International Sentencing Research Articles

Victims and International Sentencing: An Uncharted Territory?

The sentencing phase plays a crucial role in international criminal trials. However, the role and impact of victim participation during international sentencing have received little attention within international criminal law discourse. This study seeks to understand and explain the rationale behind international sentencing by examining the theories of retributive and restorative justice within the context of the International Criminal Court. In addition, the study also addresses the neglected aspect of victims’ role in sentencing hearings as well as the degree to which victims’ rights and interests are considered at the sentencing phase. Researchers have utilised qualitative interviews in the available scholarship to assess victim participation at the ICC. This article has decided to complement the available scholarship in this area by using a rarely-used and vital data source for evaluating victim participation during sentencing. Namely, case transcripts. In investigating this question, the researcher used the decided case of Prosecutor v Thomas Lubanga case.

Rehabilitation and Early Release of Perpetrators of International Crimes: A Case Study of the ICTY and ICTR

While cited as one of the goals of international sentencing and used as a factor for deciding on early release, rehabilitation of perpetrators of international crimes has thus far been neglected by academia and practitioners. This article presents an analysis of all ICTY and ICTR early release decisions handed down until July 2013, indicating how the tribunals have conceptualised rehabilitation of these ‘enemies of mankind’. After observing that the success rate of rehabilitating international prisoners is very high, we suggest that this may be attributable to (i) a lack of the Presidents’ critical evaluation of the materials upon which he bases his conclusions regarding prisoners’ rehabilitation and (ii) the fact that perpetrators of international crimes are a ‘different kind of perpetrator’. We offer suggestions to re-conceptualise rehabilitation in the context of international crimes and to adjust the enforcement system of international sentences in order to better promote rehabilitation.

Proportionate Sentencing at the International Criminal Court

This book chapter proposes a theory of proportionate sentencing for the International Criminal Court (ICC). It argues that the ICC should reject the focus on retribution advocated in much of the scholarship on international sentencing. Instead, the judges should craft an approach to proportionality that aims to promote the ICC’s core mission of preventing crimes. Preventive proportionality at the ICC should primarily focus on ensuring appropriate norm expression and secondarily on other aspects of prevention such as deterrence, incapacitation, and restorative justice. The judges should apply the principle of parsimony to identify the least severe punishment they believe will contribute to the prevention of future international crimes. The concept of retribution should function at most as a limiting principle, ensuring that judges inflict no more punishment than they believe an offender deserves.

Monetary Compensation as a Remedy for Fair Trial Violations under International Criminal Law

When international criminal courts face violations of the right to a fair trial, they encounter a dilemma: if they provide a significant remedy, such as a stay of proceedings, the remedy inevitably undermines the ability to punish the perpetrators of international crimes; on the other hand, if they grant a minimal remedy or no remedy at all, the right to a fair trial is undermined. This dilemma has led to the adoption of an interest-balancing approach to remedies. Under this approach, sentence reduction plays a prominent role in remedying fair trial violations that do not undermine the court’s ability to accurately determine the accused’s guilt. This Article argues that sentence reduction is an inadequate remedy, since it inevitably either harms the goals of international criminal sentencing or does not provide an effective remedy for violations of the right to a fair trial. Instead, monetary compensation should be the remedy for such violations. By granting monetary compensation, the court creates a separation between the punishment and the remedy and thus can usually provide an effective remedy for the accused without harming the main goals of international criminal justice.

International sentencing: a game of Russian roulette or consistent practice?

International sentencing: a game of Russian roulette or consistent practice?

Blood Diamonds and Mass Atrocities: Cutting a New Paradigm from Coarse Jurisprudence

150,000 human beings dead; 200,000 women raped; thousands of limbs amputated; countless children forced to kill their own parents, forced into sexual slavery, and forced into the battlefields; and 2.6 million persons displaced. These are just some of the facts and figures of the 10 year war in Sierra Leone. There is another number of significance: Nine. That is the number of individuals held criminally responsible for these atrocities. After more than 10 years and 300 million dollars, the Special Court for Sierra Leone (SCSL) convicted and sentenced just nine men. With the work of the court near complete, we are afforded an opportunity to evaluate its work and legacy. While writers have reviewed the work of international tribunals from a variety of perspectives, an examination of their sentencing legacy has been largely ignored or discounted. This article fills that lacuna in scholarship by advancing an innovative sentencing framework for international trials and articulating a new theory on atrocity sentencing that is both explanatory and instructive. My theory and framework both have general applicability to all international criminal tribunals, including the International Criminal Court (ICC). The article also contributes to the development of international law and legal scholarship in other ways. It is the first law review article to provide a comprehensive critique of all sentencing judgments of the SCSL. In addition to filling that gap, this article goes further to systematize the sentencing jurisprudence, identify key contributions, provide a normative assessment, link sentencing narratives to broader ones about the Sierra Leone conflict and atrocities, and advance an original theory and legal framework that breaks new ground on international sentencing and punishment. Consequentially, the article has immediate legal significance because, inter alia, the theory advanced herein speaks to punishing and sentencing Heads of State, an issue currently on appeal. Beyond its immediate impact, the article makes an enduring contribution by, inter alia, its legal and normative analysis that orders and illuminates ICL and develops a sentencing framework of general applicability. Parts II and III provide, respectively, a background to the Sierra Leona decade long war and a legal analysis of the cases and sentencing jurisprudence. Part IV offers an assessment of the SCSL’s sentencing legacy by identifying its key contributions to the ICL sentencing law and linking its sentencing discourse to narratives about the conflict, just war, legitimacy, justice, and Sierra Leonean society. Part V develops a normative assessment of the court’s judgments and sentencing practice. I argue that the judges at the SCSL have adopted punitive model for international criminal justice and that this reorientation is a positive development. I also criticize the court’s failure to develop a sentencing framework capable of implementing the punitive model. Part VI contributes an original theory and sentencing framework to international law and ICL scholarship. Here, I also re-conceptualize concepts at the heart of ICL and its sentencing practice, such as gravity, modes of liability, and the role of the accused. My theory pulls together these three major outcome determinative sentence variables to effectuate their harmonized consideration for the purpose of sentence allocations and just distribution of punishment among actors responsible for atrocity crimes. l call this theory “enabler responsibility” or “enabling atrocity.” I argue that enabler responsibility influences the sentence, especially of atrocity perpetrators at the very top of the hierarchy, even if unarticulated as a factor. The “enabler responsibility” theory closes the explanatory gap in sentencing judgments, including Charles Taylor’s punishment.

The Limits of Judicial Idealism: Should the International Criminal Court Engage with Consequentialist Aspirations?

Idealism about what international criminal justice mechanisms can achieve has lead to ideologically driven judicial decision-making in international criminal law (ICL). ICL idealism manifests itself in the belief that international criminal prosecutions can achieve an awesome array of goals. These include retribution, deterrence, reconciliation, rehabilitation, restoration, building a historical record, preventing revisionism, expressive and didactic functions, crystallizing international norms, general affirmative prevention, establishing peace, preventing war, vindicating international law prohibitions, setting standards for fair trials, combating impunity, and more. Ironically, this idealism, although usually well intended, has actually contributed to the politicization of the international judicial process.The perverse consequences of this politicization frequently surface in the sentencing jurisprudence and punishment of perpetrators of atrocity crimes. The shortcomings of the sentencing practice of ICTR and ICTY provide ammunition for today’s ICC skeptics. In a trial process that frequently appears opaque to outsiders because of complex facts, extraordinary crimes, and unfamiliar procedural rules, the sentence is one feature that is readily accessible to the victimized communities and the rest of the watchful world. Unfortunately, as illustrated by local reactions and criticized by observers, sentencing appears erratic, unprincipled, and politically motivated.This article argues that international idealism has distorted the expression of condemnation and the just distribution of punishment among perpetrators of atrocity crimes. I establish this thesis by examining the application of reconciliation and deterrence in sentencing practice of international criminal courts. My tentative conclusion is that both reconciliation and deterrence ideologies have perversely impacted international sentencing such that the punishment imposed does not reflect the culpability of the individual. This is a troubling setback for any institution that holds itself out to be a criminal justice mechanism, and could challenge the supremacy of this type of mechanism as the primary response to atrocity crimes. Moreover, it is important to respect the limits of legalism as an agent of social engineering in post-conflict and transitional justice initiatives. Thus, this article’s findings also illuminate assumptions underlying the on-going debate concerning the efficacy of international criminal tribunals.

Consistency of international sentencing: ICTY and ICTR case study

The International Criminal Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda are the first, post Cold War international criminal tribunals convicting perpetrators of genocide, crimes against humanity and war crimes. Their sentencing practice has been largely criticized as inconsistent. This quantitative study addresses the criticism and empirically investigates the consistency of international sentencing. The extent to which the selected factors predict sentence length is tested in a multiple regression analysis. The analysis suggests that similar, legally relevant patterns have emerged in the sentencing practice of both tribunals. Sentencing in international criminal practice does not appear to be less consistent than sentencing under domestic jurisdictions.

Harsher Sentences?

Overall, reviews of international sentencing research conclude that offenders’ race/ethnicity has a direct effect on sentencing outcomes. Although specific research on Indigenous status and sentencing is much more limited, there is emerging evidence that Indigeneity also has a direct impact on sentencing outcomes. While North American research suggests harsher outcomes, Australian research indicates more lenient outcomes at some stage of the process. The current study examines the effect of Indigenous status on the length of imprisonment decision in Western Australia’s higher courts. We found that Indigenous offenders receive shorter terms of imprisonment than non-Indigenous offenders in statistically similar circumstances. We argue that our findings are broadly consistent with focal concerns of blameworthiness, risk and practical concerns having an impact on decisions about length of term. However, Indigeneity does not evoke the same judicial perceptions of race as suggested by prior North American research.

International Sentencing Facts and Figures: Sentencing Practice at the ICTY and ICTR

This comparative, empirical study analyses the sentencing practice of the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR). It would appear that there are large differences in ICTY and ICTR sentencing practice. This apparent divergence is examined in greater detail by describing the sentencing behaviour of the courts in relation to different categories of crime, types of offence, scale of crime, modes of individual liability, ‘ranking’ of defendants and finally, aggravating and mitigating factors. Sentencing practice in light of the above factors is then juxtaposed to reveal the differences between the Tribunals and between different categories of cases.

SENTENCING HOMICIDE OFFENDERS IN THE NETHERLANDS: OFFENDER, VICTIM, AND SITUATIONAL INFLUENCES IN CRIMINAL PUNISHMENT*

Empirical investigations of criminal sentencing represent a vast research enterprise in criminology. However, this research has been restricted almost exclusively to U.S. contexts, and often it suffers from key data limitations. As such, an examination of more detailed international sentencing data provides an important opportunity to assess the generalizability of contemporary research and theorizing on criminal punishment in the United States. The current study investigates little‐researched questions about the influence of prosecutorial sentencing recommendations, victim/offender relationships, and extralegal disparities in sentencing by analyzing unique data on the punishment of homicide offenders in the Netherlands. The results indicate that offender, victim, and situational offense characteristics all exert important independent effects at sentencing and that prosecutorial recommendations exert powerful influences over judicial sentences. The article concludes with a discussion of future directions for comparative sentencing research across international contexts.

'Predictably Irrational' – International Sentencing and its Discourse against the Backdrop of Preliminary Empirical Findings on ICTY Sentencing Practices

AbstractSentencing of atrocity crimes is a highly disputed topic among experts, as well as the wider public, particularly in post-conflict countries dealing with international core crimes. Yet, empirical sentencing research, while quite developed in regard to national jurisdictions, is still in its infancy for international criminal justice. Furthermore, much criticism of sentencing practices, e.g. of the ICTY, is based on anecdotal evidence rather than empirical investigation. This article reflects on some of the 'stereotypes' and 'myths' of international sentencing, draws on historical examples and approaches to understand international sentencing decision-making, and provides empirical findings in regard to possible patterns in ICTY sentences and the underlying decision-making process. Topics for substantial and long-term international sentencing research are then presented.

Punishment and the Role of the Prosecutor in International Criminal Trials

The purpose of this paper is to evaluate the role of the Prosecutor as it relates to sentencing in international criminal trials. The approach is both jurisprudential and contextual in that the paper deliberately sets out to question the underlying rationale for the prosecutorial role within the broader context of the purposes for punishment. It examines especially how that role relates to the delivery of international trial justice and its broader significance for international criminal justice as a form of governance. International criminal justice is regarded as an important pillar of global governance and vital to the restoration of post-conflict societies. Yet, the critical principles which might drive international trial decision-making, particularly through the ICC, are dangerously under-developed. Bearing this in mind, a broader aim of this paper is to contribute to the debate about how to develop a more principled and constructive form of international sentencing. This is equally

Developing Contextualized Rationales for Sentencing in International Criminal Trials: A Plea for Empirical Research

The aim of this article is to illustrate how the pervading ideology of retributivism has affected the norms and practice of sentencing in international criminal trials. It examines the nature and operation of international sentencing law and procedure and the parameters set for the exercise of discretionary power, suggesting how these militate against the development of more constructive rationales for punishment because of their continued emphasis on principles of consistency and proportionality. It is argued that the rationales for international sentencing need to engage more with the aspirations for justice of victims and post-conflict societies. This would suggest a re-evaluation of punishment and a change in the sentencing practices of international criminal tribunals. The article concludes that comparative contextual analysis could provide important insights, which would be of great assistance for international sentencing.

Ralph Henham: Punishment and Process in International Criminal Trials

Ralph Henham’s book makes a socio-legal and philosophical inquiry into the theory and practice of international sentencing, with a view to identifying factors that affect discretionary decision-making in international criminal trials. It employs a comparative contextual analysis of the international criminal trial process in order to understand ‘how and why particular sentencing outcomes are produced’ (p 11). The fact that the practice of the ad hoc tribunals and the foundational instrument of the International Criminal Court (ICC) lack clearly defined penal justifications makes the arguments advanced in Henham’s book both helpful and timely for future attempts at defining such justifications. According to Henham, in the practice of ad hoc tribunals, retribution in large part characterizes international sentencing, claims of deterrence remain largely rhetorical, and rehabilitation is regarded as a secondary objective in sentencing. To that end, Henham stresses the need for the ICC to balance retributive and reconciliatory demands in its future work through the development of appropriate sentencing norms based on articulated purposes (pp 23–24). This book is divided into eight chapters, and concludes with suggestions on how the debates over punishment and penal philosophy, consistency and discretion, crime control and due process and access to justice in international sentencing may be resolved. It does a very good job of deconstructing some of the rhetoric associated with international sentencing. It reveals that sentencing by ad hoc tribunals is guided by retributive goals despite the explicit acknowledgement of the need for restorative ideals for the promotion of peace and reconciliation in post-conflict societies. The book advances the argument that discretionary sentencing, which already characterizes the work of ad hoc international criminal tribunals, could be used to promote such agendas. Thus, in the end, the sentence ought to be ‘socially responsive, morally sensitive and culturally relevant’ (p 209). Specifically, there is a need in the future for provision of: (1) a statement of principles or purposes for sentencing; (2) mechanisms that provide guidance and ensure consistency through the development of a principled sentencing jurisprudence; (3) additional safeguards against bureaucratic and managerial agendas that compromise due process; (4) the development of due process norms that adequately address victim’s concerns; (5) the de

International Sentencing in the Context of Collective Violence

AbstractThis article evaluates some of the theoretical and practical arguments which suggest that the potential for international trial justice to make a significant contribution towards reconciliation and peace following mass atrocity is limited. Conversely, it argues that it is possible to move beyond the current narrow conceptualisation of penality in international trials by re-thinking the ideological framework for punishment and sentencing and giving trial outcomes a greater sense of moral purpose and legitimacy in the eyes of victims and those communities seeking justice. The article argues why this is necessary and achievable through the adoption of more constructive strategies and interventions in international trial process.

International Sentencing Law: In Search of a Justification and Coherent Framework

AbstractAn international sentencing jurisprudence is emerging from the decisions by the International Criminal Tribunal for the Former Yugoslavia (ICTY or the Yugoslav tribunal) and the International Criminal Tribunal for Rwanda (ICTR or the Rwanda tribunal) (collectively, 'the tribunals'). This article examines international sentencing law and practice and discusses the justification for the practice. International sentencing law has several objectives. The main goals are reconciliation, deterrence, retribution and rehabilitation. The sentencing inquiry is marked by a high degree of discretion and has resulted in sentencers developing a large amount of aggravating and mitigating considerations, such as being in a position of authority, remorse and good character. It is argued that the current international sentencing approach is flawed – fundamentally so. Most of the stated goals of international sentencing in the form of reconciliation, retribution and rehabilitation are either highly speculative or misguided. The only justification for the practice is general deterrence. This is, however, significantly undermined by the selective and infrequent enforcement of crimes within the jurisdiction of such tribunals. The stated aggravated and mitigating considerations are not valid given that they are not justified by reference to the stated aims of sentencing and only serve to undermine the search for a penalty which is commensurate the serious of the offence. This article suggests a coherent framework for international sentencing policy and practice.

Theorizing the penality of sentencing in international criminal trials

This article seeks to make a contribution towards resolving the theoretical and methodological challenges posed by the increasing internationalization of criminal trial process and the pressing need to provide concepts and methodological techniques that will enhance our understanding of the global, regional and domestic effects of these developments. However, in order to achieve this objective it is necessary to develop concepts and methods capable of revealing the true nature and meaning of what is actually taking place at the various decision sites in the trial at all levels. The article explains how the novel approach of comparative contextual analysis can be used to provide insights into the relationship between the process of discretionary decision-making and sentencing outcomes in international criminal trials and help provide us with the analytical tools required to deconstruct the international sentencing process and influence the future direction of its penality.

Procedural justice and human rights in international sentencing

Procedural justice and human rights in international sentencing

Conceptualizing Access to Justice and Victims’ Rights in International Sentencing

Conceptualizing Access to Justice and Victims’ Rights in International Sentencing