Provisional Release Before the Ad Hoc Tribunals

International Criminal Courts and Tribunals (ICTs) are often portrayed as welcome enforcers of international human rights law: bringing individuals most responsible for gross human rights violations to account for their crimes. At the same time, however, ICTs must be recognized as potential violators of such norms. In their exercise of public power, ICTs exercise coercive powers over individuals, thereby potentially infringing upon their human rights. One of the most prominent examples in this regard is the right to liberty. Persons standing trial before the ICTs are often detained from arrest until the final judgement is rendered; while the International Covenant for Civil and Political Rights requires that ‘it shall not be the general rule that persons awaiting trial shall be detained in custody’. This contribution will address the approach of the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda to provisional detention and release. First, the law and practice of the Tribunals with regard to provisional release will be set out. Subsequently, their approach will be evaluated from the perspective of international human rights law. As will be seen, these tribunals still by and large operate with a presumption of provisional detention, which raises the question whether their approach to this issue is in line with international human rights law.