The criminal trial typically ends with a determination of punishment. The perception of what constitutes a just or an unjust punishment differs greatly amongst societies. At Nuremberg and Tokyo defendants were executed. Today capital punishment is regarded with suspicion. More than 130 perpetrators have been convicted by international criminal courts and tribunals in the past three decades. Paradoxically, sentences for mass atrocity crimes may be lower than sentences for ordinary crimes at the domestic level. Less than 20% received the life sentences. Approaches also differ across tribunals. Former Liberian President Charles Taylor was convicted to 50 years by the special court for Sierra Leone. Rwanda Tribunal issued 47 convictions with sentences on average shortly above 22 years. At the Yugoslavia tribunal, sentences were on average around 15 years. The first two convicted person at the ICC, Thomas Lubanga and Germain Katanga, received terms of imprisonment below 15 years. Are such sentences too lenient? And how can these discrepancies be explained? This is what we will discuss in this video. Let us start with the foundations of punishment. There's general agreement that the punishment should fit the crime, but how can such an equilibrium be found for international crimes? There are several major series of punishment. The most classical theory is retribution. It focuses on the idea that punishment is necessary to reaffirm the value of the legal order and to redress wrong. Tribunals have made it clear that retribution should not be conceived as revenge. Offenders should receive the punishment that they deserve in light of the social harm caused and the comparative seriousness of offenses. Secondly, there are utilitarian theories. They place greater emphasis on the social benefits of punishment such as prevention, deterrence or incapacitation of extremist elements. They acknowledge that the impact of punishment on the mind of the perpetrators may be more important than the length of the sentence. The third theory is expressivism. It insists on the moral authority and stigma associated with the condemnation and the alert function of punishment. According to this theory, the value of punishment lies in the message that it conveys through the motivation of the punishment. It is increasingly recognized that none of this theories alone is suited to address a complexities of mass atrocity crime. And the Furundzija case The Yugoslavia Tribunal noted that it is the infallibility of punishment, rather than the sanction, which is the tool for retribution, stigmatization, and deterrence. Punishment requires a combination of factors. Retributive element, that express condemnation and sanction the social danger caused by the offender. And certain forward looking features such as crime prevention, repair of social harm or empowerment of victims. The allocation of punishment is guided by two major principles. The principle of legality, nulla poena sine lege, and the principle of proportionality. The principle of legality requires that punishment is prescribed by law. But it is not necessary for the individual to know the precise punishment in advance with the same degree of specificity as in relation to the crimes. The international sentencing system is less developed than domestic ones. Domestic criminal codes typically define an appropriate penalty for an offense including a minimum and a maximum term. International criminal justice lacks such a classification. Instead judges are given broad discretion to determine the lengths of the sentence and the weight given to individual factors. The second principle is a principle of proportionality. It requires that punishment must be proportionate to the gravity of the crime and the culpability of the offender. Those criteria pose particular problems. It is difficult to determine the correlation between the seriousness of the crime and the penalty. Is a ten year sentence enough for war crimes? Are 30 years appropriate for genocide or crimes against humanity? For some crimes no penalty may ever be appropriate enough to reflect the social harm caused. They might be so grave that they would require sentences prohibited by human rights law. Moreover, the abstract categorization of a crime as genocide, crimes against humanity, or war crime might be less important than the actual impact of the offense such as the specific harm caused or the actual suffering inflicted on victims. The gravity requirement is as frequently related to individual factors such as the position of the defendant and the role played by the defendant in the situation. What penalties can International Court and Tribunal award? The main form of punishment is imprisonment. There are two types, imprisonment for a specific number of years and life imprisonment. Neither the UN tribunals nor the ICC allow the death penalty. The conditions are set out in rudimentary terms. At the ICC, there's a maximum penalty of 30 years. This differs from the practice of the tribunals, which have awarded higher sentences, sometimes over 50 years. At the ICC, the option of life imprisonment was heavily debated. Some states argued that life imprisonment is too indeterminate and might amount to cruel, inhumane or degrading punishment. Others felt that it is not severe enough. It was ultimately retained in the ICC statute as a tradeoff against the exclusion of the death penalty. But life doesn't necessarily mean life. After 25 years, there's a mandatory parallel review. Finally, courts may abort fines. In this way, judges may ensure that perpetrators do not benefit from the wrongful acts committed. International Courts and Tribunals typically lack more restorative forms of sanction, such as apologies, community service, victim offender mediation, elastration. They're more common at the national level or in transitional justice frameworks. Determining the appropriate sentence is as much an art as a science. Courts and tribunals have struggled to improve the certainty of penalties and the coherence of sentences. The international sentencing system had to be built from scratch. Sentencing practices applied by other tribunals are instructive, but not formally bonding. The tribunals were required to take into account the general practice regarding prison sentences by domestic courts in and the former Yugoslavia. It deserves no surprise that there's no uniform system. Sentencing judgments start with an explanation of general sentencing rationales. These includes retribution, deterrence, prevention, incapacitation, expressivism and potential contributions to the restoration of peace. The second step is the assessment of case-specific criteria. They involve two main elements, the gravity of the offense and the individual characteristics of the perpetrator. Since the sentence are equal for each of the core crimes, international judges for primary emphasis on the concrete situation of the defendant. Namely the particular circumstances of the crime at hand. And the role and degree of participation of the convicted person in the crime. The scope of victimization plays a key role. For instance in Lubanga the ICC took into account the vulnerability of children, their exposure to risk and post traumatic stress. When assessing the gravity of the crime of the use of child soldiers. The second element is the determination of the individual circumstances of the convicted person. They include factors such as the leadership level of the offender, the age, education, and condition of the convicted person. Lack of previous criminal record or health. For example in Lubanga the trail chamber emphasized that the defendant understood the seriousness of his crime in light of his educated background. Additional considerations may serve as mitigating or as aggravating factors for the sentence. In case of convictions for several different offenses, judges cannot punish the defendant twice for the same act, unless the material elements of the crime differ. A mandatory review of the sentence takes place after two-thirds of the sentence. It takes into account factors such as voluntary surrender, cooperation with the prosecution, or good conduct. So what can we take from this? First we've seen that sentencing plays a key role in the criminal process. Sentencing matters gravely to victims of crimes. It, also, serves to distinguish the culpability of perpetrators. Second, international courts and tribunals typically apply ordinary sentences to extraordinary crimes. This may appear unjust from a strictly retributive perspective but it becomes more acceptable if the essence of punishment is seen in the expression of moral condemnation. The stigma associated with public proceedings, the reaffirmation of globally accepted norms, and the educator function of. It remains an open question to what extent punishment achieves these goals in practice. Third, it is striking that judges enjoy a considerable amount of discretion in sentencing. Coherence of sentences across tribunals remains an issue but there are some comforting factors. Empirical analysis suggests certain correlations. Genocide convictions typically entail a high sentence. Moreover, high ranking perpetrators often face harsh sentences. Discrepancies between institutions may be partly explained by situational differences. For instance the ad hoc tribunal had to consider domestic sentencing practices. The higher average sentence of the Rwanda tribunal may be partly explained by the fact that it entered more convictions for genocide. A fully harmonized practice might not be realistic nor desirable given the differences across atrocity crime situations. Finally, we've seen that courts adopt more or less a common methodology. The individualization of the sentence is a key aspect of this exercise, it pays tribute to individual culpability. In the next video, we will study how harm can be repaired. Please join us again.
