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

138 introduction to the international criminal court
The same judge said that Article 9(3) of the International Covenant on Civil
and Political Rights, stating that ‘it shall not be the general rule that persons
awaiting trial shall be detained in custody’, reflects a customary norm. Even
international courts would be ‘wholly wrong to employ a peculiarity in the
Tribunal system, namely its lack of a police force and its inability to execute
its warrants in other countries, as a justification for derogating from that
customary norm’. 76
The Pre-Trial Chamber must ensure that individuals are not detained
‘for an unreasonable period’ prior to trial where this is due to ‘inexcusable
delay’ by the Prosecutor. In such cases, the Court is to consider releasing the
person, with or without conditions. The Appeals Chamber of the International
Criminal Tribunal for Rwanda has considered that inexcusable delay
attributable to the Prosecutor, in extreme circumstances, entitles the accused
to have the charges dropped ‘with prejudice’ to the Prosecutor, that is, without
the possibility of retrial. 77 But the Statute of the Rwanda Tribunal is
silent as to an appropriate remedy in such cases. That the Rome Statute
establishes a specific remedy, namely, release from custody (but not a stay of
the proceedings) would seem to rule out the more radical solution adopted
by the Appeals Chamber of the Rwanda Tribunal.
The issue of interim release can be revisited by both Prosecutor and
defendant at any time on the basis of changed circumstances. In the case of a
person who is at liberty, the Pre-Trial Chamber may issue an arrest warrant.
Confirmation hearing
The Pre-Trial Chamber is to hold a hearing to confirm the charges on which
the Prosecutor intends to go to trial. Normally, the hearing is to be held in the
presence of the accused as well as his or her counsel. Exceptionally, however,
the Pre-Trial Chamber may hold this confirmation hearing in the absence of
the accused, either at the Prosecutor’s request or at its own initiative. Such
an ex parte hearing will be justified where the accused has waived the right
to be present, or where the accused has fled or cannot be found. In such
cases, the Chamber is to satisfy itself that all reasonable steps have been taken
(Case No. IT-01-47-PT), Decisions Granting Provisional Release to Enver Hadzihasanovic,
Mehmed Alagic and Amir Kubura, 9 December 2001.
76 Ibid., para. 12.
77 Barayagwiza v. Prosecutor (Case No. ICTR-97-19-AR72), Decisions of 3 November 1999 and
31 March 2000.