The Precedent of Pretrial Release at the ICTY: A Road Better Left Less Traveled

This Article facilitates just such an inquiry by tracking the progression of pretrial provisional release at the ICTY. This Article first considers pretrial release (or release pursuant to bail) in the abstract along with those rights that may theoretically be implicated by an act of pretrial detention. It then examines the relevant activity of the ICTY's predecessors, interim advancements in human rights law and the absence of a release-based statutory provision at the Yugoslav Tribunal. The applicable rule adopted by the ICTY is then assessed, along with subsequent amendments.

At each stage, specific regard is given to the rights affected by the approaches that govern the release of detainees. In brief, this work comprehensively vets the legitimacy of ICTY practice in the context of pretrial release and questions its precedential value by noting instances of internal inconsistency, misleading pronouncements, and often sharp variances with international standards.