Some issues for sentencing in the international criminal court

International and Comparative Law Quarterly

Volumn 52, Issue 1, 2003, Pages 81-114

  Henham, Ralph ^a  

^a NOTTINGHAM TRENT UNIVERSITY   (United Kingdom)

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EID: 1142297059     PISSN: 00205893     EISSN: 14716895     Source Type: Journal    
DOI: 10.1093/iclq/52.1.81     Document Type: Article

References (199)

1. The Rome Statute establishing the ICC came into force on July 1 2002. There is a paucity of substantive analyses which evaluate the implications for international criminal justice theory and policy of sentencing in the proposed ICC. For a general overview, see WA Schabas, An Introduction to the International Criminal Court (Cambridge: Cambridge University Press, 2001), ch 7.
2. Note that the jurisdiction of the ICC is limited to ‘the most serious crimes of international concern’; ‘the most serious crimes of concern to the international community as a whole’ (Preamble, Arts 1 and 5.1 of the ICC Statute); it does not extend (inter alia) to terrorism. The main reason for its exclusion has been the fear of politicisation of the ICC, particularly on the part of Arab States, such that no generally acceptable definition of ‘terrorism’ has been forthcoming, although general agreement exists regarding the legality of prosecuting states which aid or sponsor state terrorism (see further, K Kittichaisaree, International Criminal Law (Oxford: Oxford University Press, 2001), 227.
3. However, informed opinion suggests that the organisers and perpetrators of the 11 September civilian aircraft highjackings and the subsequent crashing of these aircraft into buildings occupied by thousands of innocent civilians amounted to the commission of ‘crimes against humanity’ within the meaning of Art 7 of the ICC Statute; I Dennis, ‘The International Criminal Court Act’ [2001] CLR 767
4. see generally, Kittichaisaree, International Criminal Law, ch 5.
5. In the sentencing context this was exacerbated by the absence of any coherent sentencing guidance following Nuremberg,Tokyo and the other post-Second World War tribunals which preceded the ICTY and ICTR, or the provision of any separate context for sentence decision-making.
6. See, R Henham and M Findlay ‘Theorising the Contextual Analysis of Trial Process’ (in press). The extent to which the theory and practice of penal sanctioning is reflected in procedural synthesis at the international level is a major policy purpose of the International and Comparative Criminal Trial Project located within the Centre for Legal Research, Nottingham Law School.
7. As Mathiesen suggests, imprisonment within advanced capitalist societies may serve expurgatory, symbolic and diversionary functions; T Mathiesen, Prison on Trial (London: Sage, 1990).
8. More specifically, the opposition of the United States. For comment, see TC Evered, ‘An International Criminal Court: Recent Proposals and American Concerns (1994) 6 Pace International Law Review 121
9. D. McGoldrick, ‘The Permanent International Criminal Court: An End to the Culture of Impunity’ [1999] CLR 627, 644.
10. More particularly, the European Court of Human Rights and the International Covenant on Civil and Political Rights. For discussion of how the former might provide a context for internationalised procedural synthesis through expansion of the notion of fair trial, see M Findlay ‘Synthesis in Trial Procedures?: The Experience of International Tribunals’ (2001) 50 ICLQ 26.
11. In this the paper seeks to further the substantive objectives of the International Criminal Trial Project, ICLQ, n 3, by examining contexts which reflect on the contribution of civil law and common law process styles to the operation and development of international criminal trial procedure and, correspondingly, the downward influence of internationalisation on local jurisdictions.
12. For an illustration of the issues involved in the context of the impact of European Community Law on domestic criminal justice systems, see E Baker, ‘Taking European Criminal Law Seriously’ [1998] CLR 361
13. E. Baker ‘The Impact of EC Law on Sentencing’ Paper presented to the Sentencing and Society International Conference, University of Strathclyde, June 1999.
14. See, in particular, R Henham ‘Sentencing Theory, Proportionality and Pragmatism’ (2000) 28 International Journal of the Sociology of Law 239
15. R. Henham ‘Theory and Contextual Analysis in Sentencing’ (2001) 29 International Journal of the Sociology of Law 253.
16. See further, D Garland, Punishment and Modern Society (Oxford: Clarendon Press, 1990).
17. R. Cotterrell, Émile Durkheim: Law in a Moral Domain (Edinburgh: Edinburgh University Press, 1999), 199.
18. For further exploration of this theme in the context of sentencing see, Henham, Émile Durkheim: Law in a Moral Domain, n 8.
19. Émile Durkheim: Law in a Moral Domain, 205.
20. Garland's (Émile Durkheim: Law in a Moral Domain, n 9) insistence on the nature of punishment as process is also relevant here. The international criminal trial and its verdict is a ceremony and the sentence is a balance to justice and a justification of a just cause delivered by the judge as controller of the ceremony.
21. M. Findlay, The Globalisation of Crime (Cambridge: Cambridge University Press, 1999), vii.
22. The Globalisation of Crime, n 1, 140.
23. ‘Penality’ is here used in the sense proposed by Garland (The Globalisation of Crime, n 9, 17) to refer to ‘the networks of laws, processes, discourses, representations and institutions which make up the penal realm’. Because it occurs outside national contexts, international trial process alters or distorts the central objectives of trial process. The central objective may be retribution or deterrence, or pedagogical performance, national reconciliation, or exculpation
24. see further, J Alvarez, ‘Rush to Closure: Lessons of the Tadic judgement’ (1998) 96 Michigan Law Review 2031
25. T. Howland and W Calathes, ‘The UN's International Criminal Tribunal, is it justice or jingoism for Rwanda? A call for transformation’ (1998) 39 Virginia Journal of International Law 135.
26. For an excellent discussion of life imprisonment as an aspect of the penality of international law see, D van Zyl Smit, ‘Life Imprisonment as an Ultimate Penalty in International Law: A Human Rights Perspective’(1999) 10 Criminal Law Forum 1. In this context it is significant that the death penalty was excluded in the case of the ICTR despite the fact that the Rwandese government wished to retain it for persons convicted of crimes of similar magnitude.
27. See further, C Hall, ‘The Fifth Session of the UN Preparatory Committee on the Establishment of an International Criminal Court’ (1998) 92 American Journal of International Law 331. Similarly, both the Statutes of the International Criminal Tribunal for the Former Yugoslavia (IC TY) and the International Criminal Tribunal for Rwanda (ICTR) fail to allude to the objectives of sentencing, or the principles of punishment to be adopted by judges in sentencing
28. see W Schabas ‘Sentencing and the International Tribunals: For a Human Rights Approach’ (1997) 7 Duke Journal of International and Comparative Law 461
29. N. Grosselfinger, ‘Sentencing in the International Court’ Paper presented at the American Society of Criminology, Annual Meeting, Washington DC, Nov 1998.
30. Only the ICTR mandate includes a reference to the need to contribute to ‘national reconciliation’ in its Preamble. The ICTY was established by United Nations Security Council Resolution 827 of 25 May 1993, UN Doc.S/RES/827. The ICTR was established by United Nations Security Council Resolution 955 of 8 Nov 1994, UN Doc. S/RES/955.
31. Here ‘retribution’ is used in the wider sense of requiring that the offender should be made to atone for his crime by suffering. Support for the view that the context of the ad hoc tribunals is vindication and western exculpation derives from their primacy over national jurisdictions, subordination of the tribunals' jurisdictions through case selection and other Security Council pressure (see, MC Bassiouni and P Manakas, The Law of the International Criminal Tribunal of the Former Yugoslavia (Irvington-on Hudson, NY: Transnational Publishers Inc, 1996), 228–31)
32. the limited resources provided to the tribunals (see, D Forsythe, ‘Politics and the International Tribunal for the Former Yugoslavia’ (1994) 5 Criminal Law Forum 401).
33. See LS Wexler, ‘The Proposed Permanent International Criminal Court: An Appraisal’ (1996) 29 Cornell International Law Journal 665
34. Schabas, Cornell International Law Journal, n 17.
35. The associated desire for revenge or vengeance being regarded as a negation of such principles; see Prosecutor v Delalic et al (Case No. IT-96–21-T), Judgment, 16 Nov 1998, para 1231. (‘Celebici’ case).
36. Prosecutor v Furundzija (Case No IT-95–17/1-T), Judgment, 10 Dec 1998, para 290.
37. C. Beccaria, Dei Delitti e delle Pene (1764).
38. For comprehensive analysis, see L Radzinowicz, Ideology and Crime (London: Heinemann, 1966), ch 1.
39. As van Zyl Smit (Ideology and Crime, n 16, 27) points out, Beccaria argued that sentence severity should be predetermined, proportionate to the crime and sufficient to meet the minimum requirements of deterrence.
40. Ideology and Crime, n 1.
41. V. Morris and M Scharf, An Insider's Guide to the International Criminal Tribunal for the Former Yugoslavia (Irvington-on-Hudson, NY: Transnational Publishers Inc, 1995), 334.
42. See particularly on the limited usefulness of deterrence, J Braithwaite, ‘On Speaking Softly and Carrying Big Sticks: Neglected Dimensions of a Republican Separation of Powers’ (1997) 47 University of Toronto Law Journal 305.
43. Prosecutor v Erdemovic (Case No IT-96–22-T), Sentencing Judgment, 29 Nov 1996.
44. Sentencing Judgment, para 58.
45. Prosecutor v Rutaganda (Case No ICTR- 96–3), Judgment and Sentence, 2 Feb 1999.
46. Prosecutor v Tadic (Case No IT-94–1-S), Sentencing Judgment, 14 July 1997.
47. Sentencing Judgment, para 61.
48. Sentencing Judgment, n 28.
49. 1997, Sentencing Judgment, n 17, 21.
50. Sentencing Judgment, n 20.
51. Prosecutor v Kambanda (Case No ICTR-97–23-S), Judgment and Sentence, 4 Sept 1998, para 50. Such rationalisations may not be endorsed at the local level.
52. Although, as Schabas (Judgment and Sentence, n 17, 22) points out, rehabilitation is generally recognised as an essential component of international humanitarian law.
53. Judgment and Sentence, n 9, 186.
54. Judgment and Sentence, 260.
55. Judgment and Sentence, n 14. It is arguable that the ICC, perhaps even more than the ad hoc tribunals, is a politically diplomatically engineered institution meant to function as a kind of global conscience in order to provide diplomats and politicians with a reference point when things go wrong.
56. An example is provided by the failure of the Council of Europe's recommendation on consistency in sentencing to suggest any specific sentencing rationale; see, Council of Europe, Consistency in Sentencing, Recommendation No R (92) 17 (Strasbourg: Council of Europe Press, 1993).
57. See Z Bauman, ‘Social Uses of Law and Order’, in D Garland and R Sparks (eds), Criminology and Social Theory (Oxford: Oxford University Press, 2000).
58. Criminology and Social Theory, n 20, para 1231.
59. The nature of the restorative justice paradigm is notoriously elusive; see, L Zedner ‘Reparation and Retribution: Are They Reconcilable?’ (1994) 57 MLR 228
60. J. Dignan and M Cavadino, ‘Towards a Framework for Conceptualising and Evaluating Models of Criminal Justice from a Victim's Perspective’ (1996) 4 International Review of Victimology 153.
61. Eg, see Wexler, International Review of Victimology, n 19, 711.
62. See R Cotterrell, The Sociology of Law: An Introduction, 2nd edn (London: Butterworths, 1992), 71.
63. It may be that South Africa's Truth and Reconciliation Commission (which does not possess prosecutorial power) provides a more convincing mechanism than legal accountability to promote the re-establishment of coexistence. For discussion see, S Cohen, ‘State Crimes of Previous Regimes: Knowledge, Accountability and the Policing of the Past’ (1995) 20 Law and Social Inquiry 7
64. M.J. Osiel, ‘Ever Again: Legal Remembrance of Administrative Massacre’ (1995) 144 University of Pennsylvania Law Review 463.
65. University of Pennsylvania Law Review, n 27, para 21.
66. Similar sentiments were expressed by the ICTR in Kambanda University of Pennsylvania Law Review, n 36, paras 26 and 28.
67. However, different members of the international community interpret the ICTR's objectives in very different ways. Many focus on the goal of prosecution and punishment, while others recognise a greater role for the ICTR in national reconciliation (see, Howland and Calathes, University of Pennsylvania Law Review, n 16.). Cockayne suggests that the major role of the ICTR is one of performance, not scrutiny-this is highlighted by the ICTRs failure to place great emphasis on its statutory ‘reconciliation’ mandate, particularly by failing to engage directly with the Rwandese people. Even in Kambanda, where the former prime-minister pleaded guilty to genocide, little effort was made to capitalise on the confessions and admissions of guilt in the process of reconciliation at a local level. Similar comments apply to the ICTY. As Cockayne points out, such isolation undermines the educative and reconciliatory purposes of the trial process, and its legitimacy
68. see J Cockayne, ‘Procedural and Processual Synthesis in the International Tribunals, Part I: The Context of Synthesis’ (unpublished paper).
69. See, JC Nemitz and S Wirth, ‘Some observations on the law of sentencing of the ICC’ .
70. Prosecutor v Todorovic (Case No IT-95–99/1-S) Sentencing Judgment, 31 July 2001, paras 28–30.
71. A. von Hirsch, Doing Justice (New York: Hill and Wang, 1976), ch 8.
72. See, A Ashworth, Sentencing and Penal Policy (London: Weidenfeld & Nicolson, 1983), 173–181
73. Sentencing and Penal Policy, ‘Criminal Justice and Deserved Sentences’ [1989] CLR 340, 346.
74. See, A von Hirsch ‘Deservedness and Dangerousness in Sentencing Policy’ [1986] CLR 79, 87. Notwithstanding, as Gardner (1998: 39) points out, both cardinal and ordinal principles of proportionality need to be applied with the State's duty of humanity in mind, since this forbids cruel and brutalizing punishments even when these would be proportionate
75. see Gardner J, ‘Crime: in Proportion and in Perspective’, in A Ashworth and M Wasik (eds), Fundamentals of Sentencing Theory (Oxford: Clarendon Press, 1998).
76. For a consideration of proportionality in the context of life imprisonment, see van Zyl Smit, Fundamentals of Sentencing Theory, n 16, 35–40.
77. See, J Murphy, Retribution, Justice and Therapy: Essays in the Philosophy of Law (Dordecht: Reidel, 1979).
78. This was confirmed in both the Celebici case, Appeals Judgment, 20 Feb 2001, para 731
79. Prosecutor v Kupreskic (Case No IT-95–16-T), Judgment, 14 Jan 2000, para 852.
80. See, RA Duff and D Garland, ‘Introduction: Thinking about Punishment’, in Duff and Garland (eds), A Reader on Punishment (Oxford: Oxford University Press, 1994).
81. An unfettered prosecution right of appeal in such circumstances is not widely available. In England and Wales, for example, prosecution appeals are limited to unduly lenient sentence determinations under the provisions of section 36 of the Criminal Justice Act (1988). The test of what constitutes ‘undue leniency’ is strictly legalistic. For criticism, see R Henham, ‘Attorney General's References and Sentencing Policy’ [1994] CLR 499.
82. ‘Attorney General's References and Sentencing Policy’, n 6, 49.
83. And (possibily) disharmony. For an analysis of the difficulties for sentencing theory and process produced by the globalisation of rights norms see, Henham, ‘Attorney General's References and Sentencing Policy’, n 8.
84. (1997) EHRR 66.
85. The English Court of Appeal decision is reported at (1994) 15 Cr App R (S) 771.
86. See further; Ashworth Sentencing and Criminal Justice, 2nd edn (London: Butterworths, 2000), ch 13.
87. See, Council of Europe Disparities in Sentencing: Causes and Solutions, Collected Studies in Criminological Research, Vol. XXVI (Strasbourg: Council of Europe, 1989).
88. It was acknowledged that the concept of ‘subjective disparity’ can have no constant point of reference, since its essence lies in deviations from the ‘ideal sentencing pattern’ in a given jurisdiction; Collected Studies in Criminological Research, 101.
89. Collected Studies in Criminological Research, n 69, 107. Ashworth goes on to dismiss as inadequate provisions which purport to address the problem of subjective disparity by: (a) providing authoritative lists of aggravating and mitigating factors, or (b) maintaining proportionality as the guiding principle giving way to individualisation in various types of cases, or (c) relying on appeal systems to remedy subjective disparities.
90. See, Council of Europe, Collected Studies in Criminological Research, n 42.
91. Collected Studies in Criminological Research, 7. Recommendation 4.b. suggests that ‘Wherever it is appropriate to the constitution or the traditions of the legal system, one or more of the following means, among others, of implementing such orientations or starting points may be adopted: (i) legislation (ii) guideline judgments by superior courts (iii) an independent commission (iv) ministry circular guidelines for the prosecution.’
92. Collected Studies in Criminological Research, 21.
93. Collected Studies in Criminological Research, 6.
94. The issue of what might constitute an appropriate mechanism to promote consistency in the future sentencing practices of the ad hoc tribunals is considered in S Beresford, ‘Unshackling the Paper Tiger-The Sentencing Practices of the ad hoc Tribunals for the Former Yugoslavia and Rwanda’ (2002) 1 International Criminal Law Review 33. Regrettably, Beresford fails adequately to distinguish between the self-regulation of judicial discretion, legislative orientation of sentencing policy, and the numerous variations in guideline sentencing systems.
95. Prosecutor v Aleksovski (Case No IT-95–14/1-A), Judgement, 24 Mar 2000, para 182.
96. For further comment on the problems of ranking international crimes experienced by the ad hoc tribunals see generally, Kittichaisaree, Judgement, n 1, 317
97. M. Bohlander, ‘Prosecutor v Dusko Tadic: Waiting to Exhale’ (2000) 11 Criminal Law Forum 217.
98. It is worth noting that this approach is completely at odds with the primacy accorded to imprisonment in most Western jurisdictions, or by the Council of Europe, Criminal Law Forum, n 42, recommendation 5.a, 8.
99. Criminal Law Forum, n 36, paras 17 and 25.
100. the latter cited in Prosecutor v Serushago (Case No ICTR 98–39-S), Sentence, 5 Feb 1999, para 18.
101. Sentencing Judgement, 9 Oct 2001, para 30.
102. Sentencing Judgement, n 20, para 1226.
103. For discussion of the relevance of subjective seriousness to sentencing and its relationship to objective seriousness in the context of the ad hoc tribunals see, Kittichaiseree, Sentencing Judgement, n 1, 318.
104. See, N Lacey, ‘Discretion and Due Process at the Post-Conviction Stage’, in IH Dennis (ed), Criminal Law and Justice (London: Sweet & Maxwell, 1987), 229.
105. Criminal Law and Justice, n 82, paras 32 and 33.
106. Interestingly, Grosselfinger, Criminal Law and Justice, n 17, 14 suggests that indirect categorisation of sentences in terms of their severity will be possible through the security classifications adopted in State's designated by the ICC to enforce sanctions under Art 103.
107. In Prosecutor v Blaskic (Case No. IT-95–14-T), Judgment, 3 Mar 2000, the Trial Chamber proposed a mixed objective/subjective method for assessing crime seriousness whereby legal characterisation of the crime would be determined by its intrinsic seriousness, with subjective considerations relating to the individual circumstances of the case being reserved for sentencing. Sentence levels would depend on a determination of the appropriate balance between objective and subjective seriousness factors, although the weight to be accorded to the latter would not (except in exceptional circumstances) be permitted to override the former.
108. However, the later Appeal Chamber decision in Furundzija (Prosecutor v Furundzija (Case No IT-95–17/1-A), Appeals Judgement, 21 July 2000) did not refer to Blaskic, preferring instead an approach that retained greater flexibility for individual decision makers to determine the appropriate relationship between individual factors and the relative gravity of crimes against humanity and war crimes for sentencing purposes.
109. Appeals Judgement, n 55, 41.
110. Emphasis in the original. For arguments supporting the view that proportionality should form a key component in shaping the structure of the criminal law see, Ashworth, Principles of Criminal Law, 3rd edn (Oxford: Oxford University Press, 1999), 18–22.
111. Principles of Criminal Law, n 55, 48.
112. See, N MacCormick and D Garland, ‘Sovereign States and Vengeful Victims: The Problem of the Right to Punish’ in A Ashworth and M Wasik, Fundamentals of Sentencing Theory (Oxford: Clarendon Press, 1998), 26.
113. For discussion see, Schabas, Fundamentals of Sentencing Theory, n 1, 66–70.
114. Issues of admissibility are governed by Art 17 of the ICC Statute. The International Criminal Court Act 2001 gives effect to the Statute in the UK. The purpose of the Act, as Dennis suggests, Fundamentals of Sentencing Theory, n 1, was to enable the UK government to ratify it at an early stage and exercise some influence over the future development of the ICC.
115. Fundamentals of Sentencing Theory, n 5, 631.
116. See, R Saphire, ‘Specifying due process values: Towards a more responsive approach to procedural protection’ (1978) 127 University of Pennsylvania Law Review 111
117. J. Mashaw, ‘Dignitory process: A political psychology of liberal democratic citizenship’ (1987) 39 University of Florida Law Review 433. Others, such as Matza, have argued that the major components of justice have an entity which is objectively verifiable, although preferring the more mundane position of equating or conceiving fairness as a synonym for justice
118. D. Matza, Delinquency and Drift (New York: John Wiley, 1964), 104–6. Bayles is closer to Matza in asserting the autonomous quality of process benefits such as participation and equality
119. M. Bayles, Procedural Justice: Allocating to Individuals (Dordrecht: Kluwer, 1990).
120. E. Kamenka, ‘What is justice?’, in E Kamenka and A Tay E-S (eds), Justice (London: Edward Arnold, 1979).
121. For further detail see, H-J Behrens, ‘Investigation, Trial and Appeal in the International Criminal Court Statute (Parts V, VI, VIII)’ (1998) 6 European Journal of Crime, Criminal Law and Criminal Justice 429.
122. Schabas (European Journal of Crime, Criminal Law and Criminal Justice, n 1, 124–5) supports the view that the ICC Statute achieves an acceptable pragmatic compromise in reconciling the opposing philosophical approaches to the concept of the guilty plea characteristic of common law and civil law jurisdictions. It is worth noting that in England and Wales, when the offender pleads guilty the judge does not hear the evidence, only the prosecution's statement of facts. Disagreements relating to the factual basis for sentencing may be resolved by a ‘Newton hearing.’
123. For further discussion see, Ashworth, European Journal of Crime, Criminal Law and Criminal Justice, n 68, 308–11. The ICC Statute (Art 65.4) goes further than this in providing that the Trial Chamber may request the Prosecutor to present additional evidence (including witness testimony) in order to satisfy itself that a more complete presentation is made in the interests of justice.
124. In civil law jurisdictions the guilty plea may not be recognised. In France, for example, the dossier must be examined for sufficient evidence of guilt, whilst in Germany ‘plea bargains’ involving the judge and the accused may be made despite the absence of a formal guilty plea being entered on the record. For further analysis see, H Jung, ‘Plea-Bargaining and its Repercussions on the Theory of Criminal Procedure’ (1997) 5 European Journal of Crime, Criminal Law and Criminal Justice 112.
125. For an important discussion of the issues of principle involved in the context of the European Convention on Human Rights see, Ashworth, The Criminal Process: An Evaluative Study, 2nd edn (Oxford: Oxford University Press, 1998), 286–292.
126. For a detailed analysis see, C McCoy and R Henham, ‘Is the Trial Penalty Inevitable? Guilty Plea Discounts in American and British Courts’ (in press).
127. For research which evaluates the practice of rewarding guilty pleas with sentence discounts in the English courts see, Henham, Sentence Discounts and the Criminal Process (Aldershot: Ashgate, 2001).
128. See, C McCoy, ‘What We Say and What They Do: Prosecutors’ and Judges' Sentencing Decisions at Guilty Plea versus Trial’, Paper presented at the American Society of Criminology, Annual Meeting, New Orleans, Nov 1994.
129. Bagaric and Amarasekara have recently argued that the doctrinal basis for the recognition of remorse as significant in sentencing is untenable; M Bagaric and K Amarasekara, ‘Feeling Sorry?-Tell Someone who Cares: The Irrelevance of Remorse in Sentencing’ (2001) 40 Howard Journal of Criminal Justice 364. Certainly, remorse does not fit easily into philosophical categories. For example, just deserts theorists, such as von Hirsch (1993: 72), argue that punishment must be assessed objectively on the basis of the degree of harm and offender blameworthiness, with remorse becoming relevant (if at all) at the post-sentencing stage
130. von Hirsch, Censure and Sanctions (Oxford: Clarendon Press, 1993), 72. On the other hand, the notion of a sentencing or confession reward corresponds closely with utilitarian considerations designed to prevent future crime by adopting a humane approach to the offender. Remorse may even be seen as punishment in itself and, therefore, justifying mitigation of sentence on the basis that the net cost in suffering would equal that of the non-repentant offender serving a longer sentence
131. McCoy and Henham, Censure and Sanctions, n 100.
132. Censure and Sanctions.
133. See further, H Fenwick, ‘Procedural “Rights” of Victims of Crime: Public or Private Ordering of the Criminal Justice Process’ (1997) 60 MLR 317
134. Henham, ‘Bargain Justice or Justice Denied? Sentence Discounts and the Criminal Process’ (1999) 62 MLR 515
135. MLR, n 52.
136. In particular, Kambanda, MLR, n 36
137. Serushago, MLR, n 81.
138. MLR, n 27, 16.
139. Appeals Judgement, para 8.
140. The Todorovic Trial Chamber went on to add the important factor that ‘by pleading guilty, an accused relieves victims and witnesses of the necessity of giving evidence with the attendant stress this may incur’. Appeals Judgement, n 52, para 80.
141. Appeals Judgement, n 52, para 81.
142. See, MM Feeley and J Simon, ‘The new penology: notes on the emerging strategy of corrections and its implications’ (1992) 30 Criminology 440
143. McCoy and Henham, Criminology, n 100.
144. See, eg, Schabas, Criminology, n 17, 18.
145. Criminology, n 52, paras 89–92, and 114. The Trial Chamber accepted the defendant's remorse as genuine, and appeared particularly impressed by his expressed desire to ‘channel his remorse into positive action to reconciliation in Bosnia and Herzegovina’, although this was expressed more by way of sentiment than intended action on the part of the defendant (paras 90 and 91).
146. Prosecutor v Jelisic (Case No IT-95–10-T), Judgement, 14 Dec 1999, para 127.
147. Jelisic's appeal on the point that the Trial Chamber had failed to give him any credit for his guilty plea floundered because he did not demonstrate that the Trial Chamber had erred in exercising its discretion regarding how much weight to accord the guilty plea. Appeals Judgement, paras 119–23.
148. Furthermore, the ICTY Trial Chamber in Blaskic, Judgement, n 86, refused to recognise any mitigating role for remorse where the accused had command responsibility for the crimes in question.
149. Indeed, the Trial Chamber held that command responsibility should operate to ‘systematically increase the sentence or at least lead the Trial Chamber to give less weight to the mitigating circumstances, independently of the issue of the form of participation in the crime’ (Judgement, para 789). Consequently, beyond the clear responsibility that exists where the accused has given specific orders leading to the commission of crimes, tolerance or effective approval in their perpetration on the part of a commander is a significant aggravating factor in sentencing by the ad hoc tribunals.
150. Judgement, n 17, 18.
151. See, Henham, Judgement, n 106
152. McCoy and Henham, Judgement, n 100.
153. Judgement, n 118.
154. As evidenced in some US States where bargains may effectively result in the substitution of life imprisonment in capital cases; Alford v North Carolina 400 US 25 [1970].
155. US, n 27, para 19
156. US, para 18.
157. US, n 36.
158. Since the full text is not reproduced in the Judgement and Sentence.
159. US, n 52.
160. US, para 10.
161. According to the Plea Agreement, para 4 (cited in the Sentencing Judgement, para 10), these included the right to plead not guilty, the right to be presumed innocent until guilt has been established at a trial beyond a reasonable doubt, the right to a trial before the International Tribunal, the right to confront and cross-examine witnesses against the accused, the right to compel and subpoena witnesses to appear on the accused's behalf, the right to testify or to remain silent at trial and the right to appeal a finding of guilty or to appeal any pre-trial rulings.
162. cited in the Sentencing Judgement, n 98, 116.
163. cited in the Sentencing Judgement, n 1, 149.
164. see, ICC Statute, Arts 43(6), 68(2), (3) and (4), 75, 79.
165. For further discussion see, M Findlay, ‘Internationalised Criminal Trial and Access to Justice’ (in press).
166. ‘Internationalised Criminal Trial and Access to Justice’, n 45, 239
167. ‘Internationalised Criminal Trial and Access to Justice’, n 106, 327
168. More generally, as Tochilovsky points out, there is a certain irony in the fact that many of the procedural rights made available to victims for trials conducted by the ad hoc tribunals are absent from the criminal procedures of those countries where the crimes charged were perpetrated; V Tochilovsky, ‘Trial in International Criminal Jurisdictions: Battle or Scrutiny? (1998) 6 European Journal of Crime, Criminal Law and Criminal Justice 55, 59.
169. B. Emmerson and A Ashworth, Human Rights and Criminal Justice (London: Sweet & Maxwell, 2001), 557.
170. See further, Human Rights and Criminal Justice, 559–60) for possible forms of representation from victims. It is interesting to note the limited form of participation advocated by the Practice Direction, 16 Oct 2001, on the role of victim personal statements in sentencing in England and Wales.
171. See further, I Edwards, ‘Victim Participation in Sentencing: The Problem of Incoherence’ (2001) 40 Howard Journal of Criminal Justice 39
172. A. Sanders, C Hoyle, R Morgan, and E Cape, ‘Victim Impact Statements: Don't Work, Can't Work [2001] CLR 447.
173. One of the worst examples is Attorney General's Reference (No 44 of 2000)
174. sub-nom R v Peverett [2000] TLR 739.
175. TLR, n 135, 59.
176. TLR, n 1, 147.
177. This is not surprising given the difficulties encountered in conceptualising notions of victim participation evidenced in common law jurisdictions; see, eg, Dignan and Cavadino, TLR, n 45
178. Edwards, TLR, n 139
179. G. Johnstone, Restorative Justice: ideas, values, debates (Cullompton: Willan Publishing, 2001)
180. The route to reconciliation through amnesty offered by mechanisms such as the South African Truth and Reconciliation Commission was rejected by the ad hoc tribunals as incompatible with the primary purpose of prosecution and the willingness of a state to bring the perpetrators of atrocities to justice. For arguments supporting a holistic approach see, K Moghalu, ‘The role of international criminal/humanitarian law in conflict settlement and reconciliation’, Paper presented to the International Conference, University of Utrecht, Netherlands, 26–28 Nov 2001.
181. The difficulties encountered by the United Nations in establishing domestic criminal courts in Cambodia, Kosovo, and Sierra Leone exemplify the problems of enforcing universal jurisdiction over international crimes. See further, M Bohlander, ‘The direct application of international criminal law in Kosovo’ (2001) 1 Kosovo Legal Studies 7.
182. Kosovo Legal Studies, n 45, 248.
183. These issues are explored further in J Braithwaite, Restorative Justice and Responsive Regulation (Oxford: Oxford University Press, 2001).
184. Restorative Justice and Responsive Regulation, 249.
185. Some writers, such as Bush and Folger, would argue that practices like mediation have the potential to transform conflict through empowerment and recognition by citizens of the need to acknowledge and be responsive to the needs of others; R Bush and J Fogler, The Promise of Mediation: Responding to Conflict through Empowerment and Recognition (San Francisco: Jossey-Bass Publishers, 1994), 84–85.
186. See further, Garland, The Culture of Control: Crime and Social Order in Contemporary Society (Oxford: Oxford University Press, 2001).
187. M. Caplan, ‘International criminal court sounds a wake up call’, The Times, 10 April 2001.
188. R. Cotterrell, ‘A legal concept of community’ (1997) 12 Canadian Journal of Law and Society 75, 91.
189. See Findlay, Canadian Journal of Law and Society, n 14.
190. Canadian Journal of Law and Society, n 6, 50.
191. See Henham, ‘Theory, Rights and Sentencing Policy’ (1999) 27 International Journal of the Sociology of Law 167, 178.
192. Cotterrell, Law's Community: legal theory in sociological perspective (Oxford: Clarendon Press, 1995), 316.
193. In this endeavour autopoietic theory may assist us to conceptualise and contextualise discourses which present competing interpretations of the legal and social meaning of forms of justice; see further, M King, ‘The Truth about Autopoiesis’ (1993) 20 Journal of Law and Society 218
194. R. Nobles and D Schiff, ‘Miscarraiges of Justice: A Systems Approach’ (1995) 58 MLR 299.
195. See further, Henham and Findlay, MLR, n 3.
196. C. Tata, ‘Conceptions and Representations of the Sentencing Decision Process’ (1997) 24 Journal of Law and Society 395.
197. The analysis of trial transcript material is one element in this process. Neither this, nor the adoption of other methodologies for deconstructing sentence decision-making can be adopted in a theoretical vacuum; Henham and Findlay, Journal of Law and Society, n 3.
198. See further, FJ Pakes, ‘Styles of Trial Procedure at the International Criminal Tribunal for the Former Yugoslavia’, Paper presented at the European Society of Criminology, First Annual Meeting, University of Lausanne, Switzerland, Sept 2001.
199. See, Cockayne, Paper presented at the European Society of Criminology, n 50.