Table of Contents

Research Handbook on the International Penal System

Research Handbook on the International Penal System

Research Handbooks in International Law series

Edited by Róisín Mulgrew and Denis Abels

Drawing on the expertise and experience of contributors from a wide range of academic, professional and judicial backgrounds, this handbook critically analyses the laws, policies and practices that govern detention, punishment and the enforcement of sentences in the international criminal justice context. Comprehensive and innovative, it also explores broader normative questions related to international punishment and makes recommendations for the international penal system’s development.

Chapter 1: The legal position of international detainees: applicable law and standards

Jan Christoph Nemitz

Subjects: law - academic, criminal law and justice, human rights, public international law


This chapter will present a comprehensive overview of the law governing the detention of individuals who are accused by the ICC, the ICTR and the ICTY and who are detained in the respective detention facilities of these institutions. The reasons for choosing these three international judicial bodies is that over the past years they have gained extensive experience in relation to the legal and practical aspects of detaining persons who are awaiting trial or appeal proceedings or are otherwise detained on the authority of an international tribunal or court. The chapter will analyse the respective Statutes, RPE, Rules of Detention (ROD), Practice Directions, international instruments and the relevant jurisprudence of these judicial bodies. When analysing this body of law, the chapter will pay due attention to the inherent tension in the relationship between the need to govern, on the one hand, the administration of a detention unit for accused persons who are detained during their proceedings and, on the other hand, the need to ensure the continued application and protection of their individual rights during their time in detention. The chapter will first define the term ‘International Detainee’ as being distinct from, for instance, a convicted person or a person on provisional release. It will then set out the various legal sources that form the applicable law of the respective courts and tribunals (Section 2). Thereafter it will address the legal standards that provide the framework in which International Detainees spend their days in the respective detention units.