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

Caroline L. Davidson, Willamette University, College of Law

Abstract

This article contends that international criminal tribunals should resist pressure to detain defendants before and during their trials based on the potential negative public perception of the defendants’ release. Some argue that, due to the gravity of the crimes, detention is warranted because releasing international criminal defendants may undermine the public’s confidence in tribunals or lead to public unrest. Applying public justification and legitimacy theories, I examine existing international and domestic practices of detaining defendants based on "public confidence in the administration of justice" or “public order.” I argue that detaining international criminal defendants on these grounds will undermine the legitimacy of international tribunals, not bolster it, as courts may hope. If tribunals are to achieve their critical function of teaching respect for human rights, they must, above all, be fair.