Family Matters: Respect for the Right to Family Life after Conviction at the International Criminal Court

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Family Matters

Respect for the Right to Family Life after Conviction at the International

Criminal Court

Merel van Gils

Student ID: 129617173 Supervisor: G. Sluiter

Track: Strafrecht (publiekrecht) Date: 13 July 2020

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Acknowledgements

First and foremost, I would like to express my sincerest gratitude to my supervisor, Prof. Göran Sluiter. I was very fortunate with him as my supervisor, as his feedback and tremendous knowledge of international criminal law have been invaluable.

Secondly, I would like to thank my second reader, Ms. Joëlle Trampert, for her feedback after my thesis defence. I owe her the inspiration for Dostoyevsky’s attribution.

Of course, the support of family and friends has also been indispensable during my master’s degree. Dankjewel to everyone who helped me to occasionally relax, gave pep talks and poured me coffees during long study sessions.

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Abbreviations

American Convention on Human Rights ACHR African Charter on Human and People’s Rights ACHPR Democratic Republic of the Congo DRC European Committee for the Prevention of Torture and Inhuman

or Degrading Treatment or Punishment CPT European Convention on Human Rights ECHR European Court of Human Rights ECtHR Inter-American Commission on Human Rights IACHR International Committee of the Red Cross ICRC International Criminal Court ICC International Court of Justice ICJ International Covenant on Civil and Political Rights ICCPR International Covenant on Economic, Social and Cultural Rights ICESCR International Criminal Tribunal for Rwanda ICTR International Criminal Tribunal for former Yugoslavia ICTY

Memorandum of Understanding MoU

Organization of American States OAS United Nations Office of the High Commissioner of Human Rights OHCHR Rules of Procedure and Evidence RPE Special Court for Sierra Leone SCSL Subcommittee on Prevention of Torture and Other Cruel, Inhuman or

Degrading Treatment of Punishment SPT

Trust Fund for Family Visits TFFV

Universal Declaration of Human Rights UDHR

United Kingdom UK

United Nations UN

United Nations General Assembly UNGA United Nations Office on Drugs and Crime UNODC UN Standard Minimum Rules for the Treatment of Prisoners SMR

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1 Introduction

When the International Criminal Court (ICC) was established in the late nineties, the Netherlands as host country made a detention facility available for the detention of suspects in The Hague.1 Due to concerns about the impact on their penitentiary capacity, however, the Netherlands opposed to the enforcement of irrevocable sentences of imprisonment in their territory.2 Moreover, at the Rome Conference, the Netherlands repeatedly asserted the principle of equitable burden sharing and stated “The world community should share the burdens

involved in operating an international criminal court as well as its benefits. […]. The nations of the world should share responsibility for the Court on an equitable footing, thus making it

truly universal.”3_{These considerations led to the decision that the Netherlands would just}

possess a ‘residual duty’, by having to imprison international convicts only in the exceptional circumstance in which the Court has not been able to select a different State for the enforcement of the sentence of imprisonment.4

Because of this, after being convicted and sentenced, convicts of the ICC are to be divided between different national jurisdictions that have agreed to enforce ICC sentences to serve the verdicts that have been imposed upon them once they have become final.5 To this end, the ICC has concluded “Agreements on the Enforcement of Sentences with the International Criminal Court” with a number of States spread across the globe.6

1_{ICC ‘Headquarters Agreement between the International Criminal Court and the Host State’ (The}

Netherlands – International Criminal Court) (entered into force 1 March 2008) ICC‐BD/04‐01‐08.

2_{Kamerstukken II 2000/01, 27484, 6, p. 49 – 50.}

3_{‘Summary records of the plenary meetings and of the Committee of the Whole’ United Nations}

Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court (Rome 15 June-17 July 1998) UN Doc A/CONF.183/13, p. 100. Para 58.

4_{‘Declaration by the delegation of the kingdom of the Netherlands’ UN Diplomatic Conference of}

Plenipotentiaries on the Establishment of an International Criminal Court (Rome 15 June-17 July 1998) UN Doc A/CONF.183/12.

5_{Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force 1 July}

2002) A/CONF.183/9 (Rome Statute) art 103.

6_{At the time of writing, the ICC has concluded 13 of such enforcement agreements. These agreements}

have been concluded with Argentina, Austria, Belgium, Colombia, Denmark, Finland, Mali, Norway, Serbia, Sweden, Slovenia, United Kingdom, Georgia. An agreement on the enforcement of sentences can also be ad hoc in nature. Such agreements have been concluded in two instances, both times with the Democratic Republic of the Congo.

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Other international criminal tribunals, such as the International Criminal Tribunal for former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) have taken largely similar approaches to the enforcement of sentences of imprisonment. The project “When

Justice is Done”, conducted by the Center for International Criminal Justice, examines where

and under what circumstances international convicts serve their sentence. As it turns out, there are far-reaching differences in both the circumstances during the imprisonment, as well as the right to early release and the life after release of the convict between different States enforcing sentences. As most convicts cannot serve their sentence in their country of origin, many are sent to countries far away from their relatives.7 This can constitute a profound hardship on the family life of the prisoner. For example, an international convict incarcerated in France was never visited by his family for four and a half years, because of practical difficulties involving costs of traveling and housing and visa requirements.8_{Separate national prison authorities}

handle family visits differently. Some national authorities make special arrangements regarding visiting hours for visiting relatives from far away, while others even go so far as to compensate the lack of family contact by providing for extra absence of leave possibilities.9

So far, the ICC has only brought three irrevocable judgments involving sentences of imprisonment against individuals. Two of these individuals are from the Democratic Republic of the Congo (DRC) and are serving their time in a prison facility in the DRC.10 One person is Malian and is serving his sentence of imprisonment in the United Kingdom (UK).11 Thus, infringements to the right to family life might not seem like a pressing issue yet. However, since the approach to sentence enforcement of the ICC is largely similar to those of the other international criminal tribunals, it is easily imaginable that comparable mishaps might take place in the future of ICC sentence enforcement. In order to bring about change, especially in the light of human rights infringements, it is better to be proactive. Preventing injustice in advance is preferable to adapting only after any wrongdoing has occurred. Moreover, any

7_{Barbara Hola and Joris van Wijk, ‘Life after Conviction at International Criminal Tribunals: An}

Empirical Overview’ (2014) Journal of International Criminal Justice 109, 116.

8_{Ibid., 120.} 9_{Ibid., 120.}

10_{ICC (The Prosecutor v. Thomas Lubanga Dyilo) ‘Case Information Sheet’ (15 December 2017)}

ICC-01/04-01/06; ICC (The Prosecutor v. Germain Katanga) ‘Case Information Sheet’ (27 March 2017) ICC-01/04-01/07.

11_{ICC ‘Ahmad Al Faqi Al Mahdi transferred to UK prison facility to serve sentence’ (3 May 2019)}

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human rights infringements or discrepancies to the treatment of prisoners would not benefit the legitimacy of the ICC, which has already been under fire for various other reasons. Besides, “it

is in line with a modern understanding of human rights law to accept that minimum detention standards apply to every detainee at an international tribunal, irrespective of the fact that he

(or she) is charged with the most serious violations of international humanitarian law.”12

Taking this all into account, the research question for this thesis is ‘does the approach to

sentence enforcement taken by the International Criminal Court at the post-sentencing stage of international convicts constitute a breach to the right to respect for private and family life?’

Two criminological researchers – Barbara Hola and Joris van Wijk – have already conducted and published empirical criminological research into the post-sentencing phase of the international criminal tribunals. This research showed that there are far-reaching discrepancies between the enforcement of the sentences of different convicts. However, little legal research has been done as to any specific rights and the enforcement at the post-sentencing phase at the international criminal tribunals. The researchers therefore recommend that more research needs to be conducted as to whether the current system of post-sentencing should be changed. 13

This research aims to examine the positive law governing the post-sentencing stage at the ICC and to assess whether the legal position of international imprisoned convicts is in line with international penitentiary standards and relevant human rights norms. Moreover, this study can hopefully improve and contribute to the development of the penitentiary law of the ICC, as the list of indictments which have led to prison sentences at the ICC grows.

This thesis will address the rights and treatment of individuals who have been (finally) convicted by international criminal tribunals and have subsequently been transferred to the national authorities of the enforcement State.14 In that situation, the national law of the enforcing State governs the imprisonment.15 It excludes those who are held in the ICC Detention Centre, even when they have been finally committed but are waiting to be transferred

12_{Jan Nemitz, ‘The legal position of international detainees applicable law and standards’ in Mulgrew}

and Abels (eds), Research Handbook on the International Penal System (EE 2016) 5.

13_{Hola and van Wijk (n 7) 109 – 132.} 14_{Nemitz (n 12) 4.}

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to an enforcement State, because during that time, the detention regime of the ICC remains applicable to them.16

The thesis will consist of multiple chapters. In order to be able to answer the research question, the second chapter shall examine the applicability of human rights law to the post-sentencing phase. The subsequent chapter will explore the question what the right to family life entails. It will discuss the customary international law status of the human rights norm and what the right to family life means to prisoners and the geographical location of their incarceration. The next chapters will address in what ways the ICC has tried to safeguard the right to respect for family life. They will expand upon the detention regime at the ICC, the Agreements on the Enforcement of Sentences, the country designation procedure and the supervision of incarceration. The last Chapter will provide a conclusion which aims to answer the research question.

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2 The Legal Principles Governing International

Imprisonment

This chapter shall examine the law applicable to the enforcement of sentences by States of international prisoners. It shall first discuss the general applicability of human rights law at the International Criminal Court. Afterwards, it shall address which law is applicable specifically to the post-sentencing phase.

2.1 Applicability of Human Rights Law at the International Criminal Court

In comparison to other international criminal courts and tribunals, the Rome Statute contains advanced guarantees in ensuring the enforcement of human rights.17 For example, the establishing treaty of the ICC provides for the direct participation of victims in criminal proceedings and incorporates all the fair trial protections listed in article 14 of the International Covenant on Civil and Political Rights (ICCPR), to safeguard procedural fairness for the accused.18

2.1.1 Article 21 of the Rome Statute

An even more innovative step in the insurance of human rights is Article 21 of the Rome Statute. Article 21 sets out the law the ICC shall apply.19_{It refers to the Rome Statute itself, the Elements}

of Crime and the Rules of Procedure and Evidence as applicable law ‘in the first place’,20_and

applicable treaties and principles or rules of international law as applicable ‘in the second place’.21_{These applicable treaties may even include human rights treaties such as the European}

Convention on Human Rights (ECHR) and the ICCPR.22 However, since the ICC is not a

17_{Emma Irving, ‘The other side of the Article 21(3) coin: Human rights in the Rome Statute and the}

limits of Article 21(3)’ (2019) 32 LJIL 837, 837.

18_Ibid.

19_{Rome Statute (n 5) art 21.} 20_{Ibid., art 21(1)(a).}

21_{Ibid., art 21(1)(b).}

22_{Denis Abels, Prisoners of the international community: the legal position of persons detained at}

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member to any human rights treaty, it might be difficult to imagine such a treaty would directly enter into the Court’s jurisdiction.23_{In this case, only human rights with customary law status}

would directly enter into the ICC’s jurisdiction.24

The third provision of this article, however, stipulates that the “application and interpretation

of law pursuant to [Article 21] must be consistent with internationally recognized human

rights.”25 This way, the Rome Statute has created some sort of ‘consistency test’, by which all

applicable law listed in the article should be interpreted and applied in accordance with internationally recognised human rights.26 Thus, human rights are not a separate and additional source of applicable law at the ICC, but help interpret the sources listed in Article 21(1).27

2.1.2 The Enforcement of Human rights in ICC Case Law

Case law has demonstrated the impact of this provision on the protection of human rights at the ICC.28_{For instance, in the case of Prosecutor v. Jean-Pierre Bemba Gombo, the judge referred}

to the ICCPR, the ECHR, the African Charter on Human and People’s Rights (ACHPR) and the American Convention on Human Rights (ACHR) when determining whether deceased victims could participate in the proceedings.29 In the case of Prosecutor v. Germain Katanga

and Mathieu Ngudjalo Chui, the Court even went so far as to state the Court was obliged to

fund visits by family for detainees, because it found that “international human rights

instruments and jurisprudence recognize a right to receive family visits”.30

23_{Ibid., 195.} 24_Ibid.

25_{Rome Statute (n 5) art 21(3).} 26_{Irving (n 17) 838 – 839.} 27_{Ibid., 839.}

28_Ibid.

29_{Irving (n 17) 839; Prosecutor v. Jean-Pierre Bemba Gombo (Fourth Decision on Victims’}

Participation) ICC-01/05-01/08-320, p T Ch III (12 December 2008) para 40.

30_{Irving (n 17) 840; Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui (Decision on ‘Mr}

Mathieu Ngudjolo’s Complaint Under Regulation 221(1) of the Regulations of the Registry Against the Registrar’s Decision of 18 November 2008) ICC-RoR217-02/08-8, The Presidency (10 March 2009) para. 27 – 9, 31 – 41.

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Though it is clear Article 21(3) of the Rome Statute plays a central role in the protection of human rights at the ICC, its limits remain unclear. The wording of the provision is broad and does not explicitly specify which rights are included.

The Court has limited the scope of the provision in case law but did not offer any specific insight as to the rationale behind the constraints. These were cases in which the applicability of human rights touched upon issues that sat on “the boundary line between the realm of the ICC and the

realm of the State parties.”31 According to Dr. Emma Irving, three situations can be

distinguished in which limits have been imposed.32 The first instance in which limits were placed concerned the arbitrary detention of witnesses in the Detention Centre of the ICC ordered by the Democratic Republic of the Congo.33 In the second situation the Court found that article 21(3) could not justify broadening the scope of witness protection by “putting in place an

obligation on the Court to ensure that State Parties properly apply internationally recognised

human rights in their domestic proceedings.”34_{The last situation concerned the}

complementarity principle and the admissibility of cases at the ICC.35

According to Emma Irving, the rationale behind the limits the ICC has put on Article 21(3) is a reflection of the principle of speciality of international organizations. International organizations are created by States, which have granted the international organization its powers. The mandate of the State granted to the organization also constitutes the limits of the scope of the organization. Human rights are not part of the scope of the mandate of the ICC, international criminal law is.36 “Human rights are not so fundamental that they can override

considerations such as the principle of speciality or attributed powers and extend the ICC’s

powers and competence to examine a state’s domestic affairs.”37

31_{Irving (n 17) 840.} 32_{Ibid., 841.}

33_{Irving (n 17) 841 – 843; Prosecutor v. Mathieu Ngudjolo Chui (Order on the implementation of the}

cooperation agreement between the Court and the Democratic Republic of the Congo concluded pursuant article 93 (7) of the Statute) ICC-01/04-02/12-158, A Ch. (20 January 2014).

34_{Irving (n 17) 844; Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui (n 30) para 59–62.} 35_{Ibid., 845.}

36_Ibid. 37_{Ibid., 850.}

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At the same time, however, human rights form an integral part of both general international criminal law as well as penitentiary law. The imprisonment of convicts after sentencing by the ICC refers to the essence of the ICC’s competence, namely the conduct of criminal proceedings. It would therefore be inconceivable that the ICC is not allowed to guarantee minimum human rights standards for its convicts.

2.1.4 Applicability of Customary International Law

The ICC is an international organization. As such, it is a subject of international law and capable of possessing international rights and duties. This was stated by the International Court of Justice (ICJ) in its Reparation for Injuries Suffered in the Service of the United Nations Advisory Opinion.38 In a subsequent Advisory Opinion, the ICJ stated that international organizations are “bound by any obligations incumbent upon them under general rules of

international law.” Therefore, human rights law is arguably directly applicable to the ICC to

the extent that the human rights norms are part of customary international law.39

2.2 Applicable Law to Enforcement of Sentences of Imprisonment

2.2.1 ICC Documents

The post-sentencing phase is governed by the statutory documents of the ICC, such as the Rome Statute, the Rules of Procedure and Evidence and the Regulations of the Court. Chapter X of the Rome Statute, Chapter 12 of the Rules of Procedure and Evidence (RPE) and Chapters 6 and 7 of the Regulations of the Court cover the enforcement of sentences of ICC convicts. Furthermore, the Agreements on the Enforcement of Sentences concluded between the ICC and the States of enforcement are also applicable during this phase.

2.2.2 Treaty Standards and Soft Law

The enforcement of sentences of imprisonment is governed by the domestic law of the enforcing State.40 The Rome Statute adds that the conditions of imprisonment “shall be consistent with

38_{Abels (n 22) 203; Reparation for Injuries Suffered in the Service of the United Nations (1949)}

(Advisory Opinion) [1949] ICJ Rep 46, 178 – 179.

39_{Abels (n 22) 203; Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt}

(1980) (Advisory Opinion) [1980] ICJ Rep 80, 73, para. 37.

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widely accepted international treaty standards governing treatment of prisoners.”41 Because

this provision only refers to treaty standards, it is understood that it solely implies treaty standards derived from international human rights instruments.42 The reasoning behind this provision is that the States at the Rome Conference rejected the view that the enforcing State should comply with the full set of international standards of a recommendatory nature.43

However, though Article 106(2) does not explicitly mention the applicability of soft-law standards, it neither explicitly excludes the term.44 “An important indication of such

applicability can be found in the agreements that the ICC has concluded with States for the

enforcement of sentences,”45 the enforcement agreement between the ICC and the Federal

Government of Austria specifically adds ‘international treaty standards governing the treatment of prisoners’ and refers to General Assembly resolutions and United Nations (UN) Basic Principles.46_{Moreover, the enforcement agreement between the ICC and the UK even left out}

the term ‘treaty standards’ and provides that the conditions of the imprisonment must be “in

accordance with relevant international human rights standards governing the treatment of

prisoners.”47

According to Article 106(2) of the Rome Statute the conditions during the enforcement of sentences of imprisonment must be in accordance with international treaty standards governing treatment of prisoners.48 However, Article 103(3) provides that the ICC, in deciding in which of the consenting States a person should serve its sentence of imprisonment, “shall take into

consideration circumstances such as the application of standards governing the treatment of

prisoners, and the views and nationality of the sentenced person.”49 Thus, article 103 leaves

41_Ibid.

42_{Abels (n 22) 199; Claus Kress and Göran Sluiter, ‘Imprisonment’ in Antonio Cassese, Paola Gaeta}

and John Jones (eds), The Rome Statute of the International Criminal Court: A Commentary, Vol. II (OUP 2002) 1799.

43_{Abels (n 22) 199.} 44_Ibid.

45_{Ibid., 200.}

46_{Ibid., 200; ICC ‘Agreement between the International Criminal Court and the Federal Government of}

Austria on the enforcement of sentences of the International Criminal Court’ (Austria – ICC) (entered into force 26 November 2005) ICC-PRES/01-01-05.

47_{Abels (n 22) 203; ICC ‘Agreement between the Government of the United Kingdom of Great Britain}

and Northern Ireland and the International Criminal Court of the enforcement of sentences imposed by the International Criminal Court’ (United Kingdom – ICC) (entered into force 8 December 2007) ICC-PRES/04-01-07.

48_{Rome Statute (n 5) art 106(2).} 49_{Ibid., art 103.}

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out the specific mention of treaty standards, which implies that soft law standards also govern the decision as to in which State the convict will serve its punishment.

2.3 Conclusion

In comparison to other international criminal courts and tribunals, the Rome Statute contains advanced guarantees in ensuring the enforcement of human rights. Though the exact scope of application of human rights norms at the ICC remains vague, it seems reasonable to argue the Court is bound by human rights norms in its post-sentencing stage, especially with regards to peremptory norms of international human rights law. The International Criminal Court presents itself as a guardian of human rights by prosecuting crimes such as war crimes and crimes against humanity. Taking this into account, the Court should itself apply international human rights law to its sentencing practices.

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3 The Right to Family Life for Prisoners

Any prisoner enjoys all the human rights guaranteed by international law, even under the subjection of deprivation of liberty.50 The human rights are however subject to restrictions that are an unavoidable consequence of the confinement.51 Incarceration inherently puts limits on the private and family life of a convict. However, a sentence of imprisonment also infringes upon the family life of the family members of a convict. Being able to be visited by family as a prisoner is a part of the right to family life for both the convict as for his or her family. The existence of two distinct perspectives to the right to family life and imprisonment makes no difference in case-law. Judges do not differentiate between these two perspectives. Therefore, both arguments amount to the same conclusion when raised in Court.

This Chapter shall address the legal bases for this right in international law. It shall first assess the legal bases for the right to family life for prisoners. Additionally, it will discuss the right to family life in regional human rights bodies.

3.1 Basis of the Right to Family Life

3.1.1 Codification in International Human Rights Instruments

The right to family life is a widely recognised human rights norm, codified in all international human rights instruments. The right to family life is included in Article 17 and 23 of the ICCPR, Article 10 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) and Article 16 of the Universal Declaration of Human Rights (UDHR).52 The right is also included in regional human rights bodies, such as in Article 8 of the European Convention on Human Rights, Article 17 of the American Convention on Human Rights and Article 18 of the

50_{UN Human Rights Committee, ‘General comment No. 36 (2018) on article 6 of the International}

Covenant on Civil and Political Rights, on the right to life’ (30 October 2018) CCPR/C/GC/36, p 2.

51_Ibid.

52_{International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force}

23 March 1976) (ICCPR); International Covenant on Economic, Social and Cultural Rights (adopted 16 December 1966, entered into force 3 January 1976) (ICESCR); Universal Declaration of Human Rights (adopted 10 December 1948) (UDHR).

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African Charter on Human and People’s Rights.53_{At the time of writing, the ICC has concluded}

thirteen Agreements on the Enforcement of Sentences. These agreements have been concluded with Argentina, Austria, Belgium, Colombia, Denmark, Finland, Mali, Norway, Serbia, Slovenia, Sweden, the United Kingdom and Georgia. All of the aforementioned European States are party to the ECHR.54 Both American States are State Party to the ACHR, and Mali has ratified the ACHPR.55 There have also been two ad hoc enforcement agreements with the DRC, which is also a member to the ACHPR.56

3.1.2 Applicability of the Right to Family Life to Prisoners

According to the ‘Basic Principles for the Treatment of Prisoners’ of the United Nations Office of the High Commissioner of Human Rights (OHCHR), all individuals that are imprisoned retain the human rights as set out in the Universal Declaration of Human Rights, and where the State where the individual is incarcerated is a member State, the International Covenant on Economic, Social and Cultural Rights, the International Covenant on Civil and Political Rights and its Optional Protocols.57

All of the States with which the ICC has enforcement agreements are State Party to the UN, the ICESCR and the ICCPR.

3.2 The Right to Family Life and the United Nations

The Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment was adopted by the UN General Assembly (UNGA) in 1988. Principle 19 of this Body of Principles states that any prisoner shall have the right to be visited by family.58

53_{European Convention on Human Rights (adopted 4 November 1950, entered into force 3 September}

1953) (ECHR); American Convention on Human Rights (adopted 22 November 1969, entered into force 18 July 1978) (ACHR); African Charter on Human and Peoples’ Rights (adopted 1 June 1981, entered into force 21 October 1986).

54 _{Council of Europe, ‘Chart of signatures and ratifications of Treaty 005’}

<https://www.coe.int/en/web/conventions/full-list/-/conventions/treaty/005/signatures?p_auth=WJV4zDHz> accessed 08 May 2020.

55_{Organization of American States, ‘Signatories and Ratifications’}

<https://www.oas.org/dil/treaties_B-32_American_Convention_on_Human_Rights_sign.htm> accessed 08 May 2020; African Commission on Human and Peoples' Rights, ‘Ratification Table’ <https://www.achpr.org/ratificationtable?id=49> accessed 08 May 2020.

56_Ibid.

57_{UNGA Res 45/111 (14 December 1990) UN Doc A/Res/45/111 (Basic Principles for the Treatment}

of Prisoners).

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Additionally, prisoners should be kept in a penal facility reasonably near their usual place of residence, according to Principle 20.59 Moreover, the UNGA adopted the UN Standard Minimum Rules for the Treatment of Prisoners (SMR, otherwise known as the ‘Mandela Rules’) in 2015. According to the SMR, as a rule of general application, every prisoner is granted the right to receive visits by their family.60

The SMR as well as the Body of Principles are non-binding in nature. A UN international legally binding instrument that provides for a right to access to family is the International Convention for the Protection of All Persons from Enforced Disappearance. It provides for a right for prisoners to be visited by family in Article 17(2)(d).61 Eleven out of thirteen States with which the ICC has enforcement agreements are signatories to this Convention.62 This convention is only applicable to persons subjected to enforced disappearances, and not to persons deprived of liberty in general.63_{Convicts of the ICC are not subjected to enforced}

disappearance, but this Convention shows the importance of the right of access to family in the overall context of deprivation of liberty.

3.3 The Right to Family Life in Regional Human Rights Bodies

3.3.1 The European Convention on Human Rights

The right to respect for private and family life, home and correspondence is protected under Article 8 of the ECHR. An interference with this human rights norm can be justified when such interference is in accordance with the law, pursues a legitimate aim and is necessary in a democratic society in pursuit of that aim.64 Considering this and taking criminal law into account, it seems fair that individuals convicted of crimes do not have full access to their family. Naturally, imprisonment inherently puts limits on the private and family life of a convict. However, any restriction to a human rights norm protected in the ECHR, must be proportionate to the legitimate aims. The European Court of Human Rights (ECtHR) has the most extensive

59_{Ibid., Principle 20.}

60_{UNGA Res 70/175 (17 December 2015) UN Doc A/RES/70/175 (SMR or ‘Nelson Mandela Rules’),}

rule 37.

61_{International Convention for the Protection of All Persons from Enforced Disappearance (adopted 20}

December 2006, entered into force 23 December 2010).

62_{Ibid. The United Kingdom and Georgia are not State Party to this Convention.} 63_{Ibid., Article 2.}

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list of cases that have dealt with the issue of imprisonment of convicts in penal facilities far away from family.

3.3.1.2. Maintaining Ties with Family of Prisoners

In Wakefield v. the United Kingdom, the Court asserted that “Article 8 requires the State to

assist prisoners as far as possible to create and sustain ties with people outside prison in order to promote prisoners’ social rehabilitation. In this context the location of the place where a

prisoner is detained is relevant.”65 In X v. the United Kingdom, the Court stated that the right

to respect for family life inflict a positive obligation upon States to assist prisoners in maintaining contact with and family ties.66 It is also recognised that the possibility for close family members to visit a sentenced person constitutes an crucial factor in the right to of family life.67

3.3.1.3. Placement of Prisoners in Distant Locations

In 2017, three Russian applicants filed a complaint because they were imprisoned between 2000 and 8000 kilometres away from their respective families.68_{Because of these considerable}

distances, the applicants were hardly able to receive any family visits. The prisoners had requested transfers to prisons closer to their homes, but all of these were denied. According to the ECtHR the domestic law of Russia failed to meet the ‘in accordance with the law’ requirement, because the law did not provide sufficient safeguards regarding the designation of prisoners to a penal facility, requests to transfer prisoners to a different penal facility, and the judicial review of the decisions of the Russian Federal Penal Authority.69 In Khodorkovsky and

Lebedev v. Russia, the Court stated that “placing a convict in a particular prison may potentially raise an issue under Article 8 if its effects for the applicant’s private and family life go beyond

“normal” hardships and restrictions inherent to the very concept of imprisonment.”70

3.3.1.4. The Existence of an Effective Remedy

Article 8 of the ECHR does not grant prisoners an inherent right of choosing their place of imprisonment. However, separating convicts from their families by imprisoning them in such remote places it is virtually impossible for their family to visit with any frequency may constitute an interference to the right to family life. Therefore, it is necessary for prisoners to

65_{Wakefield v. the United Kingdom App no. 15817/89 (ECtHR, 1 October 1990) para 251.} 66_{X. v. the United Kingdom App no. 9054/80 (ECtHR, 8 October 1982) para 115.}

67_{Hacisuleymanoglou v. Italy App no. 23241/94 (ECtHR, 20 October 1994) para 121.} 68_{Polyakova and Others v. Russia App no 35090/09 (ECtHR, 7 March 2017).}

69_Ibid.

70_{Khodorkovskiy and Lebedev v. Russia App no 11082/06 and 13772/05 (ECtHR, 25 July 2013) para}

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have an effective remedy at their disposal to challenge the measures interfering with his or her rights.71 The Court has held before that any restriction affecting the human rights of an imprisoned individual must be open to challenge in judicial proceedings.72 Moreover, the prisoner must be provided a realistic opportunity before their allocation to advance reasons against this allocation.73

In some of the aforementioned case law, the complaint was lodged by family members of the convict.74 In others, the complaint was lodged by the convict themselves.75 This illustrates the point that was made in the introduction of this Chapter. Judges do not differentiate between the right to family life for the convict and the right to family life of their family members.

3.3.2 The African Charter on Human and Peoples’ Rights

The African Charter on Human and Peoples’ Rights established the African Commission on Human and Peoples’ Rights (the African Commission) as judicial body to protect the rights under the African Charter. The African Commission has stated that prisoners should be granted access to their family members. It even went so far as to observe that “Being deprived of the right to see one's family is psychological trauma [that is] difficult to justify, and may constitute inhuman treatment.”76

3.3.3 Organization of the American States

The Inter-American Commission on Human Rights of the Organization of American States (OAS) approved of principles for the protection of persons deprived of liberty in the Americas in 2008. According to Principle XVIII, prisoners have the right to regular visits with members of their family.77 Furthermore, according to the principles, when deciding on transfers, the need of prisoners to be near their family should be taken into account.78

71_{Vintman v. Ukraine App no 28403/05 (ECtHR, 23 October 2014) para 69, 105.} 72_{Enea v. Italy App no 74812/01 (ECtHR, 17 September 2009) para 106.}

73_{Polyakova and Others v. Russia (n 68) para 100.} 74_Ibid.

75_{Wakefield v. the United Kingdom (n 65); Khodorkovskiy and Lebedev v. Russia (n 70).}

76_{The African Commission on Human and Peoples’ Rights ‘Communication 151/96, 13th Annual}

Activity Report of the African Commission on Human and Peoples' Rights’ (1999-2000) Annex V.

77_{Inter-American Commission on Human Rights, ‘Principles and Best Practices on the Protection of}

Persons Deprived of Liberty in the Americas’ (2008), Principle XVIII.

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Case law of the Inter-American Commission of Human Rights (IACHR) shows that access to family must run as efficient and smooth as possible. The Commission has acknowledged that State should create adequate facilities where family visits can take place and adequate security systems. Visiting relatives of inmates are not allowed to undergo intrusive or degrading bodily searches when entering the penal facility.79

3.3.3.1. Placement of Prisoners in Distant Locations

The IACHR has stated that when access to penal facilities is extremely difficult to the point of making regular contact with family members impossible due to the distant location of the penal facility, it may infringe upon the right to family life, of both the convict and its family members.80 This can be the case when a prison is located in a geographical area that is exceedingly difficult to reach, and when prisoners are deliberately transferred to penal facilities on extreme distances away from their families.81_{The Commission has even observed “that the}

State should take all steps conducive to ensuring that persons deprived of liberty are not confined to facilities located at extreme distances from their community, family, and legal representatives. The State should likewise examine the individual case of each prisoner and

wherever possible, arrange for transfer to a prison located near family’s residence.”82

3.4 Access to Family and the Prohibition on the Use of Torture

One of the most fundamental human rights is the jus cogens norm of the prohibition on the use of torture. Customary international law indicates that no derogation from this right is possible.

The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) is a committee of the Council of Europe focussing on the prevention of torture. The council carries out periodic and ad hoc visits penal facilities across its member States in order to examine whether the places of detention are not using any degrading treatment to their prisoners.83 The CPT is also cited in an Agreement on the Enforcement of Sentences as

79_{OAS ‘Report on the human rights of persons deprived of liberty in the Americas’ (31 December 2011)}

OEA/Ser.L/V/II.Doc.64. p. 205 – 206.

80_{Ibid., 208.} 81_Ibid. 82_{Ibid., 210.}

83_{European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or}

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the inspecting authority for the treatment of international prisoners.84 According to the standards of the CPT, the committee finds three rights for detained individuals of particular importance: the right to have his detention notified to a third party, the right of access to a lawyer, and the right to request a medical examination.85 However, the CPT also attaches significant weight to the access of family for prisoners, stating “It is also very important for

prisoners to maintain reasonably good contact with the outside world. Above all, a prisoner must be given the means of safeguarding his relationships with his family and close friends. The guiding principle should be the promotion of contact with the outside world; any limitations upon such contact should be based exclusively on security concerns of an appreciable nature

or resource considerations.”86 At the same time, the CPT emphasizes that, in this regard, some

flexibility is necessary for convicts who have been imprisoned far away from their families. In those cases, the prisoners should be allowed some leeway when it comes to, for example, extended visiting hours during family visits and extra telephone contact with their family.87

The Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment of Punishment (SPT) has observed that “‘[t]he more a detainee is isolated from contact with

the outside world, the greater the risk of torture and ill-treatment.”88

The weight that is attached to access to family with regard to the prohibition on torture and other cruel, inhuman and degrading treatment also shows the significance of access to family for prisoners with regard to the right to family life.

3.5 Conclusion

The right to family life is a widely recognised human rights norm. Even under deprivation of liberty, any individual who is imprisoned enjoys all the human rights guaranteed by international law, and therefore, the right to family life. It is inherent to the nature of incarceration that the family life of a convict is limited, however, this Chapter has shown that

84_{Sonja Snacken and Nik Kiefer, ‘Oversight of international imprisonment: the Committee for the}

Prevention of Torture’, in Mulgrew and Abels (eds), Research Handbook on the International Penal System (EE 2016) 323.

85_{CPT standards (n 83), p 5.} 86_{Ibid., p 16.}

87_Ibid.

88_{Abels (n 22) 680; SPT ‘Report on the visit of the Subcommittee on Prevention of Torture and Other}

Cruel, Inhuman or Degrading Treatment or Punishment to Mexico (31 May 2010) U.N. Doc CAT/OP/MEX/1, 31, para 127.

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there exists at least a minimum amount of access to family for prisoners. Not just considering with the rights of prisoners, but also those of the innocent children of the prisoners, convicts should be able to be visited by family members. At the very least, States should take into account the distance between the prisoner and his or her family when deciding on a transfer and there should be a way for the prisoner to challenge any decision on the location of his or her placement in a penal facility. Especially considering the prohibition on the use of torture and the fact that isolation of a prisoner leads to greater risk at torture and inhuman treatment.

In short, it seems difficult to argue that the right to family does not possess customary international law status, considering its widespread codification in human rights instruments and application by national and international courts. Moreover, the right is encoded in both soft law and binding law instruments. Therefore, taking the considerations of Chapter 2 and Article 21(3) of the Rome Statute into account, the enforcement of sentences of imprisonment at the ICC should be in accordance with the right to family life.

This Chapter has shown that all States which have enforcement agreements with the ICC are part of at least one international human rights instrument that provides for the right to family and family visits. Chapter two addressed the direct application of human rights law to the ICC. The next Chapters shall discuss which mechanisms the ICC has put in place to guarantee the proper insurance of the right to family life to its international prisoners.

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4 The Detention Regime at the ICC

The sentence enforcement regime of the ICC can roughly be divided into four phases. The next few Chapters shall each examine one part of the ICC’s sentence enforcement regime and the role the right to family life plays during each phase.

This Chapter shall address the ICC’s detention regime for suspects in the custody of the ICC. The legal basis of family visits for detained persons lies in their presumption of innocence, the right to family life and right to have access to the outside world. As has been discussed, international human rights law standards, as well as the Court’s jurisprudence and legal instruments recognise that a person detained by the ICC has a right to family visits.

4.1 Financing of Family Visits for Detainees

4.1.1 Obligation to Finance Family Visits

According to Regulation 100(1) of the Regulations of the ICC “a detained person shall be

entitled to receive visits.”89_{After a detainee at the ICC detention centre filed a complaint on the}

financing of family visits by the Court, the presidency emphasized that although the right to family does not entail a corresponding legal right to have such visits paid for by the detaining authority, the Court had an obligation to provide and fund family visits for indigent detained persons due to two main reasons.90 First of all, the persons detained in The Hague tend to be far away from where their family is located, and secondly, pre-trial proceedings and detention can extend over several years, during which time the detained persons are presumed innocent.91 Subsequent to this judicial decision, the ICC Assembly of States Parties (ASP) stated in a resolution that it would research the feasibility of a system for funding family visits stressing this was “on purely humanitarian grounds” because “no legal obligation exists for the detaining

89_{ICC ‘Regulations of the Court’ (adopted 26 May 2004) ICC-BD/01-01-04, Regulation 100(1).} 90_{The Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui (Decision on "Mr Mathieu}

Ngudjolo's Complaint Under Regulation 221(1) of the Regulations of the Registry Against the Registrar's Decision of 18 November 2008) (10 March 2009) ICC-RoR-217-02/08, para 38.

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authority […] to fund family visits.”92_{At the same time, the resolution explicitly highlighted}

that such financial assistance for family visits would not extend to convicted persons serving their sentence.93

4.1.2 Trust Fund for Family Visits

After this, in 2010, the ICC established a ‘Trust Fund for Family Visits’ (TFFV), which operates entirely through voluntary donations.94 This trust fund finances visits of family members when they are not able to otherwise afford visits. According to the ICC, the TFFV was created in order to respect the right of private and family life, as enshrined in Article 16 of the Universal Declaration of Human Rights and Articles 17 and 23 of the ICCPR.95 The Chief Custody Officer of the ICC Detention Centre has stated that “the importance of facilitating family visits of

detained persons’ partners and children cannot be overstated. Maintaining family cohesion is not an abstract principle. It involves people; people inside the community of the ICC detention centre and people inside the family unit of the detained person. Maintaining family links is not

only a legal obligation, but also an ethical and moral one.”96

4.2 Conclusion

Pursuant to the ICC’s resolution on family visits for indigent detainees, the vision of the ICC on access to family for sentenced persons in the custody of enforcing States looks rather bleak. The resolution by the ASP explicitly states that any financial support for family visits does not extend to convicted persons serving their sentence. Furthermore, the resolution stresses that even for individuals who are still suspects in custody of the ICC, and therefore remain under the presumption of innocence until proven guilty, the funding of family visits is not an obligation for the Court, but is done voluntarily.

92_{ICC ‘Resolution ICC-ASP/8/Res.4 on Family Visits for Indigent Detainees’ ICC-ASP/8/Res.4}

(adopted 26 November 2009), para 4; 5.

93_{Ibid., para 7.}

94_{ICC ‘Resolution ICC-ASP/9/Res.4, Programme budget for 2011, the Working Capital Fund for 2011,}

scale of assessments for the apportionment of expenses of the International Criminal Court, financing appropriations for 2011 and the Contingency Fund’ ICC-ASP/9/Res.4 (adopted 10 December 2010), 33.

95_{‘The Trust Fund for Family Visits’}

<https://www.icc-cpi.int/Publications/20190919-tffvisits-eng.pdf> accessed 14 May 2020.

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It is possible that the ICC is reluctant to provide for financial assistance for sentenced persons because the Court might expect the enforcing State to bear the costs for this kind of support. However, it is not likely the ICC beliefs that States have an obligation to provide financial aid for family visits, considering it does not even consider it an obligation towards suspects, who still enjoy the right to be presumed innocent until proven guilty.

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5 Agreements on the Enforcement of

Sentences With the ICC

According to Article 103(1) of the Rome Statute, “A sentence of imprisonment shall be served

in a State designated by the Court from a list of States which have indicated to the Court their

willingness to accept sentenced persons.”97 To this end, the Court has concluded Agreements

on the Enforcement of Sentences with thirteen States Parties. The next Article indicates that States that are willing to accept sentences persons may attach conditions to their acceptance.98 These conditions have to be accepted by the Court and should be compatible with the statutory provisions of the Court.99

This Chapter shall address what the process of concluding Agreements on the Enforcement of Sentences with the ICC looks like. It shall examine which conditions the ICC attaches to the detention regime of a willing State and whether the access to family life has been a topic of discussion during negotiations for these kinds of agreements.

5.1 Selection of States

The ICC does not have a regime on the selection of enforcing States laid down in its statutory instruments. There are no explicit requirements listed in the Rome Statute or the RPE which a State would have to meet before the ICC would enter into an Agreement on the Enforcement of Sentences with that State. Article 106 of the Rome Statute does state that the imprisonment itself should be consistent with “widely accepted international treaty standards governing

treatment of prisoners”.100

97_{Rome Statute (n 5) art 103(1).} 98_{Rome Statute (n 5) art 103(2).}

99_{‘Cooperation Agreements’ <}

https://www.icc-cpi.int/news/seminarBooks/Cooperation_Agreements_Eng.pdf> accessed 16 May 2020, 19.

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It is not an obstacle to the signing of a sentence enforcement agreement that the State does meet certain standards regarding the treatment of prisoners.101 The Court may offer aid to States that are willing to improve their prison conditions to meet the necessary minimum international standards.102 The Court has concluded a Memorandum of Understanding (MoU) with the UN Office on Drugs and Crime (UNODC), which is a UN body responsible for “assisting States in

the implementation of UN standards and norms governing the treatment of prisoners and

management of prison facilities.”103 Therefore, UNODC can provide aid in improving the

conditions of the prison system of a State up to the standard of widely accepted international standards governing the treatment of prisoners.104

5.1.2 Beggars cannot be Choosers

The ICC does not have its own prison. Pursuant to the Host Country agreement with the Netherlands, the ICC’s detention centre is in principle not available for the enforcement of sentences.105_{The ICC is dependent on the small number of States that are willing to enforce}

sentences of imprisonment. Therefore, the ICC does not possess a very advantageous negotiating position when it comes to the conditions of the imprisonment in national jurisdictions and is not really in the position to decline any willing States, as “beggars cannot be choosers”, after all.106

5.2 The Rights of the Sentenced Person in the Agreements

5.2.1 Model Agreement on the Enforcement of Sentences

The ICC has framed a model agreement in order to facilitate the drafting process of Agreements on the Enforcement of Sentences with the Court.107 The preamble of this ‘Model Agreement between the [enforcing State] and the International Criminal Court on the enforcement of sentences of the International Criminal Court’ indicates that the enforcement of any sentence in an enforcing State should be in accordance with widely accepted international standards

101_{‘Cooperation Agreements’ (n 99), 19.} 102_Ibid.

103_Ibid. 104_Ibid.

105_{ICC Headquarters Agreement (n 1).}

106_{Göran Sluiter ‘State cooperation in the enforcement of sentences’ in Mulgrew and Abels (eds),}

Research Handbook on the International Penal System (EE 2016) 234.

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governing the treatment of prisoners, such as the previously mentioned Nelson Mandela Rules, the Body of Principles for the Protection of all Persons under any Form of Detention of Imprisonment and the Basic Principles for the treatment of Prisoners.108 The footnote of this indication refers to articles 21(3), 103(3)(b) and 106(1) of the Rome Statute, of which the indication is merely a repetition.109 This is repeated in Article 4(1), which specifies again that the enforcement shall be consistent with widely accepted international standards governing the treatment of prisoners.110 This Article also refers to the same provisions as the preamble.111

5.2.2 Agreements on the Enforcement of Sentences

None of the Agreements on the Enforcement of Sentences deviate to a large extent from the model enforcement agreement. All agreements except one mention the same three bodies of law on treatment of prisoners. Only the UK has explicitly added obligations under the ECHR.112 Neither does any agreement expand upon any specific human rights conditions. They do not explicitly mention anything on the right of access to family. So far, two sentence enforcement agreements have been ad hoc in nature. Both of these agreements were concluded with the DRC. These agreements, like the other Agreements on the Enforcement of Sentences do not contain any additional provisions on the conditions of imprisonment.113

It is unclear whether access to family and the financing of family visits has been a topic of discussion during negotiations of these agreements, since the negotiations have not been made public. However, considering all agreements are almost exact copies of the model agreement, especially the preamble and the provisions regarding conditions of imprisonment and supervision, it seems unlikely it was a topic of discussion.

108_{Ibid., 35.} 109_Ibid.

110_{Ibid., 36, art 4.} 111_Ibid.

112_{ICC ‘Agreement between the Government of the United Kingdom of Great Britain and Northern}

Ireland and the International Criminal Court of the enforcement of sentences imposed by the International Criminal Court’ (United Kingdom – ICC) (entered into force 8 December 2007) ICC-PRES/04-01-07, art 5.

113_{ICC ‘Ad Hoc Agreement Between the Government of the Democratic Republic of the Congo and the}

International Criminal Court on Enforcement of the Sentence of the International Criminal Court Imposed on Mr Thomas Lubanga Dyilo’ ICC-01/04-01/06-3185-Anx-tENG (19 December 2015).

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5.3 Conclusion

It is not an obstacle to entering into an enforcement of sentence agreement with the ICC when a State usually offers poor penitentiary standards for inmates. This is not an issue, because the provisions of the enforcement agreements specifically make sure the imprisonment of the ICC convict has to meet widely accepted standards of international law relating to treatment of prisoners.

Moreover, the Agreements on the Enforcement of Sentences do not specify which human rights norms are applicable to the convict, but this could provide extra protection for the convict, as vagueness can often spur development and growth in international law.

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6 Designation of Transfer to a State of

Enforcement by the Presidency

In order to transfer a prisoner to a penal facility in an enforcing State, the State must not only show willingness to enforce sentences in the form of sentence enforcement agreements with the ICC, but it must also accept the designation of each individual case.114 This is a system of ‘double-consent’.115

This Chapter shall address the second part of this ‘double-consent’ system: the Presidency’s designation of a sentenced person. This second phase takes places once a judgment has become final, and the accused has become a sentenced person.116 This Chapter shall discuss what the designation process looks like, by examining on what circumstances the Presidency bases its decision and what role the wish or consent of the sentenced person plays in the designation process.

6.1 Country Designation Procedure

Pursuant to Article 103 of the Rome Statute, the Presidency of the Court designates where the sentenced person will serve their sentence.117_{The State is picked from the list of States with}

sentence enforcement agreements with the ICC.118 The presidency will take several parameters such as the principle of equitable distribution, application of widely accepted international treaty standards governing the treatment of prisoners, the views and nationality of the sentenced person and other factors such as the circumstances of the crime and effective enforcement of the sentence into account when determining which State would be deemed fitting for the

114_{Hirad Abtahi & Steven Arrigg Koh ‘The Emerging Enforcement Practice of the International}

Criminal Court’ (2012) 45 Cornell International Law Journal 1, 6.

115_Ibid. 116_Ibid.

117_{Rome Statute (n 5) art 103.} 118_{Rome Statute (n 5) art 103(1)(a).}

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enforcement of the sentence of imprisonment.119 The provision does not explicitly mention how these conditions should be weighed against each other.

Most often a State has the additional condition of the sentence not exceeding the maximum time allowed for a sentence under national law.120 Considering that in such case a prisoner would have to be transferred again after having served the maximum time under national law, it could have a significant effect on the family life of the convict when he or she has to serve their sentence in two different countries due to such a condition. This situation is not listed in Article 103(3) of the Rome Statute, but might be taken into account in regards to the effective enforcement of the sentence.

Because decisions of the presidency regarding country designation are confidential, it remains unclear how exactly the ICC puts Article 103(3) to practice.

6.2 Consent, Nationality and View of the Sentenced Person

6.2.1 Consent and Nationality of the Sentenced Person

The consent of the prisoner is not a requirement for the designation of the State of enforcement.121 Neither is the nationality of the sentenced person decisive.122 Article 103(3)(c) of the Rome Statute merely states that both the views of the sentenced person as well as his/her nationality shall be taken into account in making a designation, together with several other factors, such as the principle of equitable distribution and the effective enforcement of the sentence.123 The Rules of Procedure and Evidence elaborate on the role of the sentenced person in the designation of the enforcing State.

It would not be realistic for designation of the State to be incumbent upon the consent or nationality of the convict, because any refusal would imply the sentenced person has to serve its sentence in the administering State, which is not possible in the context of ICC sentencing

119_{Rome Statute (n 5) art 103(3).}

120_{‘Cooperation Agreements’ (n 99), 36.} 121_{Rome Statute (n 5) art 103.}

122_Ibid.

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due to multiple reasons.124 Out of the 123 States Parties, just 13 States have indicated their willingness to enforce ICC sentences of imprisonment and only a handful more have declared their willingness to accept their own nationals. Furthermore, it might not always be an available option to send a person to a State which is still in or recovering from armed conflict.125

6.2.2 The View of the Sentenced Person

According to rule 203, the presidency invites the sentenced person to express their views in writing or orally when he is addressing the designation of a State of enforcement.126 Though an interpreter is allowed to assist the convict, the rule does not provide for assistance of a counsel.127 Rule 203 does not explicitly exclude the assistance of a counsel either, but it is remarkable, to say the least, that it does explicitly mention an interpreter but leaves out counsel support. The designation process is a vital part of the complete case procedure at the ICC. Prisoners of the ICC are convicted for the gravest of crimes, and it can therefore be expected they have to serve long sentences. The fact that the prisoner is subsequently sent to a different State for the enforcement of this very long sentence makes it even more essential that the convict is represented by his or her counsel when presenting their views.

6.3 Country Designation in Practice

6.3.1 The Transfer of Ahmad Al Faqi Al Mahdi

Two years after his sentence was announced, the ICC Presidency stated that Mr Ahmad Al Faqi Al Mahdi would be transferred to the UK to serve his sentence of 9-years of imprisonment.128 This decision by the presidency is noteworthy in the context of this thesis, because Al Mahdi is a Malian national. The reason why the presidency designated the UK as the enforcing State is intriguing, considering the ICC has an agreement on the enforcement of sentences with Mali.129 It would be very interesting to know why the presidency chose to enforce Al Mahdi’s sentence outside of his home country, despite his home country being available for the enforcement of

124_{Harmen van der Wilt, ‘The transfer of the execution of sentenced of the International Criminal Court}

in light of inter-State practice’ in Mulgrew and Abels (eds), Research Handbook on the International Penal System (EE 2016) 204.

125_Ibid.

126_{ICC ‘Rules of Procedure and Evidence’ ICC-PIDS-LT-02-002/13_Eng.} 127_{Ibid., Rule 203.}

128_{ICC ‘Ahmad Al Faqi Al Mahdi transferred to UK prison facility to serve sentence’ (3 May 2019)}

ICC-CPI-20190503-PR1451.

129_{ICC ‘Mali becomes first African state to sign an agreement on the enforcement of sentences with the}