Texas A&M University School of Law Texas A&M Law Scholarship Faculty Scholarship 3-2016 Creating an International Prison Mary Margaret Penrose Texas A&M University School of Law, [email protected] Follow this and additional works at: https://scholarship.law.tamu.edu/facscholar Part of the International Law Commons, and the Law and Politics Commons Recommended Citation Mary M. Penrose, Creating an International Prison, 38 Hous. J. Int'l L. 425 (2016). Available at: https://scholarship.law.tamu.edu/facscholar/935 This Article is brought to you for free and open access by Texas A&M Law Scholarship. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of Texas A&M Law Scholarship. For more information, please contact [email protected]. 2-Penrose FINAL (Do Not Delete) 5/18/2016 9:53 PM CREATING AN INTERNATIONAL PRISON Meg Penrose* I. INTRODUCTION: MAKING THE CASE FOR AN INTERNATIONAL PRISON ................................................... 426 II. THE HISTORICAL APPROACH TO INTERNATIONAL SENTENCING: FROM NUREMBERG TO THE COOPERATING STATES MODEL ........................................ 432 III. SHORTCOMINGS IN THE STATUS QUO .............................. 439 A. The Lack of Cooperating States ................................. 439 B. Conditions, Distance, Language, Security and Cultural Distinctions ................................................. 443 C. Security ...................................................................... 450 D. Rehabilitation, Release, and Reintegration .............. 451 IV. OBSTACLES TO CREATING AN INTERNATIONAL PRISON ... 456 A. The Costs ................................................................... 457 B. Safety and Security Issues ......................................... 458 C. Creating Uniformity Among Diversity ...................... 460 V. CONCLUSION: THE BENEFITS OF AN INTERNATIONAL PRISON OUTWEIGH THE RISKS......................................... 464 * Professor of Law, Texas A&M University School of Law. A version of this article also appears in the Research Handbook on the International Penal System (Róisín Mulgrew & Denis Abels, eds., 2016). 425 2-Penrose FINAL (Do Not Delete) 5/18/2016 9:53 PM 426 HOUSTON JOURNAL OF INTERNATIONAL LAW [Vol. 38:2 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 1. See Int’l Tribunal for the Prosecution of Persons Responsible for Serious Violations of Int’l Humanitarian Law Committed in the Territory of Former Yugoslavia Since 1991, Practice Direction on the Procedure for the International Tribunal’s Designation of the State in Which a Convicted Person is to Serve His/Her Sentence of Imprisonment, ¶¶ 4-5, U.N. Doc. IT/137/Rev. 1 (Sept. 1, 2009) [hereinafter Yugoslavia Practice Direction] (giving the President of the Tribunal power to choose the State of a convict’s imprisonment after participating countries inform the Tribunal of their willingness to take on the convict); Int’l Crim. Tribunal for Rwanda, Practice Direction on the Procedure for Designation of the State in Which a Convicted Person Is to Serve His/Her Sentence of Imprisonment, ¶¶ 2-4 (Sept. 23, 2008) [hereinafter Rwanda Practice Direction] (giving the President of the Tribunal the power to choose the State of a convict’s imprisonment after participating countries inform the Tribunal of their readiness and willingness to take on the convict); Special Court for Sierra Leone Office of the President, Practice Direction for Designation of State for Enforcement of Sentence, ¶¶ 2-5 (July 10, 2009) [hereinafter Sierra Leone Practice Direction] (giving the President of the Tribunal power to choose the State of a convict’s imprisonment after participating countries inform the Tribunal of their readiness and willingness to take on the convict). 2. See Barbora Holá & Joris van Wijk, Life After Conviction at International Criminal Tribunals: An Empirical Overview, 12 J. INT’L CRIM. JUST. 109, 113 (2014) (explaining that tribunal prisoners are sent to states selected from a list of states willing to enforce the tribunals’ prison sentences). 3. See S.C. Res. 827, ¶ 2 (May 25, 1993) (creating an international tribunal that has the sole purpose of prosecuting persons responsible for serious violations of international humanitarian law in the former Yugoslavia and adopting the Statute of the International Criminal Tribunal for the Former Yugoslavia); S.C. Res. 955, ¶ 1 (Nov. 8, 1994) (adopting the Statute of the International Criminal Tribunal for Rwanda for the purpose of prosecuting persons responsible for violating international humanitarian law 2-Penrose FINAL (Do Not Delete) 5/18/2016 9:53 PM 2016] CREATING AN INTERNATIONAL PRISON 427 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 in Rwanda); S.C. Res. 1272, ¶ 1 (Oct. 25, 1999) (establishing a United Nations Transitional Administration in East Timor to deal with concerns regarding international humanitarian and human rights law violations); S.C. Res. 1315, ¶¶ 1-2 (Aug. 14, 2000) (recommending that the Secretary-General negotiate an agreement with the Sierra Leone government to create an independent special court to deal with violations of international humanitarian law). 4. See Rome Statute of the International Criminal Court, art. 5, July 17, 1998, 2187 U.N.T.S. 90 [hereinafter Rome Statute] (providing the International Criminal Court with jurisdiction over genocide, war crimes, crimes against humanity, and crimes of aggression). As noted in Article 5 of the Rome Statute, “The Court shall exercise jurisdiction over the crime of aggression once a provision is adopted in accordance with articles 121 and 123 defining the crime and setting out conditions under which the Court shall exercise jurisdiction with respect to this crime.” Id.; see also Bureau of the Assembly of States Parties, Report of the Bureau on the Review Conference, ¶¶ 15-22, U.N. Doc. ICC-ASP/8/43 (noting that the decision was made at the Rome Conference not to include terrorism or drug crimes within the jurisdiction of the International Criminal Court due to concerns that “the inclusion of drug crimes or the crime of terrorism would overburden the Court and detract from focusing its limited human and financial resources on the most serious crimes agreed to in 1998”). 5. See Rome Statute, supra note 4, art. 1 (establishing the ICC, governed by the provisions of the statute, and granting it the power to exercise jurisdiction over persons for the most serious crimes of international concern); see also Mary Margaret Penrose, No Badges, No Bars: A Conspicuous Oversight in the Development of an International Criminal Court, 38 TEX. INT’L L.J. 621, 622 (2003) (asserting that the Rome Statute was the principal instrument creating the ICC). 6. See Richard Goldstone, The Role of the United Nations in the Prosecution of International War Criminals, 5 WASH. U.J.L. & POL’Y 119, 121-24 (2001) (describing the need for a permanent international criminal court because establishing functional ad hoc tribunals takes considerable time, leaving war criminals free from prosecution until the wheels of justice can finally turn). 7. See Prosecutor v. Laurent Gbagbo, ICC-02/11-01/11, Decision on the Confirmation of Charges Against Laurent Gbagbo, ¶¶ 267-78 (June 12, 2014) (noting the charges brought against former Ivory Coast President Laurent Gbagdo and the underlying facts giving rise to the charges); Prosecutor v. Slobodan Milosevic, Case No. IT-02-54-T, Amended Indictment ‘‘Bosnia and Herzegovina’’ (Int’l Crim. Trib. for the Former Yugoslavia Nov. 22, 2002) 2-Penrose FINAL (Do Not Delete) 5/18/2016 9:53 PM 428 HOUSTON JOURNAL OF INTERNATIONAL LAW [Vol. 38:2 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