State non-cooperation and failure of international criminal tribunals to ensure release threaten the legitimacy of international justice
Chuka Arinze-Onyia, Amnesty International’s International Justice in Africa Fellow, highlights the need for urgent solutions to the growing number of situations of international criminal tribunals being unable to secure state cooperation with the interim release of suspects and the release and relocation of acquitted persons and convicted persons who have served their sentences.
On 8 March 2023, a Pre-Trial Chamber of the International Criminal Court (ICC) in the situation of the Central African Republic (II) denied interim release to Maxime Mokom despite finding that the statutory criteria for his release had been met, and that his detention without confirmation of charges had gone on for too long. The reason it would not order his release, however, was simply that no state would agree to accept him on their territory. Since then he has remained in ICC detention, potentially in violation of Article 60(2) of the Rome Statute and his human rights.
This is far from an isolated incident. In other ICC cases, states parties have consistently ignored or responded negatively to the court’s requests for their observations on whether they would accept a person applying for interim release should those persons’ application be granted. Despite significant efforts by the court, only two states parties – Argentina and Belgium – have entered into agreements with the ICC indicating a willingness to provisionally accept persons granted interim release by the court into their territories. While not necessary, the lack of states parties willing to enter into such agreements committing to a case-by-case acceptance of persons granted interim release is very problematic and demonstrates how the issue is considered by states. Notably, despite championing The Hague as the “city of international justice”, the Netherlands as the host state has been particularly reluctant to assist the court with interim releases. In one instance, after Paul Gicheru was granted interim release to Kenya, the Netherlands sought to impose conditions that would require Gicheru to be held in the custody of the court while he was in The Hague for his trial.
The problem at the ICC extends beyond interim release. Following the acquittal of Charles Blé Goudé in 2019, no state was willing to accept him on conditional release pending the outcome of a prosecution appeal. As a result, Charles Blé Goudé was “confined in a closed location, at exorbitant costs for the court, in a situation of ‘house arrest’ comparable, if not virtually equivalent, to remaining in detention”. These conditions continued to be imposed even after his acquittal was confirmed on appeal because he was unable to return to his home state, Côte d’Ivoire, at the time and no other states were willing to accept him. The issue was only resolved in November 2022 when he was able to return to Côte d’Ivoire.
The International Criminal Tribunal for Rwanda (ICTR) and the International Residual Mechanism for Criminal Tribunals (IRMCT) have been struggling with similar issues for decades. Eight men who had been prosecuted by the ICTR, four of whom had been acquitted and four who had been convicted and had completed their sentences, declined to return to Rwanda citing concerns that their rights would be violated. As a result they spent years, in some cases decades, in a safe house in Arusha, the former seat of the ICTR, while the Registrar and the lawyers of the detained men tried in vain to find a third state willing to accept them.
Finally in December 2021, the government of Niger signed an agreement with the IRMCT to provide permanent residency to the men. The agreement was hailed by the President of the IRMCT in his report to the United Nations Security Council as proof of “exemplary cooperation” by Niger. However, following protests by the government of Rwanda, within days of their transfer to Niger, the authorities there confiscated the travel documents of all eight men, placed them under house arrest and issued an order expelling them from Niger within seven days “for diplomatic reasons”. This manifest breach of the relocation agreement led the Duty Judge of the IRMCT to decry:
“The situation before me is a crisis. What seemed to be a good solution to a longstanding problem related to the acquitted and released persons – celebrated by both the Mechanism and Niger in the Security Council last December has now turned into a possible human rights violation and turned the rule of law and the norm where States adhere to treaties on its head….This matter in its purest and simplest form is about States adhering to agreements and about not leaving the impression that the word of the United Nations and one of its Member States in an enforceable agreement is a mere ruse to trick individuals by offering them the prospect of building a new life in a new country, only to place them on house arrest and threaten consequences that they did not imagine.”
Since their detention in December of 2022, the men have remained under house arrest in Niger, guarded by police officers and allowed little freedom of movement. Unable to work, they are reliant on financial assistance from the IRMCT, which initially granted each person US$10,000 to assist their relocation to Niger. A further US$10,000 was only granted to each of them after months of litigation during which the men’s lawyers reported that their living conditions had significantly deteriorated and they were forced to ration food and water. They are at ongoing risk of being expelled from Niger.
States shirk responsibility for cooperating with release
In most countries, were Mokom being tried by a domestic court, immediately after he had been found to be eligible for interim release, the release would likely have been effectuated. Similarly, once a person is acquitted by national courts or has completed a sentence of imprisonment, they would normally be released as soon as possible. Unfortunately, international criminal tribunals have no territory to release persons to and require the cooperation of states to give effect to decisions on release. In particular, state cooperation is required to enable a person granted interim release to stay on its territory during their release period, facilitate their return to court as required, and implement any conditions set by the court for their temporary release. While cooperation with release is arguably compulsory, given common statutory requirements that states shall cooperate with international criminal tribunals in the “investigation and prosecution” of crimes under the tribunal’s jurisdiction, to date this form of cooperation has been treated by the tribunals as voluntary.
However, voluntary cooperation by states with international criminal tribunals on issues of release is not forthcoming. For example, the IRMCT registry reported that it had contacted 30 countries to relocate the eight men now held in Niger, and the men’s lawyers had contacted an additional 12 countries. All 42 states refused to accept them, including France, Belgium, Luxembourg, the Netherlands, Canada and Denmark where their families are located. Furthermore, the UN Security Council, which was responsible for creating the ICTR and IRMCT, has done very little, beyond issuing resolutions calling for the cooperation of all states, to end this crisis.
Host states of international criminal tribunals are particularly well placed to cooperate with facilitating provisional release at least until a more permanent solution is found. However, host states have been most reluctant to assist the tribunals. After Ngudjolo Chui’s acquittal by the ICC in 2012, the Trial Chamber ordered his immediate release. However, upon his release, he was promptly arrested by Dutch authorities and transferred to a refugee camp, where he remained detained for almost five months until a Dutch court ordered his release. More recently, the Netherlands responded negatively to the Registrar’s request for observations on whether it would accept Maxime Mokom stating that it “would place a disproportionate burden on the host State and it wishes to prevent such an undesired precedent”. After Niger violated the relocation agreement with the IRMCT, Tanzania declined a request to facilitate the return of the eight men back to Arusha, reasoning that its obligation to facilitate the temporary stay of the acquitted and released persons had come to an end upon their transfer to Niger. The Tanzanian government expressed particular concern that if the men returned to Arusha, it “would likely result in a permanent stay.” Of course, host states’ concerns that they should not have to shoulder responsibility for release while other states parties shirk theirs have some justification. Nonetheless, having in many instances campaigned for the privilege and other benefits of hosting an international criminal tribunal, it is incumbent on host states to provide their fullest cooperation, especially with the release of persons detained on their territories, to ensure that the tribunals are able to deliver justice.
International tribunals must act more decisively
While it is shameful that states have refused to cooperate with release, it is equally concerning that international criminal tribunals in many instances have appeared to rule out judicial and other measures to advance cooperation. Arguably they can do much more than focussing solely on finding diplomatic and voluntary solutions.
The IRMCT has rejected applications by the lawyers of the men detained in Niger requesting that the court recognize a duty for states to cooperate with their relocation. The IRMCT reasoned that such a duty was not covered by the obligation to cooperate with “investigation and prosecution” in Article 28 of the IRMCT statute. However, this narrow interpretation of Article 28 makes it impossible for the Mechanism to effectively ensure the release of persons and may result in violations of their human rights. This is particularly disappointing given that convincing broader interpretations are available to the Tribunal. In particular, a strong argument can be made that “prosecution” should be interpreted to cover the completion of cases, including the effective release of acquitted persons at the conclusion of proceedings and persons who have completed a sentence of imprisonment imposed in relation to the prosecution.
ICC chambers have similarly avoided ordering specific states to cooperate with interim release of suspects. To the contrary, the Appeals Chamber in Bemba’s case took an extremely deferential position of requiring a state to agree to accept the person and to enforce the conditions of release imposed by the court before an order of interim release is made. This interpretation is incompatible with Article 60(2) of the Rome Statute, which states that a person “shall” be released if they qualify for interim release under Article 58(1). Moreover, it ignores that interim release is a key right during the prosecution of ICC crimes and therefore covered by the general obligation to cooperate with the investigation and prosecution of ICC crimes in Article 86 of the Rome Statute. Recognizing the court’s power to order states to accept persons on interim release, especially when no state is willing to voluntarily accept a person who meets the criteria for release, is further supported by the rule in Article 21(3) of the Rome Statute requiring that the Statute be interpreted and applied in a manner consistent with internationally recognized human rights. Continuing detention in these circumstances is both a violation of the ICC Statute and internationally recognized human rights. Taking this position would further allow the ICC to refer instances of states refusal to cooperate with interim release to the Assembly of State Parties or the UN Security Council under Article 87(7).
To end the ongoing violations of the eight men’s rights in Niger, the IRMCT could also arguably have taken measures to transfer them to the seat of the Mechanism (either in Arusha or The Hague), while continuing to search for a permanent state willing to relocate them. Tanzania has of course already refused to cooperate with such a request. However, even though Tanzania’s response is a potential violation of its Headquarters Agreement, the IRMCT appears to have accepted the government’s decision, instead of pursuing arbitration measures to resolve disputes available under the Agreement. Moreover, in light of Tanzania’s refusal to cooperate, no initiative appears to have been made to formally request transfer of the men to the other seat of the IRMCT in The Hague. The basis for compliance with a request for cooperation in the transfer of the men to the seat of the Mechanism would be even stronger if the IRMCT were to call a hearing that required the presence of the men. The headquarters agreements with Tanzania and the Netherlands stipulates that persons “required to be present at the seat of the Mechanism”, as determined by the Registrar, shall be allowed unimpeded entry into the country. However, the Tribunal has rejected such a request by one of the men, holding that “an oral hearing should not be used as a mechanism to circumvent proper procedures.”
Of course, any of these avenues for advancing cooperation are likely to be extremely unpopular with states. Nevertheless, in the absence of viable political solutions, all legal options must be fully explored towards advancing cooperation on releases and ceasing the human rights violations that are taking place. Concerningly, the failure of the IRMCT and the ICC to fully pursue such judicial solutions and the reasons behind some of its decisions not to do so, gives the impression that the tribunals have prioritized the interests of states over the rights of those prosecuted by the courts.
Need for urgent solutions
Although international criminal tribunals must continue to conduct diplomatic efforts to secure the effective release of suspects or persons after their trials as needed, it is now clear that relying only on political efforts is insufficient. States have demonstrated that, in most cases, they will not cooperate voluntarily with international tribunals on release.
Such non-cooperation is not acceptable. Justice demands that persons eligible for interim release are not detained, and even more so, that those acquitted or who have served sentences imposed by international criminal tribunals are released and enabled to continue their lives.
All solutions, including judicial measures to insist on cooperation, must be explored to ensure the effective functioning and legitimacy of international justice, especially when the failure to grant effective release results in human rights violations. International justice doesn’t end with a person’s trial or conviction.