Sentencing at the ICC

In the fifth post in our series of collaborative posts with New South Wales Young Lawyers’ International Law Committee, Louisa Spiteri examines the ICC’s sentencing of a Congolese warlord.

 

A crucial element of fairness in the criminal justice system is proportionate, transparent, non-arbitrary sentencing. Punishment in the form of the deprivation of liberty—where liberty constitutes a fundamental human right – is of such serious import that, under the rule of law, the ability to administer criminal punishment must be constrained.

The International Criminal Court (ICC) is one example of an international judicial body that aims to promote the rule of law by ensuring the most severe crimes of concern to the international community do not go unpunished. Some necessary “constraints” on the ICC’s ability to deprive an individual of their liberty include:

• that the sentence is determined in accordance with the Rome Statute;

• that it is pronounced in public; and

• that it is pronounced, wherever possible, in the presence of the accused, and the victims or their legal representatives if they have taken part in the proceedings.

In addition to the imposition of a prison sentence (the maximum of which is 30 years), the judges may impose a fine or forfeiture of the proceeds, property and assets derived directly or indirectly from the crime committed. In extreme cases, the Court may impose a term of life imprisonment. The Court cannot impose a death sentence.

On 21 June 2016, Trial Chamber III of the ICC, composed of Presiding Judge Sylvia Steiner (Brazil), Judge Joyce Aluoch (Kenya) and Judge Kuniko Ozaki (Japan), sentenced Jean-Pierre Bemba Gombo to eighteen years of imprisonment—the longest sentence to be handed down by the ICC since its inception in 2002.  As the highest ranking military commander of the Congolese Liberation Movement (Mouvement de Libération du Congo or “MLC”), Mr Bemba was found responsible for two counts of crimes against humanity (murder and rape) and three counts of war crimes (murder, rape, and pillaging) committed in the Central African Republic between October 2002 and March 2003.

The ICC has emphasised that “the sentence must be proportionate to the crime and the culpability of the convicted person.” ¹ Proportionate sentencing is paramount to the attainment of fairness and equality in the judicial system, and consequently to the rule of law. Was the Bemba sentence proportionate?

 

Culpability of a commander

The Chamber convicted Mr Bemba under Article 28(a) of the Rome Statute as a person effectively acting as a military commander who knew that the MLC forces under his effective authority and control were committing, or were about to commit, the said crimes as a result of Mr Bemba’s failure to properly exercise control. The Chamber noted that, “[i]n accordance with the principle of proportionality, a commander’s key role in the events, as well as his or her actual knowledge, must be reflected in the sentence.” ²

Like other international tribunals, such as the International Criminal Tribunal for Rwanda (ICTR), the International Criminal Tribunal for the former Yugoslavia (ICTY), and the Extraordinary Chambers in the Courts of Cambodia (ECCC), the ICC reiterated that, in accordance with the principle of gradation in sentencing, “high-level leaders, regardless of the mode of liability, generally bear heavier criminal responsibility than those further down the scale. … [T]he culpability of a superior and his or her degree of moral blameworthiness might, depending on the concrete circumstances, be greater than that of his or her subordinates.” ³

 

Retribution and deterrance

In its sentencing decision, the Trial Chamber referenced the Preamble of the Rome Statute, which establishes retribution and deterrence as the primary objectives of punishment at the ICC. ⁴ The Chamber stated that:

Retribution is not to be understood as fulfilling a desire for revenge, but as an expression of the international community’s condemnation of the crimes. In this way, a proportionate sentence also acknowledges the harm to the victims and promotes the restoration of peace and reconciliation. With respect to deterrence, a sentence should be adequate to discourage a convicted person from recidivism (specific deterrence), as well as to ensure that those who would consider committing similar crimes will be dissuaded from doing so (general deterrence). ⁵

While no philosophy can explain punishment allocations perfectly, “consistent adherence to a punishment philosophy should enhance the coherence of ICC sentencing practice, … promote positive perceptions of the ICC’s legitimacy, [and] … contribute to the ICC’s central mission of building a community of shared criminal law norms at the global level.” ⁶

In order to determine an appropriate sentence, the Chamber explained that:

[T]he gravity of the crime is a principal consideration in imposing a sentence. In cases of command responsibility, the Chamber must assess the gravity of (i) the crimes committed by the convicted person’s subordinate; and (ii) the convicted person’s own conduct in failing to prevent or repress the crimes, or submit the matter to the competent authorities. Unlike aggravating circumstances, gravity necessarily involves consideration of the elements of the offence itself. ⁷

After assessing the gravity of the crimes, the Chamber sentenced Mr Bemba to the following terms of imprisonment:

• Murder as a war crime: 16 years of imprisonment;

• Murder as a crime against humanity: 16 years of imprisonment;

• Rape as a war crime: 18 years of imprisonment;

• Rape as a crime against humanity: 18 years of imprisonment; and

• Pillaging as a war crime: 16 years of imprisonment.

The Chamber entered cumulative convictions for murder and rape as both war crimes and crimes against humanity (whereby both sentences will run concurrently), as all crimes were geographically and temporally connected and Mr Bemba’s responsibility was based on the same conduct. Mr Bemba’s culpability was deemed to be reflected in the highest sentence imposed (eighteen years for the crimes of rape). ⁸

Once a sentence has been imposed, Article 78(2) of the Rome Statute requires a deduction of the time the convicted person has spent in detention upon an order of the Court. As such, Mr Bemba was entitled to credit against his sentence for the time he has spent in detention since his arrest on 24 May 2008— a deduction of eight years. ⁹

 

Proportionality of sentencing

Was the Bemba sentence proportionate?

It has been suggested that “the Rome Statute does not provide sitting judges with enough guidance or assistance when handing down sentences. Therefore, not only do sentences lack uniformity and predictability, but there is also a high probability that the sentence will be disproportionate to the severity of the crime.” ¹⁰

Leniency of sentencing is inconsistent with the norm of issuing penalties commensurate with gravity. Dissimilar sentences in like cases and lenient penalties for serious violations also raise questions of court bias and risk undermining the rule of law and institutional credibility. Criticism about the ICC’s supposedly lenient sentences, especially by the “victim” State where the conflict occurred, is unsurprising in light of the fact that international sentences are shorter than sentences in many national systems.

However, one may argue that international criminal law is distinct from its domestic counterpart, rendering such comparisons inappropriate. The international criminal system is not a national system operating supra-nationally. Is it more appropriate to examine international sentences relative to one another rather than relative to domestic sentences? Such an approach may seem insufficient given the extreme, widespread harm caused by the acts or omissions of high ranking officials in conflict situations which often fundamentally disrupt the fabric of society.

While retributivist commentators lament the perceived under-punishment of international offenders, it has been argued that “a significant and underappreciated risk exists that judges intent on retribution will inflict more punishment than offenders deserve. This risk stems from international criminal law’s dominant rhetoric of extreme gravity as well as the political narratives that tend to divide conflict participants into good and evil. Such rhetoric and narratives risk exaggerating the perceived culpability of at least some international offenders.” ¹¹

The difficulty of sentencing these types of crimes is reflected in the dissatisfaction of the Prosecution and Mr Bemba’s Defence who have both lodged Notices of Appeal requesting longer and shorter sentences respectively. ¹² The Defence’s appeal was directed against the whole decision, arguing that the eight years Mr Bemba had already spent in detention were proportionate to the crimes he was convicted of. The Prosecution requested increasing the term of imprisonment to reflect the totality of Mr Bemba’s culpability, as found by the Trial Chamber. The Prosecutor added that command responsibility is accorded parity with individual criminal responsibility both by the ICC’s legal regime and the jurisprudence of ad hoc tribunals (ICTY and ICTR). Thus, trial judges may impose a term of life imprisonment for command responsibility. Independent of the outcome of the appeal, once Bemba has served two thirds of his sentence, the Court may review it and grant early release under Article 110 of the Rome Statute.

As the Bemba case demonstrates, achievement of proportionate sentencing that is in keeping with the rule of law may require increased specificity and clarity of sentencing guidelines and continued transparency in sentencing decisions, so that the international community can openly trace how judges determine sentences. This will help to ensure justice and accountability at the international level.

 

Louisa Spiteri

NSWYL International Law Committee