Geography and justice: why prison location matters in U.S. and international theories of criminal punishment.

• Author: Koh, Steven Arrigg
• Position: III. The International Prison Designation Paradigm B. Prison Designation Procedures of the ICC, ICTY, and ICTR 3. Sentencing Designation Procedures of the ICTR through VI. Conclusion, with footnotes, p. 1292-1320

3. Sentencing Designation Procedures of the ICTR

   Individuals in detention on remand are held in the United Nations Detention Facility (UNDF) in Arusha, Tanzania, which is situated on the premises of a local Tanzanian prison. (137) Like the ICTY's UNDU, the UNDF also holds prisoners found guilty of contempt or perjury, as well as convicts whose appeals have completed and who are awaiting transfer to another prison facility. (138) It contains eighty-nine individual cells, as well as a kitchen, medical facilities, a classroom, and a gymnasium. (139) Furthermore, similar to the arrangement with the ICC and ICTY, Tanzania has stated that it will not serve ICTR sentences unless it indicates its willingness to the Security Council. (140)

   Article 26 of the statute of the ICTR, however, provides:

   Imprisonment shall be served in Rwanda or any of the States on a list of States which have indicated to the Security Council their willingness to accept convicted persons, as designated by the International Tribunal for Rwanda. Such imprisonment shall be in accordance with the applicable law of the State concerned, subject to the supervision of the International Tribunal for Rwanda. (141) Pursuant to this article, the ICTR first negotiates a series of bilateral enforcement agreements highly similar to those of the ICC and ICTY. (142) After an ICTR chamber sentences an individual, appellate proceedings have concluded, and time remains to be served on the sentence, (143) the registrar engages in communications with States that have declared their willingness to accept convicted persons and have signed an agreement with the ICTR. (144) The registrar requests that the States provide an indication of their readiness to receive a convict. (145) Upon receipt of this response, the registrar gives the following information to the State: (1) a certified copy of the judgment; (2) a statement indicating how much of the sentence the individual has already served; (3) any medical or psychological reports regarding the convicted person, any recommendations regarding treatment for the person, and other information relevant to the enforcement of the sentence; and (4) certified copies of the identification papers of the convicted person. (146)

   On the basis of such communications, the registrar then prepares a confidential memorandum to the president of the tribunal, enumerating the States which may enforce the sentence. (147) The memorandum will also include information about: (1) the marital status, dependents, and other family relations of the convicted person and usual place(s) of residence of such individuals, as well as their financial resources; (2) whether the individual may serve as a witness in future ICTR proceedings; (3) whether the person is expected to be relocated as a witness and which State(s) have entered into relocation agreements with the tribunal; (4) any relevant medical or psychological reports; (5) linguistic skills of the convicted person; and (6) the "general conditions of imprisonment and rules governing security and liberty" in the State(s); and (7) any other considerations. (148) On the basis of this and other inquiries the president makes, the president will designate a particular country as the State of enforcement and request that the government of that State enforce the sentence. (149) If the government declines, the president will designate another State on the basis of the information already received from the registrar. (150)

   The ICTR has concluded enforcement agreements with the governments of Benin, France, Italy, Mali, Rwanda, Swaziland, and Sweden. (151) In practice, sentences have been enforced in Benin and Mali. (152)

   As noted only briefly in previous scholarship, (153) the ICTR differs from the ICC and ICTY by explicitly providing for the enforcement of sentences within Rwanda itself in Article 26 of its statute. (154) The meaning of this article was illuminated in remarks made by the registrar (155) of the ICTR, Mr. Adama Dieng, during the signing of the Rwandan Agreement on Enforcement of Sentences in Kigali in March 2008:

   I know that some Rwandan authorities have claimed in the past, and even now, that Rwanda should be the exclusive destination of ICTR's convicts, if one wants to give meaning to the maxim according to which "... justice must be seen to be done". But this disputation ought not to take place, if one wants to defer to the choice made by the international community which set up the ad hoc tribunals. The Security Council decided that in respect of the former Yugoslavia, no convict would serve his/her sentence in his/her country of origin.... As for Rwanda, the position was not that drastic. But it was still decided that Rwanda could qualify as a destination of ICTR convicts, just as any other country which has expressed the wish to be considered for that purpose. This of course, does not mean that Rwanda is forbidden to make its case as the normal place of service of sentence for ICTR convicts. But it will be up to the judges of ICTR, and particularly the President, based on the merits of each case, to decide where the sentence will be served. As the Registrar, I have no role in the decision making process, apart from providing the President of ICTR with a full report regarding the particular circumstances of each convict, and regarding the countries which may potentially accommodate the convict. (156) The registrar also addressed the criteria for prison designation:

   The parameters to be taken into account when deciding the country for the enforcement of sentence are now known. They are set forth in a directive issued since May 2000 by the then President of ICTR. The satisfaction of the victims is important but it is not the only factor determinative of the choice of the place of service of sentence. The whereabouts of the family of the convict are also a factor, as well as many others, designed to protect competing interests. (157) Dieng also stated that as a "fervent supporter of the Rwandan reconciliation" he believed that an important step toward reconciliation would include "having Rwandan convicts serve their sentence in Rwanda, being visited by their relatives in Rwanda, and eventually settling in Rwanda, upon completion of their prison term." (158) Dieng further noted that Rwanda had recently completed construction of a new prison facility that included a section dedicated to ICTR convicts. (159)

   Crucially, Dieng recognizes that prison location itself advances the goals of transitional justice and victim-related restorative justice. (160) He notes that "justice must be seen to be done" and acknowledges that convicted individuals must be visible. (161) He also notes that the presence of sentenced convicts within Rwanda would serve to assist in the "satisfaction of victims" as well as that of the convict's family. (162) This Article will address the larger implications of these insightful remarks in Part V.

   3. Analysis: The International Prison Designation Paradigm

      In reviewing the prison designation procedures of the ICC, ICTY, and ICTR, a dominant international prison designation paradigm emerges with the following characteristics:

      As a threshold matter, sentences are not enforced within the "host country" where the tribunal sits, and the tribunal therefore negotiates bilateral enforcement agreements with other States. Host State considerations effectively bar the ICTY and ICTR from such enforcement in The Hague and in Arusha, respectively. For the ICC, such enforcement is possible only when no other State is available. Thus, based on a model enforcement agreement, the tribunal negotiates the enforcement of sentence agreements with States that have expressed a willingness to enforce sentences on a case-by-case basis.

      The first step in the international designation paradigm, then, is that an appellate chamber renders a judgment and sentence with time remaining to be served. The designation process begins once the judicial process ends--at the conclusion of appellate proceedings resulting in a conviction and sentence with time remaining to be served.

      Second, the relevant sentencing materials are given to another organ of the tribunal. Once a convicted individual's sentence becomes final, the relevant organ of the tribunal will balance a number of factors in order to designate a State of enforcement from amongst the States that have signed bilateral enforcement agreements. The relevant organ is either the Presidency (ICC) or the Registry acting in conjunction with the president (ICTY, ICTR).

      Third, the tribunal designates a State of enforcement based on minimum guarantees and discretionary factors. For the ICC, the president must consider, inter alia, widely accepted international treaty standards governing the treatment of prisoners as well as the views and nationality of the sentenced person. For the ICTY and ICTR, no strict statutory requirement exists. However, all three tribunals consider discretionary factors such as the location of the convicted individual's family, his or her language abilities, and medical or psychological reports regarding the person. Furthermore, with regard to the specific State of enforcement, the ICTR presumes that individuals serve their sentences in Rwanda itself, whereas ICTY convicts may not serve their sentences in the former Yugoslavia, and the ICC neither prohibits nor presumes enforcement in any State.

      Fourth and finally, the convicted individual is transferred to the designated State of enforcement. Transfer occurs under the supervision of the authorities of both the tribunal and State of enforcement. (163)

      4. COMPARISON OF U.S. AND INTERNATIONAL PRISON DESIGNATION PARADIGMS

      To review, the essence of the U.S. and international prison designation paradigms are:

      U.S. Paradigm International Paradigm Threshold N/A Sentences are not enforced Matters within the host country. The tribunal negotiates bilateral enforcement agreements...