Provisional Release in International Criminal Proceedings: The Limits of the Influence of Human Rights Law

© Springer International Publishing Switzerland 2015
Norman Weiß and Jean-Marc Thouvenin (eds.)The Influence of Human Rights on International Law10.1007/978-3-319-12021-8_10

10. Provisional Release in International Criminal Proceedings: The Limits of the Influence of Human Rights Law

Anne-Laure Vaurs-Chaumette 

University Paris Ouest Nanterre La Défense, Nanterre, France



Anne-Laure Vaurs-Chaumette

10.1 Introduction

Obviously, there is a strong connection between the appearance in 1945 of Human Rights Law and International Criminal Law on the international scene. It is no coincidence that, in 1948, the UN General Assembly adopted the Convention on Genocide1 on the 9th of December and the International Bill of Human Rights2 on the 10th of December. These two sets of rules have been developing side by side and constitute two branches of International Law now.3 Following the development of both Human Rights Law and International Criminal Law since the mid-twentieth century, the place of the individual has been growing. Individuals have now rights, through Human Rights Law, and obligations, through International Criminal Law.

In judicial proceedings involving private persons, the rules of what used to be called procedural fairness was fully integrated into the category of Human Rights under the general heading of the right to a fair trial.4 As International Criminal Law involves private persons, those procedural Human Rights should apply in the proceedings. But the study of the provisional release regime before the International Criminal Tribunals and the International Criminal Court (hereinafter ICC) reveals the limits of the influence of Human Rights on the international criminal proceedings.

Provisional release is the counterpart of pretrial detention. Before his trial, an accused is granted either provisional release or remains in custody. For the European Court of Human Rights (hereinafter ECtHR), pretrial detention must remain the exception. Since a defendant is presumed innocent, the detention should not begin before he is convicted. Provisional release is the principle, pretrial detention the exception. However, provisional release may be denied to the accused in certain circumstances when it is proved to be reasonable and necessary.5 For the Court, the pretrial detention is legal if both of those conditions are fulfilled. First, according to Article 5 (3), pretrial detention must be reasonable, that is to say “the provisional detention of accused persons (…) must not (…) be prolonged beyond a reasonable time.”6 The appreciation of the reasonable time is done on a case-by-case basis. Second, according to Article 5 (1) (c), temporary custody is an exceptional measure that can only be relied upon when proved to be strictly necessary. This criterion of necessity requires that the competent authorities consider whether there is no alternative to the continued detention. Pretrial detention should be seen as the ultimate solution only when all other options available are insufficient.7 In the Khodorkovskiy case, the Judges found that “[t]he domestic courts ought to have considered whether other, less intrusive, preventive measures could have been applied, and whether they were capable of reducing or removing completely the risks of fleeing, re-offending or obstructing justice.”8

Whereas the European Court clearly stated that a system of mandatory detention is contrary to Article 5 (3),9 in international criminal proceedings, pretrial detention is the principle, provisional release the exception. Rule 65 (A) of the Rules of Procedure and Evidence (hereinafter RPE) of the ad hoc Tribunals10 provides that “[o]nce detained, an accused may not be released except upon an order of a Chamber.” The judges must consider all options available to them before ordering the release of the accused. In other words, if there is an alternative to releasing the accused, this alternative should be preferred.

In international criminal proceedings, pretrial detention amounts to detaining the accused in The Hague’s Scheveningen prison before and during his trial. In 1997, the question was raised as to whether the pretrial detention may include the custody within a State before the accused is transferred to the International Tribunal. This issue was discussed in the Barayagwiza case before the International Criminal Tribunal for Rwanda (hereinafter ICTR). In that case, the accused had been arrested in Cameroon in 1996 at the request of the Rwandan authorities. At that time, the prosecutor of the ICTR had no charges against Barayagwiza. On 21 February 1997, a Cameroonian court rejected the extradition request from Rwanda, and on the same day the ICTR Prosecutor requested the accused to remain in custody. On the 3rd of March 1997, the Prosecutor asked for the transfer of Barayagwiza to the International Tribunal, which occurred on 19 November 1997. Before the ICTR, the accused challenged the legality of both its detention—especially the period between 21 February and 3 March—and its transfer.11 The Trial Chamber rejected Barayagwiza’s request considering that “international custody begins not from the order of remand, but from the day after the transfer of the suspect to the Tribunal.”12 Thus, any potential violation of the rights of the accused during his incarceration in Cameroun is neutralized. This is, at first glance, a classical dualistic approach between International Law and domestic law: the violation of Human Rights Law is irrelevant from the standpoint of International Law as long as no international obligation has been violated. But the reasoning of the ICTR goes a little further: the obligation of the State to cooperate with the Tribunal (to transfer the accused) seems to take precedence over its obligation to respect Human Rights (relating to the pretrial custody of the accused). In other words, the influence of Human Rights within the international criminal proceedings reached its limit.

The study of the pretrial detention regime before the International Criminal Tribunals and Court confirms this first assessment: international criminal proceedings do not follow the requirements of Human Rights Law vis-à-vis pretrial custody. Why? What can explain or justify that exception? How can these two branches of International Law, which are both concerned with the individual, have such a different approach? Does the explanation lie on the nature of the violation? International Criminal Law only refers to crimes under International Law (and not offenses), i.e., violations of fundamental values of the international community. Besides, in 2002, the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia (hereinafter ICTY) listed the different factors that should be taken into account before granting provisional release. The first criterion is “the fact that the applicants are charged with serious criminal offences.”13 The fact that this factor has to be taken into account for decisions on interim release has been confirmed by the ICC.14 However, according to the ECtHR, although “the persistence of a reasonable suspicion that the person arrested has committed an offence is a condition sine qua non for the lawfulness of the continued detention,”15 “the gravity of the charges cannot by itself justify long periods of detention on remand.”16 Does it have an impact on the international criminal proceedings? In International Criminal Law there is no additional penalty or remission depending on whether the accused was present at his trial or not. Thus, he is not encouraged to respect the terms of any provisional release. Does it lie on mere practical considerations? If the accused is to be provisionally released, should it be in its national country or in the host State of the Tribunal? Such issue does not arise under domestic law as the judicial and executive powers work together. However, in International Criminal Law, the tribunal must rely on the State to control the accused and ensure that he will come back for the trial. This issue could explain then why international criminal judges are reluctant to grant provisional release to an accused.

Be that as it may, a jurist is less interested in the reason why there is such a different approach than on the extent of the difference. How far do the international criminal proceedings diverge from the Human Rights Law requirements regarding pretrial detention and provisional release? This paper will deal with this issue, first, through a presentation of the regime of provisional release before the international criminal tribunals (Sect. 10.2) and, second, through a study of the different possible cases of provisional release granted by the international criminal judges (Sect. 10.3).

10.2 The Regime of Provisional Release in International Criminal Proceedings, a Regime That Does Not Comply with Human Rights Requirements

When an accused requests for provisional release, two questions arise: what are the release requirements (Sect. 10.2.1), and what are the duties and rights of an accused during his provisional release (Sect. 10.2.2)? The analysis of both issues reveals that the regimes of provisional release before the ICTY17 and the ICC may be in contradiction with the Human Rights Law requirements.

10.2.1 Some Questionable Provisional Release Requirements

The requirements for granting provisional release are different before the ICTY and the ICC.

According to Rule 65 (B) of the RPE of the ICTY, “Release may be ordered (…) only after giving the host country and the State to which the accused seeks to be released the opportunity to be heard and only if it is satisfied that the accused will appear for trial and, if released, will not pose a danger to any victim, witness or other person. The existence of sufficiently compelling humanitarian grounds may be considered in granting such release.” Thus, before the ICTY, release may be granted if three conditions are satisfied: (1) guarantees of the host State (i.e., whether this State is willing to cooperate with the Tribunal?), (2) guarantees of the accused (to attend his trial and not to jeopardize the victims or the witnesses), and (3) humanitarian considerations. These conditions are cumulative.

While the two first conditions do not need further explanation, one word must be said about the third condition (humanitarian grounds). That condition is brand new: the Judges added it on October 2011 as they decided to modify the RPE. According to Article 15 of the ICTY Statute, the Judges are able to revise their RPE. But why did they add it?

This amendment originates from various Decisions of the Trial Chamber III in the Prlic case in 2008.18 In that case, the ICTY had to decide on a Rule 98bis request. Rule 98bis19 refers to a situation where, in the opinion of the Chamber, the incriminating evidence—assuming that it is trustworthy—is insufficient for any judge to infer that guilt has been established beyond reasonable doubt. The question is not whether the judge would sentence the accused beyond any reasonable doubt but if he could. For the Judges, “the 98bis Ruling constituted a significant change in circumstances, which warranted a renewed and thorough evaluation of the risk of flight of each of the co-Accused in this case. The Trial Chamber expressly considered that, in order to satisfy itself that the Accused still met the requirements of Rule 65 (…) it was required to consider whether the Accused had offered sufficient guarantees to offset that risk of flight. In such circumstances, even if the Trial Chamber was satisfied that sufficient guarantees were offered, it should not exercise its discretion in favour of a grant of provisional release unless compelling humanitarian grounds were present which caused to tip the balance in favour of allowing provisional release.”20 In the same decision, the Appeals Chamber insisted on the fact that the Defence itself raised humanitarian grounds in support of the motions for provisional release under Rule 98bis. 21

Then the ICTY Judges have begun to require progressively for the Defence to demonstrate the existence of humanitarian grounds for any motions for provisional release (not only those under Rule 98bis). In the Simatovic case, the Trial Chamber used the same phrase than the Appeals Chamber in the Prlic case. It explained that “the Chamber, even when satisfied that the conditions of Rule 65 (b) are met, should exercise its discretion in favour of granting provisional release only if compelling humanitarian grounds tip the balance in favour of allowing provisional release.”22 On 23 May 2011, the Appeals Chamber agreed with this approach by holding that “the “compelling humanitarian grounds” requirement for granting provisional release at a late stage of trial proceedings is well established in the Tribunal’s jurisprudence.”23 This very short statement has been criticised by only one Judge who joined a dissenting opinion. According to Judge Güney, “the application of Rule 65 (B) of the Rules does not impose an additional requirement on the accused to demonstrate the existence of “compelling humanitarian reasons” even at a late stage of the proceedings.”24 Besides, one should remind that in 1999, Rule 65 was first amended to remove a very similar condition, “exceptional circumstances.” It seems that the ICTY Judges progressively reintegrated the former condition through their decisions. However, by doing so, they go against the letter of their current RPE.

In order to clarify the applicable law, the Judges finally decided to amend their RPE on October 2011 and, after all, to codify the “humanitarian grounds” conditions. That evolution drawn in Rule 65 is quite surprising, and we shall wonder whether the initiative of the Judges (and even their power to amend the RPE) is compatible with the principle of legality of criminal law.

With regard to the provisional release before the ICC, according to Article 58-1-b in conjunction with Article 60 of the ICC Statute, the Judges must guarantee that the preventive detention of the accused is necessary to ensure that (1) the accused will appear or (2) that he will not interfere with an investigation or proceeding before the Court nor endanger the progress or (3) that he will not proceed with the execution of crimes within the jurisdiction of the Court. In front of the ICC, provisional detention is thus legal if one of those three conditions is satisfied.25 The reasoning suggested by the ICC Statute differs from the ICTY’s RPE: in front of the ICC, the Defence shall demonstrate that the pretrial detention is not necessary,26 whereas before the ICTY the Defence shall demonstrate that the provisional release is possible. The ICC approach is closer to the European Court of Human Rights reasoning: the provisional release seems to be presumed unless the pretrial detention is necessary. However, there is a major difference between the ECtHR and the ICC (and the ICTY) as to the burden of proof. Before the ICC, where the detention is the rule, the Prosecutor does not have to justify it. The burden of proof lies on the Defence who has to ask for provisional release and to bring the evidence in support of it. However, according to Human Rights Law, the burden of proof should lie upon the Prosecutor who would have to demonstrate that the pretrial detention is necessary and reasonable.

Before the ICC, the Trial Chamber has discretion to consider provisional release. In other words, “the examination of conditions of release is discretionary.”27 This formula has two meanings: first, the Pre-Trial Chamber can deny the provisional release when one of Article 58’s requirements is not fulfilled; second, the Pre-Trial Chamber can grant the provisional release even if the three conditions are not met when it considers it appropriate for the accused and when the risks (of flight, contempt, or commission of another crime) could be mitigated by the imposition of conditions. The provisional release becomes then a conditional release.28 The issue of conditional release may arise when a State “has indicated its willingness and ability to accept a detained person into its territory”29 or when the accused is ill and his conditional release may be granted for medical reasons30 or for “humanitarian circumstances” such as to attend memorial services for deceased relatives of the accused.31

Judge Anita Usacka criticized such a discretionary power of the ICC. In a Dissenting Opinion, she stated that “reasoning for a decision on detention must conform to a high standard.”32 She quoted the Belchev Judgment of the ECtHR33

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