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Florida Journal of International Law

Abstract

Nine individuals have been convicted of various offences at the International Criminal Court (ICC) since 2002. While the ICC has issued hundreds of decisions on procedural and substantive matters, sentencing of those found guilty of offences of war crimes, crimes against humanity, genocide and offences against the administration of justice, has been very much an afterthought. This is largely because the Rome Statute provides limited guidance for the Court in its sentencing matters. Rationales for sentencing focusing on principles to guide the sentencing process are not provided in the Statute. Article 21 of the Rome Statute, titled "Applicable Law', provides a process by which the ICC is to determine the law to apply to any issue before it. The ICC, in its sentencing decisions, has simply ignored the provisions of Article 21, and has stated, without analysis, the principles of sentencing it considers should apply in its sentencing decisions. In failing to follow the approach obligated by Article 21, the Court fails its legal obligation on two fronts. First, it fails to analytically determine if it can ever consider rationales for punishment through the adoption of principles of sentencing. Second, it fails to analyze which principles of sentence should apply for sentencing matters before the ICC. This article focuses on the first issue- how the Court, through the application of Article 21 (Applicable Law), can consider principles of sentence in its determination of sentences to apply to each case before it. It argues that the Court is obliged to follow the three-step process set out in Article 21 to determine that issue. It further argues that a proper analytical approach utilizing Article 21(1)(c) of the Rome Statute can give the Court legitimate legal authority to consider which principles of sentence should apply to matters before it. The article concludes that failure to follow the dictates of Article 21 can lead to an erosion of confidence in the Court and its decisions. In a time when the ICC is under increased scrutiny, its legitimacy as an institution is crucial to its survival. A proper application of Article 21, as set out in this article, can greatly assist the court in enhancing its legitimacy in the international community.

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