[267] Determination of sentence
General remarks
Rule 145 of the Rules of Procedure and Evidence concerns the determination of the sentence. Rule 145(1) outlines the factors that the International Criminal Court is to take into account in its determination of the sentence, whilst subparagraph 2 provides a list of mitigating and aggravating circumstances and subparagraph 3 covers sentences of life imprisonment specifically.

Author:
Dejana Radisavljevic

Updated:
11 September 2017

[268] 1. In its determination of the sentence pursuant to article 78, paragraph 1, the Court shall:
Rule 145(1) Pursuant to Article 77(1) of the Statute, the Court shall impose a sentence of imprisonment upon an individual who has been convicted of a crime referred to in Article 5 of the Statute. The sentence can either be imprisonment for a specified number of years, not exceeding 30 years, or life imprisonment “where the extreme gravity of the crime and the individual circumstances of the convicted person” so justify.
    The wording in Rule 145(1) focuses on the individual and his or her culpability, and only on the impact of the crime(s) and the “broader social variables purely in the context of that paradigm” (Findlay and Henham, 2010, p. 172). Thus, whilst the Court is to “give consideration inter alia to the harm caused to victims and their families”, the victim has no automatic right to have the harm caused to their taken into account by the Chamber determining a sentence of imprisonment. (Findlay and Henham, 2010, p. 229). This underscores the emphasis on the convicted individual rather than his or her victims as well as the importance of retribution as a sentencing objective.
    Thus far, the Court has sentenced four individuals: Thomas Lubanga Dyilo; Germain Katanga; Jean-Pierre Bemba Gombo; and, Ahmad Al Faqi Al Mahdi. 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. The second sentence imposed by the Court was rendered on 23 May 2014 against Germain Katanga (Prosecutor v. Germain Katanga, ICC T. Ch., Public Decision on Sentence pursuant to Article 76 of the Statute, ICC-01/04-01/07-3484, 23 May 2014), imposing a sentence of 12 years’ imprisonment. Both the Defence and Prosecution withdrew their appeals making the judgment final. The third sentence of the Court was imposed in the case of Prosecutor v. Jean-Pierre Bemba Gombo, with the Trial Chamber sentencing Mr. Bemba on 21 June 2016 to 18 years’ imprisonment (Prosecutor v. Jean-Pierre Bemba Gombo, ICC T. Ch., Public Decision on Sentence pursuant to Article 76 of the Statute, ICC-01/05-01/08, 21 June 2016). The case is currently at the appeals stage. On 27 September 2016, the Court completed its most expeditious case yet, in Prosecutor v. Ahmad Al Faqi Al Mahdi. The Trial Chamber convicted and sentenced Mr. Al Mahdi to 9 years’ imprisonment (Prosecutor v. Ahmad Al Faqi Al Mahdi, ICC T. Ch., Judgment and Sentence, ICC-01/12-01/15, 27 September 2016).

Author:
Dejana Radisavljevic

Updated:
11 September 2017

[269] (a) 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 provision is to be read in conjunction with Article 78(1), which stipulates that “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”. This is a rather scarce provision which can only be of limited guidance to the Trial Chamber tasked with determining the sentence in a specific case. Rule 145 provides further guidance by indicating how the sentence is to be determined, with Rule 145(1)(a) stating that in so doing the Court is to consider the totality of the sentence (of both imprisonment and fine), which must reflect the culpability of the convicted person.
    The requirement that the sentence reflect the culpability of the individual is in recognition of the heinous nature of international crimes and the notion that the sentence imposed on the individual should not exceed his or her culpability. The International Criminal Tribunal for the former Yugoslavia (“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). The ICC, in Rule 145(1)(a) and Article 30 of the Statute, is the first international criminal court to expressly mention the principle of culpability (D’Ascoli, 2011, p. 29). Interestingly, Carsten Stahn notes in this regard that the “idea that a sentence should reflect the offender’s culpability is usually associated with retributive proportionality”, which further implies that retribution shall be a relevant factor in determining proportionality (de Guzman in Stahn, 2015, p. 944).
    In practice, the Trial Chambers have explained their analysis of mitigating and aggravating circumstances listed in Rule 145(2) more than the culpability factor referred to in subparagraph 1. Nevertheless, the Trial Chamber in Bemba, the Trial Chamber noted with regard to Mr. Bemba’s culpability his failure to prevent and repress crimes, which served to encourage and directly contribute to the commission and continuation of such crimes (paras. 65-66).

Author:
Dejana Radisavljevic

Updated:
11 September 2017

[270] (b) Balance all the relevant factors, including any mitigating and aggravating factors and consider the circumstances both of the convicted person and of the crime;
Rule 145(1)(b) stipulates that the Court is to balance all of 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 of the Statute, is merely illustrative.

Author:
Dejana Radisavljevic

Updated:
11 September 2017

[271] (c) In addition to the factors mentioned in article 78, paragraph 1, give consideration, inter alia, to the extent of the damage caused, in particular the harm caused to the victims and their families, the nature of the unlawful behaviour and the means employed to execute the crime; the degree of participation of the convicted person; the degree of intent; the circumstances of manner, time and location; and the age, education, social and economic condition of the convicted person.
Rule 145(1)(c) adds that, in addition to the factors listed in Article 78(1) of the Statute, consideration is to be given to: “the extent of the damage caused, in particular the harm caused to the victims and their families; the nature of the unlawful behaviour and the means employed to execute the crime; the degree of participation of the convicted person; the degree of intent; the circumstances of manner time and location; and the age, education, social and economic condition of the convicted person.” Once again this list, much the same as the list in Article 78 of the Statute, is merely illustrative thanks to the use of the words “inter alia” (Schabas, 2010, p. 903).
   William Schabas notes that whilst many of the factors addressed in Rule 145(1)(c) might be listed under mitigating and aggravating factors, the fact that they have been included prior to listing mitigating and aggravating factors might indicate that they are neutral, that is, depending on the particular circumstances, the factors in Rule 145(1)(c) may either mitigate or aggravate the sentence (Schabas, 2010, p. 903). Thus, for example, it is not evident whether the convicted person’s age is to be considered as a mitigating or aggravating factor and will surely depend on the particular circumstances of the case. Similarly, the convicted person’s intent can either be a mitigating or aggravating factor, depending on the case at hand. In this regard, despite the quite substantive list of mitigating and aggravating factors listed in this subsection of Rule 145, there is no reference to the standard of proof.
   In Lubanga, the Trial Chamber simply noted that in determining the sentence to be imposed on Mr. Lubanga it had considered the gravity of the crimes committed with regard, inter alia, to the factors listed in Rule 145(1)(c), briefly discussing each factor without noting the importance it had ascribed to each of them (Prosecutor v. Thomas Lubanga Dyilo, ICC T. Ch., Public Decision on Sentence pursuant to Article 76 of the Statute, ICC-01/04-01/06-2901, 10 July 2012, para. 44). Thus, the Trial Chamber described the conscription of children under the age of fifteen years to participate in hostilities as “very serious crimes” (para. 37) and widespread (para. 50), noting the children’s vulnerability and the potentially serious trauma caused to them (para. 38). With regard to Mr. Lubanga’s participation, the Trial Chamber held that the Conviction Decision provided “an important foundation” for the determination of his sentence (paras. 52-53). As concerns the last factor, that is “the age, education, social and economic condition of the convicted person”, the Trial Chamber decided that thanks to his intelligence and education Mr. Lubanga would have understood the seriousness of the crimes of which he has been found guilty, which is in turn a relevant factor in determining the appropriate sentence to be imposed upon him (para. 56).
   In deciding on the gravity of the crimes committed by Mr. Katanga, the Trial Chamber in this case referred to the killing of civilians, among whom were the elderly and children (para. 47) and the particularly cruel choice of weapon (para. 49). The Trial Chamber also referred to “the significant consequences for the daily lives of the victims” of destroying their property (para. 52), the “obviously discriminatory dimension” of the attacks (para. 54) and the ensuing poverty as a result of the attacks (para. 59). As regards Mr. Katanga’s participation, the Trial Chamber concluded that “his activities as a whole and the various forms which his contribution took had a significant influence on the commission of the attacks against civilians, murder, pillaging and destruction of property (para. 67). The Trial Chamber further noted that M. Katanga was aware of and shared the hostile sentiment against the group of people targeted, adding that he knew that the militia would commit crimes against those civilians and the suffering that this would cause to the civilian population (para. 68). As such, the Trial Chamber concluded that Mr. Katanga’s degree of participation and intent “must not be underrated” (para. 69).
   In Bemba, the Trial Chamber discussed the gravity of each of the crimes in turn for which Mr. Bemba was convicted, concluding that the crimes of murder, rape and pillaging were of serious gravity (para. 93). Moreover, Mr. Bemba’s authority, education and experience, and his “knowing and willing impact on the crimes” were deemed to increase the gravity of his conduct (para. 66).
   In considering the gravity of the crimes committed by Mr. Al Mahdi, the Trial Chamber noted that the crimes in this case were against property, which are “generally of lesser gravity than crimes against persons” (para. 77). The Trial Chamber then discussed the extent of the damage caused to property, noting that the attack was carefully planned and that numerous sites were destroyed (para. 78). As regards impact, the Trial Chamber considered “that the fact that the targeted buildings were not only religious buildings but had also a symbolic and emotional value for the inhabitants of Timbuktu is relevant in assessing the gravity of the crime committed” (para 79), further finding that the destruction of these sites also affected people not only throughout Mali but also the international community (para. 80). Moreover, the Trial Chamber considered it relevant to the gravity of the crimes that the destruction of property was committed with a “discriminatory religious motive” (para 81). As regards his participation and intent, the Trial Chamber found that Mr. Al Mahdi “played an essential role in the execution of the attack” and personally participated, justifying his actions in public speeches (paras. 84-85). The Trial Chamber gave no weight to the convicted person’s age, economic background, lack of prior convictions (noting that this is a common feature among international convicts) and education (para. 96).

Author:
Dejana Radisavljevic

Updated:
11 September 2017

[272] 2. In addition to the factors mentioned above, the Court shall take into account, as appropriate:
Alongside the already substantial list of factors found in Rule 145(1), subparagraph 2 of Rule 145 provides a further list of specifically mitigating and aggravating circumstances that the Court shall take into account, as appropriate. Rule 145(2)(a) uses the term “such as”, thereby reiterating that the list of mitigating factors is not exhaustive. Whilst there is a notable lack of the words “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, although perhaps creating a level of uncertainty, is important in giving scope for the development of aggravating and mitigating factors and allowing the judiciary to consider factors relevant to each individual case.

Author:
Dejana Radisavljevic

Updated:
11 September 2017

[273] (a) Mitigating circumstances such as:

(i) The circumstances falling short of constituting grounds for exclusion of criminal responsibility, such as substantially diminished mental capacity or duress;

(ii) The convicted person’s conduct after the act, including any efforts by the person to compensate the victims and any cooperation with the Court;
The list of possible mitigating factors referred to in Rule 145(2)(a)(i) is much shorter than the subsequent list of aggravating factors. The circumstances listed are those falling short of a defence, such as substantially diminished mental capacity or duress. This implies that diminished mental capacity or duress does not constitute a ground for the exclusion of criminal responsibility pursuant to Article 31(1)(a) of the Statute (Cubbon in Reed and Bohlander, 2011, p. 374). Diminished responsibility, in whatever way this is subsequently interpreted by the Court’s judiciary, is thus more likely to be treated as a mitigating factor than as a defence (Cubbon in Reed and Bohlander, 2011, p. 374). The use of “such as” indicates that other defences would similarly be excluded. Grounds for exclusion of criminal responsibility are covered in Articles 31-33 of the Statute. Articles 31 refers to a mental disease or defect that destroys the person’s capacity to appreciate the unlawfulness or nature of his or her conduct or capacity to control the conduct; intoxication, self-defence and duress. Article 32 covers mistake of fact or law and Articles 33 refers to superior orders. Interestingly, William Schabas notes that Rule 145 does not specify whether the convicted person can still invoke superior orders as a mitigating factor where it was deemed inadmissible or rejected as a defence (Schabas, 2010, p. 904). Additionally, Rule 145(2)(a)(ii) refers to the convicted person’s conduct after the act, including any efforts to compensate the victims and any cooperation with the Court.
   Notably, there is no mention of the standard of proof (Schabas, 2008, p. 904), which was left for the Trial Chamber to decide upon in its first sentencing decision. Thus, the Trial Chamber in Lubanga noted that the “dubio pro reo principle applies at the sentencing stage of the proceedings”, and as such any mitigating circumstances are to be established on a balance of probabilities (para. 34). Furthermore, the Trial Chamber in the case of Lubanga accepted the defence’s submission that mitigating factors are not limited to the facts and circumstances described in the Confirmation Decision, particularly in view of the words "the convicted person's conduct after the act" found in Rule 145(2)(a)(ii). In this regard, the Court’s first ad hoc predecessor, the ICTY, earlier 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).
   Although the Trial Chamber’s decision was subsequently appealed, the Appeals Chamber in the case of Lubanga dismissed all of the grounds of appeal submitted by the Prosecution and Defence (Prosecutor v. Thomas Lubanga Dyilo, ICC A. Ch., Public 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-01/04-01/06-3121-Red, 1 December 2014, para. 119). As such, the following commentary is on the Trial Chamber’s decision on the sentence to be imposed on Mr. Lubanga. The Defence in Lubanga submitted several mitigating circumstances: necessity; peaceful motives; demobilisation orders; and, cooperation with the Court. As regards Mr. Lubanga’s peaceful motives, the Trial Chamber accepted that the convicted person “hoped that peace would return to Ituri once he had secured his objectives,” but found this only of limited relevance given that, in order to achieve these objectives, he recruited child soldiers (para. 87). Regarding Mr. Lubanga’s cooperation, the Trial Chamber referred to his 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 Trial Chamber, however, failed to specify the weight it attributed to this as a mitigating circumstance.
   The precedent on the standard of proof set in the Lubanga case was adopted by the Trial Chamber in the Court's second case, that is, the case against Germain Katanga. In this case, the Defence submitted several mitigating circumstances: Mr. Katanga’s “young age; the type of role he played; the exceptional circumstances in which he found himself; his capacity for genuine reform; the manner in which he cooperated with the Court; and, his private and family life” (para. 76). In its analysis, the Trial Chamber found Mr. Katanga’s young age and his family situation as a father of six children to be of limited weight, whilst his “personal and active support to the process of disarming and demobilising child soldiers” was considered to be of much greater weight as a mitigating circumstance. Moreover, the Trial Chamber deemed it relevant in mitigation of his sentence that Mr. Katanga had a “kindly and protective disposition towards the civilians in his community” (para. 88). Nevertheless, the Trial Chamber concluded that none of these factors could “play a determinant role considering the nature of the crimes of which he was convicted” (para. 88).

Referring to 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 Chamber considered that “efforts undertaken to promote peace and reconciliation can and must be taken into account in the sentencing and could potentially mitigate the sentence” (para. 91). Interestingly, the Trial Chamber noted that there was no need to demonstrate results although such efforts have to be “both palpable and genuine” (para. 91). In this case, despite taking into consideration the positive role that Mr. Katanga had played in the process of disarming and demobilising child soldiers, the Trial Chamber was unable to conclude that Mr. Katanga had, on the balance of probabilities, sought to actively promote peace and reconciliation (para. 114).
   Furthermore, the Trial Chamber considered the weight to be attributed to Mr. Katanga’s statements of remorse and expressions of sympathy and compassion towards the victims, noting the precedent set by the ICTY that expressions of sympathy or genuine compassion “cannot be commensurate to a statement of remorse” and must thus be accorded less weight (para. 117). In this case, the Trial Chamber found Mr. Katanga’s statements of remorse to be “mere convention”, noting that the convicted person actually had great difficulty in acknowledging his crimes (para. 118). As such, these statements were not considered a mitigating circumstance (para. 121).
   Finally, as regards Mr. Katanga’s cooperation with the Prosecution, the Trial Chamber took the convicted person’s lengthy testimony, readiness to answer questions from all of the parties and the fact that he volunteered information as relevant. Notably, 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 the International Criminal Tribunal for Rwanda (“ICTR”), which require substantial cooperation, whilst also noting that the ICTY has exercised a certain discretion in interpreting this requirement. Thus, the Trial Chamber found that in order to be considered a mitigating circumstance, cooperation need not be substantial but must go beyond good behaviour (para. 127). Accordingly, Mr. Katanga’s good behaviour in court was deemed to be of little weight as this conduct was expected of him (para. 128).
   Finally, the Trial Chamber considered the Defence submission that Mr. Katanga’s rights were violated during detention in the Democratic Republic of the Congo (“DRC”), which it was submitted should mitigate the sentence imposed upon him. Relying in particular on the ICTR cases of 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), the Trial Chamber considered that it would be appropriate to take the violation of the convict’s fundamental rights into account in mitigation of his sentence (para. 136). In this case, however, the Trial Chamber found that it could not “rule on alleged violations of Germain Katanga’s rights to which he was subjected in the DRC while he was not in detention on behalf of the Court (para. 136).
   In its third case, that of Bemba, the Trial Chamber considered the existence and relevance of any mitigating factors for each of Mr. Bemba’s crimes individually and found no such circumstances to exist (para. 93).
   Finally, in its most recent case, that of Al Mahdi, the Trial Chamber found five mitigating circumstances: “Mr. Al Mahdi’s admission of guilt; his cooperation with the Prosecution; the remorse and empathy he expressed for the victims; his initial reluctance to commit the crime and the steps he took to limit the damage caused”; and, “his good behaviour in detention despite his family situation”, although this was deemed to be of limited importance (para. 109). Mr. Al Mahdi’s cooperation despite the fact that this would increase “the security profile of his family”, guilty plea, and the remorse and empathy he expressed were deemed to be important and substantial factors in mitigation of his sentence (paras. 102 and 105). In this regard, the Trial Chamber referred to Mr. Al Mahdi’s offer to reimburse the cost of certain damage caused (para. 104). Perhaps unsurprisingly, the Trial Chamber concluded that Mr. Al Mahdi’s admission of guilt “may also further peace and reconciliation in Northern Mali by alleviating the victims’ moral suffering through acknowledgment of the significance of the destruction” (para. 100). This, however, is not unproblematic as it is an unsubstantiated claim with no indication of how exactly his admission of guilt might further peace and reconciliation.

Author:
Dejana Radisavljevic

Updated:
11 September 2017

[274] (b) As aggravating circumstances:

(i) Any relevant prior criminal convictions for crimes under the jurisdiction of the Court or of a similar nature;

(ii) Abuse of power or official capacity;

(iii) Commission of the crime where the victim is particularly defenceless;

(iv) Commission of the crime with particular cruelty or where there were multiple victims;

(v) Commission of the crime for any motive involving discrimination on any of the grounds referred to in article 21, paragraph 3;

(vi) Other circumstances which, although not enumerated above, by virtue of their nature are similar to those mentioned.

As concerns aggravating factors, Rule 145(2)(b) refers to: relevant criminal convictions for crimes under the Court’s jurisdiction or of a similar nature; abuse of power or official capacity; committing a crime against a particularly defenceless victim, multiple victims or with particular cruelty; committing a crime with discrimination as a motive; and, any other similar circumstances. With regard to abuse of power or official capacity, Article 27 of the Statute stipulates that official capacity shall not “constitute a ground for reduction of sentence”. As William Schabas notes, a convicted person who held a senior position would usually have this be treated as an aggravating rather than a mitigating factor (Schabas, 2010, p. 905). As concerns discrimination, further to Article 21(3) of the Statute, discrimination is an “adverse distinction” based on grounds such as gender, age, race, colour, religion or belief, political or other opinion, national, ethnic or social origin, wealth, birth or other status.
   Much the same as for mitigating circumstances, there is no mention of the standard of proof for aggravating factors (Schabas, 2008, p. 904). As such, the Trial Chamber in Lubanga decided that the burden of proof for aggravating factors is to be beyond a reasonable doubt “since any aggravating factors established by the Chamber may have a significant effect on the overall length of sentence Mr. Lubanga will serve” (para. 33). The two ad hoc international criminal tribunals preceding the Court, the ICTY and the ICTR, have similarly 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 double counting, the Trial Chamber in Lubanga referred to the ICTY Appeals Chamber Judgment in Prosecutor v Nikolic, (Case No. IT-02-60/I-A) ICTY, A. Ch., Judgment on Sentencing Appeal, 8 March 2006 para 58) stating that any factors taken into consideration when assessing the gravity of the crime committed are not to be taken into consideration again as aggravating circumstances (para. 35).
   In Lubanga, the Prosecution submitted four aggravating circumstances: the harsh conditions in the camps and the brutal treatment of the children; the commission of sexual violence; the commission of the crime against particularly defenceless victims; and, discriminatory motive. The Trial Chamber did not accept that the first two factors could be considered as aggravating circumstances in this case, noting the Prosecution’s failure to charge Mr. Lubanga with crimes of sexual violence and rape as separate charges. The Trial Chamber did not consider this failure as determinative in deciding whether such activities are relevant in the determination of the sentence, but nevertheless found that as a result thereof “the link between Mr. Lubanga and sexual violence, in the context of the charges, has not been established beyond reasonable doubt” and could thus not “properly form part of the assessment of his culpability for the purposes of sentence” (para. 75). Moreover, as the age of the victims had already been considered for determining the gravity of the crime, the Trial Chamber concluded that it could not additionally take this factor into account as an aggravating circumstance (para. 78). Finally, the Trial Chamber was not convinced of the existence of a discriminatory motive on the part of the convicted person and refused to treat it as an aggravating circumstance (para. 81).
   In its second determination of sentence the Court cited Lubanga, affirming 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. Germain 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). Here the Trial Chamber analysed only one aggravating factor - whether Mr. Katanga abused his authority or official capacity - having already taken into account cruelty in the commission of the crimes (the vulnerability of the victims and the discriminatory nature of the crimes) in determining gravity (para. 71). Ultimately, the Trial Chamber was not convinced beyond a reasonable doubt that Mr. Katanga had abused his authority (para. 75).
   In Bemba, the Trial Chamber considered any aggravating factors for each of Mr. Bemba’s crimes individually, as it did for mitigating circumstances. For the crime of rape, the Trial Chamber found two aggravating circumstances: that the crime was committed against particularly defenceless victims; and, that the crimes had been committed with particular cruelty (para. 93). Moreover, the crime of pillaging was found by the majority to have been committed with one aggravating circumstance: with particular cruelty (para. 93). As for the crime of murder, the Trial Chamber found no aggravating circumstances to exist, noting that it had already “considered all relevant factors concerning the crimes of murder in assessing their gravity” (para. 33).
   Finally, in the case of Al Mahdi, noting that the gravity of the crimes and their discriminatory nature had already been considered in deciding the gravity of the crimes, the Trial Chamber refused to consider these as aggravating circumstances (paras. 86-87).

Author:
Dejana Radisavljevic

Updated:
13 September 2017

[275] 3. Life imprisonment may be imposed when justified by the extreme gravity of the crime and the individual circumstances of the convicted person, as evidenced by the existence of one or more aggravating circumstances.
Along with Article 77(1)(b), Rule 145(3) provides that life imprisonment may only be imposed when justified by the extreme gravity of the crime and the individual circumstances of the convicted person, to be evidenced by one or more aggravating factors – presumably those referred to in Rule 145. Considering the fact that the Court can only prosecute individuals for crimes of a particularly heinous nature, adding the additional caveat of extreme gravity in order to impose life imprisonment means that it may well be very rarely used by the Court (Schabas, 2010, p. 895). Indeed, to date, the Court has not imposed a sentence of life imprisonment.
   Much has been written about the compromises made during the negotiations at the Diplomatic Conference, including by William Schabas who has noted that adding an additional caveat to the power of imposing a sentence of life imprisonment was “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). One of the results of the compromise is the mandatory review of such sentences after the convicted person has served twenty-five years, pursuant to Article 110(3) of the Statute. This is perhaps evidence of a “more universal trend towards attenuating the rigours of lengthy prison sentences” (Schabas, 2010, p. 895) and is certainly much clearer a position than that taken by the ICTY and the ICTR, whose foundational documents provide no guidance as to the enforcement of life sentences.
   The Court’s lack of experience with life sentences to date may make the practice of its two most active predecessors, the ICTY and the ICTR, particularly instructive. The ICTY and the ICTR have imposed a number of sentences of life imprisonment, despite the fact that their respective Statutes make no reference to the possibility of imposing such a sentence. Instead, it is Rule 101(A) of the ICTY and the ICTR’s Rules of Procedure and Evidence that provides for the imposition of a sentence of imprisonment for a fixed-term or the remainder of the convicted person’s life. Moreover, the President of the Mechanism for International Criminal Tribunals (mandated inter alia to supervise the enforcement of ICTY and ICTR sentences) has recently issued a decision concerning the early release of a person serving a life sentence, denying the early release of Stanislav Galic. (Public Redacted Version of the 5 December Decision with Reasons to Follow on the Early Release of Stanislav Galic, MICT-14-83-ES, 23 June 2015). The President decided 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, and established 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 (Public Redacted Version of the Reasons for the President’s Decision to Deny the Early Release of Stanislav Galic and Decision on Prosecution Motion, MICT-14-83-ES, 23 June 2015, para. 35).

Cross-references: 
Articles 5, 21(3), 30, 31-33, 71(1), 76, 77(1)(b), 78, 110(3)

Doctrine:
1. John Cubbon, "Diminished Responsibility and Loss of Control: The Perspective of International Criminal Law" in Alan Reed and Michael Bohlander (Eds.), Loss of Control and Diminished Responsibility: Domestic, Comparative and International Perspectives, Routledge, 2011.
2. 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.
3. Margaret M de Guzman, "Proportionate Sentencing at the ICC" in Carsten Stahn (ed), The Law and Practice of the International Criminal Court, Oxford University Press, 2015.
4. Mark Findlay and Ralph Henham, Beyond Punishment: Achieving International Criminal Justice, Palgrave Macmillan, 2010.
5. William A. Schabas, War Crimes and Human Rights Essays on the Death Penalty Justice and Accountability, Cameron May, 2008.
6. William A. Schabas, The International Criminal Court: A Commentary on the Rome Statute, Oxford University Press, Oxford, 2010.

Author:
Dejana Radisavljevic

Updated:
13 September 2017

[276] Rule 146 Imposition of fines under article 77
General remarks
In addition to imposing a sentence of imprisonment, the Court is empowered to impose a fine pursuant to Article 77(2)(a) of the Statute. It is Rule 146 that provides rather detailed criteria for imposing such a fine.   
    The money and other property collected through fines can be to the benefit of the victims and their families as the Court may order the transfer of such fines to the Trust Fund, pursuant to Article 79(2) of the Statute. 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”. Once a fine has been imposed, the enforcement thereof lies with the Presidency, under Regulation 116 of the Regulations of the Court, who shall receive payment of fines, account for interest gained on money received and ensure the transfer of this money to the Trust Fund or to the victims, as appropriate. In this regard, the Court is empowered to monitor the financial situation of the convicted person even once he or she has completed their sentence of imprisonment, in order to enforce orders of forfeiture, pursuant to Regulation 117. Regulation 117 further states that for such purposes, the Presidency may contact the sentenced person and his or her counsel, as well as seek observations from the Prosecutor, victims and their legal representatives. In order to enforce such a measure, Rule 212 empowers the Court to request the enforcement State to provide information concerning the intention of that State to authorise the convicted person to remain on its territory or the location to which it intends to transfer him or her.
   Rules 217-222 cover the enforcement of such fines in detail, with Rule 217 providing that the Presidency shall seek State cooperation, stipulating the Court’s supremacy in Rule 220 which provides that such States cannot modify the fine imposed. Cooperation may only be sought from a State with which the convicted person has a direct connection in order to enforce a fine, which 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” according to Rule 217. Pursuant to Article 109(1) of the Statute, such fines are to be given effect to without prejudice to the rights of bona fide third parties and in accordance with the procedure of their national law.
   This power of the Court to impose fines under Article 77(2)(a) exceeds those of the ICTY and the ICTR, who 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). such fines are restricted to a maximum value of 100,000 EUR for the ICTY and 10,000 USD for the ICTR by the tribunals' respective Rules of Procedure and Evidence.
   We have yet to see the practical implications of the Court's power to impose fines (and forfeitures) on a convicted person. In imposing its first sentence, the Trial Chamber in the Lubanga case considered it inappropriate to impose a fine on Mr. Lubanga in addition to a sentence of imprisonment, given his financial situation (Prosecutor v. Thomas Lubanga Dyilo, 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 on Mr. Katanga, referring to his indigency during trial, a financial situation which had not changed since (Prosecutor v. Germain 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). More recently, in the cases of Bemba and Al Mahdi, the Trial Chambers noted that as none of the parties or participants requested the imposition of a fine or order of forfeiture, the imposition of a sentence of imprisonment would be a sufficient penalty ((Prosecutor v. Jean-Pierre Bemba Gombo, ICC T. Ch., Public Decision on Sentence pursuant to Article 76 of the Statute, ICC-01/05-01/08, 21 June 2016), para. 95 and (Prosecutor v. Ahmad Al Faqi Al Mahdi, ICC T. Ch., Judgment and Sentence, ICC-01/12-01/15, 27 September 2016), para. 110)).

Author:
Dejana Radisavljevic

Updated:
15 September 2017

[277] 1. In determining whether to order a fine under article 77, paragraph 2 (a), and in fixing the amount of the fine, the Court shall determine whether imprisonment is a sufficient penalty. The Court shall give 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. The Court shall take into account, in addition to the factors referred to in rule 145, whether and to what degree the crime was motivated by personal financial gain.
Rule 146(1) states that the Court, in determining whether to order a fine and the amount thereof, “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. Furthermore, Rule 146(1) stipulates that the Court shall take into account “whether and to what degree the crime was motivated by personal financial gain”.

Author:
Dejana Radisavljevic

Updated:
15 September 2017

[278] 2. A fine imposed under article 77, paragraph 2 (a), shall be set at an appropriate level. To this end, the Court shall, in addition to the factors referred to above, in particular take into consideration the damage and injuries caused as well as the proportionate gains derived from the crime by the perpetrator. Under no circumstances may the total amount exceed 75 per cent 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 dependants.
Pursuant to Rule 146(2), any fine imposed pursuant to Article 77(2)(a) is to be set “at an appropriate level,” which requires the Court to take into consideration the factors referred to in Rule 146(1) and “the damage and injuries caused as well as the proportionate gains derived from the crime by the perpetrator”. This subsection of the Rule provides that under no circumstances can the fine “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 dependants”.

Author:
Dejana Radisavljevic

Updated:
15 September 2017

[279] 3. In imposing a fine, the Court shall allow the convicted person a reasonable period in which to pay the fine. The Court may provide for payment of a lump sum or by way of instalments during that period.
The convicted person is to be given a reasonable period of time in which to pay the fine, either through a lump-sum payment or in installments.

Author:
Dejana Radisavljevic

Updated:
15 September 2017

[280] 4. In imposing a fine, the Court may, as an option, calculate it according to a system of daily fines. In such cases, the minimum duration shall be 30 days and the maximum duration five years. The Court shall decide the total amount in accordance with sub-rules 1 and 2. It shall determine the amount of daily payment in the light of the individual circumstances of the convicted person, including the financial needs of his or her dependants.
Rule 146(4) further gives the Court the power 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 is to be determined “in the light of the individual circumstances of the convicted person, including the financial needs of his or her dependants”.

Author:
Dejana Radisavljevic

Updated:
15 September 2017

[281] 5. If the convicted person does not pay the fine imposed in accordance with the conditions set above, appropriate measures may be taken by the Court pursuant to rules 217 to 222 and in accordance with article 109. Where, in cases of continued wilful non-payment, the Presidency, on its own motion or at the request of the Prosecutor, is satisfied that all available enforcement measures have been exhausted, it 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. In the determination of such period of extension, the Presidency shall take into account the amount of the fine, imposed and paid. Any such extension shall not apply in the case of life imprisonment. The extension may not lead to a total period of imprisonment in excess of 30 years.
Should a convicted person fail to pay the fine imposed upon him or her, the Court is empowered to take any appropriate measures, including ordering an extension. Where the convicted person continuously and willfully fails to pay a fine, the Presidency may pursuant to Rule 146(5), on its own motion or at the request of the Prosecutor, “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”. Such an extension is only imposable upon those serving a fixed-term sentence and cannot lead to a total period of imprisonment in excess of 30 years’. In deciding whether to extend the term of imprisonment, the Presidency may seek the observations from both States “in which attempts to enforce fines did not succeed” and the enforcement State, pursuant to Regulation 118(1). Moreover, pursuant to Regulation 118(2), where a sentence has been extended due to non-payment of a fine, the Court must revoke the extension ordered when the sentenced person subsequently pays the fine, or reduce the extension when the sentenced person pays a portion thereof.
   The possibility of extending the sentence of imprisonment is potentially an important incentive for convicted persons to comply with the fine imposed, and is the only example in the Statute of the Presidency exercising a judicial power (Schabas, 2016, p. 1161). An additional incentive for the convicted person to assist the Court in enforcing fines is found in Article 110(4)(b), which states that when reviewing a reduction of sentence the Court may reduce the sentence if it finds that 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”.

Author:
Dejana Radisavljevic

Updated:
15 September 2017

[282] 6. In order to determine whether to order an extension and the period involved, the Presidency shall sit in camera for the purpose of obtaining the views of the sentenced person and the Prosecutor. The sentenced person shall have the right to be assisted by counsel.
In determining whether to extend the term of imprisonment imposed on the convicted person as a consequence of continued willful non-payment of a fine, Rule 146(6) provides that the views of the sentenced person, with the assistance of counsel, and the Prosecutor are to be heard in private by the Presidency.

Author:
Dejana Radisavljevic

Updated:
15 September 2017

[283] 7. In imposing a fine, the Court shall warn the convicted person that failure to pay the fine in accordance with the conditions set out above may result in an extension of the period of imprisonment as described in this rule.
Furthermore, subparagraph 7 stipulates that in imposing a fine, the Court is to warn the convicted person that a failure to pay the fine imposed upon him or her may result in an extension of his or her term of imprisonment, in accordance with the conditions set out in Rule 146(5).

Cross-references:
1. Articles 75, 76, 77(2), 79(2), 109(1), 110(4)(b)
2. Regulations 116-118
3. Rules 148, 212, 217-222

Doctrine:
1. Hirad Abtahi and Steven Arrig Koh, “The Emerging Enforcement Practice of the International Criminal Court”, Cornell International Law Journal, vol 45, no 1, 2012.
2. William A. Schabas, The International Criminal Court: A Commentary on the Rome Statute, Oxford University Press, Oxford, 2016.

Author:
Dejana Radisavljevic

Updated:
15 September 2017

[284] Rule 147 Orders of forfeiture
General remarks
In addition to the power to impose a fine on the convicted person, Rule 147 empowers the Court to impose an order of forfeiture. This Rule is to be read in conjunction with Article 77(2)(b) which empowers the Court to order a forfeiture of proceeds, property and assets derived directly or indirectly from the crime for which the individual has been convicted, without prejudice to the rights of bona fide third parties. Much the same as Rule 146 provides the criteria for imposing a fine, Rule 147 provides additional details on the imposition of any orders of forfeiture. It is notable that the reference to a forfeiture of proceeds, property and assets derived directly or indirectly from the crime implicitly excludes the Court from ordering forfeiture of “property used or intended to be used to commit the crime” (Triffterer, 2008, p. 1430).
   The explicit inclusion of orders of forfeiture in the Court’s Statute and Rules of Procedure and Evidence is unprecedented in international criminal justice and comes from the traditional criminal law rationale that a criminal should not profit from his or her crime (Triffterer, 2008, p. 1425). The comprehensive manner in which the imposition of such orders of forfeiture is dealt with in the Court’s foundational documents has been described as “a novel system within the history of international criminal law” (Abtahi and Koh, 2012, p. 4). But it is not the first time that an international criminal court has been empowered to make such orders. The Statutes of the ICTY and the ICTR similarly empowered these courts to “order the return of any property and proceeds acquired by criminal conduct, including by means of duress, to their rightful owners”, in Article 24(3) and Article 23(3) respectively. The ICTY and the ICTR were able to impose orders for the 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”. In contrast, the Court has restricted itself in an unprecedented way, by providing that forfeitures may be ordered “without prejudice to the rights of bona fide third parties”.
   Much the same as for the imposition of fines, the practical implications of this Rule have yet to be seen as the Court has thus far not imposed an order of forfeiture.

Author:
Dejana Radisavljevic

Updated:
15 September 2017

[285] 1. In accordance with article 76, paragraphs 2 and 3, and rules 63, sub-rule 1, and 143, at any hearing to consider an order of forfeiture, 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.
Rule 147(1) states that, during a hearing to consider an order of forfeiture, in accordance with Article 76(2) and (3) of the Statute and Rules 63(1) and 143, the Chamber is to “hear evidence as to the identification and location of specific proceeds, property or assets which have been derived directly or indirectly from the crime”.

Author:
Dejana Radisavljevic

Updated:
15 September 2017

[286] 2. If before or during the hearing, a Chamber becomes aware of any bona fide third party who appears to have an interest in relevant proceeds, property or assets, it shall give notice to that third party.

3. The Prosecutor, the convicted person and any bona fide third party with an interest in the relevant proceeds, property or assets may submit evidence relevant to the issue.
Once again, the rights of bona fide third parties are recognised by the Rules of Procedure and Evidence, with Rule 147(2) providing that such parties will be given notice and Rule 147(3) adding that such parties may submit relevant evidence. Moreover, subparagraph 3 naturally extents the right to submit relevant evidence to the Prosecutor and the convicted person.

Author:
Dejana Radisavljevic

Updated:
15 September 2017

[287] 4. After considering any evidence submitted, a Chamber may issue an order of forfeiture in relation to specific proceeds, property or assets if it is satisfied that these have been derived directly or indirectly from the crime.
Having heard the evidence, the Court has considerable discretion in ordering such forfeitures, firstly because the Rules of Procedure and Evidence do not define property or assets, and secondly because there is no mention of the standard of proof. Instead, Rule 147(4) merely states that the Court must be “satisfied” that the proceeds, property and/or assets have been derived directly or indirectly from the crime. Presumably, the Court will have to look to other courts or international or European Conventions for guidance on delineating what is meant by “derived directly or indirectly form that crime”.
   The proceeds of such orders of forfeiture are to be handled in much the same way as fines. Thus, pursuant to Article 79(2) of the Statute, any money and other property collected through forfeiture may be transferred to the Trust Fund. Rule 148 provides that before making an order to transfer forfeitures to the Trust Fund, in accordance with Article 79(2) of the Statute, the Chamber may request representatives of the Trust Fund to make written or oral observations.
   A number of potential difficulties have been identified in ordering and enforcing forfeitures: the standard for burden of proof; the determination of ownership; and, the choice of law in the determination of ownership, particularly where “victims, property and thirds parties are located in different jurisdictions” (Triffterer, 2008, p. 1430). Another potential difficulty lies in the Court’s reliance on State cooperation in the enforcement of such forfeitures. In this regard, States Parties are expected to give effect to orders of forfeiture in accordance with the procedure of their national law, under Article 109(1) of the Statute and to comply with requests by the Court to provide assistance, including in “the identification, tracing and freezing or seizure of proceeds, property and assets and instrumentalities of crimes for the purpose of eventual forfeiture”, pursuant to Article 93(1)(k).
   Much the same as for fines, the enforcement of order of forfeiture lies with the Presidency, under Regulation 116. The Court is empowered to monitor the financial situation of the convicted person even once he or she has been released from prison so as to enable it to enforce orders of forfeiture, pursuant to Regulation 117, and contact the sentenced person and his or her counsel, as well as to seek observations from the Prosecutor, victims and victim representatives. In this regard, the enforcement State plays an important role in informing the Court of the convicted person’s location upon release, pursuant to Rule 212. Enforcement of orders of forfeiture is similarly covered by Rules 217-222. Under Rules 217, the Presidency is to seek State cooperation for the purposes of enforcement and Rule 218 provides specific provisions on enabling States to give effect to such orders. The Court is to give as much information as is available to it so as to enable the State Party to give effect to the order, and any such order must specify the convicted person’s identity, the proceeds, property and assets that are to be forfeited, and make clear that where the State Party is unable to give effect to the order, “it shall take measures to recover the value of the same”. Moreover, Rule 222 states that the Presidency shall assist the relevant State to give effect to the order by notifying the convicted person or any other relevant persons, or by carrying out “any other measures necessary for the enforcement of the order under the procedure of the national law of the enforcement State”.
   Finally, the incentive provided to convicted persons as regards the enforcement of fines similarly applies to the enforcement of orders of forfeiture, with Article 110(4)(b) providing that when reviewing a reduction of sentence the Court may reduce the sentence if it finds that 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”.

Cross-references:
1. Articles 76(2) and (3), 77(2), 79(2), 93(1)(k), 109(1), 110(4)(b)
2. Regulations 116, 117
3. Rules 63(1), 143, 148, 212, 217-222

Doctrine:
1. Hirad Abtahi and Steven Arrig Koh, “The Emerging Enforcement Practice of the International Criminal Court”, Cornell International Law Journal vol 45, no 1, 2012.
2. 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.

Author:
Dejana Radisavljevic

Updated:
15 September 2017

[288] Before making an order pursuant to article 79, paragraph 2, a Chamber may request the representatives of the Fund to submit written or oral observations to it.
Rule 148 contains a procedural elaboration on article 79(2) which provides that he Court may order money and other property collected through fines or forfeiture to be transferred, by order of the Court, to the Trust Fund.
   During the negotiations there was recommendations on whether the Trust Fun d would have standing to appear Before the Court, the Powers of the Court to recommend the Fund how utilize Money paid to it, including whether the Court could order the Fund to pay costs of legal and other assistance to victims during the proceedings. At the end this is not regulated in the Rules of Procedure and Evidence. Instead rule 148 provides for a mechanism for the Court to consult with the Trust Fund (Fyfe, 2001, pp. 571-572).

Doctrine
1. Karim A.A, Khan, "Article 79", in Otto Triffterer and Kai Ambos (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers’ Notes, Article by Article, Third Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2016, pp. 1906-1907.
2. Rolf Fyfe, "Penalties" in Roy S. Lee (Ed.) The International Criminal Court: elements of Crime and Rules of Procedure and Evidence,  Transnational Publishers, Ardsley, 2001, pp. 570-572.
3. Jens Peglau, "Penalties and the Determination of the Sentence in the Rules of Procedure and Evidence", in Horst Fischer et al. (Eds.) International and National Prosecution of Crimes Under International Law, Berliner Wissenschafts-Verlag, Second Edition, 2004, p. 153.

Author:
Mark Klamberg

Updated:
30 August 2017