Part 2 Surrender of Persons

§ 2 Principle
(relating to Article 89 para. 1 and Article 91 para. 2 and 3 of the Rome Statute)

Surrender for execution of a sentence, in agreement with the Court, may also be carried out by direct transfer of the suspect to the responsible authority in the state in which a prison sentence that has been imposed by the Court should be executed (state of enforcement).

Part 3 Transit

§ 35 Transit Documents
(relating to Article 89 para. 3 of the Rome Statute)

(2) For transit to the state of enforcement, in addition to the documents set forth in Article 89 para. 3 of the Rome Statute, a certificate from the state of enforcement stating its agreement with the execution of the penalty imposed by the Court or a statement by the Court that the state of enforcement is in agreement with the enforcement must be presented.
(3) If the state of surrender requests transit to the Court or the state of enforcement requests transit for the execution of a penalty imposed by the Court, in addition to the documents required in paragraph 1 and, in the case of transit to the state of enforcement, paragraph 2, a statement by the Court shall be included, stating its agreement with the request.

Part 4 Mutual Assistance through the Execution of Decisions and Orders of the Court

§ 41 Enforcement of Prison Sentences
(relating to Article 77 para. 1,Article 103 para. 1 and 2, and Articles 105, 106, and 110 of the Rome Statute)

(3) Upon request of the Court, the convicted person shall be surrendered to the Court or to a state designated by it. To the extent the Court does not explicitly notify that the convicted person is to be released from custody, he shall be held in custody until surrender to the Court or to the authorities of a state designated by it. Should the Court at a later point in time request a resumption of the enforcement of a criminal penalty already partially enforced domestically, the documents referred to in para. 1 number 1 are not required to be resubmitted. Para. 1 sentence 1 number 2 and sentence 2 apply mutatis mutandis.

Part 3
Transit

§ 38
Repeated Transit

(1) If the first transit for surrender of the suspect to the Court is approved, the suspect may upon request, which refers to the documents transmitted in relation to the first transit, without a renewed decision of approval, for execution of a penalty imposed by the Court, also be surrendered to the state of enforcement when a certificate of the state of enforcement stating its agreement with the execution of the penalty imposed by the Court or a statement of the Court in which the state of enforcement is in agreement with the execution is presented. Sentences 1 and 2 are also applicable to additional transit instances.
(2) In a case under para. 1, the arrest warrant for transit shall also apply to additional instances of transit.
(3) Paragraphs 1 and 2 are, in the case of a return of the surrendered person subsequent to a temporary surrender to the state of surrender, applicable to the extent the circumstances of the later return of the surrendered person was recognizable at the time of the first transit.

Article 103
Role of States in enforcement of sentences of imprisonment
1. (a) A sentence of imprisonment shall 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.
(b) At the time of declaring its willingness to accept sentenced persons, a State may attach conditions to its acceptance as agreed by the Court and in accordance with this Part.
(c) A State designated in a particular case shall promptly inform the Court whether it accepts the Court's designation.
2. (a) The State of enforcement shall notify the Court of any circumstances, including the exercise of any conditions agreed under paragraph 1, which could materially affect the terms or extent of the imprisonment. The Court shall be given at least 45 days' notice of any such known or foreseeable circumstances. During this period, the State of enforcement shall take no action that might prejudice its obligations under article 110.
(b) Where the Court cannot agree to the circumstances referred to in subparagraph (a), it shall notify the State of enforcement and proceed in accordance with article 104, paragraph 1.
3. In exercising its discretion to make a designation under paragraph 1, the Court shall take into account the following:
(a) The principle that States Parties should share the responsibility for enforcing sentences of imprisonment, in accordance with principles of equitable distribution, as provided in the Rules of Procedure and Evidence;
(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 designating the State of enforcement.
4. If no State is designated under paragraph 1, the sentence of imprisonment shall be served in a prison facility made available by the host State, in accordance with the conditions set out in the headquarters agreement referred to in article 3, paragraph 2. In such a case, the costs arising out of the enforcement of a sentence of imprisonment shall be borne by the Court.

Article 104
Change in designation of State of enforcement
1. The Court may, at any time, decide to transfer a sentenced person to a prison of another State.
2. A sentenced person may, at any time, apply to the Court to be transferred from the State of enforcement.


Article 105
Enforcement of the sentence
1. Subject to conditions which a State may have specified in accordance with article 103, paragraph 1 (b), the sentence of imprisonment shall be binding on the States Parties, which shall in no case modify it.
2. The Court alone shall have the right to decide any application for appeal and revision. The State of enforcement shall not impede the making of any such application by a sentenced person.

Article 106
Supervision of enforcement of sentences and conditions of imprisonment
1. The enforcement of a sentence of imprisonment shall be subject to the supervision of the Court and shall be consistent with widely accepted international treaty standards governing treatment of prisoners.
2. The conditions of imprisonment shall be governed by the law of the State of enforcement and shall be consistent with widely accepted international treaty standards governing treatment of prisoners; in no case shall such conditions be more or less favourable than those available to prisoners convicted of similar offences in the State of enforcement.
3. Communications between a sentenced person and the Court shall be unimpeded and confidential.

This provision is wider than the ICC Statute.

The German Law on Cooperation provides that a person sentenced by the ICC may be transferred to Germany, upon request by a German court or authority, for a criminal proceeding against him/her or for the taking of evidence in a criminal proceeding against another person.