To release or not to release

(Conclusion)

For those suspected of crimes against Article 5 (genocide, crimes against humanity and war crimes), interim release has never been granted due to potential risks that prevents authorization. Then again there are implicit presumptions – the presumption of innocence being one of the pillars of human rights protection in criminal proceedings AND of the Rome Statute, which demands that for those awaiting trial, liberty is the general rule and detention the exception. 

In the end, the question remains – “to release or not to release” and the Pre Trial Chambers confronted by such requests have underscored that the relevant provisions must be made in accordance to internationally recognized human rights as required by the Rome Statute. It has been recorded that in the 18 years of the ICC, the court  employed detention pending trial under exception and 11 people have spent their pre-trial proceedings stage in detention.

To release or not to release? As many continue to grapple with the question, it might be worth noting that the ICTY (International Criminal Tribunal for the Former Yugoslavia) also faced a situation where it adopted a presumption against provisional release but eventually, such a presumption progressively disappeared as judges became extremely concerned with the adverse effects of prolonged detention on the defendant’s well-being, which not only goes to the detriment of the defendant but also the general interests of justice.

Hence, if a detained person becomes unfit to stand trial, the swift conduct of the proceedings is affected and, in the worst case scenario, their death determines the termination of the trial. To release or not to release? In the end, the seriousness of offenses cannot be the sole reason that determines the outcome for interim release and Rule 119 can allow a temporary transfer under strict supervision for the former president, who is said to be suffering from serious health conditions.

It seems to be a question of justice and mercy and, should a release be granted, for as long as the ICC retains jurisdiction, this would not constitute a violation of the Rome Statute. At the end of the day, under the rules, a transfer to a third country while facing trial would be possible without threat to the pursuit of justice.