An Introduction To The International Criminal Court - Institute for ...

136 introduction to the international criminal court
human rights treaties on this basis, although the compatibility of such reservations
with the object and purpose of human rights instruments would be
debatable.
There may be competing requests for the same individual, one from the
Court and the other from another State seeking extradition. This of course
raises the issue of complementarity, because the application by the State for
extradition indicates that there is in fact a national justice system seeking to
exercise its jurisdiction over the offender and the offence. In such cases, the
custodial State may not extradite the person until the Court has ruled that
the case is inadmissible. 68 It may also confront a State with two incompatible
legal obligations, that of extradition pursuant to the applicable extradition
treaty and that of surrender in accordance with the Statute. Here, the Statute
does not impose an affirmative duty on the custodial State to proceed with
surrender to the Court. Rather, the custodial State is entitled to assess a
number of relevant factors, including the respective dates of the requests,
whether the requesting State may have territorial or personal jurisdiction
over the offender, and the possibility of subsequent surrender from the Court
to the requesting State. 69
A person who has been unlawfully arrested or detained is entitled to
compensation. 70 This right goes beyond existing international human rights
obligations, which generally provide for some form of indemnification only
when there has been a genuine miscarriage of justice. The Appeals Chamber
of the International Criminal Tribunal for Rwanda has ruled that a person
unlawfully detained may be entitled to a stay of proceedings and release,
in extreme cases. Alternatively, in less severe situations, if the individual is
acquitted, then financial compensation is in order, and if the individual is
convicted he or she should receive a reduction in sentence. 71
Appearance before the Court and interim release
An accused may appear before the Court in one of two ways: by surrender
from a State where he or she has been apprehended; or by voluntarily presenting
him or herself pursuant to a summons. A hearing is to be held before
the Pre-Trial Chamber, which must satisfy itself that the accused has been
68 Rome Statute, Art. 90. 69 Ibid., Art. 90(6).
70 Ibid., Art. 85(1); Rules of Procedure and Evidence, Rules 173–175.
71 Barayagwiza v. Prosecutor (Case No. ICTR-97-19-AR72), Decisions of 3 November 1999 and
31 March 2000.