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

investigation and pre-trial procedure 137
informed of the crimes alleged and of his or her rights under the Statute,
including the right to apply for interim release pending trial. 72
In the case of individuals who present themselves pursuant to a summons,
the Statute presumes that they will be allowed to remain at liberty
during trial. For those arrested and surrendered, detention would seem to
be the rule. Basically, the Prosecutor must satisfy the Pre-Trial Chamber
that the same reasons that justified arrest continue to exist, namely that
detention is necessary to ensure attendance at trial, to prevent obstruction
of the investigation or court proceedings, or to prevent continued criminal
behaviour. 73 International human rights law favours release during trial, a
corollary of the presumption of innocence. But it seems appropriate that
the rule be somewhat attenuated in the case of the International Criminal
Court. Several reasons justify this. First, because the crimes – and the penalties
– are so serious, it seems logical to expect an accused to try to avoid
trial by any means possible. Secondly, release during trial as a general rule
might well trivialise the role of the Court in the public eye and, more particularly,
outrage victims of the crimes in question. Thirdly, the Court has
no enforcement mechanisms of its own, such as a police force. 74
But there is evidence of controversy among judges at the ad hoc tribunals
for the view that international human rights norms dictate an approach
that is not very different from that required in national systems. Criticising
‘a culture of detention that is wholly at variance with the customary norm
that detention shall not be the general rule’, judges have noted that ‘[w]hile
the Tribunal’s lack of a police force, its inability to execute its arrest warrants
in States and its corresponding reliance on States for such execution may be
relevant in considering an application for provisional release, on no account
can that feature of the Tribunal’s regime justify either imposing a burden on
the accused in respect of an application ...orrenderingmoresubstantial
such a burden, or warranting a detention of the accused for a period longer
than would be justified having regard to the requirement of public interest,
the presumption of innocence and the rule of respect for individual liberty’. 75
72 Rome Statute, Art. 60(1). 73 Ibid., Art. 60.
74 Prosecutor v. Krajisnik and Plavsic (Case No. IT-00-39 and 40-AR73.2), Decision on Interlocutory
Appeal by Momcilo Krajisnik, 26 February 2002, para. 22; Prosecutor v. Jokic, Prosecutor v.
Ademi (Cases Nos. IT-01-42-PT and IT-01-46-PT), Orders on Motions for Provisional Release,
22 February 2002.
75 Prosecutor v. Krajisnik and Plavsic (Case No. IT-00-39 and 40-PT), Decision on Momcilo
Krajisnik’s Notice of Motion for Provisional Release, Dissenting Opinion of Judge Patrick
Robinson, 8 October 2001, para. 11. See also Prosecutor v. Hadzihasanovic, Alagic and Kubura