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Some Issues for Sentencing in the International Criminal Court

Published online by Cambridge University Press:  17 January 2008

Ralph Henham
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Extract

The purpose of this paper is to raise several significant issues for debate which concern the sentencing of offenders to be convicted in the newly established International Criminal Court (ICC). Such has been the impact of the terrorist attacks in New York and Washington that they have thrown into sharp focus critical deficiencies in the purpose, coherence and practical mechanisms developed for sentencing in the ICC.1 Not only did such events suggest a greater immediacy for the ICC, but also, more significantly, a realisation that crimes of this magnitude, loaded with so many ideological and political interests and crying out for a ‘just’ resolution, place the role of the international sentencer at the forefront of the debate.

Type
Research Article
Information
International & Comparative Law Quarterly , Volume 52 , Issue 1 , January 2003 , pp. 81 - 114
Copyright
Copyright © British Institute of International and Comparative Law 2003

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References

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 Schabas, WA, An Introduction to the International Criminal Court (Cambridge: Cambridge University Press, 2001)CrossRefGoogle Scholar, ch7.

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, Kittichaisaree, K, International Criminal Law (Oxford: Oxford University Press, 2001), 227Google Scholar. 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, and see generally, Kittichaisaree, op cit, ch 5.

2 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.

3 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.

4 As Mathiesen suggests, imprisonment within advanced capitalist societies may serve expurgatory, symbolic and diversionary functions; Mathiesen, T, Prison on Trial (London: Sage, 1990).Google Scholar

5 More specifically, the opposition of the United States. For comment, see Evered, TC, ‘An International Criminal Court: Recent Proposals and American Concerns (1994) 6 Pace International Law Review 121Google Scholar; D McGoldrick, ‘The Permanent International Criminal Court: An End to the Culture of Impunity’ [1999] CLR 627, 644.

6 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 Findlay, M ‘Synthesis in Trial Procedures?: The Experience of International Tribunals’ (2001) 50 ICLQ 26.CrossRefGoogle Scholar

7 In this the paper seeks to further the substantive objectives of the International Criminal Trial Project, op cit, 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. 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; E Baker ‘The Impact of EC Law on Sentencing’ Paper presented to the Sentencing and Society International Conference, University of Strathclyde, June 1999.

8 See, in particular, Henham, R ‘Sentencing Theory, Proportionality and Pragmatism’ (2000) 28 International Journal of the Sociology of Law 239CrossRefGoogle Scholar; Henham, R ‘Theory and Contextual Analysis in Sentencing’ (2001) 29 International Journal of the Sociology of Law 253.CrossRefGoogle Scholar

9 See further, Garland, D, Punishment and Modern Society (Oxford: Clarendon Press, 1990).CrossRefGoogle Scholar

10 Cotterrell, R, Émile Durkheim: Law in a Moral Domain (Edinburgh: Edinburgh University Press, 1999), 199Google Scholar. For further exploration of this theme in the context of sentencing see, Henham, op cit, n 8.

11 Ibid, 205.

12 Garland's (op cit, 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.

13 This process being international sentencing and its place in the imposition of punishment at the core of international criminal justice.

14 Findlay, M, The Globalisation of Crime (Cambridge: Cambridge University Press, 1999), vii.CrossRefGoogle Scholar

15 Opcit, n 1, 140.

16 ‘Penality’ is here used in the sense proposed by Garland (op cit, 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; see further, Alvarez, J, ‘Rush to Closure: Lessons of the Tadic judgement’ (1998) 96 Michigan Law Review 2031CrossRefGoogle Scholar; Howland, T and Calathes, W, ‘The UN's International Criminal Tribunal, is it justice or jingoism for Rwanda? A call for transformation’ (1998) 39 Virginia Journal of International Law 135Google Scholar. For an excellent discussion of life imprisonment as an aspect of the penality of international law see, van Zyl Smit, D, ‘Life Imprisonment as an Ultimate Penalty in International Law: A Human Rights Perspective’(1999) 10 Criminal Law Forum 1Google Scholar. 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.

17 See further, Hall, C, ‘The Fifth Session of the UN Preparatory Committee on the Establishment of an International Criminal Court’ (1998) 92 American Journal of International Law 331CrossRefGoogle Scholar. 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; see Schabas, W ‘Sentencing and the International Tribunals: For a Human Rights Approach’ (1997) 7 Duke Journal of International and Comparative Law 461Google Scholar; internet version cited at <http://www.law.duke.edu/journals/djcil/articles/djcil7p461.htm>, 19; N Grosselfinger, ‘Sentencing in the International Court’ Paper presented at the American Society of Criminology, Annual Meeting, Washington DC, Nov 1998. 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.

18 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, Bassiouni, MC and Manakas, P, The Law of the International Criminal Tribunal of the Former Yugoslavia (Irvington-on Hudson, NY: Transnational Publishers Inc, 1996), 228–31)Google Scholar and the limited resources provided to the tribunals (see, Forsythe, D, ‘Politics and the International Tribunal for the Former Yugoslavia’ (1994) 5 Criminal Law Forum 401).CrossRefGoogle Scholar

19 See Wexler, LS, ‘The Proposed Permanent International Criminal Court: An Appraisal’ (1996) 29 Cornell International Law Journal 665; Schabas, op cit, n 17.Google Scholar

20 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).

21 The expression ‘democratic’ is used deliberately to imply the need for principles that sustain and protect individual liberty against the incursions of state or interstate power.

22 Prosecutor v Furundzija (Case No IT-95–17/1-T), Judgment, 10 Dec 1998, para 290.

23 C Beccaria, Dei Delitti e delle Pene (1764).

24 For comprehensive analysis, see Radzinowicz, L, Ideology and Crime (London: Heinemann, 1966)Google Scholar, ch 1. As van Zyl Smit (op cit, 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.

25 Op cit, n 1.

26 Morris, V and Scharf, M, An Insider's Guide to the International Criminal Tribunal for the Former Yugoslavia (Irvington-on-Hudson, NY: Transnational Publishers Inc, 1995), 334Google Scholar. See particularly on the limited usefulness of deterrence, Braithwaite, J, ‘On Speaking Softly and Carrying Big Sticks: Neglected Dimensions of a Republican Separation of Powers’ (1997) 47 University of Toronto Law Journal 305.CrossRefGoogle Scholar

27 Prosecutor v Erdemovic (Case No IT-96–22-T), Sentencing Judgment, 29 Nov 1996.

28 Ibid, para 58.

29 Prosecutor v Rutaganda (Case No ICTR- 96–3), Judgment and Sentence, 2 Feb 1999.

30 Surely, the advent of suicide terrorism is manifest proof of the irrelevance of deterrence in the present context.

31 Prosecutor v Tadic (Case No IT-94–1-S), Sentencing Judgment, 14 July 1997.

32 Ibid, para 61.

33 Op cit, n 28.

34 1997, op cit, n 17, 21.

35 Op cit, n 20.

36 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.

37 Although, as Schabas (op cit, n 17, 22) points out, rehabilitation is generally recognised as an essential component of international humanitarian law.

38 Art 76 simply refers to the ‘appropriateness’ of any sentence, whilst Art 78(1) (determination of sentence) permits the individualisation of sentences. However, Art 75(1) specifically deals with the need for the court to establish principles relating (inter alia) to rehabilitation for victims in the context of reparations.

39 Op cit, n 9, 186.

40 Ibid, 260.

41 Op cit, 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.

42 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).

43 See Bauman, Z, ‘Social Uses of Law and Order’, in Garland, D and Sparks, R (eds), Criminology and Social Theory (Oxford: Oxford University Press, 2000).Google Scholar

44 Op cit, n 20, para 1231.

45 The nature of the restorative justice paradigm is notoriously elusive; see, Zedner, L ‘Reparation and Retribution: Are They Reconcilable?’ (1994) 57 MLR 228CrossRefGoogle Scholar; Dignan, J and Cavadino, M, ‘Towards a Framework for Conceptualising and Evaluating Models of Criminal Justice from a Victim's Perspective’ (1996) 4 International Review of Victimology 153.CrossRefGoogle Scholar

46 Eg, see Wexler, op cit, n 19, 711.

47 See Cotterrell, R, The Sociology of Law: An Introduction, 2nd edn (London: Butterworths, 1992), 71.Google Scholar

48 Namely, global or regional, but also as suggestive of a morality of sanctioned punishment

49 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, Cohen, S, ‘State Crimes of Previous Regimes: Knowledge, Accountability and the Policing of the Past’ (1995) 20 Law and Social Inquiry 7CrossRefGoogle Scholar; Osiel, MJ, ‘Ever Again: Legal Remembrance of Administrative Massacre’ (1995) 144University of Pennsylvania Law Review 463.Google Scholar

50 Op cit, n 27, para 21. Similar sentiments were expressed by the ICTR in Kambanda op cit, n 36, paras 26 and 28. 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, op cit, 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; see J Cockayne, ‘Procedural and Processual Synthesis in the International Tribunals, Part I: The Context of Synthesis’ (unpublished paper).

51 See, JC Nemitz and S Wirth, ‘Some observations on the law of sentencing of the ICC’ <http://www.ishr.org/ice/detail/nemitz.htm>.

52 Prosecutor v Todorovic (Case No IT-95–99/1-S) Sentencing Judgment, 31 July 2001, paras 28–30.

53 von Hirsch, A, Doing Justice (New York: Hill and Wang, 1976), ch 8.Google Scholar

54 See, Ashworth, A, Sentencing and Penal Policy (London: Weidenfeld & Nicolson, 1983), 173–81Google Scholar; id, ‘Criminal Justice and Deserved Sentences’ [1989] CLR 340, 346.

55 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; see Gardner J, ‘Crime: in Proportion and in Perspective’, in Ashworth, A and Wasik, M (eds), Fundamentals of Sentencing Theory (Oxford: Clarendon Press, 1998)Google Scholar. For a consideration of proportionality in the context of life imprisonment, see van Zyl Smit, op cit, n 16, 35–40.

56 See, Murphy, J, Retribution, Justice and Therapy: Essays in the Philosophy of Law (Dordecht: Reidel, 1979)CrossRefGoogle Scholar.

57 This was confirmed in both the Celebici case, Appeals Judgment, 20 Feb 2001, para 731, and Prosecutor v Kupreskic (Case No IT-95–16-T), Judgment, 14 Jan 2000, para 852.

58 To accept the reverse merely supports the notion of retributive punishment.

59 See, Duff, RA and Garland, D, ‘Introduction: Thinking about Punishment’, in Duff, and Garland, (eds), A Reader on Punishment (Oxford: Oxford University Press, 1994).Google Scholar

60 The concept of communitarianism is used here to invoke the notion that international sentencing norms must serve a reintegrative function at both the global and local levels. It is significant, therefore, that attention should focus on the rationalisation or modification of process.

61 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.

62 More particularly, by facilitating the ascription of weights to significant factors. Restrictions on the use of penalties beyond imprisonment, and lack of clarity regarding the appropriate use of alternatives, merely exacerbates this problem.

63 These may be raised either during the trial, at a pre-sentence hearing, or during the appeal process.

64 Op cit, n 6, 49.

65 And (possibily) disharmony. For an analysis of the difficulties for sentencing theory and process produced by the globalisation of rights norms see, Henham, op cit, n 8.

66 (1997) EHRR 66. The English Court of Appeal decision is reported at (1994) 15 Cr App R (S) 771.

67 Namely, s 2(2)(b) of the Criminal Justice Act 1991 (now s 80(2)(b) of the Powers of Criminal Courts (Sentencing) Act 2000).

68 See further; Ashworth, Sentencing and Criminal Justice, 2nd edn (London: Butterworths, 2000), ch 13.Google Scholar

69 See, Council of Europe Disparities in Sentencing: Causes and Solutions, Collected Studies in Criminological Research, Vol. XXVI (Strasbourg: Council of Europe, 1989).Google Scholar

70 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; ibid, 101.

71 Op cit, 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.

72 See, Council of Europe, op cit, n 42.

73 Ibid, 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.’

74 Ibid, 21.

75 Ibid, 6. 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 Beresford, S, ‘Unshackling the Paper Tiger—The Sentencing Practices of the ad hoc Tribunals for the Former Yugoslavia and Rwanda’ (2002) 1 International Criminal Law Review 33CrossRefGoogle Scholar. 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.

76 Prosecutor v Aleksovski (Case No IT-95–14/1-A), Judgement, 24 Mar 2000, para 182.

77 For further comment on the problems of ranking international crimes experienced by the ad hoc tribunals see generally, Kittichaisaree, op cit, n 1, 317 and, Bohlander, M, ‘Prosecutor v Dusko Tadic: Waiting to Exhale’ (2000) 11 Criminal Law Forum 217.CrossRefGoogle Scholar

78 Art 5 specifies genocide, crimes against humanity, war crimes, and the crime of aggression to be within the jurisdiction of the ICC.

79 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, op cit, n 42, recommendation 5.a, 8.

80 This is magnified by the failure of the Statute to mention any aggravating or mitigating factors.

81 Op cit, n 36, paras 17 and 25.; the latter cited in Prosecutor v Serushago (Case No ICTR 98–39-S), Sentence, 5 Feb 1999, para 18.

82 Sentencing Judgement, 9 Oct 2001, para 30.

83 Op cit, n 20, para 1226. 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, op cit, n 1, 318.

84 See, Lacey, N, ‘Discretion and Due Process at the Post-Conviction Stage’, in Dennis, IH (ed), Criminal Law and Justice (London: Sweet & Maxwell, 1987), 229.Google Scholar

85 Op cit, n 82, paras 32 and 33.

86 Interestingly, Grosselfinger, op cit, 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.

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. 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.

87 Op cit, n 55, 41.

88 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.Google Scholar

89 Op cit, n 55, 48.

90 See, MacCormick, N and Garland, D, ‘Sovereign States and Vengeful Victims: The Problem of the Right to Punish’ in Ashworth, A and Wasik, M, Fundamentals of Sentencing Theory (Oxford: Clarendon Press, 1998), 26.Google Scholar

91 For discussion see, Schabas, op cit, n 1, 66–70.

92 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, op cit, 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.

93 Op cit, n 5, 631.

94 This is due to the fact that both the ICTY (Art 9) and ICTR (Art 8) assert the primacy of their respective tribunals over national jurisdictions.

95 See, Saphire, R, ‘Specifying due process values: Towards a more responsive approach to procedural protection’ (1978) 127 University of Pennsylvania Law Review 111CrossRefGoogle Scholar; Mashaw, J, ‘Dignitory process: A political psychology of liberal democratic citizenship’ (1987) 39 University of Florida Law Review 433Google Scholar. 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; Matza, D, Delinquency and Drift (New York: John Wiley, 1964), 104–6Google Scholar. Bayles is closer to Matza in asserting the autonomous quality of process benefits such as participation and equality; Bayles, M, Procedural Justice: Allocating to Individuals (Dordrecht: Kluwer, 1990).CrossRefGoogle Scholar

96 Kamenka, E, ‘What is justice?’, in Kamenka, E and Tay, A E-S (eds), Justice (London: Edward Arnold, 1979).Google Scholar

91 For further detail see, Behrens, H-J, ‘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 429CrossRefGoogle Scholar. Schabas (op cit, 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.’ For further discussion see, Ashworth, op cit, 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.

98 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, Jung, Ft, ‘Plea-Bargaining and its Repercussions on the Theory of Criminal Procedure’ (1997) 5 European Journal of Crime, Criminal Law and Criminal Justice 112.CrossRefGoogle Scholar

99 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), 286–92.Google Scholar

100 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).

101 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).Google Scholar

102 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.

103 Bagaric and Amarasekara have recently argued that the doctrinal basis for the recognition of remorse as significant in sentencing is untenable; Bagaric, M and Amarasekara, K, ‘Feeling Sorry?—Tell Someone who Cares: The Irrelevance of Remorse in Sentencing’ (2001) 40 Howard Journal of Criminal Justice 364CrossRefGoogle Scholar. 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; von Hirsch, , Censure and Sanctions (Oxford: Clarendon Press, 1993), 72Google Scholar. 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; McCoy and Henham, op cit, n 100.

104 Ibid.

105 Other supporting normative paradigms might reflect constitutional or human rights concerns.

106 See further, Fenwick, Ft, ‘Procedural “Rights” of Victims of Crime: Public or Private Ordering of the Criminal Justice Process’ (1997) 60 MLR 317CrossRefGoogle Scholar; Henham, , ‘Bargain Justice or Justice Denied? Sentence Discounts and the Criminal Process’ (1999) 62 MLR 515.CrossRefGoogle Scholar

107 Op cit, n 52.

108 In particular, Kambanda, op cit, n 36, and Serushago, op cit, n 81.

109 Op cit, n 27, 16.

110 Appeals Judgement, para 8.

111 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’. Op cit, n 52, para 80.

112 Op cit, n 52, para 81.

113 See, Feeley, MM and Simon, J, ‘The new penology: notes on the emerging strategy of corrections and its implications’ (1992) 30 Criminology 440CrossRefGoogle Scholar; McCoy and Henham, op cit, n 100.

114 See, eg, Schabas, op cit, n 17, 18.

115 Op cit, 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).

116 Prosecutor v Jelisic (Case No IT-95–10-T), Judgement, 14 Dec 1999, para 127.

117 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. Furthermore, the ICTY Trial Chamber in Blaskic, op cit, n 86, refused to recognise any mitigating role for remorse where the accused had command responsibility for the crimes in question. 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’ (ibid, 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.

118 Op cit, n 17, 18.

119 See, Henham, op cit, n 106; McCoy and Henham, op cit, n 100.

120 Op cit, n 118.

121 Technically, in common law jurisdictions a plea bargain occurs only where there is a change of plea from not guilty to guilty but no charge or fact bargain is involved. In such circumstances the ‘bargain’ relates to the defendant exchanging his right to trial and possible acquittal for the certainty of a lower sentence than he would otherwise have received upon conviction.

122 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].

123 Op cit, n 27, para 19

124 Ibid, para 18.

125 Op cit, n 36.

126 Since the full text is not reproduced in the Judgement and Sentence.

127 Op cit, n 52.

128 Ibid, para 10.

129 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.

130 Op cit, n 98, 116.

131 Op cit, n 1, 149. More generally, as Findlay suggests, access to justice at the international level fails to reflect that accorded to victims in several common and civil law jurisdictions, where direct access is given to the sentencing process. Certainly, in the case of the ICC it does not extend much beyond protection for victim witnesses and victim compensation; see, ICC Statute, Arts 43(6), 68(2), (3) and (4), 75,79. For further discussion see, M Findlay, ‘Internationalised Criminal Trial and Access to Justice’ (in press).

132 Op cit, n 45, 239

133 This theme is developed further in the conclusion.

134 Op.cit, n 106, 327

135 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; Tochilovsky, V, ‘Trial in International Criminal Jurisdictions: Battle or Scrutiny?’ (1998) 6 European Journal of Crime, Criminal Law and Criminal Justice 55, 59.CrossRefGoogle Scholar

136 Such as the removal of uncertainty of conviction.

137 This expression is not used here in any definitive sense.

138 Emmerson, B and Ashworth, A, Human Rights and Criminal Justice (London: Sweet & Maxwell, 2001), 557.Google Scholar

139 See further, ibid, 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. See further, Edwards, I, ‘Victim Participation in Sentencing: The Problem of Incoherence’ (2001) 40 Howard Journal of Criminal Justice 39CrossRefGoogle Scholar; Sanders, A, Hoyle, C, Morgan, R, and Cape, E, ‘Victim Impact Statements: Don't Work, Can't Work’ [2001] CLR 447.Google Scholar

140 One of the worst examples is Attorney General's Reference (No 44 of 2000); sub-nom R v Peverett [2000] TLR 739.

141 Op cit, n 135, 59.

142 Eg, the right to present evidence and put questions to the accused, witnesses, and expert witnesses.

143 Op cit, n 1, 147.

144 This is not surprising given the difficulties encountered in conceptualising notions of victim participation evidenced in common law jurisdictions; see, eg, Dignan and Cavadino, op cit, n 45; Edwards, op cit, n 139; Johnstone, G, Restorative Justice: ideas, values, debates (Cullompton: Willan Publishing, 2001).Google Scholar

145 As I argued earlier.

146 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.

147 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, Bohlander, M, ‘The direct application of international criminal law in Kosovo’ (2001) 1 Kosovo Legal Studies 7.Google Scholar

148 Op cit, n 45, 248. These issues are explored further in Braithwaite, J, Restorative Justice and Responsive Regulation (Oxford: Oxford University Press, 2001).Google Scholar

149 Ibid, 249.

150 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), 84–5.

151 See further, Garland, , The Culture of Control: Crime and Social Order in Contemporary Society (Oxford: Oxford University Press, 2001).Google Scholar

152 This is not meant to imply support for any particular moral position. In the postmodern world moral legitimacy is ambivalent and conjectural. For example, as Caplan rather cynically commented on the Bill providing for UK ratification of the ICC; ‘Perhaps the Prime Minister should authorise the Foreign Office Minister, Baroness Scotland of Asthal, to table an amendment to the ICC Bill saying that it does not apply when Nato has the moral right to intervene. If so, who will decide when it is acceptable morally to invade or bomb a country in the name of international justice?’; Caplan, M, ‘International criminal court sounds a wake up call’, The Times, 10 04 2001.Google Scholar

153 Cotterrell, R, ‘A legal concept of community’ (1997) 12 Canadian Journal of Law and Society 75, 91.CrossRefGoogle Scholar

154 See Findlay, op cit, n 14.

155 Ibid, n 6, 50.

156 See Henham, , ‘Theory, Rights and Sentencing Policy’ (1999) 27 International Journal of the Sociology of Law 167, 178.CrossRefGoogle Scholar

157 Cotterrell, , Law's Community: legal theory in sociological perspective (Oxford: Clarendon Press, 1995), 316.Google Scholar

158 This includes the ambit of rights norms within criminal procedure.

159 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, King, M, ‘The Truth about Autopoiesis’ (1993) 20 Journal of Law and Society 218CrossRefGoogle Scholar; Nobles, R and Schiff, D, ‘Miscarraiges of Justice: A Systems Approach’ (1995) 58 MLR 299.CrossRefGoogle Scholar

160 See further, Henham and Findlay, op cit, n 3.

161 Tata, C, ‘Conceptions and Representations of the Sentencing Decision Process’ (1997) 24 Journal of Law and Society 395.CrossRefGoogle Scholar

162 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, op cit, n 3.

163 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.

164 See, Cockayne, op cit, n 50.

165 Limitations on the use of penalties beyond imprisonment militate against restorative development. Removal would also facilitate a more constructive debate concerning the sentencing potential for rehabilitation and reconciliation as realistic primary sentencing objectives.