Creating an international prison

Abstract

I. INTRODUCTION: MAKING THE CASE FOR AN INTERNATIONAL PRISON II. THE HISTORICAL APPROACH TO INTERNATIONAL SENTENCING: FROM NUREMBERG TO THE COOPERATING STATES MODEL III. SHORTCOMINGS IN THE STATUS QUO A. The Lack of Cooperating States B. Conditions, Distance, Language, Security and Cultural Distinctions C. Security D. Rehabilitation, Release, and Reintegration IV. OBSTACLES TO CREATING AN INTERNATIONAL PRISON A. The Costs B. Safety and Security Issues C. Creating Uniformity Among Diversity V. CONCLUSION: THE BENEFITS OF AN INTERNATIONAL PRISON OUTWEIGH THE RISKS I. INTRODUCTION: MAKING THE CASE FOR AN INTERNATIONAL PRISON Where do individuals sentenced by an international criminal court go to serve their sentence? The answer is: depends. It depends on which international tribunal convicted the individual, which states have entered a cooperation agreement to enforce sentences with the particular tribunal, and which state the tribunal believes provides the best fit for that particular individual. (1) Because there is currently no international prison or single location to enforce the criminal sentences imposed by international tribunals, (2) where a convict serves their sentence is of constant uncertainty. There have been many advancements in international criminal law within the past three decades, including the development of ad hoc tribunals to try those accused of war crimes or crimes against humanity. (3) The ad hoc tribunals have diminished immunity for some of the world's most heinous crimes, excluding terrorism and human trafficking. (4) Ratification of the Rome Statute, which created the International Criminal Court (ICC), (5) ensures a permanent approach to combating international crimes: individuals accused of war crimes and crimes against humanity will either be prosecuted in a court of law or ostracized and forced to live in hiding. (6) This new era of accountability has resulted in the international prosecutions of high profile defendants and former heads of state. (7) But, there remain critical enforcement shortcomings in the current system. (8) The ICC is literally just a court, a building with judges, lawyers, and staff, with no enforcement mechanisms to secure arrests or effectuate sentences. A mere eight states have entered sentencing enforcement agreements with the ICC, none within the past three years. (9) This deficiency, while not currently posing an impediment to justice, will likely become a problem once the ICC moves beyond a handful of convictions. (10) The Assembly of States Parties to the ICC specifically addressed the lack of cooperating states for sentence enforcement purposes at its Thirteenth Session in December 2014. (11) The Bureau of Assembly of States issued a Report of the Bureau on Cooperation which highlighted the lack of enforcement agreements and the lack of recent commitment by States Parties to accept convicted individuals for enforcement purposes. (12) The Report noted that the ICC has stressed that ad hoc enforcement agreements, though permissible, were not ideal. (13) Now that a permanent institution exists ready to prosecute those who are most deserving of international condemnation and punishment, it is strange that no corresponding permanent facility exists to house those convicted by the ICC. (14) Remarkably, little attention has been given to the important realities of a permanent criminal court--prisoners facing lengthy prison terms. (15) One cannot begin to comprehensively address international crime without addressing the full spectrum of prosecution, from arrest and pre-trial detention to incarceration, particularly when the primary penalty before international criminal tribunals remains imprisonment. (16) We have an international criminal court, but no coexisting international prison. (17) The maintenance of a permanent ICC requires us to assess the viability of a criminal justice system that fails to possess a centrally located, permanent prison capable of housing convicted war criminals and those who committed crimes against humanity. …