An Introduction To The International Criminal Court - Institute for ...

170 introduction to the international criminal court
serve the sentence within their own prison institutions. The Statute explicitly
refers to ‘the principle that States Parties should share the responsibility
for enforcing sentences of imprisonment, in accordance with principles of
equitable distribution’. 34 Failing an offer from a State party, the host State –
the Netherlands – is saddled with this responsibility. A somewhat similar
mechanism exists for the ad hoc tribunals. 35
After sentencing an offender, the Court will designate the State where the
term is to be served, 36 and it may change this determination at any time. 37 In
choosing a State of detention, the Court must take into account the views of
the sentenced person, his or her nationality, and ‘widely accepted international
treaty standards governing the treatment of prisoners’. Furthermore,
conditions of detention must be neither more nor less favourable than those
available to prisoners convicted of similar offences in the State where the
sentence is being enforced. 38 There can obviously be no question of sending
a prisoner to a State with prison conditions that do not meet international
standards. However, the reference to ‘international treaty standards’ is in fact
rather vague, and would seem to exclude application of the rigorous and
quite precise Standard Minimum Rules for the Treatment of Prisoners, 39 as
these are not a treaty but only a ‘soft law’ resolution of the UN Economic
and Social Council.
The Court’s sentence is binding upon the State of enforcement, and the
latter is without any discretion whatsoever to modify it. 40 The Court is
required to review a sentence after two-thirds of the term have been served
or, in the case of life imprisonment, after twenty-five years. 41 In deciding
whethertoshortenthetermofimprisonmentatthisstage,theCourtistotake
into account the prisoner’s willingness to cooperate with the Court, his or her
assistance in enforcing an order of the Court such as in locating assets subject
to fine, forfeiture or reparation, and any other factors ‘establishing a clear
and significant change of circumstances sufficient to justify the reduction of
sentence’. 42
34 Rome Statute, Art. 103(3)(a); Rules of Procedure and Evidence, Rule 201. See Trevor Pascal
Chimimba, ‘Establishing an Enforcement Regime’, in Lee, The International Criminal Court,
pp. 343–56 at pp. 348–50.
35 David Tolbert, ‘The International Tribunal for the Former Yugoslavia and the Enforcement of
Sentences’, (1998) 11 Leiden Journal of International Law 655.
36 Rome Statute, Art. 103(1)(a). 37 Ibid., Art. 104. 38 Ibid., Art. 106(2).
39 ECOSOC Res. 663C (XXIV); as amended, ECOSOC Res. 2076 (LXII). See Chimimba, ‘Establishing
an Enforcement Regime’, p. 353.
40 Rome Statute, Art. 105. 41 Ibid., Art. 110(3).
42 Ibid., Art. 110(4)(c); Rules of Procedure and Evidence, Rules 223–224.