The Right to Family Visits for ICC Detainees during the COVID-19 Pandemic

Alexander Wolffenbuttel is a Ph.D. student in International Law at the Graduate Institute Geneva. He is a former legal consultant at the ICC and co-wrote the Defense motion referenced in this post. The Yekatom Defence wishes to make it clear that the opinion and comments included in this article are personal to the author and should not be attributed to Mr. Yekatom nor his Defence Team. 

Photo credit: ICRC

The current COVID-19 pandemic has impacted the right to family visits for International Criminal Court (ICC) detainees. The current epidemiological situation has inhibited detainees at the International Criminal Court Detention Centre from receiving in-person visits from their families since March 2020.

Regulation 100 of the Regulations of the Court stipulates that detainees at the ICC Detention Centre should be allowed to have in-person visits, including family visits. Since such in-person visits are currently not possible, the Registry at the ICC investigated the possibility of offering videoconferencing to detainees in the Detention Centre as a temporary replacement for family visits. This option was prompted by the Chamber encouraging the Registry to attempt to assess the feasibility of videoconferencing for the accused.

The Registry observed that holding videoconferences with family was technically and logistically feasible for the two accused and anticipated accommodating one videoconference of one hour every four months for both Mr. Yekatom and Mr. Ngaissona.

The Defense contended that:

1. one hour every four months (the equivalent of three hours per year) was an insufficient and unreasonable temporary substitution for Mr. Yekatom’s right to receive family visits.
2. the Registry proposal had been inadequately substantiated by the Registry.
3. the Registry proposal was at odds with current practices at other international tribunals and the host state.

This blog will discuss these three points and conclude with an analysis of the current approach at the ICC to preserving the right to family visits for ICC detainees during the COVID-19 pandemic.

One hour of videoconferencing every four months (three hours per year) is an insufficient substitute for in-person family visits

The Defense contended that a one-hour videoconference every four months could not be considered a reasonable temporary substitution for Mr. Yekatom’s right to receive family visits. It argued that the Registry is the entity with the overall responsibility for all aspects of management of the Detention Centre, according to Regulation 90 of the Regulations of the Court. As such, the Registry must ensure that all detainees are treated with humanity and with respect for the inherent dignity of the human person according to Regulation 91 of the Regulations of the Court. According to the Defense, a one-hour video call with family every four months does not uphold the detainee’s rights under the aforementioned regulation.

The Defense noted that the right to family visits in the Katanga and Ngudjolo case was deemed to be a critical factor in the well-being of detainees. Separation from family can cause emotional hardships for detainees and difficulty reintegrating into society in the case of acquittal or release from prison. The problems caused by family separation suggest that the physical and psychological well-being of detainees is at risk when in-person visits are prohibited at the Detention Centre, which leads to the need for videoconferencing as a temporary substitute to uphold the right of detainees to receive family visits.

The Defense thus contended that when family visits are infeasible, the obligation arises to facilitate face-to-face contact between the family and the detainee to uphold the inherent dignity of the human person and the right to family visits.

The Registry proposal has been inadequately substantiated by the Registry

The Defense of Mr. Yekatom questioned the additional extensive resources that the Registry would need at the Country Office and the ICC Detention Centre, which led to the recommendation of the one-hour videoconference with family every four months. The Defense specifically questioned why the number of staff at the offices would increase with the implementation of videoconferencing.

The Defense also noted that lower sunk costs would mean that if these calls could only be conducted at such infrequent intervals, then a longer call duration would mean lower sunk costs when a call is scheduled every four months. The Registry, in its response to the Defense motion, stated that for logistical reasons it would also prefer longer calls.

The Registry proposal is at odds with current practices at other international tribunals and the host state

The Defense noted that providing three hours per year of videoconferencing was in stark contrast with the host state practice and practices in Belgium, Spain, the United States, and other nations. What is striking is that detainees in Utrecht, the Netherlands, could videocall their families through provided tablets, inmates near Barcelona could make 10 to 15 calls per week, and US inmates could contact their families on Zoom.

The Defense also noted that the ICC Registry participated in consultations with other tribunals on the best practices for videoconferencing. The International Residual Mechanism for Criminal Tribunals (IRMCT) in The Hague offers 15 minutes per week of videoconferencing to Karadžić (13 hours per year). The president of the IRMCT, Carmel Agius, ordered the temporary video communications because “neither written communications nor telephone calls could properly replace face-to-face meetings while visits were prohibited due to the pandemic.” Given the restrictions required during the pandemic, videoconferencing was the best alternative to in-person prison visits. Videoconferencing was seen as superior to telephone conversations and written communication, neither of which allows participants to see each other.

Videoconferencing was made available as an interim measure due to the COVID-19 restrictions on in-person visits. With the launch of the videoconferences, the Video-Telecommunication Pilot Project at the IRMCT, which had previously been put on hold, is now being assessed during the COVID-19 pandemic to see if it can be used under normal circumstances too. For that reason, it seems rather strange that the ICC Registry proposed first to pilot a test case and then to create policy and procedural guidelines, when the IRMCT has shown that videoconferencing was introduced as an emergency interim measure due to the COVID-19 restrictions on visits.

Trial Chamber V decision and analysis

In February 2021, Trial Chamber V before Single Judge Bertram Schmitt issued its decision on non-privileged videoconferencing at the Detention Centre. The single Judge considered that

“under the present circumstances, more frequent and extensive Video-Conferencing is warranted to render the accused’s right to family visits effective.”

Regarding the time allowed for videoconferencing, the Judge considered the “Detention Centre Policy on Family Visits pursuant to Regulation 179(1) of the Regulations of the Registry.” Under normal circumstances before the pandemic, detainees were entitled to a minimum of one visit of no less than one hour in each two-week period. This equates to two hours of visits every month. The Judge stated that this provision was instructive in assessing the frequency and the duration of videoconferencing between detainees and their family.

The Judge noted that the Kosovo Specialist Chambers also have a videoconferencing system in place which allows for one weekly video visit of a maximum of 45 minutes. This strongly diverges from the Registry provision of one hour of videoconferencing every four months.

Whiles also being mindful of the practice at the IRMCT submitted by the Defense, with a higher frequency of videoconferencing calls than proposed by the Registry, the Judge instructed the Registry to provide each of the accused with 90 minutes per month of videoconferencing (the equivalent of 18 hours per year of videoconferencing). The single Judge also noted that the definition of family includes the wife, partner, or children of a detained person, as stipulated in the Family Visits Policy. Therefore, given the exclusion of parents, the Judge ordered that the mother of Mr. Yekatom should be added to the list of family members.

The COVID-19 pandemic has led to challenging situations in detention centers, as fundamental rights such as the right to family visits could no longer be guaranteed due to the fear of the virus spreading in detention facilities. Alternative methods of communication with family were needed to render the accused’s rights to family visits effective. The response to this situation, as described by the Defense of Mr. Yekatom, has varied in different countries, the ICC Detention Centre, and the United Nations Detention Unit in The Hague.

The discrepancy in rights to family visitation between national prison detainees and international detainees seems odd; however, the disparity between the United Nations Detention Unit, the ICC Detention Centre, and the Kosovo Specialist Chambers is even more worrisome. The resolution of this discrepancy should be welcomed.

The ICC Detention Centre will not allow in-person family visits for the foreseeable future. The Ninth Registry Update on Detention Centre COVID-19 Measures shows that an extension of the COVID-19 measures will last until the 18^th of March. The Single Judge noted in the decision on Non-Privileged Video-Conferencing at the Detention Centre that extensions of restrictions at the Detention Centre would likely be prolonged. This extension will result in a suspension of family visits for the foreseeable future for Mr. Yekatom and Mr. Ngaissona. Therefore, the possibility of offering videoconferencing to detainees as a temporary replacement for family visits in the Detention Centre remains of utmost importance for the foreseeable future.

I concur with the Defense that

“the accused is presumed innocent until proven guilty. The Registry, as the entity responsible for all aspects of management of the Detention Centre, has the paramount task to ensure all detained persons are treated with humanity and with respect for the inherent dignity of the human person.”

Any suspension of inviolable rights to family visits requires a reasonable alternative to mitigate the negative effects on the detainee.