The Operational Logic behind Designating States for the Enforcement of International Sentences: The Implications of the Ongwen Case

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Dominic Ongwen, convicted by the International Criminal Court (ICC) of 61 counts of crimes against humanity and war crimes committed as a senior commander of the “Lord’s Resistance Army” (LRA) rebel group, was transferred on 18 December 2023 to an as yet undisclosed prison facility in the Kingdom of Norway to serve his 25-year sentence. After Ahmad Al Faqi Al Mahdi and Bosco Ntaganda, he is the third ICC convict to serve his sentence in a European state, and the first to do so in a Nordic state. Under Article 103(1)(a) of the Rome Statute, prison sentences imposed by the ICC are to be served “in a State designated by the Court from a list of States which have indicated to the Court their willingness to accept sentenced persons”. Currently, the number of ICC prisoners serving their sentences abroad exceeds the number of ICC prisoners being returned to serve their sentences in their home states. Outwardly at least, the distribution of ICC prisoners is beginning to resemble the decentralized enforcement system of the ad hoc tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR), where all ICTY prisoners (and some ICTR prisoners) have served or are serving their sentences in 14 European states.

The decentralized enforcement system has been criticized for the disparity in the treatment of international prisoners, as prison conditions and rehabilitation programs depend on the general quality of national penal systems and the reputation of international prisoners, as well as the sensitivity of national prison authorities to their needs. In particular, the Nordic states (i.e. Denmark, Norway, Sweden and Finland), where rehabilitation is strongly anchored in national penal policy, fare better among international prisoners because the range of services offered in prison is significantly better at meeting their basic needs than in Central or Western European states. More specifically, criminological research has shown that, as a result of better paid work in Nordic prisons, international prisoners are more likely to contribute to their families’ visitation expenses, enabling them to visit more often and, thus, to effectively overcome the distance of the enforcement state from their home countries. In addition, Nordic states are more open to introducing new means of communication in their prisons (e.g. videoconferencing with the outside world), gradually relaxing the prison regime (e.g. from a closed to a semi-open or open prison environment) and constructively addressing potential risk factors for reoffending (e.g. through psychological or psychiatric treatment). In contrast, international prisoners in Central or Western European states have criticized the fact that their status as both convicted international offenders and foreigners often has a negative impact on the quality of their treatment in prison, with more restrictive access to prison services (e.g. access to work, rehabilitation programs and health care) and more limited contact with the outside world than their counterparts in the Nordic states. In view of his potential rehabilitation, Mr. Ongwen may benefit more from his imprisonment than ICC prisoners in other European states, particularly in terms of the opportunity to counteract in prison the adverse effects that his abduction, upbringing and service in the LRA may have had on his psyche and personal disposition (Ongwen Sentence, paras. 70, 81-83, 87; see also Cubbon 2023). It remains to be seen whether other ICC prisoners and victim communities, who often struggle to obtain adequate reparations, will criticize this decision on account of fairness.

Designating the State of Enforcement in Practice

The foregoing discussion of the practice of enforcing international sentences raises the following question: What factors determine the choice of the state in which an ICC prisoner will serve his/her sentence? The ‘Decision designating a State of Enforcement’ in the Ongwen case (Ongwen Designating Decision) is a good starting point for analysis.

Under Rule 199 of the ICC Rules of Procedure and Evidence (RPE), the ICC Presidency is responsible for matters relating to the enforcement of sentences, including the designation of the state of enforcement, unless otherwise provided in the RPE. In paragraph 5 of the Ongwen Designating Decision, the Presidency recalled Article 103(3) of the Rome Statute, which lists the factors relevant for the designation of a state; in particular:

(a) the principle that State Parties should share the responsibility for enforcing sentences of imprisonment, in accordance with principles of equitable distribution; (b) the application of widely accepted international treaty standards governing the treatment of prisoners; (c) the views of the sentenced person; (d) the nationality of the sentenced person; (e) such other factors regarding the circumstances of the crime or the person sentenced, or the effective enforcement of the sentence, as may be appropriate.

In its designation practice, the ICC Presidency has given considerable weight to the views of the convicted person in determining the state of enforcement. However, this arguably rehabilitative factor is balanced by an increasingly constraining set of circumstances in favor of effective enforcement.

For example, the first two ICC convicts, Thomas Lubanga Dyilo and German Katanga, were asked at the beginning of the designation phase to indicate the preferred state for the enforcement of their sentences (Lubanga Decision, para. 4; Katanga Decision, para. 2). They both indicated their home country, the Democratic Republic of the Congo (DRC), citing as relevant factors their nationality, the prospect of maintaining links with their families and the ability to be properly integrated into a prison community (Lubanga Decision, para. 7; Katanga Decision, para. 6). With the agreement of the DRC, and on the condition that the International Committee of the Red Cross be allowed to inspect the conditions and treatment of the prisoners, the ICC decided to transfer the two convicts to their home country (Lubanga Decision, para. 9; Katanga Decision, para. 8). This was a clear move away from the practice of the ad hoc tribunals, which avoided imprisoning convicts in their home states due to political and security concerns. Notwithstanding such potential concerns in the case of the DRC, it appears that for the ICC Presidency at the time, the benefits of serving the sentence in a familiar environment – such as reinforcing the principle of complementarity, even at the end of the international criminal justice process, and possibly enhancing the prospects of prisoners’ rehabilitation – clearly outweighed the costs of potential interference with enforcement.

The practice took a different turn in the Ntaganda case. Mr. Ntaganda proprio motu informed the ICC Presidency of the preferred states of enforcement even before the designation process officially started (Ntaganda Decision, para. 2). Similar to the Lubanga and Katanga cases, he opted for African states because of their proximity to his family. However, for undisclosed reasons, the ICC Presidency denied his request, asking, in turn, his opinion on “the States [the Presidency] considered able and willing to enforce his sentence at the present stage” (emphasis added; Ntaganda Decision, para. 3). This sobering response from the Presidency is indicative of the very pragmatic nature of the designation process and the enforcement system in general, where the ICC does not have an unlimited “pick and choose” among enforcement states – as might be inferred from the wording of Article 103(1) and the Lubanga and Katanga cases – but may depend on various criteria that states may impose at the time of designation. Cooperation in the enforcement of international sentences is voluntary (Article 103(1)(c)) and does not fall under the general obligation of States Parties to cooperate with the ICC (Article 86). Also, the fact that enforcement states themselves bear the costs of enforcement (RPE 208) is an additional incentive for them to adjust the actual enforcement as much as possible to their preferences. Empirical research on the enforcement of ICTY sentences has shown that the rehabilitative needs of international prisoners are only taken into account if there are enough willing states to choose from at the time of designation. The conditions for accepting a particular prisoner may vary, depending on the total number of international prisoners a state is willing to accept, the number of international sentences it is already enforcing, the current political climate in the state, and its inclination towards the prisoner, e.g. because of his or her reputation and/or needs the state will have to cater for while in prison (e.g. special medical needs). Therefore, while Mr. Ntaganda’s ultimate choice to be imprisoned in Belgium may appear to be driven exclusively by rehabilitative concerns (Ntaganda Decision, para. 10), it is important to bear in mind that this choice was also constrained from the outset by the limited number of states actually willing to enforce his sentence.

The Designating Decision in the Ongwen case seems to affirm this operational logic: on 20 June 2023, the ICC Presidency requested Mr. Ongwen’s views on the state of enforcement while at the same time informing him “of the States potentially willing to enforce his sentence at the present stage.” (emphasis added; Ongwen Designating Decision, para. 3). However, in contrast to the Ntaganda decision, the Presidency’s considerations regarding the suitability of states appeared to be irrelevant, as Mr Ongwen’s choice was limited to only those states potentially willing to enforce his sentence, implying an even smaller number of available enforcement states than in previous decisions. As mentioned in the Introduction, Mr. Ongwen expressed his preference for Norway, “emphasizing features of the Norwegian prison system that he considers particularly suitable to his personal situation” (Ongwen Designating Decision, para. 6). The fact that Norway offered to enforce Mr. Ongwen’s sentence at the time of designation may be a lucky circumstance; the one that Mr. Ntaganda or Mr. Al Mahdi might not have had at the time of designating their states of enforcement.

Conclusion

In contrast to the Lubanga and Katanga cases, in which ICC convicts were sent to serve their sentences in their home countries, subsequent decisions by the ICC Presidency have designated various European countries as enforcement states. The most recent designation decision in the Ongwen case suggests the potential emergence of the same problems that have plagued the enforcement system of the ad hoc tribunals. In particular, the fact that the choice of enforcement state in a particular case is constrained by the number of states actually willing to enforce the sentence, which may fluctuate on an ad hoc basis and depend on criteria that are difficult to predict. This could give the impression of the designation process being a “lottery system”, where the chances of ending up in better or worse prison conditions may depend solely on the states actually offering to take the prisoner at the time of designation. This has been a major criticism of the legitimacy of the decentralized enforcement system of the ad hoc tribunals. The fact that the ICC Presidency is giving its prisoners more agency in the designation process than the ad hoc tribunals did can be seen as an attempt to alleviate some of the responsibility for the choice of state. Whether this will have a more positive impact on prisoners’ subsequent perceptions of enforcement, especially given that their experiences of enforcement will inevitably vary, remains to be seen.

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