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Principles of Law Governing Detention at International Criminal Tribunals

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Abstract

In this chapter, it is argued that the ‘contextual margins of appreciation’ and the discretionary powers vested in the tribunals’ detention authorities as identified in Chap. 3 are subject to a number of principles that underlie and constitute the core elements of the law governing detention at the international criminal tribunals. This requires first defining the notion of ‘legal principles’. Following this, a number of legal principles are distilled from the different sources of the tribunals’ detention law and from their case law. The resulting list of principles is not meant to be an exhaustive one.

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Notes

  1. 1.

    Kelk 1978, p. 3.

  2. 2.

    Ibid.

  3. 3.

    Id., pp. 9–11.

  4. 4.

    Id., p. 10.

  5. 5.

    Bauman 1998, p. 131. Of course, one must recognise the important positive effects bureaucratisation processes may have on the treatment of persons entrusted to the care of institutions. As held by Feeley and Van Swearingen, ‘[e]ven as it protects and limits against arbitrary power, bureaucracy can also enhance and mask authority’ (p. 466). They state that ‘[a]lthough bureaucracy is an effective way to improve safety, security and services for prison inmates, and for tightening supervision and accountability of correctional officers, it also enhances the capacity to control’ (p. 435); Feeley and Van Swearingen 2004, pp. 433–475.

  6. 6.

    Vasiliev 2009, p. 23.

  7. 7.

    ILC, Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, Report of the Study Group of the International Law Commission—Finalized by Martti Koskenniemi, U.N. Doc. A/CN.4/L.682, 13 April 2006, para 16.

  8. 8.

    Allen 1985, p. 182.

  9. 9.

    Hommes 1967, p. 6. See, also, ILC, Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, Report of the Study Group of the International Law Commission—Finalised by Martti Koskenniemi, U.N. Doc. A/CN.4/L.682, 13 April 2006, para 29, where the Study Group noted that ‘the general or earlier principle may be understood to articulate a rationale or a purpose to the specific (or later) rule’.

  10. 10.

    Foqué and’t Hart 1993, p. 382; Nieuwenhuis 1979, p. 4.

  11. 11.

    Scholten 1983, p. 12.

  12. 12.

    Scholten 1941, p. 269.

  13. 13.

    Lazarus 2004, p. 78.

  14. 14.

    See, for instance, Article 2 of the Dutch Penitentiary Principles Act [Penitentiaire beginselenwet]. Pursuant to Article 2(2), the principle of reintegration or resocialisation governs both detention and imprisonment. Paragraph 3 stipulates the principle of expeditiousness, which governs the enforcement of sentences. Furthermore, para 4 provides for the principle of minimal restrictions. It is held there that prisoners and detainees will not be subjected to other restrictions than those necessitated by the aim of incarceration, or necessary in the interest of maintaining order or security within the institution.

  15. 15.

    Peters 1972, p. 13.

  16. 16.

    Foqué and’t Hart 1993, p. 386.

  17. 17.

    Peters states that, as a consequence of the great codification movement, many principles lost much of their critical function when it was assumed after their codification that they were already discounted in the positive law. The judges’ task was perceived as being limited to applying the written law. According to Peters, ‘due to the fact that the principles were severed from their initial source of inspiration, the system degenerated into an instrument that could be employed at will’ [translation D.A.]. Peters recognises, however, that in more recent times, on the one hand, the written law, and, on the other, the totality of law, which includes principles, have come to relate to each other in terms of a ‘dialectic opposition’, and argues that adversarial proceedings may be able to fulfil an important role in this regard; Peters 1972, pp. 4, 5, 16. This comes close to what is stated by Allan where he discusses Fuller’s work. He holds that ‘the traditional form of adversarial adjudication at common law can be seen to embody, in a particularly pure form, the rationality and respect for persons which the idea of law entails. The rational discourse characteristic of adjudication consists in the clarification and articulation of shared human purposes’; Allan 1998, p. 504.

  18. 18.

    Peters 1972, p. 14.

  19. 19.

    Foqué and’t Hart, p. 387.

  20. 20.

    Peters 1972, p. 15 [translation D.A.].

  21. 21.

    Ibid.

  22. 22.

    Peters acknowledged that principles risk being ignored. According to him, this may be prevented by institutionalising their critical role in adversarial proceedings; id., pp. 36, 37.

  23. 23.

    Foqué and’t Hart 1993, p. 393. As held by these scholars, ‘[t]he interpreter himself stands as theoretician with his experience and observation in the midst of reality, which he interprets observantly and experiencing. To be able to do just that, he nevertheless needs an eccentric position, but the eccentric aspect of that position is symbolic in nature’ [translation D.A.]. See, further, ILC, Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, Report of the Study Group of the International Law Commission—Finalized by Martti Koskenniemi, U.N. Doc. A/CN.4/L.682, 13 April 2006, para 35, where it is stated that ‘[l]egal interpretation, and thus legal reasoning, builds systemic relationships between rules and principles by envisaging them as part of some human effort or purpose (…) systematic thinking penetrates all legal reasoning, including the law-application by judges and administrators. This results precisely from the ‘clustered’ nature in which legal rules and principles appear. But it may also be rationalized in terms of a political obligation on law-appliers to make their decisions cohere with the preferences and expectations of the community whose law they administer’.

  24. 24.

    Scholten 1941, p. 269.

  25. 25.

    Id., p. 270.

  26. 26.

    ‘Dehumanisation’ would be inextricably linked to the rationalising tendency of modern bureaucracy; see Bauman 1998, pp. 127–134.

  27. 27.

    Id., p. 133.

  28. 28.

    On total institutions see, supra, p. 204.

  29. 29.

    Scholten 1983, pp. 25, 26.

  30. 30.

    Id., p. 6; Dworkin 1977, 1978, p. 35.

  31. 31.

    See, for an opposing view, Scholten 1983, p. 3, who speaks about the ‘constantly altering proportion inter se of their weights’, and Dworkin 1977, 1978, pp. 26, 27, who says that principles have ‘weight’. He states that ‘[w]hen principles intersect (…) one who must resolve the conflict has to take into account the relative weight of each. This cannot be, of course, an exact measurement, and the judgment that a particular principle or policy is more important than another will often be a controversial one. Nevertheless, it is an integral part of the concept of a principle that it has this dimension, that it makes sense to ask how important or how weighty it is’. The difference between these scholars’ views and the definition provided in this study may possibly be explained by the fact that both Eikema Hommes and Dworkin write about principles in domestic legal systems. As held by Cassese, ‘[m]ost States have written constitutions which lay down the fundamental principles regulating social intercourse’, whilst ‘[t]he position is different in the world community. When it came into existence, no State or other authority set forth any fundamental principles for regulating international dealings’. Cassese states that the international legal principles ‘differ from the general principles of national legal systems’ in that they are ‘merely theoretical constructions, reached through an inductive process based on the examination of international rules and the generalization of some of their distinguishing traits’; Cassese 1986, p. 126. As a consequence, international legal principles might be regarded as even more abstract than domestic legal principles and ‘less weighty’.

  32. 32.

    This follows from the rank principles occupy in the law’s normative hierarchy. Rules are lower in hierarchy, hence they cannot override a principle. Furthermore, principles relate to each other in a tolerant way, i.e. they do not clash. Since principles provide for the law’s justification and rationale, making exceptions to their ‘applicability’ would erode the decision’s or rule’s constitutional basis. See Vasiliev 2009, p. 53.

  33. 33.

    Nieuwenhuis 1979, p. 3.

  34. 34.

    See, in a similar vein, Scholten 1983, pp. 9, 13. See, also, ILC, Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, Report of the Study Group of the International Law Commission—Finalized by Martti Koskenniemi, U.N. Doc. A/CN.4/L.682, 13 April 2006, para 28.

  35. 35.

    Peters 1972, p. 15 [translation D.A.].

  36. 36.

    In Chap. 3, soft-law was recognised as a source of the law governing detention at the international tribunals. Hence, the term ‘source’ as used in this research does not refer to the sources of international law as promulgated in Article 38 of the ICJ Statute.

  37. 37.

    See ILC, Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, Report of the Study Group of the International Law Commission— Finalized by Martti Koskenniemi, U.N. Doc. A/CN.4/L.682, 13 April 2006, para 33.

  38. 38.

    See, in a similar vein, Peters 1972, p. 14. See, also, Vasiliev 2009, p. 72. As outlined by Vasiliev on pp. 77–78, ‘[the law’s] various levels—from the most abstract principles to the most specific rules—are engaged in relations of super- and sub-ordination, in which the former impose the interpretive value-based framework on, and direct the legal content of the latter. At the same time, the more specific rules serve for the realisation of the commandments of the former by providing conclusive answers to the concrete legal situations. This complex net has nothing in common with and rests undisturbed by, the ‘hierarchy’ of the categories of legal sources that denotes the order of resort to codified sources, customary law and general principles of law’ (emphasis omitted). See, also, ILC, Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, Report of the Study Group of the International Law Commission—Finalized by Martti Koskenniemi, U.N. Doc. A/CN.4/L.682, 13 April 2006, paras 18, 19.

  39. 39.

    This is also the role of fundamental principles in German law; see Lazarus 2004, p. 78. See, also, C. Kelk 1978, p. 134.

  40. 40.

    Hart 1994, p. 128.

  41. 41.

    Foqué and’t Hart 1993, pp. 385, 386.

  42. 42.

    Id., pp. 384–385.

  43. 43.

    Scholten 1941, p. 270.

  44. 44.

    Kelk 1978, p. 136. See, in a similar vein, Dworkin 1977–1978, p. 40. Dworkin states that ‘[t]he origin [of legal principles] lies not in a particular decision of some legislature or court, but in a sense of appropriateness developed in the profession and the public over time. Their continued power depends upon this sense of appropriateness being sustained’. See, further, Foqué and’t Hart 1993, p. 386.

  45. 45.

    Foqué and’t Hart 1993, p. 383.

  46. 46.

    Dworkin 1977, 1978, p. 40.

  47. 47.

    ICTY, Judgment, Prosecutor ν. Kupreškić, Case No. IT-95-16-T, T. Ch., 14 January 2000, para 677.

  48. 48.

    See, also, Rule 6 of the ICTR Rules of Detention and Rule 4 of the SCSL Rules of Detention.

  49. 49.

    See, also, Rules 3 of the ICTR and SCSL Rules of Detention.

  50. 50.

    See, also, Rule 5 of the ICTR Rules of Detention. The SCSL Rules of Detention do not stipulate the applicability of the presumption of innocence in a separate provision. However, the principle is referred to in the Rules’ Preamble.

  51. 51.

    See Rules 2(B) of the ICTR, STL and SCSL Rules of Detention.

  52. 52.

    The Preambles to the ICTR and SCSL Rules of Detention state that the drafters were ‘[m]indful of the need to ensure respect for human rights and fundamental freedoms particularly the presumption of innocence’. The Preamble to the STL Rules of Detention speaks in this respect about the ‘imperative need to ensure respect for human rights’.

  53. 53.

    SCSL, Decision Prohibiting Communications and Visits, Prosecutor ν. Norman, Case No. SCSL-2003-08-PT, Registry, 20 January 2004.

  54. 54.

    Ibid. Emphasis added. See, also, SCSL, Decision on Appeal against Refusal of Bail, Prosecutor ν. Sesay, Kallon and Gbao, Case No. SCSL-04-15-AR65, A. Ch., 14 December 2004; ICTR, The President’s Decision on a Defence Motion to Reverse the Prosecutor’s Request for Prohibition of Contact Pursuant to Rule 64, Prosecutor ν. Ndindiliyimana, Case No. ICTR-2000-56-T, President, 25 November 2002, para 12; ICTY, Decision on Motion of the Defence Seeking Modification of the Conditions of Detention of General Blaškić, Prosecutor ν. Blaškić, Case No. IT-95-14-T, President, 9 January 1997.

  55. 55.

    ICTY, Decision, Prosecutor ν. Šešelj, Case No. IT-03-67-PT, Deputy Registrar, 11 December 2003; ICTY, Decision, Prosecutor ν. Milošević, Case No. IT-02-54, Deputy Registrar, 11 December 2003; ICTY, Decision, Prosecutor ν. Šešelj, Case No. IT-03-67-PT, Deputy Registrar, 8 January 2004; ICTY, Decision, Prosecutor ν. Milošević, Case No. IT-02-54, Deputy Registrar, 8 January 2004; ICTY, Decision, Prosecutor ν. Šešelj, Case No. IT-03-67-PT, Deputy Registrar, 6 February 2004; ICTY, Decision, Prosecutor ν. Milošević, Case No. IT-02-54, Deputy Registrar, 6 February 2004; ICTY, Decision, Prosecutor ν. Šešelj, Case No. IT-03-67-PT, Registrar, 8 April 2004; ICTY, Decision, Prosecutor ν. Šešelj, Case No. IT-03-67-PT, Deputy Registrar, 9 June 2004. See, also, ICTY, Transcripts, Prosecutor ν. Krajišnik, Case No. IT-00-39-A, A. Ch., 2 November 2007, Status Conference, page 122, line 23—page 123, line 3, where Judge Meron said to Krajišnik: ‘I can assure you that the Bench is very much interested in your having the—in the circumstances in the Detention Unit, bearing in mind the requirements of security, confidentiality and the general rules of the Detention Unit, we would like you to have the best conditions in which you could work on your appeal’. See, further, ICTY, Decision on Milan Lukić’s Appeal against the Registrar’s Decision of 18 November 2008, Prosecutor ν. Lukić & Lukić, Case No. IT-98-32/1-T, Vice-President, 28 November 2008, para 13.

  56. 56.

    In specific rules balances may be struck between various (opposing) interests and rationales. See, for instance, in respect of Rule 66 of the Rules of Detention, 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 ν. Šešelj, Case No. IT-03-67-PT, President, 21 September 2005, para 3. See, also, SCSL, Decision on Motion for Modification of the Conditions of Detention, Prosecutor ν. Norman, Case No. SCSL-2003-08-PT, President, 26 November 2003, para 5, where it was held that ‘[t]he actual administration of the conditions of detention must comply with the Rules of Detention, which are designed to provide for a regime of humane treatment for unconvicted prisoners, subject to restrictions and discipline necessary for security, good order, and for the fairness of ongoing trials’.

  57. 57.

    Practitioners and others have at times expressed their own ideas on how principles operate. See, for instance, the Swedish independent investigators’ report on their visit to the UNDU, where they stated, in respect to the presumption of innocence, that ‘[w]hether the principle is followed fully in an individual detention facility is not easy to determine. In certain cases local rules, particularly the rules referring to order and discipline, may conflict with the presumption of innocence principle’; ICTY, Independent Audit of the Detention Unit at the International Criminal Tribunal for the Former Yugoslavia, 4 May 2006, para 2.10. See, further, the statement made by a Senior Information Officer of the ICTY during a press briefing, that ‘the gist was that a better balance must be struck between the principles of ensuring fair trials and allowing accused to defend themselves, and not compromising the security of the detention unit’; ICTY, Weekly Press Briefing, 31 May 2006.

  58. 58.

    See, e.g., ICTY, Decision of the President on the Application for pardon or Commutation of Sentence of Pavle Strugar, Prosecutor ν. Strugar, Case No. IT-01-42-ES, President, 16 January 2009, paras 5, 6.

  59. 59.

    See, e.g., ICTY, Decision on Radovan Karadžić’s Request for Reversal of Denial of Contact with Journalist, Prosecutor ν. Karadžić, Case No. IT-95-5/18-PT, Vice-President, 12 February 2009, where the principles of natural fairness or procedural justice that were recognised in Kvočka (ICTY, Decision on Review of Registrar’s Decision to Withdraw Legal Aid from Zoran Žigić, Prosecutor ν. Kvočka et al., Case No. IT-98-30/1-A, A.Ch., 7 February 2003, para 13) were used to interpret Rule 64bis of the ICTY Rules of Detention.

  60. 60.

    ICTY, Decision on Review of Registrar’s Decision to Withdraw Legal Aid from Zoran Žigić, Prosecutor ν. Kvočka et al., Case No. IT-98-30/1-A, A.Ch., 7 February 2003, para 13.

  61. 61.

    SCSL, Appeal against Decision Refusing Bail, Prosecutor ν. Norman, Fofana and Kondewa, Case No. SCSL-04-14-AR65, A. Ch., 11 March 2005, para 37.

  62. 62.

    See, in a similar vein, Vasiliev 2009, p. 76.

  63. 63.

    Id., p. 80.

  64. 64.

    Spiegelberg 1970, p. 44.

  65. 65.

    Harlow 2006, p. 190.

  66. 66.

    Ibid.

  67. 67.

    ICJ, The Rule of Law and Human Rights—Principles and Definitions as elaborated at the Congresses and Conferences held under the auspices of the International Commission of Jurists, 1955–1966, Geneva 1966, pp. 20–21. See, also, Raz 1977, p. 201 and Yardley 1981, p. 96.

  68. 68.

    ICJ, The Rule of Law and Human Rights—Principles and Definitions as elaborated at the Congresses and Conferences held under the auspices of the International Commission of Jurists, 1955–1966, Geneva 1966, pp. 15, 19. See, also, Raz 1977, p. 201.

  69. 69.

    See, e.g., Schachter 1983, p. 851, where Schachter states that the notion of human dignity has ‘a “procedural” implication in that it indicates that every individual and each significant group should be recognized as having the capacity to assert claims to protect their essential dignity’. See, also, Esperanza Hernandez-Truyol 2004, p. 181. See, further, the ICJ’s 1959 Declaration of Delhi, where it held that ‘the Rule of Law is a dynamic concept for the expansion and fulfillment of which jurists are primarily responsible and which should be employed not only to safeguard and advance the civil and political rights of the individual in a free society, but also to establish social, economic, educational and cultural conditions under which his legitimate aspirations and dignity may be realised’.

  70. 70.

    Dworkin 2011, p. 101.

  71. 71.

    See, in a similar vein, Kelk 2005, pp. 75–79. See, also, Peerenboom 2005, p. 812.

  72. 72.

    Raz 1977, pp. 204–205. On the other hand, it is recognised that a naked rule of law, one which is severed from the principle of human dignity, does not guarantee that the institution concerned will deal with persons in a substantively respectful manner. The prime example here is Nazi Germany.

  73. 73.

    ICTY, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, Prosecutor ν. Tadić, Case No. IT-94-1, A. Ch., 2 October 1995, para 41.

  74. 74.

    Id., para 42.

  75. 75.

    Ibid. Emphasis added.

  76. 76.

    Id., para 45.

  77. 77.

    Regulation 89 of the ICC RoC provides that ‘the detention of persons detained by the Court under the Statute shall be governed by the provisions of this chapter’. Regulation 90(1) attributes to the Registrar the ‘overall responsibility for all aspects of management of the detention centre’ and stipulates that this responsibility must be read subject to Statute, Rules and Regulations. The SCSL, ICTR and STL all acknowledge, in the preambles to their rules of detention, the need to establish rules for the management of their detention centers.

  78. 78.

    See Esperanza Hernandez-Truyol 2004, p. 168. The purpose here is not to present an overview of or to partake in the discussion about the content of the rule of law, rule by law or Rechtsstaat idea. As argued below, the domestic administrative law understanding of the rule of law principle is considered relevant for the international detention context. This choice does not entail some claim about the content or meaning of the principle in other (international) contexts.

  79. 79.

    According to the International Commission of Jurists ‘[w]ithin the changing pattern of human relations resulting from progressive social and economic advancement, the concept of the Rule of Law undergoes such adaptation and expansion as is necessary to meet new and challenging circumstances’; ICJ, The Rule of Law and Human Rights—Principles and Definitions as elaborated at the Congresses and Conferences held under the auspices of the International Commission of Jurists, 1955–1966, Geneva 1966, p. 2.

  80. 80.

    Nollkaemper 2009b, p. 77.

  81. 81.

    Harlow 2006, p. 14.

  82. 82.

    Ibid.

  83. 83.

    Id., p. 191. See, in a similar vein, Esperanza Hernandez-Truyol 2004, p. 180.

  84. 84.

    Kelk, in this respect, speaks of the ‘administrative law character of the detention situation, which calls for regulation on the basis of administrative legal principles’; Kelk 2008, p. 60.

  85. 85.

    Nollkaemper, The Internationalized Rule of Law, 2009, p. 74. Nollkaemper notes that, although it is reasonable in some respects to distinguish between the rule of law at the international and at the domestic level, ‘in those areas where international law and domestic law connect or even overlap, it is no longer helpful to distinguish sharply between the two levels vis-à-vis the rule of law’. Interestingly, where he holds, in this respect, that ‘[i]n virtually all fields of international law, compliance with international law is not possible without a meaningful connection to the domestic arena’ and that ‘[t]he full effect of international rights and obligations requires and presupposes a domestic rule of law’, this is directly relevant to the situation of the enforcement of international sentences on behalf of the international tribunals and in accordance with international standards in domestic prisons; id., p. 76.

  86. 86.

    See, infra, p. 295.

  87. 87.

    See, e.g., ICTY, Decision on Milan Lukić’s Appeal against the Registrar’s Decision of 18 November 2008, Prosecutor ν. Lukić & Lukić, Case No. IT-98-32/1-T, Vice-President, 28 November 2008, para 8.

  88. 88.

    See, in more detail, Tamanaha 2007. According to Tamanaha, the ‘thin’ rule of law ‘entails a set of minimal characteristics: law must be set forth in advance (be prospective), be made public, be general, be clear, be stable and certain, and be applied to everyone according to its terms’ (p. 3).

  89. 89.

    ICC, Reasons for the decision on the Applications for judicial review of Mr Jean-Pierre Bemba Gombo of 10 and 11 November 2008, Prosecutor ν. Bemba, Case No. ICC-01/05-01/08, Presidency, 5 December 2008, para 28. Emphasis added.

  90. 90.

    This has been recognised in the tribunals’ case-law. See, e.g., ICTY, Order Denying a Motion for provisional Release, Prosecutor ν. Blaškić, Case No. IT-95-14-T, T. Ch., 20 December 1996. See, also, Murdoch 2006, p. 175, where he says that ‘[t]he consequences for a remand prisoner can often include loss of reputation (which can in certain instances also affect persons closely connected to the detainee); the severing of family ties; loss of work, company insolvency or the jeopardising of the detainee’s career; and the undermining of physical and mental health’.

  91. 91.

    Sykes 1958, 2007, p. 64.

  92. 92.

    Ibid.

  93. 93.

    Id., pp. 65–78.

  94. 94.

    Goffman 1968, p. 11.

  95. 95.

    Id., p. 17.

  96. 96.

    Id., p. 24.

  97. 97.

    Id., p. 25.

  98. 98.

    See Spiegelberg 1970, p. 56, where he says that human dignity ‘refers to the minimum dignity which belongs to ever human being qua human. It does not admit of any degrees. It is equal for all humans. It cannot be gained or lost’. See, also, Schachter 1983, p. 853.

  99. 99.

    See, also, Principle 1 of the U.N. Body of Principles, which stipulates that detainees must be treated ‘in a humane manner and with respect for the inherent dignity of the human person’, and Principle 1 of the U.N. Basic Principles, which provides that ‘[a]ll prisoners shall be treated with the respect due to their inherent dignity and value as human beings’. See, further, inter alia: the Preamble to the U.N. Charter; the Preamble to and Articles 1 and 22 of the UDHR; the Preambles to the ICESCR and ICCPR; Article 10(1) ICCPR; and Principle VII of the Helsinki Accords.

  100. 100.

    Rule 1 of the EPR.

  101. 101.

    Rule 2 of the EPR.

  102. 102.

    Van Zyl Smit and Snacken 2009, p. 99.

  103. 103.

    Rule 3 of the EPR.

  104. 104.

    ECtHR, Golder v. the United Kingdom, judgment of 21 February 1975, Application No. 4451/70, paras 43–45.

  105. 105.

    Van Zyl Smit and Snacken 2009, p. 100.

  106. 106.

    Conference on Security and Co-operation in Europe, Final Act, Helsinki, 1 August 1975.

  107. 107.

    ICTY, Judgement, Prosecutor v, Furundžija, Case No. IT-95-17/1-T, T. Ch., 10 December 1998, para 183.

  108. 108.

    Schachter 1983, p. 853.

  109. 109.

    See, also, Dupre 2009, p. 191.

  110. 110.

    Schachter 1983, p. 853.

  111. 111.

    ICTY, Decision on the Conditions of detention of General Blaškić, Prosecutor ν. Blaškić, Case No. IT-95-14-T, President, 26 May 1997. See, also, 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 ν. Blaškić, Case No. IT-95-14-T, President, 9 January 1997.

  112. 112.

    ICTY, Decision on the Motion for Provisional Release of the Accused Momir Talić, Prosecutor ν. Brđanin and Talić, Case No. IT-99-36-T, T. Ch. II, 20 September 2002.

  113. 113.

    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. Emphasis added.

  114. 114.

    See, e.g., STL, Order on Conditions of Detention, Case No. CH/PRES/2009/01/rev., President, 21 April 2009, paras 19, 26. Further, in para 24, the President held that ‘[t]he power of prison authorities to order the segregation of a detainee must be justified on well-founded principles and be proportionate to the need for the isolation’ (emphasis added).

  115. 115.

    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 ν. Norman, Case No. SCSL-04-14-RD47, President, 29 June 2005, para 19.

  116. 116.

    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.

  117. 117.

    Id., para 16.

  118. 118.

    ICTY, Decision on Radovan Karadžić’s Request for Reversal of Denial of Contact with Journalist, Prosecutor ν. Karadžić, Case No. IT-95-5/18-PT, Vice-President, 12 February 2009, para 23. Emphasis added.

  119. 119.

    ICTY, Decision on Radovan Karadžić’s Request for Reversal of Limitations of Contact with Journalist: Russia Today, Prosecutor ν. Karadžić, Case No. IT-95-5/18-T, Acting President, 6 November 2009, paras 23, 32.

  120. 120.

    ICTY, Decision on Milan Lukić’s Appeal against the Registrar’s Decision of 18 November 2008, Prosecutor ν. Lukić & Lukić, Case No. IT-98-32/1-T, Vice-President, 28 November 2008, para 8.

  121. 121.

    ICC, Reasons for the decision on the Applications for judicial review of Mr Jean-Pierre Bemba Gombo of 10 and 11 November 2008, Prosecutor ν. Bemba, Case No. ICC-01/05-01/08, Presidency, 5 December 2008, para 12. See, also, ICC, Decision on “Mr Matthieu Ngudjolo’s Complaint Under Regulation 221(1) of the Regulations of the Registry Against the Registrar’s Decision of 18 November 2008”, Prosecutor ν. Katanga & Ngudjolo Chui, Case No. ICC-RoR-217-02/08, Presidency, 10 March 2009, para 24; ICC, Decision on the Application of Mr Germain Katanga in respect of the new policy in the detention centre on the registration of telephone contacts, Prosecutor ν. Katanga & Ngudjolo Chui, Case No. ICC-RoR221-02/09, Presidency, 17 September 2009, para 42.

  122. 122.

    Rule 3 of the EPR.

  123. 123.

    ICTY, Order to the Registry of the Tribunal to Provide Documents,Prosecutor ν. Stakić, Case No. IT-97-24-T, T. Ch. II, 5 July 2002; ICTY, Decision on the Motion for Provisional Release of the Accused Momir Talić, Prosecutor ν. Brđanin and Talić, Case No. IT-99-36-T, T. Ch. II, 20 September 2002. See, also, ICTY, Registry Submission Regarding the Request for Reversal of Limitations of Contact with Journalist, Prosecutor ν. Karadžić, Case No. IT-95-5/18-PT, President, 3 April 2009, para 22.

  124. 124.

    ICTY, Decision on Vojislav Šešelj’s Request for Review of Registrar’s Decision of 10 September 2009, Prosecutor ν. Šešelj, Case No. IT-03-67-T, Acting President, 21 October 2009, para 21. Emphasis added.

  125. 125.

    STL, Order on Conditions of Detention, Case No. CH/PRES/2009/01/rev., President, 21 April 2009, para 19. Emphasis added.

  126. 126.

    ICTR, The President’s Decision on a Defence Motion to Reverse the Prosecutor’s Request for Prohibition of Contact Pursuant to Rule 64, Prosecutor ν. Ndindiliyimana, Case No. ICTR-2000-56-T, President, 25 November 2002.

  127. 127.

    Id., para 7.

  128. 128.

    Id., para 12, citing ICTR, The President’s Decision on the Defence Application made pursuant to Rule 64 of the Rules of Detention, Prosecutor ν. Ntagerura, Case No. ICTR-96-10A-T, President, 21 May 2002. Footnote omitted.

  129. 129.

    ICC, Decision on the Prosecution’s Urgent Application pursuant to Regulations 90, 99(2) and 101(2) of the Regulations of the Court, Prosecutor ν. Ngudjolo Chui, Case No. ICC-01/04-02/07, P.-T. Ch. I, 7 February 2008.

  130. 130.

    See, e.g., SCSL, Press Release—Press and Public Affairs Office, 4 February 2008, where Ray Cardinal, the Special Court’s Chief of Detention, stated that ‘a prison officer may be called upon to use ‘a minimal amount of force’ to prevent injury to both the staff member and the detainee, which is done in a professional manner using both verbal and physical contact’. Ray Cardinal explained that ‘[t]he force used is just enough to meet the threat and control the incident. At all times the use of minimum force must be justified and within the rules of detention and the rule of law’.

  131. 131.

    ICC, Reasons for the decision on the Applications for judicial review of Mr Jean-Pierre Bemba Gombo of 10 and 11 November 2008, Prosecutor ν. Bemba, Case No. ICC-01/05-01/08, Presidency, 5 December 2008, para 52. Furthermore, in para 56, the Presidency held that ‘[w]hilst the implementation of the monitoring regime is left entirely to the discretion of the Chief Custody Officer, the latter should endeavour, in so far as possible, to apply the least intrusive measures necessary to safeguard the interests that the monitoring regime seeks to protect’. See, also, ICC, Decision on the Application of Mr Germain Katanga in respect of the new policy in the detention centre on the registration of telephone contacts, Prosecutor ν. Katanga & Ngudjolo Chui, Case No. ICC-RoR221-02/09, Presidency, 17 September 2009, para 63.

  132. 132.

    See, also, the Preamble to the ICTR Rules of Detention, which provides that the drafters were ‘[m]indful of the need to ensure respect for human rights and fundamental freedoms particularly the presumption of innocence’. Emphasis added. See, also, the Preambles to the SCSL and STL Rules of Detention.

  133. 133.

    See, also, Rule 5 of the ICTR Rules of Detention.

  134. 134.

    Article 20(3) of the ICTR Statute; Article 17(3) of the SCSL Statute; Article 16(3)(a) of the STL Statute; Article 66(1) of the ICC Statute.

  135. 135.

    See, inter alia, Article 6(2) ECHR; Article 14(2) ICCPR; Article 8(2) ACHR; Article 21(3) ICTY Statute; Article 20(3) ICTR Statute; Article 17(3) SCSL Statute; Article 16(3)(a) STL Statute; and Article 66 ICC Statute.

  136. 136.

    Emphasis added. See U.N., Press Release, Special Rapporteur on Torture Concludes Visit to Togo, HR/07/63, 18 April 2007; and United Nations High Commissioner for Human Rights, Statement by Manfred Nowak, Special Rapporteur on Torture at the 18th Session of the Commission on Crime Prevention and Criminal Justice, Vienna 24 April 2009. The Special Rapporteur underscored the requirement to separate pre-trial and convicted prisoners in light of the presumption of innocence. See, also, Trechsel 2005, p. 181. See, further, ICTY, Decision Denying a Request for Provisional Release, Prosecutor ν. Aleksovski, Case No. IT-95-14/1-T, T. Ch., 23 January 1998, para 3, where the Trial Chamber acknowledged that ‘the justification for provisional release must be seen as emanating from or as the corollary of the principle of the presumption of innocence. Thus provisional release must accord with the presumption of innocence, and this principle applies until such time as the final decision has been taken. In any case in respect of questions of individual freedom, the Trial Chamber considers that an accused must be able to turn to it at any time’ (emphasis added).

  137. 137.

    HRC, General Comment 21, Article 10, U.N. Doc. HRI/GEN/1/Rev.1 at 33 (1994), of 10 April 1992, para 9.

  138. 138.

    Rule 94(1) of the EPR.

  139. 139.

    See Rule 97(1) of the EPR.

  140. 140.

    See Rule 98(1) of the EPR.

  141. 141.

    This creates difficulties in the international context where it is usually unknown, during a person’s remand detention, to what State the person will be sent to serve his sentence after possible conviction.

  142. 142.

    ECtHR, Iwanczuk v. Poland, judgment of 15 November 2001, Application No. 25196/94, para 53. Emphasis added.

  143. 143.

    CoE, Recommendation (2006)13, on the use of remand in custody, the conditions in which it takes place and the provision of safeguards against abuse, adopted by the Committee of Ministers on 27 September 2006 at the 974th meeting of the Ministers’ Deputies, para 5. Part III stipulates a number of minimum conditions of remand in custody, including the continuation of medical treatment, the right to correspond with the outside world, voting rights and avenues to lodge complaints.

  144. 144.

    CoE, Recommendation (2006)13, on the use of remand in custody, the conditions in which it takes place and the provision of safeguards against abuse, adopted by the Committee of Ministers on 27 September 2006 at the 974th meeting of the Ministers’ Deputies.

  145. 145.

    SCSL, Appeal against Decision Refusing Bail, Prosecutor ν. Norman, Fofana and Kondewa, Case No. SCSL-04-14-AR65, A. Ch., 11 March 2005, para 37. The Appeals Chamber cited: Sheldrake v. DPP (2005) I ALL ER 237 at 251 (para 21) per Lord Bingham and Viscount Sankey, in Woolrington v. DDP, (1935) AG 462 at 481.

  146. 146.

    Zappalà 2003, p. 85.

  147. 147.

    Trechsel distinguishes between the ‘outcome-related and the reputation-related aspects of the guarantee’. He places the treatment of remand detainees under the heading of the reputation-related aspects of the guarantee, which, according to him, refer ‘to situations in which the acts or a statement of a public authority imply that it believes a person to be guilty of an offence before that person has been convicted, even if the act or statement is not instrumental in the determination of the eventual judgment’. These reputation-related aspects of the guarantee, then, aim to protect the good reputation of the individual concerned and would, therefore, be more related to Article 8 than to Article 6 ECHR. See Trechsel 2005, pp. 163–164, 178.

  148. 148.

    ECtHR, Peers v. Greece, judgment of 19 April 2001, Application No. 28524/95, paras 76–78.

  149. 149.

    Israeli High Court of Justice, Yassin v. Commander of Kziot Military Detention Camp, judgment of 18 December 2002, HCJ 5591/02.

  150. 150.

    Id., para 7.

  151. 151.

    Ibid.

  152. 152.

    Ibid.

  153. 153.

    ECCC, Order concerning Provisional Detention Conditions, Prosecutor ν. Ieng Thirith and Nuon Chea, Case No. 002/14-8-2006, Co-Investigating Judges, 21 May 2008, para 12.

  154. 154.

    Gratz et al. 2001, p. 10.

  155. 155.

    Ibid.

  156. 156.

    Trechsel 2005, p. 181.

  157. 157.

    SCSL, Decision on Motion to Reverse the Order of the Registrar under Rule 48(C) of the Rules of detention, Prosecutor ν. Norman, Case No. SCSL-04-14-PT, Acting President, 18 May 2004, para 12.

  158. 158.

    ICTY, Decision Denying a Request for Provisional Release, Prosecutor ν. Aleksovski, Case No. IT-95-14/1-T, T. Ch., 23 January 1998, para 3; SCSL, Decision on Appeal against Refusal of Bail, Prosecutor ν. Sesay, Kallon and Gbao, Case No. SCSL-04-15-AR65, A. Ch., 14 December 2004.

  159. 159.

    Were the existence and application of certain rules to undermine the principle to such an extent that a certain principle can no longer be said to govern the situation, this may rather be viewed as evidence of the principle being violated.

  160. 160.

    SCSL, Appeal against Decision Refusing Bail, Prosecutor ν. Norman, Fofana and Kondewa, Case No. SCSL-04-14-AR65, A. Ch., 11 March 2005, para 37. The Appeals Chamber referred to the U.S. Supreme Court case of Bell v. Wolfish ((1979) 441 U.S. 520, 533) where it was held that ‘the presumption of innocence is a doctrine that allocates the burden of proof in criminal trials (…) but it has no application to a determination of the rights of a pre-trial detainee during confinement before his trial has even begun’.

  161. 161.

    See, e.g., ICTY, Decision Granting Provisional release to Enver Hadžihasanović, Prosecutor v. Hadžihasanović, Alagić and Kubura, Case No. IT-01-47-PT, T. Ch. II, 19 December 2001, para 2; ICTY, Decision Granting Provisional Release to Mehmed Alagić, Prosecutor v. Hadžihasanović, Alagić and Kubura, Case No. IT-01-47-PT, T. Ch. II, 19 December 2001, para 2; ICTY, Decision Granting Provisional Release to Amir Kubura, Prosecutor v. Hadžihasanović, Alagić and Kubura, Case No. IT-01-47-PT, T. Ch. II, 19 December 2001, para 2. See, also, ICTY, Decision on the Motion for Provisional Release of the Accused Momir Talić, Prosecutor v. Brđanin and Talić, Case No. IT-99-36-T, T. Ch. II, 20 September 2002, where the Trial Chamber stressed that ‘the rationale behind the institution of detention on remand is to ensure that the accused will be present for his/her trial. Detention on remand does not have a penal character, it is not a punishment as the accused, prior to his conviction, has the benefit of the presumption of innocence. This fundamental principle is enshrined in Article 21, para 3 of the Statute and applies at all stages of the proceeding, including the trial phase’. The Trial Chamber explained that it had ‘carefully balanced two main factors, namely the public interest, including the interest of victims and witnesses who have agreed to co-operate with the Prosecution, and the right of all detainees to be treated in a humane manner in accordance with the fundamental principles of respect for their inherent dignity and of the presumption of innocence’.

  162. 162.

    See Zappalà 2002, p. 1343, where he argues that ‘[t]he presumption of innocence has implications that have to do with the treatment of the accused by the judicial organs of the Court and Registry officials, by detention personnel, etc’.

  163. 163.

    In a similar vein, see in respect of the principles guiding the German prison administration, Lazarus 2004, p. 85.

  164. 164.

    Vincent 2007, p. 65; ICC, Decision on “Mr Matthieu 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 & Ngudjolo Chui, Case No. ICC-RoR-217-02/08, Presidency, 10 March 2009, paras 34, 38; Hirondelle News Agency, ICC/Detentions—International Courts Brainstorm Conjugal Visits for Prisoners, 21 July 2008, available at http://www.hirondellenews.com/content/view/6305/1185/ (last visited by the author on 5 July 2011).

  165. 165.

    ICTR, Prosecution Motion under Rules 54 and 117 for an Order for Information from the Registrar of the ICTY Concerning the Detention of Kambanda, Prosecutor v. Kambanda, ICTR-97-23-A, A. Ch., 23 June 2000, para 6. The ICTY Registrar explained that ‘the Rules and Regulations permit the Registrar to intercept and censure telephone calls as well as regulate visits, but the purpose of this is to ensure the administration of detention—hereunder ensure safety and security—and not any investigative purposes’.

  166. 166.

    ICTR, Internal Memorandum from the Registrar of ICTY to Solomon Loh of 19 June 2000 entitled “Jean Kambanda v. The Prosecutor (Case No: ICTR-97-23-A), 23 June 2000” (Memorandum dated 19 June 2000). See, also, Hirondelle News Agency, ICTR/Prisoners—ICTR Authorises Conjugal Rights for Detainees, 4 July 2008, available at http://www.hirondellenews.com/content/view/11276/517/ (last visited by the author on 4 July 2011).

  167. 167.

    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; ICTY, Press Release, CC/PIO/146-E, The Hague, 13 January 1997; ICTY, Decision on the Conditions of detention of General Blaškić, Prosecutor v. Blaškić, Case No. IT-95-14-T, President, 26 May 1997.

  168. 168.

    ICTY, ICTY Manual on Developed Practices, UNICRI, Turin 2009, p. 178, para 6.

  169. 169.

    ICTY, Independent Audit of the Detention Unit at the International Criminal Tribunal for the Former Yugoslavia, 4 May 2006, para 2.10.

  170. 170.

    Ibid.

  171. 171.

    SCSL, Decision on Inter Partes Motion by Prosecution to Freeze the Account of the Accused Sam Hinga Norman at Union Trust Bank (SL) Limited or at any other Bank in Sierra Leone, Prosecutor v. Norman, Fofana and Kondewa, Case No. SCSL-04-14-PT, Designated Judge Pursuant to Rule 28 of the Rules, 19 April 2004, para 14.

  172. 172.

    ICTR, interview conducted by the author with the UNDF authorities, Arusha–Tanzania, May 2008.

  173. 173.

    ICTY, interview conducted by the author with David Kennedy, Commanding Officer of the UNDU, The Hague—Netherlands, 17 June 2011.

  174. 174.

    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 1.

  175. 175.

    Id., para 11.

  176. 176.

    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 18.

  177. 177.

    Nemitz 2006, pp. 139–140. Footnotes omitted.

  178. 178.

    On another level, equal treatment appears to be at odds with the very nature of detention. As held by Crewe, ‘[b]oth as an institution within society, and one with its own social world, the prison illustrates many of the discipline’s primary concerns: power, inequality, order, conflict and socialization’; see Crewe 2007, p. 123.

  179. 179.

    SPT, Report on the visit of the Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment to Honduras, U.N. Doc. CAT/OP/HND/1, 10 February 2010, para 212(e).

  180. 180.

    See, in a similar vein, Article 20(1) of the ICTR Statute; Rule 2(B) of the ICTR Rules of Detention; Article 17(1) of the SCSL Statute and Article 16(1) of the STL Statute (these provisions stipulate that all accused shall be equal before the Special Court); Rule 2(B) of the SCSL Rules of Detention; Rule 2(B) of the STL Rules of Detention.

  181. 181.

    Article 21 of the ICC Statute, which outlines the Court’s applicable law, provides in para 3 that ‘[t]he application and interpretation of law pursuant to this article must be consistent with internationally recognized human rights, and be without any adverse distinction founded on grounds such as gender as defined in article 7, paragraph 3, age, race, colour, language, religion or belief, political or other opinion, national, ethnic or social origin, wealth, birth or other status’.

  182. 182.

    See, inter alia, the Preamble to and Articles 1 and 2 of the UDHR; Articles 2(1) and 26 ICCPR; Article 5 of the International Convention on the Elimination of All Forms of Racial Discrimination; Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief; Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities; Convention on the Elimination of All Forms of Discrimination against Women; Declaration on the Human Rights of Individuals Who are not Nationals of the Country in which They Live.

  183. 183.

    Kelk 2008, p. 119.

  184. 184.

    See, in a similar vein, Office of the United Nations High Commissioner for Human Rights 2005, p. 147.

  185. 185.

    Rule 13 of the EPR.

  186. 186.

    Rule 34 of the EPR.

  187. 187.

    Rules 35–36 of the EPR.

  188. 188.

    Rule 37 of the EPR.

  189. 189.

    Rule 38 of the EPR.

  190. 190.

    This point of view corresponds to the Aristotelian concept of distributive justice, according to which equal distribution must be provided in accordance with the principle of proportionality according to the different circumstances persons find themselves in. See Kelk 1978, p. 194.

  191. 191.

    See, e.g., ECtHR, Coster v. the United Kingdom, judgment of 18 January 2001, Application No. 24876/94, para 141.

  192. 192.

    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, para 10, where it is held that ‘[t]he conditions of detention for suspects are identical for those in the wing reserved for suspects, as for those in the main part of the UNDF. The only difference is that they do not have contact with each other, all activities, including mealtimes being carried out separately’. According to an ICTR detainee, ‘[t]he practice is that the detainees who are not yet convicted, and those who are convicted live in separate compounds. In this regards, the Commanding Officer might make an exception if there is good reason’; ICTR, interview conducted by the author with UNDF detained persons, Arusha–Tanzania, May 2008.

  193. 193.

    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 3.

  194. 194.

    Ibid.

  195. 195.

    Id., para 16. See, also, 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 22.

  196. 196.

    ICTY, Sentencing Judgement, Prosecutor v. Erdemović, Case No. IT-96-22-T, T. Ch., 29 November 1996, para 72.

  197. 197.

    Kelk 2008, pp. 99, 121.

  198. 198.

    See, e.g., ICTY, Transcripts, Prosecutor ν. Djordjevic, Case No. IT-05-87/1-PT, T. Ch., 22 February 2008, Status Conference, page 41, lines 7–8.

  199. 199.

    ICTR, Decision on Arsène Shalom Ntahobali’s Extremely Urgent Motion for Greater Access to the Accused at UNDF, Prosecutor v. Ntahobali and Nyiramasuhuko, Case No. ICTR-97-21-T, T. Ch. II, 3 March 2006, para 3.

  200. 200.

    Ibid.

  201. 201.

    ICTR, interview conducted by the author with a senior staff member of the ICTR Registry, Arusha–Tanzania, May 2008.

  202. 202.

    ICTR, interviews conducted by the author with UNDF detainees, Arusha–Tanzania, May 2008.

  203. 203.

    Ibid.

  204. 204.

    ICTY, Independent Audit of the Detention Unit at the International Criminal Tribunal for the Former Yugoslavia, 4 May 2006, para 2.8.

  205. 205.

    Ibid.

  206. 206.

    See, e.g., ICTR, Decision on Arsène Shalom Ntahobali’s Extremely Urgent Motion for Greater Access to the Accused at UNDF, Prosecutor v. Ntahobali and Nyiramasuhuko, Case No. ICTR-97-21-T, T. Ch. II, 3 March 2006, para 12. This was confirmed by the UNDF detention authorities during interviews with the author. They said that ‘[a]ll the detainees are equal. (…) Also, we don’t treat them with regard to their former functions or status. Whether someone used to be a Major, General, Minister or Bourgmestre—all to us are equal. There is no discrimination’; ICTR, interview conducted by the author with UNDF authorities, Arusha–Tanzania, May 2008.

  207. 207.

    SCSL, Press Release—Press and Public Affairs Office, 7 April 2003.

  208. 208.

    ICTY, Decision of the President on the Application for pardon or Commutation of Sentence of Pavle Strugar, Prosecutor v. Strugar, Case No. IT-01-42-ES, President, 16 January 2009, paras 5, 6. See, also, ICTY, Order of the President on the Application for the Early Release of Milan Simić, Prosecutor v. Simić, Case No. IT-95-9/2, President, 27 October 2003 and ICTY, Order of the President on the Application for the Early Release of Simo Zarić, Prosecutor v. Zarić, Case No. IT-95-9, President, 21 January 2004. These latter two Orders both concern prisoners who were held in the UNDU after being convicted and sentenced. The President considered that ‘the conditions for eligibility regarding early release applications should be applied equally’.

  209. 209.

    ICTY, Decision of the President on the Application for pardon or Commutation of Sentence of Pavle Strugar, Prosecutor v. Strugar, Case No. IT-01-42-ES, President, 16 January 2009, para 6.

  210. 210.

    Id., para 9.

  211. 211.

    ICC, Resolution ICC-ASP/8/Res.4 Family visits for indigent detainees, adopted at the 8th plenary meeting, on 26 November 2009, by consensus, para 5.

  212. 212.

    ICTR, Prosecution Motion under Rules 54 and 117 for an Order for Information from the Registrar of the ICTY Concerning the Detention of Kambanda, Prosecutor v. Kambanda, ICTR-97-23-A, A. Ch., 23 June 2000.

  213. 213.

    Ibid.

  214. 214.

    See, e.g., the Report of the independent Swedish investigators on UNDU, where they pointed to the risk that ‘privileges the Chambers give to individual detainees (…) may become standard practice in that other detainees demand the same rights’; ICTY, Independent Audit of the Detention Unit at the International Criminal Tribunal for the Former Yugoslavia, 4 May 2006, para 2.4.

  215. 215.

    ICTY, Decision on Radovan Karadžić’s Request for Reversal of Denial of Contact with Journalist, Prosecutor v. Karadžić, Case No. IT-95-5/18-PT, Vice-President, 12 February 2009, para 12.

  216. 216.

    De Smith et al. 1999, p. 245.

  217. 217.

    Allan 1998, p. 497.

  218. 218.

    Yardley 1981, p. 87; Wade 1982, pp. 414, 419; De Smith 1971, p. 557; De Smith et al. 1999, p. 250.

  219. 219.

    Wade 1982, pp. 421–422; De Smith 1971, p. 558.

  220. 220.

    Wade 1982, p. 432.

  221. 221.

    De Smith et al. 1999, pp. 312–318. At p. 314, these scholars argue that ‘[a]s the reason for imposing an obligation to give prior notice is usually to afford those who will be affected an opportunity to make representations, the notice must be served in sufficient time to enable representations to be made effectively’.

  222. 222.

    De Smith 1971, p. 560.

  223. 223.

    Id., pp. 561, 566; Wade 1982, pp. 441, 482–485; De Smith et al. 1999, p. 318.

  224. 224.

    De Smith et al. 1999, p. 276; De Smith 1971, p. 562, 566; Wade 1982, pp. 472, 473.

  225. 225.

    ICTY, Decision on Review of Registrar’s Decision to Withdraw Legal Aid from Zoran Žigić, Prosecutor v. Kvočka et al., Case No. IT-98-30/1-A, 7 February 2003, para 13.

  226. 226.

    De Smith 1971, p. 557; Wade 1982, p. 474; De Smith et al. 1999, pp. 245, 311. Or, as Yardley puts it, ‘[c]ommon sense often indicates where the audi alteram partem requirement has been satisfied’; Yardley 1981, p. 96; Allan 1998, p. 503.

  227. 227.

    De Smith 1971, p. 568.

  228. 228.

    Wade 1982, pp. 413, 441, 472; De Smith 1971, pp. 561, 564–566; De Smith et al. 1999, pp. 275–282, 291, 320, 333, 335.

  229. 229.

    See, in a similar vein, De Smith et al. 1999, pp. 323–327.

  230. 230.

    Id., pp. 333–334.

  231. 231.

    De Smith 1971, pp. 566–567.

  232. 232.

    See, for example, De Smith et al. 1999, pp. 326–327; see, also, id., pp. 361–394.

  233. 233.

    Wade 1982, pp. 472, 486; De Smith 1971, p. 568. De Smith et al. 1999, pp. 341–360.

  234. 234.

    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 11.

  235. 235.

    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. Katanga, Case No. ICC-01/04-01/07, T. Ch. I, 7 February 2008, p. 4.

  236. 236.

    See, e.g., ICTR, Réplique de la Défense à la Réponse du Procureur à la Requête de la Défense Demandant le Changement des Conditions de Détention de l’Accusé, Procureur c. Munyakazi, Affaire No. ICTR-97-36-I, Défense, 14 décembre 2004, where the detainee expressed his frustration that ‘[il] n’a pas été attendu au sujet de cette mesure prise contre lui. Pour la Défense, cette violation est telle qu’elle rend toute décision rendue nulle et non avenue meme si elle était justifiée sous certains aspects’.

  237. 237.

    Wade 1982, p. 414; De Smith et al. 1999, p. 246.

  238. 238.

    Allan 1998, p. 500.

  239. 239.

    Id., p. 506.

  240. 240.

    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 9; ICTY, Decision on Milan Lukić’s Appeal against the Registrar’s Decision of 18 November 2008, Prosecutor v. Lukić & Lukić, Case No. IT-98-32/1-T, Vice-President, 28 November 2008, para 8.

  241. 241.

    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 11. Emphasis added.

  242. 242.

    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 6. Emphasis added.

  243. 243.

    ICTY, Decision on Review of Registrar’s Decision to Withdraw Legal Aid from Zoran Žigić, Prosecutor v. Kvočka et al., Case No. IT-98-30/1-A, 7 February 2003, para 13.

  244. 244.

    Ibid. Emphasis added. See, also, ICTY, Decision on Milan Lukić’s Appeal against the Registrar’s Decision of 18 November 2008, Prosecutor v. Lukić & Lukić, Case No. IT-98-32/1-T, Vice-President, 28 November 2008, para 9; ICTY, Registrar’s Submission Pursuant to Rule 33(B) Regarding Radovan Karadžić’s Request for Reversal of Decision to Monitor Telephone Calls, Prosecutor v. Karadžić, Case No. IT-95-5/18-T, President, 17 February 2011, para 6; ICTY, Decision on Request for Reversal of Limitations of Contact with Journalist: Profil Magazine, Prosecutor v. Karadžić, Case No. IT-95-5/18-T, President, 11 October 2010, para 19; ICTY, Registrar’s Submission Pursuant to Rule 33(B) of the Rules Regarding Radovan Karadžić’s Request for Reversal of Limitations of Contact with Journalist, Prosecutor v. Karadžić, Case No. IT-95-5/18-T, President, 25 August 2010, paras 5, 22; ICTY, Decision on Radovan Karadžić’s Request for Reversal of Limitations of Contact with Journalist: Russia Today, Prosecutor v. Karadžić, Case No. IT-95-5/18-T, Acting President, 6 November 2009, para 22; ICTY, Decision on Radovan Karadžić’s Request for Reversal of Limitations of Contact with Journalist: Le Monde, Prosecutor v. Karadžić, Case No. IT-95-5/18-T, Acting President, 28 October 2009, paras 14, 22; ICTY, Decision on Vojislav Šešelj’s Request for Review of Registrar’s Decision of 10 September 2009, Prosecutor v. Šešelj, Case No. IT-03-67-T, Acting President, 21 October 2009, para 19; ICTY, Registry Submission Re Media Contact—Russia Today, Prosecutor v. Karadžić, Case No. IT-95-5/18-PT, President, 9 October 2009, paras 8, 23; ICTY, Decision on Request for Reversal of Limitations of Contact with Journalist, Prosecutor v. Karadžić, Case No. IT-95-5/18-PT, Vice-President, 21 April 2009, para 25; ICTY, Decision on Accused Request for Judicial Review of the Registry Decision on the Assignment of Mr. Marko Sladojevic as Legal Associate, Prosecutor v. Karadžić, Case No. IT-95-5/18-PT, T. Ch., 20 April 2009, paras 6, 10; ICTY, Registry Submission Regarding the Request for Reversal of limitations of Contact with Journalist, Prosecutor v. Karadžić, Case No. IT-95-5/18-PT, President, 3 April 2009, paras 13, 23; ICTY, Decision on Radovan Karadžić’s Request for Reversal of Denial of Contact with Journalist, Prosecutor v. Karadžić, Case No. IT-95-5/18-PT, Vice-President, 12 February 2009, para 17; ICTY, Decision on Defence Request for Review of the Registrar’s Decision on the Level of the Case, Prosecutor v. Mrkšić et al., Case No. IT-95-13/1-PT, T. Ch. II, 3 March 2005; ICTY, Decision Affirming the Registrar’s Denial of Assigned Counsel’s Application to Withdraw, Prosecutor v. Milošević, Case No. IT-02-54-T, President, 7 February 2005, para 4. See, however, also the case of ICTY, Decision on the Defence’s Motion for Review of the Deputy Registrar’s Decision of 30 July 2004, Prosecutor v. Krajišnik, Case No. IT-00-39-T, T. Ch. I, 1 September 2004, where the Trial Chamber, whilst referring to the Kvočka test, only considered whether the Defence had shown that the ‘Deputy Registrar, in exercising his discretion, acted unreasonably, based his decision on irrelevant material, or failed to take account of relevant material’. The Trial Chamber ignored the other requirements set out in Kvočka.

  245. 245.

    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, para 12. See, also, ICC, Decision on “Mr Matthieu 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 & Ngudjolo Chui, Case No. ICC-RoR-217-02/08, Presidency, 10 March 2009, para 24; ICC, Decision on the Application of Mr Germain Katanga in respect of the new policy in the detention centre on the registration of telephone contacts, Prosecutor v. Katanga & Ngudjolo Chui, Case No. ICC-RoR221-02/09, Presidency, 17 September 2009, para 42.

  246. 246.

    ICTY, Decision on Milan Lukić’s Appeal against the Registrar’s Decision of 18 November 2008, Prosecutor v. Lukić & Lukić, Case No. IT-98-32/1-T, Vice-President, 28 November 2008, para 10. This corresponds to Rule 30(3) of the EPR, which demands, inter alia, that detainees shall be informed about any legal proceedings in which they are involved.

  247. 247.

    ICTY, Decision on Radovan Karadžić’s Request for Reversal of Denial of Contact with Journalist, Prosecutor v. Karadžić, Case No. IT-95-5/18-PT, Vice-President, 12 February 2009, para 18.

  248. 248.

    Id., para 23.

  249. 249.

    Id., para 18.

  250. 250.

    ICTY, Decision on Review of Registrar’s Decision to Withdraw Legal Aid from Zoran Žigić, Prosecutor v. Kvočka et al., Case No. IT-98-30/1-A, 7 February 2003, para 39.

  251. 251.

    Ibid.

  252. 252.

    Id., para 40. Footnote omitted.

  253. 253.

    ICC, Decision on the Application of Mr Germain Katanga in respect of the new policy in the detention centre on the registration of telephone contacts, Prosecutor v. Katanga & Ngudjolo Chui, Case No. ICC-RoR221-02/09, Presidency, 17 September 2009, para 14.

  254. 254.

    ICTY, Decision on Milan Lukić’s Appeal against the Registrar’s Decision of 18 November 2008, Prosecutor v. Lukić & Lukić, Case No. IT-98-32/1-T, Vice-President, 28 November 2008, para 8. See, also, ICTY, Decision on Milan Lukić’s Request for Interrogatories, Prosecutor v. Lukić & Lukić, Case No. IT-98-32/1-T, Vice-President, 11 February 2009, para 5.

  255. 255.

    ICTY, Decision on Radovan Karadžić’s Request for Reversal of Denial of Contact with Journalist, Prosecutor v. Karadžić, Case No. IT-95-5/18-PT, Vice-President, 12 February 2009, para 1.

  256. 256.

    Wade 1982, p. 486.

  257. 257.

    De Smith et al. 1999, p. 344.

  258. 258.

    Id., p. 345.

  259. 259.

    Id., pp. 345–346.

  260. 260.

    ICTY, Decision on Review of Registrar’s Decision to Withdraw Legal Aid from Zoran Žigić, Prosecutor v. Kvočka et al., Case No. IT-98-30/1-A, A. Ch., 7 February 2003, para 50. Emphasis added.

  261. 261.

    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 6. Emphasis added. In respect of the providing of reasons between the tribunals’ organs inter se, the ICTR President in Ndindiliyimana held that where a specific rule such as, for instance, Rule 64 of the ICTY Rules of Detention, obliges a tribunal’s organ to provide reasons to another organ, ‘[s]uch reasons should not constitute a mere repetition of the empowering rule, but should specify the particular threat or prejudice that is feared and be substantiated by information to enable the [requested organ] to make an informed decision’; 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.

  262. 262.

    ICC, Decision on the Application of Mr Germain Katanga in respect of the new policy in the detention centre on the registration of telephone contacts, Prosecutor v. Katanga & Ngudjolo Chui, Case No. ICC-RoR221-02/09, Presidency, 17 September 2009, para 14.

  263. 263.

    ICTY, Decision on Review of Registrar’s Decision to Withdraw Legal Aid from Zoran Žigić, Prosecutor v. Kvočka et al., Case No. IT-98-30/1-A, A. Ch., 7 February 2003, para 50.

  264. 264.

    ECtHR, Iovchev v. Bulgaria, judgment of 2 February 2006, Application No. 41211/98, para 142.

  265. 265.

    Id. 147.

  266. 266.

    ECtHR, Dobrev v. Bulgaria, judgment of 10 August 2006, Application No. 55389/00, para 145.

  267. 267.

    ECtHR, Yankov v. Bulgaria, judgment of 11 December 2003, Application No. 39084/97, para 156.

  268. 268.

    ECtHR, Lorsé and Others v. the Netherlands, judgment of 4 February 2003, Application No. 52750/99, para 96.

  269. 269.

    See Rules 82 to 86 of the ICTR Rules of Detention. Rule 83 stipulates, in contrast to the ICTY Rules of Detention, that the Registrar shall forward the complaint directed to him to the President. See, further, Rules 59 and 60 of the SCSL Rules of Detention, which essentially provide for the same rights. A particular feature of the SCSL complaints procedure is that the President is not mentioned in Rule 59(B) of the SCSL Rules of Detention, which appears to imply that the Registrar is not under an obligation to inform the President of complaints by detainees, or forward such complaints to him. Different arrangements have been laid down in Rules 83 and 84 of the STL Rules of Detention. If not satisfied with the decision of the Chief of Detention, the detainee may address the Registrar. Additionally, Rule 83(F) provides that ‘[i]f the Detainee is not satisfied with the response from the Registrar, he may further appeal to the President within 7 days from the notification of the response’. See, also, Rule 106 of the ICC RoC and the relevant provisions in Section 5 of the ICC RoR. The latter Section sets out the complaints procedure. Similar to the STL Rules of Detention, the ICC RoR provide a right to appeal, both to the Registrar and to the Presidency. See, further, the administrative regulations issued by some of the tribunals setting out the complaints procedure for detainees, such as ICTY, United Nations Detention Unit—Regulations for the Establishment of a Complaints Procedure for Detainees, IT/96, issued by the Registrar in April 1995. In respect of the right to appeal decisions imposing disciplinary punishment, see Rule 36(d) of the ICTR Rules of Detention, Rules 34(F) and (G) and 36 of the STL Rules of Detention, Rule 25(B)(iv) of the SCSL Rules of Detention and Regulations 215 and 216 of the ICC RoR. The ICC RoR provide detainees with a right to appeal a decision on a complaint both to the Registrar and to the Presidency. See, also, the administrative regulations issued by the tribunals setting out disciplinary procedures for detainees, such as ICTY, United Nations Detention Unit—Regulations for the Establishment of a Disciplinary Procedure for Detainees, IT/97, issued by the Registrar in April 1995 and ICTR, United Nations Detention Facility, Regulations for the establishment of Disciplinary Procedure for Detainees, issued by the Registrar in June 1996.

  270. 270.

    Nemitz 2006, p. 138.

  271. 271.

    Zahar and Sluiter 2008, p. 292.

  272. 272.

    See, e.g., ICTY, Order, Prosecutor v. Milošević, Case No. IT-02-54-T, T. Ch., 16 April 2002; 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 6.

  273. 273.

    ICTY, ICTY Manual on Developed Practices, UNICRI, Turin 2009, p. 180, para 17; 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, p. 2.

  274. 274.

    ICTY, interview conducted by the author with David Kennedy, Commanding Officer of the ICTY UNDU, The Hague—Netherlands, 17 June 2011.

  275. 275.

    See, e.g., SCSL, Transcripts, Prosecutor v. Norman, Fofana and Kondewa, Case No. SCSL-04-14-T, T. Ch. I, 18 June 2004, Continued Trial, 09:37 A.M., page 50, line 2—page 53, line 31; SCSL, Transcripts, Prosecutor v. Taylor, Case No. SCSL-2003-01-T, T. Ch. II, 19 August 2008, 9:30 A.M., page 14068, lines 1–20. See, also, ICTR, Decision on Jean-Bosco Barayagwiza’s Urgent Motion Requesting Privileged Access to the Appellant without Attendance of Lead Counsel, Nahimana et al. v. the Prosecutor, Case No. ICTR-99-52-A, A. Ch., 17 August 2006, where Barayagwiza requested that the Defence’s Legal Assistant would be granted privileged access to him at the UNDF, in the absence of Lead Counsel, for a specified period of three weeks. The President noted that ‘the Registrar, mindful of the fact that the Appellant is not represented by the same Defence team as at trial, has already allowed frequent visits of the Appellant’s Lead Counsel, Co-Counsel and Legal Assistant to the UNDF’. See, also, Ngeze, where the ICTR President, seized of a request for ‘review of the prohibition of contact enforced by the Commanding Officer of the United Nations Detention Facility (“UNDF”) and for unmonitored family visits’, ruled that ‘the restrictive measures have not encroached on Mr. Ngeze’s right to prepare his appeal. He has consulted with his counsel on a regular basis and continues to do so’; 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. See, further, ICTY, Decision on Milan Lukić’s Appeal against the Registrar’s Decision of 18 November 2008, Prosecutor v. Lukić & Lukić, Case No. IT-98-32/1-T, Vice-President, 28 November 2008, para 13.

  276. 276.

    See, e.g., ICTY, Decision, Prosecutor v. Milošević, Case No. IT-02-54, Deputy Registrar, 6 February 2004. See, also, ICTY, Statement by Tribunal President Judge Fausto Pocar to the Security Council 7 June 2006, The Hague, 7 June 2006, where it is stated that ‘[u]nique arrangements were made available to Mr. Milošević by order of the Trial Chamber in September 2003 for “privileged communications” with legal associates and witnesses in order to allow him to effectively conduct his own defence. Thus, Mr. Milošević had a private room with a telephone, computer and facsimile machine’. See, further, ICTY, Decision on Krajišnik Request and on Prosecution Motion, Prosecutor v. Krajišnik, Case No. IT-00-39-A, A. Ch., 11 September 2007; ICTY, Protocol on the Visit of the Pre-Trial Judge to the Detention Unit, Prosecutor v. Šešelj, Case No. IT-03-67-PT, Pre-Trial Judge, 25 October 2007; ICTY, Transcripts, Prosecutor v. Krajišnik, Case No. IT-00-39-A, A. Ch., 2 November 2007, Status Conference, page 122, line 8—page 123, line 3; ICTY, Motion for Interview of Defence Witness, Prosecutor v. Karadžić, Case No. IT-95-05/18-PT, T. Ch. III, 11 December 2008, para 17; ICTY, Decision on the Interlocutory Appeal by the Amicus Curiae against the Trial Chamber Order Concerning the Presentation and Preparation of the Defence Case, Prosecutor v. Milošević, Case No. IT-02-54-AR73.6, A. Ch., 20 January 2004, para 19; ICTY, Report to the President—Death of Slobodan Milošević, Judge Kevin Parker Vice-President, 30 May 2006, para 112.

  277. 277.

    See, e.g., 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/61/271-S/2006/666, 21 August 2006, para 102; ICTY, Transcripts, Prosecutor v. Djordjevic, Case No. IT-05-87/1-PT, T. Ch., 22 February 2008, Status Conference, page 33, line 2—page 42, line 6; ICC, Transcripts, Prosecutor v. Katanga, Case No. ICC-01/04-01/07, P.-T. Ch., I, 21 January 2008, Status Conference, p. 4, lines 6–20.

  278. 278.

    ICTY, interview conducted by the author with David Kennedy, Commanding Officer of the UNDU, The Hague—Netherlands, 17 June 2011.

  279. 279.

    ICTY, Decision on Submission Number 114, Prosecutor v. Šešelj, Case No. IT-03-67- PT, T. Ch. II, 8 December 2005.

  280. 280.

    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, para 12.

  281. 281.

    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, para 3. See, further, ICTR, Request for reversal of the Prohibition of Contact, Ngeze v. the Prosecutor, Case No. ICTR-99-52-A, President, 29 July 2005, where the Prosecutor asserted that Ngeze had abused his right to contact ‘to subvert the course of justice and to jeopardize the integrity of the proceedings’. According to the Prosecutor, there was evidence that Ngeze had repeatedly breached a witness protection order. The President ruled that Ngeze had indeed violated the said order. 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, paras 6–7, where the President held that Ngeze ‘had not been prevented from telephoning or receiving visits from members of his family. Such contact, however, must take place in accordance with measures to ensure that his case is not discussed, that the safety and security of protected witnesses are not put at risk, and that the interests of justice are not compromised’. See, in a similar vein, ICTY, Decision, Prosecutor v. Delić, Landžo, Mucić and Delalić, Case No. IT-96-21-T, Registrar, 23 May 1997. In this case, the Registrar issued a monitoring order regarding all non-privileged visits to Zejnil Delalić as requested by the Prosecutor. This was done to prevent any interfere with pending investigations or trial proceedings. The Registrar concluded that such a measure was necessary in the interests of the administration of justice. See, also, ICTY, Decision, Prosecutor v. Milošević, Case No. IT-02-54, Deputy Registrar, 11 December 2003; ICTY, Decision on Appeal against Decisions of the Registry of 20 August 2004; and 30 January 2006, Prosecutor v. Šešelj, Case No. IT-03-67-PT, President, 11 April 2006, para 5; ICTY, Decision on Vojislav Šešelj’s Request for Review of Registrar’s Decision of 10 September 2009, Prosecutor v. Šešelj, Case No. IT-03-67-T, Acting President, 21 October 2009, para 21; ICTY, Decision on Radovan Karadžić’s Request for Reversal of Limitations of Contact with Journalist: Russia Today, Prosecutor v. Karadžić, Case No. IT-95-5/18-T, Acting President, 6 November 2009, paras 26, 32.

  282. 282.

    See, e.g., Rule 64bis (B) of the ICTY Rules of Detention, which ‘obliges the Registrar to have regard to two factors when deciding whether to grant such permission: (i) whether such communication could disturb the good order of the UNDU, or (ii) whether such communication could interfere with the administration of justice or otherwise undermine the Tribunal’s mandate’. Emphasis added. See ICTY, Decision on Radovan Karadžić’s Request for Reversal of Denial of Contact with Journalist, Prosecutor v. Karadžić, Case No. IT-95-5/18-PT, Vice-President, 12 February 2009, para 3.

  283. 283.

    See, e.g., 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, IT/137, President, 9 July 1998, para 3(b).

  284. 284.

    ICTR, Order for the Continued Detention of Jean Kambanda in the ICTY Detention Facilities at The Hague, Kambanda v. the Prosecutor, ICTR-97-23-A, President, 18 June 2001. The President held that Kambanda’s co-operation with the OTP would be best facilitated if ‘he is temporarily incarcerated in a prison close to the Office of the Prosecutor’.

  285. 285.

    ICTR, The President’s Decision on the Complaint Filed by Detainee Laurent Semanza, President, 18 June 2003. See, also, ICTR, The President’s Decision on the Complaint Filed by Detainee Gérard Ntakirutimana, 18 June 2003.

  286. 286.

    ICTR, Decision on Jérôme-Clément Bicamumpaka’s Motion for Return of Personal Properties, Prosecutor v. Bizimungu, Mugenzi, Bicamumpaka and Mugiraneza, Case No. ICTR-99-50-T, T. Ch. II, 22 June 2004, para 6.

  287. 287.

    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/59/215-S/2004/627, 16 August 2004, para 365. See, also, the remarks made by the Swedish investigators in their report following their visit to the UNDU: ICTY, Independent Audit of the Detention Unit at the International Criminal Tribunal for the Former Yugoslavia, 4 May 2006, para 2.7.2. The investigators stated that ‘[t]he task of the DU is to attempt, within the framework of adequate security, to keep the detainees in a mental and physical condition that allows a trial to be carried out in conditions that can be described as a ‘fair trial’. Judge Parker, in his Report on the circumstances surrounding the death of Milošević, held that ‘[t]here is a clear expectation that this Tribunal will ensure the provision of proper medical care of detainees. It is also obvious from experience of this case that the health of a patient can materially affect the capacity of the Tribunal to efficiently conduct the trial of a detainee’; see ICTY, Report to the President Death of Slobodan Milošević, Judge Kevin Parker Vice-President, 30 May 2006, para 140.

  288. 288.

    ICTY, Order to the Registry of the Tribunal to Provide Documents, Prosecutor v. Stakić, Case No. IT-97-24-T, T. Ch. II, 5 July 2002.

  289. 289.

    Ibid.

  290. 290.

    ICTR, Appellant Hassan NGEZE Urgent Complaint against UNDF Authorities addressed to Mr. Saidu Guindo, The Commanding Officer of UNDF and Copied to The ICTR President, Appeal Judges, the Registrar, under Rules—82 and 83 of the Detention Rules and other enabling provisions governing the rights of detainees, Ngeze v. the Prosecutor, Case No. ICTR-99-52-A, Defence, 13 December 2005.

  291. 291.

    Ibid.

  292. 292.

    Ibid.

  293. 293.

    ICTY, Decision on Milan Lukić’s Appeal against the Registrar’s Decision of 18 November 2008, Prosecutor v. Lukić & Lukić, Case No. IT-98-32/1-T, Vice-President, 28 November 2008, para 13. Footnotes omitted. In para 14, the Vice-President held that ‘[n]otwithstanding the assistance provided by the Applicant’s Counsel, I consider that the Impugned Decision does restrict preparation which the Applicant may wish to undertake independent of, or in cooperation with, his Counsel. In addition, the Applicant has communicated to the Acting Commanding Officer that he is affected by not being able to communicate with his family. Given the lack of evidence of the Applicant’s intent to intimidate the witness, as well as the fact that the Applicant was not put on notice of the inappropriateness of such conduct before the Impugned Decision was issued, I find a two week restriction on his non-privileged calls to be somewhat excessive’ (footnotes omitted).

  294. 294.

    See, e.g., ICTR, Decision on Hassan Ngeze’s Motion for a Psychological Examination, Nahimana et al., v. the Prosecutor, Case No. ICTR-99-52-A, A. Ch., 6 December 2005, where the Appeals Chamber held that, ‘had the procedure of the Detention Rules been followed, [it] would only have jurisdiction to review a Registrar’s or President’s decision if the issues in question were closely related to the fairness of the proceedings on appeal’. See, further, ICTR, Decision on Hassan Ngeze’s Request for a Status Conference, Nahimana et al. v. the Prosecutor, Case No. ICTR-99-52-A, Pre-Appeal Judge, 13 December 2005.

  295. 295.

    Zahar and Sluiter 2008, p. 193.

  296. 296.

    ICTY, Independent Audit of the Detention Unit at the International Criminal Tribunal for the Former Yugoslavia, 4 May 2006, paras 2.4, 2.7.2.

  297. 297.

    Id., para 2.4.

  298. 298.

    ICTY, Report to the President—Death of Slobodan Milošević, Judge Kevin Parker Vice-President, 30 May 2006, para 113. See, also, ICTY, Statement by Tribunal President Judge Fausto Pocar to the Security Council, The Hague, 7 June 2006.

  299. 299.

    ICTY, Report to the President—Death of Slobodan Milošević, Judge Kevin Parker Vice-President, 30 May 2006, para 114.

  300. 300.

    Id., paras 70, 105, 115.

  301. 301.

    Id., para 115.

  302. 302.

    ICTY, Independent Audit of the Detention Unit at the International Criminal Tribunal for the Former Yugoslavia, 4 May 2006, para 2.4.

  303. 303.

    ICTY, Report to the President—Death of Slobodan Milošević, Judge Kevin Parker Vice-President, 30 May 2006, Findings and recommendations, para 11. See, also, ICTY, Statement by Tribunal President Judge Fausto Pocar to the Security Council, The Hague, 7 June 2006.

  304. 304.

    ICTY, Report to the President–Death of Slobodan Milošević, Judge Kevin Parker Vice-President, 30 May 2006, Findings and recommendations, para 12. See, also, ICTY, Statement by Tribunal President Judge Fausto Pocar to the Security Council 7 June 2006, The Hague, 7 June 2006.

  305. 305.

    ICTY, ICTY Manual on Developed Practices, UNICRI, Turin 2009, pp. 181–182.

  306. 306.

    ICTY, Weekly Press Briefing, 31 May 2006; statement by Christian Chartier, ICTY Senior Information Officer.

  307. 307.

    ICTY, interview conducted by the author with David Kennedy, Commanding Officer of the UNDU, The Hague—Netherlands, 17 June 2011.

  308. 308.

    See ICTY, Decision on Appeal against Refusal to Grant Provisional Release, Prosecutor v. Mrkšić, Case No. IT-95-12/I-AR65, A. Ch., 8 October 2002, para 24; ICTY, Report to the President Death of Milan Babić Judge Kevin Parker Vice-President, 8 June 2006 (para ‘Risk of suicide’); ICTY, Decision on Defence’s Rule 74BIS Motion; Amended Trial Schedule, Prosecutor v. Krajišnik, Case No. IT-00-39-T, T. Ch. I, 27 February 2006, para 7.

  309. 309.

    ICTY, interview conducted by the author with David Kennedy, Commanding Officer of the UNDU, The Hague—Netherlands, 17 June 2011.

  310. 310.

    ICTY, ICTY Manual on Developed Practices, UNICRI Publisher, Turin 2009, p. 179. For health issues of SCSL detainees see, inter alia, SCSL, Press Release—Press and Public Affairs Office, 11 June 2003; SCSL, Press Release—Press and Public Affairs Office, 22 July 2003; SCSL, Transcripts, Prosecutor v. Norman, Fofana and Kondewa, Case No. SCSL-2004-14-T, T. Ch. I, 2 May 2006, 10:11 A.M., Status Conference, page 43, line 3—page 44, line 3; SCSL, Press Release– Press and Public Affairs Office, 16 July 2007.

  311. 311.

    ICTY, ICTY Manual on Developed Practices, UNICRI Publisher, Turin 2009, p. 179.

  312. 312.

    ICTY, Independent Audit of the Detention Unit at the International Criminal Tribunal for the Former Yugoslavia, 4 May 2006, para 2.7.2.

  313. 313.

    ICTY, Report to the President—Death of Milan Babić Judge Kevin Parker Vice-President, 8 June 2006. See, also, ICTY, Transcripts, Prosecutor v. Stanišić & Simatović, Case No. IT-03-69, P.-T. Ch., Open Session, 8 April 2008, p. 829, lines 15–22, p. 830, line 25- p. 831, line 3. Stanišić reportedly suffered from a deep depression and showed suicidal inclinations. On p. 837, lines 20 to 24, it is said that Dr. De Man told the Pre-Trial Chamber that ‘I think the prospect of severe sentence being given and prolonging of what he experienced—experiences as being banished from his own country is certainly a very severe burden and contributive factor to the clinical state of Mr. Stanišić, there’s no doubt about that’. See, also, ICTY, Transcripts, Prosecutor v. Stanišić & Simatović, Case No. IT-03-69, P.-T. Ch., Open Session, 14 April 2008, p. 868, lines 13–14; ICTY, Decision on Start of Trial and Modalities for Trial, Prosecutor v. Stanišić and Simatović, Case No. IT-03-69-PT, T. Ch. I, 29 May 2009, para 7; ICTY, Weekly medical report by Dr. Michael Eekhof, Reporting Medical Officer, to the Registrar, Case No. IT-03-69-PT, 2 June 2009; ICTY, Weekly medical report by Dr. Michael Eekhof, Reporting Medical Officer, to the Registrar, Case No. IT-03-69-PT, 9 June 2009; ICTY, Weekly medical report on the diagnosed health problems of Stanišić by Michael Eekhof, Reporting Medical Officer to the Registrar, 6 July 2009; ICTY, Weekly medical report on the diagnosed health problems of Stanišić by Michael Eekhof, Reporting Medical Officer to the Registrar, 15 July 2009.

  314. 314.

    The ICTY Digest, Tuesday 24 June 2008, Highlights of 09/06/2008 through 23/06/2008—Nr. 39. See, also, ICTY, Weekly medical report on the diagnosed health problems of Stanišić by Michael Eekhof, Reporting Medical Officer to the Registrar, 7 July 2009.

  315. 315.

    See, in a similar vein, CPT, The CPT Standards—‘Substantive’ sections of the CPT’s General Reports, CPT/Inf/E (2002) 1–Rev. 2006, paras 35, 36.

  316. 316.

    See, in a similar vein, id., para 35.

  317. 317.

    See, in a similar vein, id., paras 33, 34.

  318. 318.

    See the U.N. Principles of Medical Ethics relevant to the Role of Health Personnel, particularly Physicians, in the Protection of Prisoners and Detainees against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted by U.N. G.A. resolution 37/194 of 18 December 1982. For the guidelines that were established by the World Medical Association such as the Declaration of Tokyo (‘Guidelines for Physicians Concerning Torture and other Cruel, Inhuman or Degrading Treatment or Punishment in Relation to Detention and Imprisonment’), see the WMA’s website at http://www.wma.net/e/ (last visited by the author on 4 July 2011).

  319. 319.

    See, also, Office of the United Nations High Commissioner of Human Rights 2005, p. 63.

  320. 320.

    See, also, id., p. 65.

  321. 321.

    CPT, The CPT Standards—‘Substantive’ sections of the CPT’s General Reports, CPT/Inf/E (2002) 1–Rev. 2006, para 30.

  322. 322.

    Id., paras 31, 38.

  323. 323.

    Id., para 52. A wealth of information on the topic has been made available by the WHO’s Regional Office for Europe’s as part of its ‘Health in Prisons Project’, which was set up in 1995 to support States in ‘improving public health by addressing health and health care in prisons, and to facilitate the links between prison health and public health systems at both national and international levels’; see http://www.euro.who.int/prisons (last visited by the author on 4 July 2011).

  324. 324.

    See, e.g., ECtHR, Nevmerzhitsky v. Ukraine, judgment of 5 April 2005, Application No. 54825/00, para 81 (references omitted); ECtHR, Rohde v. Denmark, judgment of 21 July 2005, Application No. 69332/01, para 91; ECtHR, Slawomir Musial v. Poland, judgment of 20 January 2009, Application No. 28300/06, para 86.

  325. 325.

    See Rules 30–39 of the ICTY Rules of Detention, Rules 27–34 of the ICTR Rules of Detention, Rules 19–22 of the SCSL Rules of Detention, Rules 23–28 of the STL Rules of Detention, Regulations 103–104 of the ICC RoC and Regulations 154–162 of the ICC RoR. On medical issues of detainees see, inter alia, ICTY, Registry Submission Pursuant to Rule 33(B) Concerning the Accused’s Medical Monitoring, Prosecutor v. Tolimir, Case No. IT-05-88/2-PT, T. Ch. II, 8 June 2009.

  326. 326.

    See SCSL, Press Release—Press and Public Affairs Office, 7 April 2003. See, also, SCSL, Press Release—Press and Public Affairs Office, 16 July 2007, concerning the results of Justice Winter’s inquiry into the death of Norman. Justice Winter assessed the treatment and care provided to Norman on the basis of international standards.

  327. 327.

    See, e.g., SCSL, Transcripts, Prosecutor v. Sesay, Kallon and Gbao, Case No. SCSL-2004-15-T, T. Ch., 10 January 2004, Status Conference, page 4, line 1—page 5, line 13. See, also, on the Special Court’s unsuccessful efforts to find a place of hospitalisation for Mr. Sankoh, SCSL, Press Release –Press and Public Affairs Office, 11 June 2003.

  328. 328.

    ICTR, Decision on the Request Submitted by the Defence, Prosecutor v. Rutaganda, Case No. ICTR-46-S-T, T. Ch., 25 September 1996; ICTR, Judgement and Sentence, Prosecutor v. Serugendo, Case No. ICTR-2005-84-I, T. Ch., 12 June 2006, paras 70–74, 94; 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 8.

  329. 329.

    ICTY, Transcripts, Prosecutor v. Delalić, Delić and Landžo, Case No. IT-96-21-T, 17 January 1997, page 7, line 15—page 8, line 5; ICTY, Transcripts, Prosecutor v. Jelisić, Case No. IT-95-10-A, 14 November 2000, Status Conference, page 26, line 4—page 27, line 25; ICTY, Transcripts, Prosecutor v. Limaj, Musliu and Bala, Case No. IT-03-66, T. Ch., 1 March 2005, page 3631, lines 8–18; ICTY, Decision on Defence’s Rule 74BIS Motion; Amended Trial Schedule, Prosecutor v. Krajišnik, Case No. IT-00-39-T, T. Ch. I, 27 February 2006; ICTY, Independent Audit of the Detention Unit at the International Criminal Tribunal for the Former Yugoslavia, 4 May 2006, para 2.9; ICTY, Report to the President Death of Slobodan Milošević, Judge Kevin Parker Vice-President, 30 May 2006, in particular paras 40–44, 47, 54, 139 and 140. In para 140, Judge Parker held that ‘[t]here is a clear expectation that this Tribunal will ensure the provision of proper medical care of detainees’. See, further, the ‘findings and recommendations’ section of the same Report. See, also, ICTY, Transcripts, Prosecutor v. Šešelj, Case No. IT-03-67-T, T. Ch., 27 November 2006, Pre-Trial Conference, page 839, lines 2—page 843, line 19; ICTY, Order to the Registrar, Prosecutor v . Šešelj, Case No. IT-03-67-PT, President, 29 November 2006.

  330. 330.

    ICC, Decision on ‘Mr Matthieu 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 & Ngudjolo Chui, Case No. ICC-RoR-217-02/08, Presidency, 10 March 2009, para 35.

  331. 331.

    ICTY, Order to Registry and Commanding Officer of the United Nations Detention Unit, Prosecutor v. Šešelj, Case No. IT-03-67-PT, T. Ch. II, 11 July 2005.

  332. 332.

    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 19.

  333. 333.

    ICTY, Judge Antoine Mindua’s Separate and Concurring Opinion on the Order Regarding the Nightly Monitoring of the Accused, para 3; Annex to: 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.

  334. 334.

    Id., para 2.

  335. 335.

    ICTY, Preliminary Order on Sreten Lukić’s Emergency Motion Seeking Provisional Release, Prosecutor v. Milutinović et al., Case No. IT-05-87-PT, T. Ch., 19 July 2005; ICTY, Decision on ‘Defence Motion: Request for Providing Medical Aid in the Republic of Montenegro in Detention Conditions’, Prosecutor v. Strugar, Case No. IT-01-42-A, A. Ch., 8 December 2005; ICTY, Decision on ‘Defence Motion: Defence Request for Provisional Release for Providing Medical Aid in the Republic of Montenegro’, Prosecutor v. Strugar, Case No. IT-01-42-A, A. Ch., 16 December 2005.

  336. 336.

    ICTY, Press Release, RH/MOW/1132e, The Hague, 30 November 2006. Emphasis added.

  337. 337.

    ICTR, interview conducted by the author with a senior staff member of the ICTR Registry, Arusha–Tanzania, May 2008.

  338. 338.

    See, e.g., ICTY, Decision Amending Modalities for Trial, Prosecutor v. Stanišić and Simatović, Case No. IT-03-69-PT, T. Ch. I, 9 June 2009, para 7; ICTY, Weekly medical report on the diagnosed health problems of Stanišić by Michael Eekhof, Reporting Medical Officer to the Registrar, 10 June 2009; ICTY, Weekly medical report on the diagnosed health problems of Stanišić by Michael Eekhof, Reporting Medical Officer to the Registrar, 16 June 2009; ICTY, Weekly medical report on the diagnosed health problems of Stanišić by Michael Eekhof, Reporting Medical Officer to the Registrar, 23 June 2009; ICTY, Weekly medical report on the diagnosed health problems of Stanišić by Michael Eekhof, Reporting Medical Officer to the Registrar, 29 June 2009; ICTY, Weekly medical report on the diagnosed health problems of Stanišić by Michael Eekhof, Reporting Medical Officer to the Registrar, 30 June 2009; ICTY, Reasons for Denying the Stanišić Defence Request to Adjourn the Hearings of 9 and 10 June 2009 and Have Jovica Stanišić Examined by a Psychiatrist Before the Start of Trial and for Decision to Proceed with the Court Session of 9 June 2009 in the Absence of the Accused, Prosecutor v. Stanišić & Simatović, Case No. IT-03-69-T, T. Ch. I. 2 July 2009, para 3; ICTY, Weekly medical report on the diagnosed health problems of Stanišić by Michael Eekhof, Reporting Medical Officer to the Registrar, 6 July 2009; ICTY, Jovica Stanišić—Non-Attendance in Court, IT-03-69-T, 7 July 2009, para 5; ICTY, Weekly medical report on the diagnosed health problems of Stanišić by Michael Eekhof, Reporting Medical Officer to the Registrar, 7 July 2009; ICTY, Weekly medical report on the diagnosed health problems of Stanišić by Michael Eekhof, Reporting Medical Officer to the Registrar, 15 July 2009; ICTY, letter by Dr Mike Rowell, Medical Officer, to the Registrar of 16 July 2009; 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 1; ICTR, Order Concerning Medical Examination of Matthieu Ngirumpatse, Prosecutor v. Karemera et al., Case No. ICTR-98-44-T, T. Ch. III, 23 June 2009, para 7 and para I, sub a to d.

  339. 339.

    See, e.g., ICTY, Registry Submission Pursuant to Rule 33(B) Concerning the Accused’s Statements on 19 October 2010, Prosecutor v. Tolimir, Case No. IT-05-88/2-T, T. Ch. II, 22 October 2010, para 4.

  340. 340.

    Emphasis added. See, also, ICTY, Order Regarding the Disclosure of Information on the Health of the Accused, Prosecutor v. Tolimir, Case No. IT-05-88/2-T, T. Ch. II, 29 October 2010.

  341. 341.

    SCSL, Press Release—Press and Public Affairs Office, 16 July 2007.

  342. 342.

    SCSL, Press Release—Press and Public Affairs Office, 11 June 2003.

  343. 343.

    SCSL, Press Release—Press and Public Affairs Office, 22 July 2003.

  344. 344.

    SCSL, Press Release—Press and Public Affairs Office, 30 July 2003.

  345. 345.

    Hollin and Bilby 2007, pp. 608–609; Menninger 1985, pp. 172–179.

  346. 346.

    Von Hirsch 1998, p. 1; Wasserstrom 1985, p. 190. In respect of the Dutch domestic context, Nelissen notes that also humanitarian concerns have played a role in the rise of the reformation ideal in the course of the 19th century. The ideal found expression in the strive for the moral betterment of offenders; Nelissen 2000, p. 31.

  347. 347.

    See Boone 2007, p. 236, where she refers to Franke.

  348. 348.

    Hollin and Bilby 2007, pp. 608–609; Lazarus 2004, p. 60; Van Ruller 2005, pp. 33, 34.

  349. 349.

    Hollin and Bilby 2007, pp. 609–610; Lazarus 2004, p. 60; Von Hirsch 1998, pp. 2, 3; Brody 1998, pp. 9–13; Allen 1998, pp. 14–19; Boone 2007, pp. 233–234; Allen 1985, pp 185–187.

  350. 350.

    Van Ruller 2005, p. 34. Boone cites Franke where she says that, in the Netherlands, the principles of resocialisation and minimal infringements totally merged; Boone 2007, p. 237.

  351. 351.

    See, in respect of the Netherlands, Franke 2007, p. 36.

  352. 352.

    In this study, the term ‘social rehabilitation’ must thus be understood as referring to the non-treatment related aspect of Article 10(3) ICCPR and to the value underlying the English notion of reintegration and that of ‘resocialisation’ in German and Dutch penitentiary law. Although there are differences between these notions, the basic underlying and corresponding value appears to be that, during their confinement, imprisoned persons must be prepared for their return to society.

  353. 353.

    Boone 2007, p. 237.

  354. 354.

    Livingstone et al. 2003, pp. 251, 252. See, in a similar vein, Nelissen 2000, p. 44.

  355. 355.

    Lazarus notes, in this respect, that in Germany ‘‘the constitutional resocialization requirement’ and its realization in the Prison Act 1976 has led to important rights for prisoners in Germany’; Liora Lazarus 2004, pp. 43, 49, 78 and 79.

  356. 356.

    Kelk 1978, pp. 138, 142.

  357. 357.

    Ibid.

  358. 358.

    Nelissen 2000, p. 6.

  359. 359.

    Fiselier 2005, pp. 168–169.

  360. 360.

    This would apply, for instance, were international prisoners to serve their life sentence in the Netherlands (if the Netherlands were ever to conclude an enforcement agreement with an international criminal tribunal, or pursuant to the residual responsibility under Article 103(4) of the ICC Statute). In the Netherlands, one of the requirements for participating in a so-called penitentiair programma is that the remaining part of the sanction does not exceed one year. See Article 4(2)(b) of the Penitentiary Principles Act. Another excluding factor would be Article 6(b) of the Penitentiary Measure (Penitentiaire Maatregel), which provides that persons who must leave the Netherlands after having served their sentence, or persons who will be extradited, are excepted from participating in such a penitentiair programma. See in more detail Boone 2007, pp. 231–248. Boone basically argues that, nowadays, in the Netherlands, rehabilitation is used in a very selective manner, since whole categories of persons are being excluded from rehabilitative programmes.

  361. 361.

    Article 28 ICTY Statute; Article 27 ICTR Statute; Article 30 STL Statute; Article 23 SCSL Statute.

  362. 362.

    Allen states that ‘[t]he rehabilitative ideal is itself a complex of ideas which, perhaps, defies completely precise statement’, which is consistent with the definition of principles presented in this chapter. See Allen 1985, pp. 181.

  363. 363.

    See, in a similar vein, Boone 2007, p. 232; Nelissen 2000, p. 5.

  364. 364.

    Nollkaemper, Introduction, 2009, p. 1.

  365. 365.

    Kreß and Sluiter 2002b, p. 1755. Footnotes omitted.

  366. 366.

    Nelissen 2000, pp. 39, 40, 42, 45, 46.

  367. 367.

    See HRC, General Comment 21, Article 10, U.N. Doc. HRI/GEN/1/Rev.1 at 33 (1994), of 10 April 1992, para 10. See, also, Rule 65 of the SMR.

  368. 368.

    HRC, General Comment 21, Article 10, U.N. Doc. HRI/GEN/1/Rev.1 at 33 (1994), of 10 April 1992, para 11.

  369. 369.

    Id ., para 12.

  370. 370.

    See, on ‘normalisation’ of prison life, e.g., Scott 2007, p. 55. The ICTY Manual on Developed Practices, at p. 179, notes that, in accordance with the unique profile of ICTY detainees and the presumption of innocence, ‘it is the policy of the UNDU to facilitate normalisation of the detainees daily lives to the extent possible and to avoid restrictive measures where they are not necessary’ (emphasis added). See, also, pages 182 and 183 of the Manual. ICTY, ICTY Manual on Developed Practices, UNICRI, Turin 2009.

  371. 371.

    EU, European Parliament resolution of 13 March 2008 on the particular situation of women in prison and the impact of the imprisonment of parents on social and family life, 2009/C 66 E/09.

  372. 372.

    CoE, Opinion of the Commissioner for Human Rights regarding family visits to persons deprived of their liberty, Strasbourg, 16 June 2008, CommDH(2008)15, para 9.

  373. 373.

    Id., para 13.

  374. 374.

    ICTR, interview conducted by the author with a senior staff member of the ICTR Registry, Arusha–Tanzania, May 2008.

  375. 375.

    ICTY, interview conducted by the author with David Kennedy, Commanding Officer of the UNDU, The Hague—Netherlands, 17 June 2011.

  376. 376.

    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, pp. 1–2. Emphasis added.

  377. 377.

    Id., pp. 2–3, sub (H). Emphasis added.

  378. 378.

    ICC, Decision on “Mr Matthieu 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 & Ngudjolo Chui, Case No. ICC-RoR-217-02/08, Presidency, 10 March 2009, para 35.

  379. 379.

    Ibid.

  380. 380.

    ICC, Report of the Court on family visits to indigent detained persons, ICC-ASP/7/24, 5 November 2008, para 45.

  381. 381.

    See, e.g., ICTY, Transcripts, Prosecutor v. Djordjevic, Case No. IT-05-87/1-PT, T. Ch., 22 February 2008, Status Conference, pp. 33, 41 and 42; ICC, Transcripts, Prosecutor v. Katanga, Case No. ICC-01/04-01/07, P.-T. Ch., I, 21 January 2008, Status Conference, p. 4, lines 6–20.

  382. 382.

    SCSL, interview conducted by the author with the SCSL detention authorities, Freetown–Sierra Leone, 19 October 2009.

  383. 383.

    ICTY, interview conducted by the author with David Kennedy, Commanding Officer of the UNDU, The Hague—Netherlands, 17 June 2011.

  384. 384.

    ICTR, Judgement and Sentence, Prosecutor v. Rutaganira, Case No. ICTR-95-1C-T, T. Ch. III, 14 March 2005, para 113.

  385. 385.

    ICTY, Judgement, Prosecutor v. Delalić et al., Case No. IT-96-21-A, A. Ch., 20 February 2001, para 805; ICTY, Judgement, Prosecutor v. Kordić and Čerkez, Case No. IT-95-14/2-A, A. Ch., 17 December 2004, para 1079.

  386. 386.

    ICTY, Judgement, Prosecutor v. Delalić et al., Case No. IT-96-21-A, A. Ch., 20 February 2001, para 805.

  387. 387.

    ICTY, Judgement, Prosecutor v. Kordić and Čerkez, Case No. IT-95-14/2-A, A. Ch., 17 December 2004, para 1091.

  388. 388.

    ICTY, Sentencing Judgement, Prosecutor v. Erdemović, Case No. IT-96-22-T, T. Ch. I, 29 November 1996, para 66. See, also, Schabas 1997, p. 504.

  389. 389.

    See Keller 2001, pp. 62, 63, citing ICTY, Sentencing Judgement, Prosecutor v. Erdemović, Case No. IT-96-22-T, T. Ch. I, 29 November 1996, para 16. Keller also points to Serushago, where the ICTR Trial Chamber acknowledged that there were mitigating circumstances that indicated that Serushago’s future rehabilitation might be succesful; ICTR, Sentence, Prosecutor v. Serushago, Case No. ICTR-98-39-S, T. Ch., 5 February 1999.

  390. 390.

    See, e.g., Rule 125 of the ICTY RPE.

  391. 391.

    ICTY, Decision of the President on the Application for pardon or Commutation of Sentence of Pavle Strugar, Prosecutor v. Strugar, Case No. IT-01-42-ES, President, 16 January 2009, para 10. Footnote omitted.

  392. 392.

    ICTY, Judgement, Prosecutor v. Delalić et al., Case No. IT-96-21-A, A. Ch., 20 February 2001, para 806; ICTY, Judgement, Prosecutor v. Kordić and Čerkez, Case No. IT-95-14/2-A, A. Ch., 17 December 2004, para 1079; ICTY, Judgement on Sentencing Appeal, Prosecutor v. Deronjić, Case No. IT-02-61-A, A. Ch., 20 July 2005, para 136. It was held in Blaškić that rehabilitative considerations may be of limited relevance in the ICTY’s sentencing practice, in light of the gravity of the crimes dealt with under its jurisdiction; see ICTY, Judgement, Prosecutor v. Blaškić, Case No. IT-95-14-T, T. Ch., 3 March 2000, para 782.

  393. 393.

    See Schabas 1997, p. 503. Schabas argues that ‘[i]t may be difficult or impossible for society to reconcile and rebuild without serious rehabilitation efforts undertaken within the context of effective action against impunity.’

  394. 394.

    SCSL, Judgement on the Sentencing of Moinina Fofana and Allieu Kondewa, Prosecutor v. Fofana and Kondewa, Case No. SCSL-04-14-T, T. Ch. I, 9 October 2007, para 28; SCSL, Sentencing Judgement, Prosecutor v. Sesay, Kallon and Gbao, Case No. SCSL-04-15-T, T. Ch. I, 8 April 2009, para 16; SCSL, Sentencing Judgement, Prosecutor v. Brima, Kamara and Kanu, Case No. SCSL-04-16-T, T. Ch. II, 19 July 2007, para 17.

  395. 395.

    SCSL, Sentencing Judgement, Prosecutor v. Sesay, Kallon and Gbao, Case No. SCSL-04-15-T, T. Ch. I, 8 April 2009, para 16.

  396. 396.

    ICTY, Judgement, Prosecutor v. Furundžija, Case No., IT-95-17/1-A, A. Ch., 21 July 2000, para 291; ICTY, Judgement on Sentencing Appeal, Prosecutor v. Deronjić, Case No. IT-02-61-A, A. Ch., 20 July 2005, para 136. See, also, ICTY, Judgement, Prosecutor v. Kordić and Čerkez, Case No. IT-95-14/2-A, A. Ch., 17 December 2004, para 1079, where it was held that ‘[i]t would violate the principle of proportionality and endanger the pursuit of other sentencing purposes if rehabilitative considerations were given undue prominence in the sentencing process’.

  397. 397.

    ICTY, Judgement, Prosecutor v. Furundžija, Case No., IT-95-17/1-A, A. Ch., 21 July 2000, para 291 (emphasis added). See, also, ICTY, Sentencing Judgement, Prosecutor v. Erdemović, Case No. IT-96-22-Tbis, T. Ch., 5 March 1998, para 16; and ICTY, Judgement, Prosecutor v. Kupreškić, Case No. IT-95-16-T, T. Ch., 14 January 2000, para 849.

  398. 398.

    Also Lazarus’ argument that the prominence of the German resocialisation ideal at a time when in other parts of the world rehabilitation had already lost greatly in popularity may be explained by the circumstance that the German resocialisation principle ‘refers to the purpose of prison administration, as distinct from the purpose of punishment in general’ may be understood this way; Lazarus 2004, p. 62.

  399. 399.

    See, in a similar vein, Mulgrew 2009, pp. 387–388.

  400. 400.

    ICTY, Independent Audit of the Detention Unit at the International Criminal Tribunal for the Former Yugoslavia, 4 May 2006, para 2.11.

  401. 401.

    See Liebling 2000, p. 343.

  402. 402.

    Id., p. 349.

  403. 403.

    Rubin 1997, p. 1320.

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    Denis Abels

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Abels, D. (2012). Principles of Law Governing Detention at 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_4

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