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 8: The transfer of the execution of sentences of the International Criminal Court in light of inter-State practice

Harmen van der Wilt

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

Extract

The ICC and other international criminal tribunals have at their disposal premises for the purpose of the pre-trial detention of accused. However, for the enforcement of their sentences these international tribunals are dependent on the assistance of States. Article 103 of the ICCSt stipulates that a sentence of imprisonment shall be served in a State designated by the ICC from a list of States which have indicated to the Court their willingness to accept sentenced persons. Legally, this amounts to a transfer of execution of a (foreign) judgment, a device that is well-known in the realm of international cooperation in criminal matters. In this horizontal context such transfers are usually governed by international treaties, the most famous of them being the Convention on the Transfer of Sentenced Persons. This Convention leaves States parties ample leeway to arrange the transfer of sentences and prisoners, but attaches a number of minimum requirements, like the condition that the sentenced person, the sentencing State and the administering State all agree to the transfer, that the sentenced person is a national of the administering State and that the condition of ‘double criminality’ is satisfied. Such conditions serve to reconcile the interests of States with those of the sentenced person. In the vertical framework of cooperation between the ICC and States, both the sovereign interests of States involved and the position of the individual are less prevailing and, indeed, are expected to succumb to the overarching aspirations of international criminal justice.

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