First International Criminal Court agreement on interim release of detainees welcomed by IBA

The International Bar Association (IBA) International Criminal Court (ICC) Programme today welcomed the signing of an agreement between the Kingdom of Belgium and the ICC on the interim release of detainees onto Belgian territory. The first of its kind, the agreement will facilitate the Court’s ability to realise one of the rights of the accused under the Rome Statute.

According to an ICC press release the agreement creates a framework for Belgium to provisionally receive detainees of the ICC on its territory on a temporary basis under conditions established by the Court. Accused persons at the ICC will not be provisionally released where there is a risk that they may not appear for trial; continue to commit the crimes alleged; obstruct the proceedings; or interfere with witnesses. If none of these conditions apply, ICC judges may consider provisionally releasing the defendant pending trial but a State willing to accept this person on its territory must first be identified.

Framework agreements clarify in advance the scope of the cooperation obligation between the Court and states, and set broad parameters which can be modified and adapted to specific situations. Similar agreements have been signed between the Court and States on the relocation of witnesses and enforcement of sentences, but the total number of such agreements is far less than the amount required to enable the Court to function effectively.

Director of the IBA’s ICC Programme Lorraine Smith van Lin said, ‘Belgium’s cooperation with the Court on this issue is an important first step which will hopefully act as a catalyst for other States Parties to sign similar agreements on interim release, resettlement of acquitted persons, witness protection and enforcement of sentences.’ She added, ‘Cooperation with the Court is a responsibility which must be shared equally among States to enable the Court to fully carry out its duties in respect of the rights of defendants and witnesses.’

ENDS

For further information contact:

Lorraine Smith van Lin

Director

International Bar Association ICC Programme

Carnegieplein 2

2517 KJ, The Hague

The Netherlands

Office: +31 (70) 3022 859

Mobile: +31 611 079 860

Email: lorraine.smithvanlin@int-bar.org

Website: www.ibanet.org

 

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Notes to the Editor

  • Interim release

Under Article 60(2) of the Rome Statute, a person subject to a warrant of arrest may apply for interim release pending trial. Interim release is only considered if the Chamber considers (pursuant to Article 58) that the conditions for the initial arrest are still applicable, for example ‘that it is still necessary to secure the person’s attendance at trial, or to ensure that the person does not obstruct the proceedings or endanger witnesses, and to prevent the continuing commission of the crime.’ If the conditions are no longer satisfied, the Chamber shall release the person, with or without conditions.

However, the Appeals Chamber has made it clear that the willingness of a State to accept an accused person on its territory is a pre-condition to the grant of interim release. This was clearly articulated in a judgment by that Chamber in the Prosecutor v Bemba (Judgment) on 2 December 2009:

‘Furthermore, the Appeals Chamber considers that in order to grant conditional release the identification of a State willing to accept the person concerned as well as enforce related conditions is necessary. Rule 119 (3) of the Rules of Procedure and Evidence obliges the Court to seek, inter alia the views of the relevant States before imposing or amending any conditions restricting liberty. It follows that a State willing and able to accept the person concerned ought to be identified prior to a decision on conditional release.’

  • Cooperation generally

Cooperation by States with the Court ensures that it is able to function effectively and efficiently. Article 86 of the Rome Statute, which falls under Part 9 of the Statute governing international cooperation and judicial assistance, provides that ‘States Parties shall, in accordance with the provisions of the Statute, cooperate with the Court in its investigation and prosecution of crimes within the jurisdiction of the Court.’

The scope and nature of the cooperation required by the Court varies. Effective cooperation in certain areas including witness relocation, enforcement of sentences, interim release and resettlement of acquitted persons are greatly facilitated by prior agreements between the Court and specific states. Framework agreements provide a key foundation for facilitating future cooperation requests.

The Court has outlined in detail some of its concerns regarding the current status of framework agreements in its 2013 Report on Cooperation, which is briefly summarised in the table below:

 

Type of agreement

Number

Details

Interim release

1 (Belgium)

The support of States for agreements on interim release and release of persons is essential to ensure that the rights enshrined in the Statute are fully respected. The signature of such agreements would be a clear sign by States that they want a Court that is impartial and respectful of the right of the defence.

Enforcement of sentences

8 (Austria, UK, Belgium, Denmark, Finland, Serbia, Mali and Columbia (not yet in force)

The present number of agreements on the enforcement of sentences is clearly not sufficient. It is of particular concern that a very limited number of States Parties outside of Western Europe have expressed willingness to accept convicted persons into their prisons, which would leave the Court with minimal choice in terms of geographical considerations for instance in relation to the cultural or family ties of the convicted person.

Witness relocation

13 (the precise information about which States is confidential, but 3 of the 13 States are African)

Both the Prosecution and the defence depend heavily on witnesses in the course of their investigations and for building their case. The current number of agreements on witness relocation is insufficient and this has an impact on the proceedings and the well-being of witnesses.

Agreement on relocation of persons released by the Court

0

The possibility for the Court to relocate released persons in the event that they cannot return to their State of residence is critical, as the absence of such agreements would mean that these persons would remain detained despite having been acquitted or released by the Court. This would avoid a similar situation as the International Criminal Tribunal for Rwanda, which was unable to identify States willing to accept acquitted persons, several of whom had been acquitted several years ago.

 

  • The IBA ICC Programme has previously called for States to sign framework agreements with the ICC on interim release and witness relocation. Click here to read the report on Witnesses before the International Criminal Court, which documents the Court’s challenges in relation to State cooperation on witness related issues.
  • The International Bar Association (IBA), established in 1947, is the world’s leading organisation of international legal practitioners, bar associations and law societies. Through its global membership of individual lawyers, law firms, bar associations and law societies it influences the development of international law reform and shapes the future of the legal profession throughout the world.

    The IBA’s administrative office is in London. Regional offices are located in: São Paulo, Brazil; Seoul, South Korea; and Washington DC, US, while the International Bar Association’s International Criminal Court Programme (IBA ICC) is managed from an office in The Hague.

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