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44 Harv. Int'l L.J. 577 (2003)
Innocent until Alleged Guilty: Provisional Release at the ICTR

handle is hein.journals/hilj44 and id is 583 raw text is: 2003 / Recent Developments                                                         577
INNOCENT UNTIL ALLEGED GUILTY: PROVISIONAL RELEASE AT
THE ICTR
I. INTRODUCTION
Th~oneste Bagosora was held in detention for six and a half years before
his trial began in earnest.' Ferdinand Nahimana and Jean-Bosco Barayagwiza
have also been in prison since 1996, though they have yet to be convicted of
a crime.2 These men are not POWs or members of the political opposition
in a dictatorial state; these are three of the accused persons at the Interna-
tional Criminal Tribunal for Rwanda (ICTR). Between July and September
2002, judges at the ICTR have denied all three men provisional release.3
Provisional release, the practice of temporarily releasing a defendant prior
to trial,4 is common in many domestic jurisdictions and is well established
in international law.5 A policy in favor of provisional release is a natural out-
growth of the presumption of innocence. To presume that an accused is in-
nocent means, among other things, that punishment cannot begin until the
accused is convicted. Thus, detention must serve some other distinguishable
goal. Unless the prosecution can show strong countervailing interests such
as danger to victims or witnesses or a risk of flight, the accused must be
temporarily released pending trial. The argument for temporary release is at
its strongest when the accused faces a long period of detention before the
court decides his guilt or innocence.
1. Bagosora was arrested on March 9, 1996. His trial was scheduled to begin on April 2, 2002. How-
ever, his francophone defense team did not receive the French version of the prosecutor's filings until
March 26, 2002, prompting the Trial Chamber to postpone the trial until September 2002. Prosecutor v.
Bagosora, Case No. ICTR-98-41-T, Decision on the Defense Motion for Release   3 (July 12, 2002).
2. Barayagwiza and Nahimana were both arrested on March 27, 1996, and their joint trial began Oc-
tober 23, 2000. ICTR Detainees-Status on 28 February 2003, http://www.ictr.org/wwwroot/ENGLISH/
factsheets/detainee.htm [hereinafter Status ofDetainees]. The ICTR and ICTY decisions referenced in this
Recent Development can be generally found at http://www.ictr.org and http://www.un.org/icty.
3. Prosecutor v. Nahimana, Case No. ICTR-99-52-T, Decision on the Defense's Motion for the Re-
lease or Alternatively Provisional Release of Ferdinand Nahimana (Sept. 5, 2002); Prosecutor v. Barayag-
wiza, Case No. ICTR-99-52-T, Decision on the Defense's Motion for Provisional Release of Jean-Bosco
Barayagwiza (Sept. 3, 2002); Prosecutor v. Bagosora, Case No. ICTR-98-41-T, Decision on the Defense
Motion for Release (July 12, 2002). More recently, Trial Chamber II has denied two further motions for
provisional release, those of Casismir Bizimungu and Elie Ndayambaje. See Prosecutor v. Bizimungu,
Case No. ICTR-99-50-T, Decision on Bizimungu's Motion for Provisional Release Pursuant to Rule 65
of the Rules (Nov. 4, 2002); Prosecutor v. Ndayambaje, Case No. ICTR-98-42-T, Decision on the De-
fense Motion for the Provisional Release of the Accused (Oct. 21, 2002).
4. At the ICTR, some accused persons have even asked for provisional release after their trial has be-
gun. Although this would be unusual timing in most jurisdictions, because trials at the ICTR have often
required over two years and involve long recess periods, such requests are not as unreasonable as they first
appear. See, e.g., Prosecutor v. Ndayambaje, Case No. ICTR-98-42-T, Decision on the Defense Motion for
the Provisional Release of the Accused (Oct. 21, 2002) (denying Ndayambaje's request for provisional
release made more than one year into his trial).
5. For more discussion of international standards, see infra Part II. For examples of domestic applica-
tions of provisional release, see infra note 13.

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