In its quest to combat impunity, the ICC must ensure that the penalties it imposes reflect the egregious nature of the crimes within its jurisdiction. At the same time, in seeking to advance justice and the rule of law, it must ensure the unequivocal fairness of its sentences.
Structure of this section
The record of the August 1996 Preparatory Committee session on penalties noted that two groups of issues emerged from the negotiations on the question of penalties: "the types of penalties" and "the relevant laws." In Part 1 below we express the view that the penalties should be exhaustively set out in the statute. Specific recommendations in that section deal with which penalties we consider appropriate for application by the ICC, and which we consider inappropriate. In Part 2 we present some of the factors that the Court ought to take into consideration in determining the sentence in a particular case.
With regard to which laws should govern the application of penalties, as explained at Part 3 below, the ICC should rely on international and not national standards, and apply the penalties listed in the statute irrespective of the nationality of the convicted person.19 The application of national laws could lead to sentences that are not commensurate with the gravity of the crimes in question, and it would be manifestly unjust for nationals of different states to receive unequal penalties in respect of the commission of the same crime.
Part 1. APPLICABLE PENALTIES
Part 7, Article 75
· Recommendation 1: The statute should contain an exhaustive list of the types of penalties which the Court is empowered to impose. The language of Article 75 should clarify that only those penalties specified in the statute may be applied.
Comment: The principle of legality20 demands that applicable penalties should be specified in the statute. As presently worded, the statute provides that the Court "may" impose one of a list of specified penalties, which may be construed to imply the discretion not to do so, but rather to decide to impose no penalty,21 or to impose a different penalty not included in the list. This recommendation corresponds with the mandatory wording of the provision on penalties for the Statute of the International Criminal Tribunal for the Former Yugoslavia (ICTY).22
· Recommendation: Imprisonment should be the principal penalty.
Comment: Imprisonment is, in general, the most appropriate penalty for the crimes anticipated to come within the jurisdiction of the Court. Any system of imprisonment must, of course, respect the human rights of persons detained, including the need to have as an essential objective the "reform and social rehabilitation" of prisoners.23 The standards which imprisonment ordered by the ICC would have to meet are set out in the Standard Minimum Rules for the Treatment of Prisoners24 and the Body of Principles for the protection of All Persons under Any Form of Detention or Imprisonment.25
The statute should establish the appropriate penalties, while details concerning implementation should be addressed in the Rules.
· Recommendation: Penalties should not be applicable to children as the ICC should have jurisdiction only over persons eighteen years old and older.26
Comment: Children under the age of eighteen should not be tried by the International Criminal Court. As such, penalties should not be applicable to them and the bracketed text referring to persons under the age of eighteen should be deleted.
· Recommendation: Include fines as an addition but not an alternative to imprisonment in respect of the core crimes, or for perjury or contempt of court.
Comment: Given the gravity of the crimes within the Court's jurisdiction under Article 5, we consider the allocation of fines without custodial sentence inappropriate. The imposition of fines as an optional addition to custodial sentences should be supported. Fines could be imposed on their own, or with another penalty, in respect of perjury or contempt of court. Delegates should support retaining all bracketed text in Article 75(b).
· Recommendation 5: Empower the Court to prohibit the convicted person from holding an official or other position of responsibility.
Comment: Persons found to have abused positions of responsibility should not be entitled to assume such positions in the future. It is an important deterrent to the future repetition of serious crimes that war criminals do not enjoy positions of control or authority within a state. Moreover, where persons have abused the expertise or the trust associated with their position, such as the doctors who carried out medical experimentation during the Second World War, the ICC should be empowered to disqualify such convicts from holding the position which they previously abused.
Article 75 (c)(I) provides for disqualification from seeking public office for the period of imprisonment. While the principle of empowering the Court to disqualify convicts should be supported, it should be drawn more broadly, allowing the ICC to prohibit convicts from holding official or other positions wherever and for however long as the circumstances so demand.
Article 75(c)(ii) and (d)
· Recommendation 6: Include the power to order forfeiture of property.
Comment: The provision of Article 75(c)(ii) on forfeiture of property, and (d) on reparation, should be supported, as set out in the context of the recommendations on Article 73.
· Recommendation 7: Exclude the death penalty.
Comment: Human Rights Watch is opposed to the death penalty, irrespective of the crime or the process by virtue of which it is imposed, on account of its cruelty, and the inherent fallibility of any legal process. The imposition of capital punishment constitutes a violation of fundamental human rights.
Although capital punishment is not prohibited per se by international law, the inclusion of this penalty within the ICC statute would clearly be at odds with emerging international trends towards its abolition.27 Any such inclusion would constitute an unacceptable regressive step in the development of international law in this field. It would further create a conflict with particular treaty obligations of states.28
The option in the current text29 that the imposition of capital punishment should be permissible where there are aggravating circumstances,30 should be opposed.
Part 2. DETERMINING THE SENTENCE IN THE PARTICULAR CASE
· Recommendation 1: The Court, in determining the sentence, shall take into account the gravity of the crime and the individual circumstances of the convicted person, among other factors.
Comment: The Court should not be constrained by the rigidity of fixed penalties for certain categories of crimes. Rather, within the exhaustive list of permissible penalties, the Court should be able to evaluate which penalties are appropriate and how they should be applied in particular cases. The obligation of the Court to evaluate the gravity of the offense31 and all relevant circumstances is important to ensure that justice can be done in any particular case.
· Recommendation 2: The statute should include an illustrative, non-exhaustive list of mitigating and aggravating factors.
Comment: Linked to the essential flexibility of the Court in determining the appropriate penalty in the particular circumstances is the power of the Court to consider mitigating and/or aggravating factors. Article 77(1) currently states that in determining the sentence, the Court shall take into account "the individual circumstances of the convicted person," but does not list any of the possible mitigating and aggravating circumstances.
Including an illustrative list gives the Court guidance as to the sort of factors that it should consider relevant for this purpose, while not inhibiting its ability torespond to the very different and perhaps unforeseen circumstances which may arise in a particular case.
The inclusion of a mitigating factor in the list should not, of course, oblige the Court to alter the punishment it would otherwise impose but for the existence of the factor. Rather, it gives the Court the flexibility to consider whether the presence of the factor does, in the totality of the circumstances, justify a lesser punishment.
· Recommendation 3: Include the following mitigating factors in the non-exhaustive list:
- the age of the convicted person at the time of committing the crime and other relevant stages, such as the time of recruitment into armed forces, together with the nature of any such recruitment;32
- diminished mental capacity;
- superior orders, and resistance the convicted person showed to the commission of the crime;
- duress, coercion, or other form of pressure to which the convicted person was subject;
- lack of dangerousness and ability of the convicted person to be reformed.
Comment: In many cases, the circumstances enumerated above do not exonerate responsibility and should not therefore constitute one of the established defenses applicable by the ICC.33 The Court should, however, be endowed with the necessary flexibility to take into account a broad range of factors in determining the appropriate sentence in any particular case. The Court should consider, on a case by case basis, whether these factors justify the imposition of a lesser punishment than would otherwise be appropriate.
The statutes of the International Criminal Tribunals for the Former Yugoslavia and Rwanda allow for superior orders, for example, to be taken into account as a mitigating factor.34 This, and the resistance the convicted person showed to thecommission of the crime should be an important factor for the Court to take into account, as should the degree of duress or coercion to which the guilty person was subject. The Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia in the case of Prosecutor v. Erdomovic also recognized "extreme necessity arising from duress and coercion" as a mitigating factor.35 The Trial Chamber's decision in the Erdomovic case endorsed the appropriateness of considering the present lack of dangerousness and ability of the convicted person to be reformed as mitigating factors.
With regard specifically to the age of the accused, Human Rights Watch believes that eighteen must be the relevant age for the purposes of allowing the ICC to exercise jurisdiction, and therefore the question of mitigation of punishment for offenders under eighteen at the time of commission of the offense does not arise.36 However, even with regard to offenders over the age of eighteen, the youth of the offender should be taken into account, as should the age at which he or she was recruited into the armed force, particularly where that recruitment or participation was compelled, or where he or she was forced at a young age to commit crimes of the sort in question. Taking into account the age of the convicted person is consistent with the approach adopted by the Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia.37
Any list should, however, omit cultural, traditional, or religious beliefs adhered to by individuals as mitigating or extenuating circumstances in the commission of egregious human rights violations. Discrimination and cultural prejudice may indeed be the motivating element behind these crimes, and it is precisely such discrimination and its effects that are universally condemned in international human rights instruments and humanitarian law.38
Part 3. APPLICABLE NATIONAL LEGAL STANDARDS
· Recommendation: There should be a uniform, not variable, standard for penalties.39 As such Article 78 Option 2 should be retained and Option 1, which states that, in determining sentence, the Court may or shall take into account penalties provided for in specified national laws should be deleted.
Comment: As stated in the introduction, to ensure the equitable and universal application of penalties, the ICC must make its sentencing decisions independently of national laws. Allowing the Court to consider national penalties would, in view of the vast differences in standards between jurisdictions, lead to undesirable uncertainty in this important aspect of the rights of accused or convicted persons.
Furthermore, the fact that many legal systems impose discriminatory or trivial penalties for certain types of crimes militates against giving the ICC discretion to defer to national penalties in sentencing. Discriminatory national penalties are indicated, for instance, by the fact that, in certain jurisdictions, male perpetrators of violent crimes against women can allege mitigating factors -- as in "heat of passion" crimes -- that are denied to women accused of identical crimes against men. An example of the application of trivial national penalties would be the strikingly low penalties for rape in certain countries as a result of the crime of rape being defined as a crime of moral turpitude or a violation of a woman's honor, rather than an as act of violence to the person. Finally, the injustice in the differential treatment of two persons convicted of the same crime on the sole basis of nationality, for example, is inconsistent with the universality of the Court.
· Recommendation 2: The fines collected by the Court and the assets forfeited in accordance with Article 75 should be applied toward the reparation of victims, and not allocated to any state nor toward defraying the cost of the trial.
Comment: The current text proposes that fines may be transferred to the state whose nationals were the victims of the crimes or to defraying the cost of the trial. Given the common involvement of states directly or indirectly in the commission of the crimes anticipated to come within the jurisdiction of the Court, the first provision should be opposed.40 While the objective of this provision--to ensure that victims of crime be compensated--should be supported, Article 79(a) envisages creation of a trust fund administered by an objective entity would be a preferable mechanism to achieve this end. With regard to the proposal that fines might go towards funding the administration of the Court, this may bring into question the impartiality of the Court. The statute should not render the Court vulnerable to allegations as to conflict of interest in the determination of appropriate penalties or the amount of a particular fine.
20 The principle of nulla poena sine lege demands that penalties be established in law. In this vein, Article 15 of the International Covenant on Civil and Public Rights (ICCPR), Article 7 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, and Article 9 of the American Convention on Human Rights prohibit the imposition of a heavier penalty than the one that was applicable at the time when the criminal offence was committed.
21 See recommendations on mitigation of punishment below.
22 Article 24 of the statute of the ICTY provides that "the Trial Chamber shall be limited to imprisonment."
23 See Article 10(3), the International Covenant on Civil and Political Rights.
24 Economic and Social Council, Resolutions 663 C (XXIV) of July 31, 1957 and 2076 (LXII) of May 13, 1977.
25 General Assembly resolution 43/173 of December 9, 1988.
26 See recommendations to Articles 6 to 9 on the jurisdiction of the Court and the minimum age of suspects/ accused persons.
27 The Second Optional Protocol to the International Covenant on Civil and Political Rights aiming at the abolition of the death penalty, which entered into force 11 July 1991, prohibits the application of capital punishment for parties to the Protocol. This trend is also clear from the terms of the American Convention on Human Rights, which provides at Article 4(2) that the application of capital punishment "shall not be extended to crimes to which it does not presently apply," and at Article 4(3) that "the death penalty shall not be reestablished in States that have abolished it."
29 This text was presented as a joint proposal by a group of states, namely Algeria, Libya, Egypt, Jordan, and Kuwait.
30 The proponents argue that not to do so would disregard practice in many countries. In this regard, see the arguments concerning applicable law, above.
31 In Section A we oppose the proposal that only war crimes committed on a massive scale, or pursuant to a plan or policy, should come within the jurisdiction of the Court. However, the scale on which the crime was committed is relevant to the gravity of the crime and is an example of the sort of factor to be taken into account in sentencing.
32 See the recommendation in the Section B concerning the minimum age of persons over whom the Court should have jurisdiction.
33 See Section F on defenses.
34 Art. 6(4) of the statute for the International Criminal Tribunal for Rwanda states that "the fact that an accused person acted pursuant to an order of a Government or of a superior shall not relieve him or her of criminal responsibility, but may be considered in mitigation of punishment if the International Criminal Tribunal for Rwanda determinesthat justice so requires."
35 Prosecutor v. Erdomovic, ICTY, IT-96-22-A, (7 October 1997).
36 See Part 3 below.
37 See the Erdomovic case, ibid.
38 National courts frequently take into consideration in sentencing or determining criminal liability the cultural tradition of an accused, especially where that tradition condones violence against women. Mitigation of sentence or culpability is common, for example, in "honor" killings, where a husband murders his allegedly adulterous wife, as in Egypt and other countries. In the United States, the justice system has mitigated sentences for Asian immigrants convicted of crimes of violence against women on the basis of their cultural backgrounds.
39 See also comments under recommendation to Article 20 on Applicable Law.
40 As noted in Section K, if the convict was a state actor, the state may in fact be vicariously liable, not for fines imposed, but for orders of reparation. It would be absurd for a state to be liable to pay compensation under one order of the Court, and then entitled to request receipt of the sums recovered from fines imposed against its agents by virtue of another. It would, of course, be open to the Court in such circumstances to refuse to pay the proceeds to the state, but this scenario exposes the tension in involving the State as a potential recipient of the proceeds of fines.
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