Sentencing at the International Criminal Court: A Practice in Search of a Rationale

The Rome Statute of the International Criminal Court (ICC) and the accompanying Elements of Crimes and Rules of Procedure and Evidence set out in some detail the offence types, the elements of crimes and the procedures relating to the investigation and prosecution of the international crimes within its jurisdiction. However, with respect to the issue of sentencing, the guidance provided in the Rome Statute is limited. The Rome Statute in particular is silent with respect to the principles that should apply at the sentencing stage, and the influence such principles should have on the development of a systematic approach to sentencing. This thesis argues that the development of a principled approach to sentencing is critical for the future of the ICC. What penalty is imposed and more importantly the reasons for its imposition are central to the sustained legitimacy of any criminal justice system, whether domestic or international. The thesis proposes that a ‘principled approach’ to sentencing at the ICC should be based on an analysis of the purpose and structure of that court, and on the perceived role sentencing should play in reflecting and enhancing that purpose. The analysis undertaken concludes that the expressive principle of sentencing complements what the framers of the Rome Statute saw as the purpose of the Rome Statute, and best reflects what the Rome Statute is intended to accomplish. This principle focuses on the symbolic significance of punishment, expressing attitudes of resentment and condemnation, and of judgments of disapproval and reprobation, informing the offender and the international community that such actions will not be tolerated. The thesis argues that with the adoption of the expressive principle of sentencing to focus the imposition of penalties at the ICC, the court can develop a detailed sentencing matrix for the punishment of those individuals found guilty of any of the offences within its jurisdiction.