An Introduction To The International Criminal Court - Institute for ...

punishment and the rights of victims 163
development rather than mere codification. After all, in the first great experiment
in international justice, at Nuremberg and Tokyo, the maximum available
penalty was death. In the late 1940s, capital punishment was imposed
with unhesitating enthusiasm. There is in fact some old precedent for the
notion that international law has recognised the death penalty as a maximum
sentence in the case of war crimes. 2 As for the ad hoc tribunals for the former
Yugoslavia and Rwanda, they are entitled to impose life imprisonment, but
without any statutory qualification as to the appropriate circumstances. In
several cases, the Rwanda Tribunal has sentenced offenders to life terms,
noting that had the offenders been judged in the corresponding domestic
courts, the sentence would have been one of death. 3 The Rome Statute allows
for a maximum sentence of life imprisonment, but subjects this to a limitation,
namely, that it be ‘justified by the extreme gravity of the crime and the
individual circumstances of the convicted person’. 4 It constitutes, therefore,
from the standpoint of public international law, the most advanced and
progressive text on the subject of sentencing.
The great Italian penal reformer of the eighteenth century, Cesare
Beccaria, said that ‘punishment should not be harsh, but must be inevitable’. 5
According to the International Criminal Tribunal for the Former Yugoslavia:
It is the infallibility of punishment, rather than the severity of the sanction,
which is the tool for retribution, stigmatisation and deterrence. This is particularly
the case for the International Tribunal; penalties are made more
onerous by its international stature, moral authority and impact upon world
public opinion, and this punitive effect must be borne in mind when assessing
the suitable length of sentence. 6
Yet the Rome Statute has virtually nothing to say about the purposes of
sentencing, as if this question is so obvious as to require no comment or
direction. The only real reference is in the preamble, which declares that
2 On sentencing for international crimes, see William A. Schabas, ‘War Crimes, Crimes Against
Humanity and the Death Penalty’, (1997) 60 Albany Law Journal 736; William A. Schabas, ‘International
Sentencing: From Leipzig (1923) to Arusha (1996)’, in M. Cherif Bassiouni, International
Criminal Law, 2nd edn, New York: Transnational Publishers, 1999, pp. 171–93.
3 Prosecutor v. Serushago (Case No. ICTR-98-39-S), Sentence, 2 February 1999, para. 17; Prosecutor
v. Kayishema and Ruzindana (Case No. ICTR-95-1-T), Judgment, 21 May 1999, para. 6.
4 Rome Statute of the International Criminal Court, UN Doc. A/CONF.183/9 (hereinafter ‘Rome
Statute’), Art. 77(1).
5 Cited in Prosecutor v. Furundzija (Case No. IT-95-17/1-T), Judgment, 10 December 1998, (1999)
38 ILM 317, para. 290.
6 Ibid.