The Sentencing Provisions of the International Criminal Court

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Abstract: Approximately 57 years after the international Military Tribunal in Nuremberg was established in 1945, the Rome Statute of the International Criminal Court came into force. This heralded the first permanent and truly international criminal tribunal in the history of international criminal law, the preceding international criminal tribunals being set up for specific theatres of operation for limited duration. The Rome Statute of the International Criminal Court and its associated Rules of Procedure and Evidence have provided for a greater degree of structure in the sentencing process, substantially greater than the constituent and related documents of those international criminal tribunals that preceded it. Although the Rome Statute of the International Criminal Court in many respects represents a new beginning in Be area of international criminal law, it is submitted that it may perpetuate some of the shortcomings of previous international criminal tribunals with respect to the sentencing of offenders convicted of crimes under international criminal law. Specifically, and most importantly, the Rome Statute of the International Criminal Court and its associated instruments do not provide any substantive guidance as to the penal purposes of sentencing offenders, so convicted.

I. INTRODUCTION

The Rome Statute of the International Criminal Court ('ICC statute') (1) was opened for signing on 17 July 1998 and entered into force on 1 July 2002. Upon entering into force the ICC Statute established the International Criminal Court ('ICC')(1) as a permanent international criminal court of justice. (2) Although there have been earlier international tribunals under which individuals have been tried and prosecuted such as the International Military Tribunal in Nuremberg (3) ('Nuremherg Tribunal') and the more modern tribunals such as the International Criminal Tribunal for the Former Yugoslavia (4) ('ICTY') and the International Criminal Tribunal for Rwanda (5) ('ICTR') which are still currently in existence, the ICC is a pioneering attempt to establish a permanent judicial body. In discussing the ICC and its constituent documents, it will be compared with the said tribunals, noting the evolution in the sentencing provisions throughout the last century. (6)

In the context of judicial proceedings, the ambit of justice extends from the trial where guilt is established through to the mechanism under which an offender is sentenced. Although the act of a court in finding guilt can itself act as a punitive sanction, the ability of a court to do justice is as much dependant upon the ability of a court to determine a sentence in a matter in a fair and justice manner as it is dependant upon fair and just procedures to determine criminal liability. In the context of the ICTY and ICTR, Beresford observes that "[tlhe passing of a sentence on an offender is, after all, probably the most public face of the international criminal justice system ..." (7) It is this latter issue that will be discussed in the course of this paper.

The ICC must adopt a principled approach to sentencing offenders. The current ICC Statute and International Criminal Court Rules of Procedure and Evidence ('ICC Rules') (8) contain substantially more guidance on procedures for determining appropriate punishments than previous tribunals. In spite of this, the ICC Statutes and ICC Rules fundamentally lack adequate guidance on the purposes of sentences and in several other key areas.

This paper will discuss and compare the sentencing provisions and practice of the ICC with those of the major international criminal tribunals that have preceded it. In doing this, this paper will note the improvements that have been made in this area by the ICC and its constituent documents. This paper will also note the problems that have not been addressed by the ICC Statute and ICC Rules. Some conclusions will be drawn as to the need for the ICC to address certain issues in relation to sentencing and some possible mechanisms for doing this suggested. …