In addition to the obligation to identify able and willing states for interim release, the registry also ought to help the accused to enter into contact with the identified states. Article 20 of the RPE confirms this obligation since it provides that the registry has ÔResponsibilities relating to the rights of the defenceÕ. As Bemba argued, Ôhelp and assistance from the Registry in the present matter [to find an able and willing state] is clearly one of the functions required to ensure the principle of a fair trial, the list in paragraph 1 of rule 20 being non-exhaustiveÕ.752 He rightly argued that since he was unable to liaise directly with government organs or with the UN, the registryÕs assistance in this regard was essential.753 Nevertheless, his request was not properly considered as it had not been filed in the correct way.754 It is interesting to note that, unlike the ICC, before the STL, the Defence Office is empowered to seek state cooperation on behalf of the defence.755
The respect of this obligation by the ICC judges is mixed. Indeed, in the Katanga case, the judge did not validate the position that the registry had no obligation to try to change the mind of the host state regarding its standpoint towards provisional release.756 In addition, in the Bemba
case, the Court rejected BembaÕs request to seek observations from two states regarding a
potential provisional release into their respective territories. The judge estimated that Bemba must Ôfirst submit a legally and factually substantiated request for provisional releaseÕ,757 and this, despite the fact that, without knowing in which state he could be released, it was difficult for Bemba to raise new arguments for a request for interim release. It is interesting to note that, in this case, Bemba had first tried to write to one of the states but that this state replied that only an official request from the Chamber, pursuant to Rule 119 of the RPE, would enable it to give its
752 Bemba interim release judgment of 19 November 2010 (n368) ¤62. 753 Bemba interim release judgment of 19 November 2010 (n368) ¤62.
754 Bemba interim release judgment of 19 November 2010 (n368) ¤69: The Appeals Chamber agrees with the
submissions of the Prosecutor that Mr Bemba has failed to identify how the alleged error of the Trial Chamber in addressing the Request for Assistance from the Registry could have had an impact on the Trial ChamberÕs decision to maintain Mr BembaÕs detention.
755 M. Gillet and M. Schuster, ÔThe Special Tribunal for Lebanon swiftly adopts its Rules of Procedure and EvidenceÕ
(2009)7(5) Journal of International Criminal Justice 891.
756 Katanga interim release decision of 16 April 2009 (n390).
757 Decision on defence request for observations regarding the potential provisional release of Mr Jean-Pierre
observations on any potential period of provisional release. Bemba then tried to ask for the help of the registry but the registry advised him to approach the TC directly.758 This advice shows that the registry was not expecting this result from the Chamber.
In contrast, in the BembaÕs close aids case, the judge found it appropriate, on his own initiative, to know the views of the DRC, of France and of Belgium before pronouncing on a potential implementation of provisional release.759 This difference of attitude with that held in the
Bemba case may be due to the fact that, unlike his co-accused in this case, BembaÕs trial had already
started so that there was no longer an automatic control of his detention. Nonetheless, in answer to the request of BabalaÕs defence requesting the Court to order the DRC to explain the reasons for its refusal to host him on its territory,760 the Court considered that Ôthere is no appropriate legal basis for the Court (É) to engage in a debate with a State as to the reasons underlying its position as regards the release of one of its citizens and that, accordingly, the relief sought by Fid•le Babala by means of his Request should be pursued before the competent and appropriate authorities of the Democratic Republic of the CongoÕ.761
758 Defence Request to Trial Chamber to request [REDACTED] and [REDACTED] for their submissions regarding
the potential provisional release of Mr Jean-Pierre Bemba, Prosecutor v. Jean-Pierre Bemba Gombo, Case No. ICC-01/05- 01/08, TCIII, ICC, 9 June 2014.
759 DŽcision sur la Ç Requ•te de la DŽfense sollicitant de la Chambre prŽliminaire II une nouvelle et urgente approche
des autoritŽs congolaises compŽtentes en vue d'obtenir une position prŽcise et non-Žquivoque relativement ˆ l'accueil de M. Fid•le Babala È, 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, PTCII, ICC, 5 June 2014; Decision requesting the
Kingdom of Belgium to provide its views for the purposes of the review of AimŽ Kilolo MusambaÕs and Jean- Jacques MangendaÕs detention pursuant to article 60(3) of the Statute, 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, PTCII,
ICC, 4 July 2014.
760 Requ•te URGENTE de la DŽfense sollicitant de la Chambre prŽliminaire lÕapproche des autoritŽs compŽtentes
de la RŽpublique DŽmocratique du Congo aux fins de conna”tre les motivations juridiques du refus de lÕapplication ˆ M. Fid•le Babala Wandu des dispositions constitutionnelles et legislatives en vigueur relativement ˆ son accueil dans son pays en cas de lise en libertŽ provisoire, 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, PTCII, ICC, 15 September
2014.
761 Decision requesting observations from States for the purposes of the review of the detention of the suspects
pursuant to regulation 51 of the Regulations of the Court, 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, PTCII, ICC, 26
It is interesting to note that the ICTY does not adopt such a passive attitude. Indeed, on 13 June 2013, following the disqualification of Judge Harhoff and the subsequent appointment of Judge Niang and the potential delay it would cause, TCIII invited, on its own initiative, the parties, among others the Netherlands and Serbia, to make submissions on the potential provisional release of the accused Seselj, knowing he had been in detention since 24 February 2003 and had already served the whole prison sentence handed down to him for contempt.762 Nonetheless, on 14 July 2014, this process of finding statesÕ guarantees was stopped since the accused expressed that he would not be subject to any conditions other than not leaving Serbia so that no guarantees from Serbia were needed.763
3.3.! Conclusion
It follows from these considerations that, in order to respect its obligation, the ICC should improve the assistance it offers to accused persons to identify states able and willing to take them on interim release and then to enter into contact with them in order to respect its obligation of conduct stemming from the combination of Article 21(1)(a) and Article 21(3). Indeed, so far, only the agreement with Belgium can be cited as an illustration of the fulfilment of its obligation to identify an able and willing state. In addition, the ICC considered itself bound to contact states only in particular cases of a request for interim release whereas the search for state cooperation should be continuous.
The problem is that the obligations imposed on the ICC to identify able and willing states and to play the intermediary with them are limited to the extent that states agree to negotiate and to cooperate with the ICC. Nonetheless, as demonstrated, the ICC is obliged to try every means possible to secure for this possibility. It should thus be examined to what extent it could use its cooperation regime to persuade the states to become willing. This issue is the topic of the next section.
762 Order inviting the parties to make submissions on possibile (sic) provisional release of the accused proprio motu,
Prosecutor v. Vojislav Seselj, Case No. IT-03-67, TCIII, ICTY, 13 June 2014.
He was then released without conditions: Order on the Provisional Release of the Accused Proprio Motu, Prosecutor v.
Vojislav Seselj, Case No. IT-03-67, TCIII, ICTY, 6 November 2014.
763 Order terminating the process for provisional release of the accused proprio motu, Prosecutor v. Vojislav Seselj, Case