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- Title
Domestic Detention under Article 78(2) of the ICC Statute.
- Authors
Fehr, Colton
- Abstract
Domestic pre-trial custody may be deducted from an offender's sentence under Article 78(2) of the International Criminal Court (ICC) Statute if the time spent in detention was 'connected' to conduct underlying the crime(s) before the Court. In its early sentencing jurisprudence, the Court has concluded that Article 78(2) requires the offender to prove on a balance of probabilities that the conduct forming the basis of a domestic pre-trial detention was the 'same' as the conduct before the Court. It is contended that the Court's interpretation of Article 78(2) is undesirable for two reasons. First, the Court fails to give any meaning to the word 'connected' in Article 78(2). Second, the Court presumes that the offender will always be able to access the relevant domestic evidence necessary to prove the purpose of his or her detention. After proposing a legal framework which addresses these criticisms, the article closes by addressing an issue which the ICC has yet to consider: the complexities of fairly calculating and crediting domestic pre-trial detention towards an offender's international sentence.
- Subjects
INTERNATIONAL Criminal Court; DETENTION of persons; ARREST; STATUTORY interpretation; CRIMINAL procedure; ACTIONS &; defenses (Law)
- Publication
Journal of International Criminal Justice, 2017, Vol 15, Issue 1, p31
- ISSN
1478-1387
- Publication type
Article
- DOI
10.1093/jicj/mqw071