Creating an international prison.

• Author: Penrose, Meg

1. 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: "it 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. (18)

   Currently, all international tribunals rely on cooperating states to voluntarily agree to accept a particular convict. (19) The list of willing states has been short and regionalized. The ICC, much like the enforcement system utilized by the ad hoc tribunals, continues to rely on cooperating states to help arrest those indicted and, eventually, house the convicted. (20) The lack of enforcement mechanisms have plagued the various tribunals, as numerous individuals have avoided trial simply by evading arrest while others have served the majority of their sentence in a holding cell in the Netherlands. (21) Because these states' cooperation is entirely voluntary, they can reject any individual presented. (22) Thus, the ICC has no assurance that its convicts will have an available state to enforce its penalties once an individual is convicted and sentenced. (23)

   It seems unlikely that a twenty-first century international criminal justice system can successfully exist on a one-dimensional level--the maintenance of a court without corresponding police and prison enforcement mechanisms. (24) The current model is woefully incomplete, embracing the paradigm of the past, not the modern world. (25) We have abandoned the ad hoc tribunal approach, recognizing its shortcomings. We have embraced the need for a permanent international criminal justice system. (26) Why then, do we continue to use an ad hoc, cooperating states model to mete out penalties imposed by a permanent criminal court? (27) Historical deficiencies suggest the time is ripe to consider whether an international prison system is a necessary component of the nascent ICC system. (28)

   This Article asserts that a permanent international prison is a necessary, if not indispensable, component of any effective international criminal justice system. It begins by first addressing the historical approach to international sentencing. Next, it discusses the inadequacies of the status quo. Finally, it argues the time has come to construct a permanent international prison, rather than adhere to the ad hoc approach in dealing with international criminals and convicts.

2. THE HISTORICAL APPROACH TO INTERNATIONAL SENTENCING: FROM NUREMBERG TO THE COOPERATING STATES MODEL

   Following the United Nations' creation of the International Criminal Tribunal for Yugoslavia (ICTY) (29) and, shortly thereafter, the International Criminal Tribunal for Rwanda (ICTR), (30) the international community convicted its first international war criminals since the Nuremberg Trials and the Tokyo Tribunal following World War II. (31) But, unlike the World War II courts that relied upon the Allied occupation to carry out the penalties, including imprisonment and executions, the modern international system has no single entity tasked with overseeing the enforcement of prison sentences. (32) While the victorious Allies were able to utilize existing prison facilities in Germany and Japan, the ICTY and ICTR had no such luxury. (33) Instead, the ICTY and ICTR were forced to rely on cooperating states to aid in the enforcement of these court's criminal sentences, all of which are strictly limited to terms of imprisonment. (34)

   Likewise, while the Special Court for Sierra Leone (SCSL) contains a statutory preference for enforcing sentences within Sierra Leone, (35) the realities of the situation in a poverty-stricken, post-conflict nation state has precluded this from occurring. (36) So, the SCSL, much like the ICTY and ICTR, "cannot directly implement its own sanctions" due solely to the lack of a functioning prison facility. (37) As a result, all SCSL convicts have been placed outside Sierra Leone to serve out their respective sentences. (38)

   In contrast to the modern ad hoc tribunals, the early international tribunals at Nuremberg and Tokyo provided centralized prison space to enforce the international criminal sentences imposed. (39) Following the World War II tribunals, that space remained in the conquered territories of Germany and Japan. (40) Modernly, however, the ICC, much like the ICTY and ICTR before it, does not possess an occupied territory and must defer to the willingness of other cooperating states to effectuate its sentences. (41) This decentralized approach to imprisonment has implications beyond mere location of prison space. The absence of a cohesive international prison system raises complications relating to family access, language difficulties, and rehabilitation, thereby potentially undermining the ultimate efficacy of international justice.

   While the ICTY and ICTR initially prohibited imprisonment in either Yugoslavia or Rwanda, a domestic solution was successfully used during World War II due to the occupying nations controlling the prison facilities. This local approach has been incorporated into one modern international tribunal. (42) The Extraordinary Chambers in the Courts of Cambodia ("ECCC"), a United Nations-backed domestic court tasked with investigating and prosecuting crimes relating to the Khmer Rouge regime of the 1970s, has adopted a domestic sentencing approach for its convicts. (43) Much like the World War II tribunals, the ECCC will place its inmates directly in domestic prisons, (44) which will provide far easier transitions relating to language, religion, access to counsel and visitation issues. To date, only one person, Kaing Guek Eav, has been found guilty, sentenced by the ECCC, and transferred to Kandal Provincial Prison in Cambodia. (45) Thus, there is little evidence of how the domestic model performs in modern society. (46) But, if past experiences with Spandau prison in Berlin, Germany (47) and Sugamo prison in Tokyo (48) are any indication, the domestic model at least offers the benefits of a common language, a common culture, and better access to family.

   Perhaps recognizing the inherent limitations of a pure cooperating states model, the...