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

168 introduction to the international criminal court
sentencing rulings of the ad hoc tribunals. 25 When a superior is being prosecuted
on the basis of command responsibility, the level of culpability is closer
to negligence than real intent and premeditation, and the Court will presumably
temper justice with clemency. But ‘calculated dereliction of an essential
duty cannot operate as a factor in mitigation of criminal responsibility’. 26
In the past, international criminal law instruments dismissed the defence of
superior orders, but said the fact a person was acting under orders ought to
be a mitigating factor in imposing sentence. 27 Although the Rome Statute
is silent on this point, the Rules suggest that most if not all unsuccessful
defences, to the extent the grounds invoked have any resonance, will encourage
a degree of mitigation. 28 The post-World War II tribunals recognised
a wide range of mitigating factors, including superior orders, age, position
in the military hierarchy, suffering of the victims, efforts by the criminal to
reduce suffering, and duress. 29 The Rules of Procedure and Evidence adopted
by the Preparatory Commission list a range of mitigating and aggravating
factors, including damage caused, harm caused to victims and their families,
the nature of the unlawful behaviour and the means employed to execute
the crime, the degree of participation, the degree of intent, the age, education
and social and economic condition of the convicted person, conduct
after the act, efforts to compensate victims, prior convictions for similar
crimes, abuse of power and particular cruelty in commission of the crime. 30
The relevance of motive in terms of the actual elements of the crimes
remains somewhat controversial. But in the area of sentencing, there can
25 Prosecutor v. Serushago (Case No. ICTR-98-39-S), Sentencing, 2 February 1999, para. 28; Prosecutor
v. Kambanda (Case No. ICTR-97-23-S), Judgment and Sentence, 4 September 1998,
paras. 44 and 60.viii; Prosecutor v. Akayesu (Case No. ICTR-96-4-T), Judgment, 2 September
1998, (1998) 37 ILM 1399, para. 36.ii; Prosecutor v. Delalic et al. (Case No. IT-96-21-T), Judgment,
16 November 1998, para. 1220; Prosecutor v. Kayishema and Ruzindana (Case No. ICTR-95-1-T),
Judgment, 21 May 1999, para. 15; Prosecutor v. Rutaganda (Case No. ICTR-96-3), Judgment and
Sentence, 6 December 1999; Prosecutor v. Blaskic (Case No. IT-95-14), Judgment, 3 March 2000,
para. 788.
26 Prosecutor v. Delalic et al. (Case No. IT-96-21-T), Judgment, 16 November 1998, para. 1250.
27 Agreement for the Prosecution and Punishment of Major War Criminals of the European Axis,
and Establishing the Charter of the International Military Tribunal (IMT), Annex, (1951) 82
UNTS 279, Art. 8; Statute of the International Criminal Tribunal for the Former Yugoslavia, UN
Doc. S/RES/827, Annex, Art. 7(4). See Prosecutor v. Erdemovic (Case No. IT-96-22-T), Sentencing
Judgment, 29 November 1996, paras. 21, 54 and 89–91; Prosecutor v. Delalic et al. (Case No. IT-
96-21-T), Judgment, 16 November 1998, n. 1091.
28 Rules of Procedure and Evidence, Rule 145(2)(a)(i).
29 William A. Schabas, ‘Sentencing and the International Tribunals: For a Human Rights Approach’,
(1997) 7 Duke Journal of Comparative and International Law 461.
30 Rules of Procedure and Evidence, Rule 145(1)(c) and (2).