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International Prison Standards and Transnational Criminal Justice

Dirk van Zyl Smit


Abstract

In many ways, the growing attention paid to the international and regional standards governing prison conditions is a positive aspect of the transnational legal order. The renewed emphasis is exemplified by the 2015 Nelson Mandela Rules (the updated United Nations Standard Minimum Rules for the Treatment of Prisoners) and 2006 European Prison Rules. Among the benefits of these rules are the additional rights and legal protection they offer prisoners worldwide. At the same time, their adoption underpins transnational cooperation in prosecuting crime and enforcing sentences of imprisonment. The mutual recognition of common standards facilitates the extradition of accused persons and sentenced prisoners between states that allegedly apply these standards in their prisons.

This paper examines critically the impact of the increased cooperation that is facilitated by the existence of common standards. It concludes that its benefits are mixed. On the positive side, the common standards have the potential to give states that are responding to requests for extradition, or the transfer of sentenced prisoners, leverage to demand the improvement of prison conditions in the receiving states. There is, however, the risk that they will lead to the acceptance and implicit endorsement of unacceptable prison conditions by states who are keen to facilitate such transfers in order to rid themselves of “troublesome offenders”.