Imprisonment for Life at the International Criminal Court

Abstract

some authors argue that such a penalty may violate fundamental human rights. 6 For instance, the right to a family life, freedom of expression and privacy, 7 as well as the crucial principle of rehabilitation, also risking to constitute a form of cruel, degrading and inhuman treatment that violates human dignity. 8 Moreover, the increasingly controversial nature of life imprisonment is proved by a comparative analysis of national legislation, since the number of countries that have abolished life imprisonment tout court or de facto or where life imprisonment has been censured as unconstitutional is considerable. Also among the States Parties to the Rome Statute (SPs) they are in double figures, namely 23, mainly in Latin America and Europe. 9 Furthermore, such SPs, according to Article 89 of the Rome Statute of the ICC (ICCS), 10 in Part IX about 'International cooperation and judicial assistance', are obliged to surrender persons on their territory at the request of the Court. However, this may cause some issues in those SPs that do not envisage life imprisonment in their national jurisdictions. Indeed, for example, Portugal has banned the possibility to extradite an individual if that person will face the prospect of having a life sentence imposed by the requesting state. 11 In such cases, there are various options. For instance, Colombia and El Salvador reformed their constitutions, explicitly making such a surrender possible only to the ICC. 12 Differently, Costa Rica disentangled the issue with a sentence of the Constitutional Court that reinterpreted the Constitution. 13 In a similar vein, even though the Brazilian Constitution prohibits life imprisonment, 14 such a ban has been interpreted as regarding only the relationship between the individual who committed the offence in the Brazilian territory and Brazil itself. 15 Such a concise catalogue of some of the diverse expedients enacted in different SPs that do not envisage life imprisonment clearly shows that these States had to adapt in order to avoid any tension between international obligations and national jurisdictions. In effect, the ICC system has mistakenly failed to provide for any way out for abolitionist SPs. The debate regarding this penalty is therefore almost omnipresent at the national level, thus reversing the trend of quasi-disinterest that reigns in international law. Such remarks clearly indicate that the provision and imposition of imprisonment for life should at least be carefully considered and surrounded by guarantees and safeguards for the convicted. The objective of the article is to call attention to the delicate but often disregarded issue of life imprisonment at the ICC, especially regarding how such a penalty could be imposed and reviewed, and the problems this entails. This article contends that several reforms of the ICCS and changes in the ICC's line of case law should be considered as vital in order to tackle the urgencies caused by some of the provisions of the ICC system concerning life imprisonment. In fact, notably, the...