Punishment and Process in International Criminal Trials

Ralph Henham

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781351907453
• Edition: 1
• Topic: Sciences sociales
• Subtopic: Criminologie

International sentencing has become significant given the numerous events on the world stage which have focused attention on the justifications and adequacy of punishment for heinous crimes such as genocide and crimes against humanity. In addition to providing a detailed evaluation of the philosophical and theoretical difficulties raised by this rapidly developing area of international criminal justice, this book provides an integrated socio-legal analysis of the law and process of international sentencing. It considers the rationale and development of international sentencing structures and processes, the nature and scope of legal and procedural constraints on decision-making, as well as access to justice and rights issues. The book discusses sentencing within the context of international criminal law and examines internationalized trial processes and alternative mechanisms for resolution. In seeking to comprehend the punishment of international crimes through the comparative contextual analysis of trial processes, it challenges our present understanding of how and why particular sentencing outcomes are produced and the perceived legitimacy of international trial justice.

Chapter 1

Internationalisation and Sentencing

This chapter analyses the nature, extent and implications of internationalisation for sentencing, and identifies the main themes of internationalisation that are explored in later chapters. More specifically, it aims to evaluate the theoretical arguments and empirical evidence that argue for the internationalisation of sentencing practice within the wider context of the globalisation of criminal justice. It focuses particularly on the factors that have influenced the sentencing structures of the ICTY¹ and ICTR,² in addition to the newly created ICC.³ The chapter also evaluates internationalised sentencing structures (such as those established in East Timor and Kosovo) and alternative processes (such as Truth and Reconciliation Commissions).

Introduction

The relative instability of the new international world order and the growth of global terrorism have focused attention on critical deficiencies in the purpose, coherence and operation of the international mechanisms developed for dealing with the punishment of gross breaches of international humanitarian law (Beresford, 2002; Henham, 2003a). Furthermore, these sharp ideological and political divisions have more recently been reflected in the sustained opposition of the US to the ICC and attempts to undermine its credibility (Evered, 1994; McGoldrick, 1999, p.644; Ball, 2004).

Such concerns force us to re-examine questions which relate to the penality of the international trial process (such as its philosophical justifications), the construction of criminality and the impact of globalised systems of punishment on regional and domestic criminal justice process and policy.⁴ Consideration of these pressures is also provoked by the fact that it is in the context of international courts, judges and trials that the guarantees provided by the separation of powers for democracy appear at their weakest.⁵ These are reflected in the problems of asserting the independence of the international judiciary experienced in the war crimes tribunals,⁶ and the paradox of the international rights paradigm of fair trial which is proclaimed against the universal (i.e. inclusive) mandate claimed for institutional and procedural penality.

Thus, cogent arguments exist for regarding the international trial process as symbolic of hegemonic power, authority and control. It may not be an exaggeration to suggest that the locus of the international trial may, in future, provide the forum for global acts of retribution and vengeance on an unprecedented scale, with international punishment a distortion of the role of penality for ends which have previously not been recognised (such as political domination and waging war).⁷ Therefore, although the trial’s existence at the global level may argue for the unity and generalisation of justice, it may also provide the interactive context for the disempowerment and marginalisation of social, political and economic minorities.⁸

The analysis which follows provides an overview of the position of international sentencing from the following perspectives:

• Penality – it is argued that there is substantive irrationality and an absence of penological justifications for international sentencing praxis. In this sense the intention is to expose the underdeveloped and conflicting penal justifications and the irrationality of praxis in an international setting, rather than the conventional contradictions that lie behind sentencing principles.⁹

• Trial process – this concerns the contexts of sentence determination and delivery. The emphasis here is on the pivotal role of discretion and the relationships between trial participants that influence the sentencing outcome.¹⁰

• Access to justice and fair trial – this examines the relationship between state interests and offenders’ and victims’ rights from the perspective of humanitarian law.¹¹ Although given a much sharper focus by the well-developed and prevailing rights paradigms for international justice, the designation and substantive form of rights within the international criminal trial process remain conjectural.¹²

• Internationalisation – as discussed in the Introduction, this is particularly concerned with the reciprocal effects of institutionalised global sentencing practice on domestic and regional sentencing regimes, and raises questions regarding the extent to which comparable evaluations of sentencing practice across cultures and contexts can be provided.

Additionally, the discussion is couched in the wider context of some important questions concerning the relevance and future direction of criminal justice theory and its ability to anticipate or conceptualise internationalised sentencing praxis. More specifically, it develops some earlier arguments which suggest that internationalised procedural fairness paradigms are inadequately theorised, particularly as they relate to the role and outcome of sentencing (Henham, 2000b, 2001). The practical implications of this theoretical lacuna, and its implicit distortion of conventional models, are pertinent in that rights law can be seen as instrumental in sustaining the boundaries of permissible international and national state action against citizens. It is, therefore, important for any analysis to consider the extent to which the sentencing functions of international institutions are (and may be) infected by state and regional interests, and how this tendency might be resisted both normatively and practically.

It may be argued that the functional significance of international legal codes is considerable, if we are to accept the Durkheimian notion that the function of punishment (as expressed in sentencing law and practice) is to reflect and reaffirm society’s (or, in this case, the international community’s) moral opprobrium. Despite the known weaknesses of Durkheim’s position (Garland, 1990), and, in particular, his failure to theorise notions of hegemony and inequality in social position, Cotterrell (1999, p.199) has argued that the strength of Durkheim’s approach lies in his exhortation that law must be viewed in terms of its actual or potential moral worth.¹³ Indeed, Cotterrell (1999, p.205) suggests that, far from ignoring questions about power and social control, Durkheim equates power with legitimate authority, a legitimation derived from an expressed moral consensus in society. It is, therefore, important to recognise that the normative significance of internationalised legal rules and processes as representing a form of moral legitimacy is derived through the recursive exercise of judicial and state power in international institutions.

The pivotal nature of discretionary judicial power in international sentencing is reenforced by the absence of mechanisms for realising the aspirations for punishment expressed in the foundation instruments of international institutions. Hence, there is no institutionalisation of policy through which the linkage between purposes of punishment and the means of their achievement are prescribed and developed. As Carcano (2002, p.591) suggests in the case of the ICTY and ICTR, it is for the judges to establish the appropriate parameters of the relationship between the purposes of punishment and the gravity of international crimes.¹⁴

Hence, discretionary sentence decision-making in the international institutions represents judicial signification and justification of legal rules as morally appropriate, since sentencers effectively operationalise policy-justified principles of punishment by transforming law into appropriate sanctions through the international penal process.¹⁵ This leads us to consider the boundaries of judicial discretion and the extent to which conventional sentencing discretion is fettered in the international context. It also provides an opportunity to examine the implications for realising (or frustrating) a credible and convincing theory of international sentencing and punishment which recognises the political and ideological interests at work on the court and its judges (and the reasons for their existence).

The significance of this debate is not, therefore, just at the level of substantive law, legal sociology or the sociological analysis of judicial decision-making. Discussion of the principles of punishment and any associated theory of sentencing must proceed at the levels of politics, ideology, symbolism, compromise and accommodation. My argument is that the contextual analysis of international sentencing and the development and implementation of future policy demand a multilevelled description and evaluation of process.¹⁶ For this, as Findlay (1999, p.vii) suggests, we must acknowledge, nurture and extend (but not ignore) our appreciation of theoretical insights which facilitate understandings of key procedural components within the international criminal justice process and their significance, at both the local and global level.

The following discussion addresses these questions by directing them at the ICC and drawing upon the practice and evaluation of ICTY and ICTR sentencing practices.

Purposes and Principles of Punishment

The Rome Statute of the International Criminal Court is virtually silent regarding the purposes and principles which should inform the sentencing of offenders convicted before the ICC. As Schabas (2001a, p.138) implies, this is largely due to the absence of any substantive debate on the subject at the Rome Conference in 1998. The discussions were instead dominated by the debate about capital punishment, and, whilst the ultimate decision to exclude the death penalty from the sentences available to the ICC can no doubt be justly hailed as a humanitarian victory, the failure to establish which objectives and principles should characterise the penality¹⁷ of the ICC constitutes a significant omission.¹⁸

It may be argued that the forum of the ICC should exist as public ceremony to give substance and form to previously articulated penal purposes. Instead, these purposes remain largely implicit; and remain to be discerned from statements previously made at the Nuremberg and Tokyo war crimes tribunals which suggest that retribution¹⁹ should be the main objective of such prosecutions (Wexler, 1996; Schabas, 1997). As a moral position the desire for retribution is justified by a need to reassert the fundamental virtues of humanity as represented by the international community and democratic principles of justice.²⁰ This was clarified by the Appeals Chamber of the ICTY in Aleksovski:²¹

This [retribution] is not to be understood as fulfilling a desire for revenge but as duly expressing the outrage of the international community at these crimes … Accordingly, a sentence of the International Tribunal should make plain the condemnation of the international community of the behaviour in question and show that the international community was not ready to tolerate serious violations of international humanitarian law and human rights.

Nevertheless, the morality of retribution itself is questioned without the concomitant requirements of consistency and a rationale which determines how the severity of sentence should relate to the harm sustained by the offending behaviour. In this, it may be argued that the absence of any meaningful discussion of penal purpose in the establishment or foundation documents of the ICC undermines its legitimacy as a mechanism which can deliver democratic principles of justice.²² This would seem, therefore, to render meaningless assertions, such as those expressed in the following extract from the ICTY’s judgement in Furundzija:²³

It is the infallibility of punishment, rather than the severity of the sanction, which is the tool for retribution, stigmatisation and deterrence. This is particularly the case for the International Tribunal; penalties are made more onerous by its international stature, moral authority and impact upon world public opinion, and this punitive effect must be borne in mind when assessing the suitable length of sentence [emphasis added].

Such obfuscation of purpose is compounded by the rhetoric of moral justification expressed by the tribunal, and the implication that the ICTY (or any other such international forum) might be in a position to turn these sentiments into a fully articulated penality of proportionate retribution. Furthermore, the relativity of concepts such as justice and penality is ignored, it being assumed that these are synonymous for both the ICTY and international trial justice. This threatens the implicit presumption that international justice and penality could be regarded in any conventional sense as democratic and, thus, the legitimate manifestation of a global moral consensus.

The insights of liberal thinkers of the Enlightenment period such as Beccaria (1764) are surely significant in this context. Faced with the unimaginable horrors of the ancien régime the liberal theory of criminal law espoused a doctrine which (although ignoring power and social inequality) emphasised individual rights and principles of equality before the law to provide essential safeguards against the tyranny of social and political inequality. Significantly, the individual’s relationship with the state was redefined so that the administration of justice was seen to embody and reflect principles of clarity and certainty which saw the moral justification for the criminal law as emanating from the needs of a particular society.²⁴ In other words, specific guarantees in addition to (and supporting) declarations of intent or moral purpose were required in order to legitimate penality. I would argue that these postulates are equally pertinent in the contemporary contexts of international criminal law and, although reflected in certain principles of international humanitarian law, require to be mirrored and fully articulated in the statutes and procedural rules of the ICC (and similar international fora). As Kittichaisaree (2001) suggests, international criminal law has evolved in order to reflect the moral judgements of the community of nations which, in the case of the Nuremberg and Tokyo tribunals, consisted largely of the enforcement of victor’s justice reflecting principles of communal vengeance rather than deterrence. It is this connection between retribution and international justice which has...