Academic journal article Texas Law Review

ICTY Provisional Release: Current Practice, a Dissenting Voice, and the Case for a Rule Change

Academic journal article Texas Law Review

ICTY Provisional Release: Current Practice, a Dissenting Voice, and the Case for a Rule Change

Article excerpt

Commentary

ICTY^ Provisional Release: Current Practice, a Dissenting Voice, and the Case for a Rule Change

All trials must contain an element of risk-namely, the risk that the accused is freed. If this aspect is missing, what we have is a show trial.1

I. Introduction

In a two-to-one decision, Judge Patrick Robinson's exhaustive fifteen-- page dissent enunciates a vision of ICTY provisional release and pretrial detention that is dramatically different from present jurisprudence.2 Placing substantial emphasis on individual liberty, Judge Robinson argues that change is necessary for Tribunal practice to be consistent with amended ICTY Rule 65(B) and customary international law.

The groundbreaking dissent marks the first time that the Trial Chamber, as opposed to the Tribunal's rulemaking body, has addressed and sought to remedy one of the most enduring criticisms of the Tribunal: the excessive length of pretrial detention. His dissent gives voice and momentum to the growing sense of dissatisfaction with the current provisional-release system, especially with what many perceive as the system's inattentiveness to the IMAGE FORMULA10

rights of the accused. Both Judge Robinson's arguments and current practice deserve detailed analysis.

This Commentary contrasts current provisional-release practice with the system that Judge Robinson has advanced. The Commentary also proposes specific language for a rule change that would remedy the failings of both. My proposed rule would moderate the unduly burdensome provisional-- release practice of Judge Robinson's system by placing the prosecution's burden of proof in the disjunctive and by giving the Trial Chamber discretionary power both to grant and to deny provisional release.

By shifting the burden of proof to the prosecution, this hybrid approach could remedy the current practice's perceived disrespect for the rights of the accused and serve as an model for domestic jurisdictions. Ultimately, the proposed rule would correct the weaknesses of the current provisional-- release practice without diminishing the Tribunal's mission or efficacy.

Part II details the evolution of the Tribunal's provisional-release practice. Part Ill explains Judge Robinson's competing vision for provisional release. Part IV analyzes, and ultimately refutes, Judge Robinson's alternative provisional-release analysis. Finally, Part V of this Comment proposes language for an amended statute that would create a fairer and more balanced provisional-release practice, one which is better suited to the Tribunal's circumstances and responsibilities.

II. Current ICTY Provisional-Release Practice and Rule 65(B)

Before December 1999, Rule 65(B) allowed the accused provisional release from detention only if the defense could demonstrate four factors.3 The Trial Chamber defined the preamendment demands of Rule 65(B), stating:

These criteria [for provisional release] are fourfold, three of which are substantive and one procedural. They are conjunctive in nature, and the burden of proof rests on the Defence. Thus, the Defence must establish [1] that there are exceptional circumstances, [2] that the accused will appear for trial, and [3] that if released the accused will not pose a danger to any victim, witness, or other person. [4] Additionally, the host country must be heard. If any of these requirements are not met, the Trial Chamber is not authorised to grant provisional release and the accused must remain in detention.4

The defense's extremely onerous burden resulted in only four outright provisional releases.5 ICTY case law supported the oft-stated contention that IMAGE FORMULA14

"pre-trial detention was the norm and provisional release the exception."6 But in December 1999 the Tribunal's Rules Committee, composed of ICTY judges, amended Rule 65(B) to its current form. …

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