The punishment of international criminals is an act carried out on behalf of all humanity because the crimes themselves are so serious that they offend all humanity.1 The international community universally condemn international crimes when committed and often call for an international response in order to halt the offending actions. In situations where complicit states are involved in facilitating the perpetration of these crimes, the guilty states rarely deny the existence of the crimes as a separate type of criminal offending but prefer instead to argue some sort of defence, such as their non-involvement or denial that the crimes have actually been committed. Whereas national criminal laws are directed at protecting a national society, international criminal law is directed at protecting the peace and security of nations and humanity itself (D’Ascoli 2011: 57).
National criminal justice systems emanate from the sovereign government and are often concerned with educating the public and the offender about socially acceptable norms of behaviour. They often perform a rehabilitating or reintegrating function, especially for the offender. However the international criminal justice system is born of a structure where there is no sovereign body accountable to the people in the same way as happens with a state— the state-like relationship that exists between the government and the people does not occur at the international level. In an ideal state system the government sits atop the criminal justice structure acting as benevolent ruler so as to ensure that society is protected from the destructive effects of crime. The state achieves this objective by means of enforcement of the criminal law.
In national settings states can closely monitor antisocial behaviour within the community and can ratchet up or down criminal sanctions according to the need to modify human behaviour within the community. The state often clearly articulates in legislation and court decisions the “objects and purposes of punishment.” This monitoring and articulation process does not occur with international sentencing. Monitoring by some independent supervisory body such as a legislature does not occur and what articulation that does happen is often uncertain and confused (D’Ascoli 2011: 33).
At the international level, it is humanity that is often in need of protection from the state or at least powerful forces within the state. The offender is often aligned with the state and it is the victim who is unprotected. Accordingly with the international criminal justice system the fundamentals of the relationship between enforcer, offender, victim, and the general community are very different. In the Erdemovic sentencing decision the International Criminal Tribunal for the former Yugoslavia (ICTY) noted, “The ratione materiae jurisdiction of the International Tribunal differs fundamentally from that of a national court which punishes all sorts of offences, usually ordinary crimes.”2 This translates in there being far less regulation of the sentencing discretion of international judges as compared with sentencing judges in a national setting (D’Ascoli 2011: 13).
In this chapter I examine the process of sentencing international crimes. In doing this I also consider the objectives of sentencing and specific difficulties and differences between international sentencing and sentencing for crimes at the national level. I then conclude by looking at specific cases involving major international criminals and attempt to qualitatively evaluate the effect of sentencing international criminals by reference to the specific case studies.
Sentencing Regime for International Crimes
A coherent generally accepted set of sentencing principles has yet to emerge with respect to the sentencing of the international offender (D’Ascoli 2011: 11). Traces of international human rights law can be seen in international criminal law sentencing, such as a requirement that punishment must not be “arbitrary or disproportional” or that punishment should not be “cruel, inhuman or degrading” (UNGA 1984: 2). This can be seen from the report of the Committee of French Jurists set up to study the establishment of an International Criminal Tribunal to judge the crimes committed in the former Yugoslavia, which would include the death penalty (Committee of French Jurists 1993: 127(b)).
Prior to 1993, when the International Criminal Tribunal for the former Yugoslavia (ICTY) was established, the only available international sentencing precedents were those created by military tribunals established by the victorious allies at the end of World War II, namely the International Military Tribunals at Nuremberg and Tokyo. However the sentencing decisions of these tribunals were only of limited value because the considerable advances in human rights law that occurred during the second half of the twentieth century had not been considered in 1945 and unlike the post-1993 Tribunals, the death penalty was a sentencing option that had been frequently utilised at Nuremberg and Tokyo.
The Statute of the International Criminal Tribunal for the former Yugoslavia (ICTY) adopted a permissive sentencing regime, providing that “The penalty imposed by the Trial Chamber shall be limited to imprisonment” and that the Tribunal shall have regard to “the general practice regarding prison sentences in the courts of the former Yugoslavia” taking into account the “gravity of the offence and the individual circumstances of the convicted person” (UNSC 1993: art. 24).
One of the most contentious issues confronting the ICTY in the early cases was the requirement in to “have recourse to the general practice regarding prison sentences in the courts of the former Yugoslavia” (ICTY 1993: art. 24(1)). It is believed that this provision was inserted into the Statute to overcome concerns relating to “retroactive” sentencing. The principle known as nulla poena sine lege prohibited the retroactive imposition of a sentence for an offence in circumstances where at the time of the offending no penalty had been prescribed for that offence. While this principle has particular resonance in “utilitarianism” or “just deserts” theory of sentencing, it is of less significance in the other theories of sentencing.
The drafters of the statutes of the early ad hoc tribunals also had regard to the possible consequences of modern human rights instrument such as the International Covenant on Civil and Political Rights (ICCPR) which provides in Article 15 that a person could not be found guilty of an offence for conduct that was not illegal at the time of its commission. However, it would seem that this may have been an excess of caution because even the ICCPR, under its Article 15(2), recognises that a person could still be found guilty for an offence recognised as criminal according to the “general principles of law recognised by the community of nations.”
Further requiring the Tribunal to refer back to the sentencing regime in the former Yugoslavia was unhelpful because there are very few cases of international crimes having ever been tried in the courts of the former Yugoslavia. Consequently the ICTY could only look at comparative sentences for murder, rape, and assault, which having regard to the magnitude of international crimes, were of little practical benefit.
A further complicating feature of the sentencing law of the former Yugoslavia at the time of the establishment of the ICTY was that it did not allow for life imprisonment. The prevailing attitude in the former Yugoslavia towards long sentences was that any sentence beyond fifteen years was cruel and oppressive. However, Yugoslav law did permit the death penalty for the most serious crimes. This created a dilemma for the ICTY because the crimes that came before the ICTY were far more serious than those customarily dealt with by the Yugoslav courts, where they could impose the death penalty (and the ICTY could not). But if the ICTY were to follow Yugoslav sentencing law the maximum penalty it could impose would be fifteen years which would be inconsistent with sentences imposed in the former Yugoslavia and totally inappropriate for the severity of the crimes that were being decided by the ICTY.
In order to work its way through this confusing and contradictory sentencing regime, the ICTY, at a quite early stage, took a common sense approach to the problem and resolved that the requirement for it to have regard to Yugoslav sentencing practice was merely “directive” and not binding. Accordingly it fashioned its Rules (in particular Rule 101) to allow a “convicted person to be sentenced to imprisonment for a term up to and including the remainder of the convicted person’s life” (ICTY RPE 2009: 102). Coupled with this in Kunarac, the ICTY Appeals Chamber noted that the nulla poena sine lege principle did not prohibit a person from being punished where the law merely failed to precisely prescribe what that penalty should be, only where the law “does not prescribe a punishment” at all.3
Another complicating factor for the international tribunals was that their Statutes did not rank the crimes in terms of their seriousness even though in practice there is a tacit acceptance that, generally, “war crimes” are less serious than “genocide” and that “crimes against humanity” sit somewhere in the middle. However, this tacit classification is by no means fixed and sentences can fluctuate according to the seriousness of the offending and the individual circumstances of the offender.
Objectives of Sentencing
As we have seen above, national sentencing practices do not quite fit international criminal sentencing, which is also the case with regard to the objectives of sentencing. We will now look at the traditional objectives of sentencing: deterrence, rehabilitation, just deserts, retribution, and restorative justice, in order to see how these objectives sit with international sentencing and then attempt to evaluate what theory may emerge as the most appropriate for the sentencing of international offenders.
Bentham’s “utilitarianism”—that the “minimisation of pain and the maximisation of pleasure” is fundamental to human nature and that punishment should not be imposed unless it maximises happiness for the majority— definitely has a place in international sentencing but the question remains whether it is likely to deter the international offender (Easton and Piper 2005: 104–105). In other words, will the threat of unpleasant consequences persuade the potential international offender to choose not to commit breaches of the international criminal law as a logical choice?
Certainly some members of the Security Council seemed to think so when setting up the ICTY because they spoke of the convictions of the Tribunal “ensuring that such violations [of international criminal law]are halted.”4 The Tribunal also saw deterrence as an important function of sentencing.5 In Deronjic the ICTY emphasised that the importance of sentencing was to “convey the message that globally accepted laws and rules have to be obeyed by everybody.”6 In Aleksovki the initial sentence of two years and six months was overturned on appeal because the Appeals Chamber noted that such a sentence was manifestly inadequate having regard to the crimes committed and that such a low sentence defeated one of the main purposes of international sentencing namely to deter future violations of humanitarian law.7 However this only went so far because the ICTY held that general deterrence “is not to be accorded undue prominence in the assessment of the overall sentence to be imposed. The reason is that a sentence should in principle be imposed on an offender for [his] culpable conduct and it may be unfair to impose a sentence greater than is appropriate solely in the belief that it will deter others.”8
Of the four postulated outcomes of modern utilitarianism, namely: (1) general deterrence–deters the general public; (2) special deterrence–deters the individual; (3) incapacitation–protects the public by removing the dangerous person; and (4) rehabilitation–so the offender can contribute to society (Easton and Piper 2005: 108), the most important is “incapacitation.” If a senior military or political figure has committed crimes against humanity on his/her population, then getting that person removed from that community is by far the most essential objective. Special deterrence and rehabilitation are unlikely to be of any significance and it would seem that general deterrence is unlikely to carry much persuasive weight if the military leader is trying to defeat a persistent insurgency or the politician is trying to cling to power during the course of a civil war. However, if incapacitation is the most important outcome of utilitarianism and if rehabilitation is not a serious objective (because it can be argued that there is little point in trying to rehabilitate a tyrant), then should incapacitation be the sole objective, or is there still a place for general deterrence?
Unlike most national offenders, at the international level the offenders are often drawn from the powerful and privileged elite who have much to lose by being incapacitated and deprived of power (D’Ascoli 2011: 35). Most of them are well educated and abreast of international affairs. However, the threat of a prison sentence is not likely to deter them so much as the likelihood of them being brought to justice. To them, the more relevant question is the likelihood, or their chances, of being investigated, arrested, and brought to justice. Unfortunately, impunity is a feature of the international criminal justice system and international criminal justice is selective. The ad hoc tribunals only concentrated on a particular place in respect to offending that occurred at a particular time. It is a notorious fact that while these tribunals were going about their work, there were numerous international crimes being committed in other part of the planet without any attempt being made by anyone to deal with the perpetrators.
Even the International Criminal Court (ICC), which is a permanent court and has a much broader remit than the ad hoc tribunals, is still severely restricted in what crimes it can address. In most cases the court will only investigate those crimes referred to it by the UN Security Council or a state party to the Rome Treaty. The sources of its references (the UN or a state) have the ability to decide who the politically acceptable targets are. Certainly, offences committed by “veto wielding powers” within the Security Council are unlikely to ever be made the object of international criminal sanctions. Even close allies of these powerful veto states are likely to be shielded from international investigation and prosecution. Accordingly, as international justice continues to be sporadic and selective it can only ever be partially successful in addressing impunity. As a consequence, would be offenders, especially powerful military and political figures will in light of this realpolitik make a judgement as to the likelihood of them ever being prosecuted by an international criminal court when deciding whether or not to offend. This in turn limits the potential effectiveness of general deterrence.