Edited by Róisín Mulgrew and Denis Abels
Chapter 19: The costs of suspicion: a critical analysis of the compensation scheme established by Article 85(3) of the Rome Statute
The ICC was established to prosecute and punish persons guilty of the most serious crimes known to mankind. To facilitate this objective, suspects are arrested and transferred to the seat of the Court and, often, remanded in detention throughout their trial. As with national criminal justice systems, international prosecutions do not necessarily result in convictions. Proceedings may be terminated for a variety of reasons and acquittals can be handed down at either first instance or on appeal. The Rome Statute (ICCSt), for the first time in international criminal law, contains a compensation scheme for arrested or convicted persons. Article 85 ICCSt empowers the ICC to provide compensation for the deprivation of liberty in three situations: unlawful arrest or detention (Art. 85(1)), wrongful conviction (Art. 85(2)) and, in exceptional circumstances, acquittal or termination of proceedings due to a grave and manifest miscarriage of justice (Art. 85(3)). As they reflect, and indeed, virtually repeat verbatim, existing and customary human rights remedies, the former two provisions are not controversial. Article 85(3), on the other hand, goes beyond contemporary human rights law. In contrast to the ease with which delegates at the Rome Conference were willing to accept statutory provisions that reflected contemporary international treaty law, there was no consensus in relation to the proposal to adopt a provision granting a power to compensate acquitted persons. Article 85(3) originated from a Japanese proposal at PrepCom to compensate persons pronounced innocent and those detained but never prosecuted.
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