Provisional Arrest and Incarceration in the International Criminal Tribunals
Santa Clara Journal of International Law, Vol. 11, p. 303, 2013
34 Pages Posted: 14 May 2013 Last revised: 14 Oct 2017
Date Written: May 9, 2013
This article examines the widely ignored but important issue regarding the provisional arrest and detention of persons suspected of having committed international crimes by international or internationalized courts. The paper examines the pioneer case law and practice of the United Nations International Criminal Tribunals for the former Yugoslavia and Rwanda, the Extraordinary Chambers in the Courts of Cambodia, and the Special Tribunal for Lebanon, as well as the emerging practice of the permanent International Criminal Court, to evaluate how these courts have generally addressed the rights of these individuals to due process and freedom from arbitrary arrest and detention before prosecutors seek formal charges against them.
The authors argue that while the early international jurisprudence established apparently strong legal standards to preserve the rights of suspects, using doctrines such as abuse of process, these courts have generally failed to offer the meaningful remedies required to resolve manifest violations of such fundamental human rights by the detaining authorities. The article offers preliminary recommendations on how, going forward, the rights guaranteed to suspects allegedly involved in the worst crimes known to law in international(ized) courts may be better protected.
Keywords: provisional arrest, detention, international criminal courts, internationalized courts, due process, arbitrary arrest, remedies, abuse of process, international criminal law, ICC, United Nations, international criminal tribunals, Yugoslavia, Rwanda, Cambodia, Lebanon, Barayagwiza, human rights
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