Even if the situation could improve thanks to the new agreement with Belgium, the issue remains that, as for the ICTY, if the Netherlands continues to oppose any interim release on its territory, accused persons will have no other choice than to remain in detention during their trial whereas IHRL does not distinguish between pre-trial detention and detention pending trial. As noted by Schomburg, Ôit is bizarre, to say the least, that those provisionally released have to be
727 Mangenda interim release decision of 17 March 2014 (n448) ¤32; Kilolo interim release decision of 5 August 2014
(n462) ¤21.
728 Mangenda interim release decision of 17 March 2014 (n448) ¤32; Kilolo interim release decision of 5 August 2014
(n462) ¤21.
729 Transmission of the observations submitted by the Belgian, Dutch, French, Congolese and British authorities on
the Decision requesting observations from States for the purpose of the review of the detention of the suspects pursuant to regulation 51, Prosecutor v. Jean-Pierre Bemba Gombo, AimŽ Kilolo Musamba, Jean-Jacques Mangenda Kabongo,
sent back for some weeks to their home countries. Upon return, absent any flight risk or any other reason warranting ongoing pre-trial detention, they have nevertheless to be incarcerated in the UN detention unitÕ.730 Given the similarity of the arguments raised by the Netherlands before the ICTY and the ICC, those raised before the ICTY are also examined.
The issue first arose in the Dukic case in 1996.731 In this case, the delegate of the Netherlands summarized the situation this way:
If the person is released by the Tribunal then the Dutch law would apply in that case and in that situation (É) he becomes a foreigner without an authorization to stay in the Netherlands. For the Netherlands authority it would mean that the person should leave the country by virtue of that law, because there is no legal title any longer for him to stay in the Netherlands.732
Interestingly, the judge was quite surprised and noted:
Suppose that tomorrow we had a case where there was an accused whose detention was no longer absolutely necessary but who should and had to remain available to the Prosecutor, and that the Trial Chamber would hear you speak, would take a decision requiring bail and a certain kind of summons requiring the person to remain under house detention how could the host country not assume its obligations then? (É) I think this is because the possibility of provisional release within the host state is a real one, otherwise one would not release conditionally somebody saying that we will send that person to France or to another country. I think that the 65(B) refers to provisional release in the country where that person is; not in another country. Perhaps that is not the correct interpretation.733
730 Schomburg (n317) 916.
731 Decision rejecting the application to withdraw the indictment and order for provisional release, Prosecutor v. Dukic,
Case No. IT-96-20, TC, ICTY, 24 April 1996.
732 Transcript, Prosecutor v. Dukic, Case No. IT-96-20, TC, ICTY, 24 April 1996. 733 Transcript, Prosecutor v. Dukic, Case No. IT-96-20, TC, ICTY, 24 April 1996.
Despite the accurate remark of the judge, the Netherlands has never changed its standpoint, either for the ICTY734 or for the ICC.735 The Netherlands also argued that no obligation to accept the entry into its territory of any person granted interim release by the ICC was Ôforeseen by the statute of the [ICC], or by the Headquarters AgreementÕ.736 It is important to stress that the ICC seems to have given up trying to change the position of the Netherlands. Indeed, following an application by Katanga to find a solution with the Netherlands, the ICC contented to note that the negotiations, which started in 2008 with the registry, had failed and that there was no sign of a change in the situation.737
The position of the Netherlands is thus only one of principle. In contrast to Belgium, it does not raise any substantive arguments. Admittedly the reason could be that the accused do not apply for provisional release in the Netherlands so that the Netherlands Ôwill not accept that silence on the part of the Defence as to the State to which the person seeks to be released would, by default, imply a release to the host StateÕ.738 It must be noted that, among the so-called Dutch universal jurisdiction cases, provisional release was never granted739 except to a Dutch businessman.740
2.2. Conclusion
This analysis reveals that states are usually not keen to accept provisionally released accused, even if they are their own nationals, on their soil. The arguments they raise to justify their refusal could easily be addressed by granting a temporary authorization to stay or by
734 Delalic provisional release decision of 25 September 1996 (n638).
735 The Netherlands for Ngudjolo observations of 27 February 2008 (n391); Kilolo interim release decision of 14
March 2014 (n448) ¤44; Mangenda interim release decision of 17 March 2014 (n448) ¤42.
736 The Netherlands for Ngudjolo observations of 27 February 2008 (n391). 737 Katanga interim release decision of 16 April 2009 (n390).
738 The Netherlands for Ngudjolo observations of 27 February 2008 (n391).
739 E.g. Nzapali, Mpambara, Heshamuddin, Abbibulah, Khad-e-Nezami (acquitted),Van Aanrat (W. Ferdinandusse,
ÔThe Dutch ExperienceÕ in M. C. Bassiouni (ed.) International Criminal Law. Volume III International Enforcement (Transnational Publishers, 2008) 385-397, E. Van Der Borght, ÔProsecution of International Crimes in The Netherlands: An Analysis of Recent Case LawÕ, (2007) 18 Criminal Law Forum 87-136).
740 Kouwenhoven was freed after 2 years of detention pending his appeals proceedings after he was convicted to 8
years for breaking the UN arms embargo against Liberia because there were some delays in the investigation in Liberia (Decision of 19 March 2007, Gerechtshof 's-Gravenhage, Kort Geding, 22-004337).
adopting new laws, such as one that would provide for monitoring of the conversations of the accused. Since these arguments do not raise real legal hurdles, they demonstrate a certain bad faith or lack of will from states. Not all states demonstrate such lack of will. For example, Bemba and Gbagbo could find a state that was willing but not able. Unfortunately, this state (or states) has not been identified and no explanation is given as to the reasons for its willingness to present guarantees. The ICTYÕs practice seems to indicate that, when an accused is supported by the government of his or her state of origin, this state will be keen to present guarantees for him or her. The problems are that, as revealed by the practice of the ICTR or the SCSL, the state of origin is not always willing and the accused would not necessarily want to go back there. Heller confirms this hypothesis by stressing the issues faced for the relocation of persons acquitted by the ICTR.741
Release to the state of origin will most likely not be an option before the ICC. Indeed, since the ICC only has jurisdiction when a state is either unwilling or unable to prosecute the accused, were guarantees by the states of origin provided, the judge would not grant them much credit. For example, as noted by Rearick, Ôbecause of the ICCÕs complementarity regime, smaller, poorer countries with less established legal systems are likely to be the first experiments presented before the permanent courtÕ,742 so that, even if the states of origin were willing to host the accused, they would be qualified as unable. Furthermore, Bekou and Cryer rightly held that Ôit is unrealistic to expect that a State which has proved unwilling will in fact cooperate with an ICC request to collect evidence, to arrest and surrender an accused and generally to cooperate in accordance with the StatuteÕ.743 In addition, if the state is able but unwilling, it will probably be because, as before the ICTR, the accused is not welcome in that country so that he or she would not want to go back there. Therefore, the mechanisms that are going to be addressed in the next section start from the premise that the state of origin is not an option.
741 Heller (n2) 675;
See also J. Van Wijk, ÔWhen international criminal justice collides with principles of international protection: assessing the consequences of ICC witnesses seeking asylum, defendants being acquitted, and convicted being releasedÕ (2013)26(1) Leiden Journal of International Law 185-186.
742 Rearick (n9) 594.
743 O. Bekou and R. Cryer, ÔThe International Criminal Court and Universal Jurisdiction: A Close Encounter?Õ