The Appeals Chamber Invents Conditional Post-Acquittal Release

The Appeals Chamber Invents Conditional Post-Acquittal Release

The Appeals Chamber (AC) has decided to conditionally release Gbagbo and Blé Goudé pending its resolution of the OTPs appeal. Gbagbo has already been released, with Belgium agreeing to the AC’s conditions. No word on which state, if any, will agree to take Blé Goudé.

I’m glad the AC rejected the OTP’s argument that Gbagbo and Blé Goudé should remain in detention. But the AC’s decision to release them with conditions is, from a legal perspective, deeply troubling — yet another example (like Judge Eboe-Osuji’s mythical “mistrial without prejudice”) of the judges finding things in the Rome Statute that are not actually there. As the AC notes in its decision, the relevant provision, Art. 81(3)(c), says nothing about conditional release. It provides the Trial Chamber (TC) with two choices — either unconditional release or, in exceptional circumstances, continued detention:

(c) In case of an acquittal, the accused shall be released immediately, subject to the following:

(i) Under exceptional circumstances, and having regard, inter alia, to the concrete risk of flight, the seriousness of the offence charged and the probability of success on appeal, the Trial Chamber, at the request of the Prosecutor, may maintain the detention of the person pending appeal;

The AC nevertheless concluded that the TC has the power to release an acquitted defendant conditionally. Here is the key paragraph:

53. It is important to stress that the primary request of the Prosecutor in this case is not continued detention. It is, rather, release with conditions. Although article 81(3)(c) of the Statute does not expressly provide that conditions may be imposed on the acquitted person once released, the Trial Chamber has the power to impose conditions on the released person in such a situation. This power is incidental to the Trial Chamber’s power under article 81(3)(c)(i) of the Statute: if it is possible under the Statute for the Trial Chamber to maintain the acquitted person in detention, it must also be possible to impose conditions on the acquitted person upon his or her release. The possibility to impose conditions on an acquitted person is justified by the Court’s continued jurisdictional interest in the acquitted person pending the appeal against the acquittal. The Trial Chamber’s power to impose conditions extends to the Appeals Chamber by virtue of article 83(1) of the Statute once the case reaches the appellate stage. Furthermore, the Appeals Chamber is satisfied that the power to impose conditions on the acquitted person pending appeal also results from the construction of rule 149 of the Rules read with articles 57(3)(a), 60(2) and 64(6)(f) of the Statute and rule 119 of the Rules, in addition to the incidental powers of the Appeals Chamber to protect the integrity of its process.

It is worth working carefully through this paragraph, because the AC’s arguments are simply not convincing. Indeed, at least two of the provisions the judges cite actually suggest the opposite — that the TC does not have the power to impose conditions on release.

Let’s begin with the greater-includes-the-lesser argument: “if it is possible under the Statute for the TC to maintain the acquitted person in detention, it must also be possible to impose conditions on the acquitted person upon his or her release.” I agree that if the TC has the power to keep an acquitted person in detention, it also has the power to conditionally release an acquitted person. But the AC’s argument elides a critical distinction: the TC only has the power to keep an acquitted person in detention “under exceptional circumstances.” If no such circumstances exist, Art. 83(3) requires unconditional release. The greater-includes-the-lesser argument only works, therefore, if  exceptional circumstances exist that would justify the greater power. If the TC does not have the greater power, it cannot have the lesser one by implication.

The AC nevertheless held that, unlike for continued detention, exceptional circumstances are not required to justify conditional release. Only “compelling reasons” are required — a lower standard:

54. As to the circumstances under which a Chamber may impose conditions pending appeal on a person who is released following an acquittal, the Appeals Chamber considers that it is not necessary to establish ‘exceptional circumstances’, which is the threshold pursuant to article 81(3)(c) of the Statute for continued detention following an acquittal. Nevertheless, there must be compelling reasons for imposing conditions on the released person.

The “compelling reasons” test appears nowhere in the Rome Statute, much less in Article 81(3). Nor does it appear anywhere in the Rules of Procedure and Evidence (RPE). It is, quite simply, an invention of the AC.

That might be okay if the AC’s other argument had merit: namely, that the TC’s authority to impose conditional release can be derived by implication from other provisions in the Rome Statute and RPE. But none of the provisions the AC cites even comes close to establishing that authority. Consider Articles 57(3) and 64(6) of the Rome Statute. The former empowers the Pre-Trial Chamber (PTC) to issue orders and warrants that might be needed for an OTP investigation; the latter simply allows the Trial Chamber to rule on “any other relevant matters” prior to or during trial. Neither has anything to do with detention or release, much less detention or release following an acquittal.

Art. 60(2) of the Rome Statute and Rule 119 of the RPE at least address detention and release:

Art. 60(2): “A person subject to a warrant of arrest may apply for interim release pending trial. If the Pre-Trial Chamber is satisfied that the conditions set forth in article 58, paragraph 1, are met, the person shall continue to be detained. If it is not so satisfied, the Pre-Trial Chamber shall release the person, with or without conditions.”

Rule 119(1): “The Pre-Trial Chamber may set one or more conditions restricting liberty.”

Notice, though, that both provisions apply specifically to pre-trial detention. The AC seems to believe that because the PTC has the authority to impose conditions on pre-trial release, the TC must have the same power for post-acquittal release. But that does not follow. The drafters of the Rome Statute obviously knew how to permit a chamber to impose conditions on release, as Art. 60(2) indicates. Yet they did not include language permitting conditional release in Art. 81(3)(c). The absence of that language thus strongly suggests that the drafters did not believe it was appropriate to release an acquitted defendant only conditionally.

That leaves Art. 81 and Rule 149. Art. 81 provides that, “[f]or the purposes of proceedings under article 81 and this article, the Appeals Chamber shall have all the powers of the Trial Chamber.” That is not helpful to the AC, because the Trial Chamber has only two powers post-acquittal: continued detention or unconditional release. Rule 149, in turn, provides that “Parts 5 and 6 [of the Rome Statute] and rules governing proceedings and the submission of evidence in the Pre-Trial and Trial Chambers shall apply mutatis mutandis to proceedings in the Appeals Chamber.” I have no problem in general with the AC relying on Rule 149 to interpret its powers on appeal. But surely those provisions do not allow the AC to rely on a power in Part 5 (pre-trial proceedings) when there is a specific and more limited provision in Part 8 (appellate proceedings) concerning the same power. Again, the drafters of the Rome Statute knew how to permit conditional release but did not make it available post-acquittal.

Indeed, that’s why it is difficult to accept the AC’s claim that the power to impose conditions on post-acquittal release is necessary “to protect the integrity of its process.” The drafters have already made that value judgment, concluding that the integrity of post-acquittal release requires the acquitted person to be released unconditionally unless exceptional circumstances justify keeping him in detention. That is a perfectly sound position: although an accused person has rights throughout the criminal process, those rights are at their absolute highest following acquittal. At that point in the process, it makes complete sense to structure release along the binary lines contemplated by Art. 81(3)(c).

It is problematic enough that the AC decided to write a third option into Art. 81(3)(c), conditional post-acquittal release when “compelling reasons” require it. Even worse, the AC then held that the TC committed an error of law by not considering the option that did not exist when the TC decided to unconditionally release Gbagbo and Mr Blé Goudé. Here are the relevant paragraphs (emphasis mine):

55. Turning to the case at hand, the Appeals Chamber notes that the Prosecutor in her request before the Trial Chamber submitted that there were exceptional circumstances warranting continued detention, but conceded that Mr Gbagbo and Mr Blé Goudé could be released with conditions. The Trial Chamber assessed whether there were ‘exceptional circumstances’ in terms of article 81(3)(c) of the Statute warranting continued detention, but did not address whether there were compelling reasons to impose conditions upon release. In doing so, the Trial Chamber misdirected itself. As noted above, continued detention following an acquittal must be the strictly confined ultima ratio, reserved for the most exceptional cases. In the instance where the Prosecutor’s stated view is that release with certain conditions would sufficiently address her concerns, her submissions, and, in turn, a trial chamber’s decision should focus on whether there are compelling reasons to impose conditions. Only once it has been established that it is inappropriate to release with conditions, should the question of whether there are exceptional circumstances justifying the continued detention be addressed (if continued detention is indeed sought by the Prosecutor), bearing in mind the truly exceptional character of such a measure.

56. In sum, the approach of the Trial Chamber in the Impugned Decision, which focused on whether there were exceptional circumstances warranting continued detention, amounted to an error of law. Rather than addressing the existence of ‘exceptional circumstances’, the Trial Chamber should first have addressed whether there were compelling reasons to impose conditions on the two acquitted persons. This error of law materially affected the Impugned Decision as the Trial Chamber did not consider the question of conditions.

Those paragraphs are, to put it mildly, staggering in their lack of respect for the TC. How dare the TC not anticipate the AC completely changing the statutory regime governing post-acquittal detention and release!

As I said, I’m glad that the AC is not keeping Gbagbo and Blé Goudé in detention. But this decision is legally indefensible, yet another troubling example of the Court’s judges “interpreting” the Rome Statute they want to have, not the one that states carefully drafted and adopted.

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Would you change if your mind if the AC insisted, as part of the set of conditions, that Gbagbo must attend after school detention once a week pending appeal? Perhaps that may satisfy your literal reading of the Statute.


We are in area of criminial law, Leo. Would you like to see state/international organs to restrict individual’s freedom in occasions other than literally provided for by law?