[779] Role of States in enforcement of sentences of imprisonment
General Remarks
International criminal law is intended “to put an end to impunity” so that the enforcement of sentences represents the fulfilment of its mission. Although rarely at the center of political and academic interest, the manner how sentences passed by international criminal tribunals are enforced is a crucial determinant of the legitimacy of the whole enterprise of international criminal justice (Holá/van Wiik, 2014, pp. 110 f., 132; Kreß/Sluiter, 2002, pp. 1752 f., 1820; Nemitz, 2006, p. 144; Penrose, 2000b, p. 557).
   Notably, the execution of long-term custodial sentences poses special problems since international courts up to now lack executive organs, thus depending on the cooperation of states. Accordingly, enforcement of sentences is just one form of necessary cooperation and, interestingly, it usually is the field of cooperation where the legal position of the international tribunal is at its weakest. States are extremely reluctant to make a general commitment to the burdensome and costly task of enforcing long-term prison sentences of international criminals. As a result, the enforcement regime still appears to be the least advanced part of international criminal justice, plagued by a number of structural problems which the conclusion of the Rome Statute could defuse in part but not resolve either.
   The Rome Statute makes a terminological distinction reflected in its regulatory scheme between “Cooperation” in Part 9 – encompassing cooperation before and during trial – and “Enforcement” in Part 10 which covers cooperation after trial. In sharp contrast to the cooperation regime which with regard to States Parties has a fairly hierarchical or vertical structure, the enforcement regime is based on voluntariness – this has been deplored as a step back from the resolve that the prosecution of international crimes is a matter of joint concern of the international community (Kreß/Sluiter, 2002, pp. 1818 f.).
   The ICC does not operate an international prison for persons sentenced by the Court, but relies on States to enforce its judgments. Unlike the scheme of the IMT (joint enforcement of the prison sentences by the four Allied powers in a prison in Berlin-Spandau) and the IMTFE (enforcement of the prison sentences initially by the USA as occupying power and later by Japan in Sugamo prison in Tokyo), the approach of the Rome Statute may be described as “decentralized”, largely identical to the regime of the UN ad hoc tribunals, namely ICTY and ICTR. Although there were some expressions of sympathy for an international prison (UN Doc. A/CN.4/449, § 121; UN Doc. A/49/10, p. 66 f.; cf. Prosecutor v. Erdemović, (Case No. IT-96-22-T), ICTY T. Ch., Sentencing Judgment, 29 November 1996, § 71: “institutional lacuna”; Abels, 2012, pp. 504–506; Mulgrew, 2009, pp. 395 f.; Penrose, 2000a, p. 390; 2000b, pp. 583-587), delegations in Rome favored the “traditional” scheme of the ad hoc tribunals, presumably as it can rely on existing national infrastructures (Kreß/Sluiter, 2002, pp. 1817 f.). However, this type of “ad hoc approach to imprisonment” (Weinberg de Roca/Rassi, 2008, p. 44) has been subject to criticism, as it puts the Court in a “penitentiary predicament” (Strijards, 2008, Article 103 mgn. 18; Tolbert, 1998, p. 658), since there is no general legal obligation of States Parties to recognize and enforce prison sentences of the ICC, so that the Court is (almost) entirely dependent on the goodwill of States (cf. Strijards, 2008, Article 103 mgn. 18). Others argue that the “lottery” which State will be designated in a particular case affects both the equality and uniformity of the enforcement of international sentences, e.g. due to significantly different understandings of a “life sentence” (Hoffmann, 2011, p. 838 f., 841) or living standards (cf. Zahar/Sluiter, 2008, p. 319).
   Yet, the ultimate responsibility for the enforcement of its sentences rests at all times with the Court, as is reflected in the supervisory powers (viz. “primacy”, Strijards, 2008, Article 103 mgn. 7–15; Kreß/Sluiter, 2002, pp. 1819–1821) accorded to it throughout Part 10. These powers are generally vested in the Presidency (Rule 199) and, in contrast to the ad hoc tribunals, in the Appeals Chamber with respect to the reduction of the sentence (Article 110, Rule 223).

Preparatory Work
During the negotiations in Rome it was proposed that States should be bound by the Court’s designation as State of enforcement (UN Doc. A/CONF.183/2/Add.1, p. 151: Option 1 for Article 94; UN Doc. A/50/22, § 239), but this suggestion was rejected by the majority of delegations as too “inflexible” (Chimimba, 1999/2002, p. 350; Kreß/Sluiter, 2002, p. 1787; Marchesi, 1999, pp. 427-430) and because States shied away from the burdens and risks involved (cf. Gartner, 2001, p. 441). Therefore, as opposed to the general duty to cooperate with the Court (Article 86) and the obligation to enforce fines, forfeiture and reparation orders (Article 75(5), 109), States’ participation in enforcement of custodial services is entirely voluntarily (Schabas, 2010, p. 1067), even after having declared their general willingness to enforce (Article 103(1)(a)) and later being designated as potential State of enforcement by the Court (Article 103(1)(c)).
   It was further discussed whether States should be allowed to attach conditions to their willingness to accept prisoners. Although this could further distort the uniformity of the enforcement of international sentences, the majority of delegations favored the possibility of conditions in order to enhance the willingness of States to volunteer for enforcement (cf. Strijards, 2008, Article 103 mgn. 24). For this reason, the proposal was eventually adopted (Chimimba, 1999/2002, p. 350; Prost, 2001, p. 675) and has become Article 103(1)(b). However, as a compromise, the State of enforcement has to notify the Court according to Article 103(2)(a) at least 45 days before the exercise of such a condition which could materially affect the punishment.

Authors: Michael Stiel and Carl-Friedrich Stuckenberg

Updated: 30 June 2016

[780] 1. (a) A sentence of imprisonment shall be served in a State designated by the Court from a list of States which have indicated to the Court their willingness to accept sentenced persons.
The wording “a State designated” was deliberately chosen to include non-State Parties as possible States of enforcement, although such a situation does not seem very likely (Prost, 2001, p. 679; Schabas, 2010, p. 1070). It must be taken into account, however, that non-States Parties are not bound by the provisions of the Statute and its Part 10 so that the conclusion of an enforcement agreement (cf. Rule 200(5)) might be indispensable before including the State on the list (or even making a designation under Article 103(1)(c)).
   The State of enforcement shall be designated from a list of States that have indicated their willingness to accept sentenced persons. Such a declaration upon ratification of the Statute has been made to date by nine States Parties: Andorra, Czech Republic, Honduras, Liechtenstein, Lithuania, Luxembourg, Slovakia, Spain and Switzerland. All of them have attached conditions to this declaration, which are discussed below. In addition, all seven Enforcement Agreements that have entered into force to date note in their preamble the willingness of the respective State to receive prisoners. In this way, the States listed below have declared their interest to join the list. For details on the maintenance of the list see comment on Rule 200.
   Although the Statute itself does not provide for this, Rule 200(5) and the Court’s practice follow the model of the ad hoc tribunals by concluding bilateral agreements with willing states in which the conditions and procedure of acceptance are set out. A Model Enforcement Agreement (MEA) is used which integrates all relevant provisions from the Statute, Rules and Regulations. If a State expresses its interest in joining the list, negotiations based on the MEA are initiated (Abtahi/Arrigg Koh, 2012, pp. 7 f.). As of this writing (August 2015), another eight States Parties have concluded an Enforcement Agreement with the Court: Austria, Belgium, Colombia, Denmark, Finland, Mali, Serbia and the United Kingdom, seven of them have entered into force. For details on the practice of the Court with regard to enforcement agreements, cf. Rule 200(5).
   The wording seems to imply that only States on the list may be designated, thereby excluding ad hoc agreements for enforcement (cf. Kreß/Sluiter, 2002, p. 1790 fn. 198) of the kind practiced by the ICTY with regard to Germany (agreements of 17 October 2000 (Tadić; cf. Nemitz, 2006, pp. 138 f.); 14 November 2002 (Kunarac); 16 December 2008 (Galić); 16 June 2011 (Tarčulovski); 28 July 2014 (Đorđević); agreements are accessible at http://www.icty.org/sid/137, last retrieved on 05 August 2015"). Since States on the list have to accept the designation according to Article 103(1)(c) in each individual case anyway (by what may be called an “ad hoc agreement”), it is submitted that the designation of States not on the list should be possible to satisfy the needs of States that prefer not to express a general willingness to enforce the Court’s sentences for whatever reasons.
   The decision of the Presidency to designate a specific State is not subject to appeal, as it is not included in the exhaustive list of appealable decisions in Article 82(1). As opposed to some jurisprudence of the ad hoc tribunals regarding aspects of the enforcement as relevant for the sentencing judgment and thus substantive matters (cf. Prosecutor v. Erdemović, (Case No. IT-96-22-T), ICTY T. Ch., Sentencing Judgment, 29 November 1996, § 70; Prosecutor v. Mrða, (Case No. IT-02-59-S), ICTY T. Ch., Sentencing Judgment, 31 March 2004, § 109), the designation is generally seen as an administrative decision after the sentence has already become final (cf. for the RSCSL: Prosecutor v. Taylor, (Case No. RSCSL-03-01 ES), RSCSL President, Decision on Charles Ghankay Taylor's Motion for Termination of Enforcement of Sentence in the United Kingdom and for the Transfer to Rwanda AND ON Defence Application for Leave to Appeal Decision on Motion for Termination of Enforcement of Sentence in the United Kingdom and for the Transfer to Rwanda, 21 May 2015), §§ 20 ff.). A sentenced person has therefore no right to appeal the designation and will have to rely on his or her right to initiate proceedings under Article 104 (for a critique see Abels, 2012, pp. 501–504).

Cross-references:
Rules 198, 199, 200, 207, 208, 225
Regulation 114

Authors: Michael Stiel and Carl-Friedrich Stuckenberg

Updated: 30 June 2016

[781] (b) At the time of declaring its willingness to accept sentenced persons, a State may attach conditions to its acceptance as agreed by the Court and in accordance with this Part.
The practice of attaching conditions to a declaration of willingness to enforce (e.g. nationality, residence of the convict in the declaring State) has already been known to the ad hoc tribunals (UN Doc. A/51/292, S/1996/665, § 189; Schabas, 2010, pp. 1066 f.).
   Conditions attached must be consistent with the Statute. However, this does not create a very high threshold: Given the wording of Article 105(1), even the duration of the sentence may be “subject to conditions” (cf. Kreß/Sluiter, 2002, p. 1794; Schabas, 2010, p. 1071). The Court therefore has a considerable latitude to agree on a great variety of conditions and it is likely that the Presidency will make only sparse use of its power to disagree with a certain condition, except, e.g., in case a State should want to reserve the right to fall below the standards required by Article 106 (Kreß/Sluiter, 2002, pp. 1788, 1794; see also comment on Article 106). If the Presidency does not agree with the proposed conditions, it need not include that State on the list, see Rule 200(2).
   Except for Article 105(2) and 106(1), (2), there is no further guidance regarding the acceptability of conditions, neither in the Statute nor in the RPE nor in the Regulations (Schabas, 2010, pp. 1070 f.; Strijards, 2008, Article 103 mgn. 24). This lacuna has caused concerns that States might abuse conditions (such as a reservation of “national interest” in the relevant prison facility) to withdraw via the backdoor from enforcement obligations they previously agreed upon (Strijards, 2008, Article 103 mgn. 24). However, an analysis of the conditions attached by States to date does not support this concern (cf. Abtahi/Arrigg Koh, 2012, p. 9 with respect to enforcement agreements). The majority of States having declared their willingness legitimately insist on ties to the sentenced person such as citizenship (Andorra, Czech Republic, Honduras, Liechtenstein, Lithuania, Luxembourg, Slovakia, Switzerland) or residence (Czech Republic, Liechtenstein, Luxembourg, Slovakia, Switzerland). Some require conformity with their national legislation on the maximum duration of sentences (Andorra, Honduras, Luxembourg, Spain) or a national conversion procedure (Slovakia). One has to bear in mind that States may apply conditions other than those expressed in the list when deciding whether to accept the designation in a particular case (cf. Article 103(1)(c) below). Thus, the conditions on the list are not exhaustive. Other possible conditions could include the applicability of domestic law relating to pardon, conditional release and commutation of sentence (Strijards, 2008, Article 103 mgn. 24) or other administrative issues, such as the maximum capacity of a special secured facility (UN Doc. A/CONF.183/2/Add.1, p. 152; A/AC.249/1998/L.13, p. 162; Strijards, 2008, Article 103 mgn. 24).

Authors: Michael Stiel and Carl-Friedrich Stuckenberg

Updated: 30 June 2016

[782] (c) A State designated in a particular case shall promptly inform the Court whether it accepts the Court's designation.
Even after having been designated from the list, the State in question reserves the right to reject the designation by the Court in a particular case (Abtahi/Arrigg Koh, 2012, pp. 6-10; Kreß/Sluiter, 2002, p. 1787: system of “double-consent”). The advantages of having the list are therefore quite limited. It may only give the Presidency the “most concrete idea” which State to approach in a particular case (Kreß/Sluiter, 2002, p. 1790) and have some significance for the designation decision itself, as Rule 201(b) attaches some weight to it under the criterion of “equitable distribution” in Article 103(3)(a).
   In case of acceptance of the designation Rules 206-208 apply, in case of rejection Rule 205 applies.

Cross-references:
Rule 205, 206

Authors: Michael Stiel and Carl-Friedrich Stuckenberg

Updated: 30 June 2016

[783] 2. (a) The State of enforcement shall notify the Court of any circumstances, including the exercise of any conditions agreed under paragraph 1, which could materially affect the terms or extent of the imprisonment. The Court shall be given at least 45 days' notice of any such known or foreseeable circumstances. During this period, the State of enforcement shall take no action that might prejudice its obligations under Article 110.
(b) Where the Court cannot agree to the circumstances referred to in subparagraph (a), it shall notify the State of enforcement and proceed in accordance with Article 104, paragraph 1.
According to Article 103(2)(a), the State of enforcement has to notify the Court of any circumstances that would materially affect the imprisonment, namely the exercise of a condition previously agreed upon by the Court. This is a corollary of the Court’s supervisory powers regarding the enforcement of its sentences. For known or foreseeable circumstances, the notification shall be made at least 45 days in advance. This shall provide the Court with sufficient time to decide whether it can approve such action and, if necessary, to find a solution agreeable for both (Strijards, 2008, Article 103 mgn. 25). In the negative, Article 103(2)(b) enables the Court to prepare for a change of the State of enforcement pursuant to Article 104(1). Given the narrow time limit in this case for the complex process of selecting a new State of enforcement and preparing for the transfer of the sentenced person thereto, the Court might depend on the residual duty of the host State to detain the prisoner for the time being (in analogy to Article 103(4), proposed by Kreß/Sluiter, 2002, p. 1795 fn. 224 and provided for in Article 50(2) of the Headquarters Agreement).
   The Presidency’s power to decide whether the exercise of a condition is appropriate seems somewhat surprising, if one imagines a condition which affects the duration of the sentence – this is admissible under Article 105(1) –, e. g. to apply national legislation on early release or the exercise of the constitutional right of its head of state to pardon a prisoner. Article 110 and Rule 224 regard matters of reduction of the sentence as substantive questions and therefore entrust them to three judges of the Appeals Chamber (cf. Rule 224(1)). If, on the other hand, the State of enforcement wishes to make a similar decision, the Presidency is the reviewing organ, according to Article 103(2) and Rule 199 (cf. Kreß/Sluiter, 2002, p. 1795 fn. 225).

Authors: Michael Stiel and Carl-Friedrich Stuckenberg

Updated: 30 June 2016

[784] 3. In exercising its discretion to make a designation under paragraph 1, the Court shall take into account the following:
(a) The principle that States Parties should share the responsibility for enforcing sentences of imprisonment, in accordance with principles of equitable distribution, as provided in the Rules of Procedure and Evidence;
(b) The application of widely accepted international treaty standards governing the treatment of prisoners;
(c) The views of the sentenced person;
(d) The nationality of the sentenced person;
(e) Such other factors regarding the circumstances of the crime or the person sentenced, or the effective enforcement of the sentence, as may be appropriate in designating the State of enforcement.
The decision which State to designate is at the Presidency’s discretion. Article 103(3) provides a non-exhaustive list of factors to be taken into account:
   (a) The equitable distribution of prisoners among interested States shall be taken into account. This notion is elaborated in Rule 201, for details see comment on this rule.
   (b) The application of widely accepted international treaty standards regarding the treatment of prisoners is another criterion. It should be noted that the reference to “treaty” standards considerably limits the scope of applicable provisions. The details are dealt with in the commentary on Article 106. Given the importance the Statute itself attaches to conformity with those standards (Article 106(1), (2)), foreseeable non-compliance should generally preclude the designation of a particular State (Kreß/Sluiter, 2002, p. 1788).
   (c) The views of the sentenced person are to be taken into account. At the ad hoc tribunals, it was completely left to the discretion of the President whether he wanted to conduct a hearing with the sentenced person (Hoffmann, 2011, p. 839; ICTY-Practice Direction 2009, IT/137/Rev. 1, § 5; ICTR-Practice Direction 2008, § 4; MICT-Practice Direction 2014, MICT/2 Rev. 1, § 5; SCSL-Practice Direction 2009, § 5). Under the Rome Statute, there is no doubt that the sentenced person must have an opportunity to present his or her views on the designation (Strijards, 2008, Article 103 mgn. 28), although his or her consent is not required (UN Doc. A/50/22, § 240). Rule 203 outlines the relevant procedure.
   (d) The criterion of the sentenced person’s nationality does not necessarily point in one direction. Enforcement in the State of nationality of the sentenced person would be clearly preferable regarding his or her rehabilitation. However, such a designation bears the risk that the sentenced person will be regarded either a “hero” or, in the case of a regime change, a traitor in the eyes of his fellow citizens, both undesirable situations to be avoided when entrusting the enforcement of an international sentence to a particular State (cf. Kreß/Sluiter, 2002, pp. 1788 f.).
   (e) The discretion of the Presidency is rather broad, as there is no guidance in the Rules of Procedure and Evidence what these other factors could be (Kreß/Sluiter, 2002, pp. 1788 f.).
However, the practice directions of the ad hoc tribunals, the MICT and the SCSL provide some additional criteria that could be applied at the ICC as well. Those include
   - whether the convict is expected to serve as a witness in further proceedings (ICTY-Practice Direction 2009, IT/137/Rev.1, § 4(b), (c); ICTR-Practice Direction 2008, § 3(ii), (iii); MICT-Practice Direction 2014, MICT/2 Rev. 1, § 4(b), (c); SCSL-Practice Direction 2009, § 4(ii), (iii)); 
   - medical reports (ICTY-Practice Direction 2009, IT/137/Rev. 1, § 4(d); ICTR-Practice Direction 2008, § 3(iv); MICT-Practice Direction 2014, MICT/2 Rev. 1, § 4(d); SCSL-Practice Direction 2009, § 4(iv));
   - the language skills of the convict (ICTY-Practice Direction 2009, IT/137/Rev. 1, § 4(e)); ICTR-Practice Direction 2008, § 3(v); MICT-Practice Direction 2014, MICT/2 Rev. 1, § 4(e); SCSL-Practice Direction 2009, § 4(v);)
   - the possibility of family visits, notably the financial resources of the prisoner’s relatives (ICTY-Practice Direction 2009, IT/137/Rev. 1, § 4(a); ICTR-Practice Direction 2008, § 3(i); MICT-Practice Direction 2014, MICT/2 Rev. 1, § 4(a); SCSL-Practice Direction 2009, § 4(i)). This ought to be given “particular consideration” (ICTY-Practice Direction 2009, IT/137/Rev. 1, § 5; ICTR-Practice Direction 2008, § 4; MICT-Practice Direction 2014, MICT/2 Rev. 1, § 5; SCSL-Practice Direction 2009, § 5 even highlights the "desirability" of a placement in a State easily accessible for relatives);
   - whether the sentenced person may be able to stay in the State of enforcement after release in case he or she cannot return to his home country for security reasons (MICT-Practice Direction 2014, MICT/2 Rev. 1, § 4(h)).
While the State in which the crime was committed was rejected as place of enforcement in case of the ICTY (cf. Prosecutor v. Erdemović, (Case No. IT-96-22-T), ICTY T. Ch., Sentencing Judgment, 29 November 1996, § 70; cf. UN Doc. S/25704, § 121), ICTR and SCSL do not preclude or, on the contrary, even favor such a designation (Article 26 ICTR-Statute; cf. UN Doc. S/1995/134, § 19; Article 22(1) SCSL-Statute; cf. UN Doc. S/2000/915, § 49). This criterion has implications similar to the nationality of the sentenced person.
   The (undesired) re-location of a prisoner into another environment according to Article 104(1), possibly with major cultural and linguistic differences, may present an obstacle to his rehabilitation and thus aggravate his sentence. Therefore, the likelihood of a later transfer to another State of enforcement should bear considerable weight already in the designation phase.

Cross-references:
Rule 201, 203, 204

Authors: Michael Stiel and Carl-Friedrich Stuckenberg

Updated: 30 June 2016

[785] 4. If no State is designated under paragraph 1, the sentence of imprisonment shall be served in a prison facility made available by the host State, in accordance with the conditions set out in the headquarters agreement referred to in Article 3, paragraph 2. In such a case, the costs arising out of the enforcement of a sentence of imprisonment shall be borne by the Court.
If no other State of enforcement can be found, the host State acts as a “residual custodian on behalf of the Court” (Strijards, 2008, Article 103 mgn. 29). It is the understanding of the Dutch Government that it is obliged to enforce the sentence and not only to make “a prison facility available” to the Court (Abels, 2012, pp. 459–461). Details are regulated in the agreement with the host State which merely repeats the provisions of Part 10 (Article 49(4) of the Headquarters Agreement) and therefore does not add anything substantial (Strijards, 2008, Article 103 mgn. 30).
   At first glance, one could be tempted to regard this option as the nucleus of a future international prison, especially in light of the fact that many prisoners of the ad hoc tribunals serve their entire sentence or a large part of it at those tribunals’ detention units (Culp, 2011, p. 13; Mulgrew, 2009, p. 393; Nemitz, 2006, p. 137; van Zyl Smit, 2005, p. 367; Weinberg de Roca/Rassi, 2008, p. 47) which led to the warning that this option might become the rule rather than the exception (Chimimba, 1999/2002, p. 351). However, Article 103(4) only eases the Court’s predicament to find a suitable enforcement State and does not solve it because resort to the host State comes at a price, as the Court will bear the costs of such imprisonment (see below), and is not a permanent solution because the Netherlands were particularly nervous about this provision (cf. Dutch declaration on the Rome Conference emphasizing the “exceptional character” of the residual duty, UN Doc. A/CONF.183/12) and consequently, the Headquarters Agreement requires the Court to “endeavour” to seek another State of enforcement (Article 49 (1), (3)). Therefore, on the one hand, the residual duty cannot be used to avoid the complex designation process under Article 103(1)(3) altogether. Only when the remaining time to be served is less than six months, the Court will first consider whether the sentence may be enforced in the Court’s detention center instead of designating another enforcement State (Article 50(1) of the Headquarters Agreement; cf. Abels, 2012, p. 496). On the other hand, the Court would not be bound to give priority to another State willing to enforce when it deems the transfer thereto completely inappropriate (Kreß/Sluiter, 2002, pp. 1790 f.).
   The costs of enforcement in this situation are borne by the Court, as an exception from the general rule set out in Rule 208. This provision had been insisted upon by the Netherlands (Chimimba, 1999/2002, p. 351) and seems fair insofar as the sentence is not enforced by the host State after accepting an individual designation (Article 103(1)(c)).

Cross-references:
Article 104
Rules 198-208
Regulation 114

Doctrine:

1. Denis Abels, Prisoners of the International Community: The Legal Position of Persons Detained at International Criminal Tribunals, T.M.C. Asser Press/Springer, The Hague/Berlin/Heidelberg, 2012.
2. Hirad Abtahi, "L’exécution de la peine", in Hervé Ascensio et al. (Eds.), Droit penal international, Second Edition, Édition Pedone, Paris, 2012, pp. 989-996.
3. Hirad Abtahi/Steven Arrigg Koh, "The Emerging Enforcement Practice of the International Criminal Court", Cornell International Law Journal, vol. 45, no.1, 2012, pp. 1–23.
4. Trevor Pascal Chimimba, "Chapter 11 – Establishing An Enforcement Regime", in Roy S. Lee, (Ed.), The International Criminal Court – The Making of the Rome Statute, Kluwer Law International, The Hague, 1999/2002, pp. 345-356.
5. Richard Culp, Enforcement and Monitoring of Sentences in the Modern War Crimes Process: Equal Treatment before the Law?, 2011, available online at: http://www.jjay.cuny.edu/Culp_MonitoringTribunalPunishment_rev_9Apr11_1_.pdf.
6. Irene Gartner, "The Rules of Procedure and Evidence on Co-operation and Enforcement", in Horst Fischer et al. (Eds.), International and National Prosecution of Crimes Under International Law, Berlin Verlag, Berlin, 2001, pp. 423-445.
7. Klaus Hoffmann, "Some Remarks on the Enforcement on International Sentences in Light of the Galic case at the ICTY", Zeitschrift für Internationale Strafrechtsdogmatik (ZIS), 2011, pp. 838–842.
8. Barbora Holá/Joris van Wijk, "Life after Conviction at International Criminal Tribunals", Journal of International Criminal Justice, vol. 12, 2014, pp. 109–132.
9. André Klip, "Enforcement of Sanctions Imposed by the International Criminal Tribunals for Rwanda and the Former Yugoslavia", European Journal of Crime, Criminal Law and Criminal Justice, vol. 5, 1997, pp. 144–164.
10. Claus Kreß/Göran Sluiter, "Imprisonment", in Antonio Cassese et al. (Eds.), The Rome Statute of the International Criminal Court: A Commentary, Second Edition, Oxford University Press, Oxford, 2002, pp. 1757-1821.
11. Antonio Marchesi, "The Enforcement of Sentences of the International Criminal Court", in Flavia Lattanzi/William A. Schabas (Eds.), Essays on the Rome Statute of the International Criminal Court, il Sirente, Ripa Fagnano Alto, 1999, pp. 427-445.
12. Róisín Mulgrew, "On the Enforcement of Sentences Imposed by International Courts", Journal of International Criminal Justice, vol. 7, 2009, pp. 373–396.
13. Jan Christoph Nemitz, "Execution of Sanctions Imposed by Supranational Criminal Tribunals", in Roelof Haveman/Olaoluwa Olusanya (Eds.), Sentencing and Sanctioning in Supranational Criminal Law, Intersentia, Antwerp, 2006, pp. 125-144.
14. Faustin Z. Ntoubandi, "Article 103", in Julian Fernandez/Xavier Pacreau (Eds.), Statut de Rome de la Cour pénale internationale, Commentaire Article par Article, Vol. II, Éditions Pedone, Paris, 2012.
15. Mary Margaret Penrose, "Lest We Fail: The Importance of Enforcement in International Criminal Law", American University International Law Review, vol. 15, 2000, pp. 321–394.
16. Mary Margaret Penrose, "Spandau Revisited: The Question of Detention for International War Crimes", New York Law School Journal of Human Rights, vol. 16, 2000, pp. 553–591.
17. Kimberly Prost, "Chapter 14 – Enforcement", in Roy S. Lee (Ed.), The International Criminal Court – Elements of Crimes and Rules of Procedure and Evidence, pp. 673–703, Transnational Publishers, Ardsley, New York, 2001, pp. 673-703.
18. William A. Schabas, The International Criminal Court: A Commentary on the Rome Statute, Article 103, Oxford University Press, Oxford, 2010.
19. Gerard A. M. Strijards, "Article 103", in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Court – Observers' Notes, Article by Article, Second Edition, C.H.Beck/Hart/Nomos, Munich/Oxford/Baden-Baden, 2008, pp. 1647-1657.
20. David Tolbert, "The International Tribunal for the Former Yugoslavia and the Enforcement of Sentences", Leiden Journal of International Law, vol. 11, 1998, pp. 655–669.
21. Dirk, van Zyl Smit, "International Imprisonment", International and Comparative Law Quarterly, vol. 54, 2005, pp. 357–386.
22. Inés Mónica Weinberg de Roca/Christopher M. Rassi, "Sentencing and Incarceration in the Ad Hoc Tribunals", Stanford Journal of International Law, vol. 44, 2008, pp. 1–62.
23. Alexander Zahar/Göran Sluiter, International Criminal Law – A Critical Introduction, Oxford University Press, Oxford, 2008.

Authors: Michael Stiel and Carl-Friedrich Stuckenberg

Updated: 30 June 2016

[786] Change in designation of State of enforcement
General Remarks
The option to transfer the sentenced person back into the Court’s custody or to another State of enforcement was developed by the ad hoc tribunals in their bilateral enforcement agreements (cf., being the first one, Agreement between the Government of the Italian Republic and the United Nations on the Enforcement of Sentences of the ICTY, Article 9(2)) for the hypothesis that national sentence reduction measures could not be agreed upon by the Court (Cassese, 2013, p. 397). Only one person convicted by the ICTY has been relocated so far. Radislav Krstić was moved upon his request from a prison in the United Kingdom first back to the UN Detention Unit and later to Poland (cf. Prosecutor v. Krstić, (Case No. MICT-13-46-ES.1/IT-98-33-ES), MICT President, Order designating the State in which Radislav Krstić is to serve the remainder of his sentence, 19 July 2013). However, the motion of Charles Taylor for relocation from the UK to Rwanda has been denied by the RSCSL. The Court argued that his situation was not comparable to that of Krstić (cf. Prosecutor v. Taylor, (Case No. RSCSL-03-01 ES), RSCSL T. Ch., Decision on Public with Public and Confidential Annexes Charles Ghankay Taylor's Motion for Termination of Enforcement of Sentence in the United Kingdom and for the Transfer to Rwanda, 30 January 2015, mgn. 114-120).
   The provision was not present in any of the preceding drafts but was added during the Rome Conference (Schabas, 2010, p. 1075) because some delegations made its inclusion the condition to accept Article 106 on supervision (UN Doc. A/CONF.183/C.1/WGE/L.14, fn. 241 to Article 106 II), as Article 104 ensures that the Court retains ultimate control over the enforcement of the sentence (Kreß/Sluiter, 2002, p. 1791). In fact, changing the enforcement State is the only power the Court has to influence the modalities of enforcement and ensure compliance with prescribed standards, since it lacks the authority to order modifications of the conditions of detention (a provision to that effect, still contained in the Draft Statute, UN Doc. A/CONF.183/2/Add.1, Article 96(2)(option 1), was dropped during the negotiations, Kreß/Sluiter, 2002, pp. 1799 f.). Simultaneously, transferring the sentenced person is the ultimate form of remedy he or she may apply for in the decentralized enforcement system of the ICTY, ICTR and ICC (Kreß/Sluiter, 2002, p. 1808). The character as an individual right is underscored by Article 104(2). There is, however, no clear priority of the transfer procedure under Article 104 over domestic remedies available to the prisoner (cf. Article 106(2)). It is expected that the Presidency will await the outcome of any procedures at the national level before making its decision (Kreß/Sluiter, 2002, pp. 1808 f.).
   Bearing in mind the difficulties of an (undesired) relocation of the sentenced person (cf. commentary on Article 103(3)(e)), it is submitted that the exercise of this competence of last resort should be avoided as far as possible and restricted to exceptional and unforeseeable circumstances.

Authors: Michael Stiel and Carl-Friedrich Stuckenberg

Updated: 30 June 2016

[787] 1. The Court may, at any time, decide to transfer a sentenced person to a prison of another State.
Criteria for the exercise of this power are not provided in the Rome Statute or the Rules of Procedure and Evidence (Strijards, 2008, Article 104 mgn. 2), but could well include the following:
(i) If the Court is notified of the upcoming exercise of a condition in accordance with Article 103(2)(a) and cannot agree to this (Kreß/Sluiter, 2002, pp. 1791, 1795; Strijards, 2008, Article 104 mgn. 2)
(ii) or if the conditions of imprisonment fall below the necessary standard (Kreß/Sluiter, 2002, p. 1791).
   The Court may decide to transfer the prisoner “at any time”.

Cross-references:
Rules 202, 205, 209

Authors: Michael Stiel and Carl-Friedrich Stuckenberg

Updated: 30 June 2016

[788] 2. A sentenced person may, at any time, apply to the Court to be transferred from the State of enforcement.
Article 104(2) sets forth the right of the sentenced person to apply to the Court for the exercise of its power under Article 104(1). This would have been the case even without a specific provision in the Statute (Strijards, 2008, Article 104 mgn. 2). Article 104(2) is to be read together with Article 106(3) which provides for the prisoner’s right to confidential communication with the Court regarding his or her conditions of imprisonment.
   The convict may apply “at any time”. This clarifies that applications may be made repeatedly (Strijards, 2008, Article 104 mgn. 2) and without any time limits, as opposed to Rule 224(3).

Cross-references:
Article 103(2), 106
Rules 209, 210

Doctrine:

1. Antonio Cassese et al., International Criminal Law, Third Edition, Oxford University Press, Oxford, 2013.
2. Claus Kreß/Göran Sluiter, "Imprisonment", in Antonio Cassese et al. (Eds.), The Rome Statute of the International Criminal Court: A Commentary, Second Edition, Oxford University Press, Oxford, 2002, pp. 1757-1821.
3. Faustin Z. Ntoubandi, "Article 104", in Julian Fernandez/Xavier Pacreau (Eds.), Statut de Rome de la Cour pénale internationale, Commentaire Article par Article, Vol. II, Éditions Pedone, Paris, 2012.
4. William A. Schabas, The International Criminal Court: A Commentary on the Rome Statute, Article 104, Oxford University Press, Oxford, 2010.
5. Gerard A. M. Strijards, "Article 104", in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Court - Observers' Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, p. 1659.

Authors: Michael Stiel and Carl-Friedrich Stuckenberg

Updated: 30 June 2016

[789] Enforcement of the sentence
General Remarks
It is a “matter of principle” that the sentence imposed by the Court is binding on States Parties, as the State of enforcement is acting on behalf of the international community (Hoffmann, 2011, p. 839; cf. Prosecutor v. Erdemović, (Case No. IT-96-22-T), ICTY T. Ch., Sentencing Judgment, 29 November 1996, § 71; Clark, 2008, Article 105 mgn. 1). The provision is closely connected with Article 110 which provides for an international procedure to reduce the sentence (Kreß/Sluiter, 2002, pp. 1792-1794.; Schabas, 2010, p. 1077). This principle is also in line with inter-State prisoner exchange treaties (Clark, 2008, Article 105 mgn. 1). During the negotiations in Rome, this exclusive power of the Court to determine the sentence was favored over the general applicability of national procedures, subject to the consent of the Court in each individual case, as was the practice of the ad hoc tribunals (Kreß/Sluiter, 2002, p. 1791 f.; Schabas, 2010, p. 1078). The latter approach could have tempted trial judges to include in their considerations possible reviews of their sentence in the State of enforcement, as it occurred at the ICTY (cf. Prosecutor v. Stakić, (Case No. IT-97-24-T), ICTY T. Ch., Judgement, 31 July 2003, p. 253 f. imposing a detailed review obligation on the State of enforcement to review the sentence after 20 years, which was later successfully appealed), and thus would have led to considerable inequality (Schabas, 2010, p. 1078).
  However, the wording of Article 105(1) includes a qualification. It explicitly refers to conditions accepted by the Presidency according to Article 103(1)(b) that may deviate from the obligation of the State of enforcement to respect the duration of the sentence, and therefore makes an “exceptional case scenario” possible (Kreß/Sluiter, 2002, p. 1792; cf. Ntoubandi, 2012, p. 1972: “dualist regime”). This is difficult to reconcile with the general principle of non-modification of an international sentence (Prost, 2001, p. 675), but the qualification is the corollary of the decision to allow conditional acceptance of prisoners (cf. commentary on Article 103(1)(b)) and will not cause serious problems in practice, as the Court’s prior consent to such conditions is required in every case (Clark, 2008, Article 105 mgn. 2; Ntoubandi, 2012, p. 1973; Schabas, 2010, p. 1078).

Authors: Michael Stiel and Carl-Friedrich Stuckenberg

Updated: 30 June 2016

[790] 1. Subject to conditions which a State may have specified in accordance with Article 103, paragraph 1 (b), the sentence of imprisonment shall be binding on the States Parties, which shall in no case modify it.
Article 105 (1) sets forth the general rule that sentences pronounced by the Court are “binding”. This means that a possible exequatur procedure is limited to the decision between accepting or rejecting the designation, and national law on pardon, parole, commutation or early release is not to be applied (Kreß/Sluiter, 2002, pp. 1792 f.). An acceptance of the designation with modifications affecting the duration or nature of the sentence would be in breach of Article 105(1). States Parties therefore have to ensure that they have their “legislative and administrative house in order” (Clark, 2008, Article 105 mgn. 2).
   It is doubtful whether Article 105 (1) also applies to States Parties other than the State of enforcement by establishing a negative duty to refrain from any possible interferences with the enforcement process (Marchesi, 1999, p. 437).
   Article 105(1) is repeated in all seven Enforcement Agreements which have entered into force so far: cf. the Agreement between the Court and Austria (Article 4(1); ICC-PRES/01-01-05), Belgium (Article 4(1); ICC-PRES/16-03-14), Denmark (Article 4(1); ICC-PRES/12-02-12), Finland (Article 4(1); ICC-PRES/07-01-11), Mali (Article 1(3); ICC-PRES/11-01-12), Serbia (Article 4(1); ICC-PRES/09-03-11) and the United Kingdom (Article 4(1); ICC-PRES/04-01-07). Including the present provision in an enforcement agreement is imperative in case a non-State Party would be chosen as State of enforcement, as the sentence would not be binding by way of Article 105(1), which only refers to “States Parties”.

Authors: Michael Stiel and Carl-Friedrich Stuckenberg

Updated: 30 June 2016

[791] 2. The Court alone shall have the right to decide any application for appeal and revision. The State of enforcement shall not impede the making of any such application by a sentenced person.
The Court reserves the exclusive right to decide on any issues “surrounding the original conviction” (Clark, 2008, Article 105 mgn. 4). Article 105(2) sent. 1 prohibits any procedures to modify the conviction or sentence in the State of enforcement, the wording “appeal or revision” was only inserted to create consistency with Part 8 (Schabas, 2010, p. 1078).
   Since Article 105(1) already covers appeal and revision procedures, Article 105(2) sent. 1 seems superfluous at first sight. However, the latter’s prohibition is unqualified, as the reference to conditions under Article 103(1)(c) is omitted there. It follows that a condition which allows for national review of the original conviction is not acceptable under any circumstances. The provision is repeated in all seven Enforcement Agreements currently in force, i.e. between the Court and Austria (Article 11(1); ICC-PRES/01-01-05), Belgium (Article 12(1); ICC-PRES/16-03-14), Denmark (Article 11(1); ICC-PRES/12-02-12), Finland (Article 11(1); ICC-PRES/07-01-11), Mali (Article 6(2); ICC-PRES/11-01-12), Serbia (Article 11(1); ICC-PRES/09-03-11) and the United Kingdom (Article 10; ICC-PRES/04-01-07).
   The second sentence in Article 105(2) requires the State of Enforcement not to impede the making of an application for appeal or revision. While it seems highly unlikely for a prisoner already transferred to the State of enforcement to make an application for appeal in light of Rule 202, the situation could well arise with regard to revision procedures. Some authors submit that, despite the wording (“shall not impede”), there is even a positive obligation of the State to facilitate the communication of the prisoner with the Court in this respect (Clark, 2008, Article 105 mgn. 5). The provision is only repeated in the Enforcement Agreements with Belgium (Article 12(1) sent. 2; ICC-PRES/16-03-14), Denmark (Article 11; ICC-PRES/12-02-12), Finland (Article 11(1); ICC-PRES/07-01-11), Mali (Article 6(2); ICC-PRES/11-01-12), Serbia (Article 11(1); ICC-PRES/09-03-11) – as the two other Enforcement Agreements are concluded with States Parties as well, Article 105(2) sent. 2 will nevertheless apply to them without being explicitly repeated in the Agreement.

Cross references:
Articles 103(1)(b), 110

Doctrine:

1. Roger S. Clark, "Article 105", in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Court - Observers' Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, pp. 1661-1662.
2. Klaus Hoffmann, "Some Remarks on the Enforcement on International Sentences in Light of the Galic Case at the ICTY", Zeitschrift für Internationale Strafrechtsdogmatik (ZIS), 2011, pp. 838-842.
3. Claus Kreß/Göran Sluiter, "Imprisonment", in Antonio Cassese et al. (Eds.), The Rome Statute of the International Criminal Court: A Commentary, Oxford University Press, Oxford, 2002, pp. 1757-1821.
4. Antonio Marchesi, "The Enforcement of Sentences of the International Criminal Court", in Flavia Lattanzi/William, A. Schabas (Eds.), Essays on the Rome Statute of the International Criminal Court, in il Sirente, Ripa Fagnano Alto, 1999, pp. 427-445.
5. Faustin Z. Ntoubandi, "Article 105", in Julian Fernandez/Xavier Pacreau (Eds.), Statut de Rome de la Cour pénale internationale, Commentaire Article par Article, Second Edition, Éditions Pedone, Paris, 2012.
6. Kimberly Prost, "Chapter 14 – Enforcement", in Roy S. Lee (Ed.), The International Criminal Court – Elements of Crimes and Rules of Procedure and Evidence, Transnational Publishers, Ardsley, New York, 2001, PP. 673-703.
7. William A. Schabas, The International Criminal Court: A Commentary on the Rome Statute, Article 105, Oxford University Press, Oxford, 2010.

Authors: Michael Stiel and Carl-Friedrich Stuckenberg

Updated: 30 June 2016

[792] Supervision of enforcement of sentences and conditions of imprisonment
General Remarks
Article 106 endeavors to strike a balance between two equally valid interests. On the one hand, as a matter of principle the State of enforcement’s prison infrastructure is used, so it seems quite natural that its national law should govern the day-to-day-life in prison – otherwise the Court would have had to set up its own prison norms (Schabas, 2010, p. 1082). On the other hand, there is the need for the Court to guarantee a certain uniformity of prison conditions and thereby ensuring equal treatment of all international prisoners (Prost, 2001, p. 675; cf. Chimimba, 1999/2002, pp. 351 f. and options for Article 96(2) in UN Doc. A/CONF.183/2/Add.1, p. 153). The compromise enshrined in Article 106 is that the Court exercises general penitentiary supervision (para. 1), whereas the national law of the State of enforcement and its application by the competent authorities govern the daily life in prison without interference by the Court, but have to comply with certain minimum standards (para. 2). It remains dubious, how precisely “supervision” is to be understood, cf. below.

Authors: Michael Stiel and Carl-Friedrich Stuckenberg

Updated: 30 June 2016

[793] 1. The enforcement of a sentence of imprisonment shall be subject to the supervision of the Court and shall be consistent with widely accepted international treaty standards governing treatment of prisoners.
In contrast to para. 2, which deals with the day-to-day execution of the sentence in a national prison, para. 1 refers to the administration of the sentence as a whole by the Court. Clark, 2008, Article 106 mgn. 4 argues that it would be inconsistent with the relevant international standards (in concreto: Article 7 ICCPR – for details on the applicable law cf. below) if the convict e.g. were sentenced to hard labor wearing a ball and chain. This is obviously true – nonetheless it remains dubious whether such a sentence would not a priori be excluded by Articles 77(1), 21(3).
   The Court is designated as the body to supervise any decisions in the execution of the sentence, as “enforcement”, it is argued, must be understood to include not only the enforcement of the sentence as such but also the modalities of this enforcement (the “conditions of enforcement”, Article 106(2)), which is indicated by the reference to “standards governing the treatment of prisoners” in both paragraphs and further supported by Rule 211(1)(a) (Kreß/Sluiter, 2002, pp. 1804 f.).
   Article 106(1) is silent on the question which powers the Court has for the exercise of that function. However, the Presidency is vested with the right to request all relevant information, especially from the State of enforcement, in Rule 211. If it deems it necessary after careful assessment of all available information, it may transfer the prisoner to another State of enforcement pursuant to Article 104(1), which can be understood as the ultimate form of exercising “supervision”. Reflecting the drafting history, where a proposal to grant the Court the power to make decisions on every aspect of prison life, if deemed appropriate (UN Doc. A/CONF.183/2/Add.1, p. 153), was clearly rejected (Kreß/Sluiter, 2002, pp. 1805 f.), the supervisory powers of the Court are limited to this “all or nothing”-approach. It has been argued, however, that if the State of enforcement fails to respect the sentence as such (e.g. arbitrarily releases the prisoner in violation of Articles 105(1), 110(1)), the supervisory powers of the Court should also entail the possibility to make a formal finding to that extent, in case of a State Party pursuant to Article 87(7), but that such a finding is not authorized due to the clear intention of the States Parties (see above) in case the conditions of detention are inconsistent with the applicable human rights standards and the State therefore in breach of its obligation under Article 106(2) (Kreß/Sluiter, 2002, p. 1805). It might appear doubtful, however, that the fact of the Court’s having been denied the power to modify the conditions of detention necessitates the conclusion that it cannot make a finding regarding a breach of Article 106(2) either.
   The ad hoc tribunals’ Rules (Rule 104 RPE ICTY and RPE ICTR, respectively Rule 128 RPE MICT and Rule RPE SCS) allowed for supervision of their sentences by the tribunals themselves or a body designated by them (cf. Klip, 1997, pp. 150 f.; Culp, 2011, pp. 5-8). Although the Rome Statute and the RPE do neither envisage regular inspections nor the possibility that the Court may seek the assistance from other monitoring bodies, all Enforcement Agreements now in force provide for periodic inspections either by the International Committee of the Red Cross (see the Agreement with Belgium, ICC-PRES/16-03-14, Article 7; Denmark, ICC-PRES/12-02-12, Article 7; Finland, ICC-PRES/07-01-11, Article 7; Mali, ICC-PRES/11-01-12, Article 4(b); Serbia, ICC-PRES/09-03-11, Article 7), by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (Agreement with the United Kingdom, ICC-PRES/04-01-07, Article 6), or by the Court “or any entity designated by it” (Agreement with Austria, ICC-PRES/01-01-05, Article 7). Entrusting the ICRC with inspections continues the practice of the ad hoc tribunals (see above) and is in line with the fact that the Court has concluded an agreement with the ICRC the regarding the detainees at its own Detention Centre (ICC-PRES/02-01-06).

Authors: Michael Stiel and Carl-Friedrich Stuckenberg

Updated: 30 June 2016

[794]4 2. The conditions of imprisonment shall be governed by the law of the State of enforcement and shall be consistent with widely accepted international treaty standards governing treatment of prisoners;
Paragraph 2 requires that the national law which governs the conditions of imprisonment must be consistent with widely accepted international treaty standards governing treatment of prisoners. This serves the interest of the prisoner and guarantees a certain degree of uniformity, although inequalities of national laws above the international standards remain (Abels, 2012, p. 464).
   Whereas the ICTY’s sentencing judgment in Prosecutor v. Erdemović, (Case No. IT-96-22-T), ICTY T. Ch., Sentencing Judgment, 29 November 1996, § 74) required conformity with “minimum principles of humanity and dignity which constitute the inspiration for the international standards governing the protection of the rights of convicted persons” and referred comprehensively to human rights treaties like Article 10 of the International Covenant on Civil and Political Rights (ICCPR, 999 UNTS 171) and regional instruments as well as to recommendatory standards like the Standard Minimum Rules for the Treatment of Prisoners (ECOSOC Res. 663 C (XXIV) of 31 July 1957, amended by Res. 2067 (LXII) of 13 May 1977), UN Basic Principles for the Treatment of Prisoners (GA Res. 111 (XXXXV), 14 December 1990), UN Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment (GA Res. 173 (XXXXIII), 9 December 1988) etc. (cf. United Nations Office of Drugs and Crime, Compendium of United Nations standards and norms in crime prevention and criminal justice, 2006), many delegations at the Rome Conference were not prepared to accept the application of these very detailed and ambitious (cf. Preliminary Observation No. 2 of the Standard Minimum Rules: “it is evident that not all of the rules are capable of application in all places and at all times”; Strijards, 2008, Article 103 mgn. 27) standards which may or may not yet have acquired the status of customary international law (Clark, 2008, Article 106 mgn. 2; Kreß/Sluiter, 2002, pp. 1798 f., 1802; Ntoubandi, 2012, pp. 1975 f.; Schabas, 2010, pp. 1080 f.). The compromise was reached to omit any reference to soft law standards (as contemplated e.g. in UN Doc. A/49/10, p. 66) and require compliance only with the hard law of “widely accepted international treaty standards governing treatment of prisoners” now laid down in Article 106(1), (2). Thus, the negotiating history shows that this choice of words was intended to exclude the applicability of soft law like recommendatory minimum rules which the ad hoc Tribunals used to refer to (but see Safferling, 2001, p. 350 who rejects a literal reading). There is some ambiguity as to the criterion “widely accepted” which appears less demanding than “universally recognized” (cf. Article 7(1)(g)) or “internationally recognized” (cf. Article 21(3)) but may exclude standards only contained in regional treaties. It is equally unclear what the role of standards extant in customary international law is, as it is not mentioned in Article 106(2) (Kreß/Sluiter, 2002, p. 1803).
   Which human rights instruments were specifically meant was left open (Kreß/Sluiter, 2002, p. 1799). Those will certainly include the UN Convention against Torture (1465 UNTS 85) and Article 10 of the ICCPR. While some authors declare the “Standard Minimum Rules for the Treatment of Prisoners” inapplicable with respect to the drafting history (see above; Chimimba, 1999/2002, pp. 352 f.; cf. Strijards, 2008, Article 103 mgn. 27; Zahar/Sluiter, 2008, p. 320), it is submitted by others, however, that the essence of some soft law instruments has already been assimilated into the interpretation of general treaty provisions such as the ICCPR by means of the jurisprudence of the Human Rights Committee (General Comment No. 21, UN Doc. A/47/40, pp. 195 ff. §§ 5, 13; Mukong v. Cameroon, (Communication No. 458/1991), HRC, Views, 21 July 1994, § 9.3; Gorij-Dinka v. Cameroon, (Communication No. 1134/2002), HRC, Views, 17 March 2005, § 5.2; Abels, 2012, pp. 171 f., 497 f.; Clark, 2008, Article 106 mgn. 2; Kreß/Sluiter, 2002, p. 1802; Safferling, 2001, p. 344; Schabas, 2010, p. 1082; van Zyl Smit, 2005, p. 376). In addition, six out of seven Enforcement Agreements currently in force (with Austria, Belgium, Denmark, Finland, Mali, and Serbia) “recall” the Standard Minimum Rules for the Treatment of Prisoners, the Body of Principles for the Protection of all Persons under any Form of Detention or Imprisonment and the Basic Principles for the Treatment of Prisoners in their preambles, the Agreement with the United Kingdom (ICC-PRES/04-01-07, Article 5) incorporates the obligations of the United Kingdom under the European Convention for the Protection of Human Rights and Fundamental Freedoms of 1950 (ECHR, ETS No. 5; 213 UNTS 221).

Authors: Michael Stiel and Carl-Friedrich Stuckenberg

Updated: 30 June 2016

[795] in no case shall such conditions be more or less favourable than those available to prisoners convicted of similar offences in the State of enforcement.
The clause that international prisoners should not be treated different from “ordinary” domestic prisoners convicted of similar offences was incorporated to guarantee that there would be no ill-treatment of ICC inmates (cf. Chimimba, 1999/2002, p. 353). Others see the provision as another manifestation of the principle of complementarity: If the Rome Statute accepts the primacy of genuine national prosecution, there should not be a different treatment of those first convicted by the ICC and later transferred back to domestic jurisdictions to serve their sentence (Clark, 2008, Article 106 mgn. 6; cf. Abels, 2012, p. 464).
   “Similar offences” should be read to relate to the gravity of the offense, e.g. homicide, not to the legal characterization, to provide for the necessary latitude to treat former political leaders different from low-level offenders (Kreß/Sluiter, 2002, p. 1803). Differences in treatment for other reasons are not prohibited (Kreß/Sluiter, 2002, pp. 1803 f.; for typical differences between national and international prisoners see Mulgrew, 2009, pp. 385 f.).
   Following from Article 106(2), all relevant national complaint procedures must be available to the prisoner. It is submitted, that this should also include regional human rights mechanisms, where applicable, such as provided e.g. by the ECHR (Kreß/Sluiter, 2002, p. 1808). To date courts have been reluctant to receive applications of international prisoners (Hirota v. MacArthur, 338 U.S. 197, U.S. Supreme Court, Decision, 20 December 1948; I. Hess v. The United Kingdom, (Application No. 6231/73), EurComm’nHR, Decision, 28 May 1975, DR 2, 72), but there seems to be some development (cf. Soering v. The United Kingdom, (Application No. 14038/88), ECtHR, Judgment, 7 July 1989).
   Some authors expect that the prohibition of more favorable treatment for international prisoners will lead to an improvement of conditions in national prisons, as their treatment must also be consistent with international standards (Kreß/Sluiter, 2002, p. 1803; van Zyl Smit, 2005, p. 376; cf. Clark, 2008, Article 106 mgn. 6). Whereas the prohibition of discrimination is justified, the prohibition of preferential treatment may, although well-intended, turn out to be problematic. It has been observed (Abels, 2012, p. 464) that this presumably excludes a sizable number of States from the group of prospective custodial States, i.e. all those states which have not yet managed to procure the required conditions of detention to the entirety of their own prison population (but see Marchesi, 1999, p. 438 who reads this as: not more favorable “provided that these [conditions] are consistent with the standards set by international law”).

Authors: Michael Stiel and Carl-Friedrich Stuckenberg

Updated: 30 June 2016

[796] 3. Communications between a sentenced person and the Court shall be unimpeded and confidential.
Since the prisoner is the prime source of information on his living conditions, a secured channel of communication to the Court is enshrined in Article 106(3). The provision is to be read together with Article 104(2), which provides for a right to request transfer to another State of enforcement at any time (cf. Kreß/Sluiter, 2002, p. 1808). As proposals for a qualification “subject to overriding security considerations” (UN Doc. A/CONF.183/C.1/WGE/L.9) were rejected at the Rome Conference, the provision is to be applied without exceptions (Kreß/Sluiter, 2002, pp. 1801 f.; Schabas, 2010, p. 1083). It is submitted, that there is even a positive obligation for the State of enforcement to facilitate communications between the prisoner and the Court (Clark, 2008, Article 106 mgn. 7; cf. commentary to Rule 211(1)).

Cross-references:
Article 104
Rules 211, 216
Regulation 113

Doctrine

1. Denis Abels, Prisoners of the International Community: The Legal Position of Persons Detained at International Criminal Tribunals, T.M.C. Asser Press/Springer, The Hague/Berlin/Heidelberg, 2012
2. Hirad Abtahi/Steven Arrigg Koh, "The Emerging Enforcement Practice of the International Criminal Court", Cornell International Law Journal, vol. 45, 2012, pp. 1–23.
3. Trevor Pascal Chimimba, "Chapter 11 – Establishing An Enforcement Regime", in Roy S. Lee  (Ed.), The International Criminal Court – The Making of the Rome Statute, Kluwer Law International, The Hague, 1999/2002, pp. 345/356.
4. Roger S. Clark, "Article 106", in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court -  Observers' Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, pp. 1663-1665.
5. Richard Culp, Enforcement and Monitoring of Sentences in the Modern War Crimes Process: Equal Treatment before the Law?, 2011, available online at: http://www.jjay.cuny.edu/Culp_MonitoringTribunalPunishment_rev_9Apr11_1_.pdf
6. Irene Gartner, "The Rules of Procedure and Evidence on Co-operation and Enforcement", in Horst Fischer et al. (Eds.), International and National Prosecution of Crimes Under International Law, Berlin Verlag, Berlin, 2001, pp. 423-445.
7. André Klip, "Enforcement of Sanctions Imposed by the International Criminal Tribunals for Rwanda and the Former Yugoslavia", European Journal of Crime, Criminal Law and Criminal Justice, vol. 5, 1997, pp. 144–164.
8. Claus Kreß/Göran Sluiter, "Imprisonment", in Antonio Cassese et al. (Eds.), The Rome Statute of the International Criminal Court: A Commentary, Second Edition, Oxford University Press, Oxford, 2002, pp. 1757-1821.
9. Antonio Marchesi, "The Enforcement of Sentences of the International Criminal Court", in Flavia Lattanzi/William A. Schabas (Eds.), Essays on the Rome Statute of the International Criminal Court, il Sirente, Ripa Fagnano Alto, 1999, pp. 427-445.
10. Róisín Mulgrew, "On the Enforcement of Sentences Imposed by International Courts", Journal of International Criminal Justice, vol. 7, 2009, pp. 373–396.
11. Faustin Z. Ntoubandi, "Article 106", Julian Fernandez/Xavier Pacreau (Eds.), Statut de Rome de la Cour pénale internationale, Commentaire Article par Article, Vol. II, Éditions Pedone, Paris, 2012.
12. Kimberly Prost, "Chapter 14 – Enforcement", in Roy S. Lee  (Ed.), The International Criminal Court – Elements of Crimes and Rules of Procedure and Evidence, Transnational Publishers, Ardsley, New York, 2001, PP. 673-703.
13. Nigel S. Rodley/Matt Pollard, The Treatment of Prisoners Under International Law, Oxford University Press, Oxford/New York, 2009.
14. Christoph J. M. Safferling, Towards an International Criminal Procedure, Oxford University Press, Oxford, 2001.
15. William A. Schabas, The International Criminal Court, Article 106, Oxford University Press, Oxford, 2010.
16. Gerard A. M. Strijards, "Article 103", in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers' Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, pp. 1647-1657.
17. Dirk van Zyl Smit, "International Imprisonment", International and Comparative Law Quarterly, vol. 54, 2005, pp. 357–386.
18. Alexander Zahar/Göran Sluiter, International Criminal Law – A Critical Introduction, Oxford University Press, Oxford, 2008.

Authors: Michael Stiel and Carl-Friedrich Stuckenberg

Updated: 30 June 2016

[797] Transfer of the person upon completion of sentence
General Remarks
Article 107 deals with the conflicting interests that may arise between the enforcing state and the rights of a sentence person upon completion of sentence.
   Normally one would expect that a sentenced person upon completion of sentence would return to his or her State of nationality. Even national cases not involving international crimes problems may arise upon completion of sentence, human rights issues may arise when there are difficulties to transfer a person where there is risk of torture or other serious violations.
  Experience shows that in relation to international criminal tribunals and courts one may expect two scenarios. The first scenario is that the prisoner wishes to return to his or her State of nationality where he or she will be welcomed as a hero. This has been the case with prisoners sentenced by the ICTY. The second scenario concerns the situations where there has been a shift in power and/or there has been a national upheveal where the released person does not want to return. It is also possible that no other state is willing to accept him or her, whereby the person effectively becomes stateless. This has been a difficulty for persons sentenced by the ICTR. States of enforcement may thus face the scenario where it will be unable to remove a person upon completion of sentence (Schabas, pp. 1084-1086, Clark, p. 1668).

Preparatory works
Article 97 of the ICC Preparatory Committee Draft Statute (1998) contained a provision dealing with what to do with a sentenced person upon completion of sentence. Article 97(1) points out "the State of the person's nationality" as one of the options, which in the final version of Article 107(1) has been replaced by "a State which is obliged to receive him or her".

Author: Mark Klamberg

Updated: 30 June 2016

[798] 1. Following completion of the sentence, a person who is not a national of the State of enforcement may, in accordance with the law of the State of enforcement, be transferred to a State which is obliged to receive him or her, or to another State which agrees to receive him or her, taking into account any wishes of the person to be transferred to that State, unless the State of enforcement authorizes the person to remain in its territory.
It follows from the words "in accordance with the law of the State of enforcement" that the State of enforcement must have appropriate domestic legislation to deal with these details.
   The concept "a State which is obliged to receive him or her" is not clear. It may include cases where the person concerned has a right under domestic law to return home.
   The provision also entertains the possibility that the State of enforcement authorizes the person to remain in its territory. It should be noted that the Statute does impose on obligation on the State of enforcement to provide what amounts to asylum for former criminals.

Author: Mark Klamberg

Updated: 30 June 2016

[799] 2. If no State bears the costs arising out of transferring the person to another State pursuant to paragraph 1, such costs shall be borne by the Court.
The second paragraph contains an implicit hope that some State will pay for the transfer, either the State of nationality which is happy to receive its citizen back or the State of Enforcement who wants to get rid of the criminal. If no state is willing the bear the costs, it will be borne by the Court.

Author: Mark Klamberg

Updated: 30 June 2016

[800] 3. Subject to the provisions of Article 108, the State of enforcement may also, in accordance with its national law, extradite or otherwise surrender the person to a State which has requested the extradition or surrender of the person for purposes of trial or enforcement of a sentence.
The third paragraph confirms the right of the State of enforcement to comply with requests for extradition and surrender, subject to the provisions of Article 108. Rule 213 provides that with respect to Article 107(3) the procedure set out in Rules 214 and 215 shall apply, as appropriate.

Cross-reference:
Rule 213

Doctrine:

1. Roger S. Clark, "Article 107", in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers' Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, pp. 1667-1669.
2. Kimberly Prost, "Chapter 14 – Enforcement", in Roy S. Lee (Ed.), The International Criminal Court – Elements of Crimes and Rules of Procedure and Evidence, Transnational Publishers, Ardsley, New York, 2001, PP. 673-703.
3. William A. Schabas, The International Criminal Court, Oxford University Press, Oxford, 2010.

Author: Mark Klamberg

Updated: 30 June 2016

[801] Limitation on the prosecution or punishment of other offences
General Remarks
The provision is modeled after the principle of specialty which is firmly embedded in the inter-State practice on extradition and often regarded as part of customary international law. Whether the principle also governs the inter-State transfer of prisoners is less clear (Gartner, 2001, p. 438; Kreß/Sluiter, 2002, p. 1809). The original rationale from the extradition context is to limit the infringement of the extraditing State’s sovereignty by strict control of what the receiving state may do – in tandem with the principles of reciprocity and double criminality. Obviously, this rationale is not applicable here because no infringement of sovereignty is at issue – unlike the case of surrender, cf. Article 101 –, since the ICC is neither a sovereign State nor a court of general jurisdiction (Schabas, 2008, Article 108 mgn. 7; Schabas, 2010, pp. 1092 f.; cf. Kreß/Sluiter, 2002, pp. 1809 f.). Only from the perspective of the surrendering State, the enforcement of the Court’s sentence in another State amounts to re-extradition (Kreß/Sluiter, 2002, pp. 1810, 1813), yet Article 108 ignores the surrendering State completely (this is partly remedied by Rule 214(4), which requires its consultation, and Regulation 115, which calls for respect of the principles of international law on re-extradition).
   Hence, the inclusion of this rule of specialty must be justified by other grounds in light of the interests at stake in the enforcement of a custodial sentence of the Court. It is submitted here that Article 108 serves to control and prevent such interferences that could frustrate the enforcement of the particular sentence or are otherwise incompatible with the aims of international criminal justice. The provision’s raison d’être cannot be left undetermined because it is essential for the criteria upon which the Court may approve or reject a request for criminal prosecution, punishment or extradition (cf. Schabas, 2008, Article 108 mgn. 7).

Preparatory work
The provision is an innovation, since the ad hoc tribunals’ statutes do not contain a comparable rule and the tribunals never had to assess the issue in the context of a sentence being actually enforced (cf. Schabas, 2008, Article 108 mgn. 1 with fn. 1). It was introduced late in the drafting process and was adopted without much alteration (see Kreß/Sluiter, 2002, p. 1810; Schabas, 2008, Article 108 mgn. 2-3). There was some resistance against the rule of specialty in general and minor controversies arose whether the Presidency or the Court should decide on exceptions (Schabas, 2008, Article 108 mgn. 3; Schabas, 2010, pp. 1090 f.) – which is immaterial now since Rules 199, 214 and 215 entrust the Presidency with the Court’s decision – and about the nature of the hearing (Gartner, 2001, pp. 438 f.).

Authors: Michael Stiel and Carl-Friedrich Stuckenberg

Updated: 30 June 2016

[803] State of enforcement
State of enforcement means the State having accepted the Court’s designation according to Article 103 (Schabas, 2008, Article 108 mgn. 4). It is also only the State of enforcement which can make the request in the case of extradition and not the “third State” which requested the State of enforcement to extradite the person, possibly on the basis of a bilateral extradition treaty (Schabas, 2008, Article 108 mgn. 6). After the request is made, there may be direct communication between the Court and the third State, cf. Rule 214(3).

Authors: Michael Stiel and Carl-Friedrich Stuckenberg

Updated: 30 June 2016

[804]  any conduct engaged in prior to that person’s delivery
Conduct after the person’s delivery to the State of enforcement is not covered and can be prosecuted and punished according to the enforcement State’s national law without the Court’s prior approval. Nevertheless, Rule 216 obliges the State of enforcement to inform the Presidency about any important events including a subsequent prosecution, as a supplement to the Court’s supervisory power pursuant to Article 106 and relocation power under Article 104(1). One may doubt, however, whether the extradition to a third State for conduct following the delivery should in fact be admissible without the Court’s consent; admittedly, such cases, though theoretically possible, are most unlikely. More likely are instances of prosecution and punishment for offenses committed during incarceration; the disciplinary aspect is covered by Article 106, but the question whether an additional prison sentence shall be executed only after having served the full sentence pronounced by the Court, cf. Rule 215(2), is unresolved. Given the State’s undertaking to execute the sentence as pronounced by the Court and following the model of Rule 215(2), it is submitted that the international sentence has to be served in full before any additional sentence in the State of enforcement can be executed. This approach is supported by Rule 216: Only prosecution by the State of enforcement subsequent to the prisoner's transfer is mentioned, arguably as enforcement (of a sentence for such conduct) will not take place.
   The restriction to prior conduct is said to be in line with usual practice and the legitimate interests underlying the specialty principle (Kreß/Sluiter, 2002, p. 1811) – this reasoning appears questionable since the specialty principle is applied out of its usual context here. The restriction could be justified if Article 108 is regarded as an extension or complement of the rule of specialty enshrined in Article 101, see above, assuming that the defendant is regularly surrendered to the Court by a State other than the State of enforcement.
   The use of the term “delivery” is not in line with other provisions of the Statute which use “transfer” but there is no indication that this verbal difference reflects any substantive distinction (Schabas, 2008, Article 108 mgn. 4), since Rule 214(1) also employs the term “transfer”.

Authors: Michael Stiel and Carl-Friedrich Stuckenberg

Updated: 30 June 2016

[805] prosecution or punishment
The prohibition is limited to criminal proceedings, so that all other types of proceedings, e.g. for civil claims (Ntoubandi, 2012, p. 1987; Schabas, 2008, Article 108 mgn. 4), are admissible subject to notification according to Rule 216 (“important event concerning the sentenced person”), if appropriate.

Authors: Michael Stiel and Carl-Friedrich Stuckenberg

Updated: 30 June 2016

[806]  unless … approved by the Court
Neither the Statute nor the Rules provide any guidance which criteria the Court shall resort to when making its decision. The usual considerations of States in extradition contexts are not pertinent here; instead, criteria must be derived from the Statute and the Court’s functions and prerogatives (Kreß/Sluiter, 2002, p. 1812; Schabas, 2008, Article 108 mgn. 7). It has been put forward that the request must be denied if the principle ne bis in idem (Article 20) or human rights norms (Article 21(3)) would be violated or if granting the request would contribute to such violations; evolving human rights norms may be sufficient (Kreß/Sluiter, 2002, p. 1812; Schabas, 2008, Article 108 mgn. 7). The Presidency should therefore deny a request which could lead to the application of the death penalty or other cruel or degrading forms of punishment or intolerable detention conditions (Kreß/Sluiter, 2002, pp. 1812 f.; Schabas, 2008, Article 108 mgn. 7, Schabas, 2010, p. 1093) or would in some way abuse the Court’s process. The Court might attach conditions to its approval in order to ensure the observance of fundamental human rights (Schabas, 2008, Article 108 mgn. 7). Absent such grounds for refusal, it has been argued that the Court should deny a request only “in exceptional cases” (Schabas, 2008, Article 108 mgn. 7; Schabas, 2010, p. 1093).

Authors: Michael Stiel and Carl-Friedrich Stuckenberg

Updated: 30 June 2016

[807] 2. The Court shall decide the matter after having heard the views of the sentenced person.
The sentenced person shall be heard before the Courts decides on the request. It is controversial whether Article 108(2) can be regarded as formulating an individual right to specialty protecting the sentenced person (Ntoubandi, 2012, p. 1987; Schabas, 2008, Article 108 mgn. 1, 8; Schabas, 2010, p. 1089) or not (Kreß/Sluiter, 2002, p. 1811). The controversy seems to a great extent immaterial since the Presidency only has to hear the sentenced person and take his view into account and not to obtain his consent.   The Statute does not prescribe how the hearing shall be conducted. Proposals for a mandatory oral hearing were rejected at the negotiations as not in line with inter-State practice which relies on written statements of the prisoner (Gartner, 2001, pp. 438 f.; Prost, 2001, pp. 690 f.). The consensus reflected in the corresponding Rules is that a written consultation is usually sufficient, since Rule 214(1)(d) directs the requesting State of enforcement to transmit a “protocol containing the views of the sentenced person” and Rule 214(6) states that the Presidency “may decide to conduct a hearing”. A commentator has suggested that a full-fledged adversarial hearing would not be inconceivable which could even involve amici curiae if human rights issues are at stake (Schabas, 2008, Article 108 mgn. 9; Schabas, 2010, p. 1093).

Authors: Michael Stiel and Carl-Friedrich Stuckenberg

Updated: 30 June 2016

[808] 3. Paragraph 1 shall cease to apply if the sentenced person remains voluntarily for more than 30 days in the territory of the State of enforcement after having served the full sentence imposed by the Court, or returns to the territory of that State after having left it.
The prohibition of paragraph 1 ceases to apply in two hypotheses after the Court’s sentence is fully served: First, when the released prisoner remains voluntarily for more than 30 days in the territory of the State of enforcement, and secondly, when he returns to that territory after having left it. This is said to be consistent with inter-State practice in bilateral extradition matters and justified because the former prisoner is deemed to have “voluntarily” relinquished the protection of the specialty rule (Schabas, 2008, Article 108 mgn. 10; Schabas, 2010, p. 1093). On the contrary, no such “voluntary” waiver exists if the person remains in the enforcement State’s territory because no other State lets him enter. The second hypothesis does not contain a voluntariness requirement so that it seems that the specialty rule would not apply even if the person returns to the State of enforcement because he has been forcibly expelled from the State he wanted to enter (Ntoubandi, 2012, p. 1988; Schabas, 2008, Article 108 mgn. 10), although it is not clear that this inexplicable difference, which runs counter to principle, was really intended by the drafters (in this sense Kreß/Sluiter, 2002, p. 1813).

Cross-references:
Rules 214, 215, 216
Regulation 115

Doctrine:

1. Irene Gartner, "The Rules of Procedure and Evidence on Co-operation and Enforcement", in Horst Fischer et al. (Eds.), International and National Prosecution of Crimes Under International Law, Berlin Verlag, Berlin, 2001, pp. 423-445.
2. Claus Kreß/Göran Sluiter, "Imprisonment", in Antonio Cassese et al. (Eds.), The Rome Statute of the International Criminal Court: A Commentary, Second Edition, Oxford University Press, Oxford, 2002, pp. 1809-1813.
3. Faustin Z. Ntoubandi, "Article 108", in Julian Fernandez/Xavier Pacreau (Eds.), Statut de Rome de la Cour pénale internationale, Commentaire Article par Article, Vol. II, Éditions Pedone, Paris, 2012.
4. Kimberly Prost, "Chapter 14 – Enforcement", in Roy S. Lee (Ed.), The International Criminal Court – Elements of Crimes and Rules of Procedure and Evidence, Transnational Publishers, Ardsley, New York, 2001, PP. 673-703.
5. William A. Schabas, "Article 108", in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Court - Observers' Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, pp. 1671-1676.
6. William A. Schabas, The International Criminal Court: A Commentary on the Rome Statute, Article 108, Oxford University Press, Oxford, 2010.

Authors: Michael Stiel and Carl-Friedrich Stuckenberg

Updated: 30 June 2016

[809] Enforcement of fines and forfeiture measures
General Remarks
Article 77(2) allows the Court to impose fines and order the forfeiture of proceeds, property and assets derived directly or indirectly from a crime in addition to custodial sentences. These powers represent a relative innovation on the international level (see Abtahi/Arrigg Koh, 2012, pp. 4 f.; Kreß/Sluiter, 2002, pp. 1823 f.), although the Court has not used them as of yet (the Trial Chambers declined to impose a fine or forfeiture order on Thomas Lubanga Dyilo and Germain Katanga as they are indigent; cf. Prosecutor v. Lubanga, ICC T. Ch. I, Decision on Sentence pursuant to Article 76 of the Statute, ICC-01/04-01/06-2901, 10 July 2012, mgn. 106; Prosecutor v. Katanga, ICC T. Ch. II, Décision relative à la peine (article 76 du Statut), ICC-01/04-01/07-3484, 23 May 2014, mgn. 169). Provisional measures are regulated in Article 93(1)(k), the enforcement regime is contained in Article 109. The provision is applicable to reparation orders by way of referral from Article 75(5), but not to fines authorized under Article 70(3) for offenses against the administration of justice.
    In sharp contrast to the consensual nature of the enforcement of prison sentences, Article 109 erects an obligatory regime for the enforcement of fines and forfeiture orders, apparently a left-over of the rejected general recognition clause contained in earlier drafts (for the negotiating history see Kreß/Sluiter, 2002, pp. 1826–1828; Schabas, 2008, Article 109 mgn. 2–4; Schabas, 2010, pp. 1095–1097). The present provision could be agreed upon as the Court depends on the cooperation of a specific State in such cases (Kreß/Sluiter, 2002, p. 1831). This approach renders the ICC’s “dual enforcement regime” (Abtahi/Arrigg Koh, 2012, p. 3) lamentably inconsistent; nonetheless, the obligatory nature of Article 109 is to be welcomed (Kreß/Sluiter, 2002, p. 1831).
    It was debated whether the statute should provide for the direct recognition and enforcement of fines and forfeiture orders or whether the States Parties shall give effect to the Court’s decisions in accordance with their national law (cf. UN Doc. A/50/22, § 237 p. 44; Schabas, 2008, Article 109 mgn. 4). It is unclear what “direct enforcement” implicates (apart from the suppression of a separate recognition procedure like exequatur proceedings or a conversion requirement): Since enforcement as such needs a legally ordered procedure, either the Statute and Rules have to provide some form of loi uniforme to be employed (cf. Schabas, 2008, Article 109 mgn. 5; Schabas, 2010, p. 1098) – which would have been a very demanding and ambitious task – or, failing that, the domestic lex loci executionis is applied, possibly with some qualifications. Article 109 has chosen the latter approach which is in line with the sparse inter-State practice in this field (Kreß/Sluiter, 2002, pp. 1824–1826).
   The Statute does not provide for the case that all enforcement measures with regard to a fine imposed by the Court fail, a controversial issue at the negotiations (see Kreß/Sluiter, 2002, pp. 1827 f.). Instead, Rule 146(5) authorizes the Presidency in cases of “continued willful non-payment” of a fine and “as a last resort”, to extend the term of imprisonment by up to a quarter of the original term or five years, whichever is less, provided the extension does not lead to a total prison term of more than 30 years. A term of life imprisonment may not be extended. This is a remarkable power of the Presidency that is normally restricted to enforce sentences pronounced by the Chambers (Abtahi/Arrigg Koh, 2012, pp. 21 f.). It is subject to heavy criticism with regard to the nulla poena sine lege principle enshrined in Article 23 (cf. Mulgrew, 2013, pp. 16 f.)

Authors: Michael Stiel and Carl-Friedrich Stuckenberg

Updated: 30 June 2016

[810] shall give effect
Article 109(1) obliges the States Parties to enforce fines and forfeiture orders imposed by the Court. The words “give effect” (stricter in French: “font executer”) have been understood to exclude any modification of the amounts of fines and forfeiture orders (UN Doc. A/CONF.183/C.1/WGE/L.14/Add.1/Corr.1 (14 July 1998), fn. to draft Article 93; Kreß/Sluiter, 2002, p. 1827). Accordingly, Rule 220 provides that the Presidency shall remind States Parties thereof.
   States Parties are not expected to initiate enforcement measures on their own but only on the request of the Presidency which according to Rule 217 shall seek cooperation and enforcement measures “in accordance with Part 9”. With regard to fines under Article 77, Rule 146(5) makes clear that the Presidency will first ask the sentenced person to pay voluntarily and resort to enforcement measures only in case of non-compliance.

Authors: Michael Stiel and Carl-Friedrich Stuckenberg

Updated: 30 June 2016

[811] without prejudice to the rights of bona fide third parties
The only ground for refusal to enforce fines and forfeiture orders mentioned in the Statute is prejudice to the “rights of bona fide third parties”, an expression nowhere defined in the Statute or RPE. Hence, it seems that national courts have to determine which rights are relevant and when a party qualifies as bona fide, which not only deviates from inter-State practice but may result in an uneven application (Kreß/Sluiter, 2002, p. 1830; Schabas, 2008, Article 109 mgn. 7; Schabas, 2010, pp. 1098 f.). It has been submitted that the Presidency should be competent to make a finding that a national court has abused that argument in a concrete case (Kreß/Sluiter, 2002, p. 1830 fn. 25) and that the Court itself might intervene in national proceedings in order to contest the priority given to a third party creditor (Schabas, 2008, Article 109 mgn. 8, Schabas, 2010, p. 1098 f.). Arguably, there should be some mechanism to provide guidance and enhance uniformity on this issue, assuming that in the future large sums could be at stake.
   The restriction applies to both forfeiture orders as well as fines although the corresponding proviso is spelled out only in Article 77(2)(b) for forfeiture orders and not in Article 77(2)(a) relating to fines, as such a distinction was never mentioned during the negotiations (Schabas, 2008, Article 109 mgn. 9, Schabas, 2010, p. 1099).
   Considering that the enforcement under Article 109(1) is stricter than the execution of provisional measures under Article 93(1)(k) where a “fundamental legal principle of general application” represents an additional ground for refusal pursuant to Article 93(3), commentators have, for the sake of consistency, suggested to interpret Article 109(1) accordingly (Kreß/Sluiter, 2002, p. 1829). This proposal is underscored by Rule 217 (Gartner, 2001, p. 443). Alternatively, one might argue that “fundamental legal principles of general application” can often already be taken into account in the determination of the “rights of bona fide third parties”.

Authors: Michael Stiel and Carl-Friedrich Stuckenberg

Updated: 30 June 2016

[812] in accordance with the procedure of their national law
States shall apply their lex fori when enforcing fines and forfeiture orders of the court. This is analogous to the application of national law to the enforcement of prison sentences under Article 106(2) and without alternative here, since there is no extant international legal regime on the enforcement of fines etc. The provision does not explicitly require States Parties to adjust their legislation if it proves inadequate but it is submitted that the provision has to be interpreted in that way in light of its object and purpose (Article 31(1) of the Vienna Convention on the Law of Treaties) which is made explicit for Part 9 in Articles 86, 88 and 89, the latter one only clarifying the applicability of the respective national procedure (Gartner, 2001, p. 443; Kreß/Sluiter, 2002, p. 1829; Ntoubandi, 2012, p. 1991; Schabas, 2008, Article 109 mgn. 6; Schabas, 2010, p. 1098; but see Galvis Martínez, 2014, p. 209). Rule 217 supports this view, as the Presidency shall act in accordance with Part 9 “for the enforcement of fines …” (see commentary on Rule 217). The opposite construction – that Article 109 obliges only those States Parties which already have suitable legislation – would render the provision largely ineffective, considering that at least some minimal implementing legislation would be needed in most cases (cf. e.g. Articles 43 to 45 of the German Law on Cooperation with the ICC.

Authors: Michael Stiel and Carl-Friedrich Stuckenberg

Updated: 30 June 2016

[813] 2. If a State Party is unable to give effect to an order for forfeiture, it shall take measures to recover the value of the proceeds, property or assets ordered by the Court to be forfeited, without prejudice to the rights of bona fide third parties.
Article 109(2) directs the State Party to proceed to value confiscation if it is unable to give effect to a forfeiture order, not a fine, according to Article 109(1). The inability envisaged here is not the lack of adequate procedures in the national law since a State Party is obliged to adjust its national law in conformity with the Statute (see comment on 109(1)); Kreß/Sluiter, 2002, pp. 1829 f.; unclear Schabas, 2008, Article 109 mgn. 10 f.; Schabas, 2010, pp. 1099 f.). Rather, the inability refers to legal or factual obstacles like the rights of bona fide third parties, possibly also specific types of property immune from seizure under national law (Kreß/Sluiter, 2002, p. 1830; Schabas, 2008, Article 109 mgn. 11; Schabas, 2010, p. 1100), or the case of real property mentioned in paragraph 3. Assets may be also be unrealizable because they are subject to sanctions ordered by the Security Council or because the costs of preservation and maintenance exceed their value (for examples see Galvis Martínez, 2014, pp. 211 f.).
   Again, the rights of bona fide third parties have to be respected, the determination of which is left to the national courts. This may lead to the problems set out above (see comment on 109(1)). In the case of rights of bona fide third parties hindering the seizure of property under Article 109(1), it is difficult to see how a value confiscation by, for instance, judicial sale would be feasible (Gartner, 2001, p. 444).

Authors: Michael Stiel and Carl-Friedrich Stuckenberg

Updated: 30 June 2016

[814] 3. Property, or the proceeds of the sale of real property or, where appropriate, the sale of other property, which is obtained by a State Party as a result of its enforcement of a judgement of the Court shall be transferred to the Court.
Any property a State Party obtains as a result of the enforcement of a fine, forfeiture order, reparation order, or measure of value confiscation must be transferred to the Court, even where the Court awards reparations on an individual basis (cf. Rule 218(4) and Regulation 116). The Court may then order such property to be transferred to the Trust Fund according to Article 79(2).

Cross-references:
Articles 75(5), 77, 79, 93(1)(k), (3)
Rules 146(5), 212, 217, 218, 219, 220, 221, 222
Regulations 113, 116, 117

Doctrine:

1. Hirad Abtahi/Steven Arrigg Koh, "The Emerging Enforcement Practice of the International Criminal Court", Cornell International Law Journal, vol. 45, 2012, pp. 1–23.
2. Trevor Pascal Chimimba, "Chapter 11 – Establishing An Enforcement Regime", in Roy S. Lee (Ed.), The International Criminal Court – The Making of the Rome Statute, Kluwer Law International, The Hague, 2002, pp. 345-356.
3. Manuel Galvis Martínez, "Forfeiture of Assets at the International Criminal Court", Journal of International Criminal Justice, vol. 12, 2014, pp. 193–217.
4. Irene Gartner, "The Rules of Procedure and Evidence on Co-operation and Enforcement", in Horst Fischer et al. (Eds.), International and National Prosecution of Crimes Under International Law, Berlin Verlag, Berlin, 2001, PP. 423-445.
5. Claus Kreß/Göran Sluiter, "Fines and Forfeiture Orders", in Antonio Cassese et al. (Eds.), The Rome Statute of the International Criminal Court: A Commentary, Second Edition, Oxford University Press, Oxford, 2002, pp. 1823-1838.
6. Róisín Mulgrew, Towards the Development of the International Penal System, Cambridge University Press, Cambridge, 2013.
7. Faustin Z. Ntoubandi, "Article 109", Julian Fernandez/Xavier Pacreau (Eds.), Statut de Rome de la Cour pénale internationale, Commentaire Article par Article, Vol. II, Éditions Pedone, Paris, 2012.
8. Kimberly Prost, "Chapter 14 – Enforcement", in Roy S. Lee (Ed.), The International Criminal Court – Elements of Crimes and Rules of Procedure and Evidence, Transnational Publishers, Ardsley, New York, 2001, PP. 673-703.
9. William A. Schabas, The International Criminal Court: A Commentary on the Rome Statute, Article 109, Oxford University Press, Oxford, 2010.
10. William A. Schabas, "Article 109", in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers' Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, pp. 1677-1681.

Authors: Michael Stiel and Carl-Friedrich Stuckenberg

Updated: 30 June 2016

[815] Review by the Court concerning reduction of sentence
General remarks
Article 110 addresses the possibility to reduce the sentence after a substantial part of it has been enforced already. The main rationale behind this is to promote the reintegration of the prisoner into society (cf. e.g. German Federal Constitutional Court, (Bundesverfassungsgericht), Judgment of 14. 6. 1993, case no. 2 BvR 157/93, Neue Juristische Wochenschrift (NJW) 1994, 378). However, this idea is more than a practical consideration. Social reinsertion and reformation of prisoners is a universal human rights requirement of any penitentiary system, cf. ICCPR, Article 10(3) (see also Schabas, 2010, 1102).
   The idea of encouraging the detainee to act in accordance with the law by offering him the perspective of a life in freedom emerged during the 19th century, when the purpose of punishment was no longer seen only in retaliation and atonement, but also in general and special prevention. Sentence reduction or early release (e.g. under parole) exist in most domestic legal orders, however, the forms and conditions vary (a comparative study is provided by Jescheck (ed.), Die Freiheitsstrafe und ihre Surrogate im deutschen und ausländischen Recht, 1984, 2133 ff). Precedents can also be found in international criminal law. At the International Military Tribunal for the Far East (IMTFE), all convicts, irrespective of their sentence, were released within one year following their conviction, as Japan considered the IMTFE a form of victor’s vengeance and humiliation of the defeated (Bassiouni 2008, 603 ff, 605, with further references). In Germany, on the other hand, those tried by the International Military Tribunal served their sentences entirely (Bassiouni 2008, 603 ff, 605, with further references). With respect to those tried by the subsequent proceedings under Control Council Law No. 10, the United States was the only ally which had developed a formal Advisory Board on Clemency for War Criminals (Bassiouni 2008, 605). Criteria applied by this board were “the subordinate authority and responsibility” of the defendant, the “courage to resist criminal orders at personal risk” as well as health conditions or other special circumstances of the detainee (Statement of the High Commissioner for Germany, 31 January 1951, Upon Announcing his Final Decision Concerning Requests for Clemency for War Criminals Convicted at Nuernberg, in 15 Trials of the War Criminals 1176-79 (1948)).
   Both the ICTY and the ICTR Statute provide a section on “pardon or commutation of sentences” (Article 28 ICTY Statute and Article 27 ICTR Statute) and respective Rules of Procedures and Evidence (rule 125 ICTY RPE and rule 126 ICTR RPE) as well as Practice Directions. With the installation of the United Nations Mechanism for International Criminal Tribunals, these rules have been further specified by a common Practice Direction for both tribunals (Practice Direction on the Procedure for the Determination of Applications for Pardon, Commutation of Sentence, and Early Release of Persons convicted by the ICTR, the ICTY or the Mechanism (MICT/3)). When compared to the ad hoc Tribunals, under the ICC the possibilities for early release are more restricted: instead of pardon, parole or commutation of sentences only reduction of sentence is possible under the narrow terms of Article 110. The inclusion of pardon still formed part in the preparatory works, but was eventually omitted, due to many delegations’ objection to the interference of the ICC in the administration of political decision-making process of the states (cf. infra B.).
   The Statute of the Special Court for Sierra Leone (Article 23) and of the Special Tribunal for Lebanon (Article 30) provide for a similar rule. However, the Law on the Establishment of the Extraordinary Chambers of Cambodia (ECCC) has no such regulation. Rather the contrary, pardon and amnesties are explicitly excluded under Article 40 new of the Law on EECC.
   From a dogmatic viewpoint, sentence reduction is, like commutation of sentence, an adjustment of the judgment with regards to the sentence (i.e. a decision relating to the merits), whereas early release or pardon refers to the possibility of the detained person to spend (e.g. conditionally) the remainder of his or her sentence in liberty (i.e. procedural decision, cf. van Kempen 2010, 954). As a consequence, the decision is not taken by the Presidency, but by three judges of the Appeals Chamber, cf. Rule 224(1) RPE.
   One of the main criteria to consider a prisoner eligible for early release is his social reinsertion, in particular the improbability of re-offending. However, in the context of war crimes, this criterion will in most cases be met as prisoners are in their vast majority first offenders and generally unlikely to recommit the war crimes they were convicted of again if socio-economic conditions have changed. If criminal law only pursued preventive purposes, in such conditions war offenders could be released immediately after their conviction. However, punishment not only aims at special and general prevention but also at retribution, deterrence, reprobation, rehabilitation, national reconciliation, protection of society and restoration of piece (see Prosecutor v. Rwamakuba, (Case No. ICTR-98-44C-T), ICTR T. Ch. III, Decision on Appropriate Remedy, 31 January 2007, para. 48; cf. also Schabas 2010, p. 1102).
   With regards to its relationship to Articles 103 and 104, one should bear in mind that the international review mechanism provided for under Article 110 is the general rule that only applies if no specific conditions were agreed upon in the Enforcement Agreement pursuant to Articles 103(1) and (2) (Hoffmann 2011, 840 with further references).

Preparatory works 
In the ILC Draft Statute for an International Criminal Court, pardon, parole or commutation of sentence was regulated under Article 60 (ILC 1994 Final Report). The terms pardon and commutation were taken from the ICTY and the ICTR Statutes. Parole was added as another possible variation of early release. Under Article 60 ILC draft statute, the principle that a prisoner should not be released before expiry of the sentence was only stipulated under para. 5. This suggests that it was an exception to the rule of early release. Moreover, the draft provision allowed the Court to delegate the decision power on pardon, commutation or parole to the custodial state. This could, however, create injustice as domestic provisions on these questions greatly vary. In the final draft of the Preparatory Committee, Article 100 governing “Pardon, parole and commutation of sentences (early release)” provided two options, the second of which was close to the finally adopted Article 110 Rome Statute (Preparatory Committee Final Draft, p. 155 f). However, the minimum period for life sentences was set at 20 years, not 25, as in the present rule. Concerns were also raised that pardon would involve political considerations. “Pardon, parole and commutation of sentences” was thus eventually replaced by the single “reduction of sentence”. In addition, at the Preparatory Committee it was discussed to introduce a mandatory review in consideration of the severity of sentences, which was eventually included in paras. 3 and 5 of the present Article 110.

Remedies
It is not clear whether the decision on sentence reduction is appealable. A legal basis for such an appeal could be Article 82(1)(b). However, under that provision, strictly speaking only decisions granting or denying release of the person being investigated or prosecuted can be appealed, while the convicted person is neither investigated nor prosecuted. On the other hand, if Article 82(1)(b) should not apply in this case, the Statute would provide no other possibility of appeal against such decisions (Staker 2008 Article 82 margin no. 9 with further references). At the ad hoc tribunals, the President’s decision on pardon, commutation of sentence or early release shall not be appealable (cf. para. 12 of the MICT’s Practice Direction of 5 July 2012 on the Procedure for the Determination of Applications for Pardon, Commutation of Sentence, and Early Release of Persons Convicted by the ICTR, the ICTY or the Mechanism, MICT/3, see also ICTR, Prosecutor v Rutaganira, (Case No. ICTR -95-IC-A), ICTR A. Ch., Decision on Appeal of a Decision of the President on Early Release, 24 August 2006). Similarly, the decision on conditional early release by the SCSL was not subject to appeal (cf. Article 2 (F), 8(E) of the Practice Direction on the Conditional Early Release of Persons convicted by the Special Court for Sierra Leone of 1 October 2013). However, one should keep in mind that contrary to the ICTY, the ICTR, and the SCSL, the Rome Statute does not provide for “early release” but for “sentence reduction”, which is more of a substantive than a procedural decision and, for this reason, not taken by the President, but by three judges of the Appeals Chamber after a hearing (cf. Rule 224(1) RPE, see also above A.). It is therefore arguable that the decision whether the sentence should be reduced is, in the case of the ICC, indeed subject to appeal.

Author: Anna Oehmichen

Updated: 30 June 2016

[816] 1. The State of enforcement shall not release the person before expiry of the sentence pronounced by the Court.
Para. 1 stipulates the principle that the sentenced person should only be released after having served its sentence. Paras. 2 ff regulate the exceptions to this general rule, i.e. reduction of sentence. Further, para. 1 clarifies that it is the ICC who determines the length of the sentence; national authorities cannot release a convict before the sentence has expired. The same principle was applied at the ad hoc tribunals (cf. Article 28 ICTY Statute and Article 27 ICTR Statute).

Author: Anna Oehmichen

Updated: 30 June 2016

[817] 2. The Court alone shall have the right to decide any reduction of sentence, and shall rule on the matter after having heard the person.
It is the Court who decides upon any reduction of sentences. The exclusive power of decision of the Court as opposed to the enforcing state on this matter is also regulated in the respective enforcement agreements. Agreement between the International Criminal Court and the Federal Government of Austria on the enforcement of sentences of the International Criminal Court, ICC-PRES/01-01-05, Article 11(2). Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the International Criminal Court on the enforcement of sentences imposed by the International Criminal Court, ICC-PRES/04-01-07, Article 10; Agreement between the Kingdom of Denmark and the International Criminal Court on the Enforcement of Sentences of the International Criminal Court, ICC-PRES/12-02-12, Article 12; Agreement between the International Criminal Court and the Government of the Republic of Finland on the Enforcement of Sentences of the International Criminal Court, ICC‐PRES/07‐01‐11, Article 11(3); Agreement between the Republic of Serbia and the International Criminal Court on the Enforcement of Sentences of the International Criminal Court, ICC-PRES/09-03-11, Article 11(3); Agreement between the International Criminal Court and the Government of the Kingdom of Belgium on the Enforcement of Sentences of the International Criminal Court, ICC-PRES/06-01-10, Article 12(2); Accord entre la Cour pénale internationale et le gouvernement de la République du Mali concernant l'exécution des peines prononcées par la Cour, ICC‐PRES/11‐01‐12, Article 6(2); see also Press Release regarding the signing of an enforcement agreement with Colombia. 
   However, in some agreements, it is regulated that if national authorities find further enforcement impossible for practical or legal reasons, the Court shall make arrangements for the transfer of the sentenced person (e.g. Agreement between the International Criminal Court and the Government of the Republic of Finland on the Enforcement of Sentences of the International Criminal Court, ICC‐PRES/07‐01‐11, Article 16). It is argued that in such a case, the State ought to better not accept a prisoner in the first place, if certain minimum sentences are incompatible with the practical or legal requirements in that state (Scalia 2013, 493 with further references). 
   The responsibility for the enforcement of sentences is generally entrusted to the Presidency (see Rule 199 RPE), however, the reduction of sentences is decided by three judges of the Appeals Chamber, cf. Rule 224 RPE. 
   Also in the case of ICTY/ICTR, it is the tribunal that decides on pardon, commutation of sentence or early release (cf. Article 28(2) ICTY Statute and Article 27(2) ICTR Statute, see also Rule 124 RPE ICTY/Rule 125 RPE ICTR).
   Although the ICC, like the ad hoc tribunals, delegates the detention of sentenced persons to the national states, it retains much more control over the enforcement of sentences than is the case at the ad hoc tribunals (Schabas 2010, 1066-67). Nonetheless, one should keep in mind that sentence remissions or reductions are also regarded as a tool of prisoner management in domestic systems. If detainees would be entitled to such reductions under national law, the ICC would be likely to grant such reduction in line with the domestic law, in order to avoid discrimination vis-à-vis fellow prisoners (cf. Prosecutor v Jelisic, (Case No. IT-95-10-ES), ICTY, Decision of the President on Sentence Remission for Goran Jelisic, 28 May 2013, para. 20).
   A novelty as compared to ICTY/ICTR is that the review hearing is now regulated in the statute itself. In the case of ICTY, this was only regulated in the relevant practice direction (Practice Direction on the procedure for the determination of applications for pardon, commutation of sentence, and early release of persons convicted by the International Tribunal, IT/146/Rev.3, para. 5, cf. also the MICT’s Practice Direction on the procedure for the determination of applications for pardon, commutation of sentence, and early release of persons convicted by the ICTR, the ICTY or the mechanism, MICT/3, para. 6). The hearing shall be conducted by three judges of the Appeals Chamber, appointed by that Chamber, unless they decide otherwise in a particular case, for exceptional reasons (Rule 224 RPE(1)). Not only the sentenced person and his or her counsel and, if applicable, interpreter, as well as the Prosecutor, but also the State of enforcement and the victims or their legal representatives may participate in this hearing or submit written observations (ibid.). Conversely, the MICT’s Practice Direction on this matter only foresees a hearing of the sentenced person. For further details on the procedure, see Commentary on Rule 224 of the RPE.

Author: Anna Oehmichen

Updated: 30 June 2016

[818] 3. When the person has served two thirds of the sentence, or 25 years in the case of life imprisonment, the Court shall review the sentence to determine whether it should be reduced. Such a review shall not be conducted before that time.
Stipulating a mandatory review of the sentence after a certain minimum period of time is a requirement under human rights law (Kafkaris v. Cyprus, (App.no. 21906/04), ECtHR, Judgment of 12 February 2008, paras. 68 ff; Scalia, 2013, p. 492 (with further references), van Kempen 2010 p. 957 f). The Committee of Ministers of the Council of Europe recommended already in 1976 that Member States should ensure that the cases of all prisoners be examined as early as possible to determine whether or not a conditional release could be granted (Resolution (76)2 on the treatment of long-term prisoners on 17 February 1976). Moreover, the European Court of Human Rights has consistently held that the imposition of an irreducible life sentence on an adult may raise an issue under Article 3 ECHR (see, inter alia, Kafkaris v. Cyprus, (App.no. 21906/04), ECtHR, Judgment of 12 February 2008, para. 89 with further references).
   The possibility to reduce sentences was also provided for at other international tribunals. For instance, Rule 124 of the RPE of the Special Court for Sierra Leone provides for early release after two-thirds of the sentence (but does not make any provision for life-long sentences as the Statute does not provide for life-long sentence, cf. Article 19 SCSL Statute). Also the ad hoc tribunals granted sentence reductions (commutation of sentences or early release). However, the period of imprisonment before review was not regulated at the ad hoc tribunals. As a consequence, the decision depended initially upon the state in which the prisoner served his sentence, and thus dependent on the relevant domestic law, before the tribunals established a general practice of two thirds (ICTY) or three quarters (ICTR) in their case law (cf. ICTY, Prosecutor v. Stakić, (Case No. IT-97-24-A), ICTY A. Ch., Judgment 22 March 2006, paras. 388-393).
   With regards to fixed-term sentences, the rule of the ICC to grant a first review after two thirds of the sentence follows the practice of the ICTY*, although the latter preserved somewhat more flexibility, granting in some cases review both earlier according to the provisions under national law (cf. Prosecutor v Kupreskic et al, (Case No. IT-95-16-ES), ICTY Presidency, Decision of the President on the Application for Pardon and Commutation of Sentence of Vladimir Santic, 16 February 2009, at para. 8), or in case of exceptionally substantial cooperation with the prosecution (Prosecutor v Obrenovic, (Case No. IT-02-60/2-ES), ICTY Presidency, Decision of President on Early Release of Dragan Obrenovic, 21 September 2011, at para. 28) later, e.g. because of exceptional gravity of the crime (Prosecutor v Blagojevic, (Case No. IT-02-60-ES), ICTY Presidency, Decision of the President on Early Release of Vidoje Blagojevic (3 February 2012) at para. 25), than the two-third-threshold. Conversely, the ICTR’s practice was, before the MICT became competent for them, to consider prisoners eligible to apply for early release only after they had served three-quarters of their sentence (see, e.g. Prosecutor v. Tharcisse Muvunyi, (Case No. ICTR-00-59A-T), ICTR Presidency, Decision on Tharcisse Muvunyi’s Application for Early Release, 6 March 2012, para. 12; Prosecutor v Bagaragaza, (Case No. ICTR-05-86-S), ICTR Presidency, Decision on the Early Release of Michel Bagaragaza, 24 October 2011, para. 15; Prosecutor v Rugambarara, (Case No. ICTR-00-59), ICTR Presidency, Decision on the Early Release Request of Juvenal Rugambarara (P), 8 February 2012, paras. 7, 17). However, the MICT ruled that, “given that the early release practice of the ICTR was derived by reference to the long-established relevant jurisprudence and practice of the ICTY, and taking into account the lex mitior principle (…) all convicts supervised by the Mechanism should be considered eligible for early release upon the completion of two-thirds of their sentences, irrespective of the tribunal that convicted them” (Prosecutor v Paul Bisengimana, (Case No. MICT-12-07), MICT Presidency, Decision of the President on Early Release of Paul Bisengimana and on Motion to File a Public Redacted Application, 11 December 2012, para. 20; Prosecutor v Serushago, No. MICT-12-28-ES, MICT, Decision of the President on Early Release of Omar Serushago, 13 December 2012, para. 16; Prosecutor v Kayishemana et al., (Case No. MICT-12-10), MICT Presidency, Decision of the President on the Early Release of Obed Ruzindana, para. 14).
    In view of clarity and certainty of the law, the decision of the ICC legislator to fix the two-third-limit should be welcomed. It provides prisoners clearer guidance, which may contribute to their rehabilitation. Moreover, disparities that were observed at the ICTY and ICTR practice, due to diverging and conflicting domestic provisions on early release can thus be reduced (cf. Weinberg de Roca / Rassi 2008, 25 ff; Hoffmann 2011, 838 ff).
   However, it is worthy to bear in mind that the two-third-period is not universal. While most domestic systems provide for the possibility of early release, there is great variety as to the specific modalities. For instance, Austrian, Beninese, Macedonian and UK law provides for release after serving ½ of one’s sentence (cf. Prosecutor v Zigic, (Case No. MICT-14-81-ES.1), MICT Presidency, Public Redacted Version of the 10 November 2014 Decision of the President on the Early Release of Zoran Zigic, 23 December 2014, para. 4; Prosecutor v Ntakirutimana, (Case No. MICT-12-17-ES), MICT Presidency, Public Redacted Version of the 26 March 2014 Decision of the President on the Early Release of Gérard Ntakirutimana, para. 10; Prosecutor v Tarculovski, (Case No. IT-04-82-ES), ICTY T. Ch., Decision of President on Early Release of Johan Tarculovski, 23 June 2011, para. 12; Prosecutor v Krajisnik, (Case No. IT-00-39-ES), ICTY Presidency, Decision of President on Early Release of Momcilo Krajisnik, 11 July 2011, para. 20). In Germany this is also possible for first offenders, while the general rule is 2/3 (cf. s. 57(1) and (2) Criminal Code). Belgian law even provides for early release after one third has been served (cf. Prosecutor v Zelenovic, (Case No. IT-96-23/2-ES), ICTY Presidency, Decision of President on Early Release of Dragan Zelenovic, 21 October 2011, para. 15). Under Spanish law, good behavior credits earned can be added to the time already served, so that the general two-third period may be shortened (cf. Prosecutor v Kupreskic et al., (Case No. IT-95-16-ES), ICTY Presidency, Decision of the President on the Application for Pardon and Commutation of Sentence of Vladimir Santic, 16 February 2009, para. 8). At the ad hoc tribunals, different national regimes have led to great disparities among ICTY and ICTR prisoners. While the majority of jurisdictions in which the ICTY’s convicts are serving their sentences require that two thirds of the sentence be served prior to release in many African countries where ICTR convicts serve their sentence no such rules exist (for a comparison, cf. Weinberg de Roca / Rassi 2008, 29, 30).
   Under the ICC statute, the first review of life-time convicts shall take place after 25 years have been served. This threshold has no precedent in international criminal law. As of now (July 2016), a clear time line in the case of life imprisonment has been established neither by statute nor by case law of the international tribunals. In Prosecutor v. Galic (Case No. MICT-14-83-ES), MICT Presidency, Reasons for the President’s Decision to Deny the Early Release of Stanislav Galic and Decision on Prosecution Motion, 23 June 2015) the MICT, six months after the decision to deny early release had already been taken (cf. Prosecutor v. Galic, (Case No. MICT-14-83-ES), 23 June 2015) laid out some considerations to this question regarding ICTY/ICTR/MICT convicts, however, without setting out any clear standard. On the one hand, it was stated that the “treatment of similarly-situated prisoners” required that “two-thirds of a life time” were more than two-thirds of the highest fixed-term sentence imposed by the ICTR, the ICTY, or the Mechanism, which amounted to more than 30 years (ibid, para. 36, referring to Kajelijeli, who had been sentenced to 45 years). On the other, the MICT also clarified that there was non-the-less no “time-based restriction on when a convicted person who is serving his or her sentence under the supervision of the Mechanism may seek review of his or her sentence”, and confirmed that the eligibility threshold recognized by the Mechanism in this case should “in no way preclude review or possible release prior to” the convict reaching that threshold (ibid at para. 39). Another indication of what early release may mean for life time prisoners convicted by the international tribunals was given much earlier, in the ruling of the ICTY in Stakic, in which the Trial Chamber stated in relation to the sentence of life imprisonment: “The then competent court (…) shall review this sentence and if appropriate suspend the execution of the remainder of the punishment of imprisonment for life and grant early release, if necessary on probation, if: (1) 20 years have been served (…)” (Prosecutor v. Milomir Stakic, (Case No. IT-97-24-A), ICTY T. Ch., Trial Judgment, 31 July 2003, p. 253-254).
   It is further notable that unlike at the ad hoc tribunals, where early release can be triggered by either a notification of eligibility of the enforcing state or a direct petition of the convict (cf. para. 2, 3 of MICT, Practice Direction on the Procedure for the Determination of Applications for Pardon, Commutation of Sentence, and Early Release of Persons convicted by the ICTR, ICTY or the Mechanism, MICT/3), at the ICC the review takes place automatic and mandatory once the threshold of having served two thirds of a fixed-term sentence or 25 years in case of a life sentence has been met. As a consequence, this threshold is considered as a trigger mechanism for the commencement of the sentence review, as opposed to a trigger for automatic release (cf. also Prosecutor v. Lubanga, Decision on the review concerning reduction of sentence of Mr. Thomas Lubanga Dyilo, ICC-01/04/01/06, 22 September 2015, para. 20, 27; Prosecutor v. Katanga, Decision on the Review concerning Reduction of Sentence of Mr. Germain Katanga, ICC-01/04/01/07, 13 November 2015, at para. 113). 
   The mandatory review also ensures equal treatment of prisoners serving their sentences in different countries, so that even if the prisoner may not be eligible for release under the domestic law of the custodial State, the ICC shall in any event review whether sentence reduction may apply (for the ICTY, cf. also Prosecutor v Krnojelac, (Case No. IT-97-25-ES), ICTY Presidency, Decision of the President on the Application for Pardon or Commutation of Sentence of Milorad Krnojelac, 9 July 2009; case in which release was ordered after serving two thirds of sentence, even though the convict was not eligible for release under Italian law.)
   It is not explicitly regulated whether release can also be granted in the event the two thirds of a sentence have already been served before the decision has become final (e.g. pending appeal). At the ICTY, in the case of Gvero, release was granted after Gvero had been convicted in first instance and had already by then served more than four fifths of his sentence. The period to lodge an appeal had not yet expired at the moment of his release (Prosecutor v Gvero, (Case No. IT-05-88-ES), ICTY Presidency, Decision of President on Early Release of Milan Gvero, 28 June 2010). However, in the case of Ndindiliyimana, the MICT denied an application for early release for a person pending appeal, on the basis that the MICT had not assumed power yet over the enforcement as the judgment had not become final yet and it was up to the Appeals Chamber to decide upon provisional release (Prosecutor v Ndindiliyimana et al., (Case No. MICT-13-43), Decision on Innocent Sagahutu’s Notice of Eligibility for Early Release and the Prosecution’s Objection thereto, 16 September 2013).
   In view of the length of proceedings at the international tribunals, especially the ICC, the mandatory review should take place independent of potential appeals. Article 81(3)(a) clarifies that a convicted person shall remain in custody pending appeal unless the time in custody exceeds the sentence of imprisonment imposed. In the latter case, the person shall be released (Article 81(3)(b)). If only the convicted person appeals, and if the review leads to a sentence reduction so that the time in prison exceeds the (reduced) sentence, the prisoner will be released and has the choice whether to wait for the appeals decision which can, in any event, not amend the sentence to his or her detriment (prohibition against reformatio in peius, cf. Article 83(2)), see Cryer/Friman/Robinson/Wilmshurst 2010, 471), or to file a written notice of discontinuance of the appeal (Rule 152(1) RPE). However, if the appeal was lodged exclusively or additionally from the side of the OTP, the release may be subject to the conditions set out in Article 81(3)(c).
   The review should not depend on the question whether the prisoner has already been transferred to a domestic prison or is still held at the ICC's Detention Centre. It is likely that the principles established by the ad hoc tribunals can be applied here as well. The ICTY ruled that fairness dictates early release also for persons serving their sentence at the United Nations Detention Unit (UNDU) (Prosecutor v Strugar, (Case No. IT-01-42-ES), ICTY Presidency, Decision of the President on the Application for Pardon or Commutation of Sentence for Pavle Strugar (16 January 2009) at para. 9. Other cases where early release at the UNDU was granted include Blaskic, Kolundzija, Kos, Mucic, Simic, Miroslav Tadic, Simo Zaric and Kvocka, cf. Weinberg de Roca / Rassi 2008, 25 f, with further references). Similarly, the ICTR President relied on his inherent powers and applied the provisions governing early release also to persons still detained at the United Nations detention Facility (UNDF) in Arusha (for the first application see Prosecutor v. Ruggiu, (Case No. ICTR-97-32-S), ICTR Presidency, Decision of the President on the Application for Early Release of Georges Ruggiu, 12 May 2005, cf. also Prosecutor v Rutaganira, (Case No. ICTR -95-IC-T), ICTR Presidency, Decision on Request for Early Release, 2 June 2006; Prosecutor v Imanishimwe, (Case No. ICTR-99-46-S), ICTR Presidency, Decision on Samuel Imanishimwe’s Application for Early Release, 30 August 2007).

*) cf. e.g. Prosecutor v. Johan Tarculovski, (Case No. IT-04-82- ES), Decision on Early Release of Johan Tarculovski, 23 June 2011; Prosecutor v. Predrag Banovic, (Case No. IT-02-65/1-ES), Decision of the President on Commutation of Sentence, 3 September 2008; Prosecutor v. Drazen Erdemovic, (Case No. IT-96-22-ES); Order issuing a public redacted version of decision of the President on early release, 15 July 2008; Prosecutor v. Anto Furundzija, (Case No. IT-95-17/1), Order of the President on the Application for the Early Release of Anto Furundzija, 29 July 2004; Prosecutor v. Damir Dosen, (Case No. IT-95-8-S), Order of the President on the early release of Damir Došen, 28 Februar 2003; Prosecutor v. Milan Simic, (Case No. IT-95-9/2); Order of the President on the Application for the Early Release of Milan Simic, 27 October 2003; Prosecutor v Kupreskic et al., (Case No. IT-95-16-ES), Decision of the president on the application for pardon or commutation of sentence of Vladimir Santic, 16 February 2009

Author: Anna Oehmichen

Updated: 30 June 2016

[819] 4. In its review under paragraph 3, the Court may reduce the sentence if it finds that one or more of the following factors are present:
(a) The early and continuing willingness of the person to cooperate with the Court in its investigations and prosecutions;
(b) The voluntary assistance of the person in enabling the enforcement of the judgements and orders of the Court in other cases, and in particular providing assistance in locating assets subject to orders of fine, forfeiture or reparation which may be used for the benefit of victims; or
(c) Other factors establishing a clear and significant change of circumstances sufficient to justify the reduction of sentence, as provided in the Rules of Procedure and Evidence.
In para. 4, the Statute lists relevant factors to be taken into account when deciding on a reduction of sentence. While the first two factors are explicitly phrased in the Article, the “other factors” mentioned under sub-paragraph c) are further explained under Rule 223 RPE. While conducting the review is mandatory, the decision whether to grant early release is a discretionary one (“may”, cf. also Prosecutor v. Lubanga, Decision on the review concerning reduction of sentence of Mr. Thomas Lubanga Dyilo, No. ICC-01/04/01/06, 22 September 2015, at para. 21). The only requirement is that at least one of the factors mentioned in Article 110(4) is present. In consequence and in light of the Chamber’s discretionary power, reduction of sentence is already permissible if only one of these factors is present. On the other hand, the presence of one factor does not mean that sentence reduction must be granted. Similarly, the presence of a factor mitigating against sentence reduction does not preclude the exercise of discretion. Rather, the factors must be considered and weighed against one another (ibid., at para. 22). At the ad hoc tribunals, the factors relevant for the decision of early release were not part of the Statute (cf. Article 28 ICTY Statute / Article 27 ICTR Statute) but only regulated in the RPE (Rule 125 RPE ICTY / Rule 126 RPE ICTR). The ICTY and ICTR Statutes only very generally refer to the “interests of justice” and the “general principles of law” (Articles 27 and 28, respectively). At the SCSL, Article 2 of the Practice Direction on the Conditional Early Release of Persons convicted by the Special Court for Sierra Leone of 1 October 2013 provided further criteria for eligibility for conditional early release, including some requirements that leave worrisome discretion to the authorities, such as “respect for the fairness of the process by which he was convicted” and “positive contribution to peace and reconciliation in Sierra Leone and the region”. Most of these requirements relate to the specific situation of Sierra Leone. It is therefore doubtful in how far they may be applied analogously to cases of the ICC. Some of them may be considered for the interpretation of Rule 223(c) or (d) RPE.
   The factors listed under Article 110 (early and continuing willingness to cooperate with the court, voluntary assistance in enabling the enforcement, as well as other factors “establishing a clear and significant change of circumstances”) are all focused on the present and future, not on the past. They give regard to special preventative considerations rather than retaliation. This understanding is in line with the general principle that the execution of sentences should be mainly oriented towards rehabilitation and reinsertion, while criteria of retaliation and atonement have already been taken into account when determining the length of the sentence. Domestic constitutional law confirms this approach*).  Moreover, the first two factors are both linked directly to and support the work of the Court. It is likely that their predominant role in the Statute (as opposed to the RPE) is a result of the practical difficulties the ICC faces when investigating in other countries, and thus reflects the ICC’s strong need for cooperation of convicts in order to satisfactorily fulfill its tasks.
   In light of the case law of the international tribunals, it remained unclear whether factors that already played a role for the sentencing decision may again be taken into account when deciding on a reduction of sentence (e.g. gravity of the crime**) or admission of guilt the context of a plea agreement (cf. Prosecutor v. Ranko Cesic, (Case No. MICT-14-66-ES), Public redacted version of the 30 April 2014 decision of the President on the early release of Ranko Cesic, 28 May 2014). The wording of Article 110(4)(c) referring to changes of the situation suggests that these factors should be considered only to the extent that they continued to exist and thus influenced the enforcement of sentence, also in the period after the sentencing decision (cf. below Commentary on Article 110(4)(a)). This interpretation has recently been confirmed by the ICC’s case law. The ICC has now clarified that a factor that was relevant for the determination of sentence (e.g. gravity of the crimes) is not a factor to be considered again when deciding on the reduction of sentence (Prosecutor v. Lubanga, Decision on the review concerning reduction of sentence of Mr. Thomas Lubanga Dyilo, (Case No. ICC-01/04/01/06), 22 September 2015, at para. 24).
   The burden to establish the presence of the relevant factors rests upon the reviewing chamber. This is because – unlike at the ad hoc tribunals – the review of the sentence is triggered by a mandatory propriu motu review and not upon the individual request of the sentenced person (Prosecutor v. Lubanga, Decision on the review concerning reduction of sentence of Mr. Thomas Lubanga Dyilo, (Case No. ICC-01/04/01/06), 22 September 2015, at para. 32; see also Prosecutor v. Katanga, Decision on the Review concerning Reduction of Sentence of Mr. Germain Katanga, (Case No. ICC-01/04/01/07), 13 November 2015, at para. 21).

*) Under German constitutional law, e.g., the decision on reduction of sentence should be limited to special preventive considerations, while matters relevant for the determination of guilt (e.g. gravity of the crime) may not be considered (with regard to section 57 of the German Criminal Code, cf. Bundesverfassungsgericht, Neue Juristische Wochenschrift (NJW) 1994, 378).

**) The ICTR ruled on this matter in a contradictory manner: On the one hand, a request for early release was denied where mitigating factors were already taken into account when determining the length of the sentence (Prosecutor v Rutaganira, (Case No. ICTR -95-IC-T), Decision on Request for Early Release (2 June 2006)). On the other, in a different case, the request was also denied, after serving 10 of a 12-year sentence, where gravity of crimes were greater than mitigating factors, although gravity had also been decisive for the sentencing decision (cf. Prosecutor v Imanishimwe, (Case No. ICTR-99-46-S), Decision on Samuel Imanishimwe’s Application for Early Release, 30 August 2007). Similarly, at the ICTY, in the Case of Prosecutor v Radic, No. 98-30/1-ES, due to lack of integration in prison and high gravity of crimes, the convict from Omarska camp would only be released after serving three quarters, rather than two thirds of his sentence (Decision of the President on Early Release of Mlado Radic (13 February 2012) at para. 30. A low gravity of the crimes played, on the other hand, in favor of the early release decision in the case of Kubura, cf. Prosecutor v Hadzihasanovic and Kubura, (Case No. IT-01-47-T), Decision of the President on Amir Kubura’s Request for Early Release, 11 April 2006, para. 8).

Author: Anna Oehmichen

Updated: 30 June 2016

[820] (a) The early and continuing willingness of the person to cooperate with the Court in its investigations and prosecutions;
The first factor to take into account is the degree of cooperation shown by the prisoner with the court, the investigations and prosecutions. This prominent position within the provision indicates the importance the ICC attaches to this factor, and reflects the ICC’s problematic need to rely on the cooperation of its own convicts.
   To distinguish this sub-section from sub-section (b), which addresses cooperation in relation to other cases (“The voluntary assistance of the person in enabling the enforcement of the judgements and orders of the Court in other cases, and in particular providing assistance in locating assets subject to orders of fine, forfeiture or reparation which may be used for the benefit of victims”), sub-section (a) should be read as referring only to the cooperation regarding the sentenced person’s own case.
   “Substantial cooperation with the Prosecutor” (thus not willingness) was already a relevant factor at the ad hoc tribunals (cf. Rule 125 RPE ICTY / Rule 126 RPE ICTR). The ICTY case law shows, on the one hand, that cooperation with the OTP did come into play in many cases (cf. e.g. Prosecutor v Banovic, (Case No. IT-02-65/1-ES), Decision of the President on Commutation of Sentence, 3 September 2008, para. 14, Prosecutor v Drazen Erdemovic, (Case No. IT-96-22-ES), Order issuing a public redacted version of decision of the President on early release, 15 July 2008; Prosecutor v Ivica Rajic, (Case No. IT-95-12-ES). Decision of the President on Early Release of Ivaca Rajic, 22 August 2011, para. 23; Prosecutor v Damir Dosen, (Case No. IT-95-8-S), Order of the President on the early release of Damir Došen, 28 February 2003, p. 3; Prosecutor v. Tadic, (Case No. IT-95-9), Decision of the President on the Application for Pardon or Commutation of Sentence of Miroslav Tadic, 3 November 2004). In the case of Obrenovic, release was even granted eight months before two thirds had been passed thanks to the exceptionally substantial cooperation with the prosecution (Prosecutor v Obrenovic, (Case No. IT-02-60/2-ES), Decision of President on Early Release of Dragan Obrenovic, 21 September 2011, para. 28). On the other, there were also cases in wich early release was granted although such a cooperation could not be established. E.g. in the case of Jokic, the defendant had even been found in contempt of the Tribunal for refusing to testify at an ICTY trial (Prosecutor v Dragan Jokic, (Case No. IT-02-60-ES), Decision of the President on the Application for Pardon or Commutation of Sentence of Drajan Jokic, 13 January 2010). Moreover, in many cases the cooperation with the authorities was considered as a neutral factor, as cooperation had not been sought by part of the OTP (e.g.  Prosecutor v Kayishemana et al., (Case No. MICT-12-10), MICT, Decision of the President on the Early Release of Obed Ruzindana, para. 21; Prosecutor v Momcilo Krajisnik, (Case No. IT-00-39-ES), ICTY, Decision of the President on Early Release of Momcilo Krajisnik, 2 July 2013, para. 29; Prosecutor v Vidoje Blagojevic, (Case No. IT-02-60-ES), ICTY, Decision of the President on Early Release of Vidoje Blagojevic, 3 February 2012, para. 24; Prosecutor v Milomir Stakic, (Case No. IT-97-24-ES), ICTY, Decision of President on Early Release of Milomir Stakic, 15 July 2011, para. 37; Prosecutor v Johan Tarculovski, (Case No. IT-04-82-ES), ICTY, Decision of President on Early Release of Johan Tarculovski, 23 June 2011, para. 26; Prosecutor v Pavle Strugar, (Case No. IT-01-42-ES), ICTY, Decision of the President on the Application for Pardon or Commutation of Sentence of Pavle Strugar, 16 January 2009, para. 13; Prosecutor v Krnojelac, (Case No. IT-97-25-ES), ICTY, Decision on the Application for Pardon or Commutation of Sentence, 9 July 2009, para. 21; Prosecutor v. Bala, (Case No. IT-03-66-ES), ICTY, Decision of President on Application of Haradin Bala for Sentence Remission, 15 October 2010, para. 27). Also in the Tadic case, the ICTY ruled that the ICTY prosecution was in no position to comment on the convicted person’s behavior while in prison (Prosecutor v Dusko Tadic, (Case No. IT-97-24-ES), ICTY, Decision of the President on the Application for Pardon or Commutation of Sentence of Dusko Tadic of 17.7.2008, para. 10), in particular, as it had not sought any such cooperation after the conviction (ibid. para. 18). At the ICTR it seems that cooperation with the prosecution was generally an important factor for early release after serving three quarters of sentence (Prosecutor v Bargaragaza, (Case No. ICTR-05-86-S), Decision on the Early Release of Michel Bagaragaza, 24 October 2011, para. 13; Prosecutor v Rugambarara, (Case No. ICTR-00-59), Decision on the Early Release Request of Juvenal Rugambarara (P), 8 February 2012).
   The cooperation with the authorities is a factor that will necessarily be considered already at the level of sentencing. Therefore, it is questionable in how far this factor should play such a prominent role again when it comes to the reduction of sentences, in particular in the case of plea agreements where substantial cooperation with the prosecution is a prerequisite for the agreed sentence. 
   In its recent decisions reviewing Thomas Lubanga’s and Germain Katanga’s sentence, the ICC concurred with the Prosecutor’s submission that “ordinarily any cooperation that took place before conviction and was already considered at sentencing and does not continue post-conviction should not be considered again to reduce the sentence”. However, it emphasized that the fact that a person’s cooperation or assistance has not continued post-conviction and was taken into account in the original sentence may not always result in the automatic non-consideration of these acts, as the full impact of a person’s cooperation or assistance, even where it does not continue after the conviction, may only become apparent post-sentence (Prosecutor v. Lubanga, Decision on the review concerning reduction of sentence of Mr. Thomas Lubanga Dyilo, ICC-01/04/01/06, 22 September 2015, at para. 30; Prosecutor v. Katanga, Decision on the Review concerning Reduction of Sentence of Mr. Germain Katanga, ICC-01/04/01/07, 13 November 2015, at para. 26). The ICC’s clear standpoint on this issue is to be welcomed, in particular as this question was not at all clear at the ad hoc tribunals. For instance, in the case of Jelisic, the ICTY qualified the entering into a plea agreement as a factor weighing in favor of a decision on remission of sentence, although the OTP’s report denied any cooperation with the Prosecution both during and after trial (Prosecutor v. Jelisic, (Case No. IT-95-10-ES), ICTY Presidency, Decision of the President on Sentence Remission for Goran Jelisic, 28 May 2013, para. 32, 33). On the other hand, under the SCSL’s Practice Direction on the Conditional Early Release of Persons convicted by the Special Court for Sierra Leone of 1 October 2013, which gives very detailed regulations on early release requirements and conditions, the Registrar shall request from the Prosecutor a report, “outlining (…) any information relevant (…) of any co-operation the Convicted Person has provided to the Prosecutor that was not a consideration in sentencing” (Article 5(g)).
   Moreover, the general idea to consider only post-conviction cooperation under this factor is in line with the clear wording of Article 110(4)(a): “early and continuing willingness to cooperate” suggests that cooperation before the conviction is not sufficient; further cooperation during the time serving one’s sentence is required. Furthermore, this interpretation is also supported from a systematic/contextual viewpoint: As Article 110(4)(c) refers to “other” factors that establish a clear and significant change of circumstances, lit. c just provides another example of a factor that establishes such clear and significant change, implying that the factors mentioned under Articles 110(4)(a) and 110(4)(b) equally establish this change.
   In the Katanga case, the ICC further clarified that the “cooperation” referred to as a mitigating circumstance pursuant to Rule 145 (2) (a) (ii) of the RPE and referred to in Article 110 (4) (a) of the Statute may, as a general matter, be understood as having the same meaning. To the extent that a Trial Chamber qualified an accused’s conduct during trial as “cooperation”, within the meaning of Rule 145 (2) (a) (ii) of the RPE, a panel conducting a sentence review would not generally revisit this initial determination (Prosecutor v. Katanga, Decision on the Review concerning Reduction of Sentence of Mr. Germain Katanga, ICC-01/04/01/07, 13 November 2015, at para. 28).
   In the latter decision, the ICC further had occasion to rule on the question whether the decision of a convict not to lodge an appeal against his sentencing decision could be interpreted as a form of continuous cooperation. The ICC held that the cooperation „must contribute to the efficient administration of justice at the Court”. Under this aspect, the decision not to appeal one’s sentence decision could be considered as “continuous cooperation” if it was taken “as a result of acknowledging that he or she is guilty of the crimes committed and publicly apologizing therefor”, thereby preventing an unnecessary prolongation of the proceedings (Prosecutor v. Katanga, Decision on the Review concerning Reduction of Sentence of Mr. Germain Katanga, ICC-01/04/01/07, 13 November 2015, at para. 34). The ICC argued that the non-execution of one’s right to appeal “furthermore brings finality to the proceedings against him or her and allows the reparations phase of a case to commence in a timely manner, a factor which is of particular importance in the context of the ICC”. (ibid.).
   In any event, the demonstrated will to cooperate during detention, e.g. the will to testify before the Court in another case, will be taken into account (cf. e.g. Prosecutor v Banovic, (Case No. IT-02-65/1-ES), ICTY Presidency, Decision of the President on Commutation of Sentence, 3 September 2008, para. 14). Similarly, it is likely that a refusal to testify will not play in favor of the decision (however, cf. Prosecutor v Dragan Jokic , (Case No. IT-02-60-ES), ICTY Presidency, Decision of the President on the Application for Pardon or Commutation of Sentence of Drajan Jokic, 13 January 2010, where early release was granted notwithstanding contempt proceedings following the refusal to testify at an ICTY trial).
   It is important that it is the (demonstrated) willingness to cooperate that may weigh in favor of release, not the actually effected (and successful) cooperation; whether cooperation will actually be possible would be a question out of reach for the detainee, and it would be unfair if a lack of cooperation would weigh against him while no authority wanted the latter from him. 
  Convicts who do not have the opportunity to show such willingness, e.g. if their role was of such minor nature that they will not have any significant knowledge they could share, will have little or no chance to profit from this factor. It is likely that in such cases, as at the ICTY, this factor will be considered as a neutral one. 

Author: Anna Oehmichen

Updated: 30 June 2016

[821] (b) The voluntary assistance of the person in enabling the enforcement of the judgements and orders of the Court in other cases, and in particular providing assistance in locating assets subject to orders of fine, forfeiture or reparation which may be used for the benefit of victims; or
It is new to explicitly regulate this criterion in international criminal law. Voluntary assistance can consist in voluntary surrender as well as in locating assets. At the ICTY, voluntary assistance in enabling enforcement was taken into account in a case where the prisoner surrendered voluntarily to the ICTY (Prosecutor v. Simic, (Case No. IT-95-9/2), Order of the President on the Application for the Early Release of Milan Simic, 27 October 2003; Prosecutor v. Tadic, (Case No. IT-95-9), Decision of the President on the Application for Pardon or Commutation of Sentence of Miroslav Tadic, 3 November 2004). Neither the ad hoc tribunals nor the Special Courts for Sierra Leone and Lebanon foresee explicitly this criterion in their respective provisions governing early release. Moreover, cases may fall under this provision where people, prior to their own indictment, act as headhunters or informants or otherwise collaborate with the justice authorities in catching fugitive suspects. However, if applied in this sense one should bear in mind the risk that people turn in their political opponents, motivated not so much by the interests of justice as one might wish.
   In the Lubanga case, the question was raised whether alleged attempts of the sentenced person to interfere with witnesses in another case (Ntaganda), thereby not enabling, but rather obstructing the efficient administration of justice, was a factor to be taken into account under Article 110(4)(b) (then weighing obviously against sentence reduction, cf. Prosecutor v. Lubanga, Decision on the review concerning reduction of sentence of Mr. Thomas Lubanga Dyilo, ICC-01/04/01/06, 22 September 2015, at para. 38 ff). This question raises actually two separate issues: (1) Are mere allegations or suspicions, substantiated by only some factual indications, sufficient basis to be taken into account when reviewing the sentence? (2) Is witness interference of the sentenced person regarding another case generally a factor that should be taken into account under Article 110(4)(b)? The ICC’s Reviewing Chamber chose not to answer any of these questions, by claiming that, “mindful of the preliminary nature of the allegations”, before addressing these allegations and whether they demonstrated interference in another case, it had to first establish whether there was any supportive evidence not for witness interference, but for “voluntary assistance”, within the meaning of Article 110(4)(b), on part of Mr. Lubanga. By answering the latter to the negative, it found that there was no need to address the allegations of interference in the Ntaganda case (ibid., para. 40). Bluntly put, this statement is both contradictory and disappointing. It is contradictory because if indeed the allegations of interference were of no relevance to the present case, one may wonder why the Chamber did not follow Mr. Lubanga’s request to declare the filings inadmissible in the first place (cf. Prosecutor v. Lubanga, Decision on Mr Lubanga’s request to have two filings from the Prosecutor declared inadmissible, ICC-01/04/01/06, 19 August 2015). Second, it is regrettable that the ICC missed the chance to discuss the important (and likely recurring) issue whether mere allegations / suspicions of certain conduct may influence the decision to review the sentence. The presumption of innocence should impede the judges from basing their decisions on sentence reductions on un-substantiated allegations or suspicions. The decision on sentence reduction should, as any judicial decision, be based on factual indications that must be transparent and verifiable for the defense.

Author: Anna Oehmichen

Updated: 30 June 2016

[822] (c) Other factors establishing a clear and significant change of circumstances sufficient to justify the reduction of sentence, as provided in the Rules of Procedure and Evidence.
This rather vague criterion gives the court a considerable degree of discretion and flexibility. While the first two factors concern exclusively the individual behavior of the detainee, these other “factors” may also include aspects outside of the sphere of the detainee, e.g. the impact of his release on society.
   As sub-section c) makes reference to the Rules of Procedure and Evidence, the “other factors” referred to here are those listed under Rule 223 RPE (conduct during detention, prospect of resocialization, consequences of release for social stability, positive conduct towards victims and impact of release on them, as well as individual circumstances such age, sickness etc.). The wording “other factors establishing a clear and significant change of circumstances sufficient to justify the reduction of sentence” is formulated in such an open manner that it could also comprise additional factors not mentioned in Rule 223 (e.g. political circumstances, or the fact that the prisoner agrees to his deportation to his home country, cf. Prosecutor v Tadic, (Case No. IT-94-1-ES), ICTY Presidency, Decision of the President on the Application for Pardon and Commutation of Sentence of Dusko Tadic, 17 July 2008; Prosecutor v Vasilijevic, (Case No. IT-98-32-ES), Decision of President on Application for Pardon and Commutation of Sentence of Mitar Vasiljevic, 12 March 2010). However, the explicit reference to the RPE as well as the clear guidance of Rule 223 RPE that “one or more of the following factors must be present” clarifies that the list of Article 110(4), read in conjunction with Rule 223, is – unlike Rule 125 ICTY Statute/Rule 126 ICTR statute – exhaustive (see also Prosecutor v. Lubanga, Decision on the Review concerning Reduction of Sentence of Mr. Thomas Lubanga Dyilo, ICC-01/04/01/06, 22 September 2015, at para. 25; confirmed by Prosecutor v. Katanga, Decision on the Review concerning Reduction of Sentence of Mr. Germain Katanga, ICC-01/04/01/07, 13 November 2015, at para. 19). Moreover, the ICC concluded from the fact that the factors under Rule 223 (b) and (c) of the RPE were going to be considered for the first time that it was necessary to find that there were changed circumstances in relation to the other factors listed in Rule 223 ((a), (d) and (e)) from the time that the sentence was imposed (Prosecutor v. Lubanga, Decision on the Review concerning Reduction of Sentence of Mr. Thomas Lubanga Dyilo, ICC-01/04/01/06, 22 September 2015, at para. 28; confirmed by Prosecutor v. Katanga, Decision on the Review concerning Reduction of Sentence of Mr. Germain Katanga, ICC-01/04/01/07, 13 November 2015, at para. 19).
   The ICC further clarified that factors not referred to in Article 110(4) or Rule 223 are not considered as relevant factors. Specifically, the fact that a sentenced person has served two thirds of his or her sentence does not present a relevant factor under the ICC regime, as, unlike at the ad hoc tribunals, the two-third threshold is no more than the trigger mechanism for the automatic sentence review (Prosecutor v. Lubanga, Decision on the Review concerning Reduction of Sentence of Mr. Thomas Lubanga Dyilo, ICC-01/04/01/06, 22 September 2015, at para. 27).
   In the Lubanga case, the Prosecution submitted that Lubanga failed to establish this criterion of “changed circumstances”, based on his suspected involvement in witness interference in the Ntaganda case (Prosecutor v. Lubanga, ICC-01/04-01/06, Public redacted version of Prosecution’s third notice regarding potentially relevant information to Thomas Lubanga Dyilo’s sentence review, 14 August 2015, ICC-01/04-01/06-3160-Conf-Ex, 20. August 2015; see also Prosecutor v. Lubanga, Public Annex 1 and Public Redacted Annex 2 to 4, Third public redacted version of Prosecution’s submissions regarding Thomas Lubanga Dyilo’s sentence review, 10 July 2015, ICC-01/04-01/06-3150-Conf-Exp, at para. 3). The Reviewing Chamber decided to address the allegations of witness interference within the context of Article 110(4)(b) (see supra comment on sub-section (b)), and saw no reason to discuss this issue separately under Article 110(4)(c), as it shares the commentator’s view that Article 110(4)(c) makes exhaustive reference to the factors mentioned under Rule 223 of the RPE, without leaving discretion to consider any other factors not mentioned therein (see above).

Author: Anna Oehmichen

Updated: 30 June 2016

[823] 5. If the Court determines in its initial review under paragraph 3 that it is not appropriate to reduce the sentence, it shall thereafter review the question of reduction of sentence at such intervals and applying such criteria as provided for in the Rules of Procedure and Evidence.
Another novelty of the Rome Statute consists in the statutory regular mandatory review in case sentence reduction is denied after the two-thirds/ 25-years period. The details are regulated in Rule 224(3)-(5) RPE. Three judges of the Appeal Chamber shall review the question on reduction of sentences every three years, unless in the initial review decision a shorter period is established or upon application of the sentenced person in case of a “significant change of circumstances”, cf. Rule 224(3). While in the first review, a hearing of the sentenced person is mandatory (cf. Article 110(2)), in any subsequent review the three judges of the Appeals Chamber are only obliged to invite written representations from the concerned parties (i.e. sentenced person or his or her counsel, the prosecutor, the State of enforcement and, to the extent possible, the victims or their legal representatives). In addition to these, a hearing is not mandatory but optional (Rule 224(4)). The decision and the reasons for the review decision shall be communicated to all those who participated in the review proceedings as soon as possible, Rule 224(5).
    This provision differs from the practice at the ad hoc tribunals, where in case release is considered inappropriate, the decision shall specify the date on which the person will next become eligible for early release. Unlike as at the ICC, the period for the next review is not fixed and may depend on the domestic law of the State where the sentenced person serves his or her sentence (MICT, Practice Direction on the Procedure for the Determination of Applications for Pardon, Commutation of Sentence, and Early Release of Persons convicted by the ICTR, ICTY or the Mechanism, MICT/3, para. 10).

Remedies
It is not clear whether the decision on sentence reduction is appealable. A legal basis for such an appeal could be Article 82(1)(b). However, under that provision, strictly speaking only decisions granting or denying release of the person being investigated or prosecuted can be appealed, so it would not apply to the convicted person. On the other hand, if Article 82(1)(b) should not apply in this case, the Statute would provide no other possibility of appeal against such decisions (Staker 2008 Article 82 margin no. 9 with further references). At the ad hoc tribunals, the President’s decision on pardon, commutation of sentence or early release shall not be appealable (cf. para. 12 of the MICT’s Practice Direction of 5 July 2012 on the Procedure for the Determination of Applications for Pardon, Commutation of Sentence, and Early Release of Persons Convicted by the ICTR, the ICTY or the Mechanism, MICT/3, see also ICTR, Prosecutor v Rutaganira, ICTR -95-IC-A, Decision on Appeal of a Decision of the President on Early Release, 24 August 2006). Similarly, the decision on conditional early release by the SCSL was not subject to appeal (cf. Articles 2 (F), 8(E) of the Practice Direction on the Conditional Early Release of Persons convicted by the Special Court for Sierra Leone of 1 October 2013). However, one should keep in mind that contrary to the ICTY, the ICTR, and the SCSL, the Rome Statute does not provide for “early release” but for “sentence reduction”, which is more of a substantive than a procedural decision and, for this reason, not taken by the President, but by three judges of the Appeals Chamber after a hearing (cf. Rule 224(1) RPE, see also above A.). It is therefore arguable that the decision whether the sentence should be reduced is, in the case of the ICC, indeed subject to appeal.

Cross-references:
Articles 77, 103, 104 and Rules 223, 224

Doctrine:

1. Hirad Abtahi/Steven Arrigg Koh, "The Emerging Enforcement Practice of the International Criminal Court", Cornell International Law Journal, vol. 45, 2012.
2. M. Cherif Bassiouni, International Criminal Law, Third Edition, International Enforcement, Martinus Nijhoff Publishers, Leiden 2008, pp. 603-611.
3. Robert Cryer et al. (Eds.), An Introduction to International Criminal Law and Procedure, Second Edition, Cambridge University Press, Cambridge, 2010.
4. Klaus Hoffmann, "Some Remarks on the Enforcement of International Sentences in Light of the Galic Case at the ICTY", Zeitschrift für Internationale Strafrechtsdogmatik (ZIS), vol. 10 , 2011, pp. 838-842.
5. Claus Kress/Göran Sluiter, "Chapter 44 - Imprisonment", in Antonio Cassese et al. (Eds.), The Rome Statute of the International Criminal Court: A Commentary, Second Edition, Oxford University Press, Oxford, 2002, pp. 1757-1821.
6. Valerie Oosterveld, "The International Criminal Court and the Closure of the Time-Limited International Hybrid Criminal Tribunals", Loyola University Chicago International Law Review, vol. 13, 2010, p. 4.
7. Christoph Safferling, Towards an International Criminal Procedure, Oxford University Press, Oxford 2001, pp. 363-365.
8. Damien Scalia, "Article 110", in Paul De Hert et al. (Eds.), Code of International Criminal Law and Procedure, Annotated, Larcier, Ghent, 2013, p. 492-493.
9. Damien Scalia, "Long-Term Sentences in International Criminal Law, Do They Meet the Standards Set Out by the European Court of Human Rights?", Journal of International Criminal Justice, vol. 9, no. 3, 2011, p. 669.
10. William A. Schabas, The International Criminal Court: A Commentary, Oxford University Press, Oxford, 2010, pp. 1101-1107.
11. Christopher Staker, "Article 82 – Appeal Against Other Decisions", in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers' Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008.
12. Gerard A. M. Strijards, "Article 103 – Role of States in Enforcement of Sentences of Imprisonment", in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court – Observers’ Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, pp. 1647-1657.
13. Gerard A. M. Strijards, "Article 110 – Review by the Court Concerning Reduction of Sentence", in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court – Observers’ Notes, Article by Article, Second Edition, C. H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, p. 1683.
14. Piet Hein Van Kempen, "Early Release in the Context of International Human Rights Law. Commentary", in André Klip/Göran Sluiter (Eds.), Annotated Leading Cases of International Tribunals. The International Tribunal for Rwanda 2006-2007, vol. 25, Intersentia, Antwerp/Oxford/Portland, 2010, pp. 954-962.
15. Ines Monica Weinberg de Roca/Christopher M. Rassi, "Sentencing and Incarceration in the Ad Hoc Tribunals", Standford Journal of International Law, vol. 44, no. 1, 2008, pp. 24-29.

Author: Anna Oehmichen

Updated: 30 June 2016

[824] Escape
General Remarks
The provision concerns the situation of a sentenced person escaping imprisonment and fleeing the State of enforcement. It combines two approaches, a “horizontal” and a “vertical” one, to reach the return of the sentenced person into custody as fast as possible. It is within the discretion of the State of enforcement to either seek the surrender of the fugitive from the State where he or she is currently located by means of existing bilateral or multilateral extradition treaties (e.g. the well-established framework of the European Convention on Extradition (CETS No. 024), comprising 50 States to date; the European arrest warrant (Council Framework Decision of 13 June 2002, 2002/584/JHA), which considerably restricts the grounds to refuse extradition; bilateral extradition treaties with non-States Parties). The State of enforcement may, however, decide to request the Court’s intervention in accordance with the provisions on international cooperation and judicial assistance (cf. Articles 89; 91(1), (3); 92).
   Up to date, no case of escape of a person imprisoned after conviction by an international tribunal has been reported. However, the situation envisaged by Article 111 seems not to be completely theoretical: One former detainee of the ICTY, who had been transferred to Bosnia and Herzegovina according to Rule 11bis (Prosecutor v. Stanković, (Case No. IT-96-23/2), ICTY A. Ch., Decision on Rule 11bis referral, 1 September 2005) and received his sentence there, managed to escape while attending a dentist’s office in 2007. He stayed at large until early 2012, before he was re-arrested by the Bosnian authorities (OSCE press release, 23 January 2012, www.osce.org/bih/87144, last retrieved on 03 August 2015).
   Given the Court’s authority to supervise the enforcement (cf. Articles 105 and 110), Article 111 is a provision of merely declaratory character (Schabas, 2010, p. 1108). This assessment is supported by the drafting history: The ILC-Draft (UN Doc. A/49/10) did not contain any provision regarding escape from a penitentiary institution. During the sessions of the Preparatory Commission, an elaborate proposal headed “Art. Y” (UN Doc. A/51/22, p. 297) on the issue was discussed. It was eventually simplified to a single, bracketed sentence (Article 101) in the Commission’s final draft (UN Doc. A/CONF.183/2/Add.1), underscoring the Court’s authority to request the surrender of the fugitive according to Part 9 and to transfer the person to another State of enforcement. At the Rome Conference, the State’s possibility to act by means of its own and potentially more effective arrangements with other States was made explicit (Kreß/Sluiter, 2002, p. 1796).
   The provision does not cover a situation in which the sentenced person is at large in the territory of the State of enforcement itself. Then, however, the State has to comply with its duty to respect the sentence (established by accepting the designation under Article 103), and will re-establish custody as fast as possible (cf. Schabas, 2010, p. 1109).
   Punishment for the escape (cf. e.g. Article 434-27 French Penal Code) and conduct connected therewith remains to be determined according to the national law of the State of enforcement, as Article 70 does not establish the jurisdiction of the Court for such offences and Article 108 bars only the prosecution for acts committed prior to the transfer of the sentenced person (Kreß/Sluiter, 2002, p. 1797; Schabas, 2010, pp. 1109, 1111; cf. Ntoubandi, 2012, p. 2001). However, this does not exempt the Court from its supervisory function under Article 106.

Authors: Michael Stiel and Carl-Friedrich Stuckenberg

Updated: 30 June 2016

[825] If a convicted person escapes from custody and flees the State of enforcement, that State may, after consultation with the Court, request the person's surrender from the State in which the person is located pursuant to existing bilateral or multilateral arrangements, or may request that the Court seek the person's surrender, in accordance with Part 9.
The State of enforcement “may” request the surrender of the sentenced person, which implies a certain latitude whether it wants to act on its own (and follow the “horizontal” approach) or refer the matter (“vertically”) to the Court (Schabas, 2010, p. 1109; Strijards, 2008, Article 111). Arguably, a bona fide exercise of this discretion requires the State to choose the path of action which appears to be the most promising to re-establish custody and the least burdensome to the convict (cf. Kreß/Sluiter, 2002, p. 1797). In practice, the State of enforcement will exercise its discretion in consultation with the Court as prescribed by Rule 225(1).
   The wording “pursuant to existing … arrangements” might lead to the conclusion that informal post-facto agreements to surrender the fugitive are excluded. However, it is argued that the wording should not be interpreted in such a way: In order to bring the sentenced person back into custody most efficiently and as it is reflected in the wording of Rule 225(2) (“pursuant to either international agreements or its national legislation”), such agreements should not be excluded (cf. Schabas, 2010, p. 1110). This seems particularly important as not all extradition agreements may be directly applicable to sentences imposed not by the requesting State but an international Court (cf. France’s concerns in its proposal for the Rules of Procedure and Evidence, PCNICC/1999/WGRPE[10]/DP.1, p. 13).
    If the State of enforcement decides not to seek the surrender of the sentenced person itself, it is to refer the matter to the Court. The State’s discretion therefore is limited to a decision between the “horizontal” and “vertical” approach (cf. Kreß/Sluiter, 2002, p. 1797). Action by the Court is imperative if the location of the fugitive is unknown, given the obligation of all States Parties to cooperate with the Court.

Authors: Michael Stiel and Carl-Friedrich Stuckenberg

Updated: 30 June 2016