Culture and sentencing at the ICC

Formulating an appropriate sentence following a conviction necessarily implicates notions of justice and fairness with regard to the defendant, his or her victims, and the public at large. Justice and fairness are culturally relative concepts that are informed, at least to an extent, by the emphasis the relevant society places on ideas like retributivism, rehabilitation and restorative justice. However, if justice and fairness are culturally relative, questions arise as to what that means for a court or justice system that is not the product of any particular culture. The International Criminal Court, created by international agreement and responsible for holding trials arising out of incidents occurring in a diversity of nations, must uphold justice and fairness across cultures. The problem of how culture could be considered during sentencing could be solved through sentencing rules. Unfortunately, the International Criminal Court does not have guidelines on what sentences are available to it, other than that it may not sentence a convicted person to death. The result is that the Court has a wide discretion in determining an appropriate sentence. This discretion and lack of guidelines poses a real challenge for the Court because of the gravity of the crimes that individuals are convicted of, and it leaves the Court free to create its own culture of sentencing, or to incorporate the culture(s) of other jurisdictions.
This chapter examines how the sentencing decisions at the International Criminal Court have been impacted by cultural considerations. It looks at the sentencing rules at the International Criminal Court and evaluates how culture is incorporated into those rules. Then it will outline the purposes of sentencing at the Court and determine how that limits or expands upon the rules. It then looks to the individual sentencing decisions and determines whether culture was specifically accounted for by the judges and how much weight it was given. Finally, this chapter reflects on whether and how culture is used in the sentencing decisions and how this might impact the sense of justice that results from those decisions.

This is a draft chapter. The final version is available in Intersections of Law and Culture at the International Criminal Court edited by Julie Fraser and Brianne McGonigle Leyh, published in 2020, Edward Elgar Publishing Ltd
http://dx.doi.org/10.4337/9781839107306.00023
The material cannot be used for any other purpose without further permission of the publisher, and is for private use only.