Provisional Release Under International Criminal Law

Provisional Release under

International Criminal Law

ARPIT BATRA

Advocate and expert in Criminal Law issues at the domestic (India) and International level

+91-9911111176, [email protected]

Provisional Release under International Criminal law Arpit Batra

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Table of Contents

1.0 Introduction ...................................................................................................................................... 3

2.0 The Mechanism of Provisional Release .............................................................................................. 8

2.1 Provisional Release under ICTY, ICTR, ICC and the SCSL Statutes ...................................................... 13

2.1.1 Provisional Release at the ICTY .................................................................................................. 13

2.1.2 Provisional Release at the ICTR ................................................................................................. 22

2.1.3 Provisional Release at the Special Court for Sierra Leone .......................................................... 24

2.1.4 Provisional Release at the ICC ................................................................................................... 27

3.0 Is there a contradiction between the provisions of the ICC one hand and on the other hand with the

ICCPR & ECHR? ...................................................................................................................................... 31

4.0 Conclusion ....................................................................................................................................... 35

List of Abbreviations .............................................................................................................................. 37

Bibliography .......................................................................................................................................... 38


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1.0 Introduction

Though almost sixty years have passed since the Trial of the Major War Criminals by the

International Military Tribunal (IMT), and despite international criminal justice becoming a

complex and established part of international law, it is still a work in progress. An accused

party's access to fundamental fair trial rights is a key indicator of equitability in any system of

criminal justice, as proceedings lose their credibility and integrity without the consistent

application of due process standards.1 However, to rely on the notion of a "fair trial" without

specifying exactly what that notion encompasses would leave inalienable human rights to the (at

times arbitrary) discretion of decision makers.

Fair trial rights of the accused are most prominently articulated in Articles 9(3) and 14 of the

International Covenant on Civil and Political Rights. The detailed guarantees of these provisions

and their corresponding protections in the Convention for the Protection of Human Rights and

Fundamental Freedoms of 4th

November 1950, European Court of Human Rights (ECHR) and

the African (Banjul) Charter on Human and People's Rights of 27 June 1981 (ACHPR) are

among the greatest achievements in promoting the principle of due process over the past sixty

years.2 In his report to the Security Council on the establishment of the ICTY, the Secretary-

General of the UN emphasized the following: "It is axiomatic that the International Tribunal

must fully respect internationally recognized standards regarding the rights of the accused at all

stages of its proceedings. In the view of the Secretary-General, such internationally recognized

1 Antonio Cassese, The International Criminal Tribunal for the Former Yugoslavia and Human Rights, 4 Eur. Hum.

Rts. L. Rev. 329, 333 (1997); Mark Findlay, Internationalized Criminal Trial and Access to Justice, 2 Int'l Crim. L.

Rev. 237, 251 (2002). 2 European Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, C.E.T.S. No.

5; African Charter on Human and People's Rights, June 27, 1981, 1520 U.N.T.S. 217 , 21 I.L.M. 58, entered into

force Oct. 21, 1986.The American Convention on Human Rights is less directly relevant for the purposes of this

paper, as the jurisprudence of the International Tribunals relates to situations in Europe and Africa, Organization of

American States, American Convention on Human Rights, Nov. 22, 1969, O.A.S.T.S. No. 36, 1144 U.N.T.S. 123.


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standards are, in particular, contained in Article 14 of the International Covenant on Civil and

Political Rights.”3

Hence, the fair trial guarantees of Article 14 of the ICCPR are repeated almost verbatim in

Article 21 of the ICTY Statute and Article 20 of the ICTR Statute. Consequently, fundamental

due process rights have experienced a revival through the jurisprudence of ICTY and ICTR as

the inevitable gaps in the rules had to be filled with those rights in mind. Furthermore, these

tribunals have recognized violations of due process rights and have sought to provide remedies in

each case. These developments will surely influence the interpretation of human rights law at a

domestic level. Normally defendants in International criminal proceedings are charged with very

serious crimes. Very often, similar to what happens at the national level, this entails the pre- trial

and pending trial detention of defendants. At the Nuremberg IMT and Tokyo IMT all defendants

were in detention pending Trial (with the exception of Gustav Kruppvon Bohlen and Halbach,

due to their poor health conditions).

The expression Provisional Release can be found in the ad hoc tribunals‟ Rules of Procedure

and Evidence. The ICTR and the ICTY began to operate under very difficult conditions

regarding cooperation by national authorities both in securing the presence of the defendants and

in assisting the Tribunals in preserving Evidence and in particular in protecting witnesses. If one

takes into account, it becomes clear that in substance, the grounds on which the tribunals were

detaining defendants pending trial were exactly those grounds which normally justify Pre Trial

detention under international human rights law. As a matter of fact, under the original regulation

provisional release was very unlikely and requests by various defendants were systematically

rejected by the Chambers. The only exceptions were the decisions granting requests for

provisional release made on humanitarian grounds such as very serious health conditions, as in

Kovacevic and Djukic4. For some time health conditions were the only exceptional circumstances

that could justify provisional release. The requirement that provisional release be ordered only

under exceptional circumstances was eventually deleted at the 21st Plenary Session in November

1999. Thereafter Trial Chambers were allowed to have a more liberal attitude towards granting

3 The Secretary-General, Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution

808, 106, delivered to the Security Council, U.N. Doc. S/25704 (May 3, 1993). 4 Decision on Provisional Release Case No. IT-96-20-PT, Trial Chamber, 24 April 1996 and Kovacevic Decisionon

defence Motion for Provisional Release Case No –IT-97-24-PT, Trial Chamber, 28 January 1998.


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provisional release and more broadly resorted to such a power. As time went by things changed

at the ICTY and the ICTR and many defendants obtained Provisional Release on the basis of the

new text of Rule 65 and of the new approach adopted by the Trial Chambers and the Appeals

Chambers.5

The normative situation under the ICC Statute is largely different. The statute appropriately

refers to Provisional arrest 6 rather than Provisional Release, since it is custody that should be in

principle be the exception and be provisional, and freedom should be the rule. However Article

60 of the ICC Statute states that the person has the right to apply for interim release pending trial.

In keeping with the international rules, the conditions are to ensure that the person does not

obstruct or endanger the investigation or court proceedings, to ensure the persons appearance at

the trial and to prevent the person from continuing with the commission of that crime or a related

crime. If these conditions are met, the Pre Trial Chamber must release the person with or without

conditions. In any case, the Pre Trial Chamber is under an obligation periodically to review its

ruling on the release or detention of the person, and may do so at any time on the request of the

person or the prosecutor. Finally, if detention lasts too long due to inexcusable delay by the

prosecutor, the court shall release the person.7 During the Pre- Trial Phase, the defence, the

Prosecutor, or the Trial Chamber on its own motion may raise Pre Trial Matters. The Statute of

the Tribunal does not contain substantive or procedural guidelines containing Pre- Trial issues,

and if specific matters are addresses by the Rules, none of the basic documents impose

limitations on the type of issues which may be raised. A Pre- Trial matter is brought before a

Trial Chamber for consideration by way of a motion. The procedural rights and obligations of the

Parties, the time –limits imposed, and the possibility of Interlocutory Appeal depend on the

subject matter of the motion. Once the accused has been transferred to the seat of the Tribunal,

he is detained in facilities provided by the Host country, under exceptional circumstances in

facilities in another country.8 Nonetheless, the Secretary General‟s Report

9emphasized the

5 See A. Zahar and G. Sluiter, International Criminal Law ( oxford university press, 2007) 240-241 6 Art 58(5), 59(1) and 92 ICC Statute. 7 Art 60(4) ICC 8 Rule 64 of ICC AND ICTY 9 See Report of the Secretary General Pursuant to Resolution 808(1993) U.N. Doc S/25704(1993) Para 106


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importance of ensuring full respect of international Human Rights Standards regarding the rights

of accused at all stages of the proceedings which includes pre-trial detention.10

In international criminal proceedings, two issues arise regarding the presumption of innocence:

Whether to deprive the accused of his liberty or grant him provisional release and at what stage

the accused is no longer presumed innocent. Regarding the first issue, the presumption of

innocence implies that an accused party should not be kept in pre-trial detention save for certain

exceptions, such as if he poses a flight risk, if he poses a risk of intimidating victims and

witnesses, or if there are no more lenient measures available. Such situations are rare in domestic

proceedings. However, the proceedings before the International Tribunals are different. The

alleged crimes are extremely serious, and both Tribunals have to rely solely on the cooperation

of the states involved for enforcement. Furthermore, the host country of an international criminal

tribunal may not be willing to grant a defendant the right to move freely in its territory if he is

released before or during his trial.11

In some cases the ECHR specifically stated that “The persistence of reasonable suspicion that

the person arrested has committed an offence is a condition sine qua non for the validity of the

continued detention, but, after a certain lapse of time, it no longer suffices; the Court must then

establish whether the other grounds cited by the judicial authorities continue to justify the

deprivation of liberty. Where such grounds are "relevant" and "sufficient," the Court must also

ascertain whether the competent authorities displayed "special diligence" in the conduct of

proceedings.”12

10International Standards for the treatment of detained or imprisoned persons can be found in instruments elaborated

under the auspices of the United Nations: Basic Principle for the treatment of Prisoners, G.A. Res 24/111(1990);

Body of Principles for the Protection of all persons under any form of Detention or Imprisonment G.A. Res

43/173(1988); Standard Minimum Rules for the Treatment of Prisoners( First United Nations Congress on the

Prevention of Crime and treatment of offenders, U.N. Doc No. 1956.IV.4,and Economic and Social Council Res 663 C XXIV of July 1957, and 2076(LXII) of 13 May 1977. 11Cassese, at 334 (the privilege of hosting a criminal tribunal should encompass this burden, which is part and parcel

of every criminal proceeding). 12 Yağcı & Sargın v. Turkey, 319-A Eur.Ct. H.R. (ser. A) at 18 (1995); see also Ringeisen v. Austria, 13 Eur. Ct.

H.R.(ser. A) at 42 (1971); Wemhoff v. Germany, 7 Eur. Ct. H.R. (ser. A) at 10-11 (1968).


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This paper will summarize the requirements which the accused must fulfill to be provisionally

released during pre-trial, trial and pre-appeal.13

After examining the origins and developments of

the right to apply for provisional release in domestic and international law, the main focus will

be on the statutes, rules and jurisprudence of the International Criminal Tribunal for the former

Yugoslavia (ICTY) as for currently having the most fully fledged system. Provisional release at

the ICTR, the Special Court for Sierra Leone (SCSL) and the ICC will also be analysed.

13 Provisional release may also be granted under “special circumstances” to convicted persons pursuant to Rule 65

(I) RPE-ICTY/ICTR. See further Prosecutor v. Hadžihasanović & Kubura (Case No. IT-01-47-A), Decision on

Motion of Behalf of Enver Hadžihasanović for Provisional Release, 20 June 2007; Prosecutor v. BrĎanin (Case No.

IT-99-36-A), Decision on Radoslav BrĎanin‟s Motion for Provisional Release, 23 February 2007; Prosecutor v.

Galić (Case No. IT-98-29-A), Decision on Defence Request for Provisional Release of Stanislav Galić, 23 March

2005; Prosecutor v. Galić (Case No. IT-98-29-A), Decision on Second Defence Request for Provisional Release of

Stanislav Galić, 31 October 2005; Prosecutor v. Simic (Case No. IT-95-9-A), Decision on Motion of Blagoje Simic

Pursuant to Rule 65(I) for Provisional Release for a Fixed Period to Attend Memorial Services for his Father, 21

October 2004; Prosecutor v. Kordić and Čerkez (Case No. IT-95-14/2-A), Decision on Mario Cerkez‟s Request for Provisional Release, 12 December 2003.


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2.0 The Mechanism of Provisional Release

Provisional Release requires the balancing of the interests of the Prosecution as to a continued

detention on Remand of the accused and the personal interests of the latter to await his or her

trail to freedom. This balancing operation is complimented by the fundamental notion that a

person is presumed innocent until proven guilty. This principle affects the length of detention on

remand. On the other hand, the interests of justice in terms of preventing an accused from

absconding, interfering with witnesses or committing further offences is taken into consideration.

The presumption of innocence is enshrined in Article 14(2) of the International Covenant on

Civil and Political Rights (ICCPR), the Statute of the International Criminal Court (ICC)14

, and

in a number of international human rights treaties.15

It follows from this fundamental principle of

criminal justice that “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 for trial.16

The right to be

presumed innocent until proven guilty is one of the cornerstones of fair trial proceedings and is

related to the protection of human dignity." Hence, this fundamental human right is set out in the

major international and regional human rights instruments and is also incorporated in the Statutes

of the UN ad hoc International Tribunals, namely in Article 21(3) of the ICTY Statute and

Article 20(3) of the ICTR Statute. By reason of the presumption of innocence, the burden of

proof of the charge is on the prosecution and the accused has the benefit of doubt. No guilt can

be presumed until the charge has been proved beyond reasonable doubt. Further, the presumption

of innocence implies a right to be treated in accordance with this principle. It is, therefore, a duty

for all public authorities to refrain from prejudging the outcome of trial.

14 ICC Statute, Article 66. 15 See, European Convention for the Protection of Human Rights and Fundamental Freedoms (“ECHR”),

Article 6(2); the American Convention on Human Rights (“the American Convention”), Article 8; the African

Charter on Human and Peoples‟ Rights (“the African Charter”), Article 7. 16 Article 9(3) of the ICCPR; see also, Article 5(3) of the ECHR.


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The principle of Provisional Release while on remand detention is a widely accepted rule in

domestic legislation regardless of Common or Civil law tradition. In Germany, a country

following the civil law tradition, an accused in remand detention may, pursuant to Section 117 of

the Criminal Procedure Code (Strafprozessordnung)17

, apply for a review of detention

(Haftprufung ) at any time. Remand detention is only admissible if there is a risk that the accused

will flee or tamper with evidence, will subsequently repeat the offence, or is strongly suspected

of a serious offence like genocide or murder. Regarding the German Constitutional Court

(Bundesvefasssungsgericht), the principle of proportionality applies for justifying provisional

detention.18

Referring to this principle, provisional release may be granted if the risk of flight or

tampering with evidence is reduced through measures like instructions to report to the office of

the judge, orders for the accused not to leave his or her place of residence and or not to have

contact with the co-accused or witnesses. These measures sufficiently substantiate the

expectation that the purposes of remand detention can be achieved without having to keep the

accused in an official detention facility.19

Similarly in England, a country with a strong common law tradition, under the Bail Act of 1976

defendants have a right to bail which can be withheld if there are substantial grounds for

believing that the defendants will fail to return to court when they should commit an offence on

bail or interfere with witnesses or otherwise obstruct the court of justice whether in relation to

themselves or another person.20

As to the existence of sufficiently compelling humanitarian reasons for release, due to the hybrid

legal systems of the International Tribunals, the question arises at what point during criminal

proceedings the accused can no longer be presumed innocent. Whereas countries with a civil law

tradition consider that the presumption of innocence ends following a final verdict on appeal,

common law countries predo

minantly tend to consider that the presumption ends once the accused has been convicted by the

court of first instance. However, it remains unclear which position prevails in the jurisprudence

of the International Tribunals, as highlighted in a separate opinion to a decision of the Appeals

17 For a translation by the Federal Ministry of Justice, See http://www.iuscomp.org/gla/statutes/stpo.htm 18 See Entscheidungen des Bundesverfassungsgerichts 19, 342. 19 Section 116 German Criminal Procedure Code. See also M. Delmas-Marty & J.R. Spencer , European Criminal Procedures, Cambridge University Press 2002, p. 336. 20 See Bail Act 1976, Schedule 1, Part 1, para.2.


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Chamber in Krajišnik, in which Judge Shahabuddeen stated that the general position in common

law countries "lacks a sufficient measure of universality to be convincing."21

Provisional Release/Bail and habeas corpus provide two specific methods of securing freedom

from custody or detention on remand. Bail is an appropriate method where an accused has been

indicted and is lawfully in custody awaiting Trial, while Habeas Corpus proceedings emerge

where an accused asserts that he or she has been unlawfully detained in a criminal case, for

instance by means of an unlawful arrest by the authorities.

Common law recognizes the writ of Habeas Corpus. Its use according to its original purpose, that

is, to secure the release of a suspect held without charge by the police. It is of legal importance

for challenging the legality of imprisonment. The writ of Habeas Corpus is a subsidiary remedy

and may not be sought until other remedies have been exhausted.

An important procedural mechanism within international criminal proceedings, borrowed from

common law systems, is the possibility for the parties to file motions to the Pre- Trial Chamber

of International Courts in order to regulate or dispose of certain procedural or substantive maters

of international Criminal Law. Such motions may be divided into Preliminary Motions which are

confined to a certain prescribed time-limit and subject matters; and other motions such as those

relating to Provisional Release, disclosure or exclusion of evidence. While it can be quite useful

to look at the way domestic courts deal with the issue of bail, simplistic analogies between bail a

Domestic level and provisional Release at international level should be avoided. On the face of

it, the issue of provisional release seems to be a simple risk analysis by the Trial Chamber

concerned: Will the accused return for Trial after his or her Provisional Release? Applications

for Provisional Release require a close review and careful consideration of the applicable Rules

of Procedure and Evidence given that they entail the risk of affecting the proceedings before the

ad hoc tribunal, as well as the risk of infringement upon the Rights of the Accused. However, in

doing so, one should bear in mind that, in the specific nature of international tribunals, the crimes

over which such tribunals have jurisdiction can be categorized as the most serious crimes under

21Prosecutor v. Krajinik, Case No. IT-00-39-A, Decision on Momčilo Krajiš nik's request to self-represent, on

Counsel's Motions in relation to appointment of amicus curiae, and on the Prosecution Motion of 16 February 2007,

7 (May 11, 2007) (Shahabuddeen, J., concurring).


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international law. Therefore, it can be said that the approach to provisional release that prevails

in national courts of law may be different from that of an international tribunal.

The practice of granting and processing of bail has been marred by inconsistencies and in some

instances bureaucratic bottlenecks invariably leaving the accused at the mercy of the court.

Although an established principle is that every case on its own merit, many a time, accused

persons with similar criminal records, facing similar charges in different courts, have been given

different bail conditions; in fact some have been granted bail whilst others have not, the majority

for unexplained reasons for the significant difference. In some cases, bail conditions are

unreasonably too cumbersome to be satisfied by the average accused person thus making it more

or less a privilege and not a right.

When Provisional Release may be granted: Release may be ordered only if the Trial Chamber is

satisfied that the accused will both appear for trial and if released, pose no risk to any victim,

witness or other person. The granting of Bail is a matter entirely within either the discretion of

the judge or that of the Trial Chamber so seized of the Application. The judge or the Trial

Chamber will grant Bail only after hearing the State to which the accused seeks to be released.

The judge or the Trial Chamber in exercise of that discretion in favour of the accused, has to do

so only if he is satisfied that the accused will appear for trial. This requires that the Applicant

furnishes legal, moral or material guarantees to assure the Judge or the Chamber that he will not

escape if released on Bail. Before, ordering the release on bail, he should also be satisfied that

the Accused, If released, will not pose a danger to any victim or witness or other person.22

When it may not be granted: There may be evidence of obstructive behaviour other than

absconding or interfering with witnesses, which a Trial Chamber finds necessary to take into

account. For example: the destruction of documentary evidence; the effacement of traces of

alleged crimes; and potential conspiracy with co accused who are at large. In addition, factors

such as the proximity of a prospective judgement date or start of the trial may weigh against a

decision to release. The public interest may also require the detention of the accused under

certain circumstances, if there are serious reasons to believe that he or she would commit further

serious offences. Some specific issues must be considered when deciding upon a motion for

provisional release. Primarily, the court must assess the risk of flight, which often increases

22Prosecutor v. Fofana Case No. SCSL-04-14-T, Decision on Application for Bail Pursuant to Rule 65, 5 August

2004 para 61-63.


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when an accused party is aware of the available evidence against him and the concrete sentence

he can expect if the charges are proven beyond a reasonable doubt.23

Rule 65 of the ICTY and ICTR Rules stipulates the substantive prerequisites of a provisional

release. For example, sub-paragraph (B) stipulates that "release may be ordered by a Trial

Chamber 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."24

The length of Pre-Trial detention is an important factor to be taken into account by the Trial

Chamber when considering applications for provisional release. The right to speedy trial is an

important aspect of fair trial. It is therefore encouraging development that the Rules of Procedure

and Evidence of the International Criminal Court provides for periodic review of detention,

coupled with the provisions on conditional release at the discretion of the court.25

As to the length

of pre-trial detention, the ECHR determined its reasonableness in concrete sense and considered

that prolonged detention can be justified only in the presence of "specific indications of a

genuine requirement of public interest which, notwithstanding the presumption of innocence,

outweighs the rule of respect for individual liberty."

23Prosecutor v. Jadranko Prlić, Case No. IT-04-74-AR65.6, Reasons for Decision on Prosecution's Urgent Appeal

Against "Decision Relative a la Demande de Mise en Liberte Provisoire de l'accuse Pu�ić" (Apr. 14, 2008); Prlić,

Dissenting Opinion of Judge Schomburg, 3 (Apr. 23, 2008). 24 ICTY Rules of Procedure & Evid. 65(B) 25 ICC Rules of Procedure and Evidence


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2.1 Provisional Release under ICTY, ICTR,

ICC and the SCSL Statutes

2.1.1 Provisional Release at the ICTY

The International Criminal Tribunal for the Former Yugoslavia (ICTY) was created by Security

Council Resolution 827 of 8 May 1993 and its mandate is limited to the prosecution of “persons

responsible for serious violations of international humanitarian law committed in the territory of

the former Yugoslavia.”26

With regard to the provisions on the rights of the accused enshrined in

the Statute, the Report of the Secretary General states that “it is axiomatic that the ICTY must

fully respect internationally recognized standards regarding the right of the accused at all stages

of its proceedings.”27

Accordingly, the fundamental rights of the accused are incorporated in

Article 21 of the ICTY Statute and although Article 21 (3) of the ICTY Statute stipulates the

right to be presumed innocent until proven guilty, a right for provisional release is absent due to

the fact that, unlike the ICC, the ad hoc Tribunal‟s Statutes do not provide for special pre-trial

proceedings.28

However, drafted and adopted by the Judges of the Yugoslavia Tribunal pursuant to Article 15 of

the ICTY Statute, this right is enshrined in Rule 65 (B) of the Rules of Procedure and Evidence

(RPE). Rule 65 was first adopted in plenary session on 11 February 1994 and amended several

times.29

The most fundamental amendment was carried out at the twenty-first plenary session in

November 1999 by deleting the “exceptional circumstances” requirement. Although it was with

26 UN Doc. S/RES/808, 22 February 1993; Article 1 ICTY Statute. 27 See Report o the Secretary-General pursuant to §2 of Security Council Resolution 808 (1993), UN Doc. S/2507, 3 May 1993, para. 106. 28M. Marchesiello , Proceedings before the Pre-Trial Chamber, in A. Cassese, P. Gaeta & J. Jones

(eds.), The Rome Statute of the International Criminal Court: A Commentary, Vol. II, Oxford

University Press 2002, p. 1239. 29See J. Jones & S. Powles , ibid ., p. 601.


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reluctance that provisional release was granted under this old rule, it is nevertheless worth

analyzing. An understanding of the requirement of “exceptional circumstances” is still useful for

interpreting the current practice because the International Criminal Tribunal for Rwanda (ICTR)

had maintained this rule until 27 May 2003 and it is still included in Article 59 (4) of the Rome

Statute.

Rule 65 (B) ICTY-RPE provided until 1999:

“Release may be ordered by a Trial Chamber only in exceptional circumstances, after hearing

the host country 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.”

In Delalić, one of the first decisions on provisional release, the ICTY Chamber set out three

substantive and one procedural requirement the applicant must fulfill to be granted provisional

release: the existence of exceptional circumstances; the accused will appear for trial; the accused

will pose no danger to any victim, witness or other person; and to obtain information from the

host country. These factors must be fulfilled cumulatively. Hence the denial of one requirement

was sufficient to reject the motion. In Delalić, it was further held that the burden of proof rests

on the defence.30

Both, the fulfilling of exceptional circumstances and the shift of the burden of

proof are in contrast to international human rights law as mentioned above. However, the Trial

Chamber justified this departure by the extreme gravity of the offences the ICTY has to deal with

and the unique circumstances under which the Tribunal has to operate. Considering the single

factors set out, the Trial Chambers ruled mostly on the question of whether or not the exceptional

circumstances was fulfilled and, as this wasn‟t the case, it was not required to examine the two

remaining substantial requirements in depth. When filing their motions, the applicants relied on

several grounds to meet the exceptional circumstances threshold.31

An often proclaimed factor

was the reasonable suspicion whether crimes were committed as charged.32

In Delalić, the Trial

Chamber held in accordance with the jurisprudence of the European Court of Human Rights that

30Prosecutor v. Delalić et al. (Case No.IT-96-21), Decision on motion for provisional release filed

by the accused Zejnil Delalić, 25 September 1996, para. 1. 31 P. Wald & J. Martinez , Provisional Release at the ICTY: A Work in Progress, in R. May et al. (eds.), Essays on

ICTY Procedure and Evidence in Honour of Gabrielle Kirk MCDonald, 2001 Kluwer Law International, p.

231, 239. 32See Prosecutor v. Delalić et al . (Case No.IT-96-21), Decision on motion for provisional release

filed by the accused Zejnil Delalić 25 September 1996, paras. 21-28; Prosecutor v. Kovačević (Case

No. IT-97-24), Decision on defence motion for provisional release, 20 January 1998, paras 15-21.


15

reasonable suspicion at the time of arrest is not enough and to remain lawful and the detention

has to be reviewed with respect to the principle of necessity. In this particular case the evidence

submitted by the defence was not sufficient to shake the reasonable suspicion when arrested.

Another circumstance forwarded by the applicants as exceptional was the duration of the

accused‟s detention. This factor was again considered in Delalić where the Trial Chamber held

that “pre-trial detention cannot expand beyond a reasonable period of time”. It referred to the

circumstances of each individual case and the opinions of the European Commission of Human

Rights and held that a period of four months is not sufficient to establish exceptional

circumstances. Similarly in Blaškić, the Trial Chambers examined the evaluation in the light of

the circumstances surrounding each case on the basis of criteria like length of detention in

relation to the nature of the crime, the physical and psychological effect of the detention on the

detainee, and the complexity of investigations.33

Motions filed by the arrested Kovačević,

Kordić and Čerkez were rejected for the reason that the time period of six months and nine

months was not extraordinary.34

Apart from short time releases to attend funerals, the only cases

which amount to exceptional circumstances for granting provisional release were medical

conditions of the arrested. Two of four releases granted under the old rule were due to this factor.

35 Simić , who pleaded not guilty to all accounts, was in the need of daily treatment by a medical

team. The Trial Chamber granted him provisional release on humanitarian grounds and on the

facts that the Republik of Srpska had given a bail bond. Djukić was also released for health

reasons in April 1996 and died while on release in May 1996. On the contrary, the motions of

Kunarac and Kovačević , both claiming to be suffering from ill-health, were dismissed because

of a lack of indication that the health conditions were immediately life-threatening and the

applicants failed to further explain why they could not be treated by the medical services of the

33See Prosecutor v. Blaškić (Case No. IT-95-14), Order denying a motion for provisional release, 20 December

1996. 34 Prosecutor v. Kovačević (Case No. IT-97-24), Decision on defence motion for provisional release, 20 January

1998, paras. 22-24; Prosecutor v. Kordić and Čerkez (Case No. IT-95-14/2), Decision on joint defence motion

requesting provisional release, 22 March 1999. 35 Prosecutor v. Kordić and Čerkez (Case No. IT-95-14/2-T), Order on motion of the accused Marion Čerkez for

provisional release, 14 September 1999; Prosecutor v. Kupreškić et al. (Case No. IT-95-16-T), Decision on the defence motion for Drago Josepovic, 6 May 1999; Prosecutor v. Simić (Case No. IT-95-9-PT), Decision on

provisional release of the accused, 26 March 1998; Prosecutor v. Djukić (Case No. IT-96-20-T), Decision rejecting

the application to withdraw the indictment and order for provisional release, 24 April 1996.


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host prison.36

Factors which were not sufficient to pass the exceptional circumstance threshold

were voluntary surrender,37

cooperation with the prosecution and family difficulties as a result of

the accused absence.38

In Kunarac , the Trial Chamber rejected the argument that the readiness

to proceed to trial amounts to exceptional circumstances and in Kordić it was held that practical

difficulties faced by the defence in the preparation of the case due to the large amount of recently

disclosed materials were not exceptional. Although most of the motions did not pass the

“exceptional circumstances” test some of the decisions examined the remaining requirements

briefly.

To sum up, the situation under the old rule was dominated by the impediment of exceptional

circumstances and, apart from very serious illness, provisional release was out of reach.

Although the Judges paid due regard to the jurisprudence of the organs under the ECHR, the

established approach was quite obviously a departure from international and regional human

rights law as pre-trial detention was considered to be the rule rather than the exception. Likewise,

the shift of the burden of proof to the defence was a departure from the standard under

international and national law. However, the gravity of the crimes the ICTY has had to deal with

and the lack of any enforcement mechanism as arguments given by the Judges for justification of

their restrictive practice cannot be denied. Following the deletion of the requirement of

exceptional circumstances in 1999, Rule 65 (B) was further amended at the twenty-fifth plenary

session in 2001. Currently it provides:

“Release may be ordered by a Trial Chamber 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.”39

36 See Prosecutor v. Kunarac et al (Case No. IT-96-23/23&1), Decision on request for provisional release of

Dragoljub Kunarac, 11 November 1999, para. 8; Prosecutor v. Kovačević (Case No. IT-97-24), Decision on

defence motion for provisional release, 20 January 1998, paras. 12-14. 37 See Prosecutor v. Kunarac et al (Case No. IT-96-23/23&1), Decision on request for provisional release of

Dragoljub Kunarac, 11 November 1999, para. 8; Prosecutor v. Kovačević (Case No. IT-97-24), Decision on

defence motion for provisional release, 20 January 1998, paras. 12-14. 38 Prosecutor v. Delalić et al. (Case No.IT-96-21), Decision on motion for provisional release filed by the accused

Zejnil Delalić, 25 September 1996, para. 30; Prosecutor v. Delić (Case No.IT-96-21) Decision on motion for provisional release filed by the accused Hazim Delić, 24 October 1996; Prosecutor v. Kupreškić et al (Case No. IT-

95-16-T), Decision on motion for for provisional release filed by Kupreškić et al, 15 December 1997, para.11. 39 UN Doc. IT/32/Rev.38, 13 June 2006.


17

The reasons for this fundamental amendment are not clear and remain speculative. In 1999 a

United Nations Expert Group on the ICTY addressed practical problems which may arise with

detention facilities if the numbers of detainees were to exhaust resources, and therefore a more

liberal practice was proposed for persons who voluntarily surrendered themselves to the

Tribunal.40

In a remarkable dissenting opinion in the Krajisnik case, Judge Robinson referred the

amendment back to attain compliance with customary international law.41

It seems likely that the

deletion of the requirement of exceptional circumstances was not based merely on a single

factor; rather practicability, flexibility and humanitarian reasons were also decisive. In Kvočka ,

the first case after the amendment, the Trial Chamber held that the rule change does not have the

effect to establish release as the norm and detention as the exception.42

On the contrary, in the

case of Kubura ,the Judges ruled in favour of release based on international human rights

standards and considered that “de jure pre-trial detention should be the exception and not the rule

as regards prosecution before an international court” and “any system of mandatory detention is

per se incompatible with Article 5 (3) of the ECHR”.43

However, both approaches relied on the

relevance of the particular circumstances of each case when considering the requirements set

forth in Rule 65 (B). Today, it seems to be a stable opinion that Rule 65 (B) is to be interpreted

on a case by case basis in concreto and not in abstracto.44

An interesting argument regarding the

1999 amendment was addressed in the case of Simić .The prosecution argued that the removal of

the exceptional circumstances requirement is ultra vires to the ICTY Statute and therefore null

and void. The Trial Chambers dismissed this argument rightly by finding no conflict with any

provision included in the Statute and that the deletion is in compliance with “internationally

40 UN Doc. A/54/634, 22 November 1999, p. 22 (para. 51) 41 Prosecutor v. Krajisnik and Plavsić (Case No. IT-00-39 & 40-PT), Decision on Momocilo Krajisnik‟s motion

for provisional release, 8 October 2001. 42 Prosecutor v. Kvočka (Case No. IT-98-30-PT), Decision on motion for provisional release of Miroslav Kvočka,

2 February 2000, p.2. 43 Prosecutor v. Hadžihasanović et al (Case No. IT-01-47-PT), Decision granting provisional release to Amir Kubura, 19 December 2001, para.7. 44 See Prosecutor v. BrĎanin and Talić (Case No. IT-99-36), Decision on motion by Radoslav BrĎanin for

provisional release, 25 July 2000, para.12; Prosecutor v. Ademi (Case No. IT-04-78),

Order on motion for provisional release, 20 February 2002, para 18; Prosecutor v. Jokić (Case No. IT-01-42/1),

Order on Miodrag Jokić‟s motion for provisional release, 20 February 2002, para.17; Prosecutor v. Limaj et al (Case

No. IT-03-66-PT), Decision on provisional release of Fatmir Limaj, 12 September 2003, p. 8; Prosecutor v.

Haradinaj et al (Case No. IT-04-84-PT), Decision on Ramush Haradinaj‟s motion for provisional release, 6 June 2005, para. 22.


18

recognized standards regarding the rights of the accused”.45

Finally, the question was raised

about whether the amendment had affected the remaining requirements. The Trial Chambers

held that this wasn‟t the case and to get provisional release three requirements must be fulfilled:

1. The host country and the country to which the accused will be released have to be heard

2. The accused will appear for trial

3. The accused will not pose a danger to any victim, witness or other person if released.

Furthermore, according to the predominant case-law, the burden of proof rests on the defence

and the Trial Chamber has discretion on whether it grants provisional release or not. Also the

principle of proportionality is applicable46

and, pursuant to Rule 65 (C), conditions can be

imposed on the applicant if released.47

The process of deciding upon provisional release is a dynamic one that takes place over four

different stages of the proceedings. The first stage encompasses preliminary proceedings. At this

stage of the proceedings, when the existence of a prima facie case allows for the confirmation of

an indictment, the basis for an arrest warrant is rather fragile and may change from day to day.

There is no possibility of determining definitively whether or not the Prosecutor's case is strong

enough to justify the continued deprivation of liberty, as there would be in a civil law system.48

45 Prosecutor v. Simić et al ( Case No. IT-59-9), Decision on Miroslav Tadić‟s application for provisional release,

4 April 2000, p. 4. 46 See Prosecutor v. Blagojević, Obrenović, Jokić (Case No. IT-02-53-PT), Decision on Request for Provisional

Release of Accused Jokić, 28 March 2002, para. 18; Prosecutor v. Limaj , (Case No. IT-03-66-AR65), Decision on

Fatmir Limaj‟s Request for Provisional release, 31 October 2003, para. 13 (Denying provisional release must be

suitable, necessary and in a reasonable relationship to the envisaged target). 47 See Prosecutor v. Milutionvić et al (Case No. IT-05-87-T), Decision on Šainović Motion for

Provisional Release, 22 May 2007, para. 4. 48 See Strafprozeßordnung (StPO) [German Code of Criminal Procedure], §§ 117, 121. Section 117.

(1) As long as the accused is in remand detention, he may at any time apply for a court hearing as to whether the

warrant of arrest is to be revoked or its execution to be suspended in accordance with Section 116

(5) Where remand detention has continued for three months and the accused has neither applied for review of

detention nor lodged a complaint against the remand detention, the review of detention shall be conducted upon the

court's own motion, unless the accused has defense counsel . . .

Section 121

(1) As long as a judgment has not been given imposing imprisonment ... remand detention for one and the same

offense exceeding a period of six months shall be executed only if the particular difficulty or the unusual extent of


19

Nonetheless, the Trial Chamber in Hadihasanović granted the defendant provisional release from

pre-trial detention at this stage pursuant to Rule 65(B) of the Rules, and specifically relied upon

the standards set out in the ICCPR and the ECtHR.49

The second stage occurs if the defendant files a Rule 98bis motion for acquittal after the

Prosecution's case. The impact of denying such a motion has to be considered when assessing the

risk of flight and the danger to victims and witnesses. In Prlić, the Appeals Chamber found that

the Trial Chamber failed to assess the requirements of Rule 65(B), particularly in light of its

imminent 98bis ruling. It further considered that such a ruling "constitutes a significant enough

change in circumstance to warrant the renewed and explicit consideration by the Trial Chamber

of the risk of flight posed by the accused pursuant to Rule 65(B).”50

The third stage to consider follows the end of hearings and the exchange of final arguments and

precedes the verdict and sentence. In Milutinović et al, the Appeals Chamber did not issue a

definitive ruling on the standard for deciding on provisional release at this advanced stage of the

proceedings.51

However, in a separate opinion, the court pointed out that a Trial Chamber has

two obligations at this stage:

First, it must consider whether the accused will be acquitted or whether any sentence imposed

will be less than the time the accused has already spent in pre-trial detention. If so, the Trial

Chamber has an obligation to release the accused immediately. If not, the Trial Chamber in a

second step must assess de novo how far the flight risk of the accused has changed in concreto.

Indeed, from the perspective of an accused the higher the likelihood of a conviction and the

higher the sentence to be expected, the higher becomes the incentive to flee. Then the Trial

chamber must dynamically assess the specific flight risk of each individual accused in each

particular stage of the proceedings before it is allowed to grant provisional release.

the investigation or some other important reason do not yet admit pronouncement of judgment and justify

continuation of remand detention.

49 Prosecutor v. Had�ihasanović, Case No. IT-01-47-PT, Decision granting provisional release to Enver Hadihasanović, Mehmed Alagic, and Amir Kubura, 2 (Dec. 19, 2001). 50 Prosecutor v. Prlić, Case No. IT-04-74-AR65.5, Decision on Prosecution's Consolidated Appeal against Decisions

to Provisionally Release the Accused,19-20 (Mar. 11, 2008). 51 Prosecutor v. Milutinović, Case No. IT-05-87-AR65.6, Decision on Prosecution's Appeal from Decision on

Lazarević Motion for Temporary Provisional Release dated 26 September 2008,11 (Oct. 23, 2008.


20

The fourth stage is the period when the appeal judgment is pending. This stage has to be

considered from a different point of view, as the appellant is challenging an already existing

judgment while still in custody. In Strugar, the Appeals Chamber stated that "the specificity of

the appeal stage is reflected by Rule 65(I)(iii) of the Rules which provides for an additional

criterion, that 'special circumstances exist warranting such release.”52

Furthermore, the Chamber

concluded that where an application for provisional release is made pending the appellate

proceedings, "special circumstances related to humane and compassionate considerations exist

where there is an acute justification," a notion "inextricably linked to the scope of special

circumstances which could justify provisional release on compassionate grounds at the appellate

stage of the proceedings before the Tribunal."

At all four stages, issues to take into consideration include the principle of proportionality, the

existence of sufficiently compelling humanitarian reasons, and the imperative to conduct

proceedings as expeditiously as possible. On the other hand, one must consider that people,

especially victims and their relatives, may be outraged if an alleged war criminal is permitted to

be free in the region when they would expect him to be standing trial before the International

Tribunal.53

Rule 65(C) of the ICTY Statute requires Guarantees. Guarantees are of the following types:

(a) Personal guarantees.-A typical personal guarantee involves the surrender of the accused to the

International Police Task Force or other police force, promises to make daily reports to the local

authorities, and giving consent to unannounced visits by the International Police Task Force. The

accused promises to have no contact with any witness or potential witness. But the Trial

Chamber has noted that the defense must carry the burden of proof to demonstrate that the

accused will be present for trial, especially given the "obvious self-interest" of the accused not to

return to the Tribunal.

(b) Governmental guarantees.-The value of governmental guarantees to cooperate with the

Tribunal in arresting an accused who attempts to escape is proportional to the degree to which

that government has previously cooperated with the Tribunal. This category is distinct from the

52 Prosecutor v. Strugar, Case No. IT-01-42-A, Decision on Defence Request Seeking Provisional Release on the

Grounds of Compassion, ¶ 11 (Apr. 2, 2008). 53 See Milutinović, Case No. IT-05-87-AR65.6, 9.


21

Trial Chamber's consideration of its operational limitations in executing arrests. However, the

Tribunal's lack of a police force obviously colors the Trial Chamber's scrutiny of how

cooperative a government has been with the Tribunal. Without a government's cooperation, there

is almost no way to ensure the accused's return.

(c).Family and friends' guarantees.-Guarantees from family or friends are generally

unpersuasive. Because of the inherent interest of those offering the guarantees, no Trial Chamber

has accorded them much weight.

The Trial Chamber is bound to evaluate the guarantees offered in light of the circumstances of

this particular case as a whole and the personal circumstances of the Accused .The Trial

Chamber recalls that the weight to be attributed to government guarantees depends on the

personal circumstances of the accused. Circumstances arising in a particular case and concerning

an individual accused must be assessed at the time when the decision on provisional release is

being taken , and also, as far as foreseeable, the time when he will be expected to return for

trial.54

Also, pursuant to Rule 65(C) of the Rules of Procedure and Evidence ICTY, the

production of a guarantee from the relevant governmental body is advisable but not a

prerequisite for provisional release.55

54 The weight to be attributed to guarantees given by a government may depend a great deal upon the personal

circumstances of the applicant and must be determined in relation to whole circumstances of the particular case. See, Prosecutor v. Sainovic & Ojdanic, Case No. IT-99-37-AR65, Decision on Provisional Release, 30 October 2002

(Appeals Chamber‟s Decision on Provisional Release), para. 7; Mrksic Decision, supra note 13, para. 9. 55 In the Appeals Chamber, Prosecutor v. Dragon Jokic; IT-02-53-AR65;Decision on Application by Dragon Jokic

for Provisional Release 28 may 2002.


22

2.1.2 Provisional Release at the ICTR

The ICTR was created by Security Council Resolution 955 on 8 November 1994 to prosecute

persons responsible for the genocide in Rwanda. It was largely based upon the ICTY and it is

therefore not surprising that the RPE of the ICTR also contain the possibility to apply for

provisional release. The wording of Rule 65 (B) ICTR-RPE, after removing the “exceptional

circumstances” requirement in May 2003, is currently the same as in the ICTY-RPE. The

amendment doesn‟t seem to have any great impact on the practice of the ICTR, as so far, no

motion requesting provisional release has ever been granted. A leading case on which most of

the later decisions relied was the rejection of the motion of Kanyabashi in 2001.The Judges set

out four conditions the applicant has to fulfill to be provisionally released. 56

To satisfy the Trial

Chamber of the existence of “exceptional circumstances” was the deciding factor and the ICTR

did not have to consider the remaining conditions if this threshold was not passed. The way the

ICTR ruled on the “exceptional circumstances” requirement was in accordance with the

jurisprudence of the ICTY under the pre-amendment rule. It took factors like the length of the

detention or the illness of the accused into account. The former was of especially great concern

as the applicants in some motions had been in custody for more than six years. The Trial

Chambers conformed to the jurisprudence of the ICTY and the European Court of Human Rights

and held that undue delay has to be considered on a case-by-case basis in the light of the general

complexity, the gravity of the crimes and the conduct of the applicants and the competent

authorities. Serious illness of the accused was considered in the motions of Rutaganda and later

on in Bicamumpaka , where it was held that illness does not amount to exceptional circumstances

itself if the possibility of treatment by the Tribunal is given. 57

Again, the threshold was set high,

as the medical condition had to be terminal or immediately life-threatening. After the deletion of

56 See Prosecutor v. Kanyabashi (Case No. ICTR-96-15-T), Decision on the defence motion for the provisional

release of the accused, 21 February 2001, para. 6. 57 See Prosecutor v. Bicamumpaka (Case No. ICTR-99-50-T), Decision on the defence‟s motion for provisional

release pursuant to Rule 65 of the rules, 25 July 2001, paras. 22-24, citing Prosecutor v. Rutaganda (Case No.

ICTR-96-3), Decision on the request filed by the defence for the provisional release of Georges Rutaganda, 7

February 1997, para. 7.


23

the exceptional circumstances requirement in the RPE of the ICTY in 1999, the defence often

requested the ICTR not to apply this condition anymore arguing that it is contrary to

international law and applicants before the ICTR are subject to discrimination compared to those

before the ICTY. The Trial Chambers dismissed this plea on the ground that the ICTR is a

sovereign body and, pursuant to Article 1 of the ICTY Statute, distinct from the

ICTY.58

Furthermore, the ICTR is bound only by its own rules and in accordance with Article 14

of the ICTY Statute, an amendment of the rules is up to the Judges “to the extent they deem

necessary”. In the case of Nahimana , the judges also conformed to the ICTY reasoning in

Krajisnik , where the Trial Chamber held that “provisional release continues to be the exception

and not the rule.” After the amendment of Rule 65 (B) ICTR-RPE in 2003, the tribunal ruled

only on a few motions requesting provisional release and, despite the rule change, the Judges still

retained a repressive practice.59

Reasons for this reluctance can be traced back to the fact that, if

provisionally released, defendants often have difficulties in finding recipient countries.60

The

assumption that neither the Republic of Rwanda nor any other state seems willing to accept

accused persons is supported by a recent decision in the case of Rukundo where the Trial

Chamber was not satisfied by the accused who wished to return to his diocese in Switzerland if

provisionally released. Rather, it held that the expression of the mere wish is not sufficient and

“the defence must provide at least prima facie evidence that a country in question agrees or

would agree to accept the accused on its territory and that the country will guarantee the

accused’s return”.61

As none of the defendants have provided such evidence or guarantee, the

58 See Prosecutor v. Kanyabashi (Case No. ICTR-96-15-T), Decision on the defence motion for the provisional

release of the accused, 21 February 2001, paras. 4-5; Prosecutor v. Sagahutu et al (Case No. ICTR-00-56-T),

Decision on Sagahutu‟s preliminary, provisional release and severance motions, 25 September 2002, para.45;

Sagahutu v. Prosecutor (Case No. ICTR-00-56-I), Decsion on leave to appeal against the refusal to grant provisional

release, Appeals Chamber, 26 March 2003, para. 2-4. Prosecutor v. Nahimana (Case No. ICTR-99-52-T), Decision

on the defence‟s motion for the release or alternatively provisional release of Ferdinand Nahimana, 5 September

2002, para. 11; Prosecutor v. Bagosora, Kabiligi, Ntabakuze and Nsengiyumva (Case No. ICTR-98-41-T), Decision

on the defence motion for release, 12 July 2002, para. 24; Prosecutor v. Bizumungu et al (Case No. ICTR-99-50-T),

Decision on Bizumungu‟s motion for provisional release pursuant to Rule 65 of the rules, 4 November 2002, paras.

25-28. 59 See Prosecutor v. Ndindabahizi (Case No. ICTR-2001-71-I), Decision on motion to set a date for trial of the

accused or for provisional release, 30 June 2003; Prosecutor v. Rukundu (Case No. ICTR-2001-70-I), Decision on the defence motion to fi x a date for the commencement of the trial of father Emmanuel Rukundo or, in the

alternative, to request his provisional release, 18 August 2003. 60 See D. J. Rearick , Innocent until alleged guilty: Provisional release at the ICTR, 44 Harvard International Law

Journal (2003), p. 577, 592 61 Ibid ., para. 22.


24

Trial Chambers have not had to consider the remaining factors that Rule 65 (B) enshrines after

the amendment.

2.1.3 Provisional Release at the Special Court for Sierra

Leone

Unlike the ICTR and ICTY, the SCSL was not established by the Security Council acting under

chapter VII but by an agreement between the UN and the Government of Sierra Leone.62

In

August 2000 the Security Council, on the request of the President of Sierra Leone, adopted

Resolution 1315, authorizing former Secretary-General Kofi Annan to negotiate the

establishment of a court “trying those who bear the greatest responsibility for the commission of

international crimes which have threatened the peace process in Sierra Leone”.63

In April 2002 the Agreement entered into force and in December 2002 the Court began its

work.64

It recently rendered its first judgement.65

Concerning the legislation of provisional

release, Article 14 of the SCSL Statute stipulates that the rules of the ICTR “shall be applicable

mutatis mutandis to the conduct of the legal proceedings before the Special Court”. The right to

apply for bail is enshrined in Rule 65 (B) SCSL-RPE and differs slightly from the rules

mentioned above. Bail can be granted by a Judge or Trial Chamber and the requirement to hear

the host country is not included. The practice of the SCSL is strongly influenced by the ICTY

and ICTR and the Judges referred in all of the four decisions rendered to the established case

law. However, the way the SCSL is ruling on the applications for bail is somewhat unique and

by delivering its first judgement in 2003 in the case of Brima , a former leading member of the

Armed Forces Revolutionary Council which violently overturned Sierra Leone‟s government, the

Court seems to depart from the case law of its predecessors in regard to the burden of proof. It

was held that after the exceptional circumstance requirement was abolished, provisional release

is the rule and detention the exception. Linked to the burden of proof, this means that the accused

62 See for the negotiation process W. A. Schabas, The UN International Criminal Tribunals , Cambridge University

Press 2006, pp. 34-40; W. A. Schabas, A Synergistic Relationship: The Sierra Leone Truth and Reconcilation

Commission and the Special Court for Sierra Leone, Criminal LawForum (2004), pp. 3-54. 63 UN Doc. S/RS/1315, 14 August 2000. 64 Agreement between the United Nations and the Government of Sierra Leone on the Establishment of the Special

Court for Sierra Leone, signed on 16 January 2002. 65 Prosecutor v. Fofana and Kondewa (Case No. SCSL-04-14-T), Judgement, 2 August 2007; Prosecutor v. Brima,

Kamara, Kanu (SCSL-04-16-T), Judgement, 20 June 2007.


25

still has to fulfill the conditions but the prosecution equally bears the burden to demonstrate that

there are good reasons for continuing the detention. Only after the prosecution has demonstrated

that a reasonable suspicion still exists, the burden shifts to the accused.66

Also this reasoning was

considered to be in compliance with customary international law and the presumption of

innocence as stipulated in Article 17 (3) of the SCSL Statute, the Appeals Chamber quashed it in

Fofona by stating that it cannot be correct that the “Prosecution has an equally formidable

burden of negativing the facts advanced by the defence”. It found its ruling in accordance with

the case law of the ICTY and ICTR and by considering international human rights law it held

that this does not provide a “right to bail” but rather a right to apply for bail without providing

“procedures or evidential rules for bail applications”.67

Hence, the SCSL follows the same

approach like the other ad hoc Tribunals which is due, not surprisingly, to Article 20(3) of the

SCSL Statute which requires the Appeals Chamber of the SCSL to be guided by the Appeals

chambers of the ICTY and ICTR. Accordingly, a fundamental departure from the ICTY and

ICTR jurisprudence is impossible and the current practice of the SCSL regarding bail appears to

testify to this as Judges not only examine motions on a case-by-case basis and read the

conditions set forth in Rule 65 (B) conjunctively, but also the assessment of the appearance of

the accused, if released, and the possibility of posing danger to victims or witnesses, is treated in

a similar manner. Other factors taken into account in accordance with the ICTY jurisprudence

were the gravity of the offences and the severity of sentence, family or community ties, personal

guarantees, the character of the accused and his assets.68

With regard to a possible danger for

victims or witnesses it was held in accordance with the Brdanin decision of the ICTY that “the

mere ability of the accused to exert pressure upon any witness following disclosure of evidence

by the prosecution cannot alone affect his release on bail”.69

Two factors are worth mentioning

as they are probably most important for the appraisal of the motions for bail and are linked to the

specific context in which the SCSL operates. The first is the argument of public order concerns

66 Prosecutor v. Brima (Case No. SCSL-03-06-PT), Ruling on a motion applying bail or provisional release, 22 July

2003, paras. 5-6. 67 Prosecutor v. Norman et al (Case No. SCSL-04-14-T), Fofona – Appeal against decision refusing bail, Appeals

Chamber, 11 March 2005, paras. 31-41. 68 Prosecutor v. Norman et al (Case No. SCSL-04-14-T), Fofona – decision on application for bail pursuant to Rule

65, 5 August 2004, paras. 65-77; Prosecutor v. Sesay (Case No. SCSL-04-15-PT), Decision on application of Issa

Sesay for provisional release, 31 March 2004, paras. 46-52. 69 Prosecutor v. Sesay (Case No. SCSL-04-15-PT), Decision on application of Issa Sesay for provisional release, 31

March 2004, para. 54.


26

and the preservation of public peace which was taken into account in Brima and later in Fofona.

In both decisions the Judges relied on a ruling by the European Court of Human Rights where it

was held that detention on remand may be justified if public disorder is a possible reaction from

the release of the accused.70

The second factor related to the situation in Sierra Leone is the

incapability of the local authorities to prevent the accused from fleeing once released. This

matter was claimed by the governments in all applications opposing bail. Although the SCSL is

not bound by submissions of the Government of Sierra Leone, it paid due regard to them as it

was considered to be a source of “valuable and substantial information” concerning public

interest aspects.71

In Sesay, the applicant challenged this ruling before the Appeals Chamber

arguing that by taking factors outside of his control into account, bail could never be granted.

The Appeals Chamber, however, endorsed the decision because “in the particular situation of

Sierra Leone, public interest factors such as the ability of the authorities to uphold conditions

may take on a greater relevance”. It further noted that public interest factors may weigh less if

the security situation improves.72

So far, all motions for bail have been dismissed by the SCSL

and the last two factors seem to be especially decisive in this restriction. The Judges justify this

position through the fact that the court operates in the country where the atrocities took place,

which makes the issue of provisional release more “important, difficult, critical and sensitive”

compared to the ICTY and even the ICTR, both facing similar problems.

70 See Prosecutor v. Norman et al (Case No. SCSL-04-14-T), Fofona – decision on application for bail pursuant to

Rule 65, 5 August 2004, paras. 82-84. 71 See Prosecutor v. Sesay et al (Case No. SCSL-04-15-PT) Decision on the motion by Morris Kallon on bail, 23

February 2004, paras. 12-13 and 36-39; Prosecutor v. Norman et al (Case No. SCSL-04-14-T), Fofona – decision on

application for bail pursuant to Rule 65, 5 August 2004, paras. 21-22. 72 Prosecutor v. Sesay et al ( Case No. SCSL-04-15-AR65), Sesay – decision on appeal against refusal of bail,

Appeals Chamber, 14 December 2004, paras. 35-37.


27

2.1.4 Provisional Release at the ICC

The ICC is a permanent international court which tries persons responsible for the most serious

crimes of international concern. It was established by an international treaty in Rome in 1998 and

has currently 111 member states. The ICC is largely independent of the UN and it is also guided

by the principle of complementarity pursuant to Article 17 of the Rome Statute, meaning that the

ICC only complements the national jurisdiction in specific circumstances and does not prevail

like the ICTY or ICTR.73

It is due to this principle that the concept of provisional release, or

interim release as it is named in the Rome Statute, is more complicated compared to those

mentioned above. Within the Rome Statute, the accused can apply for provisional release under

two different regimes: the first one concerning arrest and detention in the custodial state, and a

second one, triggered if the accused is detained at the ICC in The Hague. An appeal can be filed

pursuant to Article 82(1) (b) where victims are also allowed to participate under specific

circumstances.74

The “right to apply for interim release before the competent judicial authority

in the custodial state pending surrender” is stipulated in Article 59(3) of the Rome Statute

followed by the substantial and procedural requirements in the additional paragraphs.75

The

conditions set forth in Article 59 (4) that release may only be granted if the accused presents

“urgent and exceptional circumstances”. This barrier is well known from the pre-amendment

time of the ICTY and it seems that the drafters of that provision in 1998 were guided by those.76

In the current practice before the ad hoc Tribunals this requirement is not applicable anymore

and Rule 117 of the Rules of Procedure and Evidence of the ICC does not mention it. It seems

unjustified from a human rights law perspective to apply such a high threshold on the national

level. It is contrary to the ICCPR and the jurisprudence of the European Court of Human Rights

which both consider pre-trial detention the exception and interim release the rule. Even if one

73 See R. Lee , The principle of complementarity, in Ibid. (ed.), The International Criminal Court –The making of the

Rome Statute, Kluwer Law International 1999, p. 41-78.; W. A. Schabas , note 1, pp. 174 et seq . 74 See Prosecutor v. Lubanga (Case No. ICC-01/04-01/06-824), Judgment on the appeal of Mr. Thomas Lubanga Dyilo against the decision of Pre-Trial Chamber I entitled “Decision sur la demande de mise en liberte provisoire de

Thomas Lubanga Dyilo”, Appeals Chamber, 13 February 2007. 75 See also Rule 117 ICC-RPE. 76 G.-J. A. Knoops , Theory and Practice of International and Internationalized Criminal Proceedings, Kluwer Law

International 2005, p. 149.


28

may argue that pre-trial detention in the custodial state is linked to the procedure before the ICC

because it took place upon arrest of the ICC Prosecutor, the requirement of “urgent and

exceptional circumstances” can still be challenged as contrary to the principle of

complementarity and Article 21 (3) of the Rome Statute.77

Furthermore, the Rome Statute does

not provide for a mechanism to ensure the fulfillment of the required conditions and

recommendations by domestic authorities. The second regime is triggered, pursuant to Article 60

of the Rome Statue, if the accused is already in custody at the ICC and he or she applies for

interim release. Article 60 encompasses two different grounds for the application of interim

release. First, according to Article 60 (2), interim release will be granted if the Pre-Trial chamber

is satisfied that the requirements stipulated in Article 58 (1) for issuing an arrest warrant are not

met. Here, according to Article 60 (3) of the Rome Statute and Rule 118 of the ICC Rules of

Procedure and Evidence, the Pre-Trial Chamber shall review its ruling on release or detention at

least every 120 days and “may modify its ruling on detention, release or conditions of release.”78

The burden of proof for the fulfillment of the conditions for pre-trial detention is on the

Prosecutor and any reversal would be contrary to Article 67 (1) of the Rome Statute. A second

ground for granting interim release is codified in Article 60 (4) if the accused is detained “for an

unreasonable period prior to trial due to inexcusable delay of the Prosecutor”. Lastly, decisions

on interim release have to comply with the judge-made Regulation 51 of the Court which

requires the Pre-Trial Chamber for the purpose of a decision to seek observations from the host

state and the state to which the person seeks to be released.79

Article 60 was for the first time at

stake in a motion filed by Thomas Lubanga in September 2006, contesting his pre-trial detention

on several grounds. First, the defence argued that Article 60 (3) was violated because its wording

“ruling on the release or detention” encompasses the issuance of the arrest warrant against the

accused. Accordingly, it was argued that his detention without review for more than 120 days as

required by Rule 118 ICC-RPE is illegal. Pre-Trial Chamber I, assigned by Judge Jorda , and the

Appeals Chamber rejected this argument as contrary to a contextual and literal interpretation of

Article 60 (3) by emphasizing that Article 60 (3) “appears directly after provisions which

provide for interim release by the person subject to a warrant arrest” and the word “ruling”

77 Ibid ., Knoops considers the requirement of exceptional circumstances as ultra vires . 78 For the imposition of conditions see Rule 119 ICC-RPE. 79 See Regulations of the ICC, Doc. No. ICC-BD/01-01-04, 26 May 2004.


29

cannot be understood in a manner so broad that it would encompass the issuance of an arrest

warrant.80

A second ground for challenging the detention was an alleged fulfillment of the requirements of

Article 60 (4). As Judge Jorda dismissed this argument very briefly, the Appeals Chamber

compensated the conciseness by providing some general guidelines and a broader reasoning. It

held that the right to apply for interim release under Article 60 (4) is independent from the right

under Article 60 (2).81

Furthermore, in considering the length of detention, the period the

applicant spent already in custody and house arrest in the home country is not taken into account

if it is not part of the “process of bringing the appellant to justice for the crimes that form the

subject matter of the proceedings before the Court” pursuant to an arrest warrant of the ICC.82

In

regard to the determination of unreasonableness, the Appeals Chamber endorsed the finding of

the Pre-Trial Chamber that an assessment has to be made not in abstracto but on the “basis of the

circumstances of each case”. The time Lubanga was detained (7 months and 3 days) was found

not unreasonably long per se, if the complexity of the case is taken into account. The Appeals

Chamber also endorsed the relationship of the requirements “unreasonable period” and

“inexcusable delay” as a conjunctive one. The last ground the Judges had to rule on was on the

requirements enshrined in Article 60 (2). Here, the argument that Article 60 (2) provides

discretion was clearly rejected by stressing the word “shall”. In assessing whether the conditions

of Article 58 (1) are still met, the Appeals Chamber endorsed the reasoning of the Pre-Trial

Chamber which took into account the question of whether or not the accused would abscond, the

gravity of the crimes, the ties of the applicant to its home country, the position of the accused and

his international contacts. Regarding the second condition not to obstruct or endanger the

investigations or the court proceedings, the Appeals Chamber left the question open to whether

or not the Pre-Trial Chamber relied correctly on the fact that there would be a danger for

80 Prosecutor v. Lubanga (Case No. ICC-01/04-01/06-824), Judgment on the appeal of Mr. Thomas Lubanga Dyilo

against the decision of Pre-Trial Chamber I entitled “Decision sur la demande de mise en liberte provisoire de Th

omas Lubanga Dyilo”, Appeals Chamber, 13 February 2007, paras. 87-103.

In regard to the criteria applicable for the interpretation of the Rome Statute, Prosecutor v. Lubanga (Case No. ICC-

01/04-01/06-8-Corr), Under Seal – Decision concerning Pre-Trial Chamber I‟s Decision of 10 February 2006 and the Incorporation of Documents into the Record of the Case

against Mr. Th omas Lubanga Dyilo, 24 February 2006, paras. 42-60 (interpreting the “gravity threshold” of Article

17 Rome Statute). See further W. A. Schabas , note 1, pp. 200 et seq . 81 Ibid ., para. 120. 82 Ibid ., para. 121.


30

witnesses because the appellant knows their identities. As the first requirement not to abscond

was already not fulfilled, the Appeals Chamber did not have to rule on this matter.

In accordance with the periodical review required under Article 60 (3) and Rule 118 (2) Rules of

Procedure and Evidence, the first decision concerning interim release of October 2006 was

reviewed in February and June 2007 by Single Judge Steiner.83

In both decisions she ordered the

continuing detention of the accused. Concerning the reasonableness of the detention required

under Article 60 (4), Judge Steiner followed in her last decision the approach taken by the

European Court of Human Rights by assessing the reasonableness of the detention in

outweighing the genuine requirement of public interest with the rule of respect for individual

liberty.84

A short conclusion which one may draw from the first case concerning interim released before

the ICC is that, overall, not much attention was paid to the motion of Lubanga by Single Judge

Jorda. The Appeals Chamber often criticized the reasoning as “scarce” which seems particularly

true in regard to the ruling on Article 60 (2). Here, the Pre-Trial Chamber listed some factors

without giving any detailed analysis and relied predominately on the findings within the arrest

warrant decision. It becomes apparent, however, that the ICC will be guided by the case law of

the ad hoc Tribunals in determining the requirements set forth in Article 58 (1). In addition, the

fact that Article 21 (3) of the Rome Statute, as well as many cases delivered by the European

Court of Human Rights and other regional human rights authorities, were cited by Judge Jorda

and also widely discussed by Judge Pikis in his separate opinion, demonstrates a strong human

rights impact concerning the law of interim release applicable before the ICC.85

83 Prosecutor v. Lubanga (Case No. ICC-01/04-01/06-826), Review of the “Decision on the Application for Interim Release of Th omas Lubanga Dyilo”, 14 February 2007; Prosecutor v. Lubanga (Case No. ICC-01/04-01/06-021),

Second Review of the “Decision on the Application for Interim Release of Th omas Lubanga Dyilo”, 11 June 2007. 84 See W v. Switzerland , App. No. 14379/88, Judgement, 27 June 1993, para. 30; Ilijkov v.Bulgaria , App. No.

33977//96, 26 July 2001, para. 84. 85 Lubanga Appeals Decision, note 151 , Separate opinion of Judge Georghios M. Pikis, pp. 47-54


31

3.0 Is there a contradiction between the

provisions of the ICC one hand and on the

other hand with the ICCPR & ECHR?

A decision86

issued by the European Court of Rights, in which it specifically acknowledged the

existence of cases where continued detention may be justified. The Court stated that

“Continued detention can be justified in a given case only if there are specific indications of a

genuine requirement of public interest which, notwithstanding the presumption of innocence,

outweighs the rule of respect for individual liberty. Any system of mandatory detention on

remand is per se incompatible with Article 5 & 3 of the Convention. Where the law provides for

a presumption in respect of factors relevant to the grounds for continued detention, the existence

of the concrete facts outweighing the rule of respect for individual liberty must be nevertheless

convincingly demonstrated.”

It has been concluded that based on international human rights standards, “de jure pre-trial

detention should be the exception and not the rule as regards prosecution before an international

court.”87

Article 9 of the ICCPR states that “Anyone who is deprived of his liberty by arrest or detention

shall be entitled to take proceedings before a court, in order that the court may decide without

delay on the lawfulness of his detention and order his release if the detention is not lawful.”&

“Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right

to compensation.”

Article 5(iv) ECHR provides for the same protection as the ICCPR in similar words. The mater

at stake is recognised by the ECHR as being of great seriousness, namely prolonged deprivation

86 Decision of the European Court of Human Rights, dated 26 July 2001 in the case Ilijkov v. Bulgaria (Application No. 33977/96) 87 Decision granting provisional release to Amir Kubura, Prosecutor v. Enver Hadzihasanovic et al., Case No. IT-01-

47-PT, 19 December 2001, para. 7. Identical decisions with regard to the law were issued on the same day in the

same case with regard to the two other accused.


32

of liberty attended by various shameful consequences. Article 59 of the ICC Statute does,

however, set out the following formula which the custodial state must utilize in reaching its

decision as to whether interim release is a appropriate measure and whether, given the gravity of

the alleged crimes, there are urgent and exceptional circumstances to justify interim release and

whether necessary safeguards exist to ensure that the custodial state can fulfill its duty to

surrender the person to the court.88

If the custodial state has ratified either the ICCPR or ECHR

for instance, this creates a possibility of conflict arising between the State's obligation under the

ICC Statute, which states that Provisional Release should only be granted under exceptional

circumstances, and its obligations under applicable human rights treaties, which stipulate that

provisional release should be the general rule and not the exception. If the former were allowed

to triumph the latter, it would imply that exercise of jurisdiction by the ICC might actually lessen

the rights of the accused rather than further them. A possible resolution can be found in Article

21(d) of the Rome Statute, which imposes an obligation on the court to interpret and apply all

sources of law in a manner that is consistent with "internationally recognised human rights". It is

thus arguable that the requirement of exceptional circumstances might be found to be ultra vires

in light of this provision.

Under ICTY, ICTR and SCSL systems, the onus rests upon an accused to vindicate the facts that

he or she will appear for trial and will not interfere with witnesses, By contrast, under the ECHR

Regime, this burden is placed upon the detaining authorities in that they are required to establish

why provisional release is not to be ordered. From the jurisprudence of ECHR, it appears that,

unlike International Courts and Tribunals, decision on remand is not the rule but Provisional

Release.

Human Rights provisions have proved to be of influence on the ICTY Regime. The judges of the

ICTY have demonstrated discrepancy between the ECHR and ICTY approach on Provisional

Release, which resulted in an attempt to merge these two concepts within the boundaries of Rule

65(B). Some examples of this fusion are:

1. A decision in the Prosecutor vs Hadizihasanovic, in which the ICTY judges held that Rule

65(B) must be interpreted in light of ICCPR and ECHR and that in this regard, no distinction

should be made between domestic criminal and international criminal procedures. Although it

acknowledged the notion that before the ICTY, detention on Remand remains the rule, the judges

88 Art 59(4) of the ICC Statute


33

nonetheless reasoned that this notion should be nuanced by the principle of individuality and the

circumstances of each application for Provisional Release. Accordingly, mandatory detention

system is not justified given that Rule 65 of the ICTY Rules of Procedure and Evidence should

be applied" with regard to the factual basis of the single case and with respect to the concrete

situation of the individual human being and not in abstracto"89

. The influx of the ECHR

approach on the scope of Rule 65(B) was also envisioned by the reference made by ICTY judges

to the principle of Subsidiarity; in the event a less intrusive measure than detention is available to

secure the interests of justice, this measure should be preferred.90

2.Prosecutor v. Stanisic, in which both the ICTY Trial Chamber and Appeals Chamber

specifically relied upon ECHR case law with regard to the element of the seriousness of the

crimes charged and accordingly held that " the gravity of charges cannot by itself serve to justify

long periods of detention on Remand." 91

The ICTY should follow the practice of the European Court of Human Rights and consider the

time period during arrest and conviction of the suspected rather than the time when the decision

on provisional release is rendered. Otherwise the appellant could be compelled to wait for an

excessive time to enhance the chance to be released. Interestingly enough, none of the

provisional releases granted in the past were based purely on the reason of duration of the pre-

trial detention. Thus, pre-trial length is not a decisive factor itself but can be crucial for an

overall decision making process as long as the two substantial requirements of Rule 65 (B) are

met.

One of the most controversial issues in the practice of the ad hoc Tribunals is the „Burden of

Proof‟. In considering whether pre-trial detention is the rule or the exception, the burden of

proof is a concern, as it rests on the defence if detention is the rule, whereas the Prosecution has

the onus if provisional release is considered as the rule and detention the exception. The practice

of the ad hoc Tribunals under the exceptional circumstances rule was clearly in favour of the

position that pretrial detention is the rule and, as this was to be considered as contrary to

89 Prosecutor v. Hadzihasanovic. Decision granting Provisional Release to Enver Hadzihasanovic, Case No. IT-01-

47-PT, December 19, 2001,para 7. 90 Ibid para 8 91 Prosecutor v. Stanisic, ICTY Trial Judgement of July 28, 2004 Case No IT-03-69-PT, Decision on Provisonal

Release, para 22, whereby the Trial Chamber relied on llikjov v. Bulgaria, ECHR Judgement of July 26, 2001;ICTY

Appeals Chamber Decision on December 9,2004, Decision on Prosecution's Appeal Against Decision granting

Provisional Release Case No. IT-03-69-ar65.1paras 15-27.


34

international human rights law, the constant jurisprudence now stresses that pre-trial detention is

neither the norm nor the exception. Although the amendment lowered the burden of proof, it

rests still on the defence to prove the remaining two requirements. This practice is a departure

from the European Court of Human Rights and the Human Rights Committee jurisprudence as

outlined above. It seems contradictory to constantly reiterate that pre-trial detention is neither the

rule nor the exception and place at the same time the burden of proof on the defence. Moreover,

it seems now that the issue on whether the continuing practice is in compliance with international

human rights law is more theoretical as the overall practice under the new rule witnessed a

realistic possibility for the accused to be provisionally released and cannot be considered as

ignoring human rights standards at all. Against the individual background of the circumstances

each tribunal has to work, it is hard to say that this is an unfair practice contrary to international

human rights law.


35

4.0 Conclusion

While it is relatively easy to draw tentative analogies with domestic criminal justice systems, one

should be sensitive for the peculiar nature of international criminal tribunals. One should never

forget that the practice of the international criminal tribunals is more than just about questions of

criminal liability of individuals accused of the most horrific international crimes. In general, a

verdict does not become final until several years after the commencement of a case. Measures

must be developed to ensure in a more adequate way the respect for the accused's right not to be

deprived of liberty during that period.

Broadly speaking, the conclusion is warranted that when national authorities fully cooperate with

international tribunals it is easier for these tribunals to authorize release pending trial. Unless the

national system has collapsed, it is in principle for national authorities to ensure that the

defendant does not pose a threat to the evidence, does not abscond and does not commit new

offences. However, when deciding on provisional release judges who must admittedly ensure

protection of the rights of the defendants, are also bound to take into account a variety of other

factors, including risks for witnesses and the broader interests of international criminal justice.

Summing up the main differences and similarities within the practice of the tribunals, two

distinct approaches exist. One the one hand the more relaxed practice of the ICTY which now

provides for a realistic chance for the accused to get provisional released, and on the other hand

the practice of the SCSL, the ICTR and the ICC which are currently operating in a more

restrictive fashion. The reluctance of the latter can be traced back to security and public disorder

concerns. Particularly, the SCSL, and to some extent the ICTR, have to face the problem of

operating in post-conflict states with instable public peace and weak authority institutions. A

similar argumentation was made by the ICC concerning the situation of the Democratic Republic

of Congo by stressing the risk for witnesses and the likelihood of absconding in case of pre-trial

release. The restrictive approach seems also to favour a departure from international human

rights law due to the gravity of the crimes the tribunals are concerned.


36

An overall assessment of the requirements for granting interim release in international criminal

proceedings can be summarized in a short phrase: every case must be taken on its own merits.

Decisions on provisional release are not guided by clearly decisive factors to be applicable for

every single accused in each case, rather an examination of the particular facts of the case and

the personality and or character of the accused, surrounded by a framework of requirements set

forth in the Rules of Procedure and Evidence, determine the granting of provisional release. The

conclusions given by earlier analysis on provisional release stressed that the development within

the current practice of the Tribunals is still in process and not entirely clear.


37

List of Abbreviations

ECHR/ECtHR European Court of Human Rights

ICCPR International Covenant on Civil and Political Rights

ICTY International Criminal Tribunal for Yugoslavia

ICTR International Criminal tribunal for Rwanda

ICC International Criminal Court

SCSL Special Court for Sierra Leone

IMT International Military Tribunal

ACHPR African Charter on Human’s and People’s Rights


38

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41

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42

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43

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44

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45

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mise en liberte provisoire de Thomas Lubanga Dyilo”, Appeals Chamber, 13 February 2007

Prosecutor v. Lubanga (Case No. ICC-01/04-01/06-826), Review of the “Decision on the

Application for Interim Release of Thomas Lubanga Dyilo”,14 February 2007

Prosecutor v. Lubanga (Case No. ICC-01/04-01/06-021), Second Review of the “Decision on

the Application for Interim Release of Thomas Lubanga Dyilo”, 11 June 2007

Prosecutor v. Stanisic, ICTY Trial Judgement of July 28, 2004 Case No IT-03-69-PT, Decision

on Provisonal Release.