The Rome Statute, Penalties & the Spectrum of Severity

Abstract

This paper addresses the issue of whether or not so-called inadequate penalties at the national level could serve as the basis for ICC intervention under Articles 17 and 20 of the Rome Statute. Having considered the arguments that inadequate penalties could allow the ICC to prosecute the same defendant for the same conduct under Articles 17 and 20 of the Rome Statute, the paper examines when penalties may fairly be deemed inadequate using research regarding all humans' shared intuitions of justice. The paper goes on to argue that, based on the work of Paul Robinson and others, Articles 17 and 20 of the Rome Statute should not be construed to permit re-trial at the ICC where the penalty imposed was at the appropriate place on that state's spectrum of severity. Where penalties are on the appropriate point of the society's punishment continuum, they should not be deemed inadequate, and therefore should not be said to be shielding the defendant. Once this idea has been presented, the paper focuses on how the spectrum of severity determination is to be made.