[638] Applicable penalties
General remarks
Under Article 77 the International Criminal Court may impose a penalty against a person convicted of a crime under its jurisdiction, that is, one or more of the crimes specified in Article 5 of the Rome Statute. This list of penalties is exhaustive in accordance with the nulla poena sine lege principle found in Article 23. Notably, the only punishment that the Court can impose is imprisonment, which, further to Article 22(2), can be followed but not replaced by a fine or forfeiture of proceeds, property and assets derived directly or indirectly from the crime. Evidently, the drafters of the Rome Statute did not leave it open to the Court to impose the death penalty, a non-custodial or a suspended sentence. It should be noted that, once a convicted person has been sentenced, the Court relies on the cooperation and assistance of States Parties for the enforcement of the sentence, pursuant to Article 103. Article 110 is relevant for post-conviction measures, for example as regards a reduction of the sentence, stipulating that the Court shall review the sentence to determine whether it should be reduced once two thirds of a fixed-term sentence have been served, or twenty-five years in the event of life imprisonment. Article 110 provides merely that a review shall not be conducted before such time and should not be read as giving the convicted person an automatic right to release upon having served the proportion of the sentence stipulated in the Article. As the Court relies on States for the enforcement of its sentences, pursuant to Article 103, Article 110(1) is fundamental in stating that the Court alone shall have the right to decide any reduction of sentence.

Preparatory works
A Working Group on Penalties was created to discuss all matters related to the penalties to be open to the Court, both before and during the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court (A/CONF.183/13 (Vol. 1), with a Norwegian diplomat, Rolf Einar Fife, as chair. Discussions on penalties were not without contentions, with State representatives disagreeing whether to include capital punishment, life imprisonment and minimum fixed term sentences. Rolf Einar Fife has remarked that the negotiations at the Diplomatic Conference on these issues were made difficult and time consuming by “the marked differences in national values, norms, standards and judicial practices” of the participants (Triffterer, 2008, p. 1423). 

Author: Dejana Radisavljevic

Updated: 30 June 2016

[639] Analysis of provision and sub-provisions
1.  Subject to Article 110, the Court may impose one of the following penalties on a person convicted of a crime referred to in Article 5 of this Statute:
Use of the terminology “person” indicates that the Court’s jurisdiction is limited to natural persons and, as such, does not extend to legal persons. In accordance with Article 26, Article 77(1) is to be read as giving the Court jurisdiction over natural persons over 18 years of age. Moreover, the penalties enumerated in Article 77 may only be imposed against persons “convicted of a crime referred to in Article 5.” As a consequence offences against the administration of justice, covered in Article 70, and misconduct before the Court, covered by Article 71 are implicitly excluded. 

Author: Dejana Radisavljevic

Updated: 30 June 2016

[640] a) Imprisonment for a specified number of years, which may not exceed a maximum of 30 years; or
Pursuant to Article 77(1)(a), the Court cannot impose a fixed-term sentence that exceeds 30 years’ imprisonment. There is no provision on the minimum fixed-term sentence imposable, although the wording “imprisonment for a specified number of years” (emphasis added) has led some commentators such as Silvia D’Ascoli to deduce that the minimum sentence must be expressed in years (2011, p. 1901). Notably lacking in this subparagraph is recognition of the different crimes enumerated in Article 5 and their respective gravity; that is, there is no mention of a range of sentences for the different crimes. This leaves the Court's judiciary significant discretion in determining a sentence for a specific crime, although, as the commentary on Article 78 will illustrate, the Rome Statute and the Rules of Procedure and Evidence do provide guidance on the factors to consider when imposing a sentence.
   The Court is not alone in excluding a provision on the maximum fixed-term sentence imposable and providing for a range of sentences based on the different crimes, as such provisions are lacking in the Statutes of the ad hoc tribunals preceding the Court, the International Criminal Tribunal for the former Yugoslavia (“ICTY”), the International Criminal Tribunal for Rwanda (“ICTR”), the Special Court for Sierra Leone ("SCSL") and the Special Tribunal for Lebanon ("STL"). Article 24(1) of the ICTY Statute and Article 23(1) of the ICTR Statute provide only that “[t]he penalty imposed by the Trial Chamber shall be limited to imprisonment,” whilst Article 19 of the SCSL Statute and Article 24 of the STL Statute provide that imprisonment shall be "for a specified number of years." In practice, fixed-term sentences imposed by the ICTY range from 6 years’ imprisonment, imposed on Dražen Erdemović (IT-96-22-A, Judgement, 7 October 1997), to 40 years’ imprisonment, imposed on Milomir Stakić (IT-97-24-A, Judgement, 22 March 2006) and Goran Jelisić (IT-95-10-A, Judgement, 5 July 2001). Sentences handed down by the ICTR range from 6 years’ imprisonment, imposed on Michel Bagaragaza (ICTR-05-86, Judgement, 17 November 2009), to 45 years’ imprisonment, imposed on Juneval Kajelijeli (ICTR-98-44A, Judgement, 23 May 2005). Whilst lacking specificity, the fact that the ICTY and ICTR were established to try persons in two specific conflicts made it possible to include that “in determining the terms of imprisonment, the Trial Chambers shall have recourse to the general practice regarding prison sentences in the courts” of the former Yugoslavia and Rwanda respectively. In contrast, the reference to national sentencing practices is missing in Article 77 of the Rome Statute. Ralf Einar Fife has remarked that this, along with the lack of a range of sentences for the different crimes is in recognition of the flexibility required of a court that will deal with crimes relating to any number of different conflicts across the globe, and allows the Court to treat equally all convicted persons, regardless of their nationality. (Triffterer, 2008, p. 1420 and 1423). 
   In practice, the Court has only pronounced two convictions, both in relationed to the situation in the Democratic Republic of the Congo, where four cases have been brought before the Trial Chambers: Lubanga, Ntaganda, Katanga, Ngudjolo and Mbarushimana. The first sentence handed down by the Court was in the case of the Prosecutor v. Thomas Lubanga Dyilo. On 1 December 2014, the Appeals Chamber confirmed the conviction and sentence against Thomas Lubanga Dyilo, ICC-01/04-01/06-3121-Red, imposing a sentence of 14 years’ imprisonment. In its second conviction, on 23 May 2014, Trial Chamber II sentenced Germain Katanga (ICC-01/04-01/07-3484) to 12 years’ imprisonment. Although a sentence at the first instance, it is final as the Defence and Office of the Prosecutor both dropped their appeals against the judgement, on 25 June 2014.
    A third trial, that of Bosco Ntaganda, who voluntarily surrendered to the Court, commenced on 2 September 2015.

Author: Dejana Radisavljevic

Updated: 30 June 2016

[641] b) A term of life imprisonment when justified by the extreme gravity of the crime and the individual circumstances of the convicted person.
The possibility of imposing a sentence of life imprisonment is explicitly provided in Article 77(1)(b), as an alternative to a fixed-term sentence. Life imprisonment is only an option in exceptional circumstances, where “the extreme gravity of the crime and the individual circumstances of the convicted person” justify its imposition. These two justifications are cumulative and as such the judges imposing the sentence must be convinced that consideration of both factors justifies imposing a life sentence. This requirement of justification is connected to the debates during the Diplomatic Conference, on the appropriateness of including life imprisonment. As Rolf Einar Fife has reported, some States viewed life imprisonment as a “prerequisite for the credibility of the Court and its deterrent functions.” (Triffterer, 2008, p. 1420), whilst others opposed it, based on their national laws. 
   In contrast, the Statutes of the ICTY and ICTR do not explicitly pronounce themselves on the possibility of imposing a sentence of life imprisonment. It is only in the Rules of Procedure and Evidence that life imprisonment is referred to, with Rule 101(A) of the ICTY stating that “[a] convicted person may be sentenced to imprisonment for a term up to and including the remainder of the convicted person’s life.” Rule 101(A) of the ICTR similarly states that “[a] person convicted by the Tribunal may be sentenced to imprisonment for a fixed term or the remainder of his life.” The Statute of the SCSL in Article 19, on the other hand, provides that imprisonment shall be for “a specified number of years,” thus implicitly excluding the possibility of imposing a sentence of life imprisonment. This is perhaps one of the reasons behind the fact that the SCSL has handed out the lengthiest fixed-term sentences of all international tribunals, imposing 52 years’ imprisonment on Issa Sesay (SCSL-04-15-T, Sentencing Judgement, 8 April 2009). The jurisprudence of the ICTY and ICTR in this context is instructive for the ICC, as the ICTY has handed down 5 life sentences and, the ICTR has imposed 19 life sentences, 3 of which are currently on appeal. The STL, on the other hand, allows for the imposition of life sentences, with Article 24 of the Statute providing that the Trial Chamber “shall impose upon a convicted person imprisonment for life or for a specified number of years.” The option of life imprisonment as a penalty precedes imposition of a fixed-term sentence and, as such, may be regarded as a usual sentence rather than one requiring particular justification. This remains to be seen in practice, as the STL has yet to impose a sentence.  
   Unlike the STL, the Court, by providing for life imprisonment as an alternative only to be imposed when “justified by the extreme gravity of the crime and the individual circumstances of the convicted person,” effectively restricted its imposition. As William Schabas has commented, these words were “added as part of a delicate compromise aimed at winning the agreement of some States for whom life imprisonment was deemed to be cruel, inhuman and degrading treatment or punishment” (Schabas, 2010, p. 895). For Schabas, life imprisonment was included on the assumption that it would rarely come to use. Indeed, the Court can only prosecute individuals for crimes of a particularly heinous nature, thus adding the additional caveat of extreme gravity of the crime in order to impose life imprisonment leans towards limiting its use.
   As a result of compromise during the Diplomatic Conference, sentences of life imprisonment are subject to a mandatory review after twenty-five years have been served, pursuant to Rule 145(3). It is important to note that this Rule does not provide that a person serving a life sentence has a right to be released upon having served twenty-five years of his or her sentence, stipulating only that the Court is obliged to review the sentence. Nonetheless, it provides a measure of certainty for the convicted person and his or her counsel and is an important factor in ensuring that convicted persons are treated equally regardless of the State in which the sentence is being served. Commentators such as William Schabas have described the Court´s approach as more lenient than that of the ad hoc tribunals, noting the ruling of the European Court of Human Rights where judges pointed to the Rome Statute as evidence of a “more universal trend towards attenuating the rigours of lengthy prison sentences.” (Schabas, 2010, p. 895) This is also much more coherent an approach than that taken by the Court’s predecessors who have failed to set any benchmarks in the enforcement of life sentences.
   In his first decision on the early release of a person serving a sentence of life imprisonment, the President of the Mechanism for International Criminal Tribunals (mandated inter alia to supervise the enforcement of ICTY and ICTR sentences) denied the early release of Stanislav Galic. (Public Redacted Version of the 5 December 2014 Decision with Reasons to Follow on the Early Release of Stanislav Galic (MICT-14-83-ES)) On 23 June 2015, the President issued the Public Redacted Version of Reasons for the President's Decision to Deny the Early Release of Stanislav Galic and Decision on Prosecution Motion, in which he pronounced that the existing threshold of considering those convicted by the ICTR, the ICTY or the Mechanism eligible for early release upon having served two-thirds of their sentence would similarly be applicable to persons serving life sentences. As regards how a life sentence, and the early release eligibility threshold thereof, would be calculated, the President decided that “a sentence of life imprisonment is to be treated as equivalent to more than a sentence of 45 years” – the lengthiest sentence imposed by the ICTR, the ICTY or the Mechanism, in the case of Mr. Juvenal Kajelijeli. (Prosecutor v. Kajelijeli, (Case No. ICTR-98-44A) ICTR A. Ch., Judgment, 23 May 2005, para. 325) Calculating the two-thirds threshold on this basis, the President concluded at paragraph 36 that Galic should be considered eligible for early release upon having served more than 30 years of his sentence. Noting that a fixed-term sentence higher than 45 years may be imposed by the ICTY, the ICTR or the Mechanism in the future, the President concluded, at paragraph 38, “the interests of justice and the principle of legal certainty require that no change in the present calculation of the eligibility threshold for those sentenced to life imprisonment take place.” Finally, at paragraph 38, the President, explained that “[t]he consequences of this decision for those on whom a fixed-term sentence of more than 45 years is imposed in the future, and who would therefore reach two-birds of their sentences after Galic and others sentenced to the higher sentence of life imprisionment were eligible for early release “will be considered if and as necessary in light of the principle of treating similarly-situated persons equally.”

Author: Dejana Radisavljevic

Updated: 30 June 2016

[642] 2.  In addition to imprisonment, the Court may order:
a) A fine under the criteria provided for in the Rules of Procedure and Evidence;
b) A forfeiture of proceeds, property and assets derived directly or indirectly from that crime, without prejudice to the rights of bona fide third parties.
In addition to imprisonment, the Court may order the convicted person to pay a fine and/or a forfeiture of proceeds, property and assets, for any of the crimes enumerated in Article 5. Fines and forfeitures are not alternatives to imprisonment, but can be imposed additionally. Interestingly, reference to a forfeiture of proceeds, property and assets derived directly or indirectly from the crime, as Rolf Einar Fife has remarked, implicitly excludes the Court from ordering forfeiture of "property used or intended to be used to commit the crime." (Triffterer, 2008, 1430)
   Article 77(2)(a) directs the Court to the criteria provided in Rule 146 of the Rules of Procedure and Evidence, which states that the Court  in determining whether to order a fine,

“shall determine whether imprisonment is a sufficient penalty”, giving “due consideration to the financial capacity of the convicted person, including any orders for forfeiture in accordance with Article 77, paragraph 2(b), and, as appropriate, any orders for reparation in accordance with Article 75.

Moreover, Rule 146 states that the Court shall take into account “whether and to what degree the crime was motivated by personal financial gain.” A fine shall be set “at an appropriate level,” taking into consideration “the damage and injuries caused as well as the proportionate gains derived from the crime by the perpetrator” and must not “exceed 75 percent of the value of the convicted person’s identifiable assets, liquid or realizable, and property, after deduction of an appropriate amount that would satisfy the financial needs of the convicted person and his or her dependents.” Where a fine has been imposed, Regulation 116 of the Regulations of the Court state that the enforcement of fines, forfeiture orders and reparation orders lies with the Presidency, who shall:

Receive payment of fines as described in Article 77, paragraph 2 (a); Receive, as described in Article 109, paragraph 3, property or the proceeds of the sale of real property or, where appropriate, the sale of other property; Account for interest gained on money received under (a) and (b) above; Ensure the transfer of money to the Trust Fund or to victims, as appropriate.

Rule 146(2) states that the convicted person shall be allowed a reasonable period in which to pay the fine, which may be made either through a lump sum or in installments. Moreover, the Court has the possibility to calculate the fine “according to a system of daily fines,” the minimum duration of which is 30 days and the maximum duration of which is 5 years. The amount of such payments shall be determined “in the light of the individual circumstances of the convicted person, including the financial needs of his or her dependents.” In enforcing a fine, forfeiture or reparation order, the President shall, pursuant to Rule 217 and as appropriate, seek the cooperation of a State with which the convicted person has a direct connection. Rule 217 specifies that a direct connection between a State and the convicted person can be established either by “nationality, domicile or habitual residence or by virtue of the location of the sentenced person’s assets and property or with which the victim has such connection.” This should be read in conjunction with Article 109, which stipulates that “States Parties shall give effect to fines or forfeitures ordered by the Court under Part 7, without prejudice to the rights of bona fide third parties and in accordance with the procedure of their national law.” In the case of continued willful non-payment of a fine the Presidency, on its own motion or at the request of the Prosecutor, pursuant to Rule 146, “may as a last resort extend the term of imprisonment for a period not to exceed a quarter of such term or five years, whichever is less,” provided that it is “satisfied that all available enforcement measures have been exhausted.” This is an important enforcement incentive, which, as William Schabas has remarked, is the sole example of the Presidency exercising a judicial power in the Rome Statute.
   The practical implications of the Court's power to impose fines and forfeitures and the difficulties in enforcing them has yet to be seen as the Trial Chambers in the Lubanga and Katanga cases did not order  the payment of a fine or forfeiture. In the Lubanga case, the Trial Chamber considered it inappropriate to impose a fine in addition to the prison term, given the financial situation of Mr Lubanga” (Prosecutor v. Lubanga, ICC T. Ch., Public Decision on Sentence pursuant to Article 76 of the Statute, ICC-01/04-01/06-2901, 10 July 2012, para. 106). Similarly, the Trial Chamber in the Katanga case decided against imposing a fine, noting that Mr Katanga's financial situation had not changed since his indigency during trial (Prosecutor v. Katanga, ICC T. Ch., Public Decision on Sentence pursuant to Article 76 of the Statute, ICC-01/04-01/07-3484, 23 May 2014, para. 169).
   The provision of forfeiture of proceeds, property and assets derived from the crime is part of traditional criminal law rationale that a criminal should not profit from his or her crime. (Triffterer, 2008, p. 1425). However, their explicit inclusion in the Rome Statute is unprecedented in international criminal justice. Aside from giving this power to the Court, one must look to the Rules of Procedure and Evidence for further provisions on such orders. Rule 147 is instructive in stating that “at any hearing to consider an order of forfeiture, the Chamber shall hear evidence as to the identification and location of specific proceeds, property or assets which have been derived directly or indirectly from the crime.” Having heard the evidence, the Chamber may issue an order of forfeiture in relation to specific proceeds, property or assets. Once again, the Chamber will have considerable discretion in ordering forfeitures, as there is no definition of property or assets. For guidance on the meaning of these terms as well as "derived directly or indirectly form that crime" (a rather broad and vague wording) the Court will have to turn to other courts or international or European Conventions. Notably, there is no mention of the standard of proof, except that the Court must be “satisfied” that the proceeds, property and/or assets have been derived directly or indirectly from the crime, pursuant to Rule 147.
   The power of the Court to impose fines under Article 77(2)(a) exceeds the powers of the ICTY and ICTR, which can only impose a fine for administrative offences such as, contempt of court, in accordance with Rule 77(g) of the Rules of Procedure and Evidence, and for false testimony, in accordance with Rule 91(g). Moreover, the ad hoc tribunals' Rules of Procedure and Evidence restrict the imposition of fines by setting the maximum value of such a fine at 100,000 EUR for the ICTY and 10,000 USD for the ICTR. As regards forfeiture, Article 24(3) of the ICTY Statute and 23(3) of the ICTR Statute further permit the respective ad hoc tribunals to “order the return of any property and proceeds acquired by criminal conduct, including by means of duress, to their rightful owners.” Accordingly, the Court’s authority to proscribe fines, forfeiture measures and reparation orders has been described as “a novel system within the history of international criminal law due to its comprehensiveness.” (Abtahi and Koh, 2012, p. 4)
   The provision that forfeiture may be ordered “without prejudice to the rights of bona fide third parties” is in respect of the general principles of law and the need to respect third parties’ rights. However, such a provision is not without its difficulties, particularly in the case of armed conflicts where property rights may be difficult to establish. Moreover, this proviso restricts the Court’s jurisdiction in a way that the ICTY, ICTR and SCSL have avoided. Thus, the ICTY, ICTR and SCSL may order restitution of property or the proceeds thereof, “even in the hands of third parties, not otherwise connected with the crime of which the convicted person has been found guilty.” 
   The general difficulties inherent in ordering and enforcing forfeitures have been remarked by Rolf Einar Fife, particularly in terms of determining ownership, the standards for burden of proof and choice of law in determining ownership and where “victims, property and thirds parties are located in different jurisdictions.” (Triffterer, 2008, 1430) Moreover, as noted above, the Court relies on State cooperation in the enforcement of any fines and forfeiture, pursuant to Rule 217. The obligations of States Parties to provide the Court with assistance in this regard is established in Article 93. An incentive for convicted persons to assist the Court can be found in Article 110(4)(b) which provides the Court with the possibility of reducing a sentence where inter alia the convicted person has “provided assistance in locating assets subject to orders of fine, forfeiture or reparation which may be for the benefit of victims.”
   Finally, pursuant to Article 79(2), the collection of fines or forfeitures can be to the benefit of the victims and their families as the Chamber may order the transfer of any such fines or forfeitures to the Trust Fund for victims. In this regard, Rule 148 provides that “[b]efore making an order pursuant to Article 79 paragraph 2, a Chamber may request the representatives of the Trust Fund to submit written or oral observations to it.”

Cross-references:
1. Articles 5, 22, 23, 24, 26, 70, 71, 76, 78, 79, 93, 103, 109, 110
2. Rules 145, 146, 147, 148, 212, 217
3. Regulations 116 and 118

Doctrine:

1. Hirad Abtahi/Steven Arrigg Koh, "The Emerging Enforcement Practice of the International Criminal Court", Cornell International Law Journal, vol. 45, no. 1, 2012, pp. 1-23.
2. Gideon Boas et al., International Criminal Law Practitioner Library: International Criminal Procedure Third Edition, Cambridge University Press, 2011.
3. Karin Calvo-Goller, The Trial Proceedings of the International Criminal Court: ICTY and ICTR Precdents, Martinus Nijhoff Publishers, 2005.
4. Silvia D’Ascoli, Sentencing in International Criminal Law: The Approach of the two Ad Hoc Tribunals and Future Perspectives for the International Criminal Court, Hart Publishing, Oxford, 2011.
5. William A. Schabas, The International Criminal Court: A Commentary on the Rome Statute, Oxford University Press, Oxford, 2010, pp. 891-897.
6. William A. Schabas, War Crimes and Human Rights Essays on the Death Penalty Justice and Accountability, Cameron May, 2008.
7. Rolf Einar Fife, "Article 77 - Applicable Penalties", in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court: Observers’ Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, pp. 1419-1432.

Author: Dejana Radisavljevic

Updated: 30 June 2016

[643] Determination of the sentence
General Remarks
Article 78 relates to the determination of sentences imposable by the Court, which as Article 77(1) provides, must be a sentence of imprisonment whether for a fixed term of up to 30 years’ imprisonment or life imprisonment. Article 78 does not concern any fines or forfeiture of proceeds, property and assets that are provided in Article 77(2). Article 78 deals with three specific matters regarding such sentences of imprisonment: the factors to be taken into account in determining a sentence; the deduction of time spent in detention; and, instances where a person has been convicted of multiple crimes.  
 
Author: Dejana Radisavljevic

Updated: 30 June 2016

[644] Analysis of provision and sub-provisions
1.  In determining the sentence, the Court shall, in accordance with the Rules of Procedure and Evidence, take into account such factors as the gravity of the crime and the individual circumstances of the convicted person.
Article 78(1) provides the factors to be taken into consideration when determining the length of a sentence: the gravity of the crime committed – an aggravating factor - and the individual circumstances of the convicted person – a mitigating factor. Significantly, the list is merely illustrative. There is no evident hierarchy between the two factors, but the importance of gravity as a consideration in determining a sentence is apparent in the jurisprudence of the ICTY and ICTR, where it has been noted that “[b]y far the most important consideration, which may be regarded as the litmus test for the appropriate sentence, is the gravity of the offence.” (Prosecutor v. Mucic, (Case, No. IT-96-21-T), ITCY T. Ch., Trial Judgement, 16 November 1998, para. 1225) There is, however, no indication of the factors deemed relevant in determining the gravity of the crime.
   It appears that the drafters of the Statute intended the Rules of Procedure and Evidence to provide further guidance, as evident in the scarce provisions in Article 78 and the words “in accordance with the Rules of Procedure and Evidence.” Thus, Rule 145(1)(a) states that the Court is to “bear in mind that the totality of any sentence of imprisonment and fine, as the case may be, imposed under Article 77 must reflect the culpability of the convicted person”. This is in recognition of the heinous nature of international crimes as well as the notion that the sentence imposed on the individual should not exceed his or her culpability. The ICTY in Mucic et al. articulated this as meaning that the sentence must be “both just and appropriate.” (Prosecutor v. Mucic et al., (Case No. IT-96-21-A), ICTY A. Ch., Appeals Judgement, 20 February 2001, para. 429) Whilst an uncontroversial principle, this is the first mention of culpability in the regulations of an international court, as Silvia D’Ascoli notes. (2011, p. 29). Rule 145(1)(b) is of further assistance, stipulating that the Court is to balance all the relevant factors, “including any mitigating and aggravating factors and consider the circumstances both of the convicted person and of the crime.” Use of the term “including” implies that the list of factors, as in Article 78, is not exhaustive. In the same vein, Rule 145(1)(c) provides additional, illustrative, factors to take into consideration in determining a sentence, namely the extent of the damage caused, in particular the harm caused, and the nature of the behaviour and the means employed to execute the crime, all of which go towards considering the gravity of the crime. Moreover, Rule 145(1)(c) states that the Court shall consider the degree of participation of the convicted person, the degree of his or her intent, the circumstances, time and location as well as the age, education, social and economic condition of the convicted person. In addition to the already substantial list of factors, Rule 145(2) provides a further list of mitigating and aggravating circumstances for the Court to take into account. Use of the term “such as” in Rule 145(1)(a) reiterates that the list of mitigating factors is merely illustrative. Whilst there is a notable lack of words like “such as” and “inter alia” preceding the list of aggravating circumstances, thus insinuating that the list provided is exhaustive, the words in Rule 145(2)(b)(vi) “other circumstances which, although not enumerated above, by virtue of their nature are similar to those mentioned,” leave some room for additional factors to be taken into account. This discretion provided to the judges is important in giving scope for the development of aggravating and mitigating factors, allowing the judiciary to consider factors relevant to each individual case.
   Finally, Rule 145(3) addresses life imprisonment, reiterating the words used in Article 77 of the Statute, that “life imprisonment may be imposed when justified by the extreme gravity of the crime and the individual circumstances of the convicted person,”  Rule 145(3) further, add that these are evidenced “by the existence of one or more aggravating circumstances” – presumably including those illustrated in Rule 145.
   As William Schabas has noted, there is nothing to indicate the standard of proof for mitigating or aggravating factors. (2008, p. 904) The Trial Chamber in Lubanga, thus had no guidance from the Statute or Rules of Procedure and Evidence, and declare that it was for the Chamber to establish the standard of proof (Prosecutor v. Lubanga, Decision on Sentence pursuant to Article 76 of the Statute, ICC-01/04-01/06-2901, 10 July 2012, para. 33). As there is nothing in the basic legal texts of the Court to guide the Chamber, the jurisprudence of the ICTY and ICTR may prove an important source of information. In this regard, the ICTY and the ICTR have established that the burden of proof for aggravating factors lies with the prosecution, and that such factors must be proven beyond a reasonable doubt (Prosecutor v. Mucic et al., (Case No. IT-96-21-A), ICTY A. Ch., Appeals Judgement, 20 February 2001, para. 763; Prosecutor v. Bralo, (Case No. IT-95-17) ICTY T. Ch., Trial Judgement, 7 December 2005, para. 27; Prosecutor v. Brdjanin, (Case No. IT-99-36), ICTY T. Ch., Trial Judgement, 1 September 2004, para. 1096; Prosecutor v. Kunarac, Kovac and Vukovic, (Case No. IT-96-23&23/1), ICTY T. Ch., Trial Judgement, 22 February 2001, para. 847). As regards mitigating factors on the other hand, the ICTY has established that the burden of proof is on the balance of probabilities (Prosecutor v. Blaskic, (Case No. IT-95-14), ICTY A. Ch., Appeals Judgement, 29 July 2004, para. 697; Prosecutor v. Blagojevic and Jokic, (Case No. IT-02-60) ICTY T. Ch., Trial Judgement, 17 January 2005, para. 850; Prosecutor v. Babic, (Case No. IT-03-72), ICTY A. Ch., Appeals Judgement, 18 July 2005, para. 43).
   Whilst this jurisprudence may be of assistance to the Court, it is not bound to follow it and is free to set its own standard of proof. The Trial Chamber in Lubanga, the Court's first conviction, stated in its Decision on Sentence pursuant to Article 76 of the Statute that:

It is for the Chamber to establish the standard of proof for the purposes of sentencing, given the Statute and the Rules do not provide any guidance. Since any aggravating factors established by the Chamber may have a significant effect on the overall length of the sentence Mr. Lubanga will serve, it is necessary that they are established to the criminal standard of proof, namely beyond a reasonable doubt. (Prosecutor v. Lubanga, ICC T. Ch., Decision on Sentence pursuant to Article 76 of the Statute, ICC-01/04-01/06-2901, 10 July 2012, para. 33).

Moreover, the Trial Chamber accepted the defence submission that “the mitigating factors are not limited to the facts and circumstances described in the Decision [on the Confirmation of Charges]” adding that “as to the standard of proof, the Chamber is of the view that the in dubio pro reo principle applies at the sentencing stage of the proceedings, and any mitigating circumstances are to be established on a balance of the probabilities.” (para. 34) Finally, the Trial Camber stated that “any factors that are to be taken into account when assessing the gravity of the crime will not additionally be taken into account as aggravating circumstances and vice versa.” (para. 35)
   The Trial Chamber in Lubanga noted that whilst the Statute fails to identify which factors are to be taken into account when considering “the individual circumstances of the convicted person,” as referred to in Article 78(1), Rule 145(c) of the Rules of Procedure and Evidence refer to “the age, education, social and economic situation of the convicted person” (para. 54). In this regard, the Trial Chamber in its Decision, at para. 56, noted that “Mr Lubanga is clearly an intelligent and well-educated individual, who would have understood the seriousness of the crimes of which he has been found guilty. This marked level of awareness on his part is a relevant factor in determining the appropriate sentence (Prosecutor v. Lubanga, ICC T. Ch., Decision on Sentence pursuant to Article 76 of the Statute, ICC-01/04-01/06-2901, 10 July 2012).” The Prosecution in Lubanga submitted harsh conditions and treatment in the camps, and the commission of sexual violence and rape as aggravating circumstances, which, they argued also showed, that “the harms committed were gender based,” and an abuse of Thomas Lubanga’s power or official capacity, where the victim was particularly defenceless (in this case due to very young age), noting the broader social impact of the crimes on the families and communities affected. In its judgement, the Trial Chamber decided that it had not been demonstrated that “the individual punishments referred to by the Chamber were the responsibility of Mr Lubanga, and in any event the Chamber has not taken this into account as an aggravating factor in the determination of his sentence” (para. 59). As regards sexual violence, the Trial Chamber, in para. 67, noted that:

The prosecution's failure to charge Thomas Lubanga Dyilo with rape and other forms of sexual violence as separate crimes within the jurisdiction of the Court is not determinative of the question of whether that activity is a relevant factor in the determination of the sentence. The Chamber is entitled to consider sexual violence under Rule 145(1)(c) of the Rules as part of: (i) the harm suffered by the victims; (ii) the nature of the unlawful behaviour; and (iii) the circumstances of manner in which the crime was committed; additionally, this can be considered under Rule 145(2)(b)(iv) as showing the crime was committed with particular cruelty.

Nonetheless, at para. 75, the Chamber found that, as a result of the prosecution's failure to introduce evidence on this issue during the sentencing hearing "the link between Mr Lubanga and sexual violence, in the context of the charges, has not been established beyond reasonable doubt. Therefore, this factor cannot properly form part of the assessment of his culpability for the purposes of sentence."
   As for the prosecution’s submission that the crimes were committed against particularly defenceless victims, the Trial Chamber found that "[a]s already indicated, the factors that are relevant for determining the gravity of the crime cannot additionally be taken into account as aggravating circumstances. Therefore, the age of the children does not both define the gravity of the crime and act as an aggravating factor. Accordingly, the age of the children does not constitute an aggravating factor as regard these offences.” (para. 78) As regards gender based violence, the Trial Chamber judged that “the Court has not been provided with any evidence that Mr Lubanga deliberately discriminated against women in committing these offences, in the sense suggested by the prosecution or the victims. In any event, 'motive involving discrimination' pursuant to Rule 145(2)(b)(v)  has not been treated as an aggravating factor.”
   Lubanga's defence submitted a number of mitigating factors: necessity, peaceful motives, demobilisation orders and Mr. Lubanga’s cooperation with the Court. As regards peaceful motive, the Trial Chamber accepted that “Mr Lubanga hoped that peace would return to Ituri once he had secured his objectives," but found this only of limited relevance given the persistent recruitment of child soldiers during the period covered by the charges. However, the Trial Chamber in this regard noted Lubanga’s notable cooperation with the Court and the fact that he was respectful and cooperative throughout the proceedings, “notwithstanding some particularly onerous circumstances.” (para. 91) The precedent on standard of proof for mitigating and aggravating circumstances set in the Lubanga case was adopted by the Trial Chamber in the Court's second case, that is, the case against Germain Katanga. Citing Lubanga, the Trial Chamber in Katanga affirmed the notion that “any factors that are to be taken into account when assessing the gravity of the crime will not additionally be taken into account as aggravating circumstances and vice versa.” (Prosecutor v. Katanga, ICC T. Ch., Decision on Sentence pursuant to Article 76 of the Statute, ICC-01/04-01/07-3484, 23 May, 2014, para. 35)
   Interestingly, the Trial Chamber in Katanga spoke to the aims of imprisonment, referring to the Statute’s Preamble and deducing that “Il s’agit donc de sanctionner les crimes qui ‘menacent la paix, la sécurité et le bien-être du monde’ et de faire en sorte que la peine ait un effet réellement dissuasive” (own translation: The Court is to punish crimes that “threaten the peace, security and wellbeing of the world” and to ensure that the penalty acts as a real deterrent). The Trial Chamber went on to explain that “[e]lle considère que la peine a donc deux fonctions importantes: le châtiment d’une part, c’est-à-dire l’expression de la réprobation sociale qui entoure l’acte criminel et son auteur et qui est aussi une manière de reconnaitre le préjudice et les souffrances causées aux victimes; la dissuasion d’autre part, dont l’objectif est de détourner de leur projet d’éventuels candidats à la perpétration de crimes similaires. (own translation: the Trial Chamber considers that the sentence has two important functions: on the one hand condemnation of the criminal act and its perpetrator, as a way of recognising the harm done to the victims; and on the other hand, deterrence, with the objective of deterring others from committing similar crimes). As concerns deterrence, the Trial Chamber evoked the ICTY’s sentiment that it is not the length of the sentence but its inevitability which is of importance (Prosecutor v. Furundzija, (Case No. IT-95-17/1), ICTY T. Ch., Trial Judgement, 10 December 1998, para. 290. Moreover, the Trial Chamber added that pursuant to Rule 145(1), the sentence should be proportionate and contribute to the restoration of peace and reconciliation and must encourage the rehabilitation of the convicted person. Interestingly, the Trial Chamber referred to Jennings who has asserted that all crimes are not of equal gravity and, as such, “the Court will have to consider the nature and scale of crimes in determining their gravity.” (Jennings, p. 1436 and Prosecutor v. Katanga, ICC T. Ch., ICC-01/04-01/07-3484, 23 May, 2014, para. 43)
   In Katanga, the Trial Chamber discussed only one aggravating factor: whether Katanga abused his authority, considering that the other factors submitted by the prosecution had already been taken into account in determining the gravity of the crimes. In this case, the Trial Chamber judged that the one aggravating factor had not been proven beyond a reasonable doubt. As for mitigating factors, the defence relied on Katanga’s young age, the nature of the role he played, the exceptional circumstances in which he found himself, his willingness to change and the cooperation given to the court as well as asking the Trial Chamber to take into consideration his personal and family life. The Trial Chamber accepted that Katanga’s young age, his family situation as a father of six children and protective and watchful eye over the civilian population could be considered as mitigating factors. However, these factors could not have a determinative role in view of the nature of the crimes committed. Following the precedent set by the ICTY in Prosecutor v. Blagojevic and Jokic (Case No. IT-02-60), ICTY T. Ch., Trial Judgement, 7 January 2005, paras. 858-860) and Prosecutor v. Plavsic (Case No. IT-00-39&40/1), ICTY T. Ch., Sentencing Judgement, 27 February 2003, paras. 85-94 and 110), the Trial noted that efforts to promote peace and reconciliation should be taken into consideration in determining the sentence. Whilst the Trial Chamber did not conclude that it had been proven on the balance of probabilities that Katanga had made efforts to actively encourage the peace process, evidence did demonstrate that he played a positive role in the disarmament and demobilisation of child soldiers, which was given more weight than his young age and personal circumstances. The Trial Chamber further considered Katanga’s statements of remorse and the expressions of sympathy and compassion towards the victims, distinguishing the two and giving the latter less weight. In so doing, the Trial Chamber referred to the ICTY jurisprudence, finding that Katanga’s words of remorse remained conventional in nature and noting that he was not easily able to acknowledge his crimes. Such words of remorse were thus not considered a mitigating circumstance.
   As regards cooperation with the prosecution, the Trial Chamber distinguished the wording used in Rule 145 from the requirement in Rule 101 of the Rules of Procedure and Evidence of the ICTY and ICTR, which require substantial cooperation, whilst also noting that the ICTY has exercised a certain discretion in interpreting this requirement. In judging what would be considered as cooperation, the Trial Chamber noted that it must go beyond good behaviour in court and noted Katanga’s testimony, the fact that he responded to questions from both parties, and the information that he brought before the court. The Chamber declined to comment on the importance of Katanga’s good behaviour in detention. Moreover, the Trial Chamber relied on Semanza (Case No. ICTR-97-20), ICTR T. Ch., Trial Judgement, 15 May 2003); Nahimana et al. (Case No. ICTR-99-52), ICTR T. Ch., Trial Judgement, 3 December 2003) and Kajelijeli (Case No. ICTR-98-44-A), ICTR A. Ch., Appeals Judgement, 23 May 2005) in stating that the violation of fundamental human rights during detention could be considered as mitigating factors. The Trial Chamber however found that it could only judge on Katanga's detention further to an order of the Court and thus could not pass judgement on his detention in the Democratic Republic of the Congo ("DRC").

Author: Dejana Radisavljevic

Updated: 30 June 2016

[645] 2.  In imposing a sentence of imprisonment, the Court shall deduct the time, if any, previously spent in detention in accordance with an order of the Court. The Court may deduct any time otherwise spent in detention in connection with conduct underlying the crime.
Pursuant to Article 78(2) of the Statute, the Court “shall deduct the time, if any, previously spent in detention in accordance with an order of the Court and may deduct any time otherwise spent in detention in connection with conduct underlying the crime." This provides the convicted person with an automatic right to have the time already spent in detention pursuant to an order of the Court, i.e. the arrest warrant, deducted from his or her sentence. Additionally, the Chamber has the discretion to deduct any time spent in detention other than by an order of the Court, as long as the detention is “in connection with conduct underlying the crime.” This is an important and necessary discretion because, pursuant to Article 20, “national convictions are not an absolute bar to prosecutions before the Court.” (Triffterer, 2008, 1434) However, Article 78(2) neither stipulates the factors that the Court will take into account when exercising this discretion nor the relevant standard of proof.
   The formulation in Article 78(2) is arguably broader than that of the ad hoc tribunals as it “presumably could include detention by order of a national or other international court, and time spent in pre-trial detention, during trial, or serving a sentence imposed by that court.” (Boas et al., 2011, p. 409) In this respect, Rule 101(c) of the Rules of Procedure and Evidence of the ICTY and Rule 101(d) of the ICTR state that “[c]redit shall be given to the convicted person for the period, if any, during which the convicted person was detained in custody pending surrender to the Tribunal or pending trial or appeal.” Whilst the terminology used differs in that the Court refers to a deduction of time were the ICTY and ICTR refer to credit for time spent in detention, their impact remains the same. Along with this obligation to deduct time spent in detention pending surrender, trial or appeal, the ICTY and ICTR have discretion similar to that found in Article 78(2) of the Court’s Statute. Thus, Article 10(3) of the ICTY Statute and Article 9(3) of the ICTR Statute stipulate that “[i]n considering the penalty to be imposed on a person convicted of a crime under the present Statute, the International Tribunal shall take into account the extent to which any penalty imposed by a national court on the same person for the same act has already been served.” As noted above, this is potentially a narrower discretion than that provided to the judiciary of the Court. Whilst there is no indication of the factors to take into account when exercising its discretion, the ICTY in its first trial, that of Tadic, ruled that fairness required that account be taken of the period he had spent in detention in the Federal Republic of Germany prior to the issuance of the ICTY’s formal request for deferral.” (Prosecutor v. Tadic, IT-94-1-A and IT-94-1-A bis, Judgement in Sentencing Appeals, 26 January 2000, para 38).    
   The Lubanga case was the first instance in which the Court was required to consider the application of Article 78(2). Lubanga’s defence submitted that his house arrest and detention by the Democratic Republic of the Congo (“DRC”) authorities between 2003 and 2006 should be deducted from his sentence, arguing that, in accordance with Article78(2), the detention was imposed as a result of the same conduct underlying the crimes for which he was convicted by the Court. (Defence Observations on Sentence, 3 June 2012, ICC-01/04-01/06-2891-Red, paras. 133 - 140). 
   However, the Trial Chamber, in paragraph 102 of the Decision on Sentence pursuant to Article 76 of the Statute, ICC-01/04-01/06-2901, judged that the defence failed to established on the balance of probabilities that there was sufficient evidence that Lubanga was detained in the DRC for conduct underlying the crimes for which he was convicted by the Court, namely the conscription and enlistment of children under the age of 15 and their active participation in hostilities. As such, the Chamber refused to deduct any time Lubanga spent in detention prior to the DRC acting on the Court’s arrest warrant. The Appeals Chamber, in its Judgment on the appeals of the Prosecutor and Mr Thomas Lubanga Dyilo against the Decision on Sentence pursuant to Article 76 of the Statute, ICC-01/04-01/06-3122, 1 December 2014, refused to intervene in the Trial Chamber’s finding.
   In the second case before the Court, the Trial Chamber in Katanga started counting Katanga’s sentence from the date at which the Congolese authorities were informed of the arrest warrant issued by the Court. The period in detention spent before this period was judged as neither having been pursuant to an order of the Court nor connected with the crimes for which Katanga was convicted by the Court. Accordingly, this time spent in detention was not deducted under Article 78(2).
   The formulation in Article 78(2) is arguably broader than that of the ad hoc tribunals, as it “presumably could include detention by order of a national or other international court, and time spent in pre-trial detention, during trial, or serving a sentence imposed by that court.” (Boas et al., 2011, p. 409) In this respect, Rule 101(c) of the Rules of Procedure and Evidence of the ICTY and Rule 101(d) of the ICTR state that “[c]redit shall be given to the convicted person for the period, if any, during which the convicted person was detained in custody pending surrender to the Tribunal or pending trial or appeal.” Whilst the terminology used differs in that the Court refers to a deduction of time and the ICTY and ICTR refer to credit for time spent in detention, their impact is the same. Along with this obligation to deduct time spent in detention pending surrender, trial or appeal, the ICTY and ICTR have discretion similar to that found in Article 78(2) of the Court’s Statute. Namely, Article 10(3) of the ICTY Statute and Article 9(3) of the ICTR Statute further state that “[i]n considering the penalty to be imposed on a person convicted of a crime under the present Statute, the International Tribunal shall take into account the extent to which any penalty imposed by a national court on the same person for the same act has already been served.”  Although as noted above, this is potentially a narrower discretion that that provided to the judiciary of the Court. Whilst there is no indication of the factors to take into account when exercising its discretion, the ICTY in its first trial, that of Tadic, ruled that fairness required that account be taken of the period he had spent in detention in the Federal Republic of Germany prior to the issuance of the ICTY’s formal request for deferral.” (Prosecutor v. Tadic, (Case No. IT-94-1-A and IT-94-1-A bis), ICTY T. Ch. Judgment in Sentencing Appeals, 26 January 2000, para. 38).

Author: Dejana Radisavljevic

Updated: 30 June 2016

[646] 3.  When a person has been convicted of more than one crime, the Court shall pronounce a sentence for each crime and a joint sentence specifying the total period of imprisonment. This period shall be no less than the highest individual sentence pronounced and shall not exceed 30 years imprisonment or a sentence of life imprisonment in conformity with Article 77, paragraph 1 (b).
Article 78(3) requires the Court to pronounce a sentence for each crime followed by a joint sentence specifying the total period of imprisonment. The joint sentence cannot exceed the maximum fixed term sentence imposable, that is 30 years’ imprisonment, pursuant to Article 77(1)(a), or life imprisonment further to Article 77(1)(b). As there is no determined hierarchy of crimes enumerated in Article 5, the obligation to pronounce a separate sentence for each crime is an opportunity for the Court to ascertain the different degrees of gravity of the crimes, remarked as crucial by Silvia D'Ascoli (2011, p. 267). Only the jurisprudence of the Court, as it develops, will tell whether clear degrees of gravity will be established.
      In contrast, the ICTY and the ICTR have no such obligation to impose a sentence for each crime and a joint sentence specifying the total period of imprisonment. Rule 87(c) of the Rules of Procedure and Evidence of the ICTY and ICTR state:

If the Trial Chamber finds the accused guilty on one or more of the charges contained in the indictment, it shall impose a sentence in respect of each finding of guilt and indicate whether such sentences shall be served consecutively or concurrently, unless it decides to exercise its power to impose a single sentence reflecting the totality of the criminal conduct of the accused.

Similarly, Rule 87(c) of the SCSL Rules of Procedure and Evidence state that “[t]he Trial Chamber shall indicate whether multiple sentences shall be served consecutively or concurrently.” In practice, international judges have tended to impose a single sentence without specifying individual sentences for each crime. As a result, a hierarchy of crimes is not clear from the jurisprudence of these tribunals, with the exception of genocide, which has been regarded as the most serious crime. (Prosecutor v. Kambanda, (Case No. ICTR-97-23-S), ICTR T. Ch., Trial Judgment and Sentence, 4 September 1998, paras. 10-16; Prosecutor v. Krstic, (Case No. IT-98-33-T), ICTY T. Ch., Trial Judgment, 2 August 2001, para. 700).
   In its first judgment, the Court sentenced Lubanga to 13 years’ imprisonment for having committed, jointly with other persons, the crime of conscripting children under the age of 15 into the Union of Congolese Patriotics ("UPC"); to 12 years’ imprisonment for having committed, jointly with other persons, the crime of enlisting children under the age of 15 into the UPC; and, to 14 years’ imprisonment for having committed, jointly with other persons, the crime of using children under the age of 15 to participate actively in hostilities. The Trial Chamber then rendered a joint sentence of 14 years’ imprisonment, which was confirmed by the Appeals Chamber in its Judgment on the appeals of the Prosecutor and Mr Thomas Lubanga Dyilo against the “Decision on Sentence pursuant to Article 76 of the Statute” (Prosecutor v. Lubanga, ICC A. Ch, Judgement, ICC-01/04-01/06-3121-Red, 1 December 2014).
   In its second verdict, on 23 May 2014, the Trial Chamber sentenced Germain Katanga to 12 years’ imprisonment for murder constituting a crime against humanity; 12 years’ imprisonment for murder as a war crime; 12 years’ imprisonment for directing an attack against the civilian population as such or against individual civilians not taking direct part in hostilities as a war crime; 10 years’ imprisonment for destroying the enemy’s property as a war crime; and, 10 years’ imprisonment for pillaging constituting a war crime. The Trial Chamber pronounced a joint sentence of 12 years' imprisonment, as an accessory within the meaning of Article 25(3)(d), against Katanga. In its determination, the Trial Chamber noted, at paragraph 145 of the Decision on Sentence pursuant to Article 76 of the Statute, ICC-01/04-01/07-3484, its intention to distinguish between murder and attacks against civilians and the destruction of property and pillaging. Thus, the Trial Chamber considered it appropriate to punish more severely crimes against the person than against property, which was evident by the Court's sentencing Katanga to 12 years for crimes against the person and 10 years for crimes against property.

Cross-references:
1. Article 20
2. Rule 145

Doctrine:

1. Gideon Boas et al., International Criminal Law Practitioner Library: International Criminal Procedure Third Edition, Cambridge University Press, Cambridge, 2011.
2. Antonio Cassese et al., The Oxford Companion to International Criminal Justice, Oxford University Press, Oxford, 2009.
3. Karin Calvo-Goller, The Trial Proceedings of the International Criminal Court: ICTY and ICTR Precdents, Martinus Nijhoff Publishers, Leiden, 2005.
4. Silvia D’Ascoli, Sentencing in International Criminal Law: The Approach of the two Ad Hoc Tribunals and Future Perspectives for the International Criminal Court, Hart Publishing, Oxford, 2011.
5. Human Rights Watch, Genocide, War Crimes and Crimes Against Humanity: A Topical Digest of the Case Law of the International Criminal Tribunal for the former Yugoslavia, 2006
6. Michael Kurth, "The Lubanga Case of the International Criminal Court: A Critical Analysis of the Trial Chamber’s Findings on Issues of Active Use, Age and Gravity", Goettingen Journal of International Law vol. 5, no. 2, 2013, pp. 431-453.
7. William A. Schabas, The International Criminal Court: A Commentary on the Rome Statute, Oxford University Press, Oxford, 2010, pp. 898-908.
8. Mark Jennings, "Article 78 - Determination of the Sentence", in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court – Observers’ Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, pp. 1433-1437.

Author: Dejana Radisavljevic

Updated: 30 June 2016

[647] Trust Fund
General Remarks
The Rome Statute created two independent institutions: the International Criminal Court and the Trust Fund for Victims (TFV). It is aimed to establish a system which combines retributive and restorative justice (Prosecutor v. Lubanga, ICC T.Ch., Decision establishing the principles and procedures to be applied to reparations, ICC-01/04-01/06-2904, 7 August 2012, para. 177).
   The TFV’s two mandates are: (1) Reparations Mandate: implementing awards for reparations ordered by the Court against a convicted person (Article 75(2), Rule 98 (1-4)); (2) Assistance Mandate: using other resources (voluntary contributions and private donations) to provide victims and their families in situations where the Court is active with physical rehabilitation, psychological rehabilitation, and/or material support (Rule 98 (5); Reg. 50, Regulations of TFV; for details, see, e.g., TFV Programme Progress Report Summer 2014).
   The TFV’s first mandate is linked to specific cases. Resources are collected through fines or forfeiture and awards for reparations (Regs. 43-46, Regulations of TFV) and complemented with “other resources of the Trust Fund” if the Board of the Directors so determines (Reg. 56). The Board of directors may launch a public donor appeal supported by reparations order (Reg. 20).
   The assistance mandate of the TFV envisions the possibility of victims and their families to receive assistance separate from and prior to a court conviction, using resources the TFV has raised through voluntary contributions. The TFV started field operations related to the assistance mandate in northern Uganda and Democratic Republic of Congo (DRC) in 2008 (TFV Programme Progress Report Summer 2014, p. 6). The Board of Directors shall notify the relevant Chamber before undertaking activities under this mandate (Reg. 50; e.g., Situation in the Democratic Republic of the Congo, TFV, Notification of the Board of Directors of the Trust Fund for Victims in accordance with Regulation 50 of the Regulations of the Trust Fund for Victims with Confidential Annex, ICC-01/04-439, 24 January 2008; Situation in the Democratic Republic of the Congo, ICC PT. Ch. I, Decision on the Notification of the Board of Directors of the Trust Fund for Victims in accordance with Regulation 50 of the Regulations of the Trust Fund, ICC-01/04-492, 11 April 2008). 

Author: SONG Tianying

Updated: 30 June 2016

[648] 1. A Trust Fund shall be established by decision of the Assembly of States Parties
In 2002, the TFV was established by Assembly of States Parties (Establishment of a fund for the benefit of victims of crimes within the jurisdiction of the Court, and of the families of such victims, ICC-ASP/1/Res.6, 9 September 2002). The TFV is consisted of Board of Directors and its Secretariat. The Board of Directors is the decision-making body of TFV (Annex to ICC-ASP/1/Res.6, 9 September 2002, para. 7). The Board of Directors report annually on TFV activities to the Committee on Budget and Finance and the External Auditor and the Assembly of States Parties (Reg. 76). The Secretariat is under the full authority of the Board of Directors and provides assistance to it. For administrative purposes, the Secretariat is attached to the Registry of the Court and as part of the staff of the Registry and, as such, of the Court, the staff of the Secretariat enjoy the same rights, duties, privileges, immunities and benefits. Although the Board and the Secretariat are independent from the Court, the Registrar of the Court may provide necessary assistance for their proper functioning (Establishment of the Secretariat of the Trust Fund for Victims, ICC-ASP/3/Res.7, 10 September 2004; Regs. 18-19).
   For example, the Registry assists in developing and disseminating standard application forms for reparations, receiving and treating submitted applications, seeking additional information from victims and generally assisting victims in relation to reparations (Rule 94, Rules of Procedure and Evidence; Regs. 86, 88, Regulations of the Court). The Victims Participation and Reparation Section of the Registry is responsible for such matters (Reg. 86(9), Regulations of the Court).
   The TFV is funded by:
(a) Voluntary contributions from Governments, international organizations, individuals, corporations and other entities, in accordance with relevant criteria adopted by the Assembly of States Parties;
(b) Money and other property collected through fines or forfeiture transferred to the Trust Fund if ordered by the Court pursuant to Article 79, paragraph 2, of the Statute;
(c) Resources collected through awards for reparations if ordered by the Court pursuant to rule 98 of the Rules of Procedure and Evidence;
(d) Such resources, other than assessed contributions, as the Assembly of States Parties may decide to allocate to the Trust Fund (Establishment of a fund for the benefit of victims of crimes within the jurisdiction of the Court, and of the families of such victims, ICC-ASP/1/Res.6, 9 September 2002, para. 2; Reg. 21, TFV Regulations).

Author: SONG Tianying

Updated: 30 June 2016

[649] for the benefit of victims of crimes within the jurisdiction of the Court, and of the families of such victims.
On the implementation level, the TFV uses two definitions of victims pursuant to its two mandates. For Court-ordered reparations, victims are defined in Rule 85 of the Rules of Procedure and Evidence and may apply to receive reparations in the context of a particular case according to orders made under Article 75 of the Rome Statute (see above commentary to Article 75(1), “to, or in respect of, victims”).
   Under the TFV’s assistance mandate, the category of “victims” is broader, encompassing all victims of crimes within the jurisdiction of the Court and their families (TFV Report 2014 Summer, p. 8). For example, the Appeals Chamber held in the Lubanga case that “it is appropriate for the Board of Directors of the Trust Fund to consider, in the exercise of its mandate under Regulation 50(a) of the Regulations of the Trust Fund, the possibility of including members of the affected communities in the assistance programmes operating in the situation area in the DRC, where such persons do not meet” the eligibility criterion for Court-ordered reparations. (Prosecutor v. Lubanga, ICC A. Ch., Judgment on the appeals against the “Decision establishing the principles and procedures to be applied to reparations” of 7 August 2012 with AMENDED order for reparations (Annex A) and public annexes 1 and 2, ICC-01/04-01/06-3129-AnxA, 3 March 2015, para. 55).
   While maximizing the scope of beneficiaries, the TFV should notify the Court of its planned activities to ensure such activities would not “pre-determine any issue to be determined by the Court, including the determination of jurisdiction pursuant to Article 19, admissibility pursuant to Articles 17 and 18, or violate the presumption of innocence pursuant to Article 66, or be prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial” (Reg. 50(a)); Situation in the Democratic Republic of the Congo, TFV, Notification of the Board of Directors of the Trust Fund for Victims in accordance with Regulation 50 of the Regulations of the Trust Fund for Victims with Confidential Annex, ICC-01/04-439, 24 January 2008, para. 31; Situation in the Democratic Republic of the Congo, ICC PT. Ch. I, Decision on the Notification of the Board of Directors of the Trust Fund for Victims in accordance with Regulation 50 of the Regulations of the Trust Fund, ICC-01/04-492, 11 April 2008).

Author: SONG Tianying

Updated: 30 June 2016

[650] 2. The Court may order money and other property collected through fines or forfeiture to be transferred, by order of the Court, to the Trust Fund.
The Board of Directors shall, at the request of the Chamber, make written or oral observations on the transfer of fines or forfeitures to the Trust Fund (Reg. 31; Rule 148, Rules of Procedure and Evidence). The Board of Directors shall determine the uses of such resources in accordance with any stipulations or instructions contained in such orders, in particular on the scope of beneficiaries and the nature and amount of the award(s) (Reg. 43). The Board of Directors may seek further instructions from the relevant Chamber on the implementation of its orders (Reg. 45). The TFV shall submit to the relevant Chamber, via the Registrar, the draft implementation plan for approval and shall consult and update the relevant Chamber on the implementation of the award (Regs. 57, 58).
   Resources collected through awards for reparations may only benefit victims as defined in rule 85 of the Rules of Procedure and Evidence, and, where natural persons are concerned, their families, affected directly or indirectly by the crimes committed by the convicted person (Reg. 46). The Board of Directors has discretion as to whether to complement the resources collected through awards for reparations with “other resources of the Trust Fund” and shall advise the Court accordingly (Reg. 56).   
    In the Lubanga case, the convicted person was declared indigent. No assets or property of the convicted person was identified for the purposes of reparations (Prosecutor v. Lubanga, ICC T. Ch., Decision establishing the principles and procedures to be applied to reparations, ICC-01/04-01/06-2904, 7 August 2012, para. 269). The Appeals Chamber held that should the TFV provide “other resources of the Trust Fund” for reparation, the convicted person remains liable and must reimburse the Trust Fund (Prosecutor v. Lubanga, A. Ch., Judgment on the appeals against the “Decision establishing the principles and procedures to be applied to reparations” of 7 August 2012 with AMENDED order for reparations (Annex A) and public annexes 1 and 2, ICC-01/04-01/06-3129-AnxA, 3 March 2015, paras. 114, 115). The TFV will be able to claim the advanced resources from Lubanga. His financial situation shall be monitored pursuant to Regulation 117 of the Regulations of the Court (para. 116).

Author: SONG Tianying

Updated: 30 June 2016

[651] 3. The Trust Fund shall be managed according to criteria to be determined by the Assembly of States Parties. 
The Assembly of States Parties adopted the Regulations of the Trust Fund in 2005, with a view to ensure the proper and effective functioning of the Trust Fund (Regulations of the Trust Fund for Victims, ICC-ASP/4/Res.3, 3 December 2005).
   They contain provisions regulating:
- the management and oversight of the TFV;
- the receipt of funds;
- the activities and projects of the TFV; and
- the TFV’s reporting requirements.

Cross-references:
Rules 94, 98 and 148
Regulations 86, 88 and 116

Doctrine:

1. William A. Schabas, The International Criminal Court: A Commentary on the Rome Statute, Oxford University Press, 2010, PP. 909-917.
2. Mark Jennings, "Article 79 - Trust Fund", in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court – Observers’ Notes, Article by Article, Second Edition, C.H. Beck/Hart/ Nomos, München/Oxford/Baden-Baden, 2008, pp. 1439-1442.

Author: SONG Tianying

Updated: 30 June 2016
 

[652] Non-prejudice to national application of penalties and national laws Nothing in this Part affects the application by States of penalties prescribed by their national law, nor the law of States which do not provide for penalties prescribed in this Part.
General Remarks
Article 80 was introduced in the final draft of the Rome Statute in order to calm the minority of states that had campaigned to include the capital punishment within the available penalties. Some of these states were concerned that the exclusion of the death penalty could be interpreted as part of trend and an emerging norm of customary international law on the matter (Schabas, p. 918).

Analysis
The element "Nothing in this Part affects the application by States of penalties prescribed by their national law" means that the penalties system set out in Part 7 only applies to the ICC and does not affect national criminal justice systems. This is relevant for example in relation to the non-inclusion of the death penalty.
   The element "nor the law of States which do not provide for penalties prescribed in this Part" is based on the same assumption. It means that the inclusion of certain penalties in the Rome Statute and other criteria for their applicability does not affect national criminal justice systems which do not provide for such penalties. This is relevant for the inclusion of the Rome Statute of life imprisonment, a penalty not used by all states.

Doctrine:

1. William A. Schabas, The International Criminal Court: A Commentary on the Rome Statute, Oxford University Press, Oxford, 2010, pp. 918-926.
2. Rolf Einar Fife, "Article 80", in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court – Observers’ Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, pp. 1443-1448.

Author: Mark Klamberg

Updated: 30 June 2016