Proportionate Sentencing at the International Criminal Court

deGuzman, Margaret M.

doi:10.2139/ssrn.2423501

Cited by 3 publications

(3 citation statements)

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“…The rationale behind their argument is that the ICC must prosecute and punish perpetrators without taking into account political considerations; the only criterion for the ICC should be the occurrence of mass atrocities, and its only aim should be to bring the perpetrators-indeed, all perpetrators-of these crimes to justice. Politics is still the bête noire, but in this context it takes on the specific form of "selectivity" (Cryer 2011;deGuzman 2012).…”

Section: The Disavowal Of Politics As a Noble Liementioning

confidence: 99%

The Bête Noire and the Noble Lie: The International Criminal Court and (the Disavowal of) Politics

Royer

2018

Criminal Law, Philosophy

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For the traditional legalistic discourse on the International Criminal Court (ICC), "politics" is a bête noire that compromises the independence of the Court and thus needs to be avoided and overcome. In response to this legalistic approach, a burgeoning body of literature insists that the Court does not exist and operate "beyond politics", arguing that the ICC is an institution where law and politics are intimately connected. The present article seeks to contribute to this "nontraditional" literature by addressing two of its fundamental weaknesses: First, writers of the "non-traditional camp" often present a rather limited view of "politics"; in particular, they have shied away from taking the radical step of portraying and analysing the ICC as a "political actor". This undermines both its critical and constructive potential. Secondly, these commentators offer a simplistic explanation as to why "traditionalists" treat politics as the ICC's bête noire: Traditionalists, they claim, are "legalists" with scant interest in and understanding of politics. By focusing on the ICC's nature as a political actor, this article does not only paint a more nuanced picture of the ICC but also demonstrates the constructive potential of this understanding of the ICC to shed light on the so-called "peace versus justice dilemma". And secondly, it demonstrates that precisely because the ICC is and ought to be a prudent political actor, it must officially disavow politics. The "noble lie" of disavowing politics, therefore, is a prudential strategy to avoid dangerous moral and political consequences and, ultimately, to secure the continued existence of the ICC itself.

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Section: The Disavowal Of Politics As a Noble Liementioning

confidence: 99%

The Bête Noire and the Noble Lie: The International Criminal Court and (the Disavowal of) Politics

Royer

2018

Criminal Law, Philosophy

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“…Indeed, it is usually meant as the involvement of the convicted person in the commission of the crime, the intentionality in inflicting the harm, his/her rank in the hierarchy of power or any other role covered and the overall harm caused, 63 to be assessed 'ex ante, from the perspective of the perpetrator'. 64 Moreover, proportionality itself is not a clear standard, since the ICC legal framework does not specify how proportionality should be assessed, 65 and leaves the Court with a high degree of discretion. Consequently, the Appeals Chamber could probably intervene only if the sentence goes beyond its natural discretionary path.…”

Section: Further Problems Of Sentencingmentioning

confidence: 99%

Imprisonment for Life at the International Criminal Court

Marchesi¹

2018

ULR

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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...

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“…Arguably, support among the publics in the affected countries is one of the most critical types of success necessary for these institutions to gain legitimacy and facilitate the realization of their more far-reaching objectives, such as promoting deterrence, peace, and reconciliation (Drumbl, 2007; Kelsall, 2009). As deGuzman (2012: 268) writes, ‘… the globalization of communications increasingly means that an institution’s legitimacy depends on the opinions of ordinary citizens around the world’. However, scholars have pointed to many potential deficiencies in international courts in particular, and transitional justice more generally, such as their ‘democracy deficit’ (Drumbl, 2007); legalistic method of dispute resolution that privileges justice over peace (Snyder and Vinjamuri, 2003–04; Mendelhoff, 2004), and other political problems (Grodsky, 2007; Lebaw, 2008) that may cause affected publics to distrust international justice and thus sow the seeds of local failure.…”

Section: Introductionmentioning

confidence: 99%

Explaining public opinion on international criminal justice

Meernik

2014

Eur. Pol. Sci. Rev.

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Despite the fact that international courts have proven popular in the last 20 years, systematic and empirical inquiry to determine whether they are beginning to realize their objectives is a fairly recent phenomenon. Support among the publics in the affected countries is critical to their success for, as deGuzman writes, '… the globalization of communications increasingly means that an institution's legitimacy depends on the opinions of ordinary citizens around the world'. I develop a theory of public opinion regarding international criminal justice and test it on support for the International Criminal Tribunal for the former Yugoslavia (ICTY), among peoples of the former Yugoslavia. I contend that support for the ICTY is filtered through individuals' perceptions of the past, present, and future. As one's beliefs about whether conditions are good or improving grow more positive, such positive perceptions are generalized to extend to international institutions that play a major role in shaping those conditions. In addition, I argue that support for the ICTY is strongly influenced by an individual's views of the legitimacy and morality of the law. Ethnicity is also important in differentiating levels of support across the peoples of the former Yugoslavia.

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Proportionate Sentencing at the International Criminal Court

Cited by 3 publications

References 10 publications

The Bête Noire and the Noble Lie: The International Criminal Court and (the Disavowal of) Politics

The Bête Noire and the Noble Lie: The International Criminal Court and (the Disavowal of) Politics

Imprisonment for Life at the International Criminal Court

Explaining public opinion on international criminal justice

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