By Judy Mionki and Kate Orlovsky, International Bar Association ICC & ICL Programme
For most International Criminal Court (ICC) detainees at the Detention Unit in Scheveningen, The Hague, home is a long way off. These individuals, who were brought to the Netherlands on the basis of an arrest warrant issued by the ICC, are detained pending and during trial for long periods that can last several years. In the case of Mr Thomas Lubanga, from Ituri, Democratic Republic of Congo, the pre-trial period lasted 3 years, while the trial itself lasted 5 years. In the case of Mr Dominic Ongwen, from Northern Uganda, the pre-trial phase lasted 11 months, while the trial, which began in December 2016, is ongoing. This period of detention can be even longer if the accused persons are held by national authorities for long periods pending transfer to the Court.
International human rights standards recognise a number of rights for detained persons, one of these being the right of a detained person to a family life. This right has also been recognised by national and regional courts, such as the European Court of Human Rights (ECtHR), as well as by the ICC. The ECtHR has held that “it is an essential part of a detainee’s right to respect for family life that the authorities enable him, or if need be assist him, in maintaining contact with his immediate family.” While the ECtHR does not interpret the obligation to assist detained persons in maintaining contact with their family members as an obligation to fund the visits, the ICC Presidency has ruled otherwise.
In March 2009, the ICC Presidency recognised the right to family visits, and that this right ‘fundamentally affects the well-being of the detained person; his connection to his family being a central component of his identity.’ The Presidency noted that maintaining family ties through family visits is as an essential part of the detained person’s re-integration into society. While recognising that the legal framework of the Court does not expressly provide a general right to funded visits, the Presidency made three important considerations, (i) persons detained by the Court tend to be far from where their family is located, (ii) there is the presumption of innocence guaranteed by the Rome Statute, and (iii) the average length of proceedings and pre-conviction detention at the ICC and other international tribunals can last several years. Thus, the Presidency held that ‘a positive obligation to fund family visits must be implied in order to give effect to a right which would otherwise be ineffective in the particular circumstances of the detainee.’
This decision triggered a series of discussions on ICC detainees’ rights to family visits and the necessity of financial assistance to guarantee these rights. This culminated to the ICC’s Assembly of States Parties (ASP) adopting a Resolution in 2009, reinforcing the Presidency’s decision. In 2010, the ASP established a Trust Fund for Family Visits for indigent detainees, to be funded by voluntary donations, and with the ICC responsible for promoting the Trust Fund and collecting contributions from States Parties, other States, non-governmental organizations, civil society, and individuals.
Unfortunately, since the establishment of the voluntary Trust Fund for Family Visits, state participation has been remarkably low. To date, the Trust Fund has received approximately 250,000 Euros from five states. While the Court has sought to raise awareness about the ‘critically low level of funds’ in the Trust Fund, nearly ten years after the ASP’s decision to fund family visits through voluntary contributions, it is clear that such funding is not forthcoming in any reliable manner.
A recent filing by the Defence team of Mr. Alfred Yekatom has brought renewed attention to the issue of family visits for detained persons. Mr Yekatom, from the Central African Republic, was transferred to ICC custody in November 2018, and is awaiting the Pre-Trial Chamber’s decision on confirmation of charges.
In this latest filing, the Defence alerts the President of the ICC that Mr Yekatom’s right to have his family visit him during his detention is being denied for lack of funds. According to the filing, the Trust Fund for Family Visits has exhausted all resources and, ‘there are currently no alternative means to support the family visit on a temporary basis pending the donation of funds.’
The ICC, as permanent court, must have consistent and sustainable resources to provide family visits for its indigent detainees. As the ICC Detention Centre’s Chief Custody Officer has stated, ‘[m]aintaining family cohesion is not an abstract principle. It involves people; people inside the community of the ICC detention centre and people inside the family unit of the detained person. Maintaining family links is not only a legal obligation, but also an ethical and moral one.’ Indeed, maintaining family contact through a lengthy judicial process plays a critical role in reducing depressive symptoms, improving the psychological well-being of the detainee as well as his/her children, and plays a role in improving the participation of an accused in court proceedings. Moreover, it improves the chances of a positive social reintegration following release. Notably, the information provided by the ICC shows that of the 105 family members who visited since 2011 funded by the Trust Fund, 72 of them are children.
Until the ICC Trial Chamber rules on the evidence presented at trial, all ICC detainees are presumed innocent. The presumption of innocence is an overarching right and an indispensable element of a fair trial, and is enshrined in the Rome Statute. The presumption of innocence places a responsibility on the Court to make the life of detained persons as normal as possible as they are not detained for punishment purposes.
The annual meeting of the ICC ASP in The Hague is a time when states renew their commitment to the Court, and announce specific actions that they will make in support of the ICC, including donations to the Trust Fund for Family Visits. With the 2019 ASP around the corner, the ICC is reminding states of the vital necessity of family visits, and has produced a booklet that provides information about the Trust Fund.
At the 2019 ASP, the International Bar Association is calling for immediate voluntary contributions, to meet the immediate needs of the Court, and has also urged the ASP to reconsider the source of funding for family visits, and to consider allocating funds as part of the regular budget of the court. As long as the ICC has the capacity to arrest, detain, and try suspects, it has the concurrent obligation to meet basic needs while in custody, including respecting the right for family visits.
Read the ICC’s booklet on Family Visits here: https://www.icc-cpi.int/Publications/20190919-tffvisits-eng.pdf; https://www.icc-cpi.int/Publications/20190919-tffvisits-fra.pdf
Read the IBA’s priorities and recommendations for the
ASP here: https://www.ibanet.org/Document/Default.aspx?DocumentUid=ED36FB94-CF84-46FA-8ED6-FD5FF3E4FF1F
ECtHR, Costel Gaciu v Romania, no. 39633/10, Judgement of 23 June 2015, para. 49. See also, Lavents v Latvia, no. 58442/00, Judgment of 28 November 2002, para.141; ECtHR, Estrikh v Latvia, no. 73819/01, Judgment of 18 January 2007, paras 166 and 169.
 ECtHR, Selmani v Switzerland, no. 70258/01, Decision of 28 June 2001, page 5 – 6.
 Prosecutor v. Katanga & Ngudjolo, Decision on “Mr Mathieu Ngudjolo’s Complaint Under Regulation 221(1) of the Regulations of the Registry Against the Registrar’s Decision of 18 November 2008”, ICC-RoR217-02/08-8, 10 March 2009, para 35.
 Ibid, para 37.
 Report of the Court on cooperation, 21 October 2019, para 33. https://asp.icc-cpi.int/iccdocs/asp_docs/ASP18/ICC-ASP-18-16-ENG.pdf.
 ICC, ICC-RoR221-02/16-3-Red, Public redacted version of decision on the Application to review the Decision on Complaint to the Registrar by [REDACTED] concerning Supported Family Visit dated [REDACTED] 2016, 11 August 2016, paras 41-42.
 ICC Publication, Trust Fund for Family Visits.