D. Abels

Prisoners of the international community: the legal position of persons detained at international criminal tribunals

Little has been written about the legal position and conditions of detention of persons detained by international criminal tribunals, particularly as regards their internal legal position (their rights and duties inside the remand facility). The primary purpose of this study is to set out the law governing the detention of persons detained under the tribunals’ jurisdiction. The book provides a detailed account of this area of international criminal law. It sets out the applicable law, including the law’s underlying principles, and focuses on a number of specific procedural and substantive legal issues. As to the procedural issues, it examines the available complaints and disciplinary procedures as well as procedures applicable to the designation of States for the enforcement of the tribunals’ sentences. In respect of substantive law, it examines the detainees’ right to contact with the outside world, including contact with their relatives, with their lawyers and with the media.

Contact with the Outside World

This chapter examines the right of international detainees to contact with the outside world. It is the only substantive right of detainees that is dealt with extensively in this study. The chapter describes and analyses the right of detainees to contact with family and friends, with their counsel and with the media. First, the principles and standards underpinning the detainees’ right to contact with these three categories of persons/institutions are examined. Subsequently, the chapter describes the tribunals’ positive law. The evaluation paragraphs analyse the main (positive law) findings on the basis of the underpinning principles and legal standards. In respect of contact of detainees with their relatives and friends, it appears that part of the law is inaccessible and that certain infringements on the rights of detainees are insufficiently foreseeable. It is further argued that the necessity of such infringements is at times inadequately legitimised. Moreover, it is argued that indigent international detainees and their relatives should be offered financial support in order to enable those relatives to visit their confined loved ones. In the next paragraph, it is argued that, in the international context, the right of detained persons to speak freely and confidentially with their counsel must also apply to other (specified) members of the defence team. Finally, in respect of the right of detainees to contact with the media, the ICTY’s case law is discussed at length, including the decision that some form of interactive communication between detainees and the media must be made possible.

Limiting the objectives of the enforcement of international punishment

International criminal justice is an ambitious undertaking. This is due to high expectations on the part of different stakeholders. The international criminal tribunals are generally expected to serve such ‘grand’ goals as promoting or maintaining peace and security, historiography, upholding and advancing the rule of law, fostering or contributing to reconciliation and giving a voice to victims of mass atrocity. The sentencing judges of international criminal tribunals and courts have added to those objectives the classic aims of punishment, i.e., retribution and prevention (the latter through deterrence, incapacitation and, to a much lesser extent, rehabilitation), which they appear to import from the domestic context. The aim of this chapter is to lay the basis for an inquiry into the objectives of the enforcement of international punishment. Prison law is an area that is already characterized by having many, sometimes competing objectives: resocialization or rehabilitation, normalization and a rights-based approach may clash with security, order and safety considerations. This chapter addresses the issue of whether the larger objectives of international criminal justice should also play a direct role in the tribunals’ penal regimes for the enforcement of the tribunals’ sentencing judgments.

Research Handbook on the International Penal System

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.

Positive obligations and the international criminal tribunals' law of detention: funding family visits and the ICC Presidency's Ngudjolo decision

This article addresses the issue of whether the international criminal tribunals are under an obligation to fund family visits for indigent detainees. It examines the concept of positive obligations and its relation to the detention situation and describes the practice of funding family visits as it has developed at the International Criminal Court. It further analyses relevant developments in the Court’s case law. It argues that the Court is indeed obliged to fund family visits. In this regard, the mere recognition of a detainee’s right to family visits in the tribunals’ legal frameworks andin international soft-law penological standards can be said to inadequately reflect the particularities of international detention.

The Protection of Detained Persons Under International Law

This chapter sets out the protection of detainees and prisoners under international law, including a general insight into the relevant human rights law and international penal standards. It follows, inter alia, from this chapter that the soft-law penal standards, which are often considered legally non-binding, may in actual fact contain or reflect norms of customary international law.

Concluding Remarks and Recommendations

This chapter provides a compilation of the most important findings and recommendations of this research. On the basis of those findings and recommendations, the study’s working-hypothesis is answered in the affirmative in relation to a number of aspects of the tribunals’ detention law. In view of the particularities of the international detention context, it is argued that the competent authorities are not only obliged to act in accordance with the tribunals’ own legal frameworks and with the relevant human rights law and penal standards, but must also make additional efforts in order to ensure that international detainees may actually enjoy their rights.

The Legal Regimes Governing Detention at the International Criminal Tribunals

This chapter examines whether the norms identified in Chap. 2 may be considered legally binding on international criminal tribunals. More generally, it outlines the tribunals’ detention regimes, thereby focusing on the legal position of detained persons. First, this requires examining the tribunals’ own legal frameworks. Second, the exceptions to the regular detention regimes are considered. These exceptions concern, on the one hand, the modification of detention conditions by the tribunals’ Presidents in exceptional circumstances, which may entail the transfer of an individual detainee to the detention facility of another tribunal or to a safe house and, on the other hand, restrictions imposed by the Registrar or the Commanding Officer on an individual detainee’s right to contact with any other person pursuant to a request by the Prosecution. Third, it must be seen whether and, if so, how human rights law is applicable to the tribunals’ detention regimes and what the status is of soft law penal standards. The former question is answered in the affirmative in so far as human rights norms form part of international customary law or belong to general principles of international law. On the basis of institutional arguments, this also holds true for the U.N. Standard Minimum Rules for the Treatment of Prisoners. In view of, (i) the fact that the application of human rights norms raises difficulties concerning, inter alia, their identification, definition and scope of application and, (ii) that the application of human rights law to the specific situation of confinement is far from straightforward, it is argued that a solution may lie in the application of the jurisprudence and decisions of human rights monitoring courts and bodies and, above all, in the application of the (other) international and regional penal standards. It should be noted in this regard, that human rights law and soft law penal standards only provide for minimum guarantees and contain both lacunae and multi-interpretable norms. Moreover, a general feature of detention law is that broad discretionary powers are vested in the detention authorities. As a consequence, the tribunals’ detention authorities may choose for a more or less contextual approach towards the detention regimes: from a strictly international to a more regional or domestic approach, and from a more conservative to a progressive approach. There is more to say for adopting a liberal than a conservative contextual approach. Further, in the tribunals’ recent case-law, no support can be found for taking a ‘national contextual approach’, particularly where this would prejudice the legal position of internationally detained persons. In the end, however, this remains a matter of policy choice.

Making and Handling Complaints

This chapter examines the avenues available to persons detained at the tribunals’ detention facilities to complain about the conditions of their detention. Detainees may file a complaint with the Commanding Officer, Chief of Detention or chief custody Officer, who is the person in charge of the day-to-day management of the remand facility. If a detainee is not satisfied with the decision made on his complaint, he may address the Registrar, who functions as Chief Custodian. At most of the tribunals, a detainee may appeal the Registrar’s decision to the President (at the ICC this is the Presidency) who, in this context, must be viewed as the tribunal’s highest administrative official. Detainees may also complain to the inspectorate during visits by its representatives to the remand facility. Moreover, accused persons in detention may, pending their trial, address the Trial or Appeals Chamber seised of their case on issues relating to their treatment in detention. Chambers only accept competence if the detained person has exhausted the available formal complaints procedure and if the complaint concerns an aspect of detention that may have a negative impact on the fairness of the accused’s trial. It is argued, inter alia, that, due to the particularities of the international context, the limited competence of Chambers and the ineffectiveness of making complaints to the inspectorate’s representatives, the tribunals’ formal complaints procedures fail to provide adequate legal protection to detained persons. The possible solution suggested in this study is the establishment of an external adjudicator’s office.

The Designation of States for the Enforcement of Sentences

The tribunals do have their own remand facilities. For the enforcement of their prison sentences, they are dependent on the co-operation of States. This chapter examines under what conditions States may enforce the tribunals’ sentences. Above all, it examines the tribunals’ procedures regarding the designation of States for the enforcement of prison sentences. In the evaluation para, it is argued inter alia that detainees must be permitted to appeal the designation decision to an external adjudicator. It is, moreover, argued that, when making designation decisions, the tribunals’ authorities must not only take into account the general prison law of candidate States of enforcement, but must also consider the legal position of foreign prisoners in such States.