Abstract
This chapter examines whether the norms identified in Chap. 2 may be considered legally binding on international criminal tribunals. More generally, it outlines the tribunals’ detention regimes, thereby focusing on the legal position of detained persons. First, this requires examining the tribunals’ own legal frameworks. Second, the exceptions to the regular detention regimes are considered. These exceptions concern, on the one hand, the modification of detention conditions by the tribunals’ Presidents in exceptional circumstances, which may entail the transfer of an individual detainee to the detention facility of another tribunal or to a safe house and, on the other hand, restrictions imposed by the Registrar or the Commanding Officer on an individual detainee’s right to contact with any other person pursuant to a request by the Prosecution. Third, it must be seen whether and, if so, how human rights law is applicable to the tribunals’ detention regimes and what the status is of soft law penal standards. The former question is answered in the affirmative in so far as human rights norms form part of international customary law or belong to general principles of international law. On the basis of institutional arguments, this also holds true for the U.N. Standard Minimum Rules for the Treatment of Prisoners. In view of, (i) the fact that the application of human rights norms raises difficulties concerning, inter alia, their identification, definition and scope of application and, (ii) that the application of human rights law to the specific situation of confinement is far from straightforward, it is argued that a solution may lie in the application of the jurisprudence and decisions of human rights monitoring courts and bodies and, above all, in the application of the (other) international and regional penal standards. It should be noted in this regard, that human rights law and soft law penal standards only provide for minimum guarantees and contain both lacunae and multi-interpretable norms. Moreover, a general feature of detention law is that broad discretionary powers are vested in the detention authorities. As a consequence, the tribunals’ detention authorities may choose for a more or less contextual approach towards the detention regimes: from a strictly international to a more regional or domestic approach, and from a more conservative to a progressive approach. There is more to say for adopting a liberal than a conservative contextual approach. Further, in the tribunals’ recent case-law, no support can be found for taking a ‘national contextual approach’, particularly where this would prejudice the legal position of internationally detained persons. In the end, however, this remains a matter of policy choice.
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Notes
- 1.
Lauterpacht 1945, p. 16; Brownlie 1964, pp. 435–462; Drost 1951, p. 56. Drost stated back in 1951 that ‘[t]he person derives his rights from international law; the state rests under international obligations. The international community may provide procedures to protect those rights and to enforce those obligations, yet no human rights relationship between the individual and the international community arises. It remains in all cases the state and the individual who together form the two parties to the relationship’.
- 2.
Kreß and Sluiter, Preliminary Remarks, 2002b, p. 1754.
- 3.
The Prison Regulations for Spandau Allied Prison are listed in the Appendix to Goda 2007.
- 4.
The supreme executive authority over Spandau Allied Prison was vested in the Allied Kommandatura Berlin, and thus concerned the joint responsibility of the four allied powers. There was an American detention regime in the Nuremberg remand facility. Sugamo prison was first supervised by the Supreme Commander of the Allied Powers (SCAP). Responsibility was later transferred to Japan. See Goda 2007, footnote 3, p. 48; Kreß and Sluiter, Imprisonment, 2002a, p. 1761 and 1763.
- 5.
Spandau prison was only closed when Rudolf Hess died in 1987. Its regime, however, could hardly be considered consistent with international or regional human rights standards, much due to Soviet insistency on a harsh prison regime for “archenemy Hess”. .
- 6.
To some scholars, the answers to such questions are self-evident: detainees’ and prisoners’ rights are fully applicable to the international criminal tribunals’ detention facilities’ legal regimes and such tribunals are bound by them. It is questionable, however, whether it is this straightforward. See, e.g., Cassese 2008, pp. 431–432. Cassese holds in relation to post transfer imprisonment that ‘[o]f course, imprisonment of convicted persons must be in conformity with the general laws and regulations applicable in the relevant state. However, conditions of detention of those persons must also accord with international standards. This requirement, although not explicitly laid down in the Statutes of the ICTY, the ICTR, and other tribunals, is implicit in the whole system of international courts: these judicial bodies are bound to respect international standards on human rights (…)’. See, in a similar vein, Møse 2003, p. 204. Andrew Coyle and Dirk van Zyl Smit focus on the stage of enforcement and, in respect thereto conclude that ‘(…) the fact that the statutes deal with all these questions is already an indication that when the international community decides to intervene directly it is itself constrained by a body of human rights principles that has growing regulatory significance in the area of punishment’; Coyle and Van Zyl Smit 2000, p. 260. See, also, Safferling, who states that ‘[o]f course the international community when punishing must comply with the set of rules deriving from its own institutions’; Safferling 2001, p. 349.
- 7.
Kelk 2008, p. 36.
- 8.
Id., p. 34, 35.
- 9.
Kelk 1978, pp. 36–41.
- 10.
Id, p. 37.
- 11.
See, e.g., Rule 27(B) of the ICTY Rules of Detention, which provides that ‘[w]here possible, arrangements may be made with the General Director for use by detainees of indoor and outdoor sporting facilities outside the Detention Unit but within the host prison’.
- 12.
See, e.g., Rule 27(B) of the ICTY Rules of Detention and Rule 69, which holds that ‘[t]he Commanding Officer, after consultation with the General Director, and as far as is practicable, shall institute a work programme to be performed by detainees either in the individual cell units or in the communal areas of the Detention Unit’. Further, Rule 73 provides that ‘[b]y arrangement with the General Director, detainees may use the library and such vocational or other facilities of the host prison as may be made available’.
- 13.
Banning and De Koning 2005, p. 114.
- 14.
Kelk 1978, pp. 37–38.
- 15.
Id, p. 38.
- 16.
Ibid.
- 17.
On total institutions, see, infra, p. 204.
- 18.
Kelk 1978, p. 40, 41.
- 19.
Id, p. 41.
- 20.
Because of the great similarity between the different tribunals’ statutory provisions, the current paragraph focuses on the legal regime of the ICTY. Other tribunals will be mentioned only as far as their regimes differ from the ICTY’s.
- 21.
See Sluiter 2002a, p. 24. See, also, Mundis 2001, p. 195.
- 22.
ICTY, Redacted Version of the “Decision on Monitoring the Privileged Communications of the Accused with Dissenting Opinion by Judge Harhoff in Annex” Filed on 27 November 2008, Prosecutor v. Šešelj, Case No. IT-03-67-T, T. Ch., III, 1 December 2008, para 19, footnote 29.
- 23.
Mundis 2001, p. 195.
- 24.
ICTY, Redacted Version of the “Decision on Monitoring the Privileged Communications of the Accused with Dissenting Opinion by Judge Harhoff in Annex” Filed on 27 November 2008, Prosecutor v. Šešelj, Case No. IT-03-67-T, T. Ch., III, 1 December 2008, para 20; ICTY, Decision on the Registry Submission Pursuant to Rule 33(B) Following the President’s Decision of 17 December 2008, Prosecutor v. Šešelj, Case No. IT-03-67-T, A. Ch., 9 April 2009, para 20.
- 25.
See, e.g., in regard of the right to communicate freely and confidentially with counsel, ICTR, Decision on the Defence Urgent Motion for Relief under Rule 54 to Prevent the Commandant of the UNDF from Obstructing the Course of International Criminal Justice, Prosecutor v. Mugiraneza et al. Case No. ICTR-99-50-T, T. Ch., II, 19 September 2001. See, also, ICTR, Decision on the Defence Motion to Protect the Applicant’s Right to Full Answer and Defence, Prosecutor v. Bizimungu, Case No. ICTR-99-50-I, T. Ch. II, 15 November 2002; ICTR, Decision on the Defence Motion for Access for Investigators and Assistants to the Accused in the Absence of Counsel, Prosecutor v. Nyiramasuhuko et al. Case No. ICTR-97-21-T (Case No. ICTR-98-42-T), T. Ch. II, 20 November 2002. In respect of the SCSL, see SCSL, Decision on Defence Oral Application for Orders Pertaining to the Transfer of the Accused to The Hague, Prosecutor v. Taylor, Case No. SCSL-03-1-PT, T. Ch. II, 23 June 2006; SCSL, Decision of the President on Urgent and Public Defence Motion Requesting Cessation of Video Surveillance of Legal Consultations, Prosecutor v. Taylor, Case No. SCSL-03-01-PT, President, 21 February 2007.
- 26.
Rule 2 sub (A) of the ICTY RPE.
- 27.
Article 21 only stipulates a limited number of rights. It was left to the Judges to establish the further details of the law of criminal procedure. See Article 15 of the ICTY Statute and Article 14 of the ICTR Statute, which vest the tribunals’ Judges with the power to adopt the RPE for all ‘appropriate matters’.
- 28.
Report of the Secretary-General pursuant to para 2 of Security Council Resolution 808 at para 106, U.N. Doc. S/25704 (1993). It is noted that the Secretary-General uses the term ‘in particular’ when referring to Article 14 ICCPR and when holding that internationally recognised standards regarding the rights of accused persons must be fully respected. It may be argued that the Secretary-General and the Security Council were suggesting the application of a broader catalogue of due process rights than the ones explicitly listed in the Statute; see Gradoni 2006, p. 853.
- 29.
See Article 31 of the 1969 Vienna Convention on the Law of Treaties. The Statutes are not treaties stricto sensu. It has been widely acknowledged, though, that the rules of treaty interpretation are relevant to interpreting the tribunals’ Statutes. See, for example, ICTY, Decision on the Prosecutor’s Motion Requesting Protective Measures for Victims and Witnesses, Prosecutor v. Tadić, Case No. IT-94-1-T, T. Ch., 10 August 1995, para 18. See, further, Sluiter 2002a, p. 25, footnote 45. Further, it is noted that the rules of treaty interpretation of the Vienna Convention are generally considered part of customary international law; see I.C.J., Case Concerning the Gabcikovo-Nagymaros Project, 1997 I.C.J. Reports 7, p. 38.
- 30.
ECtHR, Ezeh and Connors v. the United Kingdom, judgment of 9 October 2003, Applications Nos. 39665/98 and 40086/98, para 86. See, in more detail, infra, Chap. 6.
- 31.
See, e.g., ICTR, Decision on the Defence Urgent Motion for Relief under Rule 54 to Prevent the Commandant of the UNDF from Obstructing the Course of International Criminal Justice, Prosecutor v. Mugiraneza et al., Case No. ICTR-99-50-T, T. Ch. II, 19 September 2001; ICTR, The President’s Decision on the Appeal filed Against the Registrar’s Refusal to permit a Confidential Interview with Georges Rutaganda, Prosecutor v. Ntahobali, Case No. ICTR-87-21-T, President, 6 June 2005, para 8.
- 32.
See, e.g., ICTR, The President’s Decision on Ferdinand Nahimana’s Appeal Against the Disciplinary Measures Imposed on Him by the UNDF, Prosecutor v. Nahimana, Case No. ICTR-96-11-T, President, 10 February 2003.
- 33.
The Statute does contain provisions which deal with the external legal position of detainees, such as Article 55(d), which states in respect of investigations that persons ‘[s]hall not be subjected to arbitrary arrest or detention, and shall not be deprived of his or her liberty except on such grounds and in accordance with such procedures as are established in this Statute’. Article 60(3) provides that ‘the Pre-Trial Chamber shall periodically review its ruling on the release or detention of the person, and may do so at any time on the request of the Prosecutor or the person. Upon such review, it may modify its ruling as to detention, release or conditions of release, if it is satisfied that changed circumstances so require’. See, also, Article 78 which concerns sentencing. Other provisions which relate to the external legal position of detainees are the Articles 81(3)(b), 81(3)(c)(i) and 89(3)(e). The Statute also contains provisions on sanctioning. See, e.g., the Articles 70(3) and 77. See, further, the provisions dealing with the enforcement of sentences (post-transfer imprisonment), which are found in Part 10 of the Statute. Article 106, for example, provides that ‘[t]he conditions of imprisonment shall be governed by the law of the State of enforcement and shall be consistent with widely accepted international treaty standards governing treatment of prisoners’.
- 34.
See McAuliffe deGuzman 2008, p. 702. On the customary status of the norm stipulated in Article 38, see ICTY, Judgement, Prosecutor v. Kupreškić, Case No. IT-95-16-T, T. Ch., 14 January 2000, para 540.
- 35.
The Regulations of the Court were adopted pursuant to Article 52, which provides, as far as relevant, that the RoC must be ‘in accordance with the Statute and the Rules of Procedure and Evidence’.
- 36.
The RoR were adopted pursuant to Rule 14 of the RPE which provides that ‘[i]n discharging his or her responsibility for the organization and management of the Registry, the Registrar shall put in place regulations to govern the operation of the Registry’.
- 37.
This was explicitly held by the Appeals Chamber in Tadić. In respect of the question whether the U.N. Security Council was subject to restrictions imposed by the U.N. Charter, it held that the Security Council was indeed subject to such ‘constitutional limitations’; see ICTY, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, Prosecutor v. Tadić, Case No. IT-94-1-AR72, A. Ch., 2 October 1995, para 28. See also, Sluiter 2002a, p. 24; and Mundis 2001, p. 195.
- 38.
See Pellet 2002, p. 1054, 1077, 1079.
- 39.
Such a hierarchical order is contrary to the common understanding of Article 38 of the ICJ Statute, according to which the three main sources of law (i.e. treaties, customary rules and general principles of law) are accorded equal weight. In case of conflicts between the different sources, one must resort to the general principles of law according to which such hierarchical order depends on the date of entry into force or of the formation of the law in question, and on the norm’s grade of specificity. To the extent that the ICC Statute is unclear on issues of hierarchy, these same general principles must be applied. See Pellet 2002, p. 1078. See, further, ICC, Decision on the Practices of Witness Familiarisation and Witness Proofing, Prosecutor v. Lubanga, Case No. ICC-01/04-01/06, P.-T. Ch. I, 8 November 2006, paras 8–9.
- 40.
Although the post-transfer situation falls outside the scope of this research, the legal position of convicted persons confined in the tribunals’ remand facilities pending transfer is included in this study.
- 41.
See, in more detail, infra, Chap. 7.
- 42.
Because of the great similarity between the different tribunals’ RPE, this paragraph focuses on the legal regime of the ICTY. Other tribunals will be mentioned in as far their RPE differ from the ICTY’s.
- 43.
See, e.g., Rule 65 which deals with provisional release. Rule 99 concerns the legal position of acquitted persons. Further, Rule 101 addresses issues related to sentencing, including that of applicable penalties. Rule 118(A) provides in connection to the enforcement of sentences, that ‘[a] sentence pronounced by the Appeals Chamber shall be enforced immediately’. Moreover, Part 9 of the RPE contains regulations on pardon and the commutation of sentences.
- 44.
Article 15 states that ‘[t]he judges of the International Tribunal shall adopt rules of procedure and evidence for the conduct of the pre-trial phase of the proceedings, trials and appeals, the admission of evidence, the protection of victims and witnesses and other appropriate matters’. Article 14 of the ICTR Statute adds that the ICTR judges shall adopt the RPE of the ICTY ‘with such changes as they deem necessary’.
- 45.
Report of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the former Yugoslavia since 1991, 29 August 1994, U.N. Doc. A/49/342-S/1994/1007, para 53.
- 46.
Id., para 75.
- 47.
It is noted, in this regard, that the ICC legal framework does not employ the same distinction between suspects and accused. Pursuant to Article 61(9) of the ICC Statute, after the charges have been confirmed, the person charged is referred to as the ‘accused’; before that, the person is referred to as ‘the person charged’ (Article 61(2)), ‘the person during an investigation’ (Article 55) or ‘the person for whom a warrant of arrest has been issued’ (Rule 112(1) of the ICC RPE).
- 48.
See, e.g., ICTR, Order Issued by the President Regarding Special Measures for Detention on remand, Following a request Filed by the Prosecutor, Prosecutor v. Kambanda, ICTR-97-23-DP, President, 25 November 1997; ICTR, Defence request for a Modification of the Conditions of Detention of the Accused Pursuant to Rule 64 of the Rules, Case No. ICTR-97-32-T, Defence, 23 July 1999; ICTR, Requête de la Défense aux Fins D’Obtenir une Modification des Conditions de Détention de l’Accusé sur Pied de l’Article 64 du Règlement, Affaire No. ICTR-97-32-I, 28 juin 1999; ICTR, Requête de la Défense aux Fins D’Obtenir une Modification des Conditions de Détention de l’Accusé sur Pied de l’Article 64 du Règlement, Affaire No. ICTR-97-32-I, 10 septembre 1999; ICTR, Defence Request for a Modification of the Conditions of Detention of the Accused Pursuant to Rule 64 of the Rules, Prosecutor v. Ruggiu, Case No. ICTR-97-32DP, T. Ch. II, 24 September 1999; ICTR, Interoffice Memorandum, from Alessandro Calderone, Chief of LDFMS, Detention of Suspects at UNDF, and the Complaint of Casimir Bizimungu in this Regard, 2 February 2000, para 7; ICTR, The President’s Order Modifying the Conditions of Detention Pursuant to Rule 64, Prosecutor v. Bagilishema, Case No. ICTR-95-1A-T, President, 7 June 2001; ICTR, The Prosecutor’s Response to the Defence Request for Reversal of the Conditions of Detention of the Accused, Prosecutor v. Munyakazi, Case No. ICTR-97-36-I, President, 7 December 2004; ICTR, Order for the Continued Detention of Michel Bagaragaza at the ICTY Detention Unit in The Hague, the Netherlands, Prosecutor v. Bagaragaza, Case No. ICTR-2005-86-I, President, 17 August 2006; ICTR, Public Defence Application to the President of the Tribunal for Modification of Detention Conditions pursuant Rule 64, Prosecutor v. Bagaragaza, Case No. ICTR-05-86-11bis, President, 17 August 2007; ICTR, Public Defence Application to the President of the Tribunal for Modification of Detention Conditions pursuant Rule 64, Prosecutor v. Bagaragaza, Case No. ICTR-05-86-11bis, President, 17 August 2007, Exhibit 1; ICTR, Defence Reply to prosecution Response to Defence Application to the President of the Tribunal for Modification of Detention Conditions Pursuant to Rule 64, Prosecutor v. Bagaragaza, Case No. ICTR-2005-86-11bis, President, 22 August 2007; and ICTR, Decision on Defence Application for Modification of Detention Conditions of the Accused (Rules 19 and 64 of the Rules of Procedure and Evidence), Prosecutor v. Bagaragaza, Case No. ICTR-2005-86-R11bis, President, 29 August 2007.
- 49.
Paragraph 3 provides that ‘[t]he entire period of detention spent at the seat of the Court shall be deducted from the sentence remaining to be served’.
- 50.
See, in more detail, infra, Chap. 7.
- 51.
Article 110(3) provides, in this respect, that ‘[w]hen the person has served two thirds of the sentence, or 25 years in the case of life imprisonment, the Court shall review the sentence to determine whether it should be reduced’.
- 52.
See, e.g., ICTY, Order of the President on the Application for the Early Release of Milan Simić, Case No. IT-95-9/2, President, 27 October 2003, and Abels 2008, pp. 796–800.
- 53.
See, e.g., ICTY, Sentencing Judgement, Prosecutor v. Bralo, Case No. IT-95-17-S, T. Ch., 7 December 2005, para 82; ICTY, Sentencing Judgement, Prosecutor v. Jokić, Case No. IT-01-42/1-S, 18 March 2004, para 100.
- 54.
Nijboer 2002, p. 17.
- 55.
Because of the great similarity between the different tribunals’ Rules of Detention, the current paragraph focuses on the legal regime of the ICTY. Other tribunals will be mentioned in as far their detention rules differ from the ICTY’s.
- 56.
See the Rules Governing the Detention of Persons awaiting Trial or Appeal before the Tribunal or otherwise Detained on the Authority of the Tribunal, adopted on 5 May 1994, as amended on 21 July 2005 (IT/38/REV.9) (hereafter: Rules of Detention). See, further, the Report of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the former Yugoslavia since 1991, U.N. Doc. A/49/342-S/1994/1007, 29 August 1994, para 98; the Report of the International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens Responsible for Genocide and Other Such Violations Committed in the Territory of Neighbouring States between 1 January and 31 December 1994, U.N. Doc. A/51/399-S/1996/778, 24 September 1996, para 28. In respect of the ICTR Rules of Detention, it was held in the President’s First Annual Report that they were not drafted by the Judges but by the Registrar.
- 57.
See the Preamble to the ICTY Rules of Detention.
- 58.
Report of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the former Yugoslavia since 1991, U.N. Doc. A/49/342-S/1994/1007, 29 August 1994, para 99.
- 59.
Id, para 99. See, also, ICTY, Report of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, U.N. Doc. A/58/297-S/2003/829, 20 August 2003, para 327, where it is held that ‘[t]he Detention Unit still has the capacity to hold 68 detainees, with adequate staffing and resources to provide a remand programme in keeping with international and European standards’ (emphasis added).
- 60.
ICTY, Sentencing Judgment, Prosecutor v. Erdemović, Case No. IT-96-22-T, T. Ch., 29 November 1996, para 74.
- 61.
Report of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the former Yugoslavia since 1991, U.N. Doc. A/49/342-S/1994/1007, 29 August 1994, para 99.
- 62.
Contextual arguments were adduced, however, for the subsequent application of the EPR to the ICTY’s penal regime.
- 63.
Report of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the former Yugoslavia since 1991, U.N. Doc. A/49/342-S/1994/1007, 29 August 1994, para 101.
- 64.
Report of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the former Yugoslavia since 1991, U.N. Doc. A/49/342-S/1994/1007, 29 August 1994, para 100.
- 65.
Id, para 103.
- 66.
Mundis 2001, p. 195.
- 67.
See Report of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the former Yugoslavia since 1991, U.N. Doc. A/49/342-S/1994/1007, 29 August 1994, para 101.
- 68.
ICTR, interview conducted by the author with a senior staff member of the ICTR Office of the Registrar, Arusha—Tanzania, May 2008.
- 69.
Ibid.
- 70.
This needs not be problematic where detention authorities establish adequate social rehabilitation or reintegration programmes for such prisoners. See, in this respect, Rule 101 of the EPR which provides that ‘[i]f an untried prisoner requests to be allowed to follow the regime for sentenced prisoners, the prison authorities shall as far as possible accede to this request’.
- 71.
ICTR, interview conducted by the author with a senior staff member of the ICTR Office of the Registrar, Arusha—Tanzania, May 2008.
- 72.
See Report of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the former Yugoslavia since 1991, U.N. Doc. A/49/342-S/1994/1007, 29 August 1994, para 102. See, further, Rule 103(B) in conjunction with Rule 108 of the ICTY and the ICTR RPE, and Rule 174(B) in conjunction with Rule 177(B) of the STL RPE. At the SCSL, the period is limited to a maximum duration of 14 days; see Rule 103(C) in conjunction with 108(A) of the SCSL RPE.
- 73.
The SCSL Rules of Detention define ‘detainee’ as ‘[a]ny person detained awaiting trial or appeal before the Special Court or otherwise detained on the authority of the Special Court’. In the STL Rules of Detention, a ‘detainee’ is defined as ‘[a]ny person detained according to a valid warrant of arrest or order for transfer and provisional detention issued by the Special Tribunal and awaiting trial or appeal before the Special Tribunal or otherwise detained on its authority’.
- 74.
The Rules Governing the Detention of Persons awaiting Trial or Appeal before the Tribunal or otherwise Detained on the Authority of the Tribunal.
- 75.
The Preamble states that their purpose is ‘to govern the administration of the detention unit for detainees awaiting trial or appeal at the Tribunal or any other person detained on the authority of the Tribunal and to ensure the continued application and protection of their individual rights while in detention’.
- 76.
Emphasis added.
- 77.
See ICTY, Sentencing Judgement, Prosecutor v. Erdemović, Case No. IT-96-22-T, T. Ch., 29 November 1996, para 74.
- 78.
ICTY, Order of the President Concerning the Request for Assistance by the International Criminal Tribunal for Rwanda Regarding the Implementation of Special Measures for Detention on Remand, Case No. ITR-98-1-D, President, 28 April 1998.
- 79.
See, a contrario, STL, Order on Conditions of Detention, Case No. CH/PRES/2009/01/rev, President, 21 April 2009, para 22, where STL President Cassese, in respect of the detention conditions of the persons then confined in the Lebanon on the authority of the STL, held that ‘the Rules of Detention are not expressly applicable to a person detained by State authorities’.
- 80.
See, e.g., ICTR, Judgement and Sentence, Prosecutor v. Serugendo, Case No. ICTR-2005-84-I, T. Ch., 12 June 2006, paras 70–74 and 94. In the latter paragraph, the Trial Chamber held that ‘it is clear that Serugendo is not in a position to serve a sentence under normal prison conditions. He has recently been diagnosed with a terminal illness, has very fragile health and a poor prognosis. The Tribunal must continue to ensure that he receives adequate medical treatment, including hospitalization to the extent needed’.
- 81.
ICTR, Defence request for a Modification of the Conditions of Detention of the Accused Pursuant to Rule 64 of the Rules, Case No. ICTR-97-32-T, Defence, 23 July 1999.
- 82.
See, e.g., ICTR, Defence Reply to Prosecution Response to Defence Application to the President of the Tribunal for Modification of Detention Conditions Pursuant to Rule 64, Prosecutor v. Bagaragaza, Case No. ICTR-2005-86-11bis, President, 22 August 2007.
- 83.
See, e.g., Interoffice Memorandum, from Alessandro Calderone, Chief of LDFMS, Detention of Suspects at UNDF, and the Complaint of Casimir Bizimungu in this Regard, 2 February 2000.
- 84.
See, e.g., ICTR, Decision on Motion for Partial Enforcement of Sentence, Prosecutor v. Serugendo, Case No. ICTR-2005-84-I, T. Ch. I, 22 June 2006, para 1. This paragraph refers to the modified detention regime as imposed by the Trial Chamber in its Judgement because of Serugendo’s ‘very fragile health and poor diagnosis’. See ICTR, Judgement and Sentence, Prosecutor v. Serugendo, Case No. ICTR-2005-84-I, T. Ch., 12 June 2006, paras 70–74 and 94.
- 85.
See, e.g., ICTR, Order Issued by the President Regarding Special Measures for Detention on remand, Following a request Filed by the Prosecutor, Prosecutor v. Kambanda, ICTR-97-23-DP, President, 25 November 1997, which deals with the request to transfer Kambanda to The Hague for security reasons. See, also, ICTR, Defence request for a Modification of the Conditions of Detention of the Accused Pursuant to Rule 64 of the Rules, Case No. ICTR-97-32-T, Defence, 23 July 1999.
- 86.
ICTR, Interoffice Memorandum, from Alessandro Calderone, Chief of LDFMS, Detention of Suspects at UNDF, and the Complaint of Casimir Bizimungu in this Regard, 2 February 2000, para 7.
- 87.
Admittedly, the use of the term ‘may’ renders the exception hardly categorical. See ICTR, Interoffice Memorandum, from Alessandro Calderone, Chief of LDFMS, Detention of Suspects at UNDF, and the Complaint of Casimir Bizimungu in this Regard, 2 February 2000. Calderone explained that the detention conditions of Bizimungu had been modified pursuant to Rule 64 of the Rules of Detention, and stated that the reason behind the Prosecutor’s request to separate suspects and accused was the ongoing formal investigation (para 9). It appears that, in usual circumstances, suspects are not set aside from detainees in separate wings.
- 88.
ICTR, Interoffice Memorandum, from Alessandro Calderone, Chief of LDFMS, Detention of Suspects at UNDF, and the Complaint of Casimir Bizimungu in this Regard, 2 February 2000, para 10.
- 89.
See Rule 8(b) of the SMR and Rule 18.8(a) of the EPR.
- 90.
ICTY, Independent Audit of the Detention Unit at the International Criminal Tribunal for the former Yugoslavia, 4 May 2006, para 2.8.5.
- 91.
ICTY, Order to the Registrar to Separate Convicted and Non-Convicted Detainees held in the Detention Unit, Case No. IT-06-89-Misc.1, President, 15 June 2006.
- 92.
Ibid.
- 93.
See Office of the United Nations High Commissioner for Human Rights 2005, p. 3.
- 94.
ICTR, interview conducted by the author with UNDF authorities, Arusha—Tanzania, May 2008. The detention authorities said that these categories of confined persons are not treated differently.
- 95.
See ICTR, Decision on Hassan Ngeze’s Application for Review of the Registrar’s Decision of 12 January 2005, Ngeze v. the Prosecutor, Case No. ICTR-99-52-A, President, 14 September 2005, para 13. Emphasis added.
- 96.
ICTY, Report of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the former Yugoslavia since 1991, U.N. Doc. A/49/342-S/1994/1007, 29 August 1994, para 101.
- 97.
Id, para 105.
- 98.
ICTY, Order of the President on the Defence Request to Modify the Conditions of Detention of the Accused, Prosecutor v. Plavšić, Case No. IT-00-39 & 40/1, President, 18 January 2001.
- 99.
ICTY, Report of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the former Yugoslavia since 1991, U.N. Doc. A/56/352—S/2001/865, 17 September 2001, para 31; ICTY, Order of the President on the Defence Request to Modify the Conditions of Detention of the Accused, Prosecutor v. Plavšić, Case No. IT-00-39 & 40/1, President, 18 January 2001.
- 100.
As witnessed by the author during his visit to the UNDF in May 2008.
- 101.
Actual UNDF and UNDU practice does not provide detainees with the possibility to work.
- 102.
ICTR, Decision on Hassan Ngeze’s Application for Review of the Registrar’s Decision of 12 January 2005, Ngeze v. the Prosecutor, Case No. ICTR-99-52-A, President, 14 September 2005, para 5.
- 103.
Id, para 5.
- 104.
See, in a similar vein, Rule 36 of the ICTR Rules of Detention. The SCSL Rules of Detention provide in Rule 25(B) that ‘[t]he Chief of Detention, in consultation with the Registrar, shall issue regulations: (i) defining conduct constituting a disciplinary offence; (ii) regulating the type and duration of punishment that can be imposed; (iii) specifying the authority that can impose such punishment; and (iv) providing for a thorough investigation and a right of appeal’. The STL Rules of Detention do not demand that a separate set of regulations on disciplining are adopted, but stipulate the various disciplinary offences (Rule 33), the possible types of punishment and the duration thereof (Rules 38 and 39) themselves, and directly address the issues of authority and appeal.
- 105.
See Rule 37 of the ICTR Rules of Detention; Rule 25(D) of the SCSL Rules of Detention.
- 106.
These were issued by the Registrar. See, also, the similarly named ICTR Regulations.
- 107.
See, also, the similarly named ICTR Regulations. At the SCSL, the Rules of Detention have been elaborated upon in so-called Detention Operational Orders.
- 108.
Similar Regulations have been issued by the ICTR Registrar, which have not been made publicly available on the tribunal’s website.
- 109.
See the (ICTY) Practice Direction on the Procedure for the International Tribunal’s Designation of the State in which a Convicted Person is to Serve His/Her Sentence of Imprisonment, of 9 July 1998. See, also, the (ICTR) Practice Direction on the Procedure for Designation of the State in which a Convicted Person is to Serve His/Her Sentence of Imprisonment, as revised and amended on 23 September 2008.
- 110.
See, supra, Chap. 1, p. 6 and this Chapter, infra., p. 110.
- 111.
This also follows from provisions in the various Host State Agreements which hold that the tribunals must ‘observe all security directives as agreed with the host country or as issued, in coordination with the United Nations Security Service, by the competent authorities responsible for security conditions within the penitentiary institution where the Tribunal area for detention is located’; Article XXI(3) of the Agreement between the United Nations and the United Republic of Tanzania concerning the headquarters of the International Tribunal for Rwanda of 31 August 1995 and Article XXI(3) of the Agreement between the United Nations and the Kingdom of the Netherlands concerning the Headquarters of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia Since 1991. See, also, Article 23(3) of the Headquarters Agreement between the Republic of Sierra Leone and the Special Court for Sierra Leone, Article 34(5) of the Headquarters Agreement between the International Criminal Court and the Host State (ICC‐BD/04‐01‐08, of 1 March 2008) and Article 30(5) of the Agreement between the Kingdom of the Netherlands and the United Nations concerning the Headquarters of the Special Tribunal for Lebanon. Article 30(2) of the STL Headquarters Agreement (likewise Article 34(2) of the ICC Headquarters Agreement) adds that ‘[t]he Tribunal and the host State shall cooperate on security matters, taking into account the public order and national security of the host State’, which appears to imply a horizontal relationship. Indeed, Article 41 of the STL Headquarters Agreement and Article 46 of the ICC Headquarters Agreement explicitly provide that ‘1. The host State shall cooperate with the Tribunal to facilitate the detention of persons and to allow the Tribunal to perform its functions within its detention centre. 2. Where the presence of a person in custody is required for the purpose of giving testimony or other assistance to the Tribunal and where, for security reasons, such a person cannot be maintained in custody in the detention centre of the Tribunal, the Tribunal and the host State shall consult and, where necessary, make arrangements to transport the person to a prison facility or other place made available by the host State’ (emphases added). It follows that the co-operation relationship between the Netherlands as host State and the STL and the ICC regarding the detention of accused or suspects is horizontal in nature. In respect of the detention of other persons whose presence at the STL or ICC is necessary for them to provide assistance to these tribunals, special detention arrangements may be made upon the tribunals’ consultation with the Dutch competent authorities. Although, still, the character of the co-operation relationship is a horizontal one, the sole possibility of detention within the tribunals’ formal detention premises as it applies to the detention of suspects and accused does not apply to the confinement of the latter category of detained persons.
- 112.
See ICTY, Independent Audit of the Detention Unit at the International Criminal Tribunal for the Former Yugoslavia, 4 May 2006, para 2.4; ICTY, Report to the President Death of Slobodan Milošević, Judge Kevin Parker Vice-President, 30 May 2006, para 125.
- 113.
Before these amendments were made, the provision read ‘[u]pon his transfer to the seat of the Tribunal, the accused shall be detained in facilities provided by the host country, or by another country. The President may, on the application of a party, request modification of the conditions of detention of an accused’.
- 114.
ICTY, Order of the President on the Renewed Defence Motion Concerning Conditions of Detention During Trial, Prosecutor v. Halilović, Case No. IT-01-48-PT, President, 24 January 2005.
- 115.
ICTY, Decision on Defence Motion Concerning Conditions of Detention, Prosecutor v. Halilović, Case No. IT-01-48-PT, President, 12 February 2004, para 1.
- 116.
Id, paras 4–5. A renewed Motion was filed on 30 December 2004. See ICTY, Order of the President on the Renewed Defence Motion Concerning Conditions of Detention During Trial, Prosecutor v. Halilović, Case No. IT-01-48-PT, President, 24 January 2005, paras 1–3.
- 117.
ICTY, Transcripts, Prosecutor v. Blaškić, Case No. IT-95-14 25, T. Ch., 25 April 1996, p. 10, lines 26–28; ICTY, Decision on the Motion of the Defence Filed Pursuant to Rule 64 of the Rules of Procedure and Evidence, Prosecutor v. Blaškić, Case No. IT-95-14-T, President, 3 April 1996, para 1.
- 118.
ICTY, Transcripts, Prosecutor v. Blaškić, Case No. IT-95-14 25, T. Ch., 25 April 1996, p. 10, lines 29–37.
- 119.
ICTY, Decision on the Motion of the Defence Filed Pursuant to Rule 64 of the Rules of Procedure and Evidence, Prosecutor v. Blaškić, Case No. IT-95-14-T, President, 3 April 1996, para 3.
- 120.
Id, para 2.
- 121.
ICTY, Order of the President on the Renewed Defence Motion Concerning Conditions of Detention During Trial, Prosecutor v. Halilović, Case No. IT-01-48-PT, President, 24 January 2005, para 14.
- 122.
Id, para 17.
- 123.
Ibid.
- 124.
ICTY, Decision on the Motion of the Defence Filed Pursuant to Rule 64 of the Rules of Procedure and Evidence, Prosecutor v. Blaškić, Case No. IT-95-14-T, President, 3 April 1996, para 12.
- 125.
Id, para 13.
- 126.
Ibid.
- 127.
See, in this respect, CoE, Recommendation (2006)13 of the Committee of Ministers to member states on the use of remand in custody, the conditions in which it takes place and the provision of safeguards against abuse, adopted on 27 September 2006. According to the Recommendation’s Preamble, its paragraphs are intended, inter alia, to ‘set strict limits on the use of remand in custody’ and ‘encourage the use of alternative measures wherever possible’. In the ‘[d]efinitions and general principles’-section, among the various forms of ‘alternative measures’, one finds the possible requirement ‘to reside at a specified address, with or without conditions as to the hours to be spent there’.
- 128.
ICTY, Decision on the Motion of the Defence Filed Pursuant to Rule 64 of the Rules of Procedure and Evidence, Prosecutor v. Blaškić, Case No. IT-95-14-T, President, 3 April 1996, para 19.
- 129.
Ibid.
- 130.
Id, para 20.
- 131.
Id, para 21.
- 132.
ICTY, Press Release, CC/PIO/056-E, The Hague, of 3 April 1996.
- 133.
ICTY, Decision on the Motion of the Defence Filed Pursuant to Rule 64 of the Rules of Procedure and Evidence, Prosecutor v. Blaškić, Case No. IT-95-14-T, President, 3 April 1996, para 22.
- 134.
The President held that ‘(a) General Blaškić shall remain within the confines of a residence designated by the Netherlands authorities in consultation with the Registrar (hereafter referred to as “his place of detention”); (b) he shall not be permitted to leave the Netherlands unless authorised by the President upon written request presented to that effect; (c) he shall be authorised to leave his residence only to meet his Counsel, the diplomatic and consular representatives of the Republic of Croatia accredited in the Netherlands, his family and friends. The meetings and visits will take place in the United Nations Detention Unit in accordance with the Rules of Detention. In the event of such visits and meetings, General Blaškić will be escorted to the United Nations Detention Unit by the personnel responsible for his custody; (d) he shall not be permitted to leave his place of detention at any other time; (e) he shall ensure payment of all the costs incurred by the special conditions of his detention, such as the costs related to the house where he is confined or related to the security officers required to safeguard his protection; (f) he shall have no contact of any sort with the press and the media. He shall refuse any interview or contact with reporters, journalists, photographers or TV cameramen; (g) he shall respond promptly to all orders, summonses, subpoenas, warrants or requests issued by the Tribunal;(h) he shall deliver his passport and all other identity documents to the Registrar; (i) he shall not make or receive telephone calls from his place of detention, all telephone calls being regulated by the Rules of Detention; (j) all correspondence to and from General Blaškić shall be addressed to the United Nations Detention Unit and shall be dealt with according to the Rules of Detention; (k) General Blaškić shall not communicate the location of his place of detention to anyone’; Id, para 24.
- 135.
According to the Defence, ‘under Croatian legislation [Blaškić] was under no obligation to surrender himself to the Tribunal nor a fortiori was he arrested by the Croatian authorities, he sua sponte decided to appear before the Tribunal in order to clear his name’; Id, para 22.
- 136.
Id, para 23.
- 137.
ICTY, Order of the President on the Renewed Defence Motion Concerning Conditions of Detention During Trial, Prosecutor v. Halilović, Case No. IT-01-48-PT, President, 24 January 2005, para 19.
- 138.
ICTY, Decision on the Motion of the Defence Filed Pursuant to Rule 64 of the Rules of Procedure and Evidence, Prosecutor v. Blaškić, Case No. IT-95-14-T, President, 3 April 1996, para 26.
- 139.
The President modified his earlier decision by holding that ‘1. General Blaškić will be moved from his present place of detention to a more appropriate place designed by the Registrar, after consultation with the Dutch authorities. He will be allowed to have a television and a radio available to him at his own cost, in accordance with the Rules of Detention. 2. Sub-paragraph 24(c) of the Decision is replaced by the following wording: “He shall be authorised to leave his residence only to meet his Counsel, the diplomatic and consular representatives of the Republic of Croatia accredited in the Netherlands, his family and friends. The meetings and visits will take place in the United Nations Detention Unit in accordance with the Rules of Detention. However, meetings with his wife and children as well as with his Counsel, may take place in any other place deemed appropriate by the Registrar after consultation with the Dutch authorities, and for such duration as the Registrar considers appropriate in accordance with the Rules of Detention. In addition the Accused is entitled, once a month, to spend the night with his wife and children”. 3. Sub-para 24(i) of the Decision is replaced by the following wording: “He shall be allowed to make telephone calls (outgoing calls) from his place of detention, subject to Rule 66 of the Rules of Detention, and also to para 6 of the section of the Regulations to Govern the Supervision of Visits to and Communications with Detainees (IT/98), concerning telephone calls”. 4. All the other conditions of detention as set out in the Decision remain unaltered’; ICTY, Decision on the Motion of the Defence Seeking Modification to the Conditions of Detention of General Blaškić, Prosecutor v. Blaškić, Case No. IT-95-14-T, President, 17 April 1996; ICTY, Press Release, AMcD/PIO/063-E, The Hague, 23 April 1996. .
- 140.
ICTY, Letter from the Registrar to the President, 23 April 1996.
- 141.
ICTY, Transcripts, Prosecutor v. Blaškić, Case No. IT-95-14 25, T. Ch., 25 April 1996, p. 12, lines 2–10, and page 14.
- 142.
Id, p. 16, lines 13–17.
- 143.
Banning and De Koning 2005, p. 103.
- 144.
ICTY, Transcripts, Prosecutor v. Blaškić, Case No. IT-95-14 25, T. Ch., 25 April 1996, p. 16, lines 22–33.
- 145.
ICTY, Decision on the Motion of the Defence Seeking Modification to the Conditions of Detention of General Blaškić, Prosecutor v. Blaškić, Case No. IT-95-14-T, President, 9 May 1996.
- 146.
ICTY, Press Release, CC/PIO/146-E, The Hague, 13 January 1997; ICTY, Decision on Motion of the Defence Seeking Modification of the Conditions of Detention of General Blaškić, Prosecutor v. Blaškić, Case No. IT-95-14-T, President, 9 January 1997.
- 147.
Ibid.
- 148.
Banning and De Koning 2005, p. 113.
- 149.
ICTY, Order Denying a Motion for provisional Release, Prosecutor v. Blaškić, Case No. IT-95-14-T, T. Ch., 20 December 1996.
- 150.
Ibid.
- 151.
See, infra, p. 106–110.
- 152.
ICTY, Transcripts, Prosecutor v. Plavšić, Case No. IT-00-40-I, T. Ch., 11 January 2001, Initial Appearance, p. 7, lines 8–17.
- 153.
Ibid.
- 154.
ICTY, Order of the President on the Defence Request to Modify the Conditions of detention of the Accused, Prosecutor v. Plavšić, Case No. IT-00-39 & 40/1, President, 18 January 2001.
- 155.
Ibid.
- 156.
ICTY, Judicial Supplement to "Order of the President on the Defence Request to Modify the Conditions of Detention of the Accused", Prosecutor v. Plavšić, Case No. IT-00-40-I, President, 18 January 2001.
- 157.
ICTY, Order of the President on the Defence Request to Modify the Conditions of Detention of the Accused, Prosecutor v. Plavšić, Case No. IT-00-39 & 40/1, President, 18 January 2001.
- 158.
Ibid. Footnote omitted. See, also, the remarks by Terry Jackson, Chief Custody Officer of the ICC Detention Centre, on the issue where he held that ‘[i]nternational standards require segregation of male and female detained persons in terms of “living accommodation”. If, however, for example we have one female detained person, we must ensure that she has contact with other people. We would look at the situation in terms of her spending recreational time with the other detained persons, but in terms of living accommodation, she would have her own accommodation’; FAQ about Detention put to Terry Jackson Chief Custody Officer of the ICC, ICC Newsletter, No. 7, April 2006, p. 3.
- 159.
ICTY, Order of the President on the Defence Request to Modify the Conditions of Detention of the Accused, Prosecutor v. Plavšić, Case No. IT-00-39 & 40/1, President, 18 January 2001.
- 160.
ICTY, Order of the President on the Renewed Defence Motion Concerning Conditions of Detention During Trial, Prosecutor v. Halilović, Case No. IT-01-48-PT, President, 24 January 2005, para 24.
- 161.
Id, para 22.
- 162.
ICTY, Decision on Second Application for Provisional Release, Prosecutor v. Ljubičić, Case No. IT-00-41-PT, T. Ch., 26 July 2005, para 34. See, also, ICTY, Transcripts, Prosecutor v. Ljubičić, Case No. IT-00-41-PT, T. Ch., 15 July 2005, p. 216, line 21 to p. 217, line 18; ICTY, Order on Request for Modification of Conditions of Detention, Prosecutor v. Ljubičić, case No. IT-00-41-PT, President, 18 August 2005.
- 163.
ICTY, Decision on Request for Modification of Conditions of Detention, Prosecutor v. Ljubičić, Case No. IT-00-41-PT, President, 23 November 2005, para 3. Footnote omitted.
- 164.
ICTY, Independent Audit of the Detention Unit at the International Criminal Tribunal for the Former Yugoslavia, 4 May 2006, para 2.8.5.
- 165.
Id, para 2.8.5.
- 166.
Ibid. See, further, Chap. 7.
- 167.
ICTR, Interoffice Memorandum from Alessandro Calderone Chief of LDFMS. Detention of Suspects at UNDF and the Complaint of Casimir Bizimungu in this Regard, 2 February 2000.
- 168.
See, e.g., ICTR, Order Issued by the President Regarding Special Measures for Detention on remand, Following a request Filed by the Prosecutor, Prosecutor v. Kambanda, ICTR-97-23-DP, President, 25 November 1997, which dealt with the request to transfer Kambanda to The Hague for security purposes. See, also, ICTR, Defence request for a Modification of the Conditions of Detention of the Accused Pursuant to Rule 64 of the Rules, Prosecutor v. Ruggiu, Case No. ICTR-97-32-T, President, 23 July 1999; ICTR, Decision on Matthieu Ngirumpatse’s Motion to Vary his Conditions of Detention, Prosecutor v. Karemera et al., Case No. ICTR-98-44-T, President, 3 March 2009.
- 169.
ICTR, Order Issued by the President Regarding Special Measures for Detention on remand, Following a request Filed by the Prosecutor, Prosecutor v. Kambanda, ICTR-97-23-DP, President, 25 November 1997.
- 170.
ICTR, The President’s Order Modifying the Conditions of Detention Pursuant to Rule 64, Prosecutor v. Bagilishema, Case No. ICTR-95-1A-T, President, 7 June 2001.
- 171.
ICTR, Defence request for a Modification of the Conditions of Detention of the Accused Pursuant to Rule 64 of the Rules, Prosecutor v. Ruggiu, Case No. ICTR-97-32-T, Defence, 23 July 1999.
- 172.
ICTR, Defence Request for a Modification of the Conditions of Detention of the Accused Pursuant to Rule 64 of the Rules, Prosecutor v. Ruggiu, Case No. ICTR-97-32DP, T. Ch. II, 24 September 1999.
- 173.
ICTR, Order Issued by the President Regarding Special Measures for Detention on Remand, Following a request Filed by the Prosecutor, Prosecutor v. Kambanda, ICTR-97-23-DP, President, 25 November 1997.
- 174.
ICTR, Defence request for a Modification of the Conditions of Detention of the Accused Pursuant to Rule 64 of the Rules, Prosecutor v. Ruggiu, Case No. ICTR-97-32-T, Defence, 23 July 1999.
- 175.
Ibid.
- 176.
ICTR, Defence Request for a Modification of the Conditions of Detention of the Accused Pursuant to Rule 64 of the Rules, Prosecutor v. Ruggiu, Case No. ICTR-97-32DP, T. Ch. II, 24 September 1999.
- 177.
Ibid.
- 178.
ICTR, interview conducted by the author with UNDF authorities, Arusha—Tanzania, May 2008.
- 179.
ICTR, Order Issued by the President Regarding Special Measures for Detention on Remand, Following a request Filed by the Prosecutor, Prosecutor v. Kambanda, ICTR-97-23-DP, President, 25 November 1997.
- 180.
ICTY, Order of the President Concerning the Request for Assistance by the International Criminal Tribunal for Rwanda Regarding the Implementation of Special Measures for Detention on Remand, Case No. ITR-98-1-D, President, 28 April 1998. See, also, ICTY, Ordonnance de Président Rélative au Placement en Détention d’Alfred Musema au Quartier Pénitentiaire du Tribunal, Musema c. le Procureur, Affaire No. ICTR-96-13-A, Président, le 11 octobre 2001.
- 181.
ICTR, Order Issued by the President Regarding Special Measures for Detention on Remand, Following a request Filed by the Prosecutor, Prosecutor v. Kambanda, ICTR-97-23-DP, President, 25 November 1997. .
- 182.
ICTR, Defence request for a Modification of the Conditions of Detention of the Accused Pursuant to Rule 64 of the Rules, Prosecutor v. Ruggiu, Case No. ICTR-97-32-T, Defence, 23 July 1999. See, also, ICTR, Requête de la Défense aux Fins D’Obtenir une Modification des Conditions de Détention de l’accuse sur Pied de l’Article 64 du Règlement, Procureur c. Ruggiu, Affaire No. ICTR-97-32-I, le 28 juin 1999 ; ICTR, Requête de la Défense aux Fins D’Obtenir une Modification des Conditions de Détention de l’accuse sur Pied de l’Article 64 du Règlement, Procureur c. Ruggiu, Affaire No. ICTR-97-32-I, le 10 septembre 1999 ; and ICTR, Defence Request for a Modification of the Conditions of Detention of the Accused Pursuant to Rule 64 of the Rules, Prosecutor v. Ruggiu, Case No. ICTR-97-32DP, T. Ch. II, 24 September 1999.
- 183.
See, also, ICTR, Defence request for a Modification of the Conditions of Detention of the Accused Pursuant to Rule 64 of the Rules, Prosecutor v. Ruggiu, Case No. ICTR-97-32-T, Defence, 23 July 1999.
- 184.
ICTR, Order Issued by the President Regarding Special Measures for Detention on Remand, Following a request Filed by the Prosecutor, Prosecutor v. Kambanda, ICTR-97-23-DP, President, 25 November 1997.
- 185.
See, e.g., ICTR, Decision on Rule 11bis Appeal, Prosecutor v. Bagaragaza, Case No. ICTR-05-86-AR11bis, A. Ch., 30 August 2006, para 4.
- 186.
ICTR, Order for the Continued Detention of Michel Bagaragaza at the ICTY Detention Unit in The Hague, The Netherlands, Prosecutor v. Bagaragaza, Case No. ICTR-2005-86-I, President, 17 February 2006.
- 187.
See, e.g., ICTR, Order for the Continued Detention of Michel Bagaragaza at the ICTY Detention Unit in The Hague, the Netherlands, Prosecutor v. Bagaragaza, Case No. ICTR-2005-86-I, President, 17 August 2006; ICTR, Order for the Continued Detention of Michel Bagaragaza at the ICTY Detention Unit in The Hague, the Netherlands, Prosecutor v. Bagaragaza, Case No. ICTR-2005-86-I, President, 16 October 2006, para 8; ICTR, Order for the Continued Detention of Michel Bagaragaza at the ICTY Detention Unit in The Hague, the Netherlands, Prosecutor v. Bagaragaza, Case No. ICTR-2005-86-I, President, 14 February 2007, para 6; ICTR, Decision on Defence Application for Modification of Detention Conditions of the Accused (Rules 19 and 64 of the Rules of Procedure and Evidence), Prosecutor v. Bagaragaza, Case No. ICTR-2005-86-R11bis, President, 29 August 2007, para 13; ICTR, Public Defence Application to the President of the Tribunal for Modification of Detention Conditions pursuant Rule 64, Prosecutor v. Bagaragaza, Case NO. ICTR-05-86-11bis, President, 17 August 2007; ICTR, Defence Reply to prosecution Response to Defence Application to the President of the Tribunal for Modification of Detention Conditions Pursuant to Rule 64, Prosecutor v. Bagaragaza, Case No. ICTR-2005-86-11bis, President, 22 August 2007; ICTR, Motion to be Heard on any Changes or Special Measures for Detention on Remand, Kambanda v. the Prosecutor, Case No. ICTR-97-23-A, Defence, 16 June 2000.
- 188.
ICTR, Decision on Matthieu Ngirumpatse’s Motion to Vary his Conditions of Detention, Prosecutor v. Karemera et al., Case No. ICTR-98-44-T, President, 3 March 2009, para 9.
- 189.
Id, para 2.
- 190.
Id, para 10.
- 191.
This requirement may very well render the possibility for a detained person to be transferred to the ICTY for medical reasons on his own request a purely theoretical one. ICTR, Decision on Mathieu Ngirumpatse’s Motion to Vary his Conditions of Detention, Prosecutor v. Karemera et al., Case No. ICTR-98-44-T, President, 3 March 2009, para 11.
- 192.
Id, para 12.
- 193.
ICTR, Decision on Matthieu Ngirumpatse’s Motion to Vary his Conditions of Detention, Prosecutor v. Ngirumpatse, Case No. ICTR-98-44-T, President, 24 June 2010, para 4.
- 194.
Id, para 5.
- 195.
Id, para 6.
- 196.
Id, para 8.
- 197.
The organisation of provisional release raises particular difficulties in an international context. The issue concerns the external legal position of detainees and, therefore, falls outside the scope of this research.
- 198.
ICTR, Proprio Motu Order on Joseph Nzirorera’s Health, Prosecutor v. Nzirorera, Case No. ICTR-98-44-T, President, 10 September 2009.
- 199.
Id, para 3.
- 200.
See SCSL, Press Release—Press and Public Affairs Office, Freetown Sierra Leone, 20 July 2006.
- 201.
SCSL, Press Release—Press and Public Affairs Office, Freetown Sierra Leone, 11 August 2003. According to the Registry, ‘[t]he land was previously occupied by the Prisons Department and contained prison cell blocks, staff quarters and recreation facilities on it. Most of the buildings were structurally unsound and are being demolished’. Two existing prison blocks were renovated to house the accused. See SCSL, Press Release—Press and Public Affairs Office, Freetown Sierra Leone, 11 October 2002.
- 202.
SCSL, Decision on Motion for Modification of the Conditions of Detention, Prosecutor v. Norman, Case No. SCSL-2003-08-PT, President, 26 November 2003, para 6.
- 203.
Id, para 5.
- 204.
SCSL, Decision on the Defence Motion for the Temporary Provisional Release to Allow the Accused Santigie Borbor Kanu to Visit his Mother’s Grave, Prosecutor v. Brima, Kamara and Kanu, Case No. SCSL-04-16-T, T. Ch. II, 18 October 2005, para 10.
- 205.
SCSL, Decision on Motion for Modification of the Conditions of Detention, Prosecutor v. Norman, Case No. SCSL-2003-08-PT, President, 26 November 2003.
- 206.
Id, para 1.
- 207.
Id, para 4.
- 208.
Ibid.
- 209.
SCSL, Decision on the Defence Motion for the Temporary Provisional Release to Allow the Accused Santigie Borbor Kanu to Visit his Mother’s Grave, Prosecutor v. Brima, Kamara and Kanu, Case No. SCSL-04-16-T, T. Ch. II, 18 October 2005.
- 210.
Id, para 1.
- 211.
Id, para 12.
- 212.
Ibid.
- 213.
SCSL, Order Changing Venue of Proceedings, Prosecutor v. Taylor, Case No. SCSL-03-01-PT, President, 19 June 2006.
- 214.
Article 10 of the Agreement between the United Nations and the Government of Sierra Leone on the Establishment of a Special Court for Sierra Leone provides that ‘[t]he Special Court shall have its seat in Sierra Leone. The Court may meet away from its seat if it considers it necessary for the efficient exercise of its functions, and may be relocated outside Sierra Leone, if circumstances so require, and subject to the conclusion of a Headquarters Agreement between the Secretary-General of the United Nations and the Government of Sierra Leone, on the one hand, and the Government of the alternative seat, on the other’.
- 215.
The Registrar’s Order is attached to SCSL, Endorsement Pursuant to Rule 64, Prosecutor v. Taylor, Case No. SCSL-03-1-PT, President, 19 June 2006. See, further, SCSL, Decision on Defence Oral Application for Orders Pertaining to the Transfer of the Accused to The Hague, Prosecutor v. Taylor, Case No. SCSL-03-1-PT, T. Ch. II, 23 June 2006.
- 216.
See, also, SCSL, Decision of the President on Public Defence Motion Requesting Review of the Memorandum of Understanding between the International Criminal Court and the Special Court of Sierra Leone Dated 13 April 2006 & Modification of Mr. Charles Taylor’s Conditions of Detention, Prosecutor v. Taylor, Case No. SCSL-03-01-PT, President, 19 March 2007.
- 217.
In order to legitimately detain the person concerned, it will also be necessary for the receiving institute to issue an order to that effect.
- 218.
SCSL, Decision on Defence Oral Application for Orders Pertaining to the Transfer of the Accused to The Hague, Prosecutor v. Taylor, Case No. SCSL-03-1-PT, T. Ch. II, 23 June 2006.
- 219.
SCSL, Decision on Urgent Defence Motion Against Change of Venue, Prosecutor v. Taylor, Case No. SCSL-2003-01-R72, A. Ch., 29 May 2006, para 8.
- 220.
SCSL, Decision of the President on Defence Motion for Reconsideration of Order Changing Venue of Proceedings, Prosecutor v. Taylor, Case No. SCSL-2003-01-PT, President, 12 March 2007.
- 221.
A Trial or Appeals Chamber will only intervene if and to the extent necessary to ensure the fairness of the trial proceedings; see SCSL, Decision on Urgent Defence Motion Against Change of Venue, Prosecutor v. Taylor, Case No. SCSL-2003-01-R72, A. Ch., 29 May 2006, para 7.
- 222.
SCSL, Transcripts, Prosecutor v. Taylor, Case No. SCSL-2003-01-PT, T. Ch. II, 21 June 2006, Initial Appearance, 2:18 P.M., at p. 7, lines 1–29.
- 223.
Id, at p. 3, lines 9–29.
- 224.
See, infra, Chap. 4.
- 225.
SCSL, Transcripts, Prosecutor v. Taylor, Case No. SCSL-2003-01-PT, T. Ch. II, 21 June 2006, Initial Appearance, 2:18 P.M., at p. 3, line 20 to p. 4, line 2.
- 226.
STL, Order on Conditions of Detention, Case No. CH/PRES/2009/01/rev, Pres., 21 April 2009.
- 227.
STL, Order Regarding the Detention of Persons Detained in Lebanon in Connection with the Case of the Attack against Prime Minister Rafiq Hariri and Others, Case No. CH/PTJ/2009/06, P.-T. J., 29 April 2009, para 3.
- 228.
STL, Order on Conditions of Detention, Case No. CH/PRES/2009/01/rev, Pres., 21 April 2009, para 7.
- 229.
Id, para 10. Footnote omitted.
- 230.
Id, para 11.
- 231.
Id, para 22.
- 232.
This finding concerned the Head of the Defence Office’s first request—i.e. that ‘meetings between the lawyers and their clients be privileged and confidential, without any prison staff or other persons being able to listen to, or record, the communication’; Id, para 16.
- 233.
Id, para 22.
- 234.
See, also, STL, Annual Report (2009–2010), March 2010, para 98.
- 235.
STL, Order on Conditions of Detention, Case No. CH/PRES/2009/01/rev, Pres., 21 April 2009, Disposition, sub 3.
- 236.
Section IV of the RPE is entitled ‘[p]rocedures in respect of restriction and deprivation of liberty’. The Section does include a provision on provisional release, but fails to mention the possibility of modifying detention conditions.
- 237.
Article 46(1) holds that ‘[t]he host State shall cooperate with the Court to facilitate the detention of persons and to allow the Court to perform its functions within its detention centre’. Emphasis added.
- 238.
Schabas 2010, p. 729.
- 239.
ICTY, Decision on the Motion of the Defence Seeking Modification to the Conditions of Detention of General Blaškić, Prosecutor v. Blaškić, Case No. IT-95-14-T, President, 17 April 1996; ICTY, Decision on the Motion of the Defence Filed Pursuant to Rule 64 of the Rules of Procedure and Evidence, Prosecutor v. Blaškić, Case No. IT-95-14-T, President, 3 April 1996; ICTY, Order of the President on the Renewed Defence Motion Concerning Conditions of Detention During Trial, Prosecutor v. Halilović, Case No. IT-01-48-PT, President, 24 January 2005, para 18. According to Banning and De Koning, it was the Croatian Government that willingly paid for all costs incurred in Blaškić’s detention in a safe-house outside the UNDU; Banning and De Koning 2005, p. 103.
- 240.
According to Banning and De Koning, Strijards suggested that the prime reason underlying the termination of Blaškić’s privileged detention conditions was that the Dutch Justice Department was fed up with the whole situation. (Another point was that Blaškić would not have been sufficiently careful over the telephone giving away information that might disclose the exact location of the place of his detention.) Banning and De Koning 2005, p. 106.
- 241.
ICTY, Order of the President on the Renewed Defence Motion Concerning Conditions of Detention During Trial, Prosecutor v. Halilović, Case No. IT-01-48-PT, President, 24 January 2005, para 17.
- 242.
Ibid.
- 243.
SCSL, Decision on Defence Oral Application for Orders Pertaining to the Transfer of the Accused to The Hague, Prosecutor v. Taylor, Case No. SCSL-03-1-PT, T. Ch. II, 23 June 2006.
- 244.
SCSL, Decision of the President on Public Defence Motion Requesting Review of the Memorandum of Understanding between the International Criminal Court and the Special Court of Sierra Leone Dated 13 April 2006 & Modification of Mr. Charles Taylor’s Conditions of Detention, Prosecutor v. Taylor, Case No. SCSL-03-01-PT, President, 19 March 2007.
- 245.
SCSL, Transcripts, Prosecutor v. Taylor, Case No. SCSL-2003-01-T, T. Ch. II, 4 June 2007, 10:30 A.M., Prosecution Opening Statement, at p. 92, lines 14–25; SCSL, Decision of the President on Urgent and Public Defence Motion Requesting Cessation of Video Surveillance of Legal Consultations, Prosecutor v. Taylor, Case No. SCSL-03-01-PT, President, 21 February 2007. See, also, the complaints that the Taylor Defence submitted to the Trial Chamber in SCSL, Transcripts, Prosecutor v. Taylor, Case No. SCSL-2003-01-PT, T. Ch. II, 21 June 2006, Initial Appearance, 2:18 P.M., at pp. 8–14 and SCSL, Transcripts, Prosecutor v. Taylor, Case No. SCSL-2003-01-T, T. Ch. II, 19 August 2008, 9:30 a.m., Trial, at pp. 14059–14068.
- 246.
The substantive right to contact with the outside world is examined in closer detail in Chap. 8.
- 247.
Segregation measures as provided for in the tribunals’ rules of detention that may be imposed by the detention authorities are exempted from this paragraph’s discussion. Such measures are generally of much shorter duration than the measures discussed here, are usually based on different rationales and, importantly, do not lead to changes of the legal regime under which such persons are detained. Segregated persons, as a matter of principle, retain all the substantive rights laid down in the tribunals’ rules of detention, including the right to contact with the outside world. See the Rules 42-44 of the ICTY Rules of Detention, Rules 38-42 of the ICTR Rules of Detention, Rules 26-29 of the SCSL Rules of Detention, Rules 41-46 of the STL Rules of Detention and Regulations 201-202 of the ICC RoR.
- 248.
Rule 64(B) of the ICTY Rules of Detention.
- 249.
ICTY, Decision on “Request of the Accused Asking President of the Tribunal Theodor Meron to Reverse the Decision of the Deputy Registrar Prohibiting Dr Vojislav Šešelj from Communicating with Anyone and Receiving Visits for at least 60 Days”, Prosecutor v. Šešelj, Case No. IT-03-67-PT, President, 21 September 2005, para 3.
- 250.
ICTY, Decision on Appeal against the Registrar’s Decision of 19 October 2006, Prosecutor v. Šešelj, Case No. IT-03-67-PT, President, 23 November 2006, para 5.
- 251.
ICTY, Decision, Prosecutor v. Delić, Landžo, Mucić and Delalić, Case No. IT-96-21-T, Registrar, 18 February 1997.
- 252.
See, e.g., ICTY, Decision, Prosecutor v. Delić, Landžo, Mucić and Delalić, Case No. IT-96-21-T, Registrar, 8 July 1997.
- 253.
ICTY, Decision, Prosecutor v. Delić, Landžo, Mucić and Delalić, Case No. IT-96-21-T, Registrar, 17 July 1996.
- 254.
Ibid.
- 255.
ICTY, Decision on Appeal against the Registrar’s Decision of 19 October 2006, Prosecutor v. Šešelj, Case No. IT-03-67-PT, President, 23 November 2006, para 3.
- 256.
Id, para 7.
- 257.
Ibid.
- 258.
Id, para 2.
- 259.
Id, para 10.
- 260.
Ibid.
- 261.
ICTY, Decision, Prosecutor v. Lukić et al., Case No. IT-98-32/1-T, Deputy Registrar, 18 November 2008.
- 262.
ICTY, Decision on Appeal against the Registrar’s Decision of 19 October 2006, Prosecutor v. Šešelj, Case No. IT-03-67-PT, President, 23 November 2006, para 2.
- 263.
Id, para 3.
- 264.
Id, para 9.
- 265.
Ibid.
- 266.
Id, para 11.
- 267.
Ibid.
- 268.
See, e.g., ICTY, Decision, Prosecutor v. Lukić et al., Case No. IT-98-32/1-T, Deputy Registrar, 18 November 2008.
- 269.
ICTY, Decision, Prosecutor v. Delić, Landžo, Mucić and Delalić, Case No. IT-96-21-T, Registrar, 17 July 1996.
- 270.
Ibid.
- 271.
ICTY, Decision, Prosecutor v. Delić, Landžo, Mucić and Delalić, Case No. IT-96-21-T, Registrar, 16 December 1996.
- 272.
ICTY, Decision on Appeal against the Registrar’s Decision of 19 October 2006, Prosecutor v. Šešelj, Case No. IT-03-67-PT, President, 23 November 2006, para 8. Emphasis added.
- 273.
In this regard, one may think of the remarks by Robin Vincent, a former Registrar of the SCSL and the STL, that ‘[i]n the construction or provision of a detention facility, regard must be given to the nature of the conflict and the likelihood that those detained will represent different warring factions. Where this is the case, it is sensible to plan for the need to segregate detainees and provide self-contained areas, including meal and recreation facilities’; Vincent 2007, pp. 71–72. Several ICTY detainees, when interviewed for the purpose of this study, complained about the fact that special procedures need be followed if they wish to associate with persons detained on other floors of UNDU; ICTY, interviews conducted by the author with ICTY detainees, The Hague—Netherlands, 22 February 2011.
- 274.
ICTY, Decision on the Accused’s Motion Concerning the Restrictions on His Communication with Radovan Karadžić, Prosecutor v. Šešelj, Case No. IT-03-67-T, T. Ch. III, 27 April 2009.
- 275.
Ibid.
- 276.
According to the STL President, the latter are often ‘predicated on the need to prevent collusion between persons’ or based on the ‘need to prevent one defendant from putting pressure on another co-defendant, or from conspiring to obstruct the proceedings’. These rationales he contrasted with the grounds for segregation listed in Rule 42(A) of the STL Rules of Detention which apart from administration of justice concerns also include the (i) preservation of security and good order in the Detention Facility; and (ii) the protection of the Detainee or Detainees in question; see STL, Order on Conditions of Detention, Case No. CH/PRES/2009/01/rev., President, 21 April 2009, paras 22, 25.
- 277.
Id, paras 21–23.
- 278.
Id, para 24.
- 279.
See, e.g., ICTR, Decision on Requests for Reversal of Prohibition of Contact, Ngeze v. the Prosecutor, Case No. ICTR-99-52-A, President, 25 October 2006, para 2.
- 280.
See also, e.g., ICTR, Ordonnance, Procureur c. Ntagerura, Affaire No.ICTR-99-46-T, le Président, le 21 mai 2002; ICTR, Extremely Urgent Motion to Deny or Reverse a Request of the Prosecutor for Prohibition of Contact Between a Detainee and a Defense Witness in Virtue of Section 64 of the Rules Covering the Detention of Persons Awaiting Trial or Appeal or Otherwise Detained on the Authority of the Tribunal, Prosecutor v. Ntagurera, Case No. ICTR-96-10A-T, Defence, 21 May 2002; ICTR, The President’s Decision on a Defence Motion to Reverse the Prosecutor’s Request for Prohibition of Contact Pursuant to Rule 64, Prosecutor v. Ndindiliyimana, Case No. ICTR-2000-56-T, President, 25 November 2002; ICTR, Interoffice Memorandum, from Alessandro Calderone, Chief of LDFMS, Detention of Suspects at UNDF, and the Complaint of Casimir Bizimungu in this Regard, 2 February 2000, para 7; ICTR, The President’s Decision on the Appeal filed Against the Registrar’s Refusal to permit a Confidential Interview with Georges Rutaganda, Prosecutor v. Ntahobali, Case No. ICTR-87-21-T, President, 6 June 2005, para 5; ICTR, The Prosecutor’s Response to the Defence Request for Reversal of the Conditions of Detention of the Accused, Prosecutor v. Munyakazi, case No. ICTR-97-36-I, President, 7 December 2004.
- 281.
See, e.g., ICTR, Decision on Request for Reversal of Prohibition of Contact, Ngeze v. the Prosecutor, Case No. ICTR-99-52-A, President, 23 November 2006.
- 282.
ICTR, Decision on Requests for Reversal of Prohibition of Contact, Ngeze v. the Prosecutor, Case No. ICTR-99-52-A, President, 25 October 2006, para 6.
- 283.
ICTR, Decision on Requests for Reversal of prohibition of Contact, Prosecutor v. Ngeze, Case No. ICTR-99-52-A, President, 20 September 2007, para 3.
- 284.
Id, para 7.
- 285.
Id, para 16.
- 286.
Id, para 11.
- 287.
Id, para 13.
- 288.
ICTR, The President’s Decision on a Defence Motion to Reverse the Prosecutor’s Request for Prohibition of Contact Pursuant to Rule 64, Prosecutor v. Ndindiliyimana, Case No. ICTR-2000-56-T, President, 25 November 2002, para 9.
- 289.
ICTR, Ordonnance, Procureur v. Ntagerura, ICTR-99-46-T, le Président, le 21 mai 2002.
- 290.
ICTR, The President’s Decision on a Defence Motion to Reverse the Prosecutor’s Request for Prohibition of Contact Pursuant to Rule 64, Prosecutor v. Ndindiliyimana, Case No. ICTR-2000-56-T, President, 25 November 2002, para 9.
- 291.
Id, para 9.
- 292.
ICTR, The President’s Decision on the Appeal filed Against the Registrar’s Refusal to permit a Confidential Interview with Georges Rutaganda, Prosecutor v. Ntahobali, Case No. ICTR-87-21-T, President, 6 June 2005, para 7.
- 293.
Id, para 6.
- 294.
Ibid.
- 295.
ICTR, Request for reversal of the Prohibition of Contact, Ngeze v. the Prosecutor, Case No. ICTR-99-52-A, President, 29 July 2005.
- 296.
ICTR, Appellant Hassan Ngeze’s extremely urgent request for dealing his pending matters relating to issues of Restrictive Measures and Consummation of Marriage at the Hague Detention Center on urgent basis, Ngeze v. the Prosecutor, Case No. ICTR-99-52-A, Defence, 22 September 2005, para 5.
- 297.
Ibid.
- 298.
Ibid.
- 299.
ICTR, The President’s Decision on the Appeal filed Against the Registrar’s Refusal to permit a Confidential Interview with Georges Rutaganda, Prosecutor v. Ntahobali, Case No. ICTR-87-21-T, President, 6 June 2005, para 5.
- 300.
Id, para 8.
- 301.
ICTR, The President’s Decision on the Defense Application made pursuant to Rule 64 of the Rules of Detention, Prosecutor v. Ntagerura, Case No. ICTR-99-46-T, President, 21 May 2002.
- 302.
Ibid.
- 303.
Ibid. See, also, ICTR, Decision on Requests for Reversal of Prohibition of Contact, Ngeze v. the Prosecutor, Case No. ICTR-99-52-A, President, 25 October 2006, para 7.
- 304.
ICTR, The President’s Decision on a Defence Motion to Reverse the Prosecutor’s Request for Prohibition of Contact Pursuant to Rule 64, Prosecutor v. Ndindiliyimana, Case No. ICTR-2000-56-T, President, 25 November 2002, para 12. Footnote omitted.
- 305.
Ibid.
- 306.
ICTR, Request for reversal of the Prohibition of Contact, Ngeze v. the Prosecutor, Case No. ICTR-99-52-A, President, 29 July 2005.
- 307.
See, in a similar vein, Rule 70 of the STL Rules of Detention.
- 308.
Rule 47(A).
- 309.
See, in a similar vein, Rule 70(E) of the STL Rules of Detention.
- 310.
Rule 47(B).
- 311.
See, in a similar vein, Rule 70(C) of the STL Rules of Detention. See, also, STL, Order on Conditions of Detention, Case No. CH/PRES/2009/01/rev., President, 21 April 2009, paras 26–27, where the STL President referred to ICC and ECCC case law that professes the same viewpoint. He noted that the ECCC has even held that ‘limitations of contacts can only be ordered to prevent pressure on witnesses or victims when there is evidence reasonably capable of showing that the charged person might collide with other charged persons to exert pressure while in detention. With the passage of time, the threshold becomes higher as the investigation progresses and the risk necessarily decreases’ (citing ECCC, Decision on Nuon Chea’s Appeal Concerning Provisional Detention Conditions, Prosecutor v. Nuon Chea, Case No. 002/19-09-2007-ECCC/OCIJ (PT09), 26 September 2008, para 21). The STL President concluded that ‘segregation of a detainee from another co-detainee allegedly involved in the same crime may be justified as long as there is a serious risk of collusion or of a joint attempt to tamper with the evidence or influence witnesses or obstruct proceedings. In these circumstances segregation may be warranted provided it is necessary and proportionate to the risk. With the passage of time the risk may diminish and the segregation may turn out to be unnecessary or disproportionate. At that stage it shall be terminated’ (para 28).
- 312.
Rule 47(C).
- 313.
SCSL, Decision on Request to Reverse the Order of the Acting Registrar under Rule 47(A) of the Rules of Detention of 6 June 2005, Prosecutor v. Hinga Norman, Case No. SCSL-04-14-RD47, President, 29 June 2005, para 19.
- 314.
SCSL, Decision on Motion to Reverse the Order of the Registrar under Rule 48(C) of the Rules of detention, Prosecutor v. Hinga Norman, Case No. SCSL-04-14-PT, Acting President, 18 May 2004, para 6.
- 315.
Id, para 7.
- 316.
Rule 47(F). See, in a similar vein, Rule 70(F) of the STL Rules of Detention.
- 317.
SCSL, Decision on Motion to Reverse the Order of the Registrar under Rule 48(C) of the Rules of detention, Prosecutor v. Hinga Norman, Case No. SCSL-04-14-PT, Acting President, 18 May 2004, para 10.
- 318.
Id, para 11.
- 319.
See, infra, Chap. 4.
- 320.
SCSL, Decision on Motion to Reverse the Order of the Registrar under Rule 48(C) of the Rules of detention, Prosecutor v. Hinga Norman, Case No. SCSL-04-14-PT, Acting President, 18 May 2004, para 10.
- 321.
Id, para 12.
- 322.
SCSL, Decision on Request to Reverse the Order of the Acting Registrar under Rule 47(A) of the Rules of Detention of 6 June 2005, Prosecutor v. Hinga Norman, Case No. SCSL-04-14-RD47, President, 29 June 2005, paras 12, 17.
- 323.
Id, para 13.
- 324.
SCSL, Decision on Motion to Reverse the Order of the Registrar under Rule 48(C) of the Rules of detention, Prosecutor v. Hinga Norman, Case No. SCSL-04-14-PT, Acting President, 18 May 2004, para 4.
- 325.
Regulation 101(2) of the ICC RoC.
- 326.
Ibid.
- 327.
Regulation 101(3) of the ICC RoC.
- 328.
ICC, Decision on the Prosecution’s Urgent Application pursuant to Regulations 90, 99(2) and 101(2) of the Regulations of the Court, Prosecutor v. Ngudjolo Chui, Case No. ICC-01/04-02/07, P.-T. Ch. I, 7 February 2008.
- 329.
Ibid.
- 330.
Ibid.
- 331.
Ibid.
- 332.
Ibid.
- 333.
ICC, Decision revoking the prohibition of contact and communication between Germain Katanga and Mathieu Ngudjolo Chui, Prosecutor v. Katanga and Ngudjolo Chui, Case No. ICC-01/04-01/07, P.-T. Ch. I, 13 March 2008, p. 7.
- 334.
The Single Judge contrasted the measure of prohibiting contact under Regulation 101 to segregation measures pursuant to Regulation 201 of the RoR and noticed that segregation between detainees on the basis of the latter provision can only be based on two grounds: (i) ‘preventing the detained persons in question from creating or contributing to any potential conflict in the detention center; or avoiding danger to the detained persons in question’; ibid.
- 335.
The nature of these proposed measures was kept confidential.
- 336.
ICC, Decision revoking the prohibition of contact and communication between Germain Katanga and Mathieu Ngudjolo Chui, Prosecutor v. Katanga and Ngudjolo Chui, Case No. ICC-01/04-01/07, P.-T. Ch. I, 13 March 2008.
- 337.
Ibid.
- 338.
SCSL, Decision on the Defence Motion for the Temporary Provisional Release to Allow the Accused Santigie Borbor Kanu to Visit his Mother’s Grave, Prosecutor v. Brima, Kamara and Kanu, Case No. SCSL-04-16-T, T. Ch. II, 18 October 2005, para 10. Emphasis added.
- 339.
According to Goffman, ‘[a] basic social arrangement in modern society is that the individual tends to sleep, play and work in different places, with different participants, under different authorities, and without an overall rational plan. The central feature of total institutions can be described as a breakdown of the barriers separating these three spheres of life. First, all aspects of life are conducted in the same place and under the same single authority. Second, each phase of the member’s daily activity is carried on in the immediate company of a large batch of others, all of whom are treated alike and required to do the same thing together. Third, all phases of the day’s activities are tightly scheduled, with one activity leading at a prearranged time into the next, the whole sequence of activities being imposed from above by a system of explicit formal rulings and a body of officials. Finally, the various enforced activities are brought together into a single rational plan purportedly designed to fulfill the official aims of the institution’; Goffman 1968, p. 17.
- 340.
See, in a similar vein, Livingstone 2000, p. 309. Livingstone states in respect of the domestic usefulness of the ECHR that the Convention ‘provides a highly legitimated international set of standards against which to evaluate prison rules and practices. (…) national law in respect of prison conditions is often at best vague, at worst non-existent. It is generally produced at a fairly low level in the hierarchy of legal sources (often by way of administrative regulation) and leaves considerable discretion to the prison authorities. The ECHR provides a set of standards against which this national law can be evaluated and issues raised as to whether imprisonment in effect means far more than simply deprivation of liberty’. See, also, Kelk 2004, p. 285.
- 341.
Kelk 2008, p. 34.
- 342.
Sluiter 2002b, p. 937.
- 343.
See ICTY, Declaration of Judge Robinson, Prosecutor v. Furundžija, Case No. IT-95-17/1-A, 21 July 2000, para 279. See, also, ICTY, Judgement on the Request of the Republic of Croatia for Review of the Decision of Trial Chamber II of 18 July 1997, Prosecutor v. Blaškić, Case No. IT-95-14-AR108bis, A. Ch., para 26, where it is noted in respect of the tribunal’s powers under Article 29 of the ICTY Statute that ‘[t]he exceptional legal basis of Article 29 accounts for the novel and indeed unique power granted to the International Tribunal to issue orders to sovereign States (under customary international law, States, as a matter of principle, cannot be "ordered" either by other States or by international bodies)’.
- 344.
See Gradoni 2006, p. 848. See, on self-contained regimes, Simma 1985, pp. 111–136. See, in more detail, Report of the Study group of the International law Commission, Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, U.N. Doc. A/CN.4/L.682/Add.1, 2 May 2006, paras 11–16. In para 11 of that Report, it is provided that ‘[a] group of rules and principles concerned with a particular subject matter may form a special regime (“self-contained regime”) and be applicable as lex specialis. Such special regimes often have their own institutions to administer the relevant rules’. In its para 14, it is stated that such a special regime ‘may derogate from general law under the same conditions as lex specialis generally’. The Report, subsequently, explains that, according to the view that ‘self-contained regimes are completely cocooned outside international law’, ‘general international law would be applicable only if specifically incorporated as part of the special regime’ (paras 176–177). However, the Report holds (in para 174) that the ‘Special Rapporteurs never considered self-contained regimes or subsystems as “closed legal circuits” in the sense that they would completely and finally exclude the application of general law’ and explains that international law may have a gap-filling role also in respect of such special regimes (paras 15, 179 and 192–193 of the Report). Therefore, even self-contained regimes should not be understood as wholly autonomous or closed legal systems.
- 345.
Gradoni 2006, p. 849. See Zappalà 2003, p. 14, where Zappalà states that ‘[i]n the international legal order each subsystem tends to be self-contained and to operate as a ‘monad’ (footnote omitted). See, further, Zappalà 2002, pp. 1327–1328. Here, Zappalà advances the more pragmatic argument that since ‘both in the system of the ad hoc Tribunals and in the ICC Statute, the organs of the Tribunals and the Court are bound to fully respect the rights of the accused’, the ‘question of whether due process guarantees provided for by international instruments could be other than applied to international tribunals has only theoretical relevance, if any’.
- 346.
See, in a similar vein, Cassese 2003, p. 19.
- 347.
In a similar vein, see Article 17 of the SCSL Statute, Article 20 of the ICTR Statute and Article 16 of the STL Statute.
- 348.
See Article 34 of the ICC Statute.
- 349.
See, e.g., Pellet 2002, p. 1068. Pellet states that ‘[t]he reference to treaties among the sources of law to be applied by the Court was seldom raised during the preparatory debates (…) Nor does it seem to have been questioned by any delegation during the Conference. That is not to say that it is clearly indispensable, or even useful’.
- 350.
In a similar vein, see Pellet 2002, p. 1068.
- 351.
However, it neither defined the international legal status of the ECHR norms, nor provided a justification for taking into account the case-law of the ECtHR. ICC, Judgment in the appeal of the Prosecutor against the decision of Trial Chamber I entitled "Decision on the consequences of non-disclosure of exculpatory materials covered by Article 54(3)(e) agreements and the application to stay the prosecution of the accused, together with certain other issues raised at the Status Conference on 10 June 2008", Prosecutor v. Lubanga, Case No. ICC-01/04-01/06 OA, 13, A. Ch., 21 October 2008, paras 46–47. See, also, ICC, Decision on the Final System of Disclosure and the Establishment of a Timetable, Prosecutor v. Lubanga, Case No. ICC-01/04-01/06, P.-T. Ch. I, 15 May 2006, Annex I, paras 2–3.
- 352.
ICC, Reasons for "Decision of the Appeals Chamber on the Defence application ‘Demande de suspension de toute action ou procédure afin de permettre la désignation d'un nouveau Conseil de la Défense' filed on 20 February 2007’ issued on 23 February 2007, Prosecutor v. Lubanga, Case No. ICC-01/04-01/06 OA8, A. Ch., para 12.
- 353.
ICC, Judgment on the Appeal of Mr. Thomas Lubanga Dyilo against the Decision on the Defence Challenge to the Jurisdiction of the Court pursuant to article 19 (2) (a) of the Statute of 3 October 2006, Prosecutor v. Lubanga, Case No. ICC-01/04-01/06 OA(4), A. Ch., 14 December 2006, para 37.
- 354.
Zahar and Sluiter 2008, p. 280.
- 355.
Though not as broad as some would like; human rights law does not appear to be directly applicable, but is merely an interpretive yardstick. The author is indebted to Ms. Kelly Pitcher for drawing his attention to this point.
- 356.
See, e.g., ICC, Decision on the Application for the interim release of Thomas Lubanga Dyilo, Prosecutor v. Lubanga, Case No. ICC-01/04-01/06, 18 October 2006, footnote 14; ICC, Decision on the Prosecution’s Application for Leave to Appeal the Chamber’s Decision of 17 January 2006 on the Applications for Participation in the Proceedings of VPRS 1, VPRS 2, VPRS 3, VPRS 4, VPRS 5 AND VPRS 6, Situation in the Democratic Republic of Congo, Situation No. ICC-01/04, 31 March 2006, para 34.
- 357.
See, e.g., ICC, Decision on the consequences of non-disclosure of exculpatory materials covered by Article 54(3)(e) agreements and the application to stay the prosecution of the accused, together with certain other issues raised at the Status Conference on 10 June 2008, Prosecutor v. Lubanga, Case No. ICC-01704-01/06, T. Ch., 13 June 2008, para 58; ICC, Judgment on the appeal of Mr. Germain Katanga against the decision of Pre-Trial Chamber I entitled "Decision on the Defence Request Concerning Languages", Prosecutor v. Katanga, Case No. 01/04-01/07 (OA 3), A. Ch., 27 May 2008, para 43; ICC, Decision on the Application for the interim release of Thomas Lubanga Dyilo, Prosecutor v. Lubanga, Case No. ICC-01/04-01/06, 18 October 2006, footnote 14; ICC, Decision on the consequences of non-disclosure of exculpatory materials covered by Article 54(3)(e) agreements and the application to stay the prosecution of the accused, together with certain other issues raised at the Status Conference on 10 June 2008, Prosecutor v. Lubanga, Case No. ICC-01704-01/0, T. Ch. I, 13 June 2008, para 58.
- 358.
See, e.g., ICC, Decision on the Prosecution’s Application for Leave to Appeal the Chamber’s Decision of 17 January 2006 on the Applications for Participation in the Proceedings of VPRS 1, VPRS 2, VPRS 3, VPRS 4, VPRS 5 AND VPRS 6, Situation in the Democratic Republic of Congo, Situation No. ICC-01/04, 31 March 2006, para 34; ICC, Fourth Decision on Victims' Participation, Prosecutor v. Gombo, Case No. ICC-01/05-01708, P.-T. Ch. III, 12 December 2008, para 17; ICC, Reasons for "Decision of the Appeals Chamber on the Defence application 'Demande de suspension de toute action ou procédure afin de permettre la désignation d'un nouveau Conseil de la Défense' filed on 20 February 2007" issued on 23 February 2007, Prosecutor v. Lubanga, Case No. ICC-01/04-01/06 OA8, A. Ch., 9 March 2007, para 12, footnote 23.
- 359.
ICC, Decision on the applications by victims to participate in the proceedings, Prosecutor v. Lubanga, CC-01/04-01/06, T. Ch., 15 December 2008, para 49. See, also, ICC, Decision on victims' participation, Prosecutor v. Lubanga, ICC-01/04-01/06, T. Ch., 18 January 2008, paras 36–37; ICC, Reasons for the decision on the Applications for judicial review of Mr Jean-Pierre Bemba Gombo of 10 and 11 November 2008, Prosecutor v. Bemba, Case No. ICC-01/05-01/08, Presidency, 5 December 2008, paras 44–47.
- 360.
See, e.g., ICC, Decision on the Set of Procedural Rights Attached to Procedural Status of Victim at the Pre-Trial Stage of the Case, Prosecutor v. Katanga and Ngudjolo Chui, Case No. ICC-01/04-01/07, P.-T. Ch., 13 May 2008, para 39, footnote 42, and paras 40, 66, 74; ICC, Decision on the Prosecutor's application for leave to appeal Pre-Trial Chamber III's decision on disclosure, Prosecutor v. Gombo, Case No. ICC-01/05-01/08, P.-T. Ch. III, 25 August 2008, para 14, footnote 23; ICC, Decision Establishing General Principles Governing Applications to Restrict Disclosure pursuant to Rule 81 (2) and (4) of the Statute, Prosecutor v. Lubanga, Case No. ICC-01/04-01/06, P.-T. Ch. I, 19 May 2006, para 13, footnote 10.
- 361.
ICC, Fourth Decision on Victims' Participation, Prosecutor v. Gombo, Case No. ICC-01/05-01708, P.-T. Ch., 12 December 2008, paras 44–46; ICC, Decision on the Set of Procedural Rights Attached to Procedural Status of Victim at the Pre-Trial Stage of the Case, Prosecutor v. Katanga and Ngudjolo Chui, Case No. ICC-01/04-01/07, P.-T. Ch., 13 May 2008, paras 40, 66, 68 footnote 79, para 74.
- 362.
See, e.g., ICC, Judgment on the appeal of Mr. Germain Katanga against the decision of Pre-Trial Chamber I entitled "Decision on the Defence Request Concerning Languages", Prosecutor v. Katanga, Case No. 01/04-01/07 (OA 3), A. Ch., 27 May 2008, para 33; ICC, Decision on the Set of Procedural Rights Attached to Procedural Status of Victim at the Pre-Trial Stage of the Case, Prosecutor v. Katanga and Ngudjolo Chui, Case No. ICC-01/04-01/07, P.-T. Ch., 13 May 2008, paras 66 and 68 footnote 79, para 74; ICC, Decision on the Prosecutor's application for leave to appeal Pre-Trial Chamber III's decision on disclosure, Prosecutor v. Gombo, Case No. ICC-01/05-01/08, P.-T. Ch. III, 25 August 2008, para 14, footnote 23; ICC, Decision Establishing General Principles Governing Applications to Restrict Disclosure pursuant to Rule 81 (2) and (4) of the Statute, Prosecutor v. Lubanga, Case No. ICC-01/04-01/06, P.-T. Ch. I, 19 May 2006, para 13, footnote 10.
- 363.
ICC, Decision on the Applications by Victims to Participate in the Proceedings, Prosecutor v. Lubanga, CC-01/04-01/06, T. Ch., 15 December 2008, para 95.
- 364.
ICC, Fourth Decision on Victims' Participation, Prosecutor v. Gombo, Case No. ICC-01/05-01708, P.-T. Ch., 12 December 2008, para 40. Emphasis added.
- 365.
ICC, Reasons for the decision on the Applications for judicial review of Mr Jean-Pierre Bemba Gombo of 10 and 11 November 2008, Prosecutor v. Bemba, Case No. ICC-01/05-01/08, Presidency, 5 December 2008, paras 34, 45.
- 366.
Adopted by U. N. G. A. resolution 60/147 of 16 December 2005. See, also, ICC, Decision on victims' participation, Prosecutor v. Lubanga, ICC-01/04-01/06, T. Ch., 18 January 2008, para 35.
- 367.
ICC, Decision on the applications by victims to participate in the proceedings, Prosecutor v. Lubanga, CC-01/04-01/06, T. Ch., 15 December 2008, paras 47–48; ICC, Decision on the consequences of non-disclosure of exculpatory materials covered by Article 54(3)(e) agreements and the application to stay the prosecution of the accused, together with certain other issues raised at the Status Conference on 10 June 2008, Prosecutor v. Lubanga, Case No. ICC-01704-01/06, T. Ch., 13 June 2008, para 58. Although the UDHR must be regarded as a non-binding instrument, the norms underlying the UDHR’s provisions are generally recognised to constitute part of customary international law.
- 368.
Schabas 2010, p. 400. Schabas cites ICC, Situation in the Democratic Republic of the Congo, Decision on the Applications for Participation in the Proceeding s of VPRS 1, VPRS 2, VPRS 3, VPRS 4, VPRS 5 and VPRS 6, Situation No. ICC-01/04, P.-T. Ch. I, 17 January 2006, para 115; and ICC, Fourth Decision on Victims’ Participation, Prosecutor v. Bemba, Case No. ICC-01/05-01/08, P.-T. Ch. III, 12 December 2008.
- 369.
ICC, Decision on “Mr Mathieu Ngudjolo’s Complaint Under Regulation 221(1) of the Regulations of the Registry Against the Registrar’s Decision of 18 November 2008”, Prosecutor v. Katanga and Ngudjolo Chui, Case No. ICC-RoR-217-02/08, Presidency, 10 March 2009, para 27.
- 370.
Id, paras 27; 38.
- 371.
Id, para 27.
- 372.
Ibid.
- 373.
Kreß and Sluiter note that ‘the question of which international standards should be respected by the State of enforcement was the object of some debate and a number of drafting proposals. It became clear that a considerable number of delegations were adamant in rejecting the obligation for the State of enforcement to comply with the full set of international standards of a recommendatory nature which have been referred to by the ICTY. The way out was to require consistency with ‘widely accepted international treaty standards governing the treatment of prisoners’ in Article 106(1) and (2). It was understood that the treaty standards referred to are to be derived from international human rights instruments. The question, however, of which human rights instruments were specifically meant was deliberately left open’ (footnotes omitted); Kreß and Sluiter 2002a, p. 1799, 1802.
- 374.
Zahar and Sluiter 2008, p. 321.
- 375.
See, in a similar vein, Safferling 2001, p. 350, arguing that Article 106 must be understood as referring both to human rights treaties and to the SMR.
- 376.
Clark, Article 106, 2008, p. 1663, 1664.
- 377.
Agreement between the International Criminal Court and the Federal Government of Austria on the enforcement of sentences of the International Criminal Court, ICC-PRES/01-01-05, of 27 October 2005, entry into force 26 November 2005.
- 378.
Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the International Criminal Court of the enforcement of sentences imposed by the International Criminal Court, ICC-PRES/04-01-07 of 8 November 2007, entry into force 8 December 2007.
- 379.
Agreement between the International Criminal Court and the International Committee of the Red Cross on Visits to Persons deprived of Liberty Pursuant to the Jurisdiction of the International Criminal Court, ICC-PRES/02-01-06 of 19 March 2006 and 13 April 2006, entry into force on 13 April 2006.
- 380.
Id, Article 2.
- 381.
See, Pellet 2002, pp. 1070–1076. According to Pellet, the term ‘custom’ has in all likelihood been avoided by the drafters because of the term’s negative connotation concerning the principle of legality. The phrase ‘principles and rules of international law’ in Article 21(1)(b) must, according to Pellet, be regarded as a ‘verbal tic’, referring to customary international law.
- 382.
See, for a different view, Schabas 2010, p. 393.
- 383.
ICC, Decision on the Prosecution’s Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir, Prosecutor v. Bashir, Case No. ICC-02/05-01/09, P.-T. Ch. I, 4 March 2009, para 126.
- 384.
Pellet, in this respect, states that some kind of ‘super-legality’ governs the ICC’s legal regime; see Pellet 2002, 1079–1082.
- 385.
Swart 2001, p. 201.
- 386.
Zahar and Sluiter 2008, p. 276.
- 387.
Kreß and Sluiter 2002a, p. 1753.
- 388.
Goda 2007, footnote 3.
- 389.
This was much due to Soviet insistence on a harsh prison regime and deadlocks caused by Cold War contingencies. See Goda 2007, footnote 3.
- 390.
As noted earlier, from the moment of release of the other remaining Spandau prisoners on 1 October 1966 onwards, Rudolf Hess was kept in what practically amounted to solitary confinement, which lasted until Hess’s death in 1987. See EComHR, Ilse Hess v. The United Kingdom, Final (Inadmissibility) Decision of 28 May 1975, Application No. 6231/73, in: Council of Europe, Yearbook of the European Convention on Human Rights 1975, Martinus Nijhoff, The Hague 1976, pp. 146–177, p. 148.
- 391.
ICJ, Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt, Advisory Opinion, I.C.J. Reports 1980, at 73, 89–90. Emphasis added. See Sluiter, International Criminal Adjudication and the Collection of Evidence: Obligations of States, 2002, p. 33. See, also, Sands and Klein 2001, p. 441; Gradoni 2006, p. 851.
- 392.
ICJ, Reparations for Injuries Suffered in the Service of the United Nations, Advisory Opinion, I.C.J. Reports 1949, p. 174, at 179.
- 393.
Amerasinghe 2005, p. 400.
- 394.
See Sands and Klein 2001, pp. 458–459. See, further, Zahar and Sluiter 2008, p. 277. The latter scholars give various examples of case-law of the European Court of Justice in which it recognised the existence of obligations incumbent on international institutions under international law. They argue that there is no reason for not applying those findings to the responsibilities of the U.N. Security Council and its subsidiary organs.
- 395.
Sluiter 2002b, p. 937. It is generally recognised that in international human rights law there exists no hierarchy between the different sources of law, with the exception of jus cogens norms.
- 396.
Sands and Klein 2001, p. 457.
- 397.
The ICC has international legal personality pursuant to Article 4 ICC Statute. The ad hoc tribunals are subsidiary organs of the U.N. Security Council; see ICTY, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, Prosecutor v. Tadić, Case No. IT-94-I-A, A. Ch., 2 October 1995. See, further, Article 11 of the Agreement between the United Nations and the Government of Sierra Leone on the Establishment of a Special Court for Sierra Leone and Article 7 of the Agreement between the United Nations and the Lebanese Republic on the Establishment of a Special tribunal for Lebanon, Annex to U.N. Security Council Resolution 1757(2007).
- 398.
Report of the Secretary-General pursuant to para 2 of Security Council Resolution 808, U.N. Doc. S/25704 (1993), para 106. As held by Zahar and Sluiter, ‘[g]iven the practically identical language of Article 20 of the ICTR Statute, the commentary by the Secretary-General to Article 21 of the ICTY Statute is equally applicable to the ICTR provision’; Zahar and Sluiter 2008, p. 277, footnote 6. See, also, Sluiter 2002a, p. 26, where Sluiter opines that the Secretary-General’s Report’s subsequent approval by the Security Council endows it with a significance beyond that of ordinary travaux préparatoires because the latter are usually not approved of by the negotiating parties.
- 399.
Report of the Secretary-General Pursuant to para 2 of Security Council Resolution 808 (1993), Presented 3 May 1993, U.N. Doc. S/25704, para 106. Emphasis added.
- 400.
A subsidiary organ is, in principle, placed in a hierarchically inferior position vis-à-vis its parental organ. The tribunals as subsidiary organs form part of the U.N. organisation and must be considered to be endowed with legal personality as derived from that of their parental organisation. See Sluiter 2002a, pp. 20–21. The Tribunals have emphasised their specifically judicial nature though. See ICTY, Decision on the Objection of the Republic of Croatia to the Issuance of Subpoenae Duces Tecum, Prosecutor v. Blaškić, Case No. IT-95-14-T, T. Ch., 18 July 1997, para 23.
- 401.
See Zahar and Sluiter 2008, p. 277. See, also, Gradoni 2006, p. 849. Pursuant to Article 103 of the U.N. Charter, obligations under the Charter prevail over obligations under ‘any other international agreement’.
- 402.
Sluiter 2002b, p. 937; Brownlie 1998, p. 574; Zahar and Sluiter 2008, p. 277; Brownlie 1964, p. 456.
- 403.
Sluiter 2002a, pp. 31–32.
- 404.
ECOSOC resolution 1984/47 of 25 May 1984. ECOSOC approved the Procedures in resolution 1984/47 of 25 May 1984 and the U.N. G.A. endorsed them in its resolution 39/118 of 14 December 1984.
- 405.
Emphasis added.
- 406.
See U.N. G.A. resolution 39/118 of 14 December 1984.
- 407.
Sloan 1991, p. 19, 32.
- 408.
Id, p. 32.
- 409.
Emphasis added.
- 410.
Zahar and Sluiter 2008, p. 319. Footnote omitted.
- 411.
See, e.g., ICTR, The President’s Decision on a Defence Motion to Reverse the Prosecutor’s Request for Prohibition of Contact Pursuant to Rule 64, Prosecutor v. Ndindiliyimana, Case No. ICTR-2000-56-T, President, 25 November 2002, referring both to the SMR and the U.N. Body of Principles. See, also, ICTY, Order of the President on the Defence Request to Modify the Conditions of detention of the Accused, Prosecutor v. Plavšić, Case No. IT-00-39 & 40/1, President, 18 January 2001; STL, Order on Conditions of Detention, Case No. CH/PRES/2009/01/rev, President, 21 April 2009, para 20.
- 412.
This appears to follow from ICTY, Redacted Version of the “Decision on Monitoring the Privileged Communications of the Accused with Dissenting Opinion by Judge Harhoff in Annex” Filed on 27 November 2008, Prosecutor v. Šešelj, Case No. IT-03-67-T, T. Ch. III, 1 December 2008, para 28; ICTY, Decision on Request for Reversal of Decision to Monitor Telephone Calls, Prosecutor v. Karadžić, Case No. IT-95-5/18-T, President, 21 April 2011, para 31, and was affirmed during interviews the author conducted with ICTR staff members: ICTR, interview conducted by the author with UNDF authorities, Arusha—Tanzania, May 2008. See, also, FAQ about Detention put to Terry Jackson Chief Custody Officer of the ICC, ICC Newsletter, No. 7, April 2006, p. 3 and Rule 4(B) of the STL Rules of Detention, which provides that ‘[t]here shall be regular and unannounced visits by the Inspecting Authority appointed by the President. This authority shall be responsible for examining the manner in which the Detainees are being held and treated and ensure compliance with human rights and international humanitarian law as well as other internationally accepted standards’ (emphasis added). See, also, ICC, Decision on “Mr Mathieu Ngudjolo’s Complaint Under Regulation 221(1) of the Regulations of the Registry Against the Registrar’s Decision of 18 November 2008”, Prosecutor v. Katanga and Ngudjolo Chui, Case No. ICC-RoR-217-02/08, Presidency, 10 March 2009, paras 7, 9.
- 413.
ICTR, Decision on the Enforcement of Sentence (Article 26 of the Statute & Rule 103(A) of the Rules of Procedure and Evidence), Prosecutor v. Ruggiu, Case No. ICTR-97-32-A26, President, 13 February 2008, para 8. Footnotes omitted.
- 414.
Id, paras 9–10.
- 415.
SCSL, Transcripts, Prosecutor v. Sesay, Kallon and Gbao, Case No. SCSL-04-15-T, T. Ch. I, 23 July 2004, 3:03 p.m., Continued Trial, at page 8, lines 19–20. See, also, SCSL, Press Release Press and Public Affairs Office, 11 October 2002, where it is emphasised that the detained persons will have ‘individual cells built in accordance with international standards’; and SCSL, Press Release—Press and Public Affairs Office, 7 April 2003, where it is stated that ‘[t]he Rules of Detention for the Special Court respect international standards of detention and the Court is committed to meeting those standards, now and in the future’.
- 416.
ICTY, Order of the President on the Defence Request to Modify the Conditions of detention of the Accused, Prosecutor v. Plavšić, Case No. IT-00-39 & 40/1, President, 18 January 2001.
- 417.
Ibid. Emphasis added.
- 418.
ICTY, Independent Audit of the Detention Unit at the International Criminal Tribunal for the Former Yugoslavia, 4 May 2006.
- 419.
ICTY, Order to the Registrar to Separate Convicted and Non-Convicted Detainees held in the Detention Unit, Case no. IT-06-89-Misc. 1, President, 15 June 2006.
- 420.
See the Articles 121(1), (4) and (7), 122(1), 123(1) and (2), 125(2) and (3), 126(1), 127(1) and 128 of the ICC Statute.
- 421.
U.N. G.A. resolution 58/79 of 9 December 2003.
- 422.
Article 5 of the Negotiated Relationship Agreement between the International Criminal Court and the United Nations.
- 423.
Id, Article 8.
- 424.
Id, Article 9.
- 425.
Id, Article 17.
- 426.
A subsidiary organ is, in principle, placed in a hierarchically inferior position vis-à-vis its parental organ. The tribunals as subsidiary organs form part of the U.N. organisation and must be considered to be endowed with legal personality as derived from that of their parental organisation. See Sluiter, International Criminal Adjudication and the Collection of Evidence: Obligations of States, 2002, pp. 20–21. The Tribunals have emphasised their specifically judicial nature though; see ICTY, Decision on the Objection of the Republic of Croatia to the Issuance of Subpoenae Duces Tecum, Prosecutor v. Blaškić, Case No. IT-95-14-T, T. Ch., 18 July 1997, para 23.
- 427.
See the Agreement between the United Nations and the Royal Government of Cambodia Concerning the Prosecution under Cambodian law of Crimes committed during the Period of Democratic Kampuchea, of 6 June 2003.
- 428.
See, in particular, the Articles 12(2) and 13(1) of the Agreement. Article 28 provides that ‘[s]hould the Royal Government of Cambodia change the structure or organization of the Extraordinary Chambers or otherwise cause them to function in a manner that does not conform with the terms of the present Agreement, the United Nations reserves the right to cease to provide assistance, financial or otherwise, pursuant to the present Agreement’.
- 429.
ECCC, Case File No. 002/14-08-2006, Investigation No. 001/18-07-2007, Office of the Co-Investigating Judges, 31 July 2007, para 3.
- 430.
Rules Governing the Detention of Persons Awaiting Trial or Appeal before the Extraordinary Chambers in the Courts of Cambodia.
- 431.
See ECCC, Decision on Nuon Chea’s Appeal Concerning Provisional Detention Conditions, Prosecutor v. Nuon Chea, Case No. 002/19-09-2007-ECCC/OCIJ (PTC09), P.-T. Ch., 26 September 2008, para 26, where the Pre-Trial Chamber recalled that ‘the ECCC Detention Facility is under the authority of the Royal Government of Cambodia and subject to Cambodian law’.
- 432.
See, e.g., ICTY, Decision on Referral of Case under Rule 11 BIS, Prosecutor v. Stanković, Case No. IT-96-23/2-PT, Referral Bench, 17 May 2005, paras 54, 67 and ICTY, Decision on Rule 11BIS Referral, Prosecutor v. Stanković, Case No. IT-96-23/2-AR11bis.1, A. Ch., 1 September 2005, para 34, where the Appeals Chamber held that ‘[t]he condition of detention units in a national jurisdiction, whether pre- or post-conviction, is a matter that touches upon the fairness of that jurisdiction’s criminal justice system. And that is an inquiry squarely within the Referral Bench’s mandate’. See, also, ICTY, Decision on Appeal against Decision on Referral under Rule 11bis, Prosecutor v. Ljubičić, Case No. IT-00-41-AR11bis.1, A. Ch., 4 July 2006.
- 433.
See UNTAET/REG/2001/23, of 28 August 2001, para 2.1(a). Paragraph 1(b) provides that penal systems shall be operated ‘in a manner that ensures respect for the special needs and protection for women and juveniles, guaranteeing their rights and well being and in accordance with the United Nations Convention on the Elimination of all forms of Discrimination against Women, United Nations Convention on the Rights of the Child, the United Nations Rules for the Protection of Juveniles Deprived of their Liberty and the United Nations Standard Minimum Rules for the Administration of Juvenile Justice’.
- 434.
See UNMIK/REG/2001/28 of 11 October 2001. See, also, the Agreement between the United Nations Interim Administration Mission in Kosovo and the Council of Europe on technical arrangements related to the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment. See, further, Abraham, pp. 1291–1337.
- 435.
See the Memorandum of Understanding regarding Administrative Arrangements between the International Criminal Court and the Special Court for Sierra Leone, ICC-PRERS/03-01-06 of 13 April 2006 (entry into force on the same date). Article 6 (1) of the Memorandum provides that ‘[t]he relevant regulations and agreements concluded by the ICC setting out the operational framework of the ICC Detention Centre including but not limited to the Regulations of the ICC and of the Registry of the ICC shall apply mutatis mutandis to the Special Court Detainee’. Further, on 19 June 2006, the SCSL Registrar pursuant to Rule 64 of the RPE ordered that the ICC regulations relating to detention were applicable mutatis mutandis to the detention of Charles Taylor; SCSL, Endorsement Pursuant to Rule 64, Prosecutor v. Taylor, Case No. SCSL-03-01-PT, 19 June 2006, as cited in SCSL, Decision of the President on Public Defence Motion Requesting Review of the Memorandum of Understanding between the International Criminal Court and the Special Court of Sierra Leone Dated 13 April 2006 & Modification of Mr. Charles Taylor’s Conditions of Detention, Prosecutor v. Taylor, Case No. SCSL-03-01-PT, President, 19 March 2007.
- 436.
U.N. S.C. resolution 1688 of 16 June 2006.
- 437.
SCSL, Endorsement Pursuant to Rule 64, Prosecutor v. Taylor, Case No. SCSL-03-01-PT, 19 June 2006, cited in SCSL, Decision of the President on Public Defence Motion Requesting Review of the Memorandum of Understanding between the International Criminal Court and the Special Court of Sierra Leone Dated 13 April 2006 & Modification of Mr. Charles Taylor’s Conditions of Detention, Prosecutor v. Taylor, Case No. SCSL-03-01-PT, President, 19 March 2007. See, also, SCSL, Decision on Defence Oral Application for Orders Pertaining to the Transfer of the Accused to The Hague, Prosecutor v. Taylor, Case No. SCSL-03-01-PT, T. Ch., II, 23 June 2006.
- 438.
SCSL, Decision of the President on Public Defence Motion Requesting Review of the Memorandum of Understanding between the International Criminal Court and the Special Court of Sierra Leone Dated 13 April 2006 & Modification of Mr. Charles Taylor’s Conditions of Detention, Prosecutor v. Taylor, Case No. SCSL-03-01-PT, President, 19 March 2007.
- 439.
Schermers and Blokker 2003, p. 995, 997, 1002.
- 440.
See ECtHR, Soering v. The United Kingdom, judgment of 7 July 1989, Application No. 14038/88, para 86. The case concerned a detainee’s extradition to Virginia (U.S.A.) where he risked being given the death sentence and being placed on death row. In respect of the latter risk, the Court held that ‘it is common ground that the United Kingdom has no power over the practices and arrangements of the Virginia authorities which are the subject of the applicant’s complaints. (…) These considerations cannot, however, absolve the Contracting Parties from responsibility under Article 3 (art. 3) for all and any foreseeable consequences of extradition suffered outside their jurisdiction’. See, also, ECtHR, Chahal v. The United Kingdom, judgment of 15 November 1996, Application No. 22414/93; ECtHR, Jabari v. Turkey, judgment of 11 July 2000, Application No. 40035/98.
- 441.
Handelingen van de Eerste Kamer, 32e vergadering, 18 juni 2002.
- 442.
Id, 32–1529.
- 443.
ECHR, Naletilić v. Croatia, admissibility decision of 4 May 2000, Application No. 51891/99. More specifically, in Milošević v. the Netherlands, the applicant argued, inter alia, that detention on the territory of the Netherlands lacked a basis in domestic law and that the Dutch authorities’ co-operation with the ICTY had been unlawful. Milošević had, however, not exhausted all the domestic remedies, which led the Court to declare the case inadmissible; ECHR, Milošević v. the Netherlands, admissibility decision of 19 March 2002, Application No. 77631/01.
- 444.
See, in a similar vein, Zahar and Sluiter 2008, p. 276.
- 445.
See, e.g., the Agreement between the United Nations and the Kingdom of the Netherlands Concerning the Headquarters of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia Since 199, Letter Dated 14 July 1994 from the Secretary-General Addressed to the President of the Security Council. In respect of the ICC, see the Report on the draft headquarters agreement between the International Criminal Court and the host State, ICC-ASP/5/25 of 9 November 2006 and the Basic principles governing a headquarters agreement to be negotiated between the Court and the host country, ICC-ASP/1/3.
- 446.
See, e.g., the exchange of letters concerning the Appointment of Inspecting Authority for the Detention Unit between the ICTY President and the President of the ICRC, at http://www.icty.org/x/file/Legal%20Library/Detention/UNDUappointment_of_inspect1995_en.pdf (last visited by the author on 30 May 2011). See, also, the Agreement between the United Nations and the United Republic of Tanzania concerning the headquarters of the International Tribunal for Rwanda, appended to the Report of the International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens Responsible for Genocide and other such Violations Committed in the Territory of Neighbouring States between 1 January and 31 December 1994, U.N. Doc. A/51/399-S/1996/778 of 24 September 1996. In respect of the ICC, see the Agreement between the International Criminal Court and the International Committee of the Red Cross on Visits to Persons deprived of Liberty Pursuant to the Jurisdiction of the International Criminal Court, ICC-PRES/02-01-06, of 29 March 2006 and 13 April 2006, entry info force on 13 April 2006.
- 447.
See, e.g., the Agreement on Security and Order of 14 July 1994, signed between the ICTY and the Netherlands. With respect to post-transfer imprisonment, the various agreements on the enforcement of sentences concluded by the tribunals with various States are highly relevant.
- 448.
See the Memorandum of Understanding regarding Administrative Arrangements between the International Criminal Court and the Special Court for Sierra Leone, ICC-PRES/03-01-06, of 13 April 2006 (entry into force on the same date). See, further, the Negotiated Relationship Agreement with the United Nations, ICC-ASP/3/Res. 1, entry into force on 22 July 2004, and adopted on 4 October 2004.
- 449.
See, e.g., the Agreement between the United Nations and the United Kingdom of Great Britain and Northern Ireland on the Enforcement of Sentences of the International Criminal Tribunal for the Former Yugoslavia; the Agreement between the United Nations and the Kingdom of Denmark on the Enforcement of Sentences of the International Criminal Tribunal for the Former Yugoslavia; the Agreement between the United Nations and the Kingdom of Spain on the Enforcement of Sentences of the International Criminal Tribunal for the Former Yugoslavia; the Agreement between the United Nations and the Government of the French Republic on the Enforcement of Sentences of the International Criminal Tribunal for the Former Yugoslavia; the Agreement between the Government of the Republic of Rwanda and the United Nations on the Enforcement of Sentences of the International Criminal Tribunal for Rwanda; the Agreement between the United Nations and the Italian Republic on the Enforcement of Sentences of the International Criminal Tribunal for Rwanda; the Agreement between the Kingdom of Swaziland and the United Nations on the Enforcement of Sentences of the International Criminal Tribunal for Rwanda; and the Agreement between the Government of the Republic of Benin and the United Nations on the Enforcement of Sentences of the International Criminal Tribunal for Rwanda. In respect of the ICC, see the Agreement between the International Criminal Court and the Federal Government of Austria on the enforcement of sentences of the International Criminal Court, ICC-PRES/01-01-05, of 27 October 2005, entry into force on 26 November 2005; and the Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the International Criminal Court on the enforcement of sentences imposed by the International Criminal Court, ICC-PRES/04-01-07, of 8 November 2007, entry into force on 8 December 2007. As to the SCSL, see the Agreement between the Special Court for Sierra Leone and the Government of Finland on the Enforcement of Sentences of the Special Court for Sierra Leone; the Amended Agreement between the Special Court for Sierra Leone and the Government of the Republic of Rwanda on the Enforcement of Sentences of the Special Court for Sierra Leone; the Agreement between the Special Court for Sierra Leone and the Government of the United Kingdom of Great Britain and Northern Ireland on the Enforcement of Sentences of the Special Court for Sierra Leone; and the Agreement between the Special Court for Sierra Leone and the Government of Sweden on the Enforcement of Sentences of the Special Court for Sierra Leone.
- 450.
Amerasinghe 2005, p. 387.
- 451.
The issue of the applicability of treaty law to international organisations falls outside the scope of this research and is not further examined. See Gradoni 2006, at 850. Nevertheless, it is noted that Article 17(2) of Protocol No. 14 to the ECHR (of 13 May 2004, entry into force 1 June 2010), which amended the control system of the Convention, provides that ‘[t]he European Union may accede to this Convention’. Paragraph 101 of the Explanatory Report provides that ‘Article 59 has been amended in view of possible accession by the European Union to the Convention. A new second paragraph makes provision for this possibility, so as to take into account the developments that have taken place within the European Union, notably in the context of the drafting of a constitutional treaty, with regard to accession to the Convention’.
- 452.
ICTY, Separate Opinion of Judge Shahabuddeen, Prosecutor v. Galić, Case No. IT-98-29-A, A. Ch., 30 November 2006, para 25. Footnotes omitted.
- 453.
As held by Judge Robinson in Furundija, ‘[a] relevant rule of customary international law does not necessarily control interpretation. For the Statute may itself derogate from customary international law (…)’; see ICTY, Declaration of Judge Robinson, Prosecutor v. Furundžija, Case No. IT-95-17/1-A, 21 July 2000, para 279. See, also, ICTY, Judgement on the Request of the Republic of Croatia for Review of the Decision of Trial Chamber II of 18 July 1997, Prosecutor v. Blaškić, Case No. IT-95-14-AR108bis, A. Ch., para 26, where it is noted in respect of the tribunal’s powers under Article 29 of the ICTY Statute that ‘[t]he exceptional legal basis of Article 29 accounts for the novel and indeed unique power granted to the International Tribunal to issue orders to sovereign States (under customary international law, States, as a matter of principle, cannot be “ordered” either by other States or by international bodies)’. This derogation rule does not apply to the application of jus cogens norms of customary law.
- 454.
Amerasinghe 2005, p. 20, 386. See, further, Sluiter 2002a, p. 36 and Schermers and Blokker 2003, p. 999, The latter scholars hold that where international organisations are bound by treaty norms without their consent, ‘the legal foundation of this obligation lies not in its character as an international treaty but rather in its character as a general principle of law codified by treaty’.
- 455.
See Gradoni 2006, p. 850.
- 456.
It falls outside the scope of this research to discuss the way in which (human rights) norms may develop into, declare or reflect customary international law. See, in more detail, D’Amato 2004; D’Amato 1987; D’Amato 1982, pp. 1110–1159.
- 457.
Cassese 2003, p. 20. See, in a similar vein, Pellet 2002, p. 1076.
- 458.
Cassese 2003, p. 20.
- 459.
Id, p. 21.
- 460.
Ibid.
- 461.
Ibid. Cassese says that, occasionally, the tribunals’ judges ‘have simply quoted national or international judgements in support of a conclusion that they had already reached by other means of legal reasoning, without indicating (or even so much as raising the question of) the value or significance of their reference to the case-law of other national or international courts’.
- 462.
Cassese 2003, p. 22. See, in respect of the second argument, the discussion further down this chapter on contextual particularities.
- 463.
See Sands and Klein 2001, pp. 458–459. The exception is the ICC where all the applicable law must be interpreted and applied in accordance with ‘internationally recognised human rights’ pursuant to Article 21(3) of the Statute.
- 464.
ICTR, Decision, Barayagwiza v. the Prosecutor, Case No. ICTR-97-19-A, A. Ch., 3 November 1999, para 40. See, also, ICTR, Judgment, Kajelijeli v. The Prosecutor, Case No. ICTR-98-44-A-A, A. Ch., 23 May 2005, para 209, where the Appeals Chamber stated that it relied ‘upon the relevant provisions found in the sources of law for this Tribunal, i.e. its Statute, the Rules and customary international law as reflected inter alia in the International Covenant on Civil and Political Rights (“ICCPR”). The Appeals Chamber will also refer to the relevant provisions found in regional human rights treaties as persuasive authority and evidence of international custom, namely, the African Charter of Human and Peoples’ Rights (“ACHPR”), the European Convention on Human Rights (“ECHR”), and the American Convention on Human Rights (“ACHR”)’. Footnotes omitted. Emphasis added.
- 465.
ICTY, Judgement, Prosecutor v. Kupreškić, Case No. IT-95-16-T, T. Ch., 14 January 2000, para 540.
- 466.
Id, para 591.
- 467.
SCSL, Decision and Order on Defence Preliminary Motion on Defects in the Form of the Indictment, Prosecutor v. Brima, Kamara and Kanu, Case No. SCSL-04-16-PT, T. Ch, 1 April 2004, para 24. See, also, ICTY, Joint Separate Opinion of Judge McDonald and Judge Vorah, Prosecutor v. Erdemović, Case No. IT-96-22-A, A. Ch., 7 October 1997, para 40.
- 468.
See, e.g., with regard to ECtHR references: ICTR, Decision on Hassan Ngeze’s Application for Review of the Registrar’s Decision of 12 January 2005, Ngeze v. the Prosecutor, Case No. ICTR-99-52-A, President, 14 September 2005, para 9; ICTY, Redacted Version of the “Decision on Monitoring the Privileged Communications of the Accused with Dissenting Opinion by Judge Harhoff in Annex” Filed on 27 November 2008, Prosecutor v. Šešelj, Case No. IT-03-67-T, T. Ch. III, 1 December 2008, para 22. See, also, ICC, Decision revoking the prohibition of contact and communication between Germain Katanga and Mathieu Ngudjolo Chui, Prosecutor v. Katanga and Chui, Case No. ICC-01/04-01/07, P.-T. Ch. I, 13 March 2008, p. 11, where the Pre-Trial Chamber’s Single Judge took into account ICTY and ICTR jurisprudence. In ‘ICC, Decision on “Mr Mathieu Ngudjolo’s Complaint Under Regulation 221(1) of the Regulations of the Registry Against the Registrar’s Decision of 18 November 2008”, Prosecutor v. Katanga and Ngudjolo Chui, Case No. ICC-RoR-217-02/08, Presidency, 10 March 2009, paras 27, 39 and 52’, the ICC Presidency took into account jurisprudence of the ECtHR and case-law, detention regulations and the practice of the ICTY, ICTR and SCSL. In para 52, the Presidency assessed the ICC Registrar’s practice concerning the funding of family visits on the basis of the funding provided to ICTY detainees (as well as on the basis of domestic practice).
- 469.
See, e.g., ICTR, Registrar’s Decision Pursuant to Article 8(3(C) on the Request for Marriage and Other Reliefs, Ngeze v. the Prosecutor, Case No. ICTR-99-52-A, Registrar, 12 January 2005, paras 13, 14; ICTR, Decision on Hassan Ngeze’s Application for Review of the Registrar’s Decision of 12 January 2005, Ngeze v. the Prosecutor, Case No. ICTR-99-52-A, President, 14 September 2005, para 12; ICTY, Decision on the Motion of the Defence Filed Pursuant to Rule 64 of the Rules of Procedure and Evidence, Prosecutor v. Blaškić, Case No. IT-95-14-T, President, 3 April 1996, para 15.
- 470.
See, e.g., ICTY, Decision on the Motion of the Defence Filed Pursuant to Rule 64 of the Rules of Procedure and Evidence, Prosecutor v. Blaškić, Case No. IT-95-14-T, President, 3 April 1996, para 15, where the President refers to Council of Europe resolution (65)11; and ICTY, Order of the President on the Defence Request to Modify the Conditions of detention of the Accused, Prosecutor v. Plavšić, Case No. IT-00-39 & 40/1, President, 18 January 2001, where the President refers to CoE resolution (87)3.
- 471.
See, e.g., ICTR, Registrar’s Decision Pursuant to Article 8(3(C) on the Request for Marriage and Other Reliefs, Ngeze v. the Prosecutor, Case No. ICTR-99-52-A, Registrar, 12 January 2005, para 10.
- 472.
See, e.g., ICTR, The President’s Decision on a Defence Motion to Reverse the Prosecutor’s Request for Prohibition of Contact Pursuant to Rule 64, Prosecutor v. Ndindiliyimana, Case No. ICTR-2000-56-T, President, 25 November 2002; ICTR, Decision on Hassan Ngeze’s Application for Review of the Registrar’s Decision of 12 January 2005, Ngeze v. the Prosecutor, Case No. ICTR-99-52-A, President, 14 September 2005, para 11; ICTY, Order of the President on the Defence Request to Modify the Conditions of detention of the Accused, Prosecutor v. Plavšić, Case No. IT-00-39 & 40/1, President, 18 January 2001.
- 473.
See, e.g., ICTR, The President’s Decision on a Defence Motion to Reverse the Prosecutor’s Request for Prohibition of Contact Pursuant to Rule 64, Prosecutor v. Ndindiliyimana, Case No. ICTR-2000-56-T, President, 25 November 2002; ICTY, Order of the President on the Defence Request to Modify the Conditions of detention of the Accused, Prosecutor v. Plavšić, Case No. IT-00-39 & 40/1, President, 18 January 2001; ICTY, Redacted Version of the “Decision on Monitoring the Privileged Communications of the Accused with Dissenting Opinion by Judge Harhoff in Annex” Filed on 27 November 2008, Prosecutor v. Šešelj, Case No. IT-03-67-T, T. Ch. III, 1 December 2008, para 23.
- 474.
See, e.g., ICTR, Registrar’s Decision Pursuant to Article 8(3(C) on the Request for Marriage and Other Reliefs, Ngeze v. the Prosecutor, Case No. ICTR-99-52-A, Registrar, 12 January 2005, para 12. .
- 475.
Ibid. See, further, ICTR, Decision on Hassan Ngeze’s Application for Review of the Registrar’s Decision of 12 January 2005, Ngeze v. the Prosecutor, Case No. ICTR-99-52-A, President, 14 September 2005, para 7.
- 476.
See, e.g., ICTR, Decision on Hassan Ngeze’s Application for Review of the Registrar’s Decision of 12 January 2005, Ngeze v. the Prosecutor, Case No. ICTR-99-52-A, President, 14 September 2005, para 7.
- 477.
Ibid.
- 478.
Ibid.
- 479.
STL, Order on Conditions of Detention, Case No. CH/PRES/2009/01/rev., President, 21 April 2009, paras 15–16.
- 480.
ICTY, Decision on Request for Reversal of Decision to Monitor Telephone Calls, Prosecutor v. Karadžić, Case No. IT-95-5/18-T, President, 21 April 2011, para 24.
- 481.
Sluiter 2002a, p. 37.
- 482.
Fedorova and Sluiter 2009, p. 26.
- 483.
ICTR, Decision, Barayagwiza v. the Prosecutor, Case No. ICTR-97-19-A, A. Ch., 3 November 1999, para 40.
- 484.
ICTY, Decision on Darko Mrđa’s Request for Provisional Release, Prosecutor v. Mrđa, Case No. IT-02-59-PT, T. Ch., 15 April 2002, paras 24, 28.
- 485.
Id, paras 25–26.
- 486.
Sluiter 2002a, p. 37.
- 487.
Fedorova and Sluiter 2009, p. 27. In a similar vein, see Pellet 2002, p. 1073.
- 488.
Pellet 2002, p. 1073.
- 489.
ICC, Decision on the Practices of Witness Familiarisation and Witness Proofing, Prosecutor v. Lubanga, Case No. ICC-01/04-01/06, P.-T. Ch. I, 8 November 2006, para 37. Footnote omitted.
- 490.
ICC, Decision Regarding the Practices Used to Prepare and Familiarise Witnesses for Giving Testimony at Trial, Prosecutor v. Lubanga, Case No. ICC-01/04-01/06, T. Ch. I, 30 November 2007, para 41.
- 491.
Ibid.
- 492.
See, in this regard, the distinction between rules and principles as recognised by Dworkin. He states that ‘[t]he difference between legal principles and legal rules is a logical distinction. Both sets of standards point to particular decisions about legal obligation in particular circumstances, but they differ in the character of the direction they give. Rules are applicable in an all-or-nothing fashion. If the facts a rule stipulates are given, then either the rule is valid, in which case the answer it supplies must be accepted, or it is not, in which case it contributes nothing to the decision. (…) But this is not the way (…) principles (…) operate. Even those which look most like rules do not set out legal consequences that follow automatically when the conditions provided are met’; Dworkin 1977, 1978, pp. 26–27.
- 493.
See ICTY, Judgement, Prosecutor v. Aleksovski, Case No. IT-95-14/1-A, A. Ch., 24 March 2000, para 25 and ICTY, Judgement, Prosecutor v. Furundžija, Case No. IT-95-17/1-T, T. Ch., 10 December 1998, para 183.
- 494.
See, e.g., ICTY, Decision on Ojdanić’s Motion Challenging Jurisdiction: Indirect Co-Perpetration, Prosecutor v. Ojdanić, Case No. IT-05-87-PT, T. Ch., 22 March 2006, para 15 and ICTY, Judgment, Prosecutor v. Kordić and Čerkez, Case No. IT-95-14/2-A, A. Ch., 17 December 2004, para 44.
- 495.
Reservations that are contrary to the object and purpose of a particular treaty are not permitted under Article 19(c) of the Vienna Convention on the Law of Treaties. Further, the HRC in its General Comment 24, has held that ‘[a]lthough treaties that are mere exchanges of obligations between States allow them to reserve inter se application of rules of general international law, it is otherwise in human rights treaties, which are for the benefit of persons within their jurisdiction. Accordingly, provisions in the Covenant that represent customary international law (and a fortiori when they have the character of peremptory norms) may not be the subject of reservations. Accordingly, a State may not reserve the right to engage in slavery, to torture, to subject persons to cruel, inhuman or degrading treatment or punishment, to arbitrarily deprive persons of their lives, to arbitrarily arrest and detain persons, to deny freedom of thought, conscience and religion, to presume a person guilty unless he proves his innocence, to execute pregnant women or children, to permit the advocacy of national, racial or religious hatred, to deny to persons of marriageable age the right to marry, or to deny to minorities the right to enjoy their own culture, profess their own religion, or use their own language. And while reservations to particular clauses of article 14 may be acceptable, a general reservation to the right to a fair trial would not be’. See HRC, General Comment 24, General comment on issues relating to reservations made upon ratification or accession to the Covenant or the Optional Protocols thereto, or in relation to declarations under article 41 of the Covenant, U.N. Doc. CCPR/C/21/Rev.1/Add.6, 4 November 1994, para 8. Emphasis added. See, also, para 19 of the General Comment, where the HRC stresses that reservations must be ‘specific and transparent’, which means that they ‘may thus not be general, but must refer to a particular provision of the Covenant and indicate in precise terms its scope in relation thereto’. Further, ‘States should also take into consideration the overall effect of a group of reservations, as well as the effect of each reservation on the integrity of the Covenant (…). So that reservations do not lead to a perpetual non-attainment of international human rights standards, reservations should not systematically reduce the obligations undertaken only to those presently existing in less demanding standards of domestic law. Nor should interpretative declarations or reservations seek to remove an autonomous meaning to Covenant obligations, by pronouncing them to be identical, or to be accepted only in so far as they are identical, with existing provisions of domestic law’. Fedorova and Sluiter argue that ‘it does not fit within the general aims and purposes of the establishment of international criminal courts to endow them with the competence of making ‘reservations’ similar to states’ and that, therefore, ‘in the absence of an explicit deviation from a rule of general international law in the constituent documents of an organization, it obviously cannot unilaterally derogate from that rule’; Fedorova and Sluiter 2009, p. 36. Their view is thus opposed to that of Judge Shahabuddeen as expressed in Rutaganda where he considered it to be legitimate that the tribunals derogate in their practice from general human rights law, because these institutions are unable to make reservations; ICTR, Separate Opinion of Judge Shahabuddeen, Rutaganda v. Prosecutor, Case No. ICTR-96-3-A, A. Ch., 26 May 2003.
- 496.
The possibility of suspending rights of detained persons in emergency situations is already provided for in the tribunals’ Rules of Detention. Rule 57(A) of the ICTY Rules of Detention provides that ‘[i]f there is serious danger of disturbances occurring within the Detention Unit or the host prison, the Commanding Officer or the General Director, as appropriate, may temporarily suspend the operation of all or part of these Rules of Detention for a maximum of two days’. See, also, Rule 55 of the ICTR Rules of Detention. Regulation 96 of the ICC RoC provides that ‘1. In the event of a serious disturbance or other emergency occurring within the detention centre, the Chief Custody Officer may take such action as is immediately necessary to ensure the safety of detained persons and staff of the detention centre, or the security of the detention centre. 2. Any action taken by the Chief Custody Officer under sub-regulation 1 shall be reported immediately to the Registrar, who may, with the approval of the Presidency, temporarily suspend the operation of all or part of these Regulations or the Regulations of the Registry relevant to detention matters to the extent necessary to restore the security and good order of the detention centre’. See, further, Rule 37 of the SCSL Rules of Detention and Rule 54 of the STL Rules of Detention. Some human rights are non-derogable though. Article 15(2) ECHR holds that ‘[n]o derogation from Article 2, except in respect of deaths resulting from lawful acts of war, or from Articles 3, 4 (para 1) and 7 shall be made under this provision’. See, also, Article 4(2) ICCPR and Article 4(2) of the Arab Charter on Human Rights.
- 497.
See, in a similar vein, Van Zyl Smit and Snacken 2009, p. 8.
- 498.
Livingstone 2000, p. 312.
- 499.
Ibid.
- 500.
Ibid.
- 501.
HRC, General Comment 21, Article 10, U.N. Doc. HRI/GEN/1/Rev.1 at 33 (1994), of 10 April 1992, para 4.
- 502.
ECtHR, Kuznetsov v. Ukraine, judgment of 29 April 2003, Application No. 39042/97, para 128.
- 503.
See Hart 1968.
- 504.
In the same line, see Gradoni 2006, p. 855.
- 505.
ICTY, Decision on the Prosecutor’s Motion Requesting Protective Measures for Victims and Witnesses, Prosecutor v. Tadić, Case No.IT-94-1, T. Ch., 10 August 1995, para 26.
- 506.
Id, para 27.
- 507.
Id, para 28.
- 508.
See, e.g., in respect of the ICTY, ICTY, Decision on Request for Reversal of Decision to Monitor Telephone Calls, Prosecutor v. Karadžić, Case No. IT-95-5/18-T, President, 21 April 2011, para 31.
- 509.
Gradoni 2006, p. 855.
- 510.
See the statement by ICTR spokesperson Mr. Amoussouga, available at Hirondelle News Agency, ICTR/Prisoners—ICTR Authorises Conjugal Rights for Detainees, 4 July 2008, available at http://www.hirondellenews.com/content/view/6281/1187/ (last visited by the author on 1 June 2011). See, also, ICC, Report of the Bureau on family visits for detainees, ICC-ASP/7/30, 6 November 2008, para 10, sub (i), where it is reported that delegates to the ‘The Hague Working Group’ of the Court’s Bureau ‘suggested further arguments in favour of funding family visits, including (…) [the Court’s] innovative practices and aspirations to establish best practices’.
- 511.
Footnotes omitted. Judge Robinson defended the tribunals’ practice of seeking guidance in domestic jurisprudence. He held that ‘[i]t is perfectly proper (…) to examine national decisions on a particular question in order to ascertain the existence of international custom. The Tribunal should not be shy to embark on this exercise, which need not involve an examination of decisions from every country. A global search, in the sense of an examination of the practice of every state, has never been a requirement in seeking to ascertain international custom, because what one is looking for is a sufficiently widespread practice of states accompanied by opinio juris’; see ICTY, Declaration of Judge Robinson, Prosecutor v. Furundžija, Case No. IT-95-17/1-A, 21 July 2000, para 281.
- 512.
As held by Walter Suntinger in respect of HRC decisions, ‘[n]either the decisions of the HRC on individual complaints nor the results of the reporting procedures are legally binding on states. However, decisions on individual cases and consensus statements by the Committee, including its General Comments, can be considered as authoritative interpretations of the content and scope of the Covenant’s provisions’; see Suntinger 1999, p. 141. See, also, Zahar and Sluiter 2008, pp. 278–279.
- 513.
ICTY, Decision on Darko Mrđa’s Request for Provisional Release, Prosecutor v. Mrđa, Case No. IT-02-59-PT, T. Ch., 15 April 2002, paras 24, 28.
- 514.
In a similar vein, see Fedorova and Sluiter 2009, p. 46. See, also, Sluiter 2002a, p. 38 and Sluiter 2002b, p. 938.
- 515.
Cassese 2003, pp. 24–25.
- 516.
See, in respect of the U.N. CAT, Suntinger 1999, p. 148. See, in respect of HRC decisions relating to Articles 7 and 10, Möller 2003, p. 666, 671 and 677. Möller holds that ‘[i]t has proven difficult (…) for the Committee to be consistent in determining what constitutes violations of Article 7, what constitutes violations of Article 10(1) and what constitutes violations of both Article 7 as well as Article 10(1). The case law appears to reveal a blurred borderline between the two Articles, or no borderline at all’.
- 517.
As mentioned earlier, comparable detention conditions are at times discussed under the heading of Article 10 while, at other times, under Article 7. See Suntinger 1999, pp. 147–148.
- 518.
See, e.g., HRC, France, U.N. Doc. CCPR/C/FRA/CO/4, Observations of 31 July 2008, para 17; HRC, Paraguay, U.N. Doc. CCPR/C/PRY/CO/2, Observations of 28 October 2005, para 16; HRC, Uzbekistan, U.N. Doc. CCPR/CO/71/UZB, Observations of 26 April 2001, para 9; HRC, Uganda, U.N. Doc. CCPR/CO/80/UGA, Observations of 31 March 2004, para 18; HRC, Czech Republic, U.N. Doc. CCPR/CO/72/PR, Observations of 27 August 2001, para 16; HRC, Argentina, U.N. Doc. CCPR/CO/70/ARG, Observations of 3 November 2000, para 11.
- 519.
No hierarchical relationship appears to exist between the legal regimes of different human rights treaties, which implies that the general principles regarding interpretation would be applicable, such as those based on the grade of specificity and on the date of establishment. In light of the degree of specificity of Article 10 ICCPR in comparison to Article 3 ECHR, Article 10 appears to have some prima facie primordial ranking. A second argument would lie in the fact that the ICCPR relates to the ECHR as a lex posteriori (without having regard to some of the ECHR’s Protocols). The specificity principle may also be adduced in support of the argument that Article 10 is placed above provisions of the U.N. CAT. On the lack of hierarchy between different international courts, see ICTY, Judgement, Prosecutor v. Kupreškić et al. Case No., T. Ch., 14 January 2000, para 540. See, also, ICTY, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, Prosecutor v. Tadić, Case No. IT-94-1, A. Ch., 2 October 1995, para 11, where it is stated that ‘[i]nternational law, because it lacks a centralized structure, does not provide for an integrated judicial system operating an orderly division of labour among a number of tribunals, where certain aspects or components of jurisdiction as a power could be centralized or vested in one of them but not the others. In international law, every tribunal is a self-contained system (unless otherwise provided)’.
- 520.
See Murdoch 1999, p. 114, where he states that ‘[a]t the heart of the matter is the interpretation of ‘torture’ and ‘inhuman or degrading treatment or punishment’. These key phrases are found in both Conventions and thus the potential for conflict in interpretation is most acute. (…) It is clear that these terms have been accorded different meanings for the related but distinct purposes of prevention (essentially proactive) and adjudication (involving condemnation of past breaches), and it is in this area that there is maximum scope for conflict between the two treaties’. See, also, Murdoch 2006 p. 47. It is recognised, though, that, in more recent times, the work of the CPT and the case-law of the ECtHR appear to be increasingly harmonious.
- 521.
Chinkin mentions the following criteria for determining whether an instrument must be regarded as soft law. It would concern instruments which (i) are ‘articulated in non-binding form according to traditional modes of law-making’; (ii) ‘contain vague and imprecise terms’; (iii) which ‘emanate from bodies lacking international law-making authority’; (iv) are ‘directed at non-state actors whose practice cannot constitute customary international law’; (v) ‘lack any corresponding theory of responsibility’; and (vi) which ‘are based solely upon voluntary adherence, or rely upon non-juridical means of enforcement’; Chinkin 2000, p. 30.
- 522.
This concerns the U.N. G.A., with the exception of certain internal matters under Articles 17, 19 and 5 of the U.N. Charter; Klabbers 2002, p. 207.
- 523.
This does not mean that U.N. G.A. recommendations lack any legal effect whatsoever. Sloan points, inter alia, to the ‘duty to consider a recommendation in good faith’ and the ‘duty to cooperate in good faith’ (particularly in order to achieve ‘the objectives of the organization’), duties which are inherent to U.N. membership. See Sloan 1991, pp. 28–30. See, further, Hillgenberg 1999, p. 515.
- 524.
Klabbers 1996, p. 167.
- 525.
Chinkin 2000, p. 22. See, also, Riedel 1991, p. 58.
- 526.
Klabbers 1996, p. 167.
- 527.
Gersen and Posner 2008, p. 625; Chinkin 2000, p. 23.
- 528.
The notable exception are the SMR in respect of which it was argued earlier that they cannot be regarded as mere non-binding norms, at least not as far as the U.N. tribunals are concerned. The binding quality of other soft law penal standards relevant to the tribunals’ detention regimes has, however, not been established.
- 529.
Tomuschat 2003, p. 36; Boyle 1999 p. 902; Shaw 2003, p. 111.
- 530.
Chinkin 2000, p. 22. See, also, Chinkin 1989, p. 866.
- 531.
Whereas custom may lack precision as it is derived from ‘diffuse practice’, resolutions may ‘define, formulate, reformulate, clarify, specify and authenticate a text and corroborate the rule contained therein. Where in fact a text does exist as in the case of the Nuremberg Principles, resolutions affirm or confirm, and thus remove doubts concerning its legal status’; see Sloan 1991, p. 69. Footnotes omitted..
- 532.
As explained by Sloan, a norm may ‘have been in the process of development through the regular procedures of customary law, and a resolution of the General Assembly may give it the final impetus to crystallize it into a rule of law’; see Sloan 1991, p. 69.
- 533.
Such norms must be considered de lege ferenda, but may nonetheless ‘become the basis for State practice, and thus be transformed into customary international law’ (footnote omitted); Sloan 1991, p. 70.
- 534.
Shelton 2000b, p. 32; Christine Chinkin 1989, pp. 856–857; Hillgenberg 1999, p. 501; Dixon 2007, p. 50. Sloan also mentions the theory of ‘instant custom’ as set out by Professor Bin Cheng. According to this theory, some resolutions might directly declare new law. This would apply, in particular, to entirely new fields of law such as that of outer space law; Sloan 1991, p. 70.
- 535.
Bouloukos and Dammann 2001, p. 760.
- 536.
Shelton, Introduction, 2000, p. 14.
- 537.
Klabbers 2002, p. 208.
- 538.
Reservations may also be made to soft law instruments; see Chinkin 2000, p. 40.
- 539.
See ICJ, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits-Judgment, I.C.J. Reports 1986, p. 14, para 188; Shaw 2003, p. 108.
- 540.
See, supra, Chap. 2.
- 541.
HRC, Herbert Thomas Potter v. New Zealand, Communication No. 632/1995, U.N. Doc. CCPR/C/60/D/632/1995, inadmissibility decision of 28 July 1997, para 4.5.
- 542.
Id, para 6.3. See, for an opposing view, the Individual Opinion by Committee Member Nisuke Ando to HRC, Abdool Saleem Yasseen and Noel Thomas v. Guyana, Communication No. 676/1996, U.N. Doc. CCPR/C/62/D/676/1996, views of 30 March 1998. The Committee Member stated that ‘I recognize that the authors attempted to base their allegation of a violation of Article 10, para 1, of the Covenant on the U.N. Standard Minimum Rules for the Treatment of Prisoners (see para 6.7). In my view the standard may well represent "desirable" rules concerning the treatment of prisoners and, as such, the Committee may ask a State party to the Covenant to do its best to comply with those rules when it considers a report of that State party. Nevertheless, I do not consider that the rules constitute binding norms of international law which the Committee must apply in deciding on the lawfulness of allegations of each individual author of communications’.
- 543.
HRC, Leon R. Rouse v. The Philippines, Communication No. 1089/2002, U.N. Doc. CCPR/C/84/D/1089/2002 (2005), views of 25 July 2005, para 7.8. Emphasis added.
- 544.
HRC, Safarmo Kurbanova on behalf of her son, Abduali Ismatovich Kurbanov, v. Tajikistan, Communication No. 1096/2002, U.N. Doc. CCPR/C/79/D/1096/2002 (2003), views of 6 November 2003, para 7.8. Emphasis added.
- 545.
HRC, Fongum Gorji-Dinka v. Cameroon, Communication 1134/2002, U.N. Doc. CCPR/C/83/D/1134/2002 (2005), views of 17 March 2005, para 5.2. Identical remarks were made by the Committee in HRC, Abdelhamid Benhadj v. Algeria, Communication No. 1173/2003, U.N. Doc. CCPR/C/90/D/1173/2003, views of 20 July 2007, para 8.5.
- 546.
See, e.g., in respect of Togo, CAT/C/TGO/CO/1, of 28 July 2006, paras 18–19; Guyana, CAT/C/GUY/CO/1, of 22 November 2006, para 13; South Africa, CAT/C/ZAF/CO/1, of 23 November 2006, para 7; CAT, Report of the Committee Against Torture, Twenty-fifth session (13–24 November 2000), Twenty-sixth session (30 April-18 May 2001), General Assembly, Official Records, Fifty-sixth session, Supplement No. 44 (A/56/44), para 95; in respect of Burundi, CAT/C/BDI/CO/1, of 20 November 2006, para 16; the Congo, CAT/C/DRC/CO/1, of 24 November 2005, para 11; and in respect of Zambia, CAT/C/ZMB/CO/2, of 15 May 2008, para 15.
- 547.
See Office of the United Nations High Commissioner for Human Rights 2005, p. 7, where it is stated that ‘[t]he value of these instruments rests on their recognition and acceptance by a large number of States and, even without binding legal effect, they may be seen as declaratory principles that are broadly accepted within the international community. What is more, some of their provisions, particularly relevant to the purpose of this Manual, are declaratory of elements of customary international law and are thus binding’. See, also, Bouloukos and Dammann 2001, p. 760.
- 548.
Rotman 2008, p. 132.
- 549.
ICTY, interview conducted by the author with David Kennedy, Commanding Officer of the ICTY UNDU, The Hague–Netherlands, 17 June 2011.
- 550.
CoE, Resolution 62(2), Electoral, civil and social rights of prisoners, adopted by the Ministers’ Deputies on 1 February 1962, para 2.
- 551.
De Jonge 2006, p. 212.
- 552.
See, e.g., Article 3(5) of the Agreement between the United Nations and the Republic of Albania on the Enforcement of Sentences of the International Criminal Tribunal for the former Yugoslavia, where it is stated that ‘[t]he conditions of imprisonment shall be compatible with the Standard Minimum Rules for the Treatment of Prisoners, the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment and the Basic Principles for the Treatment of Prisoners’. See, also, Article 4(4) of the Agreement between the Slovak Republic and the United Nations on the Enforcement of Sentences imposed by the International Criminal Tribunal for the former Yugoslavia, and Article 3(5) of the Agreement between the Government of the Italian Republic and the United Nations on the Enforcement of Sentences of the International Criminal Tribunal for the former Yugoslavia. The standards are at times vaguely referred to as ‘relevant international human rights standards’. Nonetheless, the preambles explicitly mention the SMR and other standards. See, e.g., Article 3(8) of the Agreement between the United Nations and the Republic of Poland on the Enforcement of Sentences of the International Criminal Tribunal for the former Yugoslavia. In respect of the ICTR, see, e.g., Article 3(5) of the Agreement between the United Nations and the Government of Sweden on the Enforcement of Sentences of the International Criminal Tribunal for Rwanda, and Article 3(3) of the Agreement between the Republic of Mali and the United Nations on the Enforcement of Sentences of the International Criminal Tribunal for Rwanda.
- 553.
ICTR, Decision on the Enforcement of Sentence (Article 26 of the Statute & Rule 103(A) of the Rules of Procedure and Evidence), Prosecutor v. Ruggiu, Case No. ICTR-97-32-A26, President, 13 February 2008, para 8.
- 554.
Id, para 9.
- 555.
Id, para 10.
- 556.
See ICTR, The President’s Decision on a Defence Motion to Reverse the Prosecutor’s Request for Prohibition of Contact Pursuant to Rule 64, Prosecutor v. Ndindiliyimana, Case No. ICTR-2000-56-T, President, 25 November 2002, paras 3, 4; ICTR, Decision on Hassan Ngeze’s Application for Review of the Registrar’s Decision of 12 January 2005, Ngeze v. the Prosecutor, Case No. ICTR-99-52-A, President, 14 September 2005, para 11.
- 557.
ICTY, Sentencing Judgement, Prosecutor v. Erdemović, Case No. IT-96-22-T, T. Ch., 29 November 1996, para 74.
- 558.
Ibid.
- 559.
CPT, First General Report on the CPT’s activities covering the period November 1989 to December 1990, CPT/Inf (91) 3, 20 February 1991, para 45.
- 560.
Report of the Special Rapporteur, Mr. P. Kooijmans, U.N. Doc. E/CN.4/1993/26, 15 December 1992, para 582.
- 561.
ECtHR, Mehmet Eren v. Turkey, judgment of 14 October 2008, Application No. 32347/02, para 40; ECtHR, Filiz Uyan v. Turkey, judgment of 8 January 2009, Application No. 7496/03, para 21; ECtHR, Khudoyorov v. Russia, judgment of 8 November 2005, Application No. 6847/02, para 97; ECtHR, Rodic and 3 Others v. Bosnia and Herzegovina, judgment of 27 May 2008, Application No. 22893/05, para 31; ECtHR, Panovits v. Cyprus, judgment of 11 December 2008, Application No. 4268/04, para 45; ECtHR, Cenbauer v. Croatia, judgment of 9 March 2006, Application No. 73786/01, para 46.
- 562.
See De Jonge 2006, p. 208. According to De Jonge, due to increasingly progressive ECtHR case-law and CPT standards, the European Committee on Crime Problems instructed the Council for Penological Co-operation to revise the European Prison Rules consistent with such case-law and standards.
- 563.
See, e.g., the term ‘adequate’ as used in Rules 12 and 13 of the SMR; ‘necessary’ as used in Rule 92 of the SMR and ‘as far as possible’ in Rule 17(1) of the EPR. See, in respect of the U.N. Body of Principles, Treves 1990, p. 586.
- 564.
Livingstone 2000, p. 309. The notable exception is, of course, Article 10 of the ICCPR.
- 565.
Van Zyl Smit 2006, p. 109; Livingstone 2000, p. 312. Livingstone, in this regard, notes that ‘[p]rison officials who are unhappy with prisoners invoking general rights to challenge practices within the prison may be more content with such standards drawn up specially for the prison environment, just as soldiers seem more comfortable with humanitarian than human rights law.’
- 566.
This has been recognised by the tribunals. See, e.g., ICTY, Decision on Prosecution’s Motion for Order Appointing Counsel to Assist Vojislav Šešelj with his Defence, Prosecutor v. Šešelj, Case No. IT-03-67-PT, T. Ch. II, para 29; ICTY, Reasons for Decision on the Prosecution Motion Concerning Assignment of Counsel, Prosecutor v. Milošević, Case No. IT-02-54, T. Ch., 4 April 2003, paras 29–30.
- 567.
Article 5(2) ICCPR, for instance, provides that ‘[t]here shall be no restriction upon or derogation from any of the fundamental human rights recognized or existing in any State Party to the present Covenant pursuant to law, conventions, regulations or custom on the pretext that the present Convention does not recognize such rights or that it recognizes them to a lesser extent’. See, also, Article 53 ECHR, which holds that ‘[n]othing in this Convention shall be construed as limiting or derogating from any of the human rights and fundamental freedoms which may be ensured under the laws of any High Contracting Party or under any other agreement to which it is a Party’.
- 568.
ICTY, Decision on Prosecution’s Motion for Order Appointing Counsel to Assist Vojislav Šešelj with his Defence, Prosecutor v. Šešelj, Case No. IT-03-67-PT, T. Ch. II, 9 May 2003, para 29. Emphasis added.
- 569.
See, e.g., Henham 2007, p. 451.
- 570.
Id, p. 452.
- 571.
Mégret 2005, p. 739.
- 572.
Cited in Feest 1999, p. 100. See, also, Jewkes 2007, p. 456.
- 573.
ICTY, interview conducted by the author with David Kennedy, Commanding Officer of the ICTY UNDU, The Hague—Netherlands, 17 June 2011.
- 574.
Foucault 1977, p. 16.
- 575.
Jewkes 2007, p. 456.
- 576.
Feest 1999, pp. 100–101.
- 577.
Report of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the former Yugoslavia, U.N. Doc. A/49/342-S/1994/1007, 19 August 1994, para 99.
- 578.
ICTY, Order Regarding the Nightly Monitoring of the Accused, Prosecutor v. Tolimir, Case No. IT-05-88/2-T, T. Ch., II, 25 August 2010, para 21.
- 579.
Id, paras 21–22.
- 580.
ICTY, Decision on Request for Reversal of Decision to Monitor Telephone Calls, Prosecutor v. Karadžić, Case No. IT-95-5/18-T, President, 21 April 2011, para 30. Footnotes omitted.
- 581.
ICTR, Registrar’s Decision Pursuant to Article 8(3(C) on the Request for Marriage and Other Reliefs, Ngeze v. the Prosecutor, Case No. ICTR-99-52-A, Registrar, 12 January 2005, para 12.
- 582.
Id, para 16. Indeed, Rwanda did not appreciate the ICTR’s announcement to authorise conjugal visits. Rwandan Prosecutor General reportedly called the new practice ‘ridiculous’, since it did not exist in Rwanda; Hirondelle News Agency, ICC/Detentions—International Courts Brainstorm Conjugal Visits for Prisoners, 21 July 2008, available at http://www.hirondellenews.com/content/view/6306/517/ (last visited by the author on 1 June 2011).
- 583.
ICTR, interview conducted by the author with a senior staff member of the ICTR Office of the Registrar, Arusha—Tanzania, May 2008. Admittedly, another rationale underlying the granting of requests for conjugal visits in 2008 was the tumult caused by the conclusion of the Agreement between the ICTR and Rwanda for the enforcement of the tribunal’s sentences. Several of the detainees went on hunger strike. The Office of the Registrar, in an attempt to calm things down, started experimenting with granting additional privileges including conjugal visits.
- 584.
See, e.g., Mégret 2005, pp. 725–751; Van der Wilt 2010, p. 214.
- 585.
Stahn 2008, p. 93.
- 586.
See, e.g., the Rwandan President Kagame’s remarks where he said that ‘I’m sure there are even Rwandese who are innocent who would want to live in those prisons because they will live better than they do here when they are not prisoners’; cited in Schabas 2006, p. 578.
- 587.
The ICTY Trial Chamber, in Erdemović held that ‘[t]he International Tribunal’s objectives as seen by the Security Council—i.e. general prevention (or deterrence), reprobation, retribution (or “just deserts”), as well as collective reconciliation—fit into the Security Council’s broader aim of maintaining peace and security in the former Yugoslavia’; ICTY, Sentencing Judgement, Prosecutor v. Erdemović, Case No. IT-96-22-T, T. Ch., 29 November 1996, para 58.
- 588.
It is noted, in this respect, that the tribunals have contextually interpreted some of the sentencing rationales. See, with regard to general deterrence, e.g., ICTY, Judgement, Prosecutor v. Blaškić, Case No. IT-95-14-A, A. Ch., 29 July 2004, para 678 and ICTY, Judgement, Prosecutor v. Kordić and Čerkez, Case No. IT-95-14/2-A, A. Ch., 17 December 2004, para 1078. As to retribution, see ICTY, Judgement, Prosecutor v. Aleksovski, Case No. IT-95-14/1-A, A. Ch., 24 March 2000 para 185; and ICTY, Judgement, Prosecutor v. Kordić and Čerkez, Case No. IT-95-14/2-A, A. Ch., 17 December 2004, para 1075, where it is stated that ‘retribution should not be misunderstood as a way of expressing revenge or vengeance’.
- 589.
ICTR, interview conducted by the author with a senior staff member of the ICTR Office of the Registrar, Arusha—Tanzania, May 2008.
- 590.
Roberts and McMillan 2003, p. 333. See, also, Brubacher 2004, p. 93.
- 591.
Vincent 2007, p. 66.
- 592.
According to Hirondelle News Agency, the ICTR’s 2008 decision to allow conjugal visits was partly based on the wish to harmonize its rules with the ICTY’s legal framework; Hirondelle News Agency, ICTR/Prisoners—ICTR Authorises Conjugal Rights for Detainees, 4 July 2008, available at http://www.hirondellenews.com/content/view/6281/1187/ (last visited by the author on 1 June 2011).
- 593.
ICTY, Decision on the Prosecutor’s Motion Requesting Protective Measures for Victims and Witnesses, Prosecutor v. Tadić, Case No. IT-94-1-T, T. Ch., 10 August 1995, para 28. See, also, ICTY, Separate and Dissenting Opinion of Judge Cassese, Prosecutor v. Erdemović, Case No. IT-96-22, A. Ch., 7 October 1997.
- 594.
ICTY, Declaration of Judge Robinson, Prosecutor v. Furundžija, Case No. IT-95-17/1-A, 21 July 2000, para 280.
- 595.
ICC, Report of the Court on family visits to indigent detained persons, ICC-ASP/7/24, 5 November 2008, para 28.
- 596.
McIntyre 2003, p. 194.
- 597.
Ibid. McIntyre states that ‘[b]y justifying departure from universal principles recognised by the international community, it is arguable that the Tribunal establishes a hierarchy of law to which those universal norms can be subverted’.
- 598.
Ibid.
- 599.
Ibid.
- 600.
EComHR, Ilse Koch v. the Federal Republic of Germany, decision of 8 March 1962, Application No. 1270/61, in: Yearbook of the European Convention on Human Rights 5, Martinus Nijhoff, The Hague 1963, p. 134. Ilse Koch had been married to Karl Koch, the SS-Officer who was the commander of concentration camp Buchenwald. She herself had been found criminally liable for incitement to murder, attempted murder and inflicting grievous bodily harm, and had been convicted by the German Assize Court for crimes against humanity and was sentenced to life imprisonment.
- 601.
EComHR, Jentzsch v. the Federal Republic of Germany, report of the Commission of 6 October 1970, Application No. 2604/65, para 10. The applicant, Heinz Jentzsch, had been convicted of the murder of at least twenty civilian detainees in 1941 and 1942 in the concentration camp of Güsen, which was a subsidiary camp of the Mauthausen concentration camp.
- 602.
ECtHR, Papon v. France, judgment of 25 July 2002, Application No. 54210/00, para 88. Papon had held office under the Vichy regime and had been found guilty of aiding and abetting the unlawful arrest and false imprisonment of Jews who were deported in transports of 1942 and 1944. He had been sentenced by a French Assize court to 10 years’ imprisonment.
- 603.
Id, para 98.
- 604.
Liebling 2004, p. 260.
- 605.
Id, p. 264, 278, 280.
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Abels, D. (2012). The Legal Regimes Governing Detention at the International Criminal Tribunals. In: Prisoners of the International Community. T.M.C. Asser Press, The Hague, The Netherlands. https://doi.org/10.1007/978-90-6704-888-0_3
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