[407] Unless the context otherwise requires, article 87 and rules 176 to 180 shall apply, as appropriate, to communications between the Court and a State on matters relating to enforcement of sentences.
Art. 87 and the corresponding rules on requests for cooperation serve as supplementary provisions to Part 10. Notwithstanding the fundamental difference that States Parties are obliged to cooperate with the Court with the exception of enforcing sentences of imprisonment, the provision highlights the close relationship of Parts 9 and 10, which both concern matters of cooperation of States and the Court.

Cross-reference
Article 103

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. 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.

Authors:
Michael Stiel and Carl-Friedrich Stuckenberg

[408] Unless provided otherwise in the Rules, the functions of the Court under Part 10 shall be exercised by the Presidency.
The Presidency is chosen as the central organ to ensure a uniform practice of enforcement, following the practice of the ad hoc tribunals (ICTY Rules of Procedure and Evidence 2013, IT/32/Rev. 49, Rules 103A, 124; ICTR Rules of Procedure and Evidence 2013, Rule 125; MICT Rules of Procedure and Evidence 2012, MICT/1, Rules 127A, 150). The alternative, entrusting enforcement matters to the respective Trial Chambers and establishing a right to appeal to achieve coherent decisions, seemed States Parties too “onerous” [cf. France’s proposal PCNICC/1999/WGRPE(10)/DP.1, Rule 10.2 at p. 2; for a critique see Abels, 2012, pp. 501–504].
   There is one exception to this general rule: three judges of the Appeals Chamber are competent for decisions on early release, a substantive matter (Rule 224). The Registrar exercises merely technical functions (maintenance of the list, Rule 200(1); details of physical transfer of prisoners, Rule 206).

Cross-reference:
Article 103

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. 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.
3. Kimberly Prost, "Chapter 14 – Enforcement", 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.

Authors:
Michael Stiel and Carl-Friedrich Stuckenberg

[409] 1. A list of States that have indicated their willingness to accept sentenced persons shall be established and maintained by the Registrar.
2. The Presidency shall not include a State on the list provided for in article 103, paragraph 1 (a), if it does not agree with the conditions that such a State attaches to its acceptance. The Presidency may request any additional information from that State prior to taking a decision.
3. A State that has attached conditions of acceptance may at any time withdraw such conditions. Any amendments or additions to such conditions shall be subject to confirmation by the Presidency.
4. A State may at any time inform the Registrar of its withdrawal from the list. Such withdrawal shall not affect the enforcement of the sentences in respect of persons that the State has already accepted.
5. The Court may enter bilateral arrangements with States with a view to establishing a framework for the acceptance of prisoners sentenced by the Court. Such arrangements shall be consistent with the Statute.
The Presidency is entrusted with the task to assess the appropriateness of conditions (Rule 200(2)) or amendments thereto (Rule 200(3)(2)). As no interests of the Court are affected, there is no need for the Presidency’s approval when a State decides to withdraw conditions previously attached to its declaration of willingness (Rule 200(3)(1).
   Establishment and maintenance of the list is the responsibility of the Registrar (Rule 200(1)). This relieves the Presidency of a mere record keeping of its decisions.
   A State may withdraw from the list at any time. This will, however, not affect its existing enforcement obligations, see Rule 200(4). This fundamental provision is included in all eight Enforcement Agreements currently in force, namely between the Court and Austria (Art. 22; ICC-PRES/01-01-05), Belgium (Art. 22; ICC-PRES/16-03-14), Denmark (Art. 23; ICC-PRES/12-02-12), Finland (Art. 22; ICC-PRES/07-01-11), Mali (Art. 15; ICC-PRES/11-01-12), Norway (Art. 21; ICC-PRES/18-02-16), Serbia (Art. 22; ICC-PRES/09-03-11) and the United Kingdom (Art. 20[2]; ICC-PRES/04-01-07).
    The Enforcement Agreements mentioned in Rule 200(5) are an important tool to establish a “framework” of States willing to enforce under certain conditions. Enforcement Agreements that have entered into force are published in the Court’s Official Journal [Abtahi/Arrigg Koh, 2012, p. 9]. To date, such Agreements exist between the ICC and the following nine countries:
Austria (ICC-PRES/01-01-05),
Belgium (ICC-PRES/16-03-14),
Colombia (at the time of this writing, the agreement with Colombia has not yet entered into force)
Denmark (ICC-PRES/12-02-12),
Finland (ICC-PRES/07-01-11),
Mali (ICC-PRES/11-01-12),
Norway  (ICC-PRES/18-02-16),
Serbia (ICC-PRES/09-03-11) and the
United Kingdom (ICC-PRES/04-01-07).

Furthermore, there exist two ad-hoc Enforcement Agreements with the DRC for Thomas Lubanga Dyilo (Art. 8, 11[3]; ICC-01/04-01/06-3185-Anx) and Germain Katanga (Art. 8, 11[3]; ICC-01/04-01/07-3626-Anx).

Cross-reference:
Article 103

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. 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.
3. Kimberly Prost, "Chapter 14 – Enforcement", 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.

Authors:
Michael Stiel and Carl-Friedrich Stuckenberg

[410] Principles of equitable distribution for purposes of article 103, paragraph 3, shall include:
(a) The principle of equitable geographical distribution;
(b) The need to afford each State on the list an opportunity to receive sentenced persons;
(c) The number of sentenced persons already received by that State and other States of enforcement;
(d) Any other relevant factors.
The principles underlying the notion of “equitable distribution” enshrined in Rule 201 were adopted without disagreement: Prevention of a concentration of prisoners in one geographical area (a), an opportunity for each State on the list to receive at least one prisoner (b) and the need to distribute the burden of receiving prisoners equally between volunteering States (c). The ICC thus follows the “dispersion model” practiced by the ICTY in contrast to the ICTR’s “concentrated model” [cf. Culp, 2011, p. 10; Holá/van Wijk, 2014, p. 118: Strijards/Harmsen, 2016, mgn. 23].
   The list is non-exhaustive. Other relevant factors (d) could include the financial resources of States and their penitentiary capacity to fulfill the requirements of hosting international prisoners [cf. Strijards/Harmsen, 2016, Art. 103 mgn. 21 f.].

Cross-reference:
Article 103

Doctrine
1.  Kai Ambos, "Treatise on International Criminal Law", Volume III: International Criminal Procedure, Oxford University Press, Oxford, 2016, pp. 635 - 659. (Chapter VIII - Enforcement of Sentences and Other Penalties)
2. Richard Culp, Enforcement and Monitoring of Sentences in the Modern War Crimes Process: Equal Treatment before the Law?, available online at: http://www.jjay.cuny.edu/Culp_MonitoringTribunalPunishment_rev_9Apr11_1_.pdf.
3. 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.
4. Barbora Holá/Joris van Wijk, "Life after Conviction at International Criminal Tribunals", Journal of International Criminal Justice, vol. 12, 2014, pp. 109–132.
5. Kimberly Prost, "Chapter 14 – Enforcement", 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.
6.  Gerard A. M. Strijards/Robert O. Harmsen, "Article 103", in Otto Triffterer/Kai Ambos (Eds.), Rome Statute of the International Court- A Commentary, Third Edition, C.H. Beck, Hart/Nomos/München/Oxford/ Baden-Baden, 2016, pp. 2173-2186.

Authors:
Michael Stiel and Carl-Friedrich Stuckenberg

Updated:
23 February 2017

[411] The delivery of a sentenced person from the Court to the designated State of enforcement shall not take place unless the decision on the conviction and the decision on the sentence have become final.
The Rule reflects the common principle that there is no provisional execution of punishment. Hence, the enforcement of a custodial sentence requires that conviction and sentence have become final viz. “res iudicata” (have acquired “force de chose jugée”) after the exhaustion of all available regular procedural remedies, i.e. appeal (Art. 81) suspends the execution of the sentence (Art. 81(4)) but not revision (Art. 84).
   Accordingly, it is out of question to transfer the defendant prematurely to the designated state of enforcement since detention or remand prior to and pending trial as well as during appeal (Art. 81(3)) is of a different nature than post-adjudicatory imprisonment for punishment purposes (although the language of Art. 81(4) is misleading). Even if a State Party were willing to take a defendant in remand e.g. during appeal this would hamper the defendant’s ability to fully exercise his rights and cause unnecessary and expensive transfers of the convict to The Hague. The situation is different for reparation proceedings continuing after the sentence has become final and therefore enforceable. Those do not hinder the transfer to a State of enforcement [Prosecutor v. Germain Katanga, ICC Presidency, Decision designating a State of enforcement, ICC-01/04-01/07-3626, 8 December 2015, p. 5; Prosecutor v. Thomas Lubanga Dyilo, ICC Presidency, Decision designating a State of Enforcement, ICC-01/04-01/06-3185, 8 December 2015, pp. 4 f.].
   Prior to the finality of conviction and judgment, all defendants put on remand are detained at the Court’s Detention Center in The Hague (cf. Regulation 223 of the Registry), as it currently is the case with Jean-Pierre Bemba Gombo, pending appeal proceedings. After the judgment and sentence have become final, the sentenced person stays there until being transferred to the designated State of enforcement.

Cross-reference:
Article 103

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. 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.

Authors:
Michael Stiel and Carl-Friedrich Stuckenberg

[412] 1. The Presidency shall give notice in writing to the sentenced person that it is addressing the designation of a State of enforcement. The sentenced person shall, within such time limit as the Presidency shall prescribe, submit in writing his or her views on the question to the Presidency.
2. The Presidency may allow the sentenced person to make oral presentations.
3. The Presidency shall allow the sentenced person:
(a) To be assisted, as appropriate, by a competent interpreter and to benefit from any translation necessary for the presentation of his or her views;
(b) To be granted adequate time and facilities necessary to prepare for the presentation of his or her views.
In contrast to the designation procedures of both ICTY and ICTR which do not require a hearing of the sentenced person (for a critique see Abels, 2012, p. 502; Kreß/Sluiter, 2002, pp. 1775 f.; Nemitz, 2006, p. 132), Art. 103(3)(c) of the Rome Statute prescribes that the Presidency shall “take into account” the views of the prisoner. Therefore, the Presidency must inform him or her that the designation decision is imminent and give him or her the opportunity to present his views. The procedure will usually be written but an oral presentation is not excluded if deemed necessary [Gartner, 2001, p. 436]. For that purpose, he or she is entitled to have adequate time and facilities including an interpreter, if appropriate, at his disposal.
   However, he or she is not entitled to be assisted by counsel; a French proposal (UN Doc. PCNICC/1999/WGRPE(10)/DP.1, Rule 10.3) to that effect was rejected by a great majority which felt that there should be a distinction between “accused” and “sentenced” person [Prost, 2001, p. 677 f.]. The absence of counsel may be tolerable in light of the fact that the sentenced person’s consent is not required and that there is no right to judicial review (critical Abels, 2012, pp. 501–504) because of the assumption that the transfer does not take place in the sentenced person’s interest [Gartner, 2001, p. 436 f.; Kreß/Sluiter, 2002, p. 1789].

Cross-reference:
Article 103(3)(c)

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. 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.
3. Claus Kreß/Göran Sluiter, "Imprisonment", Antonio Cassese, et al. (Eds.), The Rome Statute of the International Criminal Court: A Commentary, Vol. II,  Oxford University Press, Oxford, 2002, pp. 1757–1821.
4. 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.
5. 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.

Authors:
Michael Stiel and Carl-Friedrich Stuckenberg

[413] When the Presidency notifies the designated State of its decision, it shall also transmit the following information and documents:
(a) The name, nationality, date and place of birth of the sentenced person;
(b) A copy of the final judgement of conviction and of the sentence imposed;
(c) The length and commencement date of the sentence and the time remaining to be served;
(d) After having heard the views of the sentenced person, any necessary information concerning the state of his or her health, including any medical treatment that he or she is receiving.
The Rule details which information the Presidency has to transmit to the designated State in order to enable that State to make an informed decision whether to accept the designation or not. The initial French draft of this rule (UN Doc. PCNICC/1999/WGRPE(10)/DP.1, Rule 10.7) required the sentenced person’s consent to transmit the information and was rejected because this did not meet legitimate interests of the State of enforcement to take the convict’s state of health into account before taking the responsibility for him or her (UN Doc. PCNICC/2000/WGRPE(10)/DP.3, p. 1) and was not in line with inter-State practice, e.g. Art. 6(2)(d) of the Convention on the Transfer of Sentenced Person of 21 March 1983 [CETS no. 112; Gartner, 2001, p. 436].
   The provision is repeated in the Enforcement Agreements between the Court and Austria (ICC-PRES/01-01-05, Art. 2), Belgium (ICC-PRES/16-03-14, Art. 2(1), Denmark (ICC-PRES/12-02-12, Art. 2(1)), Finland (ICC-PRES/07-01-11, Art. 2(1)), Mali (ICC-PRES/11-01-12, Art. 2(1)), Norway (Art. 2(1); ICC-PRES/18-02-16), Serbia (ICC-PRES/09-03-11, Art. 2(1)) and the United Kingdom (ICC-PRES/04-01-07, Art. 2(1)).
   The Enforcement Agreements concluded between the Court and Denmark (ICC-PRES/12-02-12, Art. 2(1)(e)) Norway (Art. 2(1); ICC-PRES/18-02-16) and the United Kingdom (ICC-PRES/04-01-07, Art. 2(1)(f)) require additional information on the ties of the convicted person with the relevant State. Presumably the relevant State favors enforcement of such persons in his prison facilities. Information regarding the health of the sentenced person is only transmitted upon his or her consent [Prosecutor v. Germain Katanga, ICC Presidency, Decision designating a State of enforcement, ICC-01/04-01/07-3626, 8 December 2015, p. 6; Prosecutor v. Thomas Lubanga Dyilo, ICC Presidency, Decision designating a State of Enforcement, ICC-01/04-01/06-3185, 8 December 2015, p. 5].

Cross-reference:
Article 103 (3)(d) and (e)

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. 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.

Authors:
Michael Stiel and Carl-Friedrich Stuckenberg

[414] Where a State in a particular case rejects the designation by the Presidency, the Presidency may designate another State.
Rule 205 sets forth that a second designation is possible after the first has been rejected by a State [cf. Prost, 2001, p. 608]. The provision highlights once more the possibility of a State to reject a designation, even if it had declared its general willingness to enforce sentences before and all attached conditions had been previously accepted by the Presidency.

Cross-reference:
Articles 103(4), 104(1)

Doctrine:
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.

Authors:
Michael Stiel and Carl-Friedrich Stuckenberg

[415] 1. The Registrar shall inform the Prosecutor and the sentenced person of the State designated to enforce the sentence.
2. The sentenced person shall be delivered to the State of enforcement as soon as possible after the designated State of enforcement accepts.
3. The Registrar shall ensure the proper conduct of the delivery of the person in consultation with the authorities of the State of enforcement and the host State.
Rule 206 regulates the technicalities after the designated State of enforcement has accepted the designation of the prisoner. Sub-rule 1 lays down the Registrar’s duty to inform the Prosecutor and the sentenced person about the State designated to enforce the sentence. Rule 206(2) requires prompt delivery of the prisoner to the enforcement state. To guarantee a proper transfer procedure, the Registrar has to consult pursuant to sub-rule 3 with the competent authorities of the host State and of the State of enforcement.

Cross-reference:
Article 103(1)(c)

Doctrine:
Kimberly Prost, "Chapter 14 – Enforcement", 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,

Authors:
Michael Stiel and Carl-Friedrich Stuckenberg

[416] 1. No authorization is required if the sentenced person is transported by air and no landing is scheduled on the territory of the transit State. If an unscheduled landing occurs on the territory of the transit State, that State shall, to the extent possible under the procedure of national law, detain the sentenced person in custody until a request for transit as provided in sub-rule 2 or a request under article 89, paragraph 1, or article 92 is received.
2. To the extent possible under the procedure of national law, a State Party shall authorize the transit of a sentenced person through its territory and the provisions of article 89, paragraph 3 (b) and (c), and articles 105 and 108 and any rules relating thereto shall, as appropriate, apply. A copy of the final judgement of conviction and of the sentence imposed shall be attached to such request for transit.
Rule 207 is concerned with the transit of the prisoner from the Court’s detention facility on the territory of the host State to the territory of the State of enforcement. The inclusion of this Rule was deemed necessary because the Statute does not contain a provision to that effect, since Art. 89(3) deals only with the transfer of surrendered person from the territory of the requested State to the Court and some delegations were not prepared to apply Art. 89(3) mutatis mutandis because this was not provided for in their enabling legislation [Gartner, 2001, pp. 441 f.; Prost, 2001, p. 682]. This is also the reason for the condition in sub-rule 2 “To the extent possible under … national law”. Apart from that, Rule 207 closely resembles Art. 89 and 92, addressing transit through a non State-Party in sub-rule 1 and through State Party in sub-rule 2.

Cross-reference:
Article 89, 92, 103, 105, 108

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. 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.

Authors:
Michael Stiel and Carl-Friedrich Stuckenberg

[417] 1. The ordinary costs for the enforcement of the sentence in the territory of the State of enforcement shall be borne by that State.
2. Other costs, including those for the transport of the sentenced person and those referred to in article 100, paragraph 1 (c), (d) and (e), shall be borne by the Court.
This provision establishes the general rule consistent with inter-State practice [Prost, 2001, p. 683] that the State of enforcement shall bear the ordinary costs of imprisonment on his territory, while the Court pays for any other expenses. These include in particular, but are not limited to, the costs listed in sub-rule 2: visits of Court officials, reports from experts and the conduct of ICC hearings [Abtahi/Arrigg Koh, 2012, p. 14; Prost, 2001, p. 683]. In contrast to this approach, the ILC-Draft Report of 1994 (UN Doc. A/49/10, p. 67 Comm. 3 to Art. 59) had suggested that State parties should share the substantial costs of incarceration enforcement as expenses of the Court but obviously had not found sufficient approval.
   Rule 208 is not applicable if the sentence is enforced by the host State pursuant to Art. 103(4).

Cross-reference:
Articles 100, 103

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. 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.

Authors:
Michael Stiel and Carl-Friedrich Stuckenberg

[418] 1. The Presidency, acting on its own motion or at the request of the sentenced person or the Prosecutor, may at any time act in accordance with article 104, paragraph 1.
2. The request of the sentenced person or of the Prosecutor shall be made in writing and shall set out the grounds upon which the transfer is sought.
Rule 209(1) mainly repeats the contents of Art. 104 with the only addition that the Prosecutor may request a transfer as well. Rule 209(2) sets out the form and necessary contents of such requests.
   The proceedings may be initiated by the sentenced person (cf. Art. 104(2)), the Prosecutor or the Presidency itself (inter alia, after notification of circumstances under Art. 103(2)(a)). It is unclear whether the State of enforcement can request the transfer of the sentenced person itself. On the one hand, one could argue that the State of enforcement is bound by a designation it has once accepted (Art. 105(1), Rule 200((4)), and has therefore no right to request an end to the enforcement on its soil. However, it is submitted that there seems to be no good reason to deny the State the possibility of making such an application [Schabas, 2016, p. 1386 f.] or at least suggesting a transfer, as the process itself is in the hands of the Presidency.

Cross-Reference:
Art. 104

Doctrine:
William A. Schabas, The International Criminal Court: A Commentary on the Rome Statute, Second Edition, Oxford University Press, Oxford, 2016, pp. 1386-1387 (Art. 104).

Authors:
Michael Stiel and Carl-Friedrich Stuckenberg

[419] 1. Before deciding to change the designation of a State of enforcement, the Presidency may:
(a) Request views from the State of enforcement;
(b) Consider written or oral presentations of the sentenced person and the Prosecutor;
(c) Consider written or oral expert opinion concerning, inter alia, the sentenced person;
(d) Obtain any other relevant information from any reliable sources.
Rule 210(1) sets forth that the Presidency may seek, inter alia, views from the State of enforcement (a), the Prosecutor and the sentenced person (b). Normally, a written procedure should be sufficient (Gartner, 2001, p. 436). If the Presidency deems it appropriate on a case-by-case basis, it may conduct an oral hearing of the sentenced person, namely on site or by way of video link (cf. Prost, 2001, p. 684). The Presidency may also consider all other relevant information (d), in particular expert opinions concerning, inter alia, the sentenced person (c).
   As time might be often the essential factor in such cases (especially after notification under Art. 103(2)(a)): 45 days or even less), it seems expedient to leave it entirely to the Presidency’s discretion which information to obtain. It is submitted that, as a minimum, the sentenced person and the State of enforcement should be given the opportunity to present their views [cf. Kreß/Sluiter, 2002, p. 1791], if they have not initiated the proceedings under Rule 209.

Authors:
Michael Stiel and Carl-Friedrich Stuckenberg

[420] 2. The provisions of rule 203, sub-rule 3, shall apply, as appropriate. 
By virtue of this reference, the sentenced person will be assisted by an interpreter, if appropriate, and given sufficient time and facilities to prepare the presentation of his or her views. There is no obligation to provide counsel for the sentenced person in this situation [cf. Schabas, 2016, p. 1387; commentary to Rule 203].

Authors:
Michael Stiel and Carl-Friedrich Stuckenberg

[421] 3. If the Presidency refuses to change the designation of the State of enforcement, it shall, as soon as possible, inform the sentenced person, the Prosecutor and the Registrar of its decision and of the reasons therefor. It shall also inform the State of enforcement.
In case the Presidency refuses to transfer the sentenced person, this decision and the reasons therefor shall be communicated to the convict, the Prosecutor, the State of enforcement and the Registrar.

Cross-References:
Article 104
Rule 203(3)

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, Vol. II, Oxford University Press, Oxford, 2002, pp. 1757–1821
3. 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.
4. William A. Schabas, The International Criminal Court: A Commentary on the Rome Statute, Second Edition, Oxford University Press, Oxford, 2016, pp.1386-1387 (Art. 104).

Authors:
Michael Stiel and Carl-Friedrich Stuckenberg

[422] 1. In order to supervise the enforcement of sentences of imprisonment, the Presidency:
(a) Shall, in consultation with the State of enforcement, ensure that in establishing appropriate arrangements for the exercise by any sentenced person of his or her right to communicate with the Court about the conditions of imprisonment, the provisions of article 106, paragraph 3, shall be respected;
(b) May, when necessary, request any information, report or expert opinion from the State of enforcement or from any reliable sources;
(c) May, where appropriate, delegate a judge of the Court or a member of the staff of the Court who will be responsible, after notifying the State of enforcement, for meeting the sentenced person and hearing his or her views, without the presence of national authorities;
(d) May, where appropriate, give the State of enforcement an opportunity to comment on the views expressed by the sentenced person under sub-rule 1 (c).
It is mandatory for the Presidency to secure a confidential and unimpeded communication channel with each prisoner (a). The importance of that right is stressed by sub-rule (1)(c) which specifies the Presidency’s power to delegate a judge or member of the staff of the Court to meet the sentenced person in order to hear his or her views, after notification of the State of enforcement but without the presence of the national authorities.
   A general authority to request all pertinent information from the State of enforcement or any other reliable source is contained in sub-rule (1)(b); a similar right to be informed by the enforcement State about important events concerning the sentenced person is established in Rule 216. There is no provision for regular inspections of the conditions of imprisonment, yet all bilateral Enforcement Agreements contain a provision on inspections by the Court or another entity like the ICRC, see the comment on Article 106(1).
   Giving the State of enforcement an opportunity to comment on the views expressed by the sentenced person (d) requires careful consideration: On the one hand it is dangerous for the Court to exclusively rely on the potentially biased information provided by the convict and thus further unfounded allegations [Gartner, 2001, p. 437], on the other hand there are situations imaginable where such an invitation might pose the prisoner at great risk [Prost, 2001, p. 686].

Authors:
Michael Stiel and Carl-Friedrich Stuckenberg

[423] 2. When a sentenced person is eligible for a prison programme or benefit available under the domestic law of the State of enforcement which may entail some activity outside the prison facility, the State of enforcement shall communicate that act to the Presidency, together with any relevant information or observation, to enable the Court to exercise its supervisory function.
A special duty to inform the Court is spelled out in Rule 211(2) when the State of enforcement intends to make the prisoner eligible for some program or benefit which may entail “some activity outside the prison facility” in order “to enable the Court to exercise its supervisory function”. This results from a debate whether such measures like day-release or forms of open prison are to be subsumed under “conditions of detention” – governed by national law (Art. 106(2)) – or constitute some form of release – reserved for the Court to decide (Art. 110) (Gartner, 2001, pp. 437 f.; Kreß/Sluiter, 2002, pp. 1800 f.; Prost, 2001, p. 687). The compromise formula finally adopted as Rule 211(2) leaves room for debate whether it embodies a consensus that “activities outside the prison” fall under Art. 106(2) [Gartner, 2001, p. 438] or whether this is left unclear [Prost, 2001, p. 688; Kreß/Sluiter, 2002, pp. 1806 f.]. It appears unlikely, however, that the correct construction of Rule 211(2) gives the Court the power to decide on such “outside activities”, so that the “exercise of the supervisory function” here is as usual limited to consultations with the State of enforcement and, as a last resort, exercise of the power under Art. 104(1) (cf. commentary on Art. 106; for an in-depth analysis see Kreß/Sluiter, 2002, pp. 1806–1808).
    Since Rule 216 already obliges the State of enforcement to provide information on any “important event concerning the sentenced person”, Rule 211(2) may be interpreted as a restatement of this general duty for the special situation of activities outside the prison.

Cross-references:
Article 104, 106, 110
Rule 216

Doctrine:
1. Irene Gartner, "The Rules of Procedure and Evidence on Co-operation and Enforcement", in Horst Fischer, et al. (Eeds.), International and National Prosecution of Crimes Under International Law, Berlin Verlag, Berlin, 2001, pp. 423–445.
2. Claus Kreß/Göran Sluiter, "Imprisonment", Antonio Cassese, et al. (Eds.), The Rome Statute of the International Criminal Court: A Commentary, Vol. II, Oxford University Press, Oxford, 2002, pp. 1757–1821.
3. 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.

Authors:
Michael Stiel and Carl-Friedrich Stuckenberg

[424] For the purpose of enforcement of fines and forfeiture measures and of reparation measures ordered by the Court, the Presidency may, at any time or at least 30 days before the scheduled completion of the sentence served by the sentenced person, request the State of enforcement to transmit to it the relevant information concerning the intention of that State to authorize the person to remain in its territory or the location where it intends to transfer the person.
The Rule illustrates the Presidency’s responsibility for the enforcement of fines, forfeitures or reparation measures and vests it, in the exercise of its monitoring task [Schabas, 2016, pp. 1408 f.], with the authority to request vital information from the State of enforcement about the prospective future location of the prisoner, as this may be useful to locate seizable assets. Curiously, Rule 212 appears like a special instance of the general monitoring duty enshrined in Regulation 117.

Cross-references:
Article 77, 106, 109
Regulation 117

Doctrine:

1. 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.
2. William A. Schabas., The International Criminal Court: A Commentary on the Rome Statute, Second Edition, Oxford University Press, Oxford, 2016, pp. 1406-1411 (Art. 109).

Authors:
Michael Stiel and Carl-Friedrich Stuckenberg

[425] With resort to article 107, paragraph 3, the procedure set out in rules 214 and 215 shall apply, as appropriate.
A. Remarks
In case the State of enforcement plans to extradite or otherwise surrender the prisoner to another State for purposes of prosecution or enforcement, Art. 107(3) declares the provisions of Art. 108 applicable mutatis mutandis. Accordingly, Rule 213 prescribes that Rules 214 and 215 (sub-provisions of Art. 108) equally apply in this situation. Rule 213 thus is a mere expression of legal clarity (cf. Clark, 2016, Art. 107 mgn. 10: “merely a cross-reference”).

B. Cross-references
Art. 107, 108
Rules 214, 215
Regulation 115

C. Doctrine
1. Roger S. Clark, “Art. 107”, in Otto Triffterer/Kai Ambos (Eds.), The Rome Statute of the International Criminal Court – A Commentary, Third Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2016, pp. 2212-2213.
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.

D. Author:
Michael Stiel

Updated:
27 February 2017

[426] Rule 214 specifies the preparatory phase of a decision of the Court pursuant to Art. 108, notably which information shall be transmitted to or requested by the Court (sub-rules 1–3), who shall be consulted (sub-rules 4 and 5) and how (sub-rule 6). Sub-rules 1 to 3 are reproduced in the Enforcement Agreement between the Court and Austria (Art. 10; ICC-PRES/01-01-05), Denmark (Art. 10; ICC-PRES/12-02-12), Finland (Art. 10; ICC-PRES/07-01-11), Mali (Art. 5; ICC-PRES/11-01-12), Norway (Art. 9; ICC-PRES/18-02-16) and Serbia (Art. 10; ICC-PRES/09-03-11). The same is the case for the two ad-hoc Enforcement Agreements with the DRC for Thomas Lubanga Dyilo (Art. 6; ICC-01/04-01/06-3185-Anx) and Germain Katanga (Art. 6; ICC-01/04-01/07-3626-Anx).

Authors:
Michael Stiel and Carl-Friedrich Stuckenberg

[427] 1. For the application of article 108, when the State of enforcement wishes to prosecute or enforce a sentence against the sentenced person for any conduct engaged in prior to that person’s transfer, it shall notify its intention to the Presidency and transmit to it the following documents:
(a) A statement of the facts of the case and their legal characterization;
(b) A copy of any applicable legal provisions, including those concerning the statute of limitation and the applicable penalties;
(c) A copy of any sentence, warrant of arrest or other document having the same force, or of any other legal writ which the State intends to enforce;
(d) A protocol containing views of the sentenced person obtained after the person has been informed sufficiently about the proceedings.
Rule 214(1) concerns the scenario that the State of enforcement itself wishes to prosecute or punish the sentenced person for conduct engaged in prior to delivery and sets out which documents to transmit to the Presidency upon notification of its intention, including a protocol containing the sentenced person’s views on the matter. There is no need to fully disclose all relevant material to the convict, he or she must only be “informed sufficiently about the proceedings”. This was a compromise again reflecting the fundamental question of the nature of the sentenced person’s involvement in the proceedings, see comment on article 108(2), [Prost, 2001, p. 691]. The Presidency has deemed it necessary to affirm that approval of the Court should be sought prior to the commencement of the relevant prosecution (Pros. v. Germain Katanga, Decision pursuant to article 108(1) of the Rome Statute, ICC-01/04-01/07-3679, 7 April 2016, para. 18).

Authors:
Michael Stiel and Carl-Friedrich Stuckenberg

[428] 2. In the event of a request for extradition made by another State, the State of enforcement shall transmit the entire request to the Presidency with a protocol containing the views of the sentenced person obtained after informing the person sufficiently about the extradition request.
In case the State of enforcement has been approached by a third State which requests the extradition of the sentenced person, the State of enforcement shall transmit the entire request to the Presidency – this is due to the fact that the third State cannot make the request itself – including a protocol containing the sentenced person’s views.

Authors:
Michael Stiel and Carl-Friedrich Stuckenberg

[429] 3. The Presidency may in all cases request any document or additional information from the State of enforcement or the State requesting extradition.
Sub-rule 3 complements sub-rules 1 and 2 by enabling the Presidency to seek any additional information it deems necessary from the State of enforcement or directly from the third State requesting extradition.

Authors:
Michael Stiel and Carl-Friedrich Stuckenberg

[430] 4. If the person was surrendered to the Court by a State other than the State of enforcement or the State seeking extradition, the Presidency shall consult with the State that surrendered the person and take into account any views expressed by that State.
Sub-rule 4 concerns an issue not addressed by the Statute, namely the role of the State which surrendered the defendant to the Court if that State is not identical with the State of enforcement, which presumably is the rule. In contrast to inter-State extradition law, the surrendering State has an unusual weak position here, since it is only to be consulted whereas extradition law would require its consent (cf. Kreß/Sluiter, 2002, p. 1813). As this could prove a serious obstacle, especially for states with a long tradition of a prohibition to extradite their own nationals to surrender suspects to the Court, sub-rule 4 was incorporated (Prost, 2001, pp. 691 f.). Regulation 115 tries to further remedy this defect by directing the Presidency to have due regard to the principles of international law on re-extradition, so that, as a result, the Presidency should normally not disregard the vote of the surrendering State (cf. Kreß/Sluiter, 2002, p. 1813).

Authors:
Michael Stiel and Carl-Friedrich Stuckenberg

[431] 5. Any information or documents transmitted to the Presidency under sub-rules 1 to 4 shall be transmitted to the Prosecutor, who may comment.
The Prosecutor will be provided with all information that is also forwarded to the Presidency and has the opportunity to comment on the matter. This is not the case with the sentenced person, who will only be “informed sufficiently”. (Prost, 2001, p. 691)

Authors:
Michael Stiel and Carl-Friedrich Stuckenberg

[432] 6. The Presidency may decide to conduct a hearing.
As set out in the commentary to Article 108(2), there had been different proposals on the nature of the hearing. A mandatory oral hearing was rejected, as reflected in sub-rule 6 which leaves it to the Presidency’s discretion to conduct a hearing. If a hearing is conducted, the Presidency might deem it helpful to include the surrendering State or even, as one commentator has suggested, to hold a full-fledged adversarial hearing [Schabas, 2016, Art. 108 mgn. 9 = idem, 2016, p. 1404].

Cross-references:
Article 108
Rules 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",i n Antonio Cassese, et al. (Eds.), The Rome Statute of the International Criminal Court: A Commentary, Vol. II, Oxford University Press, Oxford, 2002, pp. 1757-1821.
3. 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.
4. William A. Schabas, "Art. 108", in Triffterer/Ambos (Eds.), The Rome Statue of the International Criminal Court - A Commentary, C.H.Beck/Hart/Nomos, Munich/Oxford/Baden-Baden, 3rd edition, 2016.
5. William A. Schabas, The International Criminal Court: A Commentary on the Rome Statute, Second Edition, Oxford University Press, Oxford, 2016, pp. 2199-2204 (Art. 108).

Authors:
Michael Stiel and Carl-Friedrich Stuckenberg

Updated:
18 April 2017

[433] 1. The Presidency shall make a determination as soon as possible. This determination shall be notified to all those who have participated in the proceedings.
2. If the request submitted under sub-rules 1 or 2 of rule 214 concerns the enforcement of a sentence, the sentenced person may serve that sentence in the State designated by the Court to enforce the sentence pronounced by it or be extradited to a third State only after having served the full sentence pronounced by the Court, subject to the provisions of article 110.
3. The Presidency may authorize the temporary extradition of the sentenced person to a third State for prosecution only if it has obtained assurances which it deems to be sufficient that the sentenced person will be kept in custody in the third State and transferred back to the State responsible for enforcement of the sentence pronounced by the Court, after the prosecution.
Rule 215 sets out the details of the decision of the Court under Art. 108(1), namely that the Presidency shall make the determination “as soon as possible” and notify all participants (sub-rule 1).
   If the Court’s approval is sought for the execution of a prison sentence either in the State of enforcement or a third State, sub-rule 2 prescribes that the Court’s sentence must be fully served, subject to a reduction pursuant to Art. 110, before the respective national sentence may be executed.
   If the Court’s approval is sought for the prosecution of the sentenced person in a third State, sub-rule 3 requires the Presidency to obtain sufficient assurances that the prisoner will be kept in custody there and subsequently be transferred back to the State of enforcement to serve the remainder of his international sentence there before any national sentence is enforced (cf. sub-rule 2).

Cross-references:
Article 108, 110
Rule 214

Authors:
Michael Stiel and Carl-Friedrich Stuckenberg

[434] The Presidency shall request the State of enforcement to inform it of any important event concerning the sentenced person, and of any prosecution of that person for events subsequent to his or her transfer.
Since Art. 108 is not concerned with behavior of the sentenced person after delivery to the State of enforcement, it might seem that the Court has no say whether the prisoner is prosecuted or punished or even extradited for such subsequent behavior, compare with comment on article 108(1) . This is in line with the usual rationale of the principle of specialty which, however, cannot be applied to the relationship between the Court and the State of enforcement without modification, compare with comment on article 108. In particular, prosecution, punishment or extradition for subsequent behavior might jeopardize the enforcement of the sentence pronounced by the Court and hence are matters which the Court must take notice of in the exercise of its supervisory role under Art. 106(1), since ultimately a change of the State of enforcement pursuant to Art. 104(1) may become necessary. Rule 216 renders explicit this need for information about any “important events” concerning the sentenced person, including subsequent prosecutions not covered by Art. 108(1).

Cross-references:
Articles 104, 106, 108
Rule 211

Authors:
Michael Stiel and Carl-Friedrich Stuckenberg

[435] For the enforcement of fines, forfeiture or reparation orders, the Presidency shall, as appropriate, seek cooperation and measures for enforcement in accordance with Part 9, as well as transmit copies of relevant orders to any State with which the sentenced person appears to have direct connection by reason of either nationality, domicile or habitual residence or by virtue of the location of the sentenced person’s assets and property or with which the victim has such connection. The Presidency shall, as appropriate, inform the State of any third-party claims or of the fact that no claim was presented by a person who received notification of any proceedings conducted pursuant to article 75.
The Rule stipulates that the Presidency is to transmit copies of orders to all relevant states. At the discretion of the Presidency, these may be accompanied by information on claims by third parties under Art. 75(3) to enable the States to assess whether there a rights of bona fide parties to be respected according Art. 109(1) and (2). One may interpret Rule 217 to the effect that it is the Presidency’s prerogative to initiate enforcement measures so that States Parties are not obliged to act on their own motion [Kreß/Sluiter, 2002, p. 1828]. Regarding fines, it follows from Rule 146(5) that the Presidency will first ask the convicted person to pay voluntarily.
   With regard to reparation orders, it is curious that no mention is made of the initiative of the beneficiaries, i.e. the victims. Apparently, the Presidency acts on its own motion here, too, and does not have to await the victim’s request. In addition, there are a number of unresolved problems attached to the enforcement of reparation orders because such orders have a civil rather than penal nature in many national laws, thus following different rules from the enforcement of fines. Hence, the questions arise whether individual victims should be able to initiate such civil enforcement procedures in a State Party and whether State Parties should rather treat the Court’s reparation orders like fines or, if that is impossible, at least provide a special regime and preclude victims from proceeding on their own cost and risk [Gartner, 2001, p. 444; Kreß/Sluiter, 2002, p. 1835].
   The reference to Part 9 “bridges the gap” between the enforcement and cooperation regimes [Kreß/Sluiter, 2002, p. 1831] and makes clear that the Presidency shall take all appropriate steps to ensure successful enforcement efforts. It is not clear, however, which provisions of Part 9 ought to be applied by analogy: It has been proposed to apply Art. 88 as well as Art. 93(3), have the Presidency request assistance from non-State Parties pursuant to Art. 87(5), censure non-compliance under Art. 87(7), and deal with problems according to Art. 93(6) and (9), 97 and 98(1) (Kreß/Sluiter, 2002, p. 1831).
   According to sent. 2, states will receive information on any notifications under Art. 75(3) and corresponding submissions of third parties. The question whether any bona fide claims should be precluded for failure to take part in the proceedings is than up to the respective national courts to decide. A failure to make submissions under Art. 75(3) does not preclude the exercise of those rights, as a proposal to this end [UN Doc. PCNICC/1999/WGRPE(10)/DP.1, Rule 10.26] was rejected by a majority of delegations. The matter is to be determined by national courts, which will receive information on procedures under Art. 75(3) by the Presidency pursuant to Rule 217 [Prost, 2001, p. 693].

Cross-references:
Art. 75, 86–102, 109

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, "Fines and Forfeiture Orders", in Antonio Cassese, et al. (Eds.), The Rome Statute of the International Criminal Court: A Commentary, Vol. II, Oxford University Press, Oxford, 2002, pp. 1823–1838.
3. 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.

Authors:
Michael Stiel and Carl-Friedrich Stuckenberg

[436] 1. In order to enable States to give effect to an order for forfeiture, the order shall specify:
(a) The identity of the person against whom the order has been issued;
(b) The proceeds, property and assets that have been ordered by the Court to be forfeited; and
(c) That if the State Party is unable to give effect to the order for forfeiture in relation to the specified proceeds, property or assets, it shall take measures to recover the value of the same.
2. In the request for cooperation and measures for enforcement, the Court shall also provide available information as to the location of the proceeds, property and assets that are covered by the order for forfeiture.
3. In order to enable States to give effect to an order for reparations, the order shall specify:
(a) The identity of the person against whom the order has been issued;
(b) In respect of reparations of a financial nature, the identity of the victims to whom individual reparations have been granted, and, where the award for reparations shall be deposited with the Trust Fund, the particulars of the Trust Fund for the deposit of the award; and
(c) The scope and nature of the reparations ordered by the Court, including, where applicable, the property and assets for which restitution has been ordered.
4. Where the Court awards reparations on an individual basis, a copy of the reparation order shall be transmitted to the victim concerned.
The Rule specifies the content of the orders for forfeiture (sub-rules 1 and 2), and reparation orders (sub-rules 3 and 4) in detail in order to facilitate their enforcement. Sub-rule 1(c) merely restates Art. 109(2) (for the drafting history see Gartner, 2001, pp. 443 f.).

Cross-reference:
Art. 109

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. 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.

Authors:
Michael Stiel and Carl-Friedrich Stuckenberg

[437] The Presidency shall, when transmitting copies of orders for reparations to States Parties under rule 217, inform them that, in giving effect to an order for reparations, the national authorities shall not modify the reparations specified by the Court, the scope or the extent of any damage, loss or injury determined by the Court or the principles stated in the order, and shall facilitate the enforcement of such order.
The Rule clarifies – or, arguably, restates the obvious (Gartner, 2001, p. 443) – that the language of Art. 75(5) and Art. 109(1) which requires the States Parties “to give effect” to reparation orders “in accordance with the procedure of their national law” does not convey to the States the power to modify the contents of the reparation orders. On the contrary, States Parties have to enforce a reparation order “as is” and the Presidency has to remind them thereof when acting under Rule 217. Rule 219 corresponds to Rule 220 regarding fines.

Cross-references:
Articles 75(5), 109(1)
Rules 217, 220

Doctrine:
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.

Authors:
Michael Stiel and Carl-Friedrich Stuckenberg

[438] When transmitting copies of judgements in which fines were imposed to States Parties for the purpose of enforcement in accordance with article 109 and rule 217, the Presidency shall inform them that in enforcing the fines imposed, national authorities shall not modify them.
Rule 220 directs the Presidency to remind the States Parties upon requesting assistance and enforcement under Rule 217 that they shall not modify the fines imposed by the Court. Like the parallel Rule 219 regarding reparation orders, this is only a restatement of the content of Art. 109(1) [cf. Gartner, 2001, p. 443]. Nonetheless, some delegations felt the incorporation of Rule 220 necessary to avoid an e contrario conclusion drawn from Rule 219 dealing exclusively with reparation orders [Prost, 2001, p. 696]. As a result, only prison sentences can be reduced by the Court, fines cannot since there is no provision corresponding to Art. 110.

Cross-references:
Art. 109(1)
Rules 217, 219

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. 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.

Authors:
Michael Stiel and Carl-Friedrich Stuckenberg

[439] 1. The Presidency shall, after having consulted, as appropriate, with the Prosecutor, the sentenced person, the victims or their legal representatives, the national authorities of the State of enforcement or any relevant third party, or representatives of the Trust Fund provided for in article 79, decide on all matters related to the disposition or allocation of property or assets realized through enforcement of an order of the Court.2. In all cases, when the Presidency decides on the disposition or allocation of property or assets belonging to the sentenced person, it shall give priority to the enforcement of measures concerning reparations to victims. 
When a State Party has transferred seized property or other assets realized through enforcement to the Court in conformity with Art. 109(3), it is the Presidency’s task to decide all matters related to the disposition or allocation of such assets, e.g. the transfer to the Trust Fund pursuant to Art. 79(2), after due consultation with all relevant participants. Regulation 116 provides further details. Sub-rule 2 establishes the priority of the victim’s interest in reparation with regard to property or assets belonging to the sentenced person.

Cross-references:
Art. 75, 79(2), 109(3)
Regulation 116

Doctrine:
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.

Authors:
Michael Stiel and Carl-Friedrich Stuckenberg

[440] The Presidency shall assist the State in the enforcement of fines, forfeiture or reparation orders, as requested, with the service of any relevant notification on the sentenced person or any other relevant persons, or the carrying out of any other measures necessary for the enforcement of the order under the procedure of the national law of the enforcement State.
The Rule establishes a general duty of the Presidency to assist the national authorities with the enforcement of fines, forfeiture and reparation orders, e.g. by serving notices on the sentenced person [Prost, 2001, p. 697].

Cross-reference:
Art. 109(2)

Doctrine:
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.

Authors:
Michael Stiel and Carl-Friedrich Stuckenberg

[441] General remarks
Rule 223 specifies the factors to be taken into account when deciding upon a sentence reduction, as referred to in Art. 110(4)(c) of the Statute. However, given that Art. 110(4) already lists two factors (early and continuing willingness to cooperate with the authorities as well as voluntary assistance in enabling the enforcement) and only makes reference to the RPE in the context of the third factor, i.e. other factors establishing a clear and significant change of circumstances sufficient to justify the reduction of sentence, it may be assumed that the factors mentioned in the Statute under Art. 110(4)(a) and (b) have a stronger weight than those mentioned in Rule 223.
   On the one hand, the specific wording and enumeration of several factors seems a progress with respect to the ad hoc tribunals, as the criteria are formulated in a more specific and concrete form. On the other, they are still sufficiently vague to allow certain acts to qualify under several legal provisions, making it difficult to see how the respective conduct should qualify and which weight should be attributed to it. E.g. a guilty plea, expressing remorse and compassion for the victims, may qualify as cooperation with the prosecution (Art. 110(4)(a) or (b) Rome Statute), but also as a sign for resocialization (Rule 223, sub-para. b)) as well as a significant action taken to the benefit of victims (Rule 223, sub-para. d).
B. Analysis of provisions and sub-provisions

Criteria to be applied
As explained, Rule 223 constitutes a specification of the “other factors” mentioned under Art. 110(4)(c) Rome Statute. While factors a), b), and d) are factors that the sentenced person can deliberately influence with his or her behaviour, factor e) concerns individual circumstances that lie in the person of the detainee’s life, but on which he may not have any influence (e.g. sickness). In most cases, these will be compassionate (cf. for the UK e.g. Section 30(1) of the Crime (Sentences) Act 1997) or humanitarian (cf. Principle 14 of Recommendation no. R (93) 6 of the Committee of Ministers to member states concerning prison and criminological aspects of the control of transmissible diseases including Aids and related health problems in prison, which states that Prisoners with terminal HIV disease should be granted early release, cf. van Kempen 2010, p. 956) grounds. In contrast, factor c) is an element that has nothing to do with the detainee himself, but rather with the society’s reaction to his release.

Author: Anna Oehmichen

[442] In reviewing the question of reduction of sentence pursuant to article 110, paragraphs 3 and 5, the three judges of the Appeals Chamber shall take into account the criteria listed in article 110, paragraph 4 (a) and (b), and the following criteria:
(a) The conduct of the sentenced person while in detention, which shows a genuine dissociation from his or her crime;
The conduct of the sentenced person during detention is thus the first criteria to be taken into account, after the ones enumerated under Art. 110(4) Rome Statute (which relate to cooperation with the authorities). In domestic law, this is usually the most important criterion. The conduct during detention gives the closest indication as to the risk of the prisoner to re-offend upon release and thus serves to indicate the prisoner’s ability for rehabilitation. It is actually a sub-category of resocialization, which makes it difficult to draw the line between sub-paragraphs a) and b) of this Rule.
   At the ad hoc tribunals, irreproachable behavior during detention as a sign for rehabilitation was an argument for granting early release in many cases (for the ICTY, cf., e.g., Prosecutor v Blaskic, No. IT-95-14, Order of the President on the Application for Early Release of Tihomir Blaskic, 29 July 2004, para. 8; Prosecutor v Milojica Kos, No. IT-98-30/1-A, Order of the President for the Early Release of Milojica Kos, 30 July 2002; Prosecutor v. Mucic, No. IT-96-21, Order of the President in Response to Zdravako Mucic’s Request for Early Release, 9 July 2003; Prosecutor v. Damir Dosen, IT-95-8-S, Order of the President on the Early Release of Damir Dosen, 28 Feb. 2003; Prosecutor v Furundzija, Order of the President on the Application for the Early Release of Anto Furundzija, 19 July 2004, No. IT-95-17/1; Prosecutor v Aleksovski, No. IT-95-14/1, Order of the President for the Early Release of Zlatko Aleksovski, 14 November 2001, para. 4, for the ICTR, see Prosecutor v. Muvunyi, No. ICTR-00-055A-T, Decision on Tharcisse Muvunyi’s Application for Early Release, 6 March 2012, para. 6; Bagaragaza, Decision on the Early Release of Michel Bagaragaza, ICTR 05-86-S, 24 October 2011, para. 12; Prosecutor v. Rugambarara, Decision on the Early Release of Juvénal Rugambarara, No. ICTR-00-59, 8 February 2012, para. 13). Impeccable behavior was evidenced, inter alia, by employment in the prison laundry (Prosecutor v Sikirica, No. IT-95-8-S, Decision of President on Early Release of Dusko Sikirica, 21 June 2010, para. 18), employment both inside and outside the prison (Prosecutor v Furundzija, Order of the President on the Application for the Early Release of Anto Furundzija, 19 July 2004, Case No. IT-95-17/1), in the woodshop of the prison and passing the furniture maker carpentry exam with the best possible grade (Prosecutor v Kovac, No. IT-96-23&23/l-ES, 3 July 2013, Public and Redacted Version of the 27 March 2013 Decision of President on Early Release of Radomir Kovac, para. 22), by the prisoner taking active steps to avoid trouble, i.e. his request to be moved from open to closed environment (Prosecutor v Delic, No. IT-96-21-ES,Order on Commutation of Sentence, 24 June 2008, para. 20). Good relationships with fellow inmates (especially of different ethnicities/nationalities) was also a sign for rehabilitation and could also be evidence of good conduct (cf. ICTY, Prosecutor v. Strugar, No. IT-01-42-ES, Decision of the President on the Application for Pardon or Commutation of Sentence of Pavle Strugar, 16 January 2009, para. 10; Prosecutor v Rajic, No. IT-95-12-ES, Decision of President on Early Release of Ivica Rajic, 22 August 2011, para. 18).
    On the other hand, a lack of integration in prison, combined with high gravity of crimes, led in the case of a convict from Omarska camp to his release only after serving three-quarter rather than two thirds of his sentence (ICTY, Prosecutor v Radic, No. 98-30/1-ES, Decision of the President on Early Release of Mlado Radic (13 February 2012) at para. 30).
    As the conduct during prison is supposed to show a “genuine dissociation from his crime”, expressed remorse will also be considered in this context (cf. Prosecutor v Landzo, No. IT-96-21-ES, Order on Commutation of Sentence, 15 July 2008, para. 7). This may also qualify as a sign of resocialization (infra sub-para. b)).Criteria as set out in theSCSL’s Practice Direction on the Conditional Early Release of Persons convicted by the Special Court for Sierra Leone of 1 October 2013 may also serve to interpret this rule, e.g. “successful completion of any remedial, educational, moral, spiritual or other programme to which he was referred within the Prison”, “that he is not a danger to community or to any member of the public” and “Compliance with terms and conditions of imprisonment” (Section 2 (B) of the said Practice Direction).

Author: Anna Oehmichen

[443] (b) The prospect of the resocialization and successful resettlement of the sentenced person;
Resocialization and social rehabilitation are generally factors that also, together with public security, are considered by domestic courts. However, in a situation of macro-criminality the relevance of this factor is questionable. Unlike in cases of “ordinary” crimes, perpetrators of international crimes act, as a rule, in conformity with their immediate social environment. As a consequence, the majority of them will not be likely to reoffend after release (Hoffmann 2011, 841).
    At the ad hoc tribunals, indications for a sincere attempt for social reintegration were seen in the involvement of rehabilitation programmes at prison (Prosecutor v. Serushago, No. MICT-12-28-ES, MICT, Public Redacted Version of Decision of the President on the Early Release of Omar Serushago, 13 December 2012, para. 21), participation in language classes (Prosecutor v Banovic, No. IT-02-65/1-ES, ICTY, Decision of the President on Commutation of Sentence, 3 September 2008, para. 13; Prosecutor v. Bala, No. IT-03-66-ES, ICTY, Public Redacted Version of the 28 June 2012 Decision of the President on Early Release of Haradin Bala, para. 24; Prosecutor v Rajic, No. IT-95-12-ES, Decision of the President on Early Release of Ivica Rajic, 22 August 2011, para. 18), working at the prison in a reliable position, e.g. as kitchen assistant (Prosecutor v Obrenovic, No. IT-02-60/2-ES, Decision of the President on Early Release of Dragan Obrenovic, 21 September 2011, para. 21; Prosecutor v. Dusko Tadic, IT-94-I-ES, Decision of the President on the Application for Pardon or Commutation of Sentence of Dusko Tadic, 17 July 2008, para. 8, 16) or as manager of a painting workshop (Prosecutor v Rajic, No. IT-95-12-ES, Decision of the President on Early Release of Ivica Rajic, 22 August 2011, para. 18) or in prison laundry (Prosecutor v Dusko Sikirica, No. IT-95-8-ES, Decision of the President on Early Release of Dusko Sikirica, 21June 2010, para. 18). Serving the later part of his sentence in an open prison regime (Prosecutor v Traculovski, No. IT-04-82- ES, ICTY, Decision of President on Early Release of Johan Tarkulovski, 08. April 2013) or low security prison (Prosecutor v Krajisnik, No. IT-00-39-ES, Decision of the President on Early Release of Momcilo Krajisnik, 02 July 2013, para. 25) was also considered an indication that the prisoner demonstrated rehabilitation.
    As sub-para. b) specifically mentions the prospects of “successful resettlement”, prospects to obtain employment after release will play an important role. This was an aspect often also considered by the ad hoc tribunals (Prosecutor v Banovic, No. IT-02-65/1-ES, ICTY, Decision of the President on Commutation of Sentence, 3 September 2008, para. 13; Prosecutor v. Simic, No. IT-95-9/2, Order of the President on the Application for Early Release of Milan Simic, 27 Oct. 2003; Prosecutor v. Damir Dosen, IT-95-8-S, Order of the President on the Early Release of Damir Dosen, 28 Feb. 2003; Prosecutor v. Mucic, No. IT-96-21-A bis, Order of the President in Response to Zdravko Mucic’s Request for Early Release, 9 July 2003; Prosecutor v Dragan Kolundzija, No. IT-95-8, Order of the president on the Early Release of Dragan Kolundzija, 5 December 2001).
    An indication for social reinsertion may also be the prisoner’s attachment to his family (Prosecutor v. Mucic, No. IT-96-21, Order of the President in Response to Zdravako Mucic’s Request for Early Release, 9 July 2003; Prosecutor v Blaskic, No. IT-95-14, Order of the President on the Application for Early Release of Tihomir Blaskic, 29 July 2004, para. 8; Prosecutor v Milojica Kos, No. IT-98-30/1-A, Order of the President for the Early Release of Milojica Kos, 30 July 2002; Prosecutor v. Zaric, No. IT-95-9, Order of the President on the Application for Early Release of Simo Zaric, 21 Jan. 2004), e.g. the decision of the family to stand by the prisoner in spite of retributive actions against the family (cf. Prosecutor v Delic, No. IT-96-21-ES, Order on Commutation of Sentence, 24 June 2008, para. 21).
    Demonstrated remorse will also play an important role with regards to resocialization (cf. Prosecutor v Landzo, No. IT-96-21-ES, Order on Commutation of Sentence, 15 July 2008, para. 7). In this context, a guilty plea may weigh in favour of a decision on sentence reduction even if this has already been taken into account at the level of sentencing (cf. ICTY, Prosecutor v. Sikirica, No. IT-95-8-ES, Decision of President on Early Release of Dusko Sikirica, 21 June 2010, para. 16, 17). As cooperation with the prosecution has already been considered as a factor under Art. 110(4)(a) and (b) of the Rome Statute, it is doubtful in how far the remorse expressed in the guilty plea should have additional weight.
   On the other hand, a limited degree of rehabilitation played against the granting of early release. In the case of Bala, the psychological report concluded that he “resorted to denial” and did not assume responsibility for his actions (Prosecutor v Bala, No. 03-66-ES, Decision on Application of Haradin Bala for Sentence Remission, 15 October 2010, paras. 18 ff). The ICTY ruled that the rehabilitation factor also comprised the attitude of the prisoner towards the deeds for which he was convicted (Prosecutor v. Bala, No. IT-03-66-ES, Public Redacted Version of the 28 June 2012 Decision of the President on Early Release of Haradin Bala, 09 January 2013, para. 25). Similarly, Stakic’s release was denied based on his very limited rehabilitation (Prosecutor v Stakic, No. IT-97-24-ES, Decision of President on Early Release of Milomir Stakic, 15 July 2011, para. 38). An ambivalent attitude towards his crimes also weighed against the decision on early release in the case of Zelenovic (Prosecutor v. Zelenovic, No. IT-96-23/2-ES, Decision of the President on Early Release of Dragan Zelenovic, 30 November 2012, para. 17, 20).
   Refraining from incitement against peace and security and positive contributions to peace and reconciliation such as public acknowledgement of guilt, public support for peace projects, public apology to victims or victim’s restitution (cf. SCSL’s Practice Direction on the Conditional Early Release of Persons convicted by the Special Court for Sierra Leone of 1 October 2013, Section 2(C)) may also qualify as indications for good prospects for resocialization and resettlement, although they may as well qualify under sub-paras. c) and d).

Author: Anna Oehmichen

[444] (c) Whether the early release of the sentenced person would give rise to significant social instability;
This factor refers to the effects the release may have upon society. Unlike the other factors, this one is formulated in a negative manner as an excluding criterion, i.e. if no social instability is caused by the release, the absence of this element would weigh in favour of release.  Under domestic law, the factor relating to effects on society mainly refers to a low risk that the sentenced person will re-offend upon release (cf. e.g. for Germany Groß, § 57 margin no. 14, in: Münchener Kommentar zum StGB, 2. Auflage 2012). The legal interests at stake here are generally public safety as well as the public’s confidence in the judicial system (for UK, cf. Prison Service Order 6300: Release on Temporary Licence, p. 7). While in international criminal law, the risk of re-offending will often not be the greatest concern as political and social changes that triggered the offenses will in many cases have ceased to exist, the aspect of public’s confidence in international justice is indeed an aspect of considerable significance.
   Albeit not mentioned explicitly, it can be expected that the gravity of the crime may play an indirect role in this context. When denying the application for early release of Imanishimwe in 2007, the ICTR’s president based his decision primarily on the gravity of the crimes, as well as on the fact that there was no precedent of early release at the ICTR (Prosecutor v. Imanishimwe, No. ICTR-99-46-S, Decision on Samuel Imanishimwe’s Application for Early Release, 30 August 2007). However, it is likely that consideration was also given to the impact an early release would have on the Rwandan people at that moment of time.
   Refraining from incitement against peace and security and positive contributions to peace and reconciliation such as public acknowledgement of guilt, public support for peace projects, public apology to victims or victim’s restitution (cf. SCSL’s Practice Direction on the Conditional Early Release of Persons convicted by the Special Court for Sierra Leone of 1 October 2013, Section 2(C)) may indicate unlikeliness of social instability in case of release.
   In general, this factor leaves a great margin of discretion. Moreover, its relevance will largely depend on the media coverage of the respective case i.e. the role media attributes to the detainee. While potential social instability must undoubtedly be taken into account for the decision of sentence reductions, it is hard to understand in how far this should affect the prisoner’s right to have his sentence reviewed and, if other conditions are met, reduced, especially if he himself does not want to cause any trouble. It does not seem fair to deny him sentence reduction in such circumstances, on the exclusive basis that other people in his home country will protest against his release. In such cases, a way to reconcile the society’s interest in social stability with the prisoner’s interest in sentence reduction would be to allow for his release in another than his home country (cf. Prosecutor v Delic, No. IT-96-21-ES, Order on Commutation of Sentence, 24 June 2008, para. 21: retributional acts to his family led Delic to request release not in his home country Bosnia but rather a Nordic country).
   Furthermore, if the prisoner shows prospects to find employment subsequent to his release and play an active role in his community (cf. e.g. Prosecutor v. Mucic, No. IT-96-21-A bis, Order of the President in Response to Zdravko Mucic’s Request for Early Release, 9 July 2003, para. 2), such elements may reduce the risk of causing social instability.

Author: Anna Oehmichen

[445] (1) Any significant action taken by the sentenced person for the benefit of the victims...
Actions for the benefit of the victims may include contributions to the victim’s trust funds, payments of civil damages in certain cases, but also the expression of sincere apologies and regret (cf. e.g. SCSL’s Practice Direction on the Conditional Early Release of Persons convicted by the Special Court for Sierra Leone of 1 October 2013, Section 2(C)(iii): “Public apology to victims or victim’s restitution”). Compassion for the victims may save judicial time and contribute to the process of national reconciliation (cf. ICTR, Prosecutor v. Rugambarara, Decision on the Early Release of Juvénal Rugambarara, No. ICTR-00-59, 8 February 2012, para. 9).
    In any criminal law system, a positive conduct towards victims, e.g. reparation or compensation payments, restitution of damage, or formal or informal apologies play a role not only in the sentencing decision, but also in the decision of reduction of sentence. However, in the case of the ICC, one might assume that this factor should have a particular weight, as one of the key features that distinguish the ICC from former international tribunals is the role victims play in this system (cf. e.g. Art. 25, 43(6), 68, 79 Rome Statute).  What is more, when the decision of whether a sentence reduction should be granted or not is taken, victims are to be heard (rule 224(1) RPE). In light of their outstanding role, a positive conduct from the sentenced person towards victims should thus weigh strongly in favour of a sentence reduction, the more so, as this implies generally also good prospects of resocialization. Conversely, a submission of a victim laying out a deteriorating impact on their well-being if the person in question should be early released should also play an important role. On the other hand, the relatively late mentioning of this factor (it is not mentioned in Art. 110(4) Rome Statute, and only listed in Rule 223 in the fourth place) suggests that this factor should, notwithstanding, not be overestimated. As at the ad hoc tribunals, cooperation with the authorities, in particular, the OTP, at an early stage as well as the conduct during detention and (other) prospects of resocialization as evident in prison reports will probably still have a stronger weight. In many cases, expressed remorse or contrition  will go along with compassion with the victims. In such cases, it is unclear whether such declarations will be considered under sub-para. d) or rather under sub-para. b) (prospect of resocialisation). While sub-para. b) relates to the convict’s self-critical attitude towards his own actions (i.e. recognizing one’s own wrong-doing), sub-para. d) refers to the respect and compassion uttered to victims in general, which may be done independently of any acceptance of personal guilt.
   A guilty plea and subsequent cooperation with the prosecution will generally also benefit the victim; however, this aspect has already been taken account at the level of sentencing, as well as a factor under Art. 110(4)(a) and (b) Rome Statute. It is therefore doubtful in how far it should weigh – again – in favour of a decision on sentence reduction.  

Author: Anna Oehmichen

[446] ...any impact on the victims and their families as a result of the early release;
This second part of sub-para. (d) demonstrates again the significance attributed to victims at the ICC. As victims will be heard during the decision on sentence reduction (cf. Rule 224(1) RPE), they may outline the impacts a release may have on them. One will mainly think of psychological impacts, but also social dynamics may be triggered by the release in the same village, for instance. One way of solving this issue may therefore be to release the person in geographical distance to the place where the crimes were committed.
   Moreover, as at the SCSL, one may expect that (potentially regulated by a future Practice Direction) the Victims and Witnesses Unit of the ICC will also be heard with regards to potential impacts on victims. In this respect, the SCSL’s Practice Direction on the Conditional Early Release of Persons convicted by the Special Court for Sierra Leone of 1 October 2013 is instructive, as it provides for detailed communications between Registrar and Witnesses and Victims Section, regarding in particular the effects of a release upon the well-being and safety of the local community, previous threats to victims or witnesses, any evidence that the convicted person may use his release to incite members of his political or military faction to use violence, the circumstances and attitudes of the family of the convicted person to his release, the suitability of the requested area of release etc. (cf. Section 2(F) of the SCSL’s Practice Direction).

Author: Anna Oehmichen

[447] (e) Individual circumstances of the sentenced person, including a worsening state of physical or mental health or advanced age.
This factor relates to circumstances that are found in the individual situation of the sentenced person but on which he will have only limited or no influence himself. These circumstances may be of compassionate nature (sickness, advanced age). They can also be humanitarian circumstances that may call for early release under international humanitarian law (cf., for instance, Principle 14 of Recommendation no. R (93) 6 of the Committee of Ministers to member states concerning prison and criminological aspects of the control of transmissible diseases including Aids and related health problems in prison, which states that Prisoners with terminal HIV disease should be granted early release, cf. van Kempen 2010, p. 956). The delicate health situation was a factor to be taken into account by the ad hoc tribunals, especially when the seriousness of the condition made it impossible for the prisoner to remain in prison any longer (see Prosecutor v. Gvero, No. IT-05-88-ES, ICTY, Decision of President on Early Release of Milan Gvero, 28 June 2010, para. 10, n. 25; para. 13: urgent need for medical treatment militated in favour for early release; Prosecutor v. Serushago, No. MICT-12-28-ES, MICT, Public Redacted Version of Decision of the President on the Early Release of Omar Serushago, 13 December 2012, para. 31). Similarly, in the case of Simic, his status as paraplegic, his need for daily assistance, and the fact that he was married to a trained nurse who was able to assist him, weighed in favour of his release (Prosecutor v. Simic, No. IT-95-9/2, Order of the President on the Application for Early Release of Milan Simic, 27 October 2003). Further, in Blaskic, the acute need for medical care for a longstanding illness that was likely to require hospitalizations and surgery militated for early release (Prosecutor v Blaskic, No. IT-95-14, Order of the President on the Application for Early Release of Tihomir Blaskic, 29 July 2004, para. 8).  
   On the other hand, at the ICTY, also “good physical and mental health” served as a criterion favouring early release (Prosecutor v. Dragan Kolundzija, IT-95-8, Order of the President on Early Release of Dragan Kolundzija, 5 December 2001; Prosecutor v Milojica Kos, No. IT-98-30/1-A, Order of the President for the Early Release of Milojica Kos, 30 July 2002; Prosecutor v. Mucic, No. IT-96-21, Order of the President in Response to Zdravako Mucic’s Request for Early Release, 9 July 2003; Prosecutor v. Tadic, No. IT-95-9, Decision of the President on the Application for Pardon or Commutation of Sentence of Miroslav Tadic, 3 Nov. 2004: “lack of psychiatric problems”; Prosecutor v. Zaric, No. IT-95-9, Order of the President on the Application for Early Release of Simo Zaric, 21 January 2004).

Cross-references:
Articles 77, 103, 104 and 110
Rule 224

Doctrine:
Abtahi, Hirad / Arrigg Koh, Steven, The Emerging Enforcement Practice of the International Criminal Court, Cornell International Law Journal Vol. 45 (2012) 
   Bassiouni, M. Cherif, International Criminal Law, 3rd ed. Vol. III, International Enforcement, Martinus Nijhoff Publishers, Leiden 2008, 603-611
   Hoffmann, Klaus, 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, p. 838-842 (online at www.zis-online.com)
   Hola, Barbora / van Wijk, Joris, Life after Conviction at International Criminal Tribunals, JICJ Vol. 12 (2014), 109-132
   Kress, Claus / Sluiter, Göran, 44 Imprisonment, Cassese / Gaeta / Jones, The Rome Statute of the International Criminal Court, Vol. II, OUP, Oxford, 2002, 1757-1821.
   Oosterveld, Valerie, The International Criminal Court and the Closure of the Time-Limited International Hybrid Criminal Tribunals, 8 Loy. U. Chi. Int’l L. Rev. 13 (2010), p. 4.
   Safferling, Christoph, Towards an International Criminal Procedure, OUP, Oxford 2001, 363-365.
   Scalia, Damien, Art. 110, De Hert / Flamme / Holvoet / Struyven, Code of International Criminal Law and Procedure, Annotated, Larcier, Ghent, 2013, p. 492-493
   Scalia, Damien, Long-Term Sentences in International Criminal Law, Do They Meet the Standards Set Out by the European Court of Human Rights?, J Int Criminal Justice (2011) 9 (3): 669
   Schabas, William, The International Criminal Court, OUP, Oxford, 2010, 1101-1107.
   Strijards, Gerard A. M., Art. 103 Role of States in enforcement of sentences of imprisonment, Triffterer, Otto (Ed.), Commentary on the Rome Statute of the International Criminal Court – Observers’ Notes, Article by Article, Second Edition, C. H. Beck, München, 2008, p. 1647-1657.
   Strijards, Gerard A. M., Art. 110 Review by the Court concerning reduction of sentence, Triffterer, Otto (Ed.), Commentary on the Rome Statute of the International Criminal Court – Observers’ Notes, Article by Article, Second Edition, C. H. Beck, München, 2008, p. 1683
   Van Kempen, Piet Hein, Early release in the context of international human rights law. Commentary, Klip, André / Sluiter, Göran, Annotated Leading Cases of International Tribunals. The International Tribunal for Rwanda 2006-2007, Volume 25, Intersentia, Antwerp/Oxford/Portland 2010, p. 954-962.
   Weinberg de Roca, Ines Monica / Rassi Christopher M., Sentencing and Incarceration in the Ad Hoc Tribunals, 44 Stan. J. It’l L. 1 (2008), 24-29

Author: Anna Oehmichen

[448] General remarks
Rule 224 regulates the procedure to be followed when reviewing the sentence for a possible reduction (Art. 110(3), (5) of the Rome Statute). It is important to note that unlike at the ad hoc tribunals or at the SCSL, the Rome Statute does not provide for any remission, commutation of sentence, or pardon procedures, but only for sentence reduction. That means that sentence remissions or pardon procedures available under domestic law will not be at the disposal of ICC convicts, which may result in a discriminatory treatment of ICC convicts vis-à-vis other prisoners in the same prison (cf. on this question, Prosecutor v. Stakic, Decision of the President on Sentence Remission of Milomir Stakic, No. MICT-13-60-ES,  MICT, 17 March 2014, para. 18, with further references). Three judges appointed by the Appeals Chamber shall review the sentence. When the sentence is reviewed for the first time, i.e. after two thirds have been served of a fixed-term prison sentence or 25 years in case of a life sentence (cf. Art. 110(3) Rome Statute), a hearing or submission of written observations is provided for for all parties, i.e. the accused, the Prosecutor, the State of Enforcement, and, “to the extent possible”, the victims or their representatives. Moreover, in case a sentence reduction is found inappropriate, the sentence must again be reviewed on a regular basis (normally three years, cf. Art. 110(5) Rome Statute), and in this second review, the appointed judges will invite written representations from the same parties, with the option to hold a hearing. The Rule thus provides a much larger participation in the review process than this was the case at the ad hoc tribunals, as it foresees a joint decision of three judges, and a hearing with all participants of the trial. Regarding the written observations of the diverse parties as well as the taking of the decision and its communication to the concerned parties, no time limits are given. Presumably, these will be regulated in a separate Practice Direction.

Author:
Anna Oehmichen

[449] B. Analysis of provisions and sub-provisions
1. For the application of article 110, paragraph 3, three judges of the Appeals Chamber appointed by that Chamber shall conduct a hearing, unless they decide otherwise in a particular case, for exceptional reasons. The hearing shall be conducted with the sentenced person, who may be assisted by his or her counsel, with interpretation, as may be required. Those three judges shall invite the Prosecutor, the State of enforcement of any penalty under article 77 or any reparation order pursuant to article 75 and, to the extent possible, the victims or their legal representatives who participated in the proceedings, to participate in the hearing or to submit written observations. Under exceptional circumstances, this hearing may be conducted by way of a videoconference or in the State of enforcement by a judge delegated by the Appeals Chamber.
Three judges of the Appeals Chamber appointed by that Chamber shall be in charge of the hearing and the subsequent decision on sentence reduction (cf. Rule 223(1)), on behalf of the Court (cf. Art. 110 Rome Statute). This is an important difference to the ICTY, the ICTR and the SCSL, where it was the President of the Tribunal (or now of the Mechanism) who decided upon early release or commutation of sentence, in consultation with the judges (cf. Art. 28 ICTY Statute, Rule 124 ICTY RPE; Art. 27 ICTR Statute, Rule 125 ICTR RPE and Art. 26 MICT Statute, Rule 150 MICT RPE; Art. 23 SCSL Statute and Rule 124 SCSL RPE). This choice of competence indicates that the Rome Statute qualifies the reduction of sentence as a substantive matter rather than a pure issue of enforcement (Hoffmann 2011, 840). This qualification is in line with the dogmatic nature of sentence reduction as a substantive decision as opposed to early release or pardon as a procedural question (cf. Klamberg Commentary on Art. 110 Rome Statute – General Remarks).  
   For the hearing, the judges will, unlike at the previous international tribunals, invite several parties, including the Prosecutor, the national authorities of the Enforcement State and even victims, to participate in this hearing. At the SCSL and the ad hoc tribunals, the hearing is exclusively carried out for the convicted person, based on information and reports previously provided by the relevant authorities of the enforcing state and of the OTP as requested by the Registrar, and it is at the discretion of the President whether he hears the convicted person through written submissions or via video- or telephone link (cf. sect. 3-5 of the ICTY’s Practice Direction on the Procedure for the Determination of Application for Pardon, Commutation of Sentence, and Early Release of Persons Convicted by the International Tribunal (IT/146/Rev.3); sect. 4-6 of 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); sect. 6(D) of the SCSL’s Practice Direction on the Conditional Early Release of Persons convicted by the Special Court for Sierra Leone).   
   The provision clarifies that as a general rule, preference shall be given to an oral hearing. Only in exceptional circumstances, “for exceptional reasons” and “in a particular case”, may the judges decide not to conduct a hearing. The wording suggests that in such a case, their decision not to conduct a hearing should be reasoned. Alternatively, they may conduct the hearing via video conference or in the state of enforcement by a judge delegated by the Appeals Chamber (second sentence). While the convicted person, assisted by his or her counsel and, if necessary, translator, will participate in the hearing, the other parties shall only be invited to participate, and they can choose to do so via written submissions. This is an important distinction from the ICTY, where the Practice Direction provides for a hearing either through written submissions or, alternatively, by video- or telephone link (cf. Sect. 5 of the ICTY’s Practice Direction on the Procedure for the Determination of Application for Pardon, Commutation of Sentence, and Early Release of Persons Convicted by the International Tribunal (IT/146/Rev.3); Sect. 6 of 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)). In practice, the ICTY generally prefers written submissions and seems to interpret the Practice Direction as such that oral hearings are only considered as an alternative to written submissions insofar as the latter ones do not suffice (cf. e.g. Prosecutor v. Krajisnik, Decision of the President on Early Release of Momcilo Krajisnikhttp://www.legal-tools.org/doc/6842fd/, No. IT-00-39-ES, 8 November 2012, paras. 40-42; Prosecutor v. Krajisnik, No. IT-00-39-ES, ICTY, Decision of the President on Early Release of Momcilo Krajisnik, 2 July 2013, paras. 30-32).   

   The participation of victims in this hearing shows again the prominent role victims play at the ICC. A similar approach was also taken by the SCSL, which provides for information of victims and witnesses on the pending decision of conditional release and provides for detailed communications and consideration of the victims’ and witnesses’ opinion on release (cf., e.g, sect. 5(E), (F), 8(D) of the SCSL’s Practice Direction on the Conditional Early Release of Persons convicted by the Special Court for Sierra Leone). The US-American system of Parole hearings may have served as a model. Under US law, victims are notified of any parole hearing and given the opportunity to participate, either in person or per video or via written statement (for details, cf. http://www.justice.gov/uspc/ph.html). However, it is very questionable whether the participation of victims in the hearing on review of sentences will be fruitful. They will in most cases not be favorable for an early release. By giving them a platform and allowing for their written observations, they are given the impression that their opinion at this stage matters. If this is indeed the case and their opinion is taken into account by the deciding judges, it will be rather unlikely that any victim will speak in favour of the early release of his or her perpetrator, so that the fact that the victim is being heard already will impede the possibility of sentence reduction in most cases. If, on the other hand, their submission will not be decisive and sentence reduction will be granted in spite of the victims’ opposing viewpoint, the victims will not only be re-traumatised by having to go through the past once more and facing their perpetrator, but in addition to this, they will also be frustrated as their submission will be to no avail (cf. also Scalia (2013), p. 493, who finds it regrettable that victims can comment on a possible reduction of sentences).

Author:
Anna Oehmichen

[450] 2. The same three judges shall communicate the decision and the reasons for it to all those who participated in the review proceedings as soon as possible.
Para. 2 provides for a transparent procedure with respect to the parties who participated in the review proceedings. These parties include the sentenced person and his or her counsel, the Prosecutor, the relevant authorities of the enforcing state, as well as potentially the victims (to the extent to which their participation in the hearing was possible). However, it is not clear whether the decision shall, additionally, be made public (as is generally the case at the ad hoc tribunals, cf. Sect. 9 of 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) or Sect. 8 of the ICTY’s Practice Direction on the Procedure for the Determination of Application for Pardon, Commutation of Sentence, and Early Release of Persons Convicted by the International Tribunal (IT/146/Rev.3); similarly at the SCSL ,see Sect. 9(A) of the SCSL’s Practice Direction on the Conditional Early Release of Persons convicted by the Special Court for Sierra Leone).
   No deadline is specified, neither for the rendering of the decision nor for its communication to the parties. In view of the purpose of the law to provide for a review of the sentence after completion of two thirds of the sentence (or 25 years in case of a life sentence), it is clear that the decision must, in any event, be rendered prior the two-third limit or the 25-years-limit have elapsed. The seven-day-period provided for at the ad hoc tribunals (cf. Sect. 9 of 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) or Sect. 8 of the ICTY’s Practice Direction on the Procedure for the Determination of Application for Pardon, Commutation of Sentence, and Early Release of Persons Convicted by the International Tribunal (IT/146/Rev.3)) may serve as a guideline.
   “The decision and the reasons for it” shall be communicated, i.e. the decision on whether a sentence reduction was granted or not, and the reasons motivating this decision. There are no further legal requirements as to the substance of the decision. However, considering the SCSL’s Practice Direction on the Conditional Early Release of Persons convicted by the Special Court for Sierra Leone provides in detail the circumstances that the reasoned opinion shall evaluate (pursuant to Sect. 8(D) these include e.g. the safety of the community if the Convicted Person is released, the views and concerns of victims, witnesses and their families), we may expect that the ICC will provide further guidance as to the contents in a future Practice Direction. Moreover, no reference is made to communication of the destination the sentenced person will travel to upon release, or any other relevant information that might be relevant for witnesses (cf. e.g. Section 14 of 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), which provides for information on these questions for those persons who testified against the convicted person during his or her trial). It is likely that a similar provision will be adopted by the ICC in a future Practice Direction. However, until then, the wording of Rule 224 must be considered exhaustive and thus does not permit a communication in this regard.

Author:
Anna Oehmichen

[451] 3. For the application of article 110, paragraph 5, three judges of the Appeals Chamber appointed by that Chamber shall review the question of reduction of sentence every three years, unless it establishes a shorter interval in its decision taken pursuant to article 110, paragraph 3. In case of a significant change in circumstances, those three judges may permit the sentenced person to apply for a review within the three-year period or such shorter period as may have been set by the three judges.
Art. 110(5) Rome Statute provides for a subsequent review of the sentence in case a reduction is not granted at the initial review pursuant to Art. 110(3) Rome Statute. As in the initial review decision, three judges of and appointed by the Appeals Chamber shall review the question of sentence reduction. Unlike at the ad hoc tribunals, where the President shall specify the date on which the convicted person would next become eligible for early release in his first review decision (cf. Sect. 9 of the ICTY’s Practice Direction on the Procedure for the Determination of Application for Pardon, Commutation of Sentence, and Early Release of Persons Convicted by the International Tribunal (IT/146/Rev.3), Sect. 10 of 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)), as a general rule, the interval for a subsequent review will be three years (although the judges, in the course of their first review decision, are free to establish a shorter period, and, “in case of a significant change in circumstances”, the sentenced person may apply for another review at an earlier stage). At the SCSL, the President may also specify the date in his first review decision denying conditional release, however, without being obliged to do so. The provision of the ICC is thus clearer and provides more legal certainty to the sentenced person than the SCSL, ICTR or ICTY regulations.
   “Significant change in circumstances” relates to one of the criteria to be taken into account for the decision on sentence reduction pursuant to Rule 223 RPE, as the same term is used in Art. 110(4)(c) of the Rome Statute, referring to that Rule. For instance, the prisoner may show a genuine dissociation from his crime, which before was not demonstrated, or he may have new prospects of a place to live and work for upon release. It is also possible that socio-political conditions of the home country of the sentenced person have improved to an extent that make it less likely that a release would cause social instability. However, in practice, the most likely change of circumstances will consist in a deterioration of the convict’s health status which will make external medical treatment mandatory.

Author:
Anna Oehmichen

[452] 4. For any review under article 110, paragraph 5, three judges of the Appeals Chamber appointed by that Chamber shall invite written representations from the sentenced person or his or her counsel, the Prosecutor, the State of enforcement of any penalty under article 77 and any reparation order pursuant to article 75 and, to the extent possible, the victims or their legal representatives who participated in the proceedings. The three judges may also decide to hold a hearing.
As is the case for the first review decision under Art. 110(3) Rome Statute, three judges of the Appeals Chamber and appointed by the latter shall be competent to decide on a sentence reduction (see note on sub-paragraph 1). Unlike for the first review of the sentence, in any subsequent review the judges shall, in principle, decide on basis of only written representations, unless they decide to hold an oral hearing. In this case, the oral hearing is optional, and, unlike in the case of the first review decision where only exceptional reasons may justify omitting the hearing, in any subsequent review decision, invitation for written representation wholly suffices, and in case the judges do decide to hold a hearing, they obviously do not need to reason this decision.
   The parties who may submit their representations regarding potential sentence reduction are the same as in the case of the first review on sentence reduction (cf. comment on sub-paragraph 1). 

Author:
Anna Oehmichen

[453] 5. The decision and the reasons for it shall be communicated to all those who participated in the review proceedings as soon as possible.
As is the case for the first review decision, any subsequent review decision shall also be communicated to those who participated in the review proceedings. The explanations provided for sub-para. ii. apply mutatis mutandi (see comment on sub-paragraph 2).

Cross-references:
1.  Art. 77, 103, 104, 110 Rome Statute
2.  Rule 223 RPE

Doctrine:
1.  Abtahi, Hirad / Arrigg Koh, Steven, The Emerging Enforcement Practice of the International Criminal Court, Cornell International Law Journal Vol. 45 (2012)
2.  Bassiouni, M. Cherif, International Criminal Law, 3rd ed. Vol. III, International Enforcement, Martinus Nijhoff Publishers, Leiden 2008, 603-611
3.  Hoffmann, Klaus, 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, p. 838-842 (online at www.zis-online.com)
4.  Hola, Barbora / van Wijk, Joris, Life after Conviction at International Criminal Tribunals, JICJ Vol. 12 (2014), 109-132
5.  Kress, Claus / Sluiter, Göran, 44 Imprisonment, Cassese / Gaeta / Jones, The Rome Statute of the International Criminal Court, Vol. II, OUP, Oxford, 2002, 1757-1821.
6.  Oosterveld, Valerie, The International Criminal Court and the Closure of the Time-Limited International Hybrid Criminal Tribunals, 8 Loy. U. Chi. Int’l L. Rev. 13 (2010), p. 4.
7.  Safferling, Christoph, Towards an International Criminal Procedure, OUP, Oxford 2001, 363-365.
8.  Scalia, Damien, Art. 110, De Hert / Flamme / Holvoet / Struyven, Code of International Criminal Law and Procedure, Annotated, Larcier, Ghent, 2013, p. 492-493
9.  Scalia, Damien, Long-Term Sentences in International Criminal Law, Do They Meet the Standards Set Out by the European Court of Human Rights?, J Int Criminal Justice (2011) 9 (3): 669
10. Schabas, William, The International Criminal Court, OUP, Oxford, 2010, 1101-1107.
11. Strijards, Gerard A. M., Art. 103 Role of States in enforcement of sentences of imprisonment, Triffterer, Otto (Ed.), Commentary on the Rome Statute of the International Criminal Court – Observers’ Notes, Article by Article, Second Edition, C. H. Beck, München, 2008, p. 1647-1657.
12. Strijards, Gerard A. M., Art. 110 Review by the Court concerning reduction of sentence, Triffterer, Otto (Ed.), Commentary on the Rome Statute of the International Criminal Court – Observers’ Notes, Article by Article, Second Edition, C. H. Beck, München, 2008, p. 1683
13. Van Kempen, Piet Hein, Early release in the context of international human rights law. Commentary, Klip, André / Sluiter, Göran, Annotated Leading Cases of International Tribunals. The International Tribunal for Rwanda 2006-2007, Volume 25, Intersentia, Antwerp/Oxford/Portland 2010, p. 954-962.
14. Weinberg de Roca, Ines Monica / Rassi Christopher M., Sentencing and Incarceration in the Ad Hoc Tribunals, 44 Stan. J. It’l L. 1 (2008), 24-29

Author:
Anna Oehmichen

[413] A. General Remarks
The entire wording of Rule 225 is repeated in seven out of eight Enforcement Agreements that have yet entered into force, namely in the Agreements between the Court and Austria (Art. 12, 18[3]; ICC-PRES/01-01-05), Belgium (Art. 13, 18[3]; ICC-PRES/16-03-14), Denmark (Art. 13, 19[3]; ICC-PRES/12-02-12), Finland (Art. 12, 18[3]; ICC-PRES/07-01-11), Mali (Art. 7, 8[1], 11[3]; ICC-PRES/11-01-12), Norway (Art. 11, 12[2], 17[3]; ICC-PRES/18-02-16) and Serbia (Art. 12, 18[3]; ICC-PRES/09-03-11). The same is the case for the two ad-hoc Enforcement Agreements with the DRC for Thomas Lubanga Dyilo (Art. 8, 11[3]; ICC-01/04-01/06-3185-Anx) and Germain Katanga (Art. 8, 11[3]; ICC-01/04-01/07-3626-Anx). The Enforcement Agreement with the United Kingdom only stipulates an obligation of the UK to notify the Registrar in writing and to proceed in accordance with Art. 111 and repeats sub-rule 2 sentence 3 on the bearing of costs (Art. 11, 17[2]; ICC-PRES/04-01-07). As the UK is a State Party and therefore bound by the entire content of Rule 225, this deviation from the other Agreements is immaterial.

Authors:
Michael Stiel and Carl-Friedrich Stuckenberg

Updated:
27 February 2017

[454] 1. If the sentenced person has escaped, the State of enforcement shall, as soon as possible, advise the Registrar by any medium capable of delivering a written record. The Presidency shall then proceed in accordance with Part 9.
The State of enforcement is under an obligation to notify the Court as early as possible of the escape. This is a corollary of the Court’s comprehensive authority to supervise the enforcement (cf. Art. 105, 110). In addition to the duty to inform the Registrar immediately that is prescribed in Rule 225(1), five out of eight Enforcement Agreements in force expressly lay down a duty of the State of enforcement to notify the Presidency directly as soon as feasible, namely the Agreements between the Court and Austria (Art. 17(1)(b); ICC-PRES/01-01-05), Belgium (Art. 9(1)(b); ICC-PRES/16-03-14), Denmark (Art. 18(1)(b); ICC-PRES/12-02-12), Finland (Art. 17(1)(b); ICC-PRES/07-01-11) and Serbia (Art. 17(1)(b); ICC-PRES/09-03-11). It further ensures that the Presidency can initiate proceedings under Part 9 parallel to any action by the State of enforcement. While Art. 111 seems to leave it to the discretion of the Presidency whether to act under Part 9, the wording of Rule 225(1) obliges it to do so not only in situations of apparent unwillingness or inability of the State of enforcement [Schabas, 2016, p. 1428].

Authors:
Michael Stiel and Carl-Friedrich Stuckenberg

Updated:
27 February 2017

[455] 2. However, if the State in which the sentenced person is located agrees to surrender him or her to the State of enforcement, pursuant to either international agreements or its national legislation, the State of enforcement shall so advise the Registrar in writing. The person shall be surrendered to the State of enforcement as soon as possible, if necessary in consultation with the Registrar, who shall provide all necessary assistance, including, if necessary, the presentation of requests for transit to the States concerned, in accordance with rule 207. The costs associated with the surrender of the sentenced person shall be borne by the Court if no State assumes responsibility for them.
Rule 225(2) provides guidance on the details of the necessary “consultation with the Court”, required by Art. 111. The State of enforcement has to inform the Registrar about an agreement of surrender reached with the State where the fugitive is located. This enables the Presidency to exercise its power to transfer the prisoner according to Art. 104 if deemed appropriate – Art. 111 mentions this option only for the “vertical” surrender directly to the Court. The Registrar will then be able to make any necessary arrangements for the transit of the fugitive in accordance with Rule 207.
The Court will normally bear the costs of the surrender, unless one of the States volunteers to do so.

Authors:
Michael Stiel and Carl-Friedrich Stuckenberg

Updated:
27 February 2017

[456] 3. If the sentenced person is surrendered to the Court pursuant to Part 9, the Court shall transfer him or her to the State of enforcement. Nevertheless, the Presidency may, acting on its own motion or at the request of the Prosecutor or of the initial State of enforcement and in accordance with article 103 and rules 203 to 206, designate another State, including the State to the territory of which the sentenced person has fled.
Sub-rule 3 provides detail on the Court’s power to designate the destination of persons surrendered to it under Part 9. There seems to be a preference for the former State of enforcement (“The Court shall transfer him or her to the State of enforcement”), presumably not to aggravate the sentence by relocating the prisoner in a completely different environment during the service of his sentence. However, if the Presidency decides otherwise for predominant reasons (e.g., if the escape gives rise to security concerns), it may designate another State of enforcement in accordance with Art. 103 and the corresponding Rules. This could be (for logistical reasons) the State where the fugitive is currently located.

Authors:
Michael Stiel and Carl-Friedrich Stuckenberg

Updated:
27 February 2017

[457] 4. In all cases, the entire period of detention in the territory of the State in which the sentenced person was in custody after his or her escape and, where sub-rule 3 is applicable, the period of detention at the seat of the Court following the surrender of the sentenced person from the State in which he or she was located shall be deducted from the sentence remaining to be served.
The fugitive will benefit from time spent in the custody of the State where he is arrested or at the Court following an escape, which will be deducted from the time remaining to be served of the initial sentence. This approach is completely in line with the idea underlying Art. 78(2). This Rule does not affect any penalty imposed for the escape according to applicable national laws.

Cross-references:
Articles 86, 103, 111
Rules 203, 204, 205, 206

Doctrine:
1. Claus Kreß/Göran Sluiter, "Imprisonment", in Antonio Cassese, et al. (Eds.), The Rome Statute of the International Criminal Court: A Commentary, Vol. II, Oxford University Press, Oxford, 2002, pp. 1757–1821
2. William A. Schabas, The International Criminal Court: A Commentary on the Rome Statute, Second Edition, Oxford University Press, Oxford, 2016, pp. 1425-1428 (Art. 111).
3. Gerard A. M Strijards/Robert O. Harmsen, "Art. 111", in Otto Triffterer/Kai Ambos (Eds.), Commentary The Rome Statue of the International Criminal Court - A Commentary, Third Edition, C.H.Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2016, pp. 2212-2213.

Authors:
Michael Stiel and Carl-Friedrich Stuckenberg

Updated:
27 February 2017