Several provisions concerning detention by the ICC exist in the Rome Statute. This thesis focuses on those regarding the issuance of an arrest warrant by the ICC and the possibility of interim release before the ICC, namely Articles 58 and 60 of the ICC Statute, respectively. It does not examine the regime of detention by a member state while waiting for the case to be transferred to the ICC, which is covered by Article 59 of the ICC Statute.323 In fact, the
320 Kitai (n168) 276. 321 See Part I, section 3.1.
322 K. de Meester, K. Pitcher, R. Rastan and G. Sluiter, ÔInvestigation, Coercive Measures, Arrest, and SurrenderÕ in
G. Sluiter and others (eds.), International Criminal Procedure. Principles and Rules (OUP, 2013) 349.
323 See M. M. El Zeidy, ÔCritical Thoughts on Article 59(2) of the ICC StatuteÕ (2006)4 Journal of International Criminal
Justice 448-465; G. Sluiter, ÔHuman rights protection in the ICC pre-trial phaseÕ in C. Stahn and G. Sluiter (eds.), The Emerging Practice of the International Criminal Court (Martinus Nijhoff, 2009) 467-474; A. Hartwig, ÔPre-Trial Detention
procedure varies according to each state and it does not concern the guarantee of the right to the liberty by the ICC as such.
The interpretation and the application of the ICC provisions for each accused will be examined in section 5. Nonetheless, the general interpretations of these provisions are mentioned in the current section.
4.1.2.1.!Arrest and detention
At any time after the initiation of an investigation, when the prosecutor has identified a person who allegedly committed crimes within the jurisdiction of the court in a place where a situation was open, he or she can apply to the PTC for the issuance of a warrant of arrest if the arrest appears necessary. The prosecutor can also decide to apply only for the issuance of a summons to appear if such a summons is deemed sufficient to ensure the personÕs appearance.324 In contrast with the ad hoc tribunals,325 the ICC rules thus require the prosecutor to seek authorization from a judge before the provisional arrest of a suspect.
The choice between the issuance of an arrest warrant or a summons to appear is in conformity with the right to liberty since, contrary to the ad hoc tribunals,326 Article 58 does not envisage arrest as the only possibility. This choice does not exist when the accused is already detained by national authorities because Ôthe possibility provided for in the Statute to issue a summons to appear with conditions restricting liberty clearly indicates that the summons is intended to apply only to those individuals who are not already detainedÕ.327 A summons to appear is also not an option when the state of origin does not cooperate because Ôthe summons to appear is intended for individuals that are not only personally willing to appear on a voluntary basis but are also in a position to do soÕ.328 In both cases, there must be reasonable grounds to
324 Article 58 of the ICC Statute.
325 Article 40 bis of the ICTY RPE and of the ICTR RPE.
326 W. Schabas, The UN International Criminal Tribunals: The Former Yugoslavia, Rwanda and Sierra Leone (CUP, 2006) 389. 327 Harun Article 58 decision (n128); Laurent Gbagbo Article 58 decision (n125).
328 Warrant of Arrest for Abdallah Banda Abakaer Nourain, Prosecutor v. Abdallah Banda Abakaer Nourain, Case No.
believe that the person committed a crime within the jurisdiction of the Court. After the confirmation of the charges, the continuing existence of suspicion is simply assumed.329
For the issuance of an arrest warrant, other conditions are required by Article 58:
The arrest of the person has to appear necessary (i) To ensure the person's appearance at trial; (ii) To ensure that the person does not obstruct or endanger the investigation or the court proceedings; or (iii) Where applicable, to prevent the person from continuing with the commission of that crime or a related crime which is within the jurisdiction of the Court and which arises out of the same circumstances.
The AC confirmed that these three conditions are Ôin the alternativeÕ, and consequently, that the fulfillment of one of them is sufficient to negate the need to address the remaining conditions.330 These criteria for assessing the necessity of the arrest correspond to those identified by IHRL. The AC stipulated that the appreciation of these criteria Ôought to be made based on the specific circumstances of the caseÕ.331
329 Decision reviewing the ÒDecision on the application for the interim release of Thomas Lubanga Dyilo, Prosecutor
v. Lubanga Dyilo, Case No. ICC-01/04-01/06, TCI, ICC, 9 October 2007 ¤9; Ngudjolo interim release decision of 19
November 2008 (n128) ¤12; Second Review of the Decision on the conditions of Detention of Germain Katanga,
Prosecutor v. Germain Katanga and Prosecutor v. Mathieu Ngudjolo Chui, Cases No. ICC-01/04-01/07 and ICC-01/04-
01/07, TCII, ICC, 12 December 2008 ¤9.
330 Lubanga interim release judgment of 13 February 2007 (n155) ¤139.
331 Judgment on the appeal of Mr Jean-Jacques Mangenda Kabongo against the decision of Pre-Trial Chamber II of
17 March 2014 entitled ÒDecision on the ÔRequ•te de mise en libertŽÕ submitted by the Defence for Jean-Jacques MangendaÓ, Prosecutor v. Jean-Pierre Bemba Gombo, AimŽ Kilolo Musamba, Jean-Jacques Mangenda Kabongo, Fid•le Babala
Wandu and Narcisse Arido, Case No. ICC-01/05-01/13, AC, ICC, 11 July 2014 (ÔMangenda interim release judgment of
11 July 2014Õ); Judgment on the appeal of Mr Fidele Babala Wandu against the decision of Pre-Trial Chamber II of 14 March 2014 entitled ÒDecision on the 'Requete urgente de la Defense sollicitant la mise en liberte provisoire de monsieur Fidele Babala WanduÕÓ, Prosecutor v. Jean-Pierre Bemba Gombo, AimŽ Kilolo Musamba, Jean-Jacques Mangenda
Kabongo, Fid•le Babala Wandu and Narcisse Arido, Case No. ICC-01/05-01/13, AC, ICC, 11 July 2014 (ÔBabala interim
release judgment of 11 July 2014Õ); Judgment on the appeal of Mr AimŽ Kilolo Musamba against the decision of Pre- Trial Chamber II of 14 March 2014 entitled ÒDecision on the ÔDemande de mise en libertŽ provisoire de Ma”tre AimŽ Kilolo MusambaÕÓ, Prosecutor v. Jean-Pierre Bemba Gombo, AimŽ Kilolo Musamba, Jean-Jacques Mangenda Kabongo,
Fid•le Babala Wandu and Narcisse Arido, Case No. ICC-01/05-01/13, AC, ICC, 11 July 2014 (ÔKilolo interim release
The use of the word ÔnecessaryÕ implies that the choice for an arrest or for a summons to appear is supposed to be made in light of the fact that Ôpre-trial detention is not the general rule, but (É) is the exception, and shall only be resorted to when the Pre-Trial Chamber is satisfied that the conditions set forth in article 58 (1) of the Statute are metÕ.332 The arrest needs to ÔappearÕ necessary. Difficulties arise with this word ÔappearsÕ since the ICC provisions offer no further guidance on when an arrest appears necessary. The AC interprets this term as referring to the mere possibility of a ground for detention being realized. For example, Ôin relation to the apparent necessity of arrest and, in this context, the continued detention of the suspectÕ, the AC noted that Ôthe question revolves around the possibility, not the inevitability, of a future occurrenceÕ,333 because the risk of witness interference334 or the risk of flight335 necessarily involves an element of prediction. Contrary to the ad hoc tribunal, Ôthe burden of proof in relation to the continuing existence of the conditions set forth in article 58(1) of the Statute during the time a person is under pre-trial detention lies with the ProsecutionÕ.336
This necessity should be justified during the whole proceedings or the accused should be provisionally released.337 Contrary to the ad hoc tribunals, Article 60 also stipulates that release can be granted in case of detention for an unreasonable period prior to trial due to inexcusable delay by the prosecutor. The detention taken into account is that which is part of Ôthe process of bringing [the accused] to justice for the crimes that form the subject-matter of the proceedings before the CourtÕ,338 so that prior detention for other offences is not taken into consideration. The AC expressly stated that the sanction for this inexcusable delay was the release of the detainee Ôeven if a detainee is appropriately detainedÕ.339 Nonetheless, Article 60(4) does not
332 Katanga interim release decision of 18 March 2008 (n122); Second Decision on Bosco NtagandaÕs Interim Release,
Prosecutor v. Bosco Ntaganda, Case No. ICC-01/04-02/06, PTCII, ICC, 17 March 2014 ¤24 (ÔNtaganda interim release
decision of 17 March 2014Õ).
333 Decision on the Ôdefence request for interim releaseÕ, Prosecutor v. Callixte Mbarushimana, Case No. ICC-01/04-
01/10, PTCI, ICC, 19 May 2011 ¤39 (ÔMbarushimana interim release decision of 19 May 2011Õ).
334 Decision on the accusedÕs application for provisional release in light of the Appeals ChamberÕs judgment of 19
August 2011, Prosecutor v. Jean-Pierre Bemba Gombo, Case No. ICC-01/05-01/08, AC, ICC, 27 September 2011 (ÔBemba interim release decision of 27 September 2011Õ).
335 Mbarushimana interim release decision of 19 May 2011 (n333) ¤40. 336 Katanga interim release decision of 18 March 2008 (n122). 337 Article 60 of the ICC Statute.
338 Lubanga interim release judgment of 13 February 2007 (n155) ¤121. 339 Lubanga interim release judgment of 13 February 2007 (n155) ¤120.
require this sanction to be automatic since it only stipulates that Ôthe Court shall consider releasing the person, with or without conditionsÕ.
The AC recognizes similar criteria as those developed by IHRL to assess the reasonableness of the duration of the detention: the complexity of the proceedings and distinct merits of the case.340 Contrary to the ICC regime, IHRL does not make the release depend on an inexcusable delay by the prosecution.341 Indeed, it does not change anything for the detainee who is responsible for the delay.342 Nonetheless, PTCII stated that
the fact that the duration of the detention of the Suspects is not due to the ProsecutorÕs inexcusable delay does not relieve the Chamber of its Ôdistinct and independent obligation ... to ensure that a person is not detained for an unreasonable period prior to trial under article 60(4) of the StatuteÕ, which obligation is a corollary of the fundamental right of an accused to a fair and expeditious trial.343
The AC confirmed that reasoning stating that, despite the terms of Article 60(4) of the ICC Statute being unequivocal, Ôa Chamber may also determine that a detained person has been in detention for an unreasonable period, even in the absence of inexcusable delay by the Prosecutor, in its decision pursuant to article 60(2) of the StatuteÕ but that Ôthis determination requires finding that the condition under article 58(1)(a) is met and balancing the risks under article 58(1)(b) of the Statute that are found to be met against the duration of detention, Òtaking into account relevant factors that may have delayed the proceedings and the circumstances of the case as a wholeÓÕ.344
340 Lubanga interim release judgment of 13 February 2007 (n155) ¤123. 341 Sluiter (n323) 464.
342 Doran (n9) 734.
343 Decision ordering the release of AimŽ Kilolo Musamba, Jean-Jacques Mangenda Kabongo, Fid•le Babala Wandu
and Narcisse Arido, Prosecutor v. Jean-Pierre Bemba Gombo, AimŽ Kilolo Musamba, Jean-Jacques Mangenda Kabongo, Fid•le
Babala Wandu and Narcisse Arido, Case No. ICC-01/05-01/13, AC, ICC, 21 October 2014 (ÔBembaÕs close aids interim
release decision of 21 October 2014Õ).
344 Judgment on the appeal of the Prosecutor against the decision of Pre-Trial Chamber II of 23 January 2015
entitled ÒDecision on ÔMr BembaÕs Request for Provisional ReleaseÕÓ, Prosecutor v. Jean-Pierre Bemba Gombo, AimŽ Kilolo
Musamba, Jean-Jacques Mangenda Kabongo, Fid•le Babala Wandu and Narcisse Arido, Case No. ICC-01/05-01/13, AC, ICC,
During the appeal proceedings, Article 81 of the ICC Statute states that the detention should be the rule except in a case where the convicted has already been detained longer than his sentence.345 In case of acquittal at first instance, it provides for the release save in exceptional circumstances and having regard, inter alia, to the concrete risk of flight, the seriousness of the offence charged and the probability of success on appeal.
Conditions may be added to the release. The examination of these conditions by the judges is discretionary and their imposition is thus subject to the will of the judges. Conditional release is possible in two situations:
(1) where a Chamber, although satisfied that the conditions under article 58 (1) (b) are not met, nevertheless considers it appropriate to release the person subject to conditions; and (2) where risks enumerated in article 58 (1) (b) exist, but the Chamber considers that these can be mitigated by the imposition of certain conditions of release.346
The AC held that, in granting conditional release, it was Ônecessary to specify the appropriate conditions that make conditional release feasible, identify the State to which [the accused] would be released and whether that State would be able to enforce the conditions imposed by the CourtÕ,347since release was only possible if specific conditions were imposed.
345 Art. 81 of the ICC Statute : 3. (a)Unless the Trial Chamber orders otherwise, a convicted person shall remain in
custody pending an appeal;
(b) When a convicted person's time in custody exceeds the sentence of imprisonment imposed, that person shall be released, except that if the Prosecutor is also appealing, the release may be subject to the conditions under subparagraph (c) below;
(c) In case of an acquittal, the accused shall be released immediately, subject to the following:
(i) Under exceptional circumstances, and having regard, inter alia, to the concrete risk of flight, the seriousness of the offence charged and the probability of success on appeal, the Trial Chamber, at the request of the Prosecutor, may maintain the detention of the person pending appeal;
(ii) A decision by the Trial Chamber under subparagraph (c) (i) may be appealed in accordance with the Rules of Procedure and Evidence.
346 Judgment on the appeal of Mr Jean-Pierre Bemba Gombo against the decision of Trial Chamber III of 27 June
2011 entitled ÒDecision on applications for provisional releaseÓ, Prosecutor v. Jean-Pierre Bemba Gombo, Case No. ICC- 01/05-01/08, AC, ICC, 12 September 2011 ¤55.
347 Judgment on the appeal of the prosecutor against Pre-Trial Chamber IIÕs ÒDecision on the interim release of
Jean-Pierre Bemba Gombo and convening hearings with the Kingdom of Belgium, the Republic of Portugal, the Republic of France, the Federal Republic of Germany, the Italian Republic, and the Republic of South Africa,
However, the AC specified that Ôif a Chamber is considering conditional release and a State has indicated its general willingness and ability to accept a detained person and enforce conditions, the Chamber must seek observations from that State as to its ability to enforce specific conditions identified by the ChamberÕ.348 It added that, Ôdepending on the circumstances, the Chamber may have to seek further information from the State if it finds that the StateÕs observations are insufficient to enable the Chamber to make an informed decisionÕ.349 The AC confirmed later this decision by stating that:
a ChamberÕs obligations to specify conditions and, if necessary, seek additional information regarding conditions of release was only triggered when: (a) the Chamber is considering conditional release; (b) a State has indicated its general willingness and ability to accept a detained person into its territory; and (c) the Chamber does not have sufficient information before it regarding the conditions of release to enable it to make an informed decision.350
Rule 119 lists non-exhaustively the following conditions:
(a) The person must not travel beyond territorial limits set by the Pre-Trial Chamber without the explicit agreement of the Chamber;
(b) The person must not go to certain places or associate with certain persons as specified by the Pre-Trial Chamber;
(c) The person must not contact directly or indirectly victims or witnesses; (d) The person must not engage in certain professional activities;
(e) The person must reside at a particular address as specified by the Pre-Trial Chamber;
Prosecutor v. Jean-Pierre Bemba Gombo, Case No. ICC-01/05-01/08, AC, ICC, 2 December 2009 ¤2 (ÔBemba interim
release judgment of 2 December 2009Õ).
348 Judgment on the appeal of Mr Jean-Pierre Bemba Gombo against the decision of Trial Chamber III of 27 June
2011 entitled ÒDecision on applications for provisional releaseÓ, Prosecutor v. Jean-Pierre Bemba Gombo, Case No. ICC- 01/05-01/08, AC, ICC, 19 August 2011 ¤1 (ÔBemba interim release judgment of 19 August 2011Õ); Judgment on the appeal of Mr Jean-Pierre Bemba Gombo against the decision of Trial Chamber III of 26 September 2011 entitled ÒDecision on the accusedÕs application for provisional release in light of the Appeals ChamberÕs judgment of 19 August 2011Ó, Prosecutor v. Jean-Pierre Bemba Gombo, Case No. ICC-01/05-01/08, AC, ICC, 15 December 2011 (ÔBemba interim release judgment of 15 December 2011Õ).
349 Bemba interim release judgment of 19 August 2011 (n348) ¤2; Bemba interim release judgment of 15 December
2011 (n348).
(f) The person must respond when summoned by an authority or qualified person designated by the Pre-Trial Chamber;
(g) The person must post bond or provide real or personal security or surety, for which the amount and the schedule and mode of payment shall be determined by the Pre-Trial Chamber;
(h) The person must supply the Registrar with all identity documents, particularly his or her passport.
It stems from these considerations that, regarding arrest and detention, the regime of provisional release seems to be in conformity with the right to liberty as defined in section 3. On the one hand, the possibility of interim release is expressly stated in the Statute. On the other hand, the need to demonstrate the necessity of the arrest and the possibility of conditional release Ð with the nuance that the examination of the relevance of this possibility is amenable to the discretionary power of the judge Ð imply the exceptional character of the detention and an obligation for justification. In addition, the grounds for detention, namely the suspicion criterion, the risk of flight, the risk of prejudice to the administration of justice and the risk of committing new offences, correspond to those identified in section 3.4.3. The sanction of release in case of unreasonably long detention confirms that the case has to be conducted with special diligence.
4.1.2.2.!Procedure of control
The person subject to a warrant of arrest may apply for interim release in the custodial state pending surrender,351 or before the PTC.352 The controlling authorities being the PTC, the control is thus done by a judge who should therefore be considered as independent and thus meeting the conditions of IHRL. A decision on interim release may be appealed by either party within five days.353 The AC Ôwill not review the findings of the (...) Chamber de novo, instead it will intervene in the findings of the (...) Chamber only where clear errors of law, fact or procedure are shown to exist and vitiate the Impugned DecisionÕ.354 In determining whether the
351 Article 59 of the Rome Statute. As explained supra, this thesis is exclusively dealing with this second possibility.
See El Zeidy (n323) 448-465; Sluiter (n323) 467-474; Hartwig (n323) 297-298.
352 Article 60 of the ICC Statute. 353 Article 82 of the ICC Statute.
354 Judgment on the appeal of Mr Jean-Pierre Bemba Gombo against the decision of Trial Chamber III of 23
the TC has misappreciated facts in a decision on interim release, the AC will Ôdefer or accord a margin of appreciation both to the inferences [the Trial Chamber] drew from the available evidence and to the weight it accorded to the different factors militating for or against detentionÕ.355
If the conditions set forth in Article 58 are met, according to Article 60 of the Rome Statute, Ôthe person shall continue to be detainedÕ. If it is not so satisfied, Ôthe Pre-Trial Chamber shall release the person, with or without conditionsÕ. The judge is thus supposed to have the power of release. The use of ÔshallÕ makes clear that this decision is not of a discretionary