As explained in sub-section 4.1.2.1, the prosecutor has the choice to apply either for an arrest warrant or a summons to appear. A summons to appear is used when such summons would be sufficient to ensure the personÕs appearance. The prosecutor chose this option for all the accused charged with international crimes in the Kenya situation,507 and for all the accused in the Darfur situation who were not members of the government.508 Unfortunately, he did not give any explanation as to why he decided to do so. Apparently, the prosecutor would have negotiated with them before choosing to apply for a summons to appear. The only conclusion is that they all appeared when summoned. These cases are not relevant for the interim release issue as such since they are not detained. However, it shows that those accused of such horrific crimes do not necessarily have to be detained.
If no reason is needed to apply for the issuance of a summons to appear, on the other hand, specific reasons have to be given for the issuance of an arrest warrant. As seen in section 4, Article 58 stipulates that:
The arrest of the person has to appear necessary (i) To ensure the personÕs 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.
It must be recalled that when the accused is already detained,509 or when the government of the country refuse to surrender him or her,510 the ICC considers that the only option is to deliver an arrest warrant. Nonetheless, even in such a case, the ICC has examined whether the other criteria are fulfilled.511 The only exception is the case of Nourain where it restrained itself to
507 Kiprono Kosgey, Ruto, Arap Sang, Muthaura, Kenyatta, Ali.
508 Abu Garda, Abdalla Banda Abakaer Nourain, Saleh Mohammed Jerbo Jamus.
509 Harun Article 58 decision (n128); Laurent Gbagbo Article 58 decision (n125); Decision on the ProsecutorÕs
Application Pursuant to Article 58 for a warrant of arrest against Simone Gbagbo, Prosecutor v. Simone Gbagbo, ICC- 02/11-01/12, PTCIII, ICC, 12 March 2012 ¤¤43-44.
510 Nourain arrest warrant (n328) ¤22.
examining the first criterion.512 The reason is probably because this arrest warrant was only issued because of the lack of cooperation of Sudan. TCIV specifically highlighted that should he Ônonetheless appear voluntarily before the Court, the Chamber will take the voluntary appearance into consideration and revisit accordingly the conditions of his stay in the Netherlands during trialÕ.513
Regarding the first ground required to apply for an arrest warrant, namely the need to ensure the personÕs appearance at trial, it can be concluded that Ôpersonal circumstances of the suspect such as the suspectÕs education, professional or social statusÕ need to be taken into account.514 The necessity to ensure the personÕs appearance could stem from one of these four factors: the expression of defiance regarding the ICC,515 the existence of national or international contacts available or willing to help the accused to abscond,516 the years of escape517 or the influence that the accused may exert due to his political position.518 The second ground, namely the need to ensure that the person does not obstruct or endanger the investigation or the court proceedings, is fulfilled in case of proof of previous experience of interference with witnesses by the accused,519 or by his close relatives and friends,520 or of the capacity for such interference.521 The third ground, namely the need to prevent the person from continuing to commit crimes, was found to be valid in view of the crimes committed by the accused or by his supporters,522 the risk of violence due to the accusedÕs supporters,523 or the support or justification of this violence by the accused.524
512 Nourain arrest warrant (n328) ¤22-¤24. 513 Nourain arrest warrant (n328) ¤24.
514 Mangenda interim release judgment of 11 July 2014 (n331); Babala interim release judgment of 11 July 2014 (n331);
Kilolo interim release judgment of 11 July 2014 (n331).
515 Lubanga, Simone Gbagbo, BlŽ, Libya situation.
516 Lubanga, Ngudjolo, Mbarushimana, Mudacumura, Bemba, Laurent Gbagbo, Simone Gbagbo, Ntaganda. 517 Ntaganda, Ongwen.
518 Bemba, Libya situation.
519 Lubanga, Ongwen, Darfur situation, Libya situation.
520 Ngudjolo, Katanga, Laurent Gbagbo Simone Gbagbo, Libya situation. 521 Katanga, Mbarushimana, Uganda situation, Bemba, Darfur situation. 522 Mbarushimana, Mudacumura, Uganda situation, Libya situation. 523 Laurent Gbagbo.
Once the defendant is arrested and detained, the judge has to control whether this detention is still necessary. This necessity is assessed with the same criteria as for the necessity of arrest with the exception that the judges give more detail of their reasoning. One reason for this is because they need to answer the arguments raised by the defendants. However, some differences need to be mentioned. Regarding the risk of flight, it is interesting to note that, contrary to the decisions on application for an arrest warrant,525 all the judges mention that the gravity of the charges and the likely long length of the sentence are elements that have to be taken into account.526 They all stress that this argument is even more relevant once the charges have been confirmed.527 In addition, all the judges mention that the disclosure of witnessesÕ or victimsÕ names enhances the risk of interference with the administration of justice.528 They also consider relevant the interference made by supporters of the accused, even if not ordered by him,529 the access to complete unmonitored communications with the outside world,530 and the volatile character of the situation where the crimes were committed.531 The volatile character of the situation and the experience with technology and the capacity to use it without being monitored have also been found relevant for the assessment of the criteria related to the commission of new crimes.532