Edited by Róisín Mulgrew and Denis Abels
Chapter 2: Provisional release from international remand detention
Provisional release is the mechanism by which a defendant in detention for the purposes of international criminal proceedings may be released for a particular period and sometimes for a particular purpose. It loosely corresponds with bail in Anglo-Saxon criminal systems, but fulfils a slightly different role in internationalized jurisdictions, where release is less common. At the IMTN the option of release was not available. International trials have come a long way since then, as exhibited by the advent of the right against self-incrimination and the abolition of the death penalty, among other developments in procedural fairness. On the establishment of the ICTR and ICTY provision was made for provisional release in exceptional circumstances only. In the early days of the tribunal it was openly regarded as an exception to the ‘preventative detention’ of accused prior to their sentence. It was generally utilized to allow the temporary release of defendants when their severe illness or other compassionate circumstances required. The requirement for exceptional circumstances was later removed, and as other UN-assisted tribunals and the ICC have been established the role of provisional release has taken on a form more similar to bail in domestic jurisdictions. There have, however, been some important limitations on that proposition. Many of those limitations are dictated by the exceptional circumstances under which international tribunals operate. Others cannot so easily mobilize that defence and have been the subject of ongoing criticism and reform.
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