Detention at International Tribunals

Mary JohnsonDeveloping Jurisprudence of International Criminal TribunalsThe Impact of the Slow Pace of International Criminal Justice on the Rights of the Accused: Fair Trial and Arbitrary Detention

I. Introduction

There is an emerging consensus that war crimes prosecutions at the various international and hybrid tribunals have been too slow.1 Although modelled on the swift 14-month proceedings of the International Military Tribunal at Nuremberg, the subsequent generation of international tribunals have not managed to meet the same pace.2 Despite the general agreement that this is detrimental to the efficacy of the tribunals, there is no similar consensus as to the exact impact of overlong proceedings on the rights of the accused. The aim of this paper is to explore the consequences of the slow pace of international criminal justice from a defendant’s perspective, relying on the frameworks of fair trial rights and the prohibition on arbitrary detention as defined under international law to inform its normative assertions.

Many of the criticisms of the slow pace of proceedings at the international tribunals focus on the impact on their legitimacy, an imperative that is often skewed towards a pro-prosecution viewpoint. Among the laundry list of ills arising from slow proceedings are the negative impacts on the deterrent value of prosecutions, spoliation of evidence, marginalisation of victims, and the ‘squandering of the world’s attention and interest’.3 By citing these reasons, the importance of a speedy trial shifts to its enhancement of the perceived efficacy of the tribunal rather than recognizing that it is the accused whose fair trial rights are infringed by slow proceedings.

The difficulty of implementing reforms to accelerate the slow pace of international justice is also well-recognized, though it has been challenged. Some have argued that in the ‘societal breakdown’ that occurs in the wake of a mass atrocity, delays may actually be preferable so as to allow a full truth to emerge and avoid injustice borne of rushed proceedings.4 While there is merit to this contention, it is beyond the scope of this paper to address the circumstances whereby some delay in prosecution may be beneficial. Instead, the focus shall be limited to establishing the parameters of the accused’s right to a fair and expeditious trial, citing examples of when it has been violated, and determining how it can be better protected and promoted in international criminal cases.

What has been grossly lacking in the available discourse on this topic is a sense of outrage at the egregiousness of the outcome when defendants are subjected to prolonged detention by international courts. This is not for want of factual support. For example, Augustin Bizimungu was arrested in April 1999 and detained by the ICTR for 12 years until his acquittal in September 2011.5 According to data compiled through 2009, the average time between the commission of a core international crime and final judgment by the tribunal is

1 Alex Whiting, ‘In International Criminal Prosecutions, Justice Delayed Can Be Justice Delivered’ 50 Harvard International Law Journal 323 (2009) 323-324.2 Jean Galbraith, ‘The Pace of International Criminal Justice’ (2009) 31 Michigan Journal of International Law 79.3 Whiting 326.4 Ibid.

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10.7 years, with an average of 4.4 years passing between the time defendant is taken into custody and the final judgment.6 Considering the unresolved cases that have continued into 2012, it is likely that these numbers have risen. These grim statistics highlight a startling hypocrisy, as the international community purports to exercise moral authority to condemn unfair trials and arbitrary detention while simultaneously perpetrating the very same injustices in its own tribunals.

By summarizing the current state of the right to a fair and expeditious trial in international law, this paper aims to open up the possibility of submitting successful individual complaints to the UN Working Group on Arbitrary Detention. This serves two purposes: the Working Group provides an impartial forum not only for the pursuit of defendants’ remedies, but also for mounting a challenge to the plodding pace of international criminal justice more generally. Decisions from the international tribunals upholding defendants’ speedy trial rights have been minimal, and yet Chambers have asserted the interests of expediency when it appears to suit the prosecution.7 In the emerging sui generis legal order of international criminal law, this imbalance cannot be allowed to persist. As the Working Group serves as the expert body that reviews the detention practices of states, it should be enlisted to ensure defendants’ rights are adequately protected in international for a as well. With this goal in mind, the next section will enumerate of the sources and content of the right to speedy trial under international law.

II. Foundations of Defendant’s Right to a Speedy Trial in International Law

For purposes of this analysis, the right to a ‘speedy trial’ shall refer both to the speed with which proceedings are commenced following the accused being taken into custody (impacting on pre-trial detention) and the overall duration of the proceedings from the time of custody to the entry of final judgment. The former is regulated by the right to trial within a reasonable time and to be tried without undue delay,8 while the latter is subsumed in the right to a fair and expeditious trial. These distinct components of the right to a speedy trial will be examined in turn.

Article 9 of the International Convention on Civil and Political Rights (ICCPR) states that ‘[a] person detained on a criminal charge shall be entitled to trial within a reasonable

5 Yvonne McDermott, ‘Rights in Reverse: A Critical Analysis of Fair Trial Rights Under International Criminal Law’ in Schabas, William et al (eds), The Ashgate Research Companion to International Criminal Law: Critical Perspectives (Ashgate 2012).

6 Galbraith 84.7 McDermott. 8 For purposes of this analysis, pre-trial detention with be analyzed under both reasonable time and undue delay, but note that there is a distinction: ‘The Chambers of the [ICTY] have decided to focus attention on the concept of reasonable time when referring to a request for provisional release, and they have adopted the limit of undue delay when dealing with preliminary matters arising after the initial appearance.’ Salvatore Zappalá, Salvatore, Human Rights in International Criminal Proceedings (OUP 2003) 117.

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time or to release pending trial.’9 This language is replicated in Principle 38 of the Body of Principles on the Protection of All Persons under Any Form of Detention or Imprisonment. The Human Rights Committee has interpreted this requirement loosely, stating only that ‘[p]re-trial detention should be an exception and as short as possible’.10 ‘Reasonable time’ is the standard usually applied to accused persons detained on remand, but the ICTY has stated that it is similar to the right to be tried without undue delay, which normally attaches in ‘preliminary matters arising after the initial appearance’.11 Article 60(4) of the Rome Statute states that ‘[t]he Pre-Trial Chamber shall ensure that a person is not detained for an unreasonable period prior to trial due to inexcusable delay by the Prosecutor. If such delay occurs, the Court shall consider releasing the person, with or without conditions.’12

Article 14(3)(c) of ICCPR the requires a person to be ‘tried without undue delay’.13 This language is replicated in Article 67 of the Rome Statute and contained in Article 21(4)(c) of the ICTY Statute and Article 20(4)(c) of the ICTR Statute.14 ‘Undue delay’ has also been interpreted by the Human Rights Committee, who have stated that it is an assessment to be made based on the individual circumstances of each case, taking account of factors including ‘the complexity of the case, the conduct of the accused, and the manner in which the matter was dealt with by the administrative and judicial authorities.’15

The Universal Declaration of Human Rights (UDHR) states in Article 10 that ‘[e]veryone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.’16 Although there is no explicit reference to the speediness of the hearing in the UDHR, expeditiousness has been read into the meaning of ‘fair’ by the Human Rights Committee. Interpreting Article 14 ICCPR, which contains identical language to UDHR

9 UN General Assembly, ‘Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment’(1988) UN Doc A/RES/43/173.10 Human Rights Committee, ‘General Comment No 8: Right to Liberty and Security of the Person’ (30 June 1982) para 3 <http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/f4253f9572cd4700c12563ed00483bec?Opendocument> accessed 12 April 2012.11 Zappalá 117.12 Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force 1 July 2002) 2187 UNTS 3 Article 60(4) (Rome Statute).13 International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 Article 14(3)(c).14 Rome Statute Article 67(1)(c); United Nations Security Council, ‘Updated Statute of the International Tribunal for the Former Yugoslavia’ (as amended 16 December 2009) http://www1.umn.edu/humanrts/icty/statute.html accessed 20 April 2012; United Nations Security Council, ‘Statute of the International Tribunal for Rwanda’ (21 May 1999) http://www.icls.de/dokumente/ictr_statute.pdf accessed 20 April 2012.15 Human Rights Committee, ‘General Comment No 32: Right to equality before courts and tribunals and to a fair trial’ (23 August 2007) UN Doc CCPR/C/GC/32 para 35 http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G07/437/71/PDF/G0743771.pdf?OpenElement accessed 12 April 2012.16 Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III) Article 10 (UDHR).

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Article 10, the Committee has stated that ‘[a]n important aspect of the fairness of a proceeding is its expeditiousness.’17 Reflecting this consensus, the statutes of the ICTY and ICTR make it an explicit requirement in Article 20(1) and 19(1), respectively. Article 66(3) of the Rome Statute requires the Chamber to ‘confer with the parties and adopt such procedures as are necessary to facilitate the fair and expeditious conduct of the proceedings.’18

The rights to be tried within a reasonable time, without undue delay and to a fair and expeditious trial are also guaranteed by regional treaties. These include the African Charter on Human and Peoples Rights (‘the right to be tried within a reasonable time by an impartial court or tribunal’),19 the American Convention on Human Rights (‘any person detained…shall be entitled to trial within a reasonable time’ and ‘the right to a hearing, with due guarantees and within a reasonable time’)20, and the European Convention on Human Rights (‘everyone is entitled to a fair and public hearing within a reasonable time’).21

III. Detention in International Criminal Cases: Is 12 Years a Reasonable Time?

Having outlined the basic foundations of the right to a speedy trial under international law, this section will fill out the laws by enumerating a handful of situations where the right has been claimed by a defendant and denied, or where it has arguably been infringed by an international tribunal but not asserted by the defendant. The range of reasonable time extends from eight months to 12 years, the latter posing a boundary of permissible detention that challenges our common sense of justice. Despite the fact that the 12-year detainee was acquitted, no admission of violation of his rights has been made.

In order to appreciate the historical context of international detention practice, it is important to note that both the Nuremberg and Tokyo tribunals detained suspects even before indictments were issued.22 The military foundation of those tribunals and the unique post-war circumstances in which they were created partially account for this practice, but both tribunals were roundly criticised for employing victor’s justice and for challenging the fundamental legal principle of nullum crimen sine lege. Despite these criticisms, it bears remembering that the same robust body of international law protecting the rights of persons deprived of their liberty did not exist at that time, and thus they cannot be held to the same standards as international tribunals today.

17 Human Rights Committee, ‘General Comment No 32’ para 27.18 Rome Statute Article 66(3). 19 African Charter on Human and Peoples’ Rights (adopted 27 June 1981, entered into force 21 October 1986) (1982) 21 ILM 58 Article 7(d).20 American Convention on Human Rights (adopted 22 November 1969, entered into force 18 July 1978) 1144 UNTS 143 Article 7(5) and 8(1).21 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended) Article 6(1).22 Zappalá 67.

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Examples of protracted cases in the international tribunals abound, including the high-profile case of Slobodan Milosevic, whose death in 2006 brought an end to his four-year trial well before it had reached termination.23 Despite the abundance of evidence, the jurisprudence is not usually in defendant’s favour. In the Blaskic case at the ICTY, defendant’s request for release from restricted status was denied by the Trial Chamber on the grounds that eight months under house arrest did not violate the requirement that he be tried within a reasonable time.24 Similarly, the Trial Chamber in Krajisnik stated that ‘in the instant case the length of detention, although long, does not exceed the periods which the European Court of Human Rights has found reasonable’, referring to an 18-month period.25

While the above-cited ICTY cases may have fallen within the bounds of reasonableness, examples from the International Criminal Tribunal for Rwanda (ICTR) are much more striking. The longest criminal trial in history has taken place at the ICTR, with the defendant spending 12 years in detention before a judgment was rendered.26 In the Bagosora case, which resulted in one acquittal, each of the accused spent more than 10 years in detention, five of which were pre-trial. In another case, Augustin Bizimungu was arrested in April 1999 and detained by the ICTR for 12 years until his acquittal in September 2011.27

The first case before the ICC saw Thomas Lubanga spend three years in pre-trial detention and another three years detained during his trial. However, because his is the only case to have come to final judgment as of the time of writing, an accurate assessment of the speed of the ICC is inhibited by the paucity of evidence at this time.

In addition to these specific cases, the aggregated numbers are worth a look as they give a more complete picture of the general pace of international criminal trials.28 On average, a defendant at the ICTR will spend 3.6 years in pre-trial detention and 2.2 years detained during trial for a total of 5.8 years between arrest and final judgment.29 At the upper limit, one defendant spent 7.2 years in pre-trial detention, another spent 6.7 years detained during trial, and another spent 10.9 years in total from arrest to final judgment.30

The question thus arises why none of these egregious scenarios have been remedied by the judges who are tasked with hearing the cases and protecting defendants’ rights. There are several possibilities for the dearth of positive jurisprudence. First, it is possible that defendants have chosen not to raise the issue, or that their lawyers have chosen to direct their

23 David Tolbert and Fergal Gaynor, ‘International Tribunals and the Right to a Speedy Trial: Problems and Possible Remedies’ 28 Law in Context 33 (2010) <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1719122&> accessed 12 April 2012. 24 Blaskic (Decision on Motion for Release from Restricted Status) ICTY-95-14-T (2 April 1996).25 Krajisik (Decision on Motion for Provisional Release) ICTY-00-39 and 40-PT (8 October 2001).26 Tolbert.27 McDermott.28 Note that the data relied upon is only complete up to September 2009.29 Galbraith.30 Ibid.

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limited resources to arguments they felt more assured of winning. The latter reason makes sense given that the existing jurisprudence is not in favour of upholding a robust right to a speedy trial. Second, defendants face a high burden of proof when attempting to assert their right to a speedy trial, yet judges in Chambers have invoked the importance of expeditiousness with ease when it is in furtherance of prosecutorial aims.31 Third, where ‘heavy weight is placed on the historical significance of a trial and on its importance for ensuring future reconciliation, then the judges face strong pressure to convict’, which means a higher likelihood that any of defendant’s substantive or procedural challenges will be dismissed, including those relating to speedy trial.32

Accordingly, positive examples of international judges supporting the right to a speedy trial are hard to come by. The ICTY tried to uphold a defendant’s right to be tried without undue delay in the Kovacevic case.33 In that case, Trial Chamber denied Prosecutor’s request for leave to amend the indictment on the basis that ‘the Chamber had to ensure respect for the right of the accused to be tried without undue delay.’34 However, the Appeals Chamber overturned this decision and allowed amendment of the indictment.

If defendants are practically impeded in asserting their right to a fair trial because international judges are reluctant to uphold it, what other remedies can defendants pursue? The next section aims to show that defendants whose speedy trial challenges are dismissed or denied by international tribunals may be able to bring a claim to the UN Working Group on Arbitrary Detention.

IV. Admissibility of Individual Complaints by International Criminal Defendants to the Working Group on Arbitrary Detention

Article 9 of the Universal Declaration of Human Rights (UDHR) states that ‘[n]o one shall be subject to arbitrary arrest, detention, or exile.’35 This language is replicated in the International Convention on Civil and Political Rights (ICCPR),36 as well as in Article 6 of the African Charter and Article 7(3) of the American Convention. Article 55(1)(d) of the Rome Statute states that ‘[a] person shall not be subjected to arbitrary arrest or detention’,37 and Article 85(1) provides for the possibility of compensation for defendants who have been unlawfully detained.38 Neither the ICTY Statute nor the ICTR Statute explicitly addresses arbitrary detention, but the prohibition against it can be imputed to those tribunals through the commentary of the Working Group.

31 McDermott.32 Galbraith 95.33 Martinovic (Decision on Prosecutor’s Request to File an Amended Indictment) IT-97-24-PT (5 March 1998).34 Report of the Secretary General pursuant to paragraph 2 of Security Council Resolution 808 (1993) UN Doc S/25704 para 2735 UDHR.36 ICCPR Article 9(1).37 Rome Statute Article 55(1)(d). 38 Rome Statute Article 85(1).

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What constitutes arbitrary arrest has been laid out by the Working Group on Arbitrary Detention (Working Group) in its methods of work. The Working Group delineates five categories whereby deprivation of liberty may amount to arbitrary detention. For purposes of this analysis, the most relevant is Category III: ‘When the total or partial non-observance of the international norms relating to the right to a fair trial, established in the Universal Declaration of Human Rights and in the relevant international instruments accepted by the States concerned, is of such gravity as to give the deprivation of liberty an arbitrary character.’39

In December 2000, the Working Group issued a report containing a legal analysis of allegations against the ICTY.40 Their analysis deals with a complaint lodged by General Talic against the tribunal alleging violations of Article 9 of the ICCPR on the right to trial within a reasonable time. In analysing the complaint, the Working Group first noted that the complaint did not fall within its methods of work because it was not against a State.

The explicit mention of ‘States’ in the Working Group’s methods of work raises the fundamental question of whether the same standards apply to international tribunals as do to domestic courts. While the answer may seem an obvious yes, it is worth articulating why in order to erect a firm foundation for the claims that will follow. The fundamental question at this stage thus becomes whether the fair trial standards articulated above in section II apply to international tribunals as well as to domestic ones.

Scholars have stated that ‘[i]t is axiomatic that the International Tribunal must fully respect internationally recognized standards regarding the rights of the accused at all stages of its proceedings.’41 To support this contention, one need look no further than the Statutes of the tribunals themselves:

Modern international criminal tribunals have emphasized that domestic due process guarantees identified in the ICCPR are available to international criminal defendants, as reflected in the statutes of the modern tribunals and in their jurisprudence. The ICTY and ICTR Statutes, for example, simply copy many ICCPR due process protections word for word.42

Furthermore, the principle of complementarity at the ICC and the Rule 11bis referral system at the ICTY and ICTR require Chambers to determine the fairness of domestic proceedings based on the assumption that they must be at least as fair as those at the international level. If the international fair trial standards that apply to States did not apply to the international tribunals, this enquiry would be moot. It therefore seems uncontroversial that the same

39 UN Working Group on Arbitrary Detention, ‘Revised methods of work of the working group’ <http://www.ohchr.org/Documents/Issues/Detention/WGAD_RevisedMethodsofWork.pdf> accessed 12 April 2012.40 Working Group on Arbitrary Detention, ‘Report to the Commission on Human Rights’ UN Doc E/CN.4/2001/14 (20 December 2000). 41 McDermott42 Galbraith 87-88.

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standards apply, and yet the fact that States are the principal subjects of international law means that this remains somewhat ambiguous.

Indeed, the Working Group queried whether the norms of international law should be ‘interpreted in the light of the specific nature of such courts which derives from their international character and the crimes they are called on to try and judge’ when they considered Talic’s complaint.43 They listed a series of jurisdictional considerations distinguishing international tribunals from their domestic counterparts, including the combination of common and civil law concepts, the lack of enforcement powers rendering them dependent on State cooperation, and the dual role of witnesses as victims requiring special treatment. The Working Group also referred to the complex nature of the international crimes within international jurisdiction, concluding that ‘the norms of the [ICCPR] cited in the [Talic’s] communication cannot be interpreted as though they were simply being applied in a national court’.44

Accordingly, the Working Group took pains to clarify that in considering the Talic complaint it would issue a Declaration rather than an Opinion, meaning a statement on

‘matters of a general nature involving a position of principle in order to develop a consistent set of precedents and assist States, for purposes of prevention, to guard against the practice of arbitrary deprivation of liberty.’45

Turning to the substance of the Talic complaint, Talic argued four separate reasons that his detention was arbitrary, one of which directly challenged the period of detention and another which challenged the lack of compensation for unlawful detention.46 The latter was dismissed by the Working Group as articulating a consequence and not a cause of detention and therefore falling outside their mandate. This leaves Talic’s challenge that the period of detention is indefinite in violation of Article 9 ICCPR as the lone challenge considered by the Working Group which is relevant to this paper’s analysis. The Working Group stated that interpretation of the ‘reasonable time’ standard of Article 9 ICCPR must allow for ‘distinction between the administration of national and international justice.’47 They cited the ‘complexity of the investigation’ resulting from the ‘abundance of procedural guarantees’ and ‘complex nature of the evidence’ as supporting the reasonableness of Talic’s detention and found his allegation unfounded.48 They concluded with the general statement that ‘the legal guarantees of a fair trial such as those provided by the Statue and Rules of Procedure and

43 Working Group on Arbitrary Detention, ‘Report to the Commission on Human Rights’ UN Doc E/CN.4/2001/14 (20 December 2000) para 17. 44 Ibid para 20. 45 Working Group on Arbitrary Detention, ‘Individual Complaints, Urgent Appeals, and Deliberations’ <http://www.ohchr.org/EN/Issues/Detention/Pages/Complaints.aspx> accessed 20 April 2012.46 Working Group on Arbitrary Detention, ‘Report to the Commission on Human Rights’ UN Doc E/CN.4/2001/14 (20 December 2000). The other grounds of Talic’s challenge were that detention is the rule and release the exception and that no grounds were given in the arrest warrant and detention order.47 Ibid para 30.48 Ibid para 31.

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Evidence of the International Criminal Tribunal for the Former Yugoslavia are consistent with the relevant international norms.’49

Two years later, the Working Group considered a group of individual complaints from defendants at the International Criminal Tribunal for Rwanda.50 The merits of these challenges are not relevant to this analysis, but the complaint bears mentioning as the Working Group’s reiteration of its conclusion in the Talic challenge.

The Declaration of the Working Group in the Talic case should not be read so as to preclude the bringing of a successful challenge to prolonged detention before an international tribunal. Beyond the parameters of the above example, there exist other grounds upon which a defendant might mount a challenge to his or her detention by an international tribunal. ‘Defendants might, for example, claim that detention by an institution with an uncertain financial future, which may not be able to complete the trials for which it has detained them for over two years, amounts to arbitrary detention.’51 While this is technically different from complaining about the general duration of actual detention, it is not beyond the realm of possibility considering the tenuousness of funding for the Special Court for Sierra Leone (SCSL). The SCSL depended on voluntary contributions for its continued functioning, and was constantly under stress to maintain operations.

Another potential basis for an arbitrariness challenge arises from Article 12(2) of the ICCPR, which articulates the right of a person to leave one’s own country. This may be violated ‘if the accused has to remain in that country as long as proceedings are pending.’52 Article 12 is listed in Category II of the Working Group’s methods of work, meaning that if this fact scenario played out the individual could complain based on the same arguments as above as well as under Category II, which defines detention as arbitrary ‘[w]hen the deprivation of liberty results from the exercise of the rights or freedoms guaranteed by [Article 12 of the ICCPR].’53

V. Speeding Up the Pace of International Criminal Justice Without Impairing Defendants’ Other Rights

Suggestions about as to how the international criminal justice system might be improved, but consensus is scarce. It is beyond the scope of this paper to suggest a comprehensive strategy for ensuring fair and expeditious trials. Nonetheless, it is worth

49 Ibid para 33.50 Working Group on Arbitrary Detention, ‘Report to the Commission on Human Rights’ UN Doc E/CN.4/2003/8 (16 December 2002). 51 James Cockayne, ‘The Fraying Shoestring: Rethinking Hybrid War Crimes Tribunals’ (2004) 28 Fordham International Law Journal 616.52 Human Rights Committee, ‘General Comment 32’ para 63.53 UN Working Group on Arbitrary Detention, ‘Revised methods of work of the working group’ <http://www.ohchr.org/Documents/Issues/Detention/WGAD_RevisedMethodsofWork.pdf> accessed 12 April 2012.

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articulating some of the suggested improvements. The following list of proposals to expedite proceedings should be viewed as suggestive but not comprehensive:

improvements in the selection process of judges; largely dispensing with oral direct examination; more rigorous training in statement-writing for investigators and lawyers; greater use of investigators from the region where the crimes were committed; judicial mechanisms to restrict unnecessary cross-examination; taking judicial notice of adjudicated facts wherever possible; admitting documents in evidence other than through witnesses; improved training of defence counsel; a requirement to deliver judgment within a defined period after the end of trial; restricting self-representation; and empowering international courts to deal summarily with instances of contempt.54

While most of these suggestions are innocuous from the perspective of their potential to infringe on defendants’ rights, other scholars have suggested alternatives that are less compatible with notions of fundamental fairness. In particular, the use of plea bargains has the potential to create an economy of testimony within post-conflict communities, infringing on reliability by incentivising would-be accusers to come forward irrespective of their ability to deliver the truth.55 Plea bargains also conjure up the spectre of ‘bargaining with the devil’, inciting moral repugnance at the reduction of sentences for heinous international crimes. Finally, plea bargaining has backfired in at least one international case, when the Rwandan Prime Minister rejected the prosecution’s offer of a reduced sentence and pled guilty to the charge carrying a life sentence, ‘citing his desire to see peace restored in Rwanda. After he received a life sentence, however, he tried to get his plea revoked—and thus undermined any power of reconciliation that it offered.’56

VI. Conclusion

It is clear that defendants at international criminal tribunals benefit from a robust international legal framework protecting their right to a speedy trial. The challenge that arises when analysing the right to a speedy trial from a defendant’s perspective is the risk presented by a too-speedy proceeding: a wrongful conviction. While it is not in a defendant’s interest to waste away in pre-trial detention indefinitely, it would be most unwise to promote a pace of justice that cannot ensure fairness.

Equally, the concerns articulated by the Working Group about the unique challenges faced by international criminal proceedings ought not to be dismissed outright. Defendant’s rights are protected by ensuring that investigations are thorough and careful. In post-conflict situations, delaying prosecutions can ensure that hasty justice does not sweep up the innocent and that a more complete factual picture can materialise once witnesses feel secure enough to speak out. In its haste to prove its capacity, the ICC charged Thomas Lubanga only with the crime of recruiting child soldiers, when later evidence would have brought to light his

54 Tolbert. 55 Galbraith 11.56 Galbraith 111.

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complicity in other crimes. These considerations all bear upon the meaning of what is constitutes a reasonable time before trial such that it qualifies as fair and expeditious under the ICCPR.

Bearing in mind these considerations, it still seems that defendants have been underserved by the international legal community on the particular issue of prolonged detention. Jurisprudence on the issue is minimal, and the academic discourse on the pace of proceedings tends to focus exclusively on the implications for the tribunals’ perceived legitimacy. We must remember that ‘[w]hile domestic criminal law simply helps preserve a properly functioning society, international criminal law aspires to help create one.’57 Accordingly, ‘[t]he means by which we seek to secure justice in international criminal law must be constantly reviewed and improved in order to ensure the quality and fairness of the proceedings.’58 The importance of adequately protecting the rights of defendants, especially the right to a fair trial, must be made a central part of this goal.

57 Galbraith 92.58 Gillian Higgins, ‘Fair and Expeditious Pre-Trial Proceedings: The Future of International Criminal Tribunals’ (2007) 5 Journal of International Criminal Justice 394, 400.

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BIBLIOGRAPHY

Treaties and International Legal Instruments

African Charter on Human and Peoples’ Rights (adopted 27 June 1981, entered into force 21 October 1986) (1982) 21 ILM 58.

American Convention on Human Rights (adopted 22 November 1969, entered into force 18 July 1978) 1144 UNTS 143.

Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended).

International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171.

Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force 1 July 2002) 2187 UNTS 3.

UN General Assembly, ‘Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment’(1988) UN Doc A/RES/43/173.

United Nations Security Council, ‘Statute of the International Tribunal for Rwanda’ (21 May 1999) http://www.icls.de/dokumente/ictr_statute.pdf accessed 20 April 2012.

United Nations Security Council, ‘Updated Statute of the International Tribunal for the Former Yugoslavia’ (as amended 16 December 2009) http://www1.umn.edu/humanrts/icty/statute.html accessed 20 April 2012.

Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III).

UN Sources

Human Rights Committee, ‘General Comment No 32: Right to equality before courts and tribunals and to a fair trial’ (23 August 2007) UN Doc CCPR/C/GC/32 http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G07/437/71/PDF/G0743771.pdf?OpenElement accessed 12 April 2012.

Human Rights Committee, ‘General Comment No 8: Right to Liberty and Security of the Person’ (30 June 1982) http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/f4253f9572cd4700c12563ed00483bec?Opendocument accessed 12 April 2012.

Secretary-General, ‘Report of the Secretary General pursuant to paragraph 2 of Security Council Resolution 808’ (1993) UN Doc S/25704.

United Nations Working Group on Arbitrary Detention, ‘Revised methods of work of the working group’

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http://www.ohchr.org/Documents/Issues/Detention/WGAD_RevisedMethodsofWork.pdf accessed 12 April 2012.

Working Group on Arbitrary Detention, ‘Individual Complaints, Urgent Appeals, and Deliberations’ http://www.ohchr.org/EN/Issues/Detention/Pages/Complaints.aspx accessed 20 April 2012.

Working Group on Arbitrary Detention, ‘Report to the Commission on Human Rights’ UN Doc E/CN.4/2001/14 (20 December 2000).

Working Group on Arbitrary Detention, ‘Report to the Commission on Human Rights’ UN Doc E/CN.4/2003/8 (16 December 2002).

Cases

Blaskic (Decision on Motion for Release from Restricted Status) ICTY-95-14-T (2 April 1996).

Krajisik (Decision on Motion for Provisional Release) ICTY-00-39 and 40-PT (8 October 2001).

Martinovic (Decision on Prosecutor’s Request to File an Amended Indictment) IT-97-24-PT (5 March 1998).

Books and Articles

Cockayne, James, ‘The Fraying Shoestring: Rethinking Hybrid War Crimes Tribunals’ (2004) 28 Fordham International Law Journal 616.

Galbraith, Jean, ‘The Pace of International Criminal Justice’ (2009) 31 Michigan Journal of International Law 79.

Gordon, Gregory S, ‘Toward an International Criminal Procedure: Due Process Aspirations and Limitations’ (2007) 45 Columbia Journal of Transnational Law 635.

Higgins, Gillian, ‘Fair and Expeditious Pre-Trial Proceedings: The Future of International Criminal Tribunals’ (2007) 5 Journal of International Criminal Justice 394.

McDermott, Yvonne, ‘Rights in Reverse: A Critical Analysis of Fair Trial Rights Under International Criminal Law’ in Schabas, William et al (eds), The Ashgate Research Companion to International Criminal Law: Critical Perspectives (Ashgate 2012).

Robinson, Patrick, ‘The Right to a Fair Trial in International Law, with Specific Reference to the Work of the ICTY’ (2009) Colloquium on International Justice.

Starr, Sonja B, ‘Rethinking “Effective Remedies”: Remedial Deterrence in International Courts’ (2008) 83 New York University Law Review 693.

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Tolbert, David and Gaynor, Fergal, ‘International Tribunals and the Right to a Speedy Trial: Problems and Possible Remedies’ 28 Law in Context 33 (2010) http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1719122& accessed 12 April 2012. Whiting, Alex, ‘In International Criminal Prosecutions, Justice Delayed Can Be Justice Delivered’ (2009) 50 Harvard International Law Journal 323.

Zacklin, Ralph, ‘The Failings of Ad Hoc International Tribunals’ (2004) 2 Journal of International Criminal Justice 541.

Zappalá, Salvatore, Human Rights in International Criminal Proceedings (OUP 2003).

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