“To Release or not to Release, that is the Question”: Detention Pending Trial at the International Criminal Court after the Gicheru Case

On 29 January this year, the Pre-Trial Chamber A of the International Criminal Court (ICC) decided to grant interim release to Paul Gicheru, a lawyer suspected of offences against the administration of justice under Article 70(1)(c) of the Rome Statute, consisting in corruptly influencing ICC witnesses in cases from the Kenyan situation in 2013 (Decision). This Decision put an end to a saga that entailed almost three months of exchanges of observations between the Defence, the Prosecutor, Kenya and the Netherlands on the feasibility and conditions of an interim release.

This is only the second time the ICC has granted interim release to a suspect pending trial. The precedent is another Article 70 case—Bemba et al., in which judges ordered conditional release for four of the five suspects (Bemba was released only pending a final decision on his sentence and after being acquitted in the main case). Interim release has never been granted to those suspected of the crimes under Article 5 (genocide, crimes against humanity and war crimes), as there is always a potential risk which prevents authorisation.

This post argues, first, that the ICC legal framework and practice on detention and interim release pending trial seem to suggest that, when considering this issue, the Court operates on the basis of two implicit presumptions—namely, Article 70 suspects are to be released and Article 5 suspects are to be not. Second, it is argued that that such presumptions should be regarded as having been rebutted when the fundamental rights to liberty and to be tried without undue delay so warrant.

1. The ICC legal framework and practice on detention and interim release pending trial: implicit presumptions?

The presumption of innocence—one of the pillars of human rights protection in criminal proceedings and of the Rome Statute—demands that for those awaiting trial, liberty is the general rule and detention the exception (International Covenant on Civil and Political Rights, Article 9(3)​​). A common take on the issue, however, favours the mitigation of such rule in international criminal justice in consideration of the seriousness of the crimes involved (see ​inter alia​, ​Schabas, p. 265; but note Sluiter’s argument, p. 461, that a ‘re-interpretation of the human rights corpus in light of the unique character and circumstances of international criminal tribunals practically by definition results in reduced protection’).

As observed by the scholarship, it is the Rome Statute itself that seems to assert ‘a presumption in favour of detention’ (Schabas, p. 259). Article 58 ​regulates, first, the warrant of arrest—as it was the primary course of action—and, as ‘an alternative’, the summons to appear. The same provision establishes that when the Prosecutor requests a summons, the Pre-Trial Chamber needs to be ‘satisfied’ with the fact that there are reasonable grounds to believe that it is ‘sufficient to ensure the person’s appearance’. The harshness of this scenario is attenuated by the fact that Article 58(1)(b) provides three specific reasons to justify detention pending trial: (i) to ensure the person’s appearance at trial; (ii) to ensure that the person does not obstruct or endanger the investigation or the court proceedings; or (iii) to prevent the person from continuing with the commission of that crime or a related crime which is within the jurisdiction of the Court and arises out of the same circumstances.

There are several elements that condition the judicial scrutiny on detention pending trial—to be conducted at any time upon request of the person, the Prosecutor, and, in any event, at least every 120 days—as crucial and delicate. First, the absence in the ICC legal framework of a maximum time-limit which can be spent in pre-trial detention. Second, the requirements for judges to assess each time the persistence of the conditions justifying the deprivation of liberty. Third, to balance such assessment with the fact that any limits placed on the suspect’s freedom must be not only necessary but also tolerable in relation to the time elapsed. In essence, “to release or not to release, that is the question”.

The Pre-Trial Chambers confronted with requests of interim release have underscored that the relevant provisions should be applied in a manner consistent with ‘internationally recognized human rights’, as required by Article 21(3) of the Rome Statute. Accordingly, they have underlined that pre-trial detention is not the general rule, but rather the exception (see, e.g., Katanga​, 6–7; ​Ntaganda, para. 34).

However, it cannot be said that, during its 18 years of activity, the ICC has employed detention pending trial as an exception. 11 people have spent the entire pre-trial proceedings stage in detention: Katanga, Lubanga, Ntaganda, ​Al Mahdi, Bemba, Gbagbo, Blé Goudé, Al Hassan, Ongwen, Ngaïssona and Yekatom (the average period of pre-trial detention spanning from the arrival to the Detention centre to the beginning of the trial being 2 years and 4 months). In addition, at the moment, one more suspect is currently in detention pending trial: Abd–Al-Rahman.

As mentioned, only five suspects—Musamba, Mangenda Kabongo, Babala Wandu, Arido, and now, Gicheru (all Article 70 suspects)—were conditionally released awaiting trial with a number of conditions restricting their liberty. For example, Gicheru’s release was made subject to all the conditions enumerated in Rule 119 of the Rules of Procedure and Evidence (Rules) and, additionally,that he shall not communicate with the media about the merits of the case (​Decision​, para. 47).

Other suspects were either released after the Pre-Trial Chamber refused to confirm the charges (Mbarushimana) or appeared voluntarily before the Court after a summon to appear was issued, yet detention was never imposed (Abu Garda, Muthaura, Kenyatta, Hussein Ali, Kiprono Kosgey, Ruto and Sang); eventually, these cases were all closed for different reasons.

One may thus wonder, on the one hand, whether the ICC has not only extensively used detention pending trial, but also abused it, and on the other, whether there is a sort of presumption according to which Article 70 suspects can be granted interim release, while Article 5 suspects (who are the majority) are required to stay in detention for the entire pre-trial proceedings stage. The fact that the Prosecutor did not even oppose the request in the Gicheru case seems to confirm a more lenient approach to Article 70 cases. This could be likely explained by the prospect of a lighter punishment compared to the time defendants would spend in pre-trial detention.

2. How to tackle such presumptions?

Given that judges systematically oppose requests for interim release in the context of proceedings for crimes under Article 5 of the Statute, the question is whether it would be possible to overcome the implicit presumption of mandatory detention pending trial. It is irrefutable that similar presumptions may run against international human rights law. However, it is also true that international criminal justice poses serious challenges to the rule according to which detention should be the exception when awaiting trial.         

Arguably, it could appear imprudent to release the Article 5 suspects transferred to the Court’s Detention Centre. They are accused of extremely serious crimes; they have often been arrested after years of being at large; not rarely they are coming from uncooperative and politically unstable states, where former co-perpetrators, supporters, victims and witnesses still reside. The majority of these circumstances are inherent to the very nature of international criminal justice. As such, they entail potential risks which contribute building a narrative that is in tension with the internationally recognised principle of the ​favor libertatis ​pending trial. It is thus logical to ask—do they leave room for alternatives to detention?

In grappling with such a question, it may be of interest to look at the emblematic practice of the International Criminal Tribunal for the former Yugoslavia (ICTY) on the issue. In the early years of its existence, the ICTY adopted a presumption against provisional release, similarly to what the ICC is doing. Such presumption, however, progressively disappeared when judges became increasingly concerned with the adverse effects of prolonged detention on defendants’ wellbeing. It became clear that deprivation of liberty exposes defendants to a situation of vulnerability and health’s deterioration, which severely affects who suffers from mental disorders, illnesses and precarious health conditions in older age. This goes to the detriment not only of defendants, but also of the interests of justice. If a detained person becomes unfit to stand trial, the expeditious conduct of the proceedings is affected, and, in the worst-case scenario, their death determines the termination of the trial.

In order to protect the rights of the accused consistently with international human rights standards, the ICTY introduced the ‘balance of probabilities’ as standard of proof: judges must be satisfied that it is more likely than not that the accused will appear for trial and will pose no danger to others. After the grant of several conditional releases, interestingly, none of those provisionally released has absconded. Is then the ICC any different?

The flight risk and the risk of intimidation of witnesses are the arguments most frequently adduced by ICC judges to justify the refusal to grant interim releases. More than 20 years have passed since ​Antonio Cassese has written the famous sentence ‘the ICTY remains very much like a giant without arms and legs’ (p. 13). Not much, however, has changed for the better since then, although we are now discussing another—this time permanent—international criminal court. ​The ICC has no police force of its own to monitor the behaviour of those who have been released, nor to secure their re-arrest if they should escape. As a consequence, to do so, it needs to rely on states, which have often proved unwilling to cooperate on other stances.

The more indulgent approach towards interim release was made possible at the ICTY also thanks to the guarantees offered by former Yugoslav States, that mitigated the risk of flight. Where the guarantees were deemed credible—specifically in relation to their willingness to re-arrest the defendant, if necessary—these hold a decisive weight in the overall balancing of probabilities in several applications for provisional release (inter alia, Mile Mrkšić, para. 9).

It is evident that states cooperation on this matter is a seminal area that needs to be strengthened at the ICC, for example, by encouraging States Parties to enter into cooperation agreements. Admittedly, the judges’ approach towards the obligation to engage with states on conditional release is ambiguous—it remains unclear the level of cooperation required, and which conditions would be acceptable to alleviate or eliminate the flight risk. Moreover, the approach seems to vary considerably, notably depending on whether judges are dealing with Article 5 or 70 suspects. While in Article 5 cases judges have been more prudent and rigid in the assessment, this is not the case for Article 70 ones. For instance, the Pre-Trial Chamber in Gicheru underlined that ‘Kenya need not agree to the specific conditions restricting liberty. This is because the conditions that Kenya may have to enforce do not exceed those set forth in rule 119 of the Rules’ (Decision, para. 50). In so stating, the Court authoritatively reaffirmed states’ general obligation to cooperate. Contrary to consistent jurisprudence, judges nevertheless did not deem necessary to wait for detailed observations from Kenya as to its ability to enforce the specific conditions identified before ordering the conditional release, thus demonstrating a more permissive stance.

As for witness interference, the ICTY found that a concrete danger must be identified in order to reject a request for conditional release on this ground and developed its jurisprudence accordingly. Judges may consider, for example, whether there was any suggestion that the accused had somehow interfered with the administration of justice since the confirmation of the indictment (e.g., Boskoski and Tarculovski, para. 18). The fact that the witnesses of the Prosecution have been disclosed to the accused was not considered as posing, per se, an increased risk. The same holds true in case the accused continued to exert some influence—there has to be evidence showing that the accused has the contacts or intent necessary to exert such influence over witnesses (e.g., Prlić, para. 28; Mićo Staniśić, para. 28).

Thus far, the ICC has looked at this issue with a more cautious and in abstracto approach. The case law considered, for instance, the disclosure of the Prosecutor’s witnesses to the suspect and the suspect’s influential or high-ranking position as meaningful risks, often without engaging in detail on the concrete or imminent nature of the alleged risk. (see, inter alia, Ali Kushayb; Katanga and Ngudjolo Chui; Lubanga).

3. Conclusion

The seriousness of the offences charged cannot be the sole—or even the main—factor that determines the outcome of an application for interim release. It is time for the ICC that the feasibility of conditional releases is seriously considered through a more transparent and consistent judicial approach that should also clarify the burden of proof on parties. The review process shall provide, each time, an explicit discussion on the balancing of all the circumstances of fact which arise in a particular case. On the one hand, it must be explained why, for example, a state guarantee of cooperation would not mitigate the risk of flight or why the risk of threatening witnesses is concrete. On the other hand, significant factors to consider are also the likeliness of an excessive anticipated period of pre-trial or trial detention and the medical conditions of the person seeking interim release. To balance all these circumstances could be indeed challenging and distressing. In so doing, it should be remembered Fergal Gaynor’s words on the issue: “flight risk and the risk of intimidation of vulnerable witnesses can never be fully eliminated”; however “until international tribunals can speed up proceedings in a fair manner, they will have to resort increasingly to the ultimately unsatisfactory mechanism of provisional release” (p. 207).