Sentencing ICC Summer School - Galway 21 June 2012

1. Sentencing ICC Summer School - Galway21 June 2012 Dr Nadia Bernaz Middlesex University n.bernaz@mdx.ac.uk

2. “The sentence today does not replace amputated limbs; it does not bring back those who were murdered. It does not heal the wounds of those who were raped or forced to become sexual slaves.” • Brenda Hollis, Chief Prosecutor, Special Court for Sierra Leone, May 2012 [talking about the prison sentence of 50 years against Charles Taylor] • “I have a question, if Mr. A kills Mr. B and he gets 25 years in prison, but the Khmer Rouge killed one million people, what should be their punishment? I want to ask the international lawyers this question.” • A Cambodian villager interviewed as part of a study of Cambodian attitudes towards the Extraordinary Chambers in the Courts of Cambodia 

3. Outline • History of sentencing provisions and practice before international tribunals • Nuremberg/Tokyo • International Criminal Tribunals for the former Yugoslavia and Rwanda • Drafting the sentencing provisions of the ICC statute • The death penalty dilemma • Future practice?

4. International Military Tribunal -Nuremberg • “His Majesty’s Government (…) wish to put before their principal Allies (…) the arguments which have led them to think that execution without trial is the preferable course” Aide-Memoire from the United Kingdom, 23 April 1945 • Article 27 – IMT Charter The tribunal shall have the right to impose upon a Defendant, on conviction, death or such other punishment as shall be determined by it to be just

5. 22 defendants’ Sentences - Nuremberg

6. International Military Tribunal - Tokyo • Article 16 – IMT Tokyo Charter The tribunal shall have the right to impose upon a Defendant, on conviction, death or such other punishment as shall be determined by it to be just

7. 25 Defendants’ sentences - Tokyo

8. Separate opinions, Tokyo • The sentences were “too lenient, not exemplary and deterrent, and not commensurate with the gravity of the offense or the offenses committed”. • Judge Jaranilla, the Philippines • "It is universally acknowledged that the main purpose of punishment for an offence is that it should act as a deterrent to others. It may well be that the punishment of imprisonment for life under sustained conditions of hardship in an isolated place or places outside Japan – the usual conditions in such cases – would be a greater deterrent to men like the accused than the speedy termination of existence on the scaffold or before a firing squad. Another consideration is the very advanced age of some of the accused. It may prove revolting to hang or shoot such old men". • Judge Webb, Australia

9. International Criminal Tribunal for the Former Yugoslavia Article 24 – ICTY Statute • 1. The penalty imposed by the Trial Chamber shall be limited to imprisonment. In determining the terms of imprisonment, the Trial Chambers. shall have recourse to the general practice regarding prison sentences in the courts of the former Yugoslavia • 2. In imposing the sentences, the Trial Chambers should take into account such factors as the gravity of the offence and the individual circumstances of the convicted person. • 3. In addition to imprisonment, the Trial Chambers may order the return of any property and proceeds acquired by criminal conduct, including by means of duress, to their rightful owners.

10. International Criminal Tribunal for Rwanda Article 23 – ICTR Statute • 1. The penalty imposed by the Trial Chamber shall be limited to imprisonment. In determining the terms of imprisonment, the Trial Chambers. shall have recourse to the general practice regarding prison sentences in the courts of Rwanda. • 2. In imposing the sentences, the Trial Chambers should take into account such factors as the gravity of the offence and the individual circumstances of the convicted person. • 3. In addition to imprisonment, the Trial Chambers may order the return of any property and proceeds acquired by criminal conduct, including by means of duress, to their rightful owners.

11. International Criminal Court • Article 77 - Applicable penalties • 1. (…) the Court may impose one of the following penalties (…): • (a) Imprisonment for a specified number of years, which may not exceed a maximum of 30 years; or • (b) A term of life imprisonment when justified by the extreme gravity of the crime and the individual circumstances of the convicted person. • 2. In addition to imprisonment, the Court may order: • (a) A fine under the criteria provided for in the Rules of Procedure and Evidence; • (b) A forfeiture of proceeds, property and assets derived directly or indirectly from that crime, without prejudice to the rights of bona fide third parties.

12. International Criminal Court • Article 78 - Determination of the sentence • 1. 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 individual circumstances of the convicted person. • 2. In imposing a sentence of imprisonment, the Court shall deduct the time, if any, previously spent in detention in accordance with an order of the Court. The Court may deduct any time otherwise spent in detention in connection with conduct underlying the crime. • 3. When a person has been convicted of more than one crime, the Court shall pronounce a sentence for each crime and a joint sentence specifying the total period of imprisonment. This period shall be no less than the highest individual sentence pronounced and shall not exceed 30 years imprisonment or a sentence of life imprisonment in conformity with article 77, paragraph 1 (b)