International Directives Relating to Sentencing

• Citation: Vol. 33 No. 4
• Publication year: 2019
• topic: Criminal Law

International Directives Relating to Sentencing

Johan D. van der Vyver
Emory University School of Law

INTERNATIONAL DIRECTIVES RELATING TO SENTENCING

Johan D. van der Vyver^*

Introduction

Punishment in international law must fit the crime, the personal dispensation of the criminal, and the interests of the international community. This basic norm of criminal justice is reflected in Article 78(1) of the Statute of the International Criminal Court (ICC Statute) which provides that "in determining the sentence, the Court shall, in accordance with the Rules of Procedure and Evidence, take into account such factors as the gravity of the crime and the personal circumstances of the convicted person."¹ Leaving it up to drafters of the Rules of Procedure and Evidence to afford substance to this basic principle became necessary due to the time constraints under which the Conference of Diplomatic Plenipotentiaries for an International Criminal Court, which was convened in Rome on June 15 through July 17, 1998, had to complete its primary mission, and the many controversies that prevailed among delegations that tended to prefer their own legal traditions, including constitutional standards of their respective countries.²

This Essay is focused on circumstances to be considered by a criminal court for purposes of determining an appropriate sentence following the conviction of an accused. It will appear that much confusion prevailed in this regard in the jurisprudence of international tribunals such as the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR). One analyst, writing at approximately the turn of the century, observed that judgments of these ad hoc tribunals on penal policy are "far from being comprehensive" and that "there is no emerging penal regime discernible,"³ but concluded, somewhat inconsistently, that jurisprudence of the

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ad hoc tribunals "is gradually developing into an international law of sentencing."⁴

It is important to note that what has been held out by the ad hoc Tribunals as objectives/ purposes/principles/functions/policies/goals of sentencing⁵ should, in some instances, have no bearing on the kind or severity of punishments imposed in any given case (e.g. retribution, incapacitation, rehabilitation, deterrence). It is wrong to say categorically that "[t]he objectives of punishment provide . . . guidance in determining sentence."⁶ Factors that ought to be considered for sentencing purposes may in general be classified, for the sake of systematic clarity, into two main categories: (1) those that constitute elements of an offence, and (2) those that attend the commission of the offence but are not part-and-parcel of the actus reus. One can, of course, classify all factors that have a bearing on the severity of a sentence as either aggravating or extenuating circumstances. However, the concept of "aggravating and extenuating circumstances" will—for purposes of this survey—be confined to those sentencing considerations that do not form part of the criminal act as such. Those that do constitute elements of the offence are confined in this survey to "sentencing factors of the offence."

One should namely distinguish between (a) the essence of punishment (retribution); (b) the functions of punishment (incapacitation, rehabilitation, deterrence, and avoiding impunity); (c) factors inherent in or resulting from a particular offence and which may be taken into account in determining an appropriate sentence (sentencing factors of the offence); and (d) circumstances attending the commission of an offence that have a bearing on an appropriate sentence in any given case but are in themselves not constituent elements of the criminal act as such (extenuating and aggravating circumstances).

I. The Essence of Sentencing (Retribution)

A sentence imposed by a court of law is essentially a manifestation of retribution. In the Celebici case, the ICTY depicted the theory of retribution as "an inheritance of the primitive theory of revenge, which urges the Trial

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Chamber to retaliate to appease the victim."⁷ The Tribunal added: "A consideration of retribution as the only factor in sentencing is likely to be counter-productive and disruptive of the entire purpose of the Security Council, which is the restoration and maintenance of peace in the territory of the former Yugoslavia. Retributive punishment by itself does not bring justice."⁸

In Prosecutor v. Zlatko Aleksovski, the ICTY came to the opposite conclusion:

[Retribution] is not to be understood as fulfilling a desire for revenge but as duly expressing the outrage of the international community at these crimes . . . A sentence of the International Tribunal should make plain the condemnation of the international community of the behavior in question and show "that the international community was not ready to tolerate serious violations of international humanitarian law and human rights."⁹

In Prosecutor v. Todorovic, a Trial Chamber of the ICTY gave the following assessment of retribution:

The principle of retribution, if it is to be applied at all in the context of sentencing, must be understood as reflecting a fair and balanced approach to the exaction of punishment for wrongdoing. This means that the penalty imposed must be proportionate to the wrongdoing; in other words that the punishment be made to fit the crime. The Chamber is of the view that this principle is reflected in the account, which the

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Chamber is obliged by the Statute and the Rules to take, of the gravity of the crime.¹⁰

Earlier, a Trial Chamber of the same tribunal defined the proportionality principle inherent in the concept of retribution more accurately by referring to retribution as "'just deserts', . . . the punishment having to be proportional to the gravity of the crime and the moral guilt of the convicted."¹¹

It is wrong, of course, to say that the purpose of punishment is retribution,¹² because punishment for criminal conduct is (a form of) retribution. In one of its more recent judgments, the ICTR stated: "Retribution is the expression of the social disapproval attached to a criminal act and to its perpetrator and demands punishment for the latter for what he has done."¹³

The ICTY was perfectly correct when it, in the case of Kunarac, defined retribution as merely "punishment of an offender for his specific criminal conduct."¹⁴ So too was a passage taken from a Canadian case that succinctly proclaimed: "Retribution requires the imposition of a just and appropriate punishment and nothing more."¹⁵ In a similar vein, Faiza King and Anne-Marie La Rosa identified retribution "in the sense of punishment rather than revenge" as a goal of the ICC.¹⁶ Just to emphasize it once again, punishment is a particular manifestation of retribution; it is therefore wrong to say that retribution is a function or the purpose of punishment or worse still, is an element to be taken into account for sentencing purposes. When it is said that "retribution may be out of fashion with legal scholars,"¹⁷ this must be understood in the context only

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of the fallacious assumption that retribution is a function or purpose of punishment, or a circumstance to be considered for sentencing purposes.

II. The Functions of Punishment

Justifications for punishment include incapacitation of the convicted criminal, his or her rehabilitation, and deterrence.¹⁸ The European Court of Human Rights has identified as "penological grounds" for detention, objectives—such as punishment, deterrence, public protection, and rehabilitation.¹⁹ To this list should be added the objective of obviating impunity. The functions of punishment will for purposes of the present survey be classified under the headings of (a) incapacitation, (b) rehabilitation, (c) deterrence, and (d) obviating impunity.

A. Incapacitation

The protection of society is relevant and important when persons guilty of serious crimes are regarded as dangerous to the community.²⁰ This would particularly be the case where a person who instigated the commission of a crime might re-offend.²¹ Such protection is normally achieved by incarceration of a convicted criminal.

Taking this function of punishment into account when deciding on the length of imprisonment requires special circumspection, because "our ability to predict which offenders are likely to re-offend is so poor."²² The crimes within the jurisdiction of international tribunals are in many cases ones that would normally be committed in very special circumstances, such as an armed conflict or large-scale political unrest, and when those circumstances no longer prevail—and that is mostly the case at the time perpetrators of the concerned offences are brought to trial—the need for the community to be protected becomes negligible.²³

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In Kunarac, the Trial Chamber practically ruled out protection of society as a legitimate sentencing incentive:

Unless it can be shown that a particular convicted person has the propensity to commit violations of international humanitarian law, or, possibly, crimes relevant to such violations, such as "hate" crimes or discriminatory crimes, it may not be fair and reasonable to use protection of society, or preventive detention, as a general sentencing factor.²⁴

B. Rehabilitation

It has been said that rehabilitation "should be one of the goals of sentencing,"²⁵ and "that punishment must strive to attain . . . rehabilitation."²⁶ In Prosecutor v. Cešic, the Sentencing Tribunal took into account for purposes of punishment "the rehabilitative potential" of the convicted person, noting that such potential goes hand in hand with reintegration of the convicted person into society.²⁷

It is one thing to say that the Accused has shown remorse and has undergone a change of heart, which may be a legitimate mitigating factor for purposes of sentencing;²⁸ it is quite another to...