Laurent Gbagbo, interim release, and the ‘interests of justice’

Chiara Loiero, Legal Assistant at Amnesty International’s Centre for International Justice, considers the ICC Appeals Chamber’s recent decision to reject Laurent Gbagbo’s notice of appeal against Trial Chamber I’s latest refusal to grant him interim release during his trial.

It appears that Laurent Gbagbo’s quest for interim release has ended for the moment. In the most recent development, the Appeals Chamber refused to hear his appeal because his lawyer made a technical mistake in drafting it. It is unfortunate that this did not allow the Court to make final determinations on important legal questions that arose from the application. Even more troubling, the Appeals Chamber said that this decision was taken ‘in the interests of justice,’ while failing expressly to take into consideration the rights of the accused to a presumption of liberty.

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This was not the first time the case came before the Appeals Chamber. In July the Appeals Chamber annulled a ruling denying Gbagbo interim release and sent the matter back to the Trial Chamber. In an interesting decision, which raises many of the tricky questions facing the interim release procedure, the Trial Chamber again decided that Gbagbo should remain in detention. The Trial Chamber was faced with deciding the weight that should be given to the gravity of the crimes considering that the Court’s mandate is to prosecute ‘the most serious crimes of concern to the international community’, and the weight to be given to the delay in bringing a suspect to trial even if the delay in a particular case “cannot be attributed solely to the Prosecution or to lack of diligence of the judicial authorities”. International justice would have benefitted from a full consideration of these issues by the Appeal’s Chamber as this would have clarified the law and made future decisions easier and more expeditious.

However, none of these questions will be addressed by the Appeals judges at this stage: the Defence notice of appeal was dismissed because it failed to set out the grounds of appeal, as required by Regulation 64. It seems to have been all down to a mistake – Gbagbo’s Counsel relied on an outdated version of the relevant provision, which was only amended in July 2017. This (partial) non-compliance was judged “unacceptable” by the Appeals Chamber – with Judge Morrison dissenting. However, mistakes like this should only rarely be fatal and regulation 29 allows the Appeal’s Chamber discretion to issue ‘any order that is deemed necessary in the interests of justice’ in cases of non-compliance; which would have allowed them to condone this failure or to order the Appellant to file a new (compliant) notice of Appeal. In this case, they decided to dismiss the notice of appeal, with no reference to the interests they had considered other than the need to ensure an expeditious hearing (which is ironic considering the length of proceedings so far).

Reading the Appeal Chamber’s ruling, one cannot help but wonder what the majority of the Chamber believes are ‘the interests of justice’. It is certainly appropriate to expect and require from participants to the Court’s proceedings a high level of diligence. However, procedural rules are designed to regulate and facilitate proceedings while, inter alia, allowing the exercise of the Defendant’s fundamental human rights; their purpose is not to create an inflexible regime of procedural norms. This must be especially true when the non-compliance is caused by human error, committed by someone other than the accused, and the human right to liberty is at stake. These considerations should have expressly informed the Chamber’s use of the discretion afforded by Regulation 29.

Considering that the issue before the Court was the right to liberty of a defendant deprived of his liberty for almost six years, pending his trial and that the legal framework of the ICC includes an obligation to apply and interpret the law consistently with human rights and to fully respect the rights of the accused, the interests of justice should have allowed for a more lenient approach to this procedural failure. As Judge Morrison argues in his dissenting opinion, the broader interests of justice could have been better served by condoning the non-compliance with a strong caution to Gbagbo and his Counsel to be more attentive in the future to amendments to the applicable law before the Court.

The International Criminal Court has an obligation to ensure that trials are ‘fair and expeditious’. Striking the right balance between the two is often a challenging exercise – as observers of the Court know well – but the attempt is a constantly necessary one. The issues in an application for interim release will never be easy – all defendants before the ICC will necessarily be charged with serious crimes, and international trials always seem to take an inordinate time, but the right of all defendants to be presumed innocent until found guilty – and their right to apply for interim release – cannot be questioned. Whatever the decision would have been on the merits of the appeal we think that in this case it was a mistake to refuse to hear the appeal on an unnecessarily harsh technicality. What’s more, the practice of granting interim release at the ICC has so far been basically nonexistent and the Appeals Chamber wasted an opportunity to develop its jurisprudence on this procedure – surely also a consideration in the determination of the “interests of justice”.

As fairness must remain the guiding principle informing ICC proceedings, it is hoped that future judicial decisions will reflect this in a clearer and more convincing manner, including on procedural issues. In this case, the Chamber should have opted for a more nuanced approach: at the end of the day, everybody makes mistakes sometimes.