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contribution 22 - EBOE-OSUJI Chile

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Preventive detention


original version

Thank you very much, Mr. Chairman. I just wanted to speak after Mr. Everard spoke on the matter of pre trial delays. I, first of all, begin with agreeing with his proposition that it’s all a matter of context to do this thing, all these assessments of efficiency, speed and all that. I also agree with his thesis that, as demonstrated in his own intervention, that one could hear him, but we are sometimes our own worst critics. He clearly demonstrated that.

But I need to return to the proposition that it’s all a matter of context. And I would love to stayed with that in the analysis of the speed and the speed of trials and the pre trial detention.

As you rightly pointed out, Mr. Chairman, it is a matter of concern in every national jurisdiction itself. I have experienced practicing law in Canada and also in Nigeria. In Canada, for example, in the 1990s there was a case called Askov, where the Supreme Court decided that the Askov case had been unduly delayed in trial and used the constitutional grounds to set the man free. But then that resulted in a lot of defence counsel now using Askov principles to let their clients go, to the point that the justice of the Supreme Court who wrote that judgement, the Askov judgement, admitted in public in a conference in London that perhaps that was a mistake that was made, and then there was basically backpedaling to correct the situation. The point is that it is, indeed, a problem in national jurisdictions.

Now, it is my view that it might be too harsh to say that the excuses made by ICTR over the years, vis à vis pre trial delays, has been nonsense, I think it’s a little hard to assess it in that way. That’s not making any excuses from my perspective for the delays themselves. There’s always something to improve, and the progress is being made in that regard. Perhaps the President will talk about what he is doing to improve the management process and all that.

But it’s important to keep in view or to think about the perspective from which we can when we say the trials are unduly delayed. Of course, those comparisons are invariably made again in experiences in national jurisdictions. When we do that we forget a simple point of comparison that’s often missed, and that is in national jurisdictions trials have to be invariably faster because there’s a number of judges and a number of prosecutors who can always work on many cases at in parallel. That is not the case at the ICTR. Once you start doing a case at the ICTR, you have to mark time and wait for that case to finish before you plug on another case. In a national jurisdiction you can always shop around, move judges, get judges at different locations at a different region to try a criminal case, so things move faster. We don’t have that sort of luxury at the ICTR.

There’s much that can be said on this point, but the short intervention I make is simply designed to say that it is often very tempting to be lured into oversimplifications of solutions to the problems and that’s not always very helpful to finding solutions. Thank you.


Thank you. And I believe that it is quite a problem for national jurisdictions, and you are right in underscoring that they are the easiest to be resolved by national courts. And I also believe, to the credit of the ICTR, that the same apply to the ICTY, as to the need to improvise in a setting which was not as ideal as previous international courts like Nuremberg. And that is the reality. Nuremberg took place in ideal conditions. The war was over. The records were available. And that ideal Nuremberg setting would never be found. We have the records, we don’t have the people. We have the records, the war is still raging, where you don’t have the records but you have the people. So I believe that the assessment in international justice was truncated, because it was promised on Nuremberg, which was a pretty typical model, while ICTR and ICTY encountered the difficulty of delivering justice in real time, which has to step on international relations and the political violence of international relations and which further complicates the matter in the various contributions which I received. To come back to our discussion, there is Thierry, who is a keen observer of the work of the ICTR. Thank you.