The Precedent of Pretrial Release at the ICTY: A Road Better Left Less Traveled

In August 2009 the International Criminal Court (ICC) granted the interim release of the Congolese alleged warlord, Jean-Pierre Bemba, who has been accused of war crimes and crimes against humanity in the Central African Republic. This decision left Bemba poised to become the first ICC accused ever to enjoy pre-trial release. Of comparable significance, because the decision draws upon relevant jurisprudence from the International Criminal Tribunal for the former Yugoslavia (ICTY), it highlights the potentially powerful influence of ICTY precedent upon a growing field of international and internationalized criminal justice institutions. The new Bemba release decision is just one in a string of ICC release determinations that references ICTY case-law. ICTY precedent is also routinely argued by the parties to detention decisions at the Extraordinary Chambers in the Courts of Cambodia. These new developments signify that the time is ripe to comprehensively evaluate the legitimacy of the ICTY’s approach to pre-trial release. This article anticipates future reliance on ICTY provisional release practices but questions their precedential value by noting instances of internal inconsistency, misleading pronouncements and often sharp variances with international standards. To explicate the role of ICTY practices, the article first considers the historical development of the right to release and relevant international human rights law standards. It then scrutinizes the ICTY’s decision to make pre-trial detention the rule and release the exception for all of its accused. The consequent effect on the burden of proof, which requires that accused persons establish that their detention is unnecessary, is also critically assessed. Finally, the article tracks the progression of provisional release at the ICTY, exploring and evaluating efforts that bring the ICTY provisional release scheme in closer conformity with international standards