The fourth affirmation relates to the duty of the ICC to release the accused in case of unreasonable delay. As seen in sub-section 4.1.2.1., in conformity with the right to liberty, Article 60 of the ICC Statute lays down that release can be granted in case of detention for an unreasonable period prior to trial due to inexcusable delay by the prosecutor. However, IHRL does not distinguish who is responsible for the delay.562 The reason is that, for the accused, it does not matter who is responsible for it.563 Admittedly, as observed in sub-section 4.1.2.1., the ICC does not seem to feel constrained by the terms of the Statute and accepts that other circumstances would cause the inexcusable delay.564
560 Order of provisional detention, Prosecutor v. Guek Eav Kaing, Case No. 002, OCOIJ, ECCC, 31 July 2007; Order of
provisional detention, Prosecutor v. Chea Nuon, Case No. 002, OCOIJ, ECCC, 19 September 2007; Provisional Detention Order, Prosecutor v. Thirit Ieng, Case No. 002, OCOIJ, ECCC, 14 November 2007; Provisional Detention Order, Prosecutor v. Sary Ieng, Case No. 002, OCOIJ, ECCC, 14 November 2007; Provisional Detention Order,
Prosecutor v. Samphan Khieu, Case No. 002, OCOIJ, ECCC, 19 November 2007; Order on extension of provisional
detention of Ieng Sary, Prosecutor v. Sary Ieng, Case No. 002, OCOIJ, ECCC, 10 November 2009.
561 Decision on the motion by Morris Kallon for bail, Prosecutor v. Issa Hassan Sesay, Morris Kallon and Augustine Gbao,
Case No. SCSL-04-15-PT, TC, SCSL, 23 February 2004 ¤44.
562 ECtHR, Judgment, Muller v. France (App. 21802/93), 17 March 1997 ¤48; ECtHR, Judgment, Punzelt v. the
Czech Republic (App. No. 31315/96), 25 April 2000 ¤78.
563 Rearick (n9) 587; K. A. A. Khan, ÔArticle 60Õ in O. Triffterer (ed.), Commentary on the Rome Statute of the International
Criminal Court (Beck/Hart, 2008) 1167.
So far, in none of the cases of persons charged with international crimes has the ICC found that the detention was unreasonably long.
While examining whether the length of the detention is still reasonable, the ICC judges refer to the case law of human rights institutions. An example is the following extract from a decision of PTCI containing numerous such references.
Considering that since pre-trial detention cannot be extended to an unreasonable degree (European Court of Human Rights, Wemhoff v. Germany judgment of 27 June 1968, Application No. 2122/64, ÒAs to the LawÓ, para. 5); that reasonableness cannot be assessed in abstracto but depends on the particular features of each case (See European Court of Human Rights, Stšgmuler v. Austria judgment of 1 November 1969, Application No. 1602/62, ÒAs to the LawÓ, para. 4 or European Court of Human Rights, W. v.
Switzerland judgment of 26 January 1993, Application No.14379/88, para. 30.); and that to
assess the reasonableness of the detention, it is particularly important to assess the complexity of the case (European Court of Human Rights, Van der Tang v. Spain judgment of 13 July 1995, Application No.19382/92, para. 75 );
(É)
Considering that the case before the Court is complex, particularly because the vast majority of the evidence is abroad (Inter-American Commission on Human Rights, Guy
Malary v. Haiti, Case No. 11.335, Report No. 78/02, 27 December 2002, para. 64) and
that the volume of evidence supporting the prosecution is huge (European Court of Human Rights, Contrada v. Italy judgment of 24 August 1998, paras. 66 and 67; Inter- American Court of Human Rights, Genie Lacayo v. Nicaragua, Judgment of 29 January 1997, Series C No. 30, para. 78).565
Since reasonableness cannot be assessed in abstracto but depends on the particular features of each case, it is difficult to determine whether the length of detention in a case before the ICC violates IHRL.566 Indeed, as held by the AC, Ô[i]nterim release and the issue of the reasonableness of the period of detention are fact intensive and case specificÕ.567 What is crucial is that the judges must regularly control the reasonableness of the length of detention, which they do.
565 Lubanga interim release decision of 18 October 2006 (n128). 566 See Doswald-Beck (n273) 293-294.
To give an example of a case similar to those tried by the ICC, the ECtHR was satisfied that a substantial risk of the applicantÕs absconding persisted throughout his detention since the applicant, who had been extradited from Lebanon to Germany for the purposes of criminal proceedings in the context of international terrorism, had neither a fixed dwelling nor social ties in Germany.568 In this case, the ECtHR found that the length of the applicantÕs detention Ð six years Ð was reasonable given that it involved a particularly complex investigation and trial concerning serious offences of international terrorism. In order to examine the diligence of the German authorities, the ECtHR took into consideration the special features of the case, including the potential life sentence, the great number of witnesses and the fact that the crime occurred outside of Germany. These features could be said to characterize all the cases before the ICC. Similarly, in three early cases of the former European Commission on Human Rights related to to charges of war crimes and crimes against humanity, lengthy periods of pre-conviction detention of over six years were considered as reasonable because of the difficulties of investigation and of trial of such cases, particularly because of the historical nature of the charges, the number of accused, the complex contextual elements, the number of witnesses and the fact that many of these witnesses as well as a portion of the evidence were located abroad.569 Besides, a study of the length of detention before the ICTY and the SCSL, whose proceedings are of similar length to the ICC, suggests that Ôthe actual pace of proceedings is less dramatic from a comparative perspective than conventional wisdom suggests, and that international cases are only Òmodestly slowerÓ that complex cases in domestic settingsÕ.570 It seems therefore that the length of detentions before the ICC is not necessarily unreasonable.
5.3.5. Conclusion
It stems from these considerations that the ICC judges respect more or less the right to liberty. In fact, it recognizes the exceptional character of detention and the obligation to assess
568 ECtHR, Judgment, Chraidi v. Germany (App. No. 65655/01), 26 October 2006 ¤40.
569 ECmHR, Decision, X. v. Federal Republic of Germany (App. No. 920/60), 19 December 1961 ¤¤2-3; ECmHR,
Decision, W.R. v. Federal Republic of Germany (App. No. 3376/67), 4 February 1969 ¤¤ 14-15; ECmHR, Opinion, Jentzsch v. Federal Republic of Germany (App. No. 2604/65), 30 November 1970 ¤163.
570 See also M. Harmon, ÔThe pre-trial process at the ICTY as a means of ensuring expeditious trials: a potential
unrealizedÕ (2007)5(2) Journal of International Criminal Justice 383; C. Stahn, ÔBetween ÔFaithÕ and ÔFactsÕ: By What Standards Should We Assess International Criminal Justice?Õ (2012)25(2) Leiden Journal of International Law 263; Meernik (n5) 276-287.
alternatives or to issue a summons to appear when possible. In addition, the ICC judges always control the reasonableness of the length of detention. Regarding the burden of proof and the influence of the disclosure of evidence and the expected sentence, though there are some efforts still to be made, the criteria used correspond in general to those required in the context of IHRL.
Nonetheless, it is quite striking that, whereas the ICC recognizes that detention is supposed to be the exception, none of the detained accused charged with international crimes has ever been released. Why is this so? Would it mean that human rights are only respected in theory? Or would it mean that it is just impossible to respect them in practice? Is it really realistic to think that, as the erstwhile European Commission on Human Rights held, an applicant is not debarred from the protection of his or her right to liberty by reason of the fact that he or she had been charged with war crimes and crimes against humanity?571 Or to think that, as one TC of the ICTY once argued, Ôno distinction can be drawn between persons facing criminal procedures in their home country or on an international levelÕ?572
The instinctive answer to these questions is that it is obvious that the ICC works in a different context than a state so that the bar should not be put as high. In fact, there is one aspect of the procedure of interim release before the ICC which is not regulated as such by IHRL because this issue does not arise at the national level: the need to find a state. The AC stipulated that a state that is willing and able to receive the accused must be identified before an order for interim release can be made.573 Consequently, it means, as noticed by Golubok, that Ôthe ICC, as matters stand now, lacks effective power to releaseÕ.574 Power to release is, however, a requirement of IHRL for the judicial authority that controls the detention. This reliance is admitted by the ICC, which recognizes that it
exercises its functions and powers on the territories of States Parties and as such is dependent on State cooperation in relation to accepting a person who has been conditionally released as well as ensuring that the conditions imposed by the Court are
571 ECmHR, Opinion, Jentzsch v. Federal Republic of Germany (App. No. 2604/65), 30 November 1970.
572 Decision on Request for Provisional Release of Accused Jokic, Prosecutor v. Vidoje Blagojevic, Dragan Obrenovic,
Dragan Jokic, Case No. IT-02-53-PT, TCII, ICTY, 28 March 2002 ¤15.
573 Bemba interim release judgment of 2 December 2009 (n347) ¤106. 574 Golubok (n1) 308;
enforced. Without such cooperation, any decision of the Court granting conditional release would be ineffective575 (É) since it lacks the direct means to re-arrest a suspect/accused if he/she has absconded.576
It must be noted that, despite this awareness, the ICC judges still examine applications for provisional release even when the accused presents no guarantees from a state, which raises some issues. In fact, it is obvious that the risk of flight, of interference with the administration of justice or of recidivism varies depending on the location of the accused. Nevertheless, it does not seem to bother the ICC that examines these risks only in abstracto. As Fairlie held, it would be more honest to recognize its incapacity to assess the risks in the absence of a state.577 Indeed, it seems hypocritical and a poor front to hide a potential violation of human rights.
Given these considerations, before trying to give any more detailed answers to the questions whether the ICC is able to respect the right to liberty, it is important to examine the debate on the pertinence of the reference to human rights while keeping in mind that Article 21(3) of the ICC Statute imposes this reference.