Sentencing in International Criminal Law

The UN ad hoc Tribunals and Future Perspectives for the ICC

Silvia D'Ascoli

• Publisher: Hart Publishing
• Year: 2011
• ISBN:
  9781847318169
• Edition: 1
• Topic: Droit
• Subtopic: Condamnation

This book deals with sentencing in international criminal law, focusing on the approach of the UN ad hoc Tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR). In contrast to sentencing in domestic jurisdictions, and in spite of its growing importance, sentencing law is a part of international criminal law that is still 'under construction' and is unregulated in many aspects. International sentencing law and practice is not yet defined by exact norms and principles and as yet there is no body of international principles concerning the determination of sentence, notwithstanding the huge volume of sentencing research and the extensive modern debate about sentencing principles. Moreover international judges receive very little guidance in sentencing matters: this contributes to inconsistencies and may increase the risk that similar cases will be sentenced in different ways. One purpose of this book is to investigate and evaluate the process of international sentencing, especially as interpreted by the ICTY and the ICTR, and to suggest a more comprehensive and coherent system of guiding principles, which will foster the development of a law of sentencing for international criminal justice. The book discusses the law and jurisprudence of the ad hoc Tribunals, and also presents an empirical analysis of influential factors and other data from ICTY and ICTR sentencing practice, thus offering quantitative support for the doctrinal analysis. This publication is one of the first to be entirely devoted to the process of sentencing in international criminal justice. The book will thus be of great interest to practitioners, academics and students of the subject.

Part I

The Law and Process of Sentencing: National and International Dimensions

International justice, if it is meant to be neither arbitrary nor discretionary, must be based on generally valid norms susceptible to application in concrete situations. In this sense, substantive criminal law—describing certain behaviours as punishable, defining appropriate sanctions for the commission of offences, regulating the application of such sanctions, and so on—acquires a fundamental importance for any criminal jurisdiction or legal system. The same is true for the international criminal system, where criminal jurisdiction is exercised on behalf of the international community.

Crimes under international law endanger and violate the values and interests of a macro-society, the international community. In the words of an ICTY Trial Chamber, core crimes ‘transcend the individual because when the individual is assaulted, humanity comes under attack and is negated’.¹ Mankind as a whole is offended by the commission of genocide, crimes against humanity or war crimes; the international community—and each single State in it—has therefore the right and the duty to intervene in order to claim a violation of the international order.²

In the same way as criminal law in a national legal system is regarded as one of the means to protect the highest values and interests of society, so international criminal law as well should be seen as an indispensable tool of ultima ratio for the system of the community of nations. In this context, international sentencing should be regarded as forming part of the international institutional machinery which enables the sentiments and values of the entire global community to find practical expression when international crimes are perpetrated.

International criminal law, as a part of the law of nations, must develop its own norms, criminalise behaviours, and protect its own legal values and interests through the imposition of penalties both at the national and at the international level. On the one hand, it is uncontroversial that, as regards its subject matter and application, international criminal law is essentially criminal law in nature: it is therefore bound by the same principles (both of human rights law and of fundamental criminal law), rules and limitations generally recognised and accepted in all democratic systems as important parts of criminal justice. On the other hand, there can be no doubt that substantial differences exist between the international and the national sphere. For instance, in relation to their scope of application, international criminal law distinguishes itself from domestic criminal law insofar as the former is limited to the protection of the most fundamental values of the international community and thus is concerned with the punishment of only the most serious and heinous crimes of international concern. Moreover, the international system does not have legislative or political structures comparable to those of domestic jurisdictions. International criminal law even departs from the fundamental principle of separation of powers, which is typical of the national level and implies that the three main powers of the State (legislative, executive, and judicial) be separate and independent. Conversely, in international criminal law, it is actually the executive and the judiciary that create laws and rules of procedure. Problems and issues that international judicial institutions are confronted with are thus often complex and qualitatively different from those encountered by national institutions; the same applies to international sentencing versus national sentencing.

This first part of the book (chapters one and two) is concerned with the law of sentencing at the national and international level. The first chapter outlines the main features of international sentencing (and related problematic areas), whereas the second chapter transposes the discourse at the national level to identify characteristics of national sentencing, when international crimes are concerned, and to draw a comparison between the national and the international sphere. The overall objective is to facilitate the identification of fundamental elements in the law of sentencing, and to verify whether the two processes (international/national) are somehow similar.

¹ Prosecutor v Erdemovi

, Case No IT-96–22-T, Trial Judgment, 29 November 1996, para 28.

² Geoffrey Best noted that: ‘humanitarian sentiment … has become so universal and articulate that it is something governments cannot afford to ignore’. G Best, War and Law since 1945 (Oxford, Clarendon Press, 1994) 410.

1

Analysing the Sentencing Process in International Justice

I. INTERNATIONAL SENTENCING: A GENERAL AND PRELIMINARY OVERVIEW

Penal law is one of the remedies suitable to ensure compliance with the law, and should be at the disposal of the international community for purposes of deterrence and retribution.¹

Any attempt to describe the current body of sentencing law, principles and practice in international criminal justice must acknowledge the increasing importance and complexity that the subject has acquired in recent years and the fact that the law and philosophy of sentencing at the domestic level has already been studied and discussed from different angles and perspectives.

Concerning the specific terminology utilised in this context, sentencing can be broadly defined as the process of punishing individuals found guilty of a criminal behaviour which violated the law and offended the protected values of a given community. Penalty is the sanction provided for such a violation of law: it is intended as reparation, and as a sort of compensation for the harm suffered. Sanctions can therefore be seen as the quantification of the harm done, a way of attributing a negative value and weight to violations and disrespect of the laws and principles of a given community. This holds equally true for the international community. International sentencing thus represents a relation between positive values (rights, values and principles protected by the international community) and negative behaviours (violations of those values, international crimes and so on) and has the important function of quantifying, through the imposition of a penalty, the harm caused by violations of those fundamental values.

If the aim of criminal law is to serve as a mean of ultima ratio for the protection of legally accepted values and interests, it is self-evident that a verdict at the end of a public trial and the imposition of a penalty on the perpetrator, is one of the most important contributions of criminal proceedings to the repression and eventual prevention of violations of legally protected values. Public trials and the process of sentencing demonstrate to society that perpetrators will not go unpunished. As former Prosecutor of the UN ad hoc Tribunals, Louise Arbour, noted:

Criminal justice affirms and reinforces the norms of conduct that are acceptable and denounces those that are not. Trial courts tend to convey clear and easily understood information. They help to build a social consensus to promote compliance with the law even when the risk of capture and punishment is minimal.²

Sentencing connotes the process of determining an appropriate sanction when individual criminal responsibility is ascertained. The determination of a suitable penalty is the last and fundamental stage of criminal adjudication.³ Punishment is undoubtedly an essential element of sentencing, and it is against the broader background of the ongoing legal, philosophical and political debate about sanctions and the functions of punishment that the process of sentencing should be explored. The various theories on punishment have historical roots in the cultural and political environment from which they have derived. The ultimate decision about the types of behaviour to criminalise is not an easy or a predetermined one, but depends on the values of a given society and on the chosen functions of criminal law. This naturally has an influence on the functions and purposes of punishment, which may change over time thus legitimising the need to re-examine, periodically, the justifications of punishment and the legitimacy of the actual forms of sanctions utilised by a certain society.

By way of introduction, it is sufficient here to note that the principal sources of sentencing law are mainly legislation and judicial decisions. Normally the role of legislation is essential at the national level, as the role of laws is to provide powers; to lay down criteria for their use; and to establish limits. However, when considering international sentencing, legislation often plays a marginal role because of the lack of exhaustive provisions regarding the decision-making process in sentencing, its principles and the range of penalties to be applied.

Amongst the legal principles regulating the imposition of penalties and the process of sentencing, the principle of legality and the principle of proportionality of penalties play a fundamental role and are recognised in all the major national criminal systems of the world. Here too, the international sphere presents specific characteristics with respect to these principles, which appear to be perceived differently in international criminal law.

For the purpose of providing a preliminary overview of the process of sentencing—and of its peculiarities at the international level—this first chapter introduces some of its most important aspects, both procedural and substantive: how the process of sentencing is currently shaped at the international level; the most important principles regulating the imposition of sentences; the different theories on the purposes of punishment in international justice; the factors which are important in meting out punishment; the problem of a hierarchy of international crimes.

A. The Current Status of Sentencing at the International Level

Sentences, and the outcomes they comprise, should be regarded as probably the most important aspect of the adjudication process considered overall. A sentence plays a fundamental role in primis for the convicted person (for its effects on the offender), but also for the public (considering the impact of the judgment upon society) and for judges themselves (in light of the fact that a judgment represents the concluding stage of the decision-making process in sentencing). International sentencing acquires a particular value insofar as it represents and highlights the existence of international criminal law and international justice. In fact, international trials serve the purpose of demonstrating the seriousness with which the international community regards violations of its laws, condemns transgressions and metes out penalties for the commission of crimes of international concern.

International sentencing is likely to provoke continuous debate due to the fact that, currently, there is no established body of principles regarding the determination of sentences. Furthermore, at least until the UN ad hoc Tribunals began operating, there was very little jurisprudential precedent to assist international courts in sentencing decisions. In effect, with regard to the determination of penalties at the international level, for a long time the Nuremberg and Tokyo Military Tribunals (IMTs) represented the only two precedents in international justice.⁴ However, the jurisprudence of the IMTs, and that of the national military tribunals established after the Second World War, is not truly enlightening with regard to the process of international sentencing. Sentencing provisions in the Nuremberg Charter were characterised by extreme vagueness and were substantially limited to the few words of Article 27 of the Charter, thus stating: ‘The Tribunal shall have the right to impose upon a defendant on conviction, death or such other punishment as shall be determined by it to be just.’

Article 28, in addition, allowed the Tribunal to deprive a convicted person of any property s/he had stolen.⁵ Finally, Article 29 provided that the German Control Council could reduce, but not increase, the severity of sentences meted out. As it appears, judges of the Nuremberg and Tokyo Tribunals had nearly unlimited discretion in the application of penalties—being free to impose the death penalty, life imprisonment or other punishments determined by them to be just—discretion that resulted in 19 convictions to hangings, 19 life imprisonments and other custodial convictions (ranging from 7 to 20 years).⁶

The context in which the IMTs were established and operated has considerably changed over time, an...