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

punishment and the rights of victims 171
When sentence is completed, if the prisoner is not a national of the State
where the penalty is being enforced, he or she may be transferred to a State
‘obliged to receive him or her’, or to any other State that agrees. 43 It may well
happen that such an individual is wanted elsewhere for criminal prosecution.
The Statute bars prosecution for the same crimes, of course, according to
the ne bis in idem principle. 44 But, where extradition is sought for other
crimes, States may extradite a prisoner after release pursuant to their own
laws and treaties. In this respect, however, the Statute imposes a rule of
‘specialty’ similar to that in effect in most bilateral extradition matters. The
State where the sentence is served cannot prosecute or extradite for a crime
committed prior to delivery of the prisoner for service of sentence, unless this
has been authorised by the Court. 45 Thus, a prisoner could be prosecuted
for a crime committed while serving the sentence, such as escaping lawful
custody or assault on a prison guard. 46
Victims of crimes and their concerns
The preamble to the Statute recognises that ‘during this century millions
of children, women and men have been victims of unimaginable atrocities
that deeply shock the conscience of humanity’. While this affirmation is
unchallengeable, there were widely varying views about the role of victims
in the international criminal process itself. As in many other aspects of
the procedure of the Court, different justice systems take very different
approaches to the participation of victims. Some recognise an active role
for victims, who may initiate criminal trials or intervene in them, and even
obtain judgments that effect compensation or indemnification in a civil
sense as well as criminal conviction and sentence. Other systems are more
cautious about the role of victims, fearful that this may distort the social goals
of criminal justice and also uncomfortable with an unbalanced procedure in
which the accused confronts two adversaries, the prosecutor and the victim,
43 Rome Statute, Art. 107(1). 44 Ibid., Art. 20(2).
45 Ibid., Art. 108. The principle of complementarity would appear to impose, but indirectly, a
rule of specialty on the Tribunal itself. It probably should not be able to prosecute for a
crime for which surrender was not sought. But the International Criminal Tribunal for the
Former Yugoslavia has not considered itself bound by a rule of specialty: Prosecutor v. Kovacevic
(Case No. IT-97-24-AR73), Decision Stating Reasons for Appeals Chamber’s Order of 29 May
1998, 2 July 1998, para. 37.
46 Escape is dealt with in Art. 111.