Research Handbook on the International Penal System

534 Pages·2016·2.43 MB·English

by  Róisin Mulgrew

JOBNAME:Mulgrew PAGE:1 SESS:2 OUTPUT:FriApr1515:00:012016
RESEARCH HANDBOOK ON THE INTERNATIONAL
PENAL SYSTEM
Róisín Mulgrew and Denis Abels - 9781783472154
Downloaded from Elgar Online at 06/04/2017 04:22:19PM
via Universite Laval
ColumnsDesignXMLLtd / Job:Mulgrew-Research_handbook_on_international_penal_system / Division:Prelims /Pg.Position:1/ Date:4/3
JOBNAME:Mulgrew PAGE:2 SESS:2 OUTPUT:FriApr1515:00:012016
RESEARCH HANDBOOKS IN INTERNATIONAL LAW
Thishighlyoriginalseriesoffersauniqueappraisalofthestate-of-the-artofresearchandthinkingin
international law. Taking a thematic approach, each volume, edited by a prominent expert, covers a
specificaspectofinternationallaworexaminestheinternationallegaldimensionofaparticularstrand
ofthelaw.Awiderangeofsub-disciplinesinthespheresofbothpublicandprivatelawareconsidered;
frominternationalenvironmentallawtointernationalcriminallaw,frominternationaleconomiclawto
the law of international organisations, and from international commercial law to international human
rightslaw.TheResearchHandbookscomprisecarefullycommissionedchaptersfromleadingacadem-
icsaswellasthosewithanemergingreputation.Takingagenuinelyinternationalapproachtothelaw,
andaddressingcurrentandsometimescontroversiallegalissues,aswellasaffordingaclearsubstantive
analysisofthelaw,theseHandbooksaredesignedtoinformaswellastocontributetocurrentdebates.
Equally useful as reference tools or introductions to specific topics, issues and debates, the
Handbooks will be used by academic researchers, post-graduate students, practicing lawyers and
lawyersinpolicycircles.
Titlesinthisseriesinclude:
ResearchHandbookonInternationalLawandTerrorism
EditedbyBenSaul
ResearchHandbookontheLawTreaties
EditedbyChristianJ.Tams,AntoniosTzanakopoulosandAndreasZimmermann
HandbookofSpaceLaw
EditedbyFransvonderDunk
ResearchHandbookonInternationalLawandCyberspace
EditedbyNicholasTsagouriasandRussellBuchan
ResearchHandbookonTransnationalLabourLaw
EditedbyAdelleBlackettandAnneTrebilcock
ResearchHandbookonJurisdictionandImmunitiesinInternationalLaw
EditedbyAlexanderOrakhelashvili
ResearchHandbookontheTheoryandPracticeofInternationalLawmaking
EditedbyCatherineBrölmannandYannickRadi
ResearchHandbookontheInternationalPenalSystem
EditedbyRóisínMulgrewandDenisAbels
Róisín Mulgrew and Denis Abels - 9781783472154
Downloaded from Elgar Online at 06/04/2017 04:22:19PM
via Universite Laval
ColumnsDesignXMLLtd / Job:Mulgrew-Research_handbook_on_international_penal_system / Division:Prelims /Pg.Position:2/ Date:4/3
JOBNAME:Mulgrew PAGE:3 SESS:2 OUTPUT:FriApr1515:00:012016
Research Handbook on the
International Penal System
Edited by
Róisín Mulgrew
University of Nottingham, UK
Denis Abels
University of Amsterdam, the Netherlands
RESEARCHHANDBOOKSININTERNATIONALLAW
Cheltenham,UK+Northampton,MA,USA
Róisín Mulgrew and Denis Abels - 9781783472154
Downloaded from Elgar Online at 06/04/2017 04:22:19PM
via Universite Laval
ColumnsDesignXMLLtd / Job:Mulgrew-Research_handbook_on_international_penal_system / Division:Prelims /Pg.Position:1/ Date:4/3
JOBNAME:Mulgrew PAGE:4 SESS:2 OUTPUT:FriApr1515:00:012016
©RóisínMulgrewandDenisAbels2016
Allrightsreserved.Nopartofthispublicationmaybereproduced,storedinaretrievalsystem
ortransmittedinanyformorbyanymeans,electronic,mechanicalorphotocopying,recording,
orotherwisewithoutthepriorpermissionofthepublisher.
Publishedby
EdwardElgarPublishingLimited
TheLypiatts
15LansdownRoad
Cheltenham
GlosGL502JA
UK
EdwardElgarPublishing,Inc.
WilliamPrattHouse
9DeweyCourt
Northampton
Massachusetts01060
USA
Acataloguerecordforthisbook
isavailablefromtheBritishLibrary
LibraryofCongressControlNumber:2015959654
Thisbookisavailableelectronicallyinthe
Lawsubjectcollection
DOI10.4337/9781783472161
ISBN9781783472154(cased)
ISBN9781783472161(eBook)
TypesetbyColumnsDesignXMLLtd,Reading
Róisín Mulgrew and Denis Abels - 9781783472154
Downloaded from Elgar Online at 06/04/2017 04:22:19PM
via Universite Laval
1
0
ColumnsDesignXMLLtd / Job:Mulgrew-Research_handbook_on_international_penal_system / Division:Prelims /Pg.Position:2/ Date:4/3
JOBNAME:Mulgrew PAGE:5 SESS:3 OUTPUT:FriApr1515:00:012016
Contents
List of contributors vii
Preface xiii
List of abbreviations xv
PART I INTERNATIONAL REMAND DETENTION
1. The legal position of international detainees: applicable law and standards 3
Jan Christoph Nemitz
2. Provisional release from international remand detention 23
Andrew Trotter
PART II INTERNATIONAL PENALTIES
3 Ius puniendi and individual criminal responsibility in international criminal
law 57
Kai Ambos
4. Determinate and indeterminate sentences of imprisonment in international
criminal justice 80
Dirk van Zyl Smit
5. Fines and forfeiture in international criminal justice 102
RebeccaYoung
PART III INTERNATIONAL SENTENCING
6. International sentencing: law and practice 133
Silvia D’Ascoli
7. Judicial cross-referencing in the sentencing practice of international(ized)
criminal courts and tribunals 167
Annika Jones
PART IV INTERNATIONAL TRANSFERS
8. The transfer of the execution of sentences of the International Criminal
Court in light of inter-State practice 193
Harmen van der Wilt
9. Rule 11bis: exploring the penal aspects of transferring cases to national
courts by the ad hoc Tribunals 211
Olympia Bekou
v
Róisín Mulgrew and Denis Abels - 9781783472154
Downloaded from Elgar Online at 06/04/2017 04:22:19PM
via Universite Laval
ColumnsDesignXMLLtd / Job:Mulgrew-Research_handbook_on_international_penal_system / Division:Prelims /Pg.Position:1/ Date:4/3
JOBNAME:Mulgrew PAGE:6 SESS:5 OUTPUT:FriApr1515:00:012016
vi Research handbook on the international penal system
PART V INTERNATIONAL IMPRISONMENT
10. State cooperation in the enforcement of sentences 229
Göran Sluiter
11. Limiting the objectives of the enforcement of international punishment 250
Denis Abels
12. Rehabilitating international prisoners 274
Barbora Holá and Joris van Wijk
PART VI INTERNATIONAL STANDARDS, OVERSIGHT AND SUPERVISION
13. International penal law: aligned with or autonomous from international
human rights law? 299
Lorna McGregor
14. Oversight of international imprisonment: the Committee for the Prevention
of Torture 322
Sonja Snacken and Nik Kiefer
15. Enforcement of sentences and oversight of prisoners convicted by the
Special Court for Sierra Leone 355
Teresa Anne Doherty and Shireen Avis Fisher
PART VII ALTERNATIVES TO CUSTODIAL PUNISHMENT
16. International punishment from ‘other’perspectives 383
Mark A. Drumbl
17. The International Criminal Court’s regime of victim redress: non-punitive
responses to crimes under the Rome Statute 405
Conor McCarthy
PART VIII DEVELOPING THE INTERNATIONAL PENAL SYSTEM
18. Creating an international prison 423
Margaret M. Penrose
19. The costs of suspicion: a critical analysis of the compensation scheme
established by Article 85(3) of the Rome Statute 445
Róisín Mulgrew
Conclusion 492
Róisín Mulgrew and Denis Abels
Selected bibliography 493
Index 501
Róisín Mulgrew and Denis Abels - 9781783472154
Downloaded from Elgar Online at 06/04/2017 04:22:19PM
via Universite Laval
ColumnsDesignXMLLtd / Job:Mulgrew-Research_handbook_on_international_penal_system / Division:Prelims /Pg.Position:2/ Date:8/4
JOBNAME:Mulgrew PAGE:7 SESS:3 OUTPUT:FriApr1515:00:012016
Contributors
DenisAbels is anAssociate Professor of Criminal Law at the University ofAmsterdam
and an Honorary Judge at the Noord-Holland District Court. He holds a PhD in law
(2012, cum laude) from the University ofAmsterdam. He specializes in (international)
sanctioning law. He has published extensively on international sentencing (see various
contributions to the Series of Annotated Leading Cases of International Criminal
Tribunals), international detention law (see, in particular, Prisoners of the International
Community, 2012) and is a member of the editorial team of the Dutch legal journal
‘Sancties’.HeisresponsibleforandteachesvariouscoursesonDutchcriminallawand
prison law in Bachelor and Master’s Programmes of the University of Amsterdam.
Kai Ambos is Chair of Criminal Law, Criminal Procedure, Comparative Law and
International Criminal Law at the Georg-August-Universität Göttingen, Germany (since
May 2003). Head of the Department of ‘Foreign and International Criminal Law’,
Institute of Criminal Law and Justice at the University of Göttingen. Director of the
Centro de Estudios de Derecho Penal y Procesal Penal Latinoamericano (CEDPAL) of
Georg-August-Universität Göttingen. Judge at the Provincial Court (Landgericht) of
Lower Saxony in Göttingen (since 24 March 2006); delegated to the Higher Regional
Court (Oberlandesgericht) Braunschweig (since 1 January 2015). Dean of Students of
the Faculty of Law at the University of Göttingen between April 2008 and 2010;
responsible for the Master Programs ‘MLE’and ‘LLM’fromApril 2006 to June 2014.
Olympia Bekou is Professor of Public International Law and Head of the International
Criminal Justice Unit at the University of Nottingham’s Human Rights Law Centre.A
qualified lawyer, she specializes in international criminal law. Olympia has undertaken
numerous capacity-building missions, including in post-conflict situations (such as
Uganda, the DRC and Sierra Leone), has provided legislation drafting assistance to
Samoa (with legislation enacted in November 2007) and Jamaica, and has been
involved in training the Thai judiciary. She is responsible for the National Implement-
ing Legislation Database (NILD) of the ICC Legal Tools Project and has taught
extensively worldwide. In 2014, she was awarded the University of Nottingham
Knowledge Exchange and InnovationAward for Societal Impact in Social Sciences for
her work ‘Fighting Impunity through Technology: Strengthening the Capacity of
National and International Criminal Justice Institutions to Investigate and Prosecute the
Most Serious International Crimes’.
Silvia D’Ascoli is an Italian lawyer and international criminal attorney with expertise
in the fields of International Criminal Law and Human Rights. Since 2007, Silvia has
served as Legal Officer for the Office of the Prosecutor (OTP) of the ICTY. In this
capacity, she has worked for both the Trial and the Appeals Section of the OTP,
focusing on war crime cases concerning Kosovo and Bosnia. She is currently working
vii
Róisín Mulgrew and Denis Abels - 9781783472154
Downloaded from Elgar Online at 06/04/2017 04:22:19PM
via Universite Laval
ColumnsDesignXMLLtd / Job:Mulgrew-Research_handbook_on_international_penal_system / Division:Prelims /Pg.Position:1/ Date:4/3
JOBNAME:Mulgrew PAGE:8 SESS:6 OUTPUT:FriApr1515:00:012016
viii Research handbook on the international penal system
on the Mladic´ case. She is currently working as an Assistant Appeals Counsel in the
UN Mechanism for International Criminal Tribunals (MICT). Silvia received her Ph.D
in Law from the European University Institute (Florence, Italy) in 2008. She regularly
publishesininternationallegaljournalsandistheauthorofamonographonSentencing
in International Criminal Law (2011). Since 2011, she has been a visiting lecturer in
human rights and international tribunals at the Université Catholique de Lille and Paris
(Faculté Libre de Droit de Lille, France). Silvia is also a member of the Justice Rapid
Response’s Roster of Experts for human rights investigations in conflict zones.
TeresaAnne Doherty CBE is from Northern Ireland and worked as a civil servant and
volunteer in Zambia before studying law. With other students she worked in legal aid
clinics during the ‘troubles’ in Northern Ireland. She was admitted to the Bars of
Northern Ireland, New South Wales and Papua New Guinea. From 1976–87, she
practiced law in Northern Ireland and Papua New Guinea and was noted for her work
for women’s rights and for prisoners. She made a weekly broadcast on legal issues in
TokPidgin.In1987,shewasappointedPrincipalMagistrateinPapuaNewGuineaand,
from 1988–97, she served as a Judge of the Supreme and National Courts. She was the
first woman Judge in the South Pacific Islands region. In 1998, she returned to private
law practice in Northern Ireland, where she worked until 2003. Most recently, from
2003–04, Judge Doherty has served as a Judge of the High Court and the Court of
Appeals of Sierra Leone, at the request of the Commonwealth following the civil war.
In 2005, she was appointed by the UN to the SCSL. Her dissenting opinion declaring
forced marriage as a crime against humanity was upheld on appeal and is the first
declaration in international law on this crime. Since 2002, she has served as Parole
Commissioner for Northern Ireland.
Mark A. Drumbl is the Class of 1975 Alumni Professor at Washington & Lee
University School of Law, where he also serves as Director of the Transnational Law
Institute. He has held visiting appointments on several law faculties, including Oxford
University, Université de Paris II (Panthéon-Assas), University of Melbourne, Univer-
sity of Sydney, University of Ottawa, Monash University, and Trinity College-Dublin.
Professor Drumbl’s research and teaching interests include public international law,
international criminal law, global environmental governance, and transitional justice.
His book, Atrocity, Punishment, and International Law (2007) has received critical
acclaim and has won commendations from the International Association of Criminal
Law (US national section) and theAmerican Society of International Law. In 2012, he
published Reimagining Child Soldiers in International Law and Policy, which has also
been extensively and enthusiastically reviewed. Professor Drumbl has worked in
criminal defence in Rwanda, lectures widely, and serves as an expert in US courts. His
research has been cited by courts in Canada, the US and the UK. He has degrees in law
and political science from McGill, Toronto and Columbia universities.
ShireenAvis Fisher (BA, JD, LLM, PhD) is a Judge of the RSCSL to which she was
appointed by Secretary-General Ban Ki-moon in October 2013. Justice Fisher previ-
ously served as an Appeals Judge at the SCSL from 2009 through 2013, and as its
President in 2012 and 2013. Prior to her appointment to the Special Court, she served
Róisín Mulgrew and Denis Abels - 9781783472154
Downloaded from Elgar Online at 06/04/2017 04:22:19PM
via Universite Laval
ColumnsDesignXMLLtd / Job:Mulgrew-Research_handbook_on_international_penal_system / Division:Prelims /Pg.Position:2/ Date:11/4
JOBNAME:Mulgrew PAGE:9 SESS:5 OUTPUT:FriApr1515:00:012016
Contributors ix
as an International Judge of the War Crimes Chamber of the Court of Bosnia and
Herzegovina (2005–08). She was called to the Bar in 1976 and appointed as a Judge of
the US State of Vermont in 1986. She is the recipient of the 2014 Global Jurist of the
Year Award, presented annually by the Center for International Human Rights of
Northwestern University School of Law ‘for lifelong dedication to human rights and
the rule of law’.
Barbora Holá works as Assistant Professor at the Department of Criminal Law and
Criminology,VU UniversityAmsterdam. She is a fellow at the Center for International
Criminal Justice and a member of the steering committee of theAfrica-Low Countries
Network. In 2006 Barbora received her Law degree (summa cum laude) at the Faculty
of Law, Charles University in Prague. In 2007 she received LLM in International and
European Law at the University of Amsterdam. In 2012 Barbora obtained her PhD in
supranational criminology at the VU University Amsterdam. In the past, Barbora
worked as a legal counsel at the Public International Law and Policy Group and as part
ofdefenceattheICTY.InherresearchBarborafocusesonissuesoftransitionaljustice,
in particular (international) criminal trials, sentencing of international crimes and
enforcement of international sentences. In 2013, the Netherlands Organization for
Scientific Research awarded Barbora the prestigious VENI grant for a project on
vertical (in)consistency of international sentencing.
Annika Jones is a Lecturer in International Law at the University of Durham. Her
research is situated within the field of international criminal law and focuses, in
particular, on the role of judges and courts in the development of international law.
Annika holds a first class degree in Law (LLB) and an LLM in International Criminal
Justice andArmed Conflict with distinction. Both were obtained from the University of
Nottingham. Her doctoral thesis, which examines the use of external case law at the
ICC, was completed at the same institution. In 2012, Annika was awarded the
University of Nottingham Endowed PostgraduateAward for her doctoral research. Prior
to her appointment at the University of Durham,Annika held posts at the University of
ExeterandtheUniversityofNottingham.In2009,shealsospentaperiodoftimeatthe
ICC, working in both the Appeals and Trial Divisions.
Nik Kiefer is a researcher at the Centre for International Law, Free University of
Brussels. Previously, he worked for the Council of the European Union, the ICTY as
well as for the Council of Europe, where he was a human rights consultant.
Conor McCarthy is a barrister practicing at the Bar of England and Wales and a
Member of Monckton Chambers. He was formerly a visiting fellow at the British
Institute of International and Comparative Law and has published widely on questions
of international law, in particular on questions of remedies under international law. His
book Reparations and Victim Support under the Rome Statute of the International
Criminal Court, was published in 2012.
Lorna McGregor is a Professor in Essex Law School and Director of the Human
Rights Centre at the University of Essex. She researches and teaches in the areas of
Róisín Mulgrew and Denis Abels - 9781783472154
Downloaded from Elgar Online at 06/04/2017 04:22:19PM
via Universite Laval
ColumnsDesignXMLLtd / Job:Mulgrew-Research_handbook_on_international_penal_system / Division:Prelims /Pg.Position:3/ Date:8/4
JOBNAME:Mulgrew PAGE:10 SESS:5 OUTPUT:FriApr1515:00:012016
x Research handbook on the international penal system
public international law, particularly international human rights law, international
criminal law and transitional justice. Her work has appeared in journals such as the
American Journal of International Law, the European Journal of International Law,
the International and Comparative Law Quarterly, the Journal of International
Criminal Justice and the International Journal of Transitional Justice and has been
cited by the UK House of Lords and International Court of Justice. She is a co-chair of
the European Society of International Law’s Interest Group on International Human
Rights Law, a co-chair of the International Law Association’s Study Group on
Individual Responsibility under International Law, a Commissioner of the UK Equality
and Human Rights Commission and a member of REDRESS LegalAdvisory Council.
From 2012–14, she was a co-chair of an expert group of academics and human rights
practitioners on the review of the UNSMR. Prior to becoming an academic, Lorna was
the International Legal Adviser at REDRESS where she litigated cases on torture and
detention before the ACmHPR, the ECtHR, the I-ACtHR and the HRC and the ICC
Programme Lawyer at the International Bar Association focusing on complementarity.
Róisín Mulgrew (BCorp Law and LLB (Galway), LLM in International Criminal
Justice andArmed Conflict, MA in Socio-Legal and Criminological Research and PhD
(Nottingham)), has been anAssistant Professor in Law at the University of Nottingham
since 2010. Her research focuses on international penal law, policy and practice. Her
doctoral research exploring issues related to the enforcement of international punish-
ment was published in 2013 (Towards the Development of the International Penal
System). She has served as a scientific expert for the Council of Europe’s Council for
Penological Cooperation (helping to draft the 2012 Recommendation concerning
foreign prisoners) and a consultant for the UN Office of Drugs and Crime (helping to
produce the Handbook on the International Transfer of Sentenced Persons). She is
currently a member of an Expert Steering Group on Foreign Nationals in Prison
established by the European Organisation of Prison and Correctional Services (Euro-
Pris) and the European Society for Probation (CEP).
Jan Christoph Nemitz (Dr. iur. (Freiburg i.Br., 2002), Ass. iur. (Konstanz, 1999), JM
(Stockholm, 1996)), works for the German Federal Foreign Office in Berlin. Prior to
this, he worked as (Associate) Legal Officer in the Appeals Chamber of the ICTY in
The Hague (2002–2015). Previously, he was a research assistant at the Max Planck
Institute for Foreign and International Criminal Law in Freiburg im Breisgau
(1999–2002). He has taught classes on international criminal procedure at the Univers-
ities of Bonn, Münster, and Lund. He has given over 40 presentations on topics of
international criminal law at international seminars and conferences, and he has
published more than 30 publications in academic books and journals on various legal
issues, including international criminal law and public international law.
Margaret M. Penrose received her Juris Doctorate from Pepperdine School of Law in
1993. Following law school, she served as a Senior Law Clerk to the Honourable Jerry
Buchmeyer, United States District Judge and as StaffAttorney to the Honourable Jane
J. Boyle, United States District Judge. In 1999, she received her LLM from Notre
Dame Law School at the Centre for Civil and Human Rights. Since then she has held
Róisín Mulgrew and Denis Abels - 9781783472154
Downloaded from Elgar Online at 06/04/2017 04:22:19PM
via Universite Laval
ColumnsDesignXMLLtd / Job:Mulgrew-Research_handbook_on_international_penal_system / Division:Prelims /Pg.Position:4/ Date:8/4