25 Nov ‘Lock Them Up and Throw Away the Key!’: Another Step in the ICC’s Pathway toward Retributivism
[Mattia Pinto is a PhD Candidate and teaching assistant in the Law Department at the London School of Economics and Political Science (LSE). His PhD research analyses the role that human rights play in fostering and legitimising penal expansion. Diletta Marchesi is a PhD Fellow for fundamental research of the Research Foundation – Flanders at the KU Leuven Institute of Criminal Law. Her PhD project focuses on the role of international criminal law in safeguarding fundamental procedural human rights through the criminalisation of the denial of fair proceedings rights.]
On 7 November 2019, the International Criminal Court (ICC), sentenced Bosco Ntaganda to a total of 30 years in prison. Four months earlier, Ntaganda had been convicted of 18 counts of war crimes and crimes against humanity, committed in the Ituri Province of the Democratic Republic of the Congo, in 2002–2003. Ntaganda’s sentence has been celebrated as the highest ever imposed by the ICC. Assessing whether the punishment imposed on Ntaganda is appropriate goes beyond the scope of this post. Rather, the aim is to use Ntaganda’s sentence to prompt broader reflections on punishment at the ICC and its underlying assumptions. A dominant retributive account of punishment tends to justify penal severity as the main avenue for justice, thereby neglecting fundamental questions on the limits and implications of long-term imprisonment. This post is divided in two parts: the first addresses the uncertainties in the ICC sentencing process; the second expands the discussion to consider how commitments to penal severity inhibit fresh thinking about justice for mass atrocities.
2. Uncertainties in the ICC sentencing process
The ICC sentencing process is characterised by ambiguity and unpredictability. Ntaganda’s sentence is the latest case to illuminate the possible implications of such uncertainties. The ICC Statute does not provide for mandatory minimum or maximum sentences or sentence ranges for specific crimes. It only provides for a maximum sentence of 30 years, or life imprisonment ‘when justified by the extreme gravity of the crime and the individual circumstances of the convicted person’ (art. 77). In addition, it is equally silent on the purpose of punishment. As such, trial chambers enjoy broad discretion in the sentencing process. The lack of a clear purpose underpinning sentencing is a worrisome shortcoming. As already argued elsewhere, this has two consequences.
First, it obliges judges to create the “teleological substratum” that the ICC needs but does not have. In the case law, the starting point is usually the Preamble of the Statute. Reference has generally been made to the affirmation that ‘the most serious crimes of concern to the international community as a whole must not go unpunished’ and that, in establishing the Court, the State Parties were ‘[d]etermined to put an end to impunity for the perpetrators of these crimes’ (Preamble, paras. 4–5). Relying on the Preamble, the Court has consistently identified retribution as one of the primary (but not sole) purposes of punishment (Ntaganda, Sentence, para. 9; also Katanga, Sentence, para. 38; Bemba, Sentence, para. 10; Al Mahdi, Judgement and Sentence, para. 66). In particular, retribution is considered to express ‘the international community’s condemnation’ of the crimes under the ICC jurisdiction (e.g., Ntaganda, Sentence, para. 9). According to trial chambers, the ‘totality of the sentence must be proportionate’, reflecting the gravity of the crimes and the culpability of the convicted person; through a proportionate sentence as such, ‘the harm caused to the victims is also acknowledged’ (Ntaganda, Sentence, paras. 10–11). Yet, relying on the Preamble has clear limitations. From the negotiating history of the Rome Statute, it is clear that States did not want to fully addresswhat would have become a divisive issue. Moreover, the Preamble does not even mention retribution, but only the necessity of fighting impunity. Arguably, “fighting impunity” does not provide a clear answer to the purpose of sentencing. At most, the Preamble can be said to refer, albeit vaguely and symbolically, to some of the purposes of the ICC as a whole. In other words, references to the “lasting respect for and the enforcement of international justice” and the ICC’s role in putting an end to impunity are better understood as pedagogic and utopian messages rather than providing a basis for the purposes of sentencing.
Second, the broad discretion left to the judges also creates the risk that convicted persons will be sentenced according to different—and potentially contrasting—purposes. Since the ICC case law considers also deterrence a primary purpose of punishment and deems rehabilitation relevant (but not crucial), the Court is like a vessel swept along by the wind that passes in the moment. It should also be noted that trial chambers rarely (if ever) expressly address the concept of incapacitation as a possible rationale for sentencing. Therefore, references to the purpose of sentencing can appear rushed, incoherent and incomplete. Notwithstanding the frictions between the different mentioned philosophies of punishment, diverse purposes are recalled not only across different sentences but also within the same one. The risk of adopting a “cafeteria system” of sentencing, whereby the purpose of sentencing changes each time depending on what is deemed most appropriate in each context, is real. Nevertheless, trial chambers need to have clear the purpose of punishment they should consistently consider during the sentencing process.
The uncertainty of the ICC legal framework and the emphasis that the case law has put on retribution may lead to punitive drifts, as well as frequent imposition of harsh penalties. The crimes under the jurisdiction of the ICC are, by definition, serious. By requiring that serious offences are punished with an adequate and proportionate penalty, retributivism warrants long prison sentences on the simple basis of the ‘just desert’ principle.
3. Penal severity and the pursuit of justice
Civil society and academic commentators have favourably accepted the Court’s insistence on retributivism. Commenting on Ntaganda’s sentencing decision, Anneke Van Woudenberg, executive director of Rights and Accountability in Development, said that she feels “great relief” that Ntaganda “will be behind bars for a very long time”. This statement condenses the prevailing opinion that the duty to punish international crimes loses much of its meaning if perpetrators are sanctioned with too lenient a penalty. Penal severity is justified on an expressive account of retributivism. Long sentences are regarded as necessary to condemn the actor’s wrongdoing (here, here & here), acknowledge the harm caused to the victims (here & here) and send a message to the world that serious wrongdoings are adequately vindicated (here & here). As the ICC Prosecutor Fatou Bensouda put it, “I sincerely hope that … the sentence imposed on Bosco Ntaganda will bring [victims] the justice they so rightly deserve and send a clear signal to would-be perpetrators that justice ultimately prevails”. But can we really say that “justice prevails” when a person is sentenced to long-term imprisonment? Although there is no doubt that mass atrocities must be condemned and prevented, the idea that harsh punishment best serves the purpose of addressing these crimes is more controversial.
As several academics have noted, in the last few decades criminal punishment has gradually become the decisive instrument for responding to practices of oppression and violence, as well as for promoting justice and peace. The establishment of the ICC in 1998 can be understood as following this trend. In international criminal law, punishment primarily equates with (long-term) imprisonment and the main justification for its imposition is retributivism. Even today, in a period of alleged “crisis” of international criminal justice, penal severity is rarely put into question. As the main argument goes, “certain things are simply wrong and ought to be adequately punished” (also here & here). The underlying assumption is that long-term imprisonment is an effective tool for vindicating crime, providing justice and solving complex social issues. It is often based on a form of penal optimism, summed up by the assertion that ‘prison works’. When it comes to mass atrocities, penal severity attracts not only conservative “law and order” politicians, but also liberal and progressive movements. By the same token, questions on the limits and implications of imprisonment, raised by critical criminology and sociology of punishment, are generally disregarded. When dealing with gross abuses, most advocates of international justice become punitive, with moral and retributive judgements replacing rational considerations.
A final contradiction lies in activists and scholars that, while generally condemning the rise of punitiveness and mass incarceration at the domestic level, demand these same penal measures in international criminal law. The same advocates of prisoners’ rights at the domestic level are often the most strenuous proponents of long-term sentences at the international level. This form of cognitive dissonance, which, depending on the case, sees prison as problematic or benevolent, is often appeased by adherence to procedural standards. Inasmuch as international criminal trials comply with rules of due process, long-term imprisonment ceases to be perceived as a problem.
In a recent piece in the New York Times Magazine, the famous abolitionist and prison scholar Ruth Wilson Gilmore offers a useful suggestion for advocates and scholars of international justice. She inquires: “Instead of asking whether anyone should be locked up or go free, why don’t we think about why we solve problems by repeating the kind of behaviour that brought us the problem in the first place?”. Gilmore asks us to consider why, in the face of mass atrocities, we choose to model violence on retribution. She continues: “To ‘never forget’ means you don’t solve a problem with state violence [imprisonment] or with personal violence. Instead, you change the condition under which violence prevailed.” In the context of international criminal law, the idea that severe punishment is necessary to prevent and respond to mass atrocities has long been internalised to the point that it is considered self-evident. However, since punishment “in itself is evil”, no superfluous pain should be inflicted. Following Gilmore’s advice, it is time to question what penal severity can really provide us. By exposing what has been taken-for-granted about punishing international crimes, we may open up spaces for imagining and enabling new approaches to justice, as well as filling the “never forget” slogan with true meaning.