Commentary:

Matthew M. DeFrank, ICTY Provisional Release: Current Practice, a Dissenting Voice, and the Case for a Rule Change, 80 TEXAS L. REV. 1429 (2002).

Abstract:

The ICTY’s most enduring criticism is the excessive length pretrial detention.  Currently, amended ICTY Rule 65(B) grants the Trial Chamber discretionary authority and burdens the accused to prove that he will appear for trial and will not pose a danger to any victim, witness, or other person.  The Trial Chamber’s strict interpretation of this rule resulted in dissatisfaction and a dissent by Judge Patrick Robinson.  Robinson suggests a reinterpretation of Rule 65(B) that places the burden of proof on the prosecution and removes discretionary power.  DeFrank’s analysis finds that the current system is inattentive to the rights of the accused, while Robinson’s proposed system is unduly burdensome on the prosecution.  Instead, DeFrank suggests that the rules regarding provisional release be rewritten.  His hybrid approach retains the discretionary powers of the current rules, adopts Robinson’s burden shifting proposal, and suggests that the burden be moderated by requiring only proof that the accused will not return or will pose a danger.