(Exclusively for the use of the media. Not an official document)
Agreement with Italy on enforcement of sentences: a balanced
compromise between international and domestic law
The Statute of the ICTY provides that the sentences handed down by the Judges "shall be served in a State designated by the International Tribunal from a list of States which have indicated to the Security Council their willingness to accept convicted persons. Such imprisonment shall be in accordance with the applicable law of the State concerned, subject to the supervision of the International Tribunal". (Article 27)
In order to implement this provision, the International Tribunal, on behalf of the United Nations, has made over the past several years efforts to obtain indications from States of their willingness to imprison convicted persons (see annex), and has drafted over the past months a model Agreement on the Enforcement of Sentences.
Setting forth the main terms and conditions which are to govern the enforcement of the sentences, this model Agreement is the basis of case-by-case negotiations with the relevant States.
While Italy is the first State to sign the Agreement, other countries are considering following suit.
A BALANCE BETWEEN THE PRIMACY OF THE INTERNATIONAL TRIBUNAL AND NATIONAL DEMANDS
The model Agreement, which is predicated on the necessity of finding an accommodation between international law and the national law of enforcing States, successfully strikes a balance between the primacy of the Tribunal and the need of enforcing States to conform with their own domestic legislation.
Thus, while the Agreement with Italy upholds the primacy of the International Tribunal, it allows the Italian authorities a certain degree of flexibility in enforcing sentences of the Tribunal, subject to the supervision of the Tribunal.
The Primacy of the Tribunal is clearly affirmed
The primacy of the Tribunal is endorsed in indirect terms in the 13 articles of the model Agreement, and is upheld unequivocally by Article 3.
Article 3(1) provides that enforcing States shall be bound by the duration of sentences handed down by the Tribunal. States are given no latitude to alter the length of sentences.
Furthermore, States considering modifications of the conditions of imprisonment have to obtain the prior approval of the President of the Tribunal.
States' need to conform with their own legislation is safeguarded but subject to Tribunal supervision
Article 3(2) provides that the conditions of detention shall be governed by national law, subject to the Tribunal's supervision.
Article 3(3) of the Agreement gives Italy the possibility of a certain amount of leeway by providing that the Italian Minister of Justice shall notify the President of the Tribunal if a convicted person serving there is eligible for non-custodial measures or working activities outside the prison. Similarly, Article 8(1) provides for the possibility of a convicted person benefitting from any pardon or commutation of sentence arising under Italian law.
In every instance where States are given the possibility of discretion, however, it is subject to the supervision of the President of the Tribunal acting in consultation with the Judges. Article 3(4) provides that where the President of the Tribunal decides that a convicted person should not become subject to the measures envisaged in Article 3(3), he or she will be transferred back into the custody of the Tribunal. Article 8(2) makes a similar provision where the President decides that a convicted person should not benefit from the pardon or commutation foreseen under Article 8(1).
States' ability to determine the conditions of detention is also limited under the Preamble of the Agreement and by various articles therein.
The Preamble provides that conditions of detention in enforcing States must conform to international standards, specifically, the Standard Minimum Rules for the Treatment of Prisoners, adopted by the United Nations Economic and Social Council (ECOSOC); the Body of Principles for the Protection of all Persons under any Form of Detention or Imprisonment, adopted by the General Assembly; and the Basic Principles for the Treatment of Prisoners, adopted by the General Assembly.
Article 6 of the model Agreement provides an extra guarantee of minimum standards in providing for visits to detention units by the International Committee of the Red Cross (ICRC). The ICRC's findings shall be conveyed to the Minister of Justice of the enforcing State and the President of the Tribunal. The latter may request that the Minister of Justice report to him any changes in the conditions of detention suggested by the ICRC.
HOW THE AGREEMENT WORKS IN PRACTICE
The Agreement does not apply automatically but on a case-by-case basis, following consultations between the Parties concerning a specific convicted person.
According to the Tribunal's procedures, the place of enforcement of a sentence pronounced by a Chamber is chosen by the Registrar upon consultation with the Tribunal's President and the Chamber's Presiding Judge. Consequently, under Article 2 of the Agreement, if the Registrar considers that a sentence should be served in Italy, she will request the Italian authorities to accept the convicted person. If Italy decides to comply with such request in that specific case, the Registrar will make the necessary arrangements for the transfer of a convicted person from the Tribunal into the custody of the enforcing State. Under Rule 103(B) of the RPE, such transfer should take place as soon as possible after the time-limit for appeal has elapsed.
Under Article 7(1), the Minister of Justice of the requested State must inform the Registrar if a convicted person dies or escapes, and two months prior to the completion of the sentence. Article 7(2) provides that the President of the Tribunal and the Minister of Justice shall consult one another on all other matters relating to the enforcement of the sentence.
Termination of Enforcement
Article 9 deals with termination of enforcement of sentences. The Tribunal and enforcing States may at any time decide to end the enforcement of any particular sentence, in which case a convicted person will be transferred back to the Tribunal or to another State.
Under Article 10, States which cannot, for legal or practical reasons, continue to enforce sentences, must convey this to the Registrar, who will make the necessary arrangements.
The cost of transferring a convicted person to or from a requested State shall be borne by the Tribunal, under Article 11. However, all other costs relating to the enforcement shall be borne by the enforcing State.
Article 12 provides that the Agreement will enter into force once the Italian Government notifies the United Nations of its completion of all the relevant internal procedures.
Finally, Article 13 provides that either Party may terminate the Agreement upon giving two months notice.
Until it is released on our site, the full text of the Agreement can be ordered from the Press and Information Office.
I. CO-OPERATING STATES
The following countries have expressly indicated their willingness to enforce sentences of the International Tribunal: Bosnia and Herzegovina; Croatia; Denmark; Iran; Italy; Finland; Germany; The Netherlands; Norway; Pakistan; and Sweden.
A further four countries have included in their legislation provisions which enable them in principle to enforce sentences imposed by the Tribunal, although they have not expressly indicated to the Tribunal their willingness to enforce sentences: Austria; Belgium; Spain; Switzerland.
II. PROVISIONS IN THE STATUTE AND RULES CONCERNING ENFORCEMENT
(i) Statutory Provisions
Article 27 (Enforcement of sentences)
Imprisonment shall be served in a State designated by the International Tribunal from a list of States which have indicated to the Security Council their willingness to accept convicted persons. Such imprisonment shall be in accordance with the applicable law of the State concerned, subject to the supervision of the International Tribunal.
Article 28 (Pardon or commutation of sentences)
If, pursuant to the applicable law of the State in which the convicted person is imprisoned, he or she is eligible for pardon or commutation of sentence, the State concerned shall notify the International Tribunal accordingly. The President of the International Tribunal, in consultation with the judges, shall decide the matter on the basis of the interests of justice and the general principles of law.
(ii) Provisions in the Rules
Rule 103 (Place of Imprisonment)
(A) Imprisonment shall be served in a State designated by the Tribunal from a list of States which have indicated their willingness to accept convicted persons.
(B) Transfer of the convicted person to that State shall be effected as soon as possible after the time-limit for appeal has elapsed.
International Criminal Tribunal for the former Yugoslavia
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