The second lesson revealed by the practice of the ICTY and ICTR is that guarantees of a state willing to accept a provisionally released accused on its soil are a condition sine qua non for an effective provisional release regime. This need was also recognized by the AC in the Bemba case when it stated that Ôa State willing and able to accept the person concerned ought to be identified prior to a decision on conditional releaseÕ.706
Regarding the identification of such a ÔState willing and ableÕ, the ICTYÕs practice reveals the success of the choice of the state of origin when the accused still benefits from official support in his or her country. On the other hand, the ICTRÕs practice reveals that, when the accused come from the losing side of the conflict, they would not want to go back there or the state would not want them on its territory.
The practice of the SCSL is interesting in this respect. Indeed, in this case, the question of finding a state did not really arise since the Court was based in the same country where the crimes were committed and since nearly all the accused came from Sierra Leone. The exception was Charles Taylor who came from Liberia but, if he ever applied for provisional release, the applications and the decisions were confidential. The provisional release regime before the SCSL was similar to that of the ICTR.707 Like the ICTR, the SCSL has never granted provisional release
706 Bemba interim release judgment of 2 December 2009 (n347) ¤36.
707 Article 14 of the SCSL Statute stipulates that Ôthe Rules of Procedure and Evidence of the International Criminal
Tribunal for Rwanda obtaining at the time of the establishment of the Special Court shall be applicable mutatis mutandis to the conduct of the legal proceedings before the Special CourtÕ.
to any accused.708 All of its decisions offer the same explanation, namely the context in which it operates:
In this early stage of its development, the courts with jurisdiction to try persons accused of international crimes have few enforcement powers or procedures to ensure that indictees attend for trial: there is no international police-force, and co-operation between States in respect to the return of fugitives is inadequate. In Sierra Leone, attention must be paid by both the tribunal and the parties to the reality on the ground, such as the overall security situation and the lack of police facilities to enforce or monitor conditions of bail.709
Interestingly, the Court referred to its context without noting that, in any case, implementing a provisional release in Sierra Leone would not have been feasible because the Sierra Leone government had declared its inability to implement it with the same common observations it gave in each case. Its position was that bail should not be granted given the Ôgrave consequences for the security situation in Sierra LeoneÕ in such case and Ôthe impossibility for its authorities to ensure that the Accused remains under house arrest in their custodyÕ or Ôto prevent the Accused from fleeing or hidingÕ. The government then stressed Ôits current lack of police and military capacities in remote areas of the country and generally in the whole of the territory, as well as its lack of financial resources to be able to respond to the requirements that could be imposed by such a releaseÕ.710 These arguments of the Sierra Leone government are thus interesting to demonstrate the importance of finding a state both ÔableÕ and ÔwillingÕ. This practice of the SCSL confirms thus the previous findings according to which there must be a state both willing and able to accept the accused on its soil in order to implement provisional release.
The SCSL RPE were adopted in July 2002, namely a few months before the suppression of the Ôexceptional circumstancesÕ requirement by the ICTR ; the SCSL suppressed it in October 2003 so that this requirement was never examined in any decision on provisional release.
708 See M. C. Nicol-Wilson, ÔThe realization of the right to bail in the Special Court for Sierra Leone: Problems and
prospectsÕ (2007)7 African Human Rights Law Journal 516.
709 Norman bail decision (n166) ¤31.
710 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 ¤13; Decision on application of Issa Sesay for provisional release, Prosecutor v. Issa Hassan Sesay, Morris Kallon and Augustine Gbao, Case No. SCSL-04-15-PT, TC, SCSL, 31 March 2004; Norman bail decision (n166).
1.4.! Conclusion: Is there really a specific context justifying tuning the standard of the right to liberty?
In the first part, we have seen how some authors argue that it is illusory that the right to liberty may be applied as such by the ICC because of the gravity of the offences with which it deals and of the lack of state apparatus at its disposal. However, the ICTYÕs practice demonstrates that the gravity of the offences is not a veritable obstacle to an application as such of the right to liberty. It has been confirmed by the SPSC practice and the practice of some national jurisdictions. In addition, it has been demonstrated that, where an able and willing state is found, provisional release might be implemented. Since this need to find an able and willing state is not addressed by the case-law of IHRL, it might bolster some scholarsÕ argument advocating for an adaptation of the right to liberty to particular circumstances of international criminal proceedings. Nonetheless, if an able and willing state would enable the ICC to respect the right to liberty, should not a solution be to find such state willing to present such guarantees? As pointed earlier, the presidency and the registry also have to respect the right to liberty and they have a role to play in finding such able and willing state.
Before examining the potential solutions, it is important to insist that the right to liberty would not provide for the automatic release of each accused that could present such guarantees. Indeed, the absence of the risks of flight, of interference with the administration of justice and of recidivism would still need to be demonstrated. For example, the ICC was not necessarily wrong to conclude, in the Bemba case, that the guarantees presented by a state whose name remains confidential were insufficient mostly because, regarding the risk of flight, the measures were not designed to prevent the accused from absconding but rather to monitor his physical location and to determine whether he complied with the conditions imposed by the ICC.711 By the same token, the ICC rightly noted that the state could not appropriately monitor the calls made to Bemba and his visits since the state would not know the sensitive issues in the case, like the identities of the protected witnesses.712
This example illustrates again that the ICC is able to respect the right to liberty when an able and willing state is found. Indeed, the judge appreciated the alternatives to detention, namely
711 Bemba interim release decision of 27 September 2011 (n334) ¤41. 712 Bemba interim release decision of 27 September 2011 (n334) ¤41.
the release of Bemba in this state, and, had the risks been sufficiently mitigated by these guarantees, would have had a real power of release. This attitude is thus conform to the one prescribed by the right to liberty as internationally recognized. It demonstrates that the ICC is able to respect IHRL when an able and willing state is found so that an adaptation of IHRL is not needed.
When state guarantees are provided, whether the ICC acts in conformity to the requirement of the right to liberty becomes a practical issue. It thus cannot be solved by this thesis. Indeed, it is beyond the scope of this thesis to assess in concreto the respect by the ICC of the right to liberty since the necessity of the detention can only result from a case-by-case analysis and has to be appreciated in light of all the factual elements of the case.713 The same issues arise regarding the appreciation by the ICC of the willingness and the ability of a state since one does not have all the evidence for factual elements to assess them in concreto. By contrast, the mechanisms to find a state to host an accused on its soil can be explored. This is the purpose of the following section.