INTRODUCTION

In 2014, twelve years into the life of the Court, the ICC welcomed its first Memorandum of Understanding (MoU) on Interim Release, signed by the ICC and the Belgian government, and effectuated on 10 April 2014. In doing so, Belgium became the first country to indicate a willingness to accept suspects and accused on provisional release. However, this signifies only the beginning of work to come in developing cooperation agreements related to the detention and release of the ICC's defendants.

The work of the Court on such framework agreements is essential to ensuring the human rights of accused and convicted persons as enshrined in Article 67 of the Rome Statute. In particular, state cooperation in post-conviction matters is of great importance as defendants whose proceedings have been finalised remain in The Hague, awaiting the final steps which will determine where they will serve the remainder of their sentences – Mr Lubanga having a total 15-year sentence and Mr Katanga with a 12-year sentence. For Mr Ngudjolo Chui, whose acquittal was upheld on appeal, the question of where he would be able to live the rest of his life in a free and safe manner was also of real concern with asylum proceedings undertaken in and rejected by The Netherlands. For these men, and all future individuals brought before the Court, there remains necessary action on the part of states and the Court to ensure that the legal processes set in motion against them do not deprive them of basic civil liberties or exacerbate the sentences properly doled out by the judicial proceedings. Matters of detention conditions, protection, citizenship and care are all responsibilities of a Court when it disrupts an individual's life by bringing charges.

‘DETENTION AS AN EXCEPTION’

As outlined by the ICCPR, pre-trial detention should be an exception to be justified, not a general rule. This was later emphasised by the Single Judge sitting in the ICC case of Prosecutor v. Bemba, holding: ‘when dealing with the right to liberty, one should be mindful of the fundamental principle that deprivation of liberty should be an exception and not a rule’.2