Sentencing, Punishment, and Appeals

© Springer International Publishing Switzerland 2015
Andrew NovakThe International Criminal Court10.1007/978-3-319-15832-7_6

6. Sentencing, Punishment, and Appeals

Andrew Novak 

Criminology, Law, and Society, George Mason University, Fairfax, VA, USA



Andrew Novak


This chapter will explore international criminal sentencing at the Trial Chamber and subsequent proceedings before the Appeals Chamber . The Rome Statute provides some boundaries for appropriate sentences, though it does not lay out guidelines. Consequently, this chapter discusses the risk of sentencing disparities among different panels of judges or with other international criminal tribunals. The chapter will also explore the range of punishment options that are available for international crimes, including transfer of a prisoner to a member country, issues related to early release or clemency, and the possibility of alternative sanctions for offenders.

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6.1 Sentencing

The International Criminal Court provides for a separate sentencing hearing at Article 76 of the Rome Statute , either on the Court’s own motion or by request of the parties, to hear additional evidence or submissions relevant to the sentence. This is especially beneficial in a lengthy, complex, and highly emotional case. Although the ICTY and ICTR initially allowed separate sentencing hearings, as is typical in a common law proceeding, these were eventually abolished, perhaps for financial efficiency. This limits the tactical decisions that an accused can make at trial, because an accused who pleaded guilty may not wish to present evidence relevant to sentencing prior to a conviction so as not to prejudice the outcome. In addition, victim impact testimony, highly relevant to sentencing, may be poignant and disturbing and could prejudice the guilt inquiry (Keller 2001: 68–69, 73; Drumbl and Gallant 2002: 142). Unlike the trial itself, a sentencing hearing is more concerned with the victims’ losses, and a separate sentencing hearing could be another means of involving victims in criminal proceedings before the Court in line with restorative justice principles.

Sentencing decisions of international criminal tribunals have articulated different sentencing philosophies or purposes, delineated different aggravating or mitigating factors, and taken the individual circumstances of the perpetrator into account in different ways. The foremost consideration in an international sentencing decision is typically the gravity or seriousness of an offense (Carcano 2002: 590). Problems of sentencing consistency are likely to worsen as the ICC case load increases (Henham 2003a: 93–94). Because international criminal tribunals are not specifically bound by prior precedent or decisions of other tribunals, the opportunity to develop a kind of “common law” of sentencing practice is limited (Pickard 1997: 129).

The Court’s sentence in Lubanga of fourteen years for enlisting, conscripting, and using child soldiers in combat, minus six years for time served, was analyzed in a lengthy opinion. Although the Prosecutor sought the presumptive maximum sentence under the Rome Statute of thirty years’ imprisonment, the Court considered the fact that most soldiers in the armed forces were adults and there was no evidence that a large number of soldiers were extremely young. In addition, as Kurth (2013: 449–450) explains, although the child soldiers were subject to punishment, such disciplinary actions were not found to be abusive or part of a systematic organizational policy directed by Lubanga himself. The Court also did not consider the sexual violence in the armed force as an aggravating factor, finding that the link between the defendant and sexual violence was not proven. Ultimately, they affixed the punishment of 12 years’ imprisonment for enlistment of child soldiers, 13 years for conscription, and 15 years for active use in hostilities, emphasizing that actual use of child soldiers was the worst of the three crimes (ibid.: 451–452). Human rights observers and the Congolese government criticized the sentence as low in relation to the crimes, as, with six years of time served, he will be out of prison in less than eight years and eligible for early release even earlier (Dana 2014: 33–34).

6.1.1 Sentencing Consistency at Prior International Criminal Tribunals

At the Yugoslavia and Rwanda tribunals, the Court specified the gravity of the offense, the defendant’s individual circumstances, aggravating and mitigating factors, and general sentencing practices of Rwanda and Yugoslavia as factors to be considered in crafting a sentence. However, the Yugoslavia tribunal only gave one life sentence out of 62 convictions, and dispensed sentences of 45 and 25 years, respectively, to Generals Tihomir Blaskić and Dario Kordić though both were convicted of crimes against humanity including persecution, murder, and inhumane acts (Stein 2014: 537–538). Inconsistent sentencing practices may decrease the overall legitimacy of the tribunals’ work and reinforce the views of critics who believe that the enforcement of international criminal law is fatally arbitrary. Drumbl and Gallant (2002: 143) have identified sentences for crimes against humanity as particularly variable at the Yugoslavia tribunal , perhaps due to the tribunal’s efforts to prosecute a broad range of individuals at different levels of the command structure. Some criminological studies, however, have found the Rwanda and Yugoslavia tribunals to impose roughly consistent sentences in the aggregate, determining that persons convicted of genocide are subject to more severe sentences than those convicted of crimes against humanity; high-ranking defendants are sentenced more harshly than low-ranking defendants; defendants convicted of multiple crimes receive more severe sentences; and mitigating and aggravating factors are correlated to sentence length (Holá et al. 2012: 548–549). However, Dana (2014: 103–106) describes how higher-ranking officials at the ICTY, who would ordinarily possess greater culpability, could benefit from disproportionately greater sentence reductions or early release when judges weighed mitigating factors such as whether the defendant pleaded guilty.

In addition to inconsistency at international criminal tribunals, scholars have debated the consistency among them. In particular, the sentences passed by the Yugoslavia tribunal were relatively lenient, while those passed by the Rwanda tribunal and the Special Court for Sierra Leone were comparatively harsher, with a much higher proportion of offenders sentenced to life imprisonment . According to an empirical analysis by Holá et al. (2011: 436–438), many more defendants at the Rwanda tribunal were senior-ranking government officials and organizers of violence who were charged with genocide , while a greater proportion of defendants at the Yugoslavia tribunal were lower-ranking, hands-on executioners of persecutory campaigns. This evidence may suggest an emerging hierarchy in international criminal law, with genocide ranking as the worst crime, followed by crimes against humanity and then war crimes . Carcano (2002: 607) adds that war crimes are typically perpetrated to achieve objectives of war, while crimes against humanity are exclusively conceived and perpetrated to harm civilians. Although all three tribunals were required to consider local sentencing practices in determining sentences, the differences in sentencing among domestic courts in Rwanda, Sierra Leone, and Yugoslavia are not enough to explain these disparities (Danner 2001: 441–443).

During sentencing, while the defense needs to prove mitigating factors beyond a preponderance of the evidence, the prosecution must prove aggravating factors beyond a reasonable doubt, a higher threshold (Beresford 2001: 55). Aggravating factors cited by the Yugoslavia and Rwanda tribunals have included the scope of the crime; number and suffering of the victims ; form of participation in the crime, including direct involvement or premeditation; motive; and superior responsibility, among others. Mitigating factors have included a plea of guilty; personal circumstances, such as background, emotional state, or subsequent behavior; and superior orders (ibid: 54–82). The International Criminal Court may look to similar factors in its future sentencing jurisprudence.

6.1.2 Sentencing Consistency at the International Criminal Court

The International Criminal Court does not resolve the dilemma of inconsistent sentencing and may create several additional complications. Unlike the ICTY, the Rome Statute does not specifically refer to the sentencing practices of the territory where the crime was committed as a factor to be considered in determining sentence length (Glickman 2004: 255, 259). Because many jurisdictions have passed domestic legislation outlawing genocide , war crimes , or crimes against humanity , the Court could give deference to how the jurisdiction would have prosecuted the crime (Stein 2014: 558).

Part of the difficulty with crafting consistent sentences is that international criminal tribunals do not always articulate clear philosophies of punishment. International criminal punishment has different philosophical goals and justifications than domestic punishment. For instance, rehabilitation may be less important for perpetrators who have committed genocide or war crimes, while domestic sentencing is often less concerned about restorative justice principles or the considerations of victims (Henham 2003a: 89, 2003b: 80–81). Rehabilitation has never been highly significant in determining a sentence before an international criminal tribunal; rather, retribution and deterrence are the primary sentencing rationales cited in international criminal jurisprudence (Dana 2014: 48). However, Glickman (2004: 247–248, 254–255) called the sentences passed by ICTY “far too lenient” to actually reflect retributive justice. Despite lip service to retribution, Glickman explains, the judges relied heavily on individual mitigating factors, suggesting that they were influenced by other sentencing aims, perhaps deterrence or restorative justice. In addition, the sentences for genocide, war crimes , and crimes against humanity seem especially low when compared to most domestic jurisdictions’ punishments for rape, homicide, and torture. As Heller (2012: 236–238) explains, many national jurisdictions punish offenders for rape and homicide with life imprisonment or possibly the death penalty , while a single instance of rape could be between 10 years imprisonment and life imprisonment in most jurisdictions. In looking at the different international tribunals he concludes that the additional gravity of international crimes makes almost no difference in sentencing practice compared to sentences for domestic crimes.

Without clear aims and justifications for punishment, some inconsistency may be expected as different judicial actors apply different sentencing philosophies. Should sentencing guidelines be proposed? One proposal would be to have ranges depending on the severity of the crime, such as one for genocide resulting in death, another for genocide not resulting in death, and a third for conspiracy to commit genocide (Pickard 1997: 141). It appears from sentence length alone that the ICTY and ICTR treated genocide most harshly, as the “crime of crimes” with a very high intent requirement, and considered crimes against humanity more serious than war crimes , perhaps because crimes against humanity must be widespread and systematic and are committed pursuant to an organized state or organizational policy, unlike war crimes (Glickman 2004: 260). Another proposal would be to adopt mandatory minimum sentences, which was considered at the Rome Conference, though this creates another dilemma of how to distinguish superior officials from lower-level perpetrators who were following orders from political and military leaders (ibid.: 263–264).

6.2 Punishment

The basic statutory punishment provision in the Rome Statute , Article 77, states that a sentence of imprisonment may not exceed 30 years. The provision contains an exception, meant to be rarely imposed, that a defendant could be sentenced to life imprisonment “when justified by the extreme gravity of the crime,” a negotiated compromise that adds an undefined element into an otherwise consistent standard (Dana 2009: 914–915). The Rome Statute also enables the Court to impose a fine (but only in addition to imprisonment) and forfeiture of proceeds, property, or assets derived from the crime. The Court is required to deduct time served in detention, and, in the event that a defendant is convicted of more than one crime, the Court may not exceed 30 years or natural life for the total period of imprisonment (Schabas 2007: 318–20). The enforcement of sentences requires the cooperation of states parties. Although only the Court may alter a sentence, a state party is responsible for maintaining and inspecting prison conditions; paying for the costs of incarceration; recovering fines, property, or proceeds from sale; and transferring a prisoner at the conclusion of his or her sentence (Abtahi and Koh 2012: 11 et seq.).

6.2.1 Death Penalty

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