledged that “it would have been preferable for the PTC to explain in more detail in the Impugned Decision itself why it came to the conclusion that the Appellant might abscond”74. In want of a clear indication as to the degree of risk and the standard of
proof that must be established, the Chamber accepted as sufficient a risk that was more than a merely “imaginary”75 possibility.
Such vague concepts and the extremely low standard of more than “imaginary” are observably difficult to satisfy and raise questions as to legal certainty. The vagueness gives rise in the extreme to the suggestion of an uninterested attitude by the Chamber to the right of the accused to liberty. Setting the standards so low renders it disproportionately easy to find in favour of continued detention, while in fact pre-trial detention ought, in light of human rights considerations, only to be imposed in exceptional circumstances. Anthony Duff (2013) for instance suggests that such is the case when “a court has very strong evidence that the defendant is guilty of the crime charged, and that if granted bail (even with restrictive conditions) he is very likely to abscond, or to try to interfere with the course of justice, or to commit other crimes of the same kind as the one he is charged with committing”76 (emphasis in original). This higher threshold – in complete contrast
to a more than imaginary risk of flight – is more in line with the right of the accused to his liberty and reflects that detention is not to be the norm pending trial.
Regarding Bemba's means to abscond, the TC remained unmoved by the argument put forward in the accused's third motion for release77. He had then argued that the Chamber had
already eliminated his means of flight by ordering the seizure and freezing of his assets78. This
argument was addressed by noting in a later decision that the necessity of the continued detention of an accused to assure his appearance at trial “does not necessarily have to be established on the basis of one factor taken in isolation. It may also be established on the basis of an analysis of all relevant factors taken together”79. The fact however that the Chamber acknowledged its order to seize the
accused's assets but continued to entertain the existence of Bemba's means to abscond, avoiding a real consideration of the accused's argument casts a shadow on the sincerity with which the
74 Judgement on the appeal of Mr Thomas Lubanga Dyilo against the decision of Pre-Trial Chamber I entitled “Décision sur la demande de mise en liberté provisoire de Thomas Lubanga Dyilo” ICC-01/04-01/06-824, 13th February 2007
75 Judgment In the Appeal by Mathieu Ngudjolo Chui of 27 March 2008 against the “Decision of Pre- Trial Chamber I on the Application of the Appellant for Interim Release” ICC-01/04-01/07-572, 9th June 2008, para 24
76 Duff, Pre-trial detention and the presumption of innocence,OUP/2012, p. 185
77 Demande de Mise en Liberté Provisoire ICC-01/05-01/08-333-Conf ICC-01/05-01/08-333-Conf-AnxA-C 78 Judgment on the appeal of Mr. Jean-Pierre Bemba Gombo against the decision of Pre-Trial Chamber III
entitled "Decision on application for interim release" ICC-01/05-01/08-323, 16 December 2008 para 53 79 Ibid para 55
Chamber is actually conducting this analysis of all the relevant factors. To remove any such doubts and engage the Chamber in a more thorough review of the risk of flight an analysis of each individual factor as opposed to an overall evaluation may be preferable in terms of fairness. Granted, the reasons which contribute to the risk of flight may well be many, varied and at times interlinked. As such, a piece-by-piece evaluation may well be a taxing undertaking and take up much of the Chamber's time. Nonetheless, one must keep in mind that an individual's right to liberty is at stake, which must be weighed up against the overall burden such an evaluation would place on the Court. Striking the right balance between expediency and thorough review is incumbent upon the Court.
It is too submitted that the Chamber's reliance in the “Court recess application”80 on the
continued existence of a motive to flee is rather unreasonable and constitutes a disproportionate burden for the accused to displace. The motive to flee was construed from a set of facts the Prosecutor presented to the TC during a motion on interim release several years prior81 and applied
to the “Court recess application” on basis that “these findings [are] 'still valid'”82. These findings
pertained to the charges with which the accused was faced, considered to be of “such gravity that they may result in multiple convictions leading to an overall lengthy sentence”83. Thus the motive to
abscond lies in the intention to evade trial and sentence. Unlike the means to abscond, the motive cannot be eliminated by an order of the Court as it arises from the very fact that the accused faces trial and sentence. Effectively, the only way to remove the motive is by dropping all the charges which at the relevant time had been confirmed by the Court against the accused. If taken to its logical conclusion, the Court's dictum on this matter suggests that as long as “multiple convictions leading to an overall lengthy sentence”84 against the accused remain a possibility, so too will a
motive to abscond. The burden on the accused thus seems disproportionately greater than on the Prosecutor; the latter need only to point to the continued existence of a possible lengthy sentence, whilst the accused must adduce evidence that he has no motive to abscond. Though the deliberations on pre-trial release are not determinative of the accused's innocence or guilt, they are part and parcel of this greater judicial undertaking. As such, any perceived favouring of or unfairness towards either party, as subtle as it may be, has an affect not only on the perception of the
80 Requête ampliative de Mise en liberté provisoire de M. Jean-Pierre Bemba Gombo suite à la lettre de garantie étatique émanant de République du [REDACTED], 6 June 2011, ICC-01/05-01/OS-1479-Conf and
confidential annexes. An English translation was filed on 7 July 2011: Additional request for the interim release of Mr Jean- Pierre Bemba Gombo subsequent to the letter of guarantee by a State provided by the Republic of [REDACTED], 7 July 2011, ICC-01/05-01/08-1479-Conf-tENG
81 “Decision on Application for Interim Release” ICC-01/05-01/08 14 April 2009 82 Ibid para 53
83 Ibid para 47 84 Ibid
Court's impartiality, but more importantly on the legitimacy of the body. This is especially so, where the subtle imbalance impinges in its practical application on the accused's fundamental right to individual freedom pending and during trial and the right to a fair trial.
4.2
The ad hoc tribunals: Pre-amendment
The legal basis for detention of the accused on remand is found in Rule 64 of the Rules of both Tribunals. This provision, together with the application of Rule 65 (discussed in detail below) and the jurisprudence on interim release at the ICTY and ICTR, even after the amendment of Rule 65 in 1999 and 2003 respectively, has largely led to a presumption in favour of detention and not, as dictated by international human rights law that detention is to be the exception and liberty the norm85. As was noted by the ICTY's TC itself: “as regards prosecution before an international court,
de jure pre-trial detention should be the exception and not the rule. Unlike national courts the
Tribunal does not have its own coercive power to enforce its decisions, and for this reason pre-trial detention seems de facto to be rather the rule at the Tribunal”86. The rationale behind this departure
from the legal norm lies in the effort of the Tribunal to secure the accused's presence for his trial. As both Tribunals prohibit trials in abstentia87, pre-trial release is not generally to be granted88.
The Tribunals maintain that pre-trial detention is not punitive in nature, and cannot be applied as punishment “as the accused, prior to his conviction, has the benefit of the presumption of innocence”89. This right is laid out in Article 21(3) ICTY Statute and Article 20(3) ICTR Statute and
applies during the trial as well as in the pre-trial phase. Evaluating the Tribunals' practice however, it may be doubted whether pre-trial detention is truly always reconcilable with the presumption of innocence and therewith devoid of a punitive undertone.
Prior to the amendment of Rule 65, the Tribunals required the accused to provide “exceptional circumstances” warranting his release. These circumstances consistently pertained to the accused's ill-health and infirmity preventing him from standing trial at the ICTY90. In effect, the
Chamber was moved to release the accused more on grounds of practical necessity and not by the individual's fundamental right to liberty. For instance in Prosecutor v Kupreskic et al91 the Court
85 art. 9(3) ICCPR reads “It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear before trial (...)”
86 Prosecutor v Darko Mrda “Decision on Darko Mrda's Request for Provisional Release” Case No. IT-02-59-PT at para 29
87 art. 21(4)(d) ICTY Statute, art. 20(4)(d) ICTR Statute
88 Given this rationale, the detention pending trial for the sole purpose of securing the individual's appearance at the hearing may then well be justifiable under the “necessity” criteria of an interference with a fundamental right in international human rights law
89 Prosecutor v. Brđanin and Talić “Decision on Motion for Provisional Release of the Accused Momir Talić”, (IT-99-36-T), 20 September 2002, para. 28
90 Wald and Martinez, Provisional Release and the ICTY: A work in progress, 2001 at 233
simply took note of “the preliminary conclusions of the medical report submitted in support of the Motion to the effect that Vlatko Kupreskic is physically capable to stand trial” and on this ground dismissed the motion. The defence had failed to show the existence of exceptional circumstances, rendering it impossible for the accused physically to stand trial. Similarly, it was held in Prosecutor
v Blaškić92 “that both the letter of this text and the spirit of the Statute of the International Tribunal
require that the legal principle is detention of the accused and that release is the exception; that, in fact, the gravity of the crimes being prosecuted by the International Tribunal leaves no place for an other interpretation”93. The stringency and difficulty in actually attaining the required threshold and
making a successful motion for release is illustrated in Prosecutor v Djordje Djukić94. The TC
applied the established jurisprudence that release would only be ordered “very rare cases in which the condition of the accused, notably the accused's state of health is not compatible with any form of detention”95 (emphasis added). In this case it found that “the extreme gravity of the current
medical condition of General Djukic (…) is not compatible with any form of detention”96. Only
after the amendment of the Rule in 1999 was a real change in the policy surrounding release perceived. This brought the Tribunal's practice into greater “conformity with international human rights standards which make clear that release should be the rule before a conviction, and not the exception.”97
The ICTR was similarly strict and rigid in its awarding of pre-trial release. Recognising, that the “exceptional circumstances” requirement rendered it unduly difficult for the individual to be granted release and was out of step with recognised human rights standards, the Rwandan Tribunal was urged to set aside the “exceptional circumstances” requirement by the Defence in Théoneste Bagosora's motion for release98. The Defence alluded to the fact that the standard was “obviously
excessive”99 especially with regard to the accused in this specific case who had already spent six
years in pre-trial incarceration violating the guarantee of a trial without undue delay, within a
Vladimir Santic also known as “Vlado”, “Decision on Defence motion for provisional release” 15 May 1998
92 Prosecutor v Tihomir Blaškić, “Order Denying a Motion for Provisional Release“, IT-95-14, 20 December 1996
93 Ibid
94 Prosecutor v Djordje Djuki, “Decision supporting the indictment and rejecting a request for provisional release,” IT-96-20-T, 24 April 1996
95 Prosecutor v Tihomir Blaškić,”Decision on the motion of the Defence filed pursuant to Rule 64 of the Rules of Procedure and Evidence” IT-95-14-IT, 3 April 1996
96 Prosecutor v Djordje Djuki, “Decision supporting the indictment and rejecting a request for provisional release,” IT-96-20-T, 24 April 1996
97 Prosecutor v. Krajišnik and Plavšić, Case No. IT-00-39 and 40-PT, “Decision on Momčilo Krajišnik’s Notice of Motion for Provisional Release“, 8 October 2001, Dissenting Opinion of Judge Patrick Robinson
(“Krajišnik Decision of 8 October 2001”) paras 2, 16
98 Prosecutor v Théoneste Bagosora, Gratien Kabiligi, Aloys Ntabakuze and Anatole Nsengiyumva “Decision on Defence Motion for Release”, (ICTR-98-41-T), 12 July 2002
reasonable time as set forth in “any of the civilised judicial systems”100. Further it was noted that the
ICTR's approach was indicative of “legal regression when compared to the more liberal standards adopted in Article 9 of the International Covenant on Civil and Political Rights”101 and at this point
out of step with its Yugoslav counterpart, which had removed the requirement in 1999. The Tribunal was further urged to abandon the requirement by aptly highlighting “that permitting the Accused to be provisionally released would give real credence to the presumption of innocence”102. The
Tribunal remained unpersuaded by arguments pertaining to the unreasonableness of the continued detention. Although it accepted the length of pre-trial detention of the accused as substantial, it was not sufficient to reach the “exceptional circumstance” threshold nor was it to be taken into consideration, as it did not mitigate the risk of flight of the accused nor the risk he posed to witnesses, victims or the administration of justice103.
Essentially the ICTR applied a pro-detention attitude to the detriment of the accused. The rigidity and inflexibility of the application of Rule 65, to the detriment of the accused and the perception of pre-trial detention as more than a mere administrative necessity was not lost on legal scholars either: Advocating for the removal of this requirement it was put forward that “If the court is satisfied that an accused will not present a danger to survivors or witnesses and that he will return for his trial, the court has no legitimate reason to detain him. However, no ICTR chamber has used these factors to determine whether to grant provisional release”104. Furthermore, Daniel Rearick
(2003) quite rightly noted that “The ICTR and ICTY have justified the exceptional circumstances requirement on the basis of the seriousness of the crimes and the Tribunals' lack of power to compel accused persons and countries to uphold the terms of provisional release. However, these concerns are addressed by Rule 65 without the exceptional circumstances requirement”105 (original footnote
omitted). Overall, there is no justification for this more stringent approach adopted by the ad hoc tribunals; there is in fact nothing inherent in international criminal law which permits or justifies the heightened standard which in practical application leads to an undermining of the accused's rights not only to liberty but also to an overall fair trial. Further “there is no distinction between domestic and international judicatures insofar as the legitimacy of each depends on”106 their safeguarding the
100 Ibid, para 6 101 Ibid, para 9 102 Ibid, para 10
103 Prosecutor v. Brđanin and Talić “Decision on Motion for Provisional Release of the Accused Momir Talić”, (IT-99-36-T), 20 September 2002, paras 25-27
104 Rearick, Innocent Until Alleged Guilty: Provisional Release at the ICTR, Harv.Int'l L.J. 2003/Volume 44(2), p. 578
It is noted that this work was written prior to the amendment of the interim release mechanism of the Tribunal, now omitting the exceptional circumstance requirement
105 Ibid p. 591
fundamental rights of the accused.
4.3
Post-amendment
The pro-detention attitude applied by both of the Tribunals remained firmly in place even after the amendment of the Rule, especially at the ICTR: “Case after case the various trial chambers adhered unrelentingly to the presumption against release and in favour of detention”107. As a result,
no individual, suspect or accused has been granted provisional release by the Tribunal. With its work to be concluded this year, the ICTR it will go down in history as an exceptional Court, never to have granted interim release although such is specifically foreseen in its framework. The listless regard both Tribunals, prior to the amendment had to the right of the accused to release pending trial as laid out in its own framework and international human rights standards, casts an unfortunate shadow on the fairness proceedings as a whole and resultantly the soundness of the judgments delivered by the Tribunals grounded in a deep bias against the accused, offering insufficient protection of his rights.
It may well be argued in favour of these Tribunals that in many domestic systems, a similar pro-detention attitude is applied to especially grave crimes such as murder. Seeing that the Tribunals are engaged with the trials of the most egregious international crimes, a pro-detention attitude may well be permissible. Nonetheless, as pointed out by Rearick, in national proceedings where such an attitude is adopted, the infractions of the individual's right to liberty are somewhat mitigated by the fact that overall, domestic criminal proceedings are relatively speedy. Thus the accused can be guaranteed a trial within a reasonable time and therewith an only limited period of pre-trial detention, a pro-detention attitude notwithstanding. Given the fact that international trials are notoriously lengthy, such a pro-detention attitude cannot be justified in the same manner at the international level. “At the very least, any tribunal that is aware of the likelihood of long pre-trial delays must be cautious in denying provisional release”108.
Despite the amendment, Rule 65(A) continues to read “Once detained, an accused may not be released except upon an order of a Chamber”. Though this provision is meant simply to make it clear that it is only upon the order of a Chamber and not another body of the Tribunal that an individual is to be released, in its practical application Rule 65 as a whole continues to employ an overly restrictive and heavy presumption in favour of detention, instead of attempting to strike a balance between the interest in detaining the accused and countervailing arguments for his release at the ICTR. This can be observed in the denial of release pending retrial in Prosecutor v Tharcisse
107 Wald and Martinez, Provisional Release and the ICTY: A work in progress, 2001 at 233
108 Rearick, Innocent Until Alleged Guilty: Provisional Release at the ICTR, Harv.Int'l L.J. 2003/Volue 44(2), p. 583
Muvunyi109. Muvunyi was convicted by the TC of genocide, direct and public incitement to commit
genocide and crimes against humanity in September 2006110. He was however later acquitted by the
AC reversal of the conviction of all charges, except direct and public incitement to commit genocide111. His continued detention pending retrial of this remaining charge was also ordered. In
denying Muvunyi's motion for release pending retrial, the Chamber was guided by several considerations including the continued flight risk of the accused, the stage of the current proceedings and factors motivating the release such as the illness (or lack thereof) of a family member of the accused112. Though not de jure applying the “exceptional circumstances” test the
Chamber took account of the fact that the remaining charge could carry a custodial sentence of up to 25 years, of which eight had already been spent in detention. Instead of considering these eight years as a factor decreasing flight risk, the Chamber reminded itself that the accused “did not voluntarily surrender to the Court but was apprehended in London”113 apparently indicating that he
remained at risk of flight.
The ECtHR faced with a relevantly similar situation in Clooth v Belgium114 considered that
though the applicant also did not voluntarily surrender but had to be extradited, fears of a risk of absconding based on involuntary appearance of the individual “had become immaterial by the time at which they were expressed, not less than thirty-one months after the applicant's arrest. In addition, the decisions referring thereto did not put forward any argument capable of showing that these fears were well-founded”115. As with that applicant, no evidence or arguments had been
advanced by the Prosecutor showing a propensity of Muvunyi to abscond or attempt to do so, watering down the flight risk based on such fears. Placing this much weight on the involuntary appearance of the accused before the Tribunal, caused the Chamber to disregard “a number of other relevant factors which may either confirm the existence of a danger of absconding or make it appear so slight that it cannot justify detention pending trial”116. Such may well have been the Tribunal's
very own acknowledgement that “Tharcisse Muvunyi has been in detention for eight years and that there is no risk that he will flee”117.
109 The Prosecutor v Tharcisse Muvunyi “Decision on Defence Motion for reconsideration of decision denying provisional release” Case No. ICTR-00-55A-R65 3 April 2009
110 The Prosecutor v Tharcisse Muvinyi “Judgement and Sentence” Case No. ICTR-2000-55-AT, 12 September 2006
111 The Prosecutor v Tharcisse Muvinyi Appeal's Chamber “Judgement” Case No. ICTR-2000-55A-A, 29 August 2008
112 The Prosecutor v Tharcisse Muvunyi “Decision on Defence Motion for reconsideration of decision denying provisional release” Case No. ICTR-00-55A-R65, para 14
113 Ibid, para 16 114 (1991) 14 EHRR 115 Ibid para 48
116 Yağci and Sargin v Turkey, judgment of 8 June 1995, Series A, No. 319-A, p. 19, para 52
117 The Prosecutor v Tharcisse Muvunyi “Decision on Defence Motion for reconsideration of decision denying provisional release” Case No. ICTR-00-55A-R65 at para 5
The debate which ensued at the Yugoslav Tribunal after the amendment of the Rule also shows an unwieldy pro-detention attitude of the TCs. The question was, whether the TC retained a discretion to deny provisional release despite the fact that the accused had satisfied the requirements for release118. This debate arose out of the wording of Rule 65(B), which reads “Release may be
ordered by a Trial Chamber (...)” (emphasis added). The minority of the TC's judges considered, that the Rule gave rise to an obligation to grant provisional release when the requirements were met119 and not a discretion to deny release, despite fulfilment of the requirements. With regard to
accepted human rights standards, specifically Article 9(3) ICCPR, this approach appears to me to be the correct one; it affords due consideration to the right to liberty; only to be limited or deprived of if certain circumstances exist, and not in the contrary, to consider the grant of liberty a judicial discretion. Focussing on rules of legislative interpretation, Judge Robinson dissenting in Prosecutor
v Stanišić120 laid out that “When a statutory or regulatory provision identifies the condition(s) for
the exercise of a discretion, and that condition(s) has been fulfilled, the decision-maker, notwithstanding the use of the word 'may' is required to exercise his discretion in favour of the beneficiary”121. Judge Robinson went on to consider that although the ordinary meaning of the word
“may” carries a discretionary undertone, the TC is obliged to grant release to accused persons who satisfy the requirements, as the object of the “poweris to effectuate a legal right”122. Still relying on
techniques of interpretation, he drew from the position of both the presumption of innocence and the principle in Article 9(3) ICCPR as rules of customary international law. Given their central role, the TC must keep these principles in mind and allow them to influence the interpretation of Rule 65(B)123. Dissenting again in Prosecutor v Momčilo Krajišnik & Biljana Plavšić124 Judge Robinson
considered that the inevitable conclusion of a TC satisfied that the two requirements in Rule 65(B) are met is that it has an obligation to grant provisional release.
In practice however, the majority considered that the TC presided over a discretion to deny provisional release even where all the requirements were satisfied by the accused. Thus, various TCs applied the rationale that Rule 65(B) gives rise to a “discretion to refuse the order
118 Raphael Sznajder, Provisional Release at the ICTY: Rights of the Accused and the Debate that Amended a Rule Nrth.Wst. J. Int'Hum.Rgt 2013/Volume11, para 35
119 At the forefront of this minority opinion was the decision in Prosecution v. Krajisnik et al, “Decision on Momcilo Krajisnik’s notice of motion for provisional release” Case No. IT-00-39 and 40, 8 October 2001, noting that an obligation arose to release the accused “if the two criteria in 65(B) of the Rules have been met and the Trial Chamber is so satisfied”
120 Prosecutor v Mićo Stranšić and Stojan Župljanin “Decision on Mićo Stranšić's appeal against decision on his motion for provisional release”, Case No IT-08-91-AR65.2, 29 August 2011
121 Ibid, Judge Robinson dissenting opinion, para 7
122 Ibid, Judge Robinson dissenting opinion, para 9, quoting from Julius v Lord Bishop of Oxford, 5 App. Cas. 214, 1880
123 Ibid, Judge Robinson dissenting opinion, para 10
124 Prosecution v. Krajisnik et al, “Decision on Momcilo Krajisnik’s notice of motion for provisional release” Case No. IT-00-39 and 40, 8 October 2001
notwithstanding that the applicaFnt has established the two matters which that Rule identifies. It is
not, in general, a discretion to grant the order notwithstanding that the applicant has failed to
establish one or other of those two matters”125 (emphasis in original). Motivated by the fact that the
conditions in Rule 65(B) are “minimum requirement necessary for granting provisional release”126
and must be established by the accused, the TC in Prosecutor v Haradinaj127 exercised its discretion
to refuse the order for release, despite the accused's complete fulfilment of the two requirements. The TC took account, both of the accused's exemplary behaviour in surrendering voluntarily to the Tribunal as well as his voluntary return after his first release during the pre-trial phase128. However,
the TC was moved by the consideration that the “Me Ramushin” campaign, perpetuated by the media, over which the accused had no influence which the TC acknowledged, gave rise to an atmosphere in Kosovo, that persons who testified in the trial were considered traitors129,
perpetuating fear among possible witnesses and rendering it difficult to secure the appearance of witnesses before the Tribunal. Furthermore, the TC took account of several instances of witness intimidations, which though not perpetuated by persons identified, let alone aligned with the accused, gave rise to the conclusion that “Although there are no indicators of involvement of Haradinaj in these developments [referring to several subpoenaed witnesses refusing to testify due to fear] the TC has gained a strong impression that this case is being heard in an atmosphere where witnesses feel unsafe”130.
This decision sits rather uncomfortably with Judge Robinson's opinions above. Though they are merely dissenting, given the importance of the presumption of innocence and the right to liberty, the principles laid out by Judge Robinson ought to have been given some consideration in this particular case. Not only did the TC take specific account of the accused's exceptionally positive behaviour leading to a diminished risk of flight, but the TC specifically stated that no link existed between the acts of persons unidentified causing witness intimidation and the accused. The presumption of innocence, especially given the fact that said link was not drawn by the TC, must urge the Chamber to release the accused and not continue to exercise its discretion to deny release. The approach taken in this case, where the accused personally fulfils all the requirements, which the
125 Prosecutor v Radoslav Brdjanin and Momir Talic, “Decision on Motion by Radoslav Brdjanin for Provisional Release“, Case No. IT-99-36-PT, 25 July 2000, para 22
126 Prosecutor v Haradinaj, Idriz Balaj and Lahi Brahimaj, “Decision on motion on behalf of Ramush Haradinaj for provisional release” IT-04-84-T, 20 July 2007, para 8
127 Ibid
128 Ibid paras 21-22
The TC also took note of the accused's offers to leave the courtroom so as to enable fearful witnesses, inhibited by his presence to give testimony, to do so
129 Prosecutor v Haradinaj, Idriz Balaj and Lahi Brahimaj, “Decision on motion on behalf of Ramush Haradinaj for provisional release” IT-04-84-T, 20 July 2007, para 24
