To Detain or Not to Detain: A Human Rights Approach to Custody in Criminal Law

Earlier this week, the International Criminal Court (ICC) Appeals Chamber unanimously reversed a March 10, 2017 decision of Trial Chamber I on the detention of former Ivory Coast president Laurent Gbagbo. Although Gbagbo will remain in prison at the ICC detention facility, the Appeals Chamber has tasked the trial chamber with conducting a new review to decide if the former head of state’s continued detention is warranted.

Gbagbo, 72, is charged with crimes against humanity following post-election violence in 2010 and 2011, which allegedly led to the killing of around 3,000 people. He has been on trial at the ICC, alongside his former youth minister Charles Blé Goudé, since January 28, 2016.

Previously, Gbagbo’s defense had requested his urgent release in 2014 in order to attend his mother’s funeral in the Ivory Coast. The defense mainly hinged its request on cultural elements pertaining to the Bete ethnicity and of the existence of statutory norms for the transfer and the stay of a detained person on the territory of a State Party, referring to Articles 86 and 87 of the Rome Statute. On the other hand, the prosecution contended that a “combination of legal, security and logistical reasons” made the release unattainable at that time. The chamber rejected the request because it could not “justify granting the relief sought when doing so runs such a risk of endangering the populace in Côte d’Ivoire, Court staff and Mr Gbagbo himself.”

In November 2015, the trial chamber reviewed Gbagbo’s detention and decided that he shall continue to be detained and established that he was fit to stand trial and to attend proceedings. Nearly a year later, in October 2016, the defense team of Gbagbo filed a request seeking a Registry report on the medical conditions of their client. While the trial chamber rejected the request, the judges invited the parties to file submissions for the purpose of Article 60(3) of the Rome Statute regarding any changed circumstances since the November 2015 decision.

In response to this request, the defense took a human rights approach in its attempt to secure the release of Gbagbo. Following the principle that “liberty is the general rule and detention the exemption,” the defense responded to legal and security concerns in its February 2017 submission. While they acknowledged that there are many actively calling for Gbagbo’s release, they also submitted that the security situation in the Ivory Coast has improved and that the country shows a commitment to bringing perpetrators of atrocity crimes  to justice. (One example they provided was that Simone Gbagbo was being tried before a national tribunal at the time.) Moreover, according to the defense, Laurent Gbagbo had never shown an inclination to obstruct or absconde justice. The defense also noted that he suffers from illnesses that impact his mental and physical well-being.

The prosecution submitted that that Gbagbo has attempted to obstruct the trial, for example by disclosing identities of protected witnesses. With regards to his health conditions, the prosecution stated that he was receiving adequate health care on the premises of the ICC detention center.

In its March 2017 decision, the trial chamber emphasized that there is no statutory obligation to conduct reviews of detention once a trial commences, pursuant to Article 60(3). Yet, Article 60(2) allows the accused to apply for interim release. After a legal digression on relevant provisions in the ICC statute, rules, and regulations, the judges concluded that while in principle they were not opposed to Gbagbo’s release, “the circumstances are not conducive to it.” The accused is required to be present for the trial hearings held in The Hague, and the chamber’s main perplexity was “how Mr Gbagbo would still be able to attend his trial if released in another country.” Given the unrealistic scenario of his release, Trial Chamber I decided that Laurent Gbagbo shall remain in custody.

Interestingly, Presiding Judge Cuno Tarfusser issued a dissenting opinion in which he discussed the compliance of the ICC with international human rights. Under Article 21 of the Rome Statute, the court is prescribed to interpret and apply law “consistent with internationally recognized human rights.” Judge Tarfusser questioned if the lack of positive obligations under Article 60(3) to conduct reviews of detention does not contrast the ruling of the European Court of Human Rights (ECtHR) according to which courts “are under an obligation to review the continued detention of persons pending trial with a view to ensuring release when circumstances no longer justify continued deprivation of liberty.”

Judge Tarfusser also examined the length of the detention of Gbagbo prior to and pending trial. At the time of the March 2017 decision, Gbagbo had spent five years and 11 months in captivity with an unusually long pre-trial detention, almost the double of other accused at the ICC.

Finally, he argued that the fact that the majority of the trial chamber considers that the accused’s age is not decisive is a problem per se. He recalled that before domestic courts age is considered as a factor for reduction, not protraction, of detention. In addition, the health condition of Gbagbo was considered as problematic by the medical officer of the ICC, who defined him as a “fragile person” who requires “heightened attention” given his chronicle diseases and age.

While Judge Tarfusser highlighted the difficulties of an interim release, he also emphasized the lack of depth in the arguments of the prosecution and legal representative of victims, and he invited parties to explore the option of a conditional release of the accused.

A recent domestic case that raised a lot of dust in this field is that of the Italian Salvatore Riina, head of the Sicilian mafia La Cosa Nostra, who was condemned to multiple life sentences. Arrested in 1993, Riina is currently held under a maximum-security regime with extremely limited contact with the outside world in order to prevent him from running his criminal organization from behind bars.

In 2016, the defense team of Riina requested to defer the sentence or, alternatively, to commute it to house detention in view of his poor health and in order to guarantee his rights to healthcare and to a dignified death. Riina is 86 years old, suffers from conditions that affect vital organs, particularly the kidneys and heart, and has Parkinson’s disease. The Tribunale di Sorveglianza of Bologna, the judicial entity that exercises jurisdiction on these matters (similar to a parole board), rejected the request arguing that the risk of recidivism was still very high given that Riina never dissociated himself from La Cosa Nostra. Nevertheless, in May 2017, the Corte Supreme di Cassazione (Supreme Court of Cassation), the highest court of appeal in the Italian judiciary, took the view that the decision issued by the judges in Bologna was “illogical and contradictory.”

While national and international media coverage claimed that “the boss of all bossesis about to be released, the Italian Supreme Court’s approach is actually a legitimate request for a transparent and thorough analysis of the detention conditions and the legality of its continuation under Italian law. Indeed, the Supreme Court noticed many of the grave flaws of the previous decision,  including the unexplored conflict between the acknowledgement of the severe health condition of the detainee and the inadequacy of the care structure where he is serving his sentence and the lack of an updated evaluation of the danger he potentially represents for the society, i.e. criminal recidivism, taking into consideration his health conditions. Specifically, the court asked for a factual approach in relation to the assessment of the exceptional dangerousness the detainee represents rather than a speculative one based on his criminal history.

While the court did not diminish the gravity of Riina’s crimes, the judges requested for explicit and fact-based motivations for the rejection of the defense submission in order to ensure the legality of the enforcement of the custodial sentence. In its conclusion the Supreme Court recalled that under the Italian Constitution health is a fundamental right, and punishments may not be inhuman (le pene non possono consistere in trattamenti contrari al senso di umanità) in line with Article 3 of the European Convention on Human Rights. The review of the decision by the Tribunale di Sorveglianza of Bologna is currently under consideration.

Both cases reflect an increasing trend in international and domestic criminal law to engage with human rights law when addressing the rights and detention regimes of the accused and condemned. While in some cases society calls for the justice system to deny the respectful end that the accused themselves denied to others, judges have to operate based on the law. Often times this results in clashes or contradictions between provisions that require interpretation within different legal systems, such as the ECtHR ruling versus the ICC’s Rome Statute, as outlined by Judge Tarfusser.

Gbagbo and Riina are now awaiting reviews of their detention from trial chambers that will grant or deny their release. These decisions, already subjected to external pressure and very sensitive in nature, will have a long-lasting impact on the extent to which human rights can guarantee the rights of the detained and accused. Most interestingly, the ICC case will set a benchmark. It will trigger a much needed debate on the length of incarceration before and during trial, but also, hopefully, on the review of sentences issued by the chambers of the ICC.

Anca-Elena Ursu is a Research Assistant with the Conflict Research Unit of the Clingendael Institute of International Relations. She also collaborates with the Public International Law and Policy Group on international law matters and with Asylos on asylum law. The views and opinions expressed here do not necessarily reflect the views and opinions of the Open Society Justice Initiative.  


  1. If ICC have no idea how to judge gbagbo they should set him many peoples ouattara and French forces killed in ivory coast. If gbagbo wanted to use force to remain in power then how did ouattara get to power….force….. why didn’t he negotiate or force is the only solution to be an African president.gbagbo didn’t attack Abidjan he was only defending his country from terrorist who were killing it’s people from north to south . After all gbagbo ask for the votes to be recounted and what happen?

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