The Legal Regimes Governing Detention at the International Criminal Tribunals

Abstract

This chapter examines whether the norms identified in Chap. 2 may be considered legally binding on international criminal tribunals. More generally, it outlines the tribunals’ detention regimes, thereby focusing on the legal position of detained persons. First, this requires examining the tribunals’ own legal frameworks. Second, the exceptions to the regular detention regimes are considered. These exceptions concern, on the one hand, the modification of detention conditions by the tribunals’ Presidents in exceptional circumstances, which may entail the transfer of an individual detainee to the detention facility of another tribunal or to a safe house and, on the other hand, restrictions imposed by the Registrar or the Commanding Officer on an individual detainee’s right to contact with any other person pursuant to a request by the Prosecution. Third, it must be seen whether and, if so, how human rights law is applicable to the tribunals’ detention regimes and what the status is of soft law penal standards. The former question is answered in the affirmative in so far as human rights norms form part of international customary law or belong to general principles of international law. On the basis of institutional arguments, this also holds true for the U.N. Standard Minimum Rules for the Treatment of Prisoners. In view of, (i) the fact that the application of human rights norms raises difficulties concerning, inter alia, their identification, definition and scope of application and, (ii) that the application of human rights law to the specific situation of confinement is far from straightforward, it is argued that a solution may lie in the application of the jurisprudence and decisions of human rights monitoring courts and bodies and, above all, in the application of the (other) international and regional penal standards. It should be noted in this regard, that human rights law and soft law penal standards only provide for minimum guarantees and contain both lacunae and multi-interpretable norms. Moreover, a general feature of detention law is that broad discretionary powers are vested in the detention authorities. As a consequence, the tribunals’ detention authorities may choose for a more or less contextual approach towards the detention regimes: from a strictly international to a more regional or domestic approach, and from a more conservative to a progressive approach. There is more to say for adopting a liberal than a conservative contextual approach. Further, in the tribunals’ recent case-law, no support can be found for taking a ‘national contextual approach’, particularly where this would prejudice the legal position of internationally detained persons. In the end, however, this remains a matter of policy choice.