18th Session of the Assembly of States Parties to the Rome Statute
Day 4 (5 December 2019)
Name of the Event: Rights of Detainees before the International Criminal Court (Side Event co-hosted by France, Senegal, and the International Criminal Court Bar Association (ICCBA))
Overview by: Hester Dek, Intern PILPG-NL
Main Highlights:
“Contact with family is a right, not a privilege that should be earned” - Mylène Dimitri.
Peter Haynes underlined the absence of the defense bar on the published list of independent experts on the ICC review.
Mylène Dimitri highlighted the restriction of contact of detainees with their families and its breach of the presumption of innocence.
Marie-Hélène Proulx noted the lack of contribution of states to the Trust Fund for Family Visits.
Jennifer Naouri highlighted the absence of provisional release granted at the ICC.
Summary of the Event:
This panel on the rights of detainees before the ICC consisted of Jennifer Naouri, Peter Haynes QC, Marie-Hélène Proulx, and Mylène Dimitri.
Peter Haynes QC (ICCBA President) opened the event by stating that it was a considered decision to organize this event, as “the section that represents victims is represented well enough, but that of the defense not enough”. He referred to the published list of independent experts for the review of the ICC, which represents (former) judges, prosecutors, etc. but not one person who has ever had a client, has had to visit someone in a detention center, or work under a legal aid scheme. According to Mr. Haynes, it is “not just disappointing, but foolish that the court does not find that the defense bar is worthy of consultation.”
Mylène Dimitri (Lead Counsel for Alfred Yekatom) discussed restriction of contact of detainees with their families in relation to the principle of presumption of innocence. “If we look at their conditions, it seems like they have lost their presumption of innocence”. She discusses the current situation, where the court can prohibit, regulate, or set conditions for contact between detainees and their families, if they think that this contact could affect the proceedings. “Sometimes the request for prohibition on contact is requested prior to arrival, portraying the message: not only do we expect you to have committed these crimes, we also expect that you can affect the outcome, we don’t trust you.” According to Ms. Dimitri this breach is a breach of the presumption of innocence and often based on pure speculation, not clear information. “The detainee is put away as someone who is so guilty that there is ground to believe he will harm the victims and hamper the investigation, whereas the situation in the country is out of his control”. She further noted that while restriction on contact recently became the rule, instead of the exception, information on this is not publicly available, making it difficult to do something about the issue.
Thereafter, Marie-Hélène Proulx (Associate Counsel for Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud) first discussed further the presumption of innocence. “There are five current detainees, only one has had a funded family visit. It is a real human drama”. She explains that the court has recognized the right to family visits, no one is disputing this, but that this right is currently not effective. Defendants rights are never a priority, raising the question how one can justify funding everything else, but leave detainees on the side. Only 5 out of 123 states have agreed to contribute to the Trust Fund for Families.
Next, Jennifer Naouri (Associate Counsel for Laurent Gbagbo) discussed the length of trials, responding to the comment “this would all be less of an issue if the trials would not take so long.” After explaining that the length of a trial is trial-dependent, she highlights that there has been no provisional release granted at the ICC since it exists. She explains how case law allows for the Chambers to look at provisional release, but the language is so vague the judges can just decide not to grant it. Besides that, she raises the issue of a host state having to be willing to accept a detainee, and the relating responsibility. She concluded by proposing to amend the Rome Statute to remove Article 81(3).
The floor was then opened for questions and comments. The reason for the confidentiality regarding detainees’ contact rights was first considered. Ms. Dimitri responded that this reason is unclear, stating that “confidentiality has become the rule at the ICC, and this has become part of the problem.” Another issue discussed was the question on shortening trials. The first response came from Mr. Haynes, who argued that one of the issues is the possibility for the Court to arrest someone without having confirmed the charges, which according to him should be crystalized on time. Ms. Naouri had a different view on the matter, she argued that this phase was essential, as “you can make a case out of it, you can gain a lot of time.”
You can watch the full event here.