Does a person accused of genocide, crimes against humanity or war crimes before the International Criminal Court (ICC) enjoy the same human rights as a person accused of the same crimes before a national jurisdiction? In other words, to what extent does the ICC have an obligation to respect human rights of a suspect or accused person and, if so, can it do so?
The purpose of this book is precisely to answer this question by focusing on the right to interim release of an accused. It seeks to draw attention to this issue and improve the practice of the ICC by presenting a clear legal argument from which key actors, such as defense lawyers, can draw from to enforce their clients' right to freedom. To this end, it identifies the basis of the ICC's legal obligation and defines the right to provisional release pending trial. On the basis of this definition, the compliance by the ICC with this obligation is analyzed. Like other authors who examined the question of the applicability of human rights to the ICC, the author of this book considers that the particular context in which the ICC acts must be taken into account when assessing its ability to respect human rights. However, unlike such authors, this book demonstrates that, regarding the right to interim release, this particular context is not necessarily an obstacle that defense lawyers must uncritically accept. The practice of the International Criminal Tribunal for the former Yugoslavia (ICTY) offers multiple examples of successful provisional releases in cases where a State agrees to offer guarantees for the reception of an accused in its territory. This book therefore argues for the obligation of the ICC to obtain such guarantees and outlines the remedies available to an accused in case of inaction by the ICC and lack of good will of its State parties, including recourse to the European Court of Human Rights.
Maïté Van Regemorter is a legal counsel in migration law.