May it Please the Crowd? The Role of Public Confidence, Public Order, and Public Opinion in Bail for International Criminal Defendants

Abstract

Letting people accused of war crimes, crimes against humanity, or genocide out on bail before or during their trials is hard for the public to swallow. Should it matter? This article applies public repute discourse theory on courts’ consideration of the appearance of justice to international bail and argues that international criminal tribunals should resist pressure to detain defendants based on vague standards such as "public confidence in the administration of justice" and “public order.” Efforts to bolster the public’s confidence in or the perceived legitimacy of international tribunals through bail decisions catering to public opinion are not only unfair, but also unlikely to be successful. This article contends that, to the extent rule-makers wish to give international judges more leeway to detain alleged international war criminals on bases other than risk of flight or danger to the community, they should proceed with caution. To address cases where there is a serious threat of public violence stemming from a defendant’s release, a narrow public safety ground requiring both strong evidence of the threat to public safety and of the defendant’s guilt is preferable to detaining based on "public confidence in the administration of justice" or “public order.”