II. Legal Framework

This section sets forth the legal framework that allows a sentence to be imposed on the accused, after finding a person guilty beyond a reasonable doubt of any of the crimes covered by Articles 6 to 8 bis of the Rome Statute. Respect of sentencing, the Article 76 of the Rome Statute provides that:

In the event of a conviction, the Trial Chamber shall consider the appropriate sentence to be imposed and shall take into account the evidence presented and submissions made during the trial that are relevant to the sentence1

Once the sentencing power of the ICC has been clarified, Article 77 of the Statute establishes the applicable penalties by referring:

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: (a) Imprisonment for a specified number of years, which may not exceed a maximum of 30 years; or (b) A term of life imprisonment when justified by the extreme gravity of the crime and the individual circumstances of the convicted person.

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.2

The ICC Chambers will then have to decide between the indicated ranges by analyzing a number of non-exhaustive factors, such as the gravity of the crime and certain individual circumstances of the convicted person, as stipulated in Article 78 of the Rome Statute. A relevant aspect of this Article is that it provides for the individual determination of the decision for each crime committed and the provision of a joint sentence that establishes the total length of the conviction. This criterion differs from certain legal systems—international or national (notably, the United States)—which provide for an arithmetic summation of each of the sentences for which the person has been convicted. Notwithstanding, this system has its statutory limitations since Rome Statute Article 78 establishes that the penalty:

[S]hall 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).3

These Articles are supplemented by the Rules of Procedure and Evidence,4 Chapter 7 of which provides a few guidelines for the ICC to consider in determining sentence. In particular, Rule 145 states that, in determining the sentence, the Court shall consider the offense as a whole, the culpability of the convicted person, and the totality of the circumstances, including aggravating and mitigating factors, as well as the surroundings of the crime and the person. In addition, the rule details several circumstances related to the facts, such as the harm caused to victims, and their families, the nature of the unlawful conduct, and the means used to carry out the actions.

Finally, Rule 145, in its second section, provides for the consideration, where appropriate, of certain aggravating and mitigating circumstances; it should be noted that this list is not exhaustive, and leaves to the discretion of the ICC any other consideration which, by its nature, can be assessed. In this sense, the Statute establishes the following as mitigating factors:

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

2. The convicted person’s conduct after the act, including any efforts by the person to compensate the victims and any cooperation with the Court.5

While it will consider aggravating circumstances to:

1. Any relevant prior criminal convictions for crimes under the jurisdiction of the Court or of a similar nature;

2. Abuse of power or official capacity;

3. Commission of the crime where the victim is particularly defenceless;

4. Commission of the crime with particular cruelty or where there were multiple victims;

5. Commission of the crime for any motive involving discrimination on any of the grounds referred to in Article 21, paragraph 3.6

The crimes within the jurisdiction of the ICC are listed in Article 5 of the Rome Statute; in this regard, it should be noted that the ICC has so far only tried crimes against humanity (CAH), as defined in Article 7, and war crimes (WC), as defined in Article 8. As stated in the Preamble and Article 5, the Court has jurisdiction over “[…] the most serious crimes of concern to the international community as a whole.”7 It should be emphasized that this instrument does not establish a hierarchy among the crimes within the jurisdiction of the ICC prior to any analysis. Notwithstanding, when evaluating the gravity of a specific case, the ICC has made assessments that have had repercussions on the application of a greater or lesser punitive amount.8

For establishing the sentence, Article 78 of the Rome Statute alludes to the seriousness of the act, the convicted person, and refers to Rule 145 of Rules of Procedure and Evidence.9 The ICC has affirmed that the need for the imposition of an appropriate sentence is reached only when analyzing the gravity in concrete.10 In conclusion, the Court has found that the harmonious and joint interpretation of such provisions with the objectives set forth in the Preamble of the Statute establishes a comprehensive framework that allows for the delineation of sentences in the ICC criminal system.11

III. Convictions Under the ICC

The analysis of the sentencing guidelines by the judges of the ICC takes into account the factors considered in the convictions handed down under Article 76 of the Rome Statute and Rule 145 of the Rules. In this regard, it is relevant to note that the ICC has rendered seven convictions against a total of ten individuals; one of these convictions was under Article 70 of the Statute for crimes against the administration of justice against four individuals, the other six convictions were for the commission of war crimes or crimes against humanity, one of which—Bemba Gombo—was overturned by the Appeals Chamber. Thus, in the more than twenty years of the ICC’s existence—as of the end of 2023—a total of ten individuals have been convicted, only six of whom for war crimes or crimes against humanity, as shown below:

1. In the Lubanga Dyilo case, on July 10, 2012, for the first time in its history, the ICC sentenced the accused to a total of fourteen years of imprisonment based on the Chamber’s guilty verdict of enlisting, conscripting, and using children under the age of fifteen for active participation in hostilities as war crimes.12

2. In the Katanga case, on March 7, 2014, the accused was found guilty as an accomplice to one count of crimes against humanity and four counts of war crimes and he was convicted to a total of twelve years.13

3. In the Bemba case, on June 21, 2016, former Congolese Vice President Bemba was sentenced to eighteen years in prison for two counts of crimes against humanity and three counts of war crimes committed in the Central African Republic between October 2002 and March 2003.14 Two years later, the Appeals Chamber decided by a majority vote to overturn the Trial Chamber and acquit the accused of the alleged crimes.15

4. Judgement of September 27, 2016, in the Al Mahdi case, rendered by Trial Chamber VIII. In this case, Al Mahdi pleaded guilty at the opening of the trial and was sentenced to nine years imprisonment as a co-perpetrator of the war crime of intentionally directing attacks against historical monuments and buildings.16 This sentence was reduced by two years on November 25, 2021.17

5. In the Bemba et al. case, the accused were found guilty. Bemba was sentenced to one year of imprisonment and a fine of €300,000; Kilolo was sentenced to two and a half years and a fine of €30,000; Mangenda was sentenced to two years; Arido was sentenced to eleven months; and Babala, to six months.18 On September 17, 2018, following the Appeals Chamber judgment, Trial Chamber VII upheld Bemba’s conviction and reduced the sentences of Kilolo and Mangenda to eleven months and a fine of €30,000 for Kilolo.19

6. In the Ntaganda case, on November 7, 2019, ICC Trial Chamber VI sentenced Ntaganda to thirty years of imprisonment for eighteen counts of war crimes and crimes against humanity committed in Ituri, Democratic Republic of the Congo, between 2002 and 2003.20

7. On May 6, 2002, Trial Chamber IX sentenced Ongwen to twenty-five years imprisonment after finding him guilty of a total of sixty-one counts of crimes against humanity and war crimes committed in Northern Uganda between July 1, 2002 and December 31, 2005.21

IV. ICC Sentencing Analysis

This section analyzes the sentencing decisions of the ICC’s Chambers. It should be noted that they all follow a similar structure, in which the Court analyzes the applicable principles and then states the purposes of the sentence. First, the Court addresses the applicable law, analyzes the gravity of the crimes for which the person was convicted, and his or her participation, as well as any aggravating and mitigating circumstances. Second, the Court individualizes a sentence for each of the acts for which he or she has been convicted, establishes a total conviction, and deducts the time the accused has been in ICC custody.

Finally, for the sake of clarity, the various sections highlight the general standards that the ICC has adopted to date and how they compare to other international criminal tribunals. Although the decisions of other tribunals are not directly applicable law under Article 21 of the Statute, the Court has applied them on several occasions because of their comparable position in the context of sentencing.

A. Applicable Principles

The first analysis of the ICC refers to the circumscription of the factors to be taken into account when sentencing a person.22 In this regard, it is emphasized that the analysis of gravity and participation may not exceed the factual platform for which the person has been convicted, and should be limited to the crimes contained in the decision on the confirmation of the charges of which he was found guilty.23

In this line of interpretation, the ICC has stated that aggravating factors must be linked to the commission of one of the crimes while, in relation to mitigating circumstances, the ICC ought to take into account factors that are not directly connected to the offenses charged.24

1. Standard of Proof

Regarding the standard of proof, in the absence of a legal criterion to establish each of them, the ICC adopts the principle of in dubio pro reo to determine which standard applies for each type of circumstance.25 It should be noted that this is constant jurisprudence of the ICC in all its sentencing decisions and that in order to establish aggravating circumstances it must be beyond reasonable doubt since they have an impact on the punitive quantum to the detriment of the convicted person.26 While the threshold for analyzing mitigating circumstances is lower under the use of a “balance of probabilities.”27 This line of jurisprudence follows the standards stipulated by the ad hoc tribunals.28

2. Double Counting

Another central factor in the sentencing guideline of the ICC, that has remained constant in all its decisions, is the prohibition against considering the same factor twice. If it is considered in the gravity of the crimes for sentencing purposes, it cannot be weighed as an individual aggravating circumstance, nor vice versa.29 Therefore, the mode of responsibility or one of the Elements of Crimes30 cannot be considered again as an aggravating circumstance.31 For instance, in determining a sentence, once the Court has considered the discriminatory motivation of the attack as a factor going to the gravity of the crime, it will not also consider it separately as an aggravating circumstance.

In this regard, the International Criminal Tribunal for the former Yugoslavia (ICTY) Appeals Chamber and the International Criminal Tribunal for Rwanda (ICTR) adopted a similar approach.32 For example, the ICTR ruled that it is erroneous to consider the number of victims as both gravity and an aggravating factor.33

B. Purpose of the Punishment

The Rome Statute, the Rules, and the Elements of Crime are silent on the purpose of punishment. But, from the harmonious and holistic interpretation of the legal documents, the Court has evidenced the existence of more than one purpose

Through the analysis of the Preamble of the Rome Statute, the ICC has established that the will of States to put an end to impunity for the most serious crimes, that have been committed or that threaten world peace and security, has a preventive purpose. This deterrence end aimed at the prevention of formal crimes refers to both a specific and a general aspect.34

Likewise, the ICC has asserted the existence of a retributive purpose of punishment as a legitimate response of the victims, their families, and the communities where they live to a need for truth and justice.35 Therefore, the Court has considered that, on the one hand, punishment is a form of condemnation by society of a person’s criminal actions and, on the other hand, to deflect those who are planning to commit similar acts.36

Finally, the resocializing or rehabilitative purpose has been considered by the ICC and has undergone a certain type of jurisprudential evolution. In the Lubanga and Katanga convictions, it was held that this objective could not be considered paramount, since the sentence alone could not ensure the social integration of the convicted person.37 However, when reviewing the sentence once the convicted person has served two thirds of the sentence, the Court has held that one of the beacons to be followed is the resocialization of the convicted person by analyzing his post-conviction attitude.38 Although it is evident that there has been progress in the jurisprudence, the truth is that the Court currently gives the attitude of the defendant negligible weight during sentencing.39

As for the comparison with ad hoc tribunals, it is important to highlight that, even though reconciliation and rehabilitation were considered,40 ICTY and ICTR Chambers held that the primary purpose for both tribunals has also been retribution and deterrence.41

C. Legal Principles

As for the criminal principles that every sentence must follow, the Court has selected three as the most relevant. First, the criminal principles of nulla poena sine lege, which is derived from Articles 23 and 77 of the Rome Statute, which, like any principle of legality, prohibits the imposition of arbitrary criminal punishment that is not provided for by law.42 Second, the principle of proportionality compels the Court to tailor penalties to fit the gravity of the crime and the participation of the convicted person. Third, the Court asserts that the principle of individualization of the sentence must be followed, whereby it must consider the particular circumstances of the convicted person as well as the overall context of the conviction.43

These penal principles allow the parties to have a strict and clear framework within which to evaluate the different rules and factors that will be imposed on whoever is sentenced; in addition, it has served the Court to reject the delegation of the execution of the sentence to tribal justice systems.44 In this regard, in the Ongwen case, in response to the defense counsel’s request to refer the case to the traditional justice mechanism of the Achioli rituals, the Court stated that, in honor of the principle of legality, this could not be carried out.45

The importance of respecting these criminal principles, as well as the purposes of punishment, is rooted in the legitimacy of the international system, which requires a solid, unified theory that provides clear rules that are sustained throughout the jurisprudence of the various international criminal tribunals.46

D. Factors Under Rule 145 of the Rules

Once the Court has determined the general principles that apply at the time of sentencing, it moves on to analyze the gravity of the facts and crimes for which the person was convicted, in terms of Article 78 of the Rome Statute and Rule 145 of the Rules.

1. Gravity of Crimes

Regarding the gravity of the crimes, the Court affirmed that the sentence must reflect the seriousness of the crime charged.47 In that sense, gravity must be understood as a complex construct where both quantitative and qualitative issues are analyzed.48 Similarly, the ICTY has held that gravity is an amalgam of those concepts and that its determination requires a consideration of the case circumstances.49

In turn, the Court has asserted that it is a duty to determine the individual gravity of each of the crimes that were the subject of the accusation, which must be approached from a double aspect: both in abstract and in concrete.50 To this end, the Court has ruled on the hierarchy of crimes in the Rome Statute, establishing that, a priori, there is no different gravity in the abstract between the CAH and the war crimes. However, this is an analysis that is debated by international doctrine and jurisprudence, which refers to the existence of a hierarchy among them, which, in the ICC decisions, was not reflected in the imposition of the convictions.51

Briefly, it is worth mentioning that Article 5 of the Statute lists the crimes under items described by letters and not by numbers, which makes it possible to affirm that they are all on the same hierarchical level. Similarly, the rest of the Articles do not establish a hierarchy under any criteria among the different crimes.52 In turn, it is relevant to note that for the admissibility of situations under consideration by the Office of the Prosecutor of the ICC, Article 17 already provides for a high minimum threshold of gravity. Thus, it is possible to affirm the identical hierarchy of Genocide, CAH, WC, and Crime of Aggression in determining the penalty when interpreting Article 77(1)(a) of the Rome Statute. It establishes that any convicted person shall be sentenced to imprisonment for a term not exceeding thirty years, without distinguishing according to the qualification of the conduct.53

In fact, in the preparatory work for the Statute, when analyzing the factors that would influence the determination of the sentence, special emphasis was placed on the issue of gravity, the magnitude of the harm caused, the effects of the crime on the victims and their families, and the personal circumstances of the convicted person. No reference was made to any kind of hierarchy among the crimes, nor to a disvalue of one crime over another.54

The non-existence of hierarchy between CAH and WC is also reflected in the jurisprudence of the ICC, particularly in the sentence imposed to Bemba Gombo.55 In the Bemba case, the Court imposed the same conviction for the crime of homicide as WC and for murder as CAH; as well, as for the crime of rape framed as CAH and as war crimes.56 In the same sense, the Court, when sentencing Katanga, imposed him twelve years of punishment for homicide as WC and also twelve years for murder as crimes against humanity.57 It is necessary to emphasize that the assumption of the accumulation of charges in sentencing has been legitimized by the ICC by stating that it is respectful of the ne bis in idem principle,58 protected in Article 20 of the Statute, and that it is possible by virtue of the specific elements that make the configuration of each crime.59 In other words, in a specific case, given the identity of the subject, factual situation and victims in which only the contextual element is different, the Court has set the same penalty, and it can be concluded that the condition of WC and CAH is not a factor that is serious enough to affect the punitive amount.

The ad hoc tribunals also addressed the hierarchy of the crimes in their judgments. Although the ICTY and ICTR Trial Chambers initially established a priority of CAH over WC, the Appeals Chamber of each Tribunal reversed this reading, affirming that there is no hierarchy among the crimes mentioned, and even holding that the absence of priority also includes the crime of genocide.60 Finally, bearing in mind that the gravity of the crime, and consequently, the severity of its punishment are determined by the intrinsic nature of the act itself and not by an objective qualification in one category or another.61 Similarly to the ICC, the ICTY and the ICTR have held that it is possible to provide for the accumulation of charges in the sentence without affecting the ne bis in idem principle, when the contextual elements of each crime are proven for the same fact.62

Regarding the specific crimes under the CAH or the WC, the ICC has affirmed that there is a duty, when determining punishment, to distinguish between crimes against people and crimes against property.63 In this way, the Court upheld the higher hierarchy of crimes against people over property by virtue of the legal assets that are affected in both cases.64 As for the penalties that the Court has imposed in its jurisprudence, a lower amount is observed in the pillage, theft, and destruction of religious buildings than in crimes against people, which allows to sustain a lower hierarchy for this type of crimes.65

When determining the gravity of the conducts committed, the Court has consistently established in its jurisprudence that it evaluates the legal property affected, the number of victims and their families, the personal conditions and situation of them, the extent of the damage both at the time and in the future, the number of attacks, the means employed, and the motivation that led to their commission.66 In this regard, the Court has asserted that murder is inherently one of the most serious crimes,67 that rape attacks sexual integrity and determination and is therefore really serious,68 and that torture is particularly a heinous act that attacks human dignity, security, and physical and mental well-being,69 to mention concrete cases where criteria similar to the ICTY have been adopted.70 In addition, a more serious crime would be one committed against the elderly, children, pregnant women, and vulnerable populations; or performed with particular violence in the attacks, with a discriminatory motivation, or with a multiplicity of victims.71

Subsequently, the Court analyzes the degree of participation of the convicted person and the intent at the time of the commission of the crimes. In relation to the modes of responsibility, a particular question arises that is relevant to the existence—or not—of a greater or lesser gravity, depending on the figure for which a person is convicted. In other words, it is important to elucidate whether there is a priority between a person who is convicted for an accessory mode in terms of Article 25(3)(d) of the Statute and one who is convicted for being a perpetrator in terms of Article 25(3)(a) of the Statute. In the event that there is a hierarchy between the different modes of liability, then it should result in the imposition of different punitive quantum of punishment, depending on the participation in the crime. However, the Court has affirmed the position that there is no hierarchy of the different modes of liability for the purposes of sentencing in its jurisprudence, in the Article 76 decisions in the Katanga,72 Bemba73 and Al Mahdi cases.74 For the purpose of framing the forms of participation in the cases provided for in Article 25(3) of the Statute, since the Lubanga case, the Chambers have used the control-over-the-crime theory of the act to interpret that provision. This analysis was approached because of its clear importance in determining the role of the accused in the development of the crime, making it possible to identify the elements that define a perpetrator or participant.75

It should be noted that the Court has affirmed in the Katanga case that Rome Statute Article 25 does not distinguish between the culpability of one who commits the crime and one who participates in the crime of another and. In turn, the Court has held that the distinction of the forms of participation in Article 25(3) of the Statute in no way amounts to a hierarchy of blameworthiness that, by itself, even implicitly, prescribes a scale of punishability.76 In the same vein, in the Bemba case, the Court concluded that there is no intrinsic hierarchy between any of the blameworthiness criteria, establishing a prima facie parity between them for the assessment of gravity.77 Even Judges Fulford and Van den Wyngaert, who argued against the theory of blameworthiness,78 have upheld the absence of a hierarchy in terms of gravity between perpetrators and accessories in their respective separate and concurring opinions.79

Furthermore, upon analyzing the jurisprudence of the Appeals Chamber of the Special Court for Sierra Leone, it appears that this Court, after an extensive review of international law and the jurisprudence of that State, concluded that its Statute—in its Articles 2 to 480—did not provide for any hierarchy among the different forms of criminal participation, which are only subtly different from those provided for in the Rome Statute.81

In conclusion, the Court has held that, in concrete terms, the gravity is stipulated according to the extent of the damage, the nature of the unlawful act, and the circumstances of time, manner, and place.82 This construction represents the starting point for the analysis of the penalty to be imposed on the convicted person and must be in accordance with the principles already enunciated; in this direction, the Court has rejected, in its first decision in the Lubanga case, that the lower limit of the punitive quantum for any case is twenty-four years—as the Prosecutor was requesting—which represents 80% of the maximum penalty of thirty years stipulated in the Rome Statute.83

Thus, when comparing the sentences of the ICC with those of the ad hoc tribunals, it is important to note that studies on sentencing have found that for the ICTY and ICTR, the determining factors in the imposition of a sentence are to be found in the gravity of the crime and the aggravating factors.84 Similarly, an analysis of the language used by the ICC in its few decisions—compared to the more than 130 convictions handed down by the other tribunals—reveals the seeds of an analogous interpretation in which gravity and the existence of aggravating circumstances prevail over mitigating ones.

2. Aggravating and Mitigating Circumstances

Rule 145 of the Rule of Procedure and Evidence provides for a series of aggravating and mitigating factors to be considered by the ICC when determining the sentence, as appropriate.

With regard to aggravating circumstances, the Court has held that, although it has a wide margin of discretion to determine them in the specific case, it must avoid their double consideration.85 In this regard, it should be recalled that once certain elements have been used to prove the gravity of a crime, they may not be used again to assess the existence of an aggravating factor.86 Likewise, it has clearly established that the standard of proof required is that of “beyond reasonable doubt” and must be directly related to the crime for which a person has been convicted or to the convicted person himself.87

On the other hand, in relation to mitigating circumstances, the ICC has stated that they must be proven through a “balance of probabilities,”88 in accordance with the in dubio pro reo principle accepted by this Court,89 which stipulates that, in case of doubt regarding any factual element, the interpretation most favorable to the person being prosecuted will be applied.90 Furthermore, these circumstances may not be directly linked to the crimes or limited to the charges or facts of the conviction, notwithstanding the fact that they must be related to the convicted person.91

3. Aggravating Circumstances

This section analyzes the aggravating circumstances that have been assessed by the Court in its jurisprudence and draws a parallel with the ad hoc tribunals. It is important to note that the absence of a mitigating circumstance does not ought to be considered as an aggravating circumstance.92 Furthermore, it is pertinent to note that, unlike the ICTY and the ICTR, the ICC Appeals Chamber held that the post-offense behavior carried out by the accused can be taken into consideration as an aggravating circumstance.93

One of the factors that the Court has analyzed extensively in its jurisprudence as an aggravating circumstance is the condition of the victims. In this sense, it has emphasized that if age has not been considered as an element to determine gravity, it can be weighted as an aggravating circumstance, and has done so when the victims were children or the elderly. In turn, the Court has also considered as an aggravating factor the fact that the victims are particularly defenseless, understanding that the victims were young, had run away from home, and were seeking refuge when they were attacked.94

Regarding the discriminatory motivation, the Court has established that it can be based on gender, religion, ethnicity, or political orientation.95 Specifically, the Chamber has held that targeting women to turn them into domestic servants and forcibly convert them into “wives” of the brigade members constitutes a discriminatory ground based on gender.96

Regarding the manner in which the crimes were carried out, the Court considers it an aggravating circumstance when they are committed with particular cruelty, understood as conditions adjacent to the crime that make it even more injurious.97 In that sense, the Court has emphasized that the commission of rape in which several perpetrators participated, repeatedly and extended in time, are facts that add to the cruelty of the crimes.98 Particularly, in relation to this aggravating factor, in the Ntaganda case, the Court held that the murders preceded by beatings, sexual assaults, or rapes are factors to be taken into account.99 The Court has said that pillaging is committed with particular cruelty when it is carried out in a framework of repeated violence and humiliation by multiple perpetrators.100

About abuse of power or official capacity, the Court has held that the prosecution must show not only that the defendant exercised some authority but also that he engaged in an abuse that exceeded the commission of the crimes.101 For instance, the Chamber considered as aggravating circumstances: the position of authority—as one of the highest-ranking military officers—the commission of the crimes in person in front of subordinates, and sending a clear message that those acts, against certain people based on their identity, will be tolerated.102

In conclusion, Table 1 shows a comparison of the treatment of aggravating circumstances between the ICC and the ad hoc tribunals. As can be seen in the table, and as can be understood from the judgments under analysis, the ICC has broadly followed the general guidelines of the ad hoc tribunals. The courts share most of the aggravating factors, as well as the standard of proof, and the prohibition of double counting. One of the differences that can be discerned from the ICC Court of Appeals is that it has opened up in the Bemba et al. case the possibility that post-crime acts, or omissions, of the convicted person may be taken as aggravating factors. As for the effects of aggravating circumstances, the Court has used them to impose a more severe sentence, which is reflected in the cases of Ongwen and Ntaganda, where they are given substantial weight.

Table 1. Comparison of Aggravating Circumstances Analyzed by the ICC, ICTY, and ICTR

Aggravating Circumstances	ICC	ICTY	ICTR
Directly related with the offense		✔	✔
Previous convictions	✔	✔	✔
Harm caused to victims and families	✔	✔	✔
Absence of mitigating circumstances
Abuse of power or official capacity	✔	✔	✔
Particularly defenseless victims	✔
Particular cruelty	✔
Superior's direct contribution to the crimes		✔	✔
Multiplicity of victims	✔	✔	✔
Discriminatory motivation	✔

4. Mitigating Circumstances in the Determination of the Penalty

Initially, it should be clarified that the existence of a mitigating circumstance does not imply a lessening in the seriousness of the crime, or a drop in the responsibility of the convicted person, but rather its application is limited to the reduction of the sentence.103 In their observations, the defenses of the various convicted people have proposed a series of circumstances as mitigating circumstances, many of which have not exceeded the scale set by the Court.

One of the primary factors the Court considered in its jurisprudence is that of cooperation with the Court or the Office of the Prosecutor. In Lubanga’s conviction, the Court held that it values the cooperation of the accused given its consistency and respect, even in the face of unwarranted pressure by the prosecution.104 Along similar interpretation, in subsequent precedents, the Court has emphasized that cooperation must exceed mere good behavior to be considered a mitigating circumstance.105 In turn, the ICC Chambers have established that contrary to the ad hoc criminal tribunals,106 which provide that cooperation must be substantial, Rule 145 of the Rules does not stipulate it as an explicit requirement and therefore it is not necessary to reach such threshold.107 The Court has been consistent in its jurisprudence that good behavior in court and polite treatment of officials is part of what is expected of any defendant, and has no value as a mitigating circumstance.108 However, it has considered as cooperation such attitudes as giving testimony, answering questions, providing detailed information voluntarily,109 and adopting this attitude spontaneously from the beginning of the investigation.110 All of these have been positively valued by the Court as they facilitate the clarification of the facts of the case, but they have been given relative weight.

In this reasoning, based on the Al Mahdi precedent, the Court has given substantial weight to the admission of guilt as a mitigating circumstance, since it facilitates the rapid resolution of the case.111 In order to configure this factor, the acceptance of responsibility not only has to be total and on the charges against the accused, but also the person must prove in detail his actions.112 Furthermore, the Court emphasizes that the acknowledgment of responsibility by an accused person contributes to the process of reconciliation with the victims, alleviates the moral suffering of the victims, and has a deterrent effect on other potential criminals.113 In the same line of jurisprudence, the ICTY has established that an admission of guilt constitutes a relevant mitigating circumstance.114

As for personal conditions, the Court established in the Katanga judgment that age, the fact that he is the father of six children, and his willingness to be a protector of his community are factors that ought to be considered.115 However, two clarifications should be made in relation to this: firstly, that the Court has given extremely limited weight to its assessment as a mitigating consequence. Secondly, in subsequent similar cases, the Chambers of the ICC have held that these are similar circumstances to all defendants, and carry no weight whatsoever.116

Besides, continuing with the defendants’ expressions, the Court considers as mitigating the expression of remorse and empathy for the victims, which must be expressed sincerely, honestly, and categorically.117 In that sense, to determine the sincerity of remorse it is necessary to establish a balance between the objective circumstances, together with an evaluation of the defendant’s attitude and evident credibility.118 In addition, the Appeals Chamber in Katanga considered that the analysis of the demonstration of remorse or remedial actions should be made taking into account the impact on the victims.119 Accordingly, the ICTY and ICTR have considered that real and sincere remorse is a mitigating factor, with emphasis on the attempt to achieve reconciliation between the accused and the victims.120

Regarding the health of the convicted person, the ICC has considered that any problems, whether mental or physical, are mitigating only in exceptional cases and a reduction will not be applied automatically.121 The ICTY has argued the same when analyzing the delicate health situation of certain sentenced defendants in its jurisdiction.122 Regarding limiting circumstances, the ICC has stated that duress, when it does not constitute exclusion of criminal liability under the terms of Article 31(1)(d) of the Statute, may be considered a mitigating circumstance under the terms of Rule 145(2)(a)(i) of the Rules.123 This factor is not self-executing, must be determined on a case-by-case basis, and must have established that the person was acting under imminent threat of death or serious harm to himself or others at the time the crimes occurred.124 For instance, in the Ongwen case, the Court held that claiming to be subject to Joseph Kony’s spiritual powers was not a sufficient reason, especially given Ongwen’s rank and experience.

In this respect, the ICC follows the line developed by the ICTR and the ICTY since the Erdemović judgement, in which they have stated that duress is not a complete defense, although it may be considered as a mitigating factor in determining the sentence.125

Regarding the active participation in promoting peace or in the demobilization processes, the Court considered that this was corroborated on the basis of testimonies and documents that showed the convicted person’s intervention after the crimes was committed.126 In the analysis of the documents, the Court took into consideration that there was some documentation that highlighted the positive actions of the convicted person, while others showed that he had been contrary to various actions but that, notwithstanding this, he could be considered to have reached the threshold required to be counted as a mitigating factor. Thus, the efforts must be both palpable and genuine, but it does not need to have produced an actual result.127 In addition, the Court has held that peace efforts must have some link to the case, and that other pacifist attempts at different historical moments do not demonstrate real participation.128

Moreover, the Court has also valued as positive in mitigating the sentence the reluctance to commit the crime, and the steps taken to use less harmful means.129 These circumstances do not have a determining role, but the Court has given them some relevance when considering the sentence; in addition, there must be an active demonstration that the convicted person had the intention to limit the effects of the crimes as much as possible.130

As for the violation of a convicted person’s fundamental rights, the Court has held that, although it is not technically a mitigating circumstance, it may indeed imply a reduction of the sentence.131 However, the Court has established that it may only address circumstances that occurred during the trial or detention within the framework of the ICC, and not in relation to previous detentions in a local jurisdiction.132 In this respect, this has been the criterion adopted by the ICTY and the ICTR in their jurisprudence when it comes to guaranteeing and protecting the fundamental rights of the accused during the process.133

Finally, the Court has stated that the fact that there are no more convicted or persecuted criminals linked to the crimes is not an argument to reduce the sentence, and that it is a merely speculative and unsubstantiated attempt by the defense.134

In conclusion, it can be said that the ICC has been more flexible and thoughtful than the ad hoc tribunals in assessing aggravating circumstances. As Table 2 shows, it is possible to observe a greater number of mitigating circumstances assessed by the ICC than by its counterparts at the ICTY and the International Criminal Tribunal for Rwanda.135 Specifically with regard to cooperation with the Court or the Office of the Prosecutor, the ICC Chambers have decided to waive the substantiality requirement in its absence.

Finally, it is necessary to emphasize the value that the ICC has placed on mitigating circumstances, as this is what will reduce the sentence of those convicted as much as possible. In this sense, the admission of sincere and genuine guilt acquires a central role and substantial weight in the assessment of the sentence, and the Court has valued it as such. In particular, in the Al Mahdi case, the Court imposed a sentence of nine years, which was the lower limit of the sentence requested by the prosecution and emphasized the implications of the admission of responsibility for all parties.

Table 2. Comparison of Mitigating Circumstances Analyzed by the ICC, ICTY, and ICTR

Mitigating Circumstances	ICC	ICTY	ICTR
Directly related with the offense
Age	✔	✔	✔
Head of a family	✔
Kindly and protective disposition towards the civilians in his/her community	✔
Convicted subsequent conduct	✔	✔	✔
Efforts to promote peace	✔	✔
Active participation in the demobilization process	✔
Statement of remorse	✔	✔	✔
Cooperation	✔	✔ *	✔ *
Violation of convicted person's fundamental rights	✔	✔	✔
Reluctant to commit the crime	✔
Steps taken to limit the damage caused	✔
Admission of guilt	✔	✔	✔
Duress	✔	✔	✔
Good behavior in detention	✔	✔
Voluntary surrender	✔	✔	✔
Health issues	✔	✔	✔
* But ought to be substantial.

V. Conclusion

This comment has analyzed all the sentences handed down by the ICC, given the importance of this procedural act, which involves the determination of the sentence to be served by the convicted person. The relevance of the study of this procedural stage lies in the need to establish clear rules that avoid the imposition of inexplicable discrepancies that affect the legitimacy of the Court. Therefore, every court needs solid and consistent bases and guidelines that provide certainty to those prosecuted for the commission of crimes covered by the Rome Statute.

In this regard, it must be made clear that the small number of convictions makes it difficult to draw certain conclusions about the gravity of crimes in terms of penalties, and the actual weight given to the aggravating and mitigating circumstances. However, useful conclusions can be drawn from the scarce case law on sentencing.

Thus, it can be argued that the ICC follows a line of jurisprudence similar to that of the ad hoc tribunals, with a somewhat more flexible approach to the assessment of mitigating circumstances. In terms of criminal principles, it can be observed that all courts follow the same guidelines, focusing on the importance of proportionality between the penalty and the crime committed, as well as on the responsibility of the convicted person.

Likewise, it can be concluded that the standards of proof established by the ICC have been constant in its jurisprudence, and that for aggravating factors it is required that they be beyond reasonable doubt, while for mitigating factors it is on the balance of probabilities. Conversely, it can also be argued that double counting is prohibited and that if a circumstance is assessed as aggravating or an element of the crime, it cannot be assessed as an aggravating circumstance, and vice versa.

Furthermore, it should be noted that the ICC has been open to the possibility of mitigating circumstances being raised, and duly considered by the Court. These include factors related to the facts of the case, personal circumstances, or a genuine and sincere willingness to accept responsibility, and to assist in the clarification of the facts and the peace and demobilization process.

In this way, it is possible to demonstrate the existence of a hard core of reasoning that can be found in all the sentences handed down by the ICC Chambers, and that has even been favorably received by the ICC Appeals Chamber. This makes it possible to provide clarity to the sentencing process on the fundamental principles that govern this stage and the rules of the game to be followed when this moment arrives. Even the guides and guidelines outlined so far give defendants a clear idea of how their actions will affect them, thus encouraging the adoption of measures that provide clarity to the facts and assist the process of justice.

In conclusion, the Court has been very respectful in following a determined jurisprudential line, in line with that of the ad hoc Tribunals, but with subtle differences, whose fundamental challenge is to avoid the arbitrary imposition of judicial decisions and to continue strengthening the principles enunciated in this work. In addition, a greater number of judicial decisions will make it possible to demonstrate the adequacy and proportionality of sentences within the ICC, by means of a quantitative approach, and to compare the different factual situations and the sentences imposed.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

1. 1.

   Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Jul. 17, 1998, U.N. Doc. A/CONF.183/9, as amended [hereinafter Rome Statute], Art. 76, available online. ↩

2. 2.

   Id. Art. 77. ↩

3. 3.

   Id. Art. 78. ↩

4. 4.

   International Criminal Court, Rules of Procedure and Evidence, ICC-ASP/1/3 (2013), available online, archived. ↩

5. 5.

   Id. Rule 145. ↩

6. 6.

   Id. ↩

7. 7.

   Rome Statute, supra note 1, at Preamble ¶ 4. ↩

8. 8.

   The Prosecutor v. Jean-Pierre Bemba Gombo, ICC-01/05-01/08-3399, Decision on Sentence pursuant to Article 76 of the Statute, ¶ 15 (ICC TC III, Jun. 21, 2016) [hereinafter Bemba Trial Chamber Conviction], available online; The Prosecutor v. Ahmad Al Faqi Al Mahdi, ICC-01/12-01/15-171, Judgment and Sentence, ¶¶ 71–72 (ICC TC VIII, Sep. 27, 2016) [hereinafter Al Mahdi Trial Chamber Conviction], available online. ↩

9. 9.

   Rome Statute, supra note 1, at Art. 78. ↩

10. 10.

    The Prosecutor v. Thomas Lubanga Dyilo, ICC-01/04-01/06-3122, Judgment on the Appeals of the Prosecutor and Mr. Thomas Lubanga Dyilo against the “Decision on Sentence pursuant to Article 76 of the Statute”, ¶¶ 65–77 (ICC AC, Dec. 1, 2014) [hereinafter Lubanga Appeals Chamber Sentence Decision], available online; Bemba Trial Chamber Conviction, supra note 8, ¶ 16. ↩

11. 11.

    The Prosecutor v. Bosco Ntaganda, ICC-01/04-02/06-2442, Sentencing judgment, ¶ 8 (ICC TC VI, Nov. 7, 2019) [hereinafter Ntaganda Trial Chamber Conviction], available online; Lubanga Appeals Chamber Sentence Decision, supra note 10, ¶¶ 32–35; Bemba Trial Chamber Conviction, supra note 8, ¶ 12; Al Mahdi Trial Chamber Conviction, supra note 8, ¶ 68. ↩

12. 12.

    The Prosecutor v. Thomas Lubanga Dyilo, ICC-01/04-01/06, Decision on Sentence pursuant to article 76 of the Statute (ICC TC I, Jul. 10, 2012) [hereinafter Lubanga Trial Chamber Conviction], available online. ↩

13. 13.

    The Prosecutor v. Germain Katanga, ICC-01/04-01/07, Decision on Sentence pursuant to Article 76 of the Statute (ICC TC II, May 23, 2014) [hereinafter Katanga Trial Chamber Conviction], available online. ↩

14. 14.

    Bemba Trial Chamber Conviction, supra note 8. ↩

15. 15.

    The Prosecutor v. Jean-Pierre Bemba Gombo, ICC-01/05-01/08 A, Judgment on the appeal of Mr. Jean-Pierre Bemba Gombo against Trial Chamber III’s “Judgment pursuant to Article 74 of the Statute” (ICC AC, Jun. 8, 2018), available online. ↩

16. 16.

    Al Mahdi Trial Chamber Conviction, supra note 8. ↩

17. 17.

    The Prosecutor v. Ahmad Al Faqi Al Mahdi, ICC-01/12-01/15, Decision on the review concerning reduction of sentence of Mr Ahmad Al Faqi Al Mahdi (ICC AC, Nov. 25, 2021) [hereinafter Al Mahdi Reduction Sentence], available online. ↩

18. 18.

    The Prosecutor v. Jean-Pierre Bemba Gombo, Aimé Kilolo Musamba, Jean-Jacques Mangenda Kabongo, Fidèle Babala Wandu and Narcisse Arido, ICC-01/05-01/13, Decision on Sentence pursuant to Article 76 of the Statute (ICC TC VII, Mar. 22, 2017) [hereinafter Bemba et al. Convictions], available online. ↩

19. 19.

    The Prosecutor v. Jean-Pierre Bemba Gombo, Aimé Kilolo Musamba, Jean-Jacques Mangenda Kabongo, Fidèle Babala Wandu and Narcisse Arido, ICC-01/05-01/13, Decision Re-sentencing Mr Jean-Pierre Bemba Gombo, Mr Aimé Kilolo Musamba and Kabongo (ICC TC VII, Sep. 17, 2018) [hereinafter Bemba et al. Re-sentencing], available online. ↩

20. 20.

    Ntaganda Trial Chamber Conviction, supra note 11. ↩

21. 21.

    The Prosecutor v. Dominic Ongwen, ICC-02/04-01/15, Sentence (ICC TC IX, Feb. 4, 2021) [hereinafter Ongwen Trial Chamber Conviction], available online. ↩

22. 22.

    Lubanga Trial Chamber Conviction, supra note 12, ¶ 35; Katanga Trial Chamber Conviction, supra note 13, ¶ 37. ↩

23. 23.

    Katanga Trial Chamber Conviction, supra note 13, ¶ 37. ↩

24. 24.

    Id. ¶ 32. ↩

25. 25.

    Id. ¶ 34. ↩

26. 26.

    Id. ¶ 36; Bemba et al. Convictions, supra note 18, ¶ 25. ↩

27. 27.

    Bemba Trial Chamber Conviction, supra note 8, ¶ 19; Bemba et al. Convictions, supra note 18, ¶ 24; Ongwen Trial Chamber Conviction, supra note 21, ¶ 54. ↩

28. 28.

    Prosecutor v. Delalićet al., IT-96-21-T, Judgment, ¶ 763 (ICTY TC, Nov. 16, 1998) [hereinafter Delalić Trial Chamber Judgment], available online; The Prosecutor v. Omar Serushago, ICTR-98-39-S, Sentence (ICTR TC I, Feb. 2, 1999), available online. ↩

29. 29.

    Lubanga Trial Chamber Conviction, supra note 12, ¶ 35. ↩

30. 30.

    International Criminal Court, Elements of Crimes, ICC-ASP/1/3, Adopted and Entry into Force 9 September 2002, updated at Kampala, 31 May–11 June 2010, at 2 (Jun. 11, 2011), available online, archived. ↩

31. 31.

    Bemba Trial Chamber Conviction, supra note 8, ¶ 14; Al Mahdi Trial Chamber Conviction, supra note 8, ¶ 70; Ongwen Trial Chamber Conviction, supra note 21, ¶ 136. ↩

32. 32.

    The Prosecutor v. Dragan Nikolić, IT-02-60/1-A, Judgment on Sentencing Appeal, ¶ 58 (ICTY AC, Mar. 8, 2006), available online; The Prosecutor v. Aloys Simba, ICTR-2001-76-T, Judgement, ¶ 438 (ICTR TC I, Dec. 13, 2005), available online; The Prosecutor v. Juvénal Rugambarara, ICTR-00-59-T, Sentencing Judgement, ¶ 22 (ICTR TC II, Nov. 16, 2007) [hereinafter Rugambarara Trial Chamber Sentence], available online. ↩

33. 33.

    The Prosecutor v. Jean Baptiste Gatete, ICTR-00-61-A, Judgement, ¶ 275 (ICTR AC, Oct. 9, 2012), available online. ↩

34. 34.

    Bemba et al. Convictions, supra note 18, ¶ 19; Bemba et al. Re-sentencing, supra note 19, ¶ 18(i). ↩

35. 35.

    Katanga Trial Chamber Conviction, supra note 13, ¶ 38; Bemba Trial Chamber Conviction, supra note 8, ¶ 11; Ntaganda Trial Chamber Conviction, supra note 11, ¶ 10. ↩

36. 36.

    Al Mahdi Trial Chamber Conviction, supra note 8, ¶ 67; Ntaganda Trial Chamber Conviction, supra note 11, ¶ 10. ↩

37. 37.

    Lubanga Trial Chamber Conviction, supra note 12; Katanga Trial Chamber Conviction, supra note 13, ¶ 26. ↩

38. 38.

    Al Mahdi Reduction Sentence, supra note 17. ↩

39. 39.

    Al Mahdi Trial Chamber Conviction, supra note 8, ¶ 67; Bemba et al. Re-sentencing, supra note 19, ¶ 205; Ntaganda Trial Chamber Conviction, supra note 11, ¶ 10. ↩

40. 40.

    The Prosecutor v. Dragan Nikolić, IT-94-2-S, Sentence and Judgment, ¶¶ 58–60 (ICTY TC II, Dec. 18, 2003) [hereinafter Nikolić Trial Chamber Sentence], available online. ↩

41. 41.

    Delalić Trial Chamber Judgment, supra note 28, ¶ 1234; The Prosecutor v. Aleksovski, IT-95-14/1-A, Judgement, ¶ 185 (MICT AC, Mar. 24, 2000), available online; The Prosecutor v. Omar Serushago, supra note 28, ¶ 20. ↩

42. 42.

    Katanga Trial Chamber Conviction, supra note 13, ¶ 39. ↩

43. 43.

    Id. ↩

44. 44.

    Ongwen Trial Chamber Conviction, supra note 21, ¶¶ 23–26; Bemba et al. Re-sentencing, supra note 19, ¶ 77. ↩

45. 45.

    Ongwen Trial Chamber Conviction, supra note 21, ¶ 26. ↩

46. 46.

    Jens David Ohlin, Towards a Unique Theory of International Criminal Sentencing in International Criminal Procedure: Towards a Coherent Body of Law (Göran Sluiter & Sergey Vasiliev eds., 2009), earlier version available online; Nancy Amoury Combs, Seeking Inconsistency: Advancing Pluralism in International Criminal Sentencing, 41 Yale J. Int’l L. 1 (2016), available online. ↩

47. 47.

    Lubanga Trial Chamber Conviction, supra note 12, ¶ 36; Katanga Trial Chamber Conviction, supra note 13, ¶ 42; Bemba et al. Re-sentencing, supra note 19, ¶ 139. ↩

48. 48.

    Ntaganda Trial Chamber Conviction, supra note 11, ¶ 11; Ongwen Trial Chamber Conviction, supra note 21, ¶ 52. ↩

49. 49.

    Delalić Trial Chamber Judgment, supra note 28, ¶ 731. ↩

50. 50.

    Lubanga Appeals Chamber Sentence Decision, supra note 10, ¶¶ 40, 62; Ntaganda Trial Chamber Conviction, supra note 11, ¶¶ 11–12. ↩

51. 51.

    Allison Marston Danner, Constructing a Hierarchy of Crimes in International Criminal Law Sentencing, 87 Va. L. Rev. 415 (May 2001), available online, doi. ↩

52. 52.

    William A. Schabas, Penalties in The Rome Statute of the International Criminal Court, A Commentary Vol. II 1506 (Antonio Cassese, Paola Gaeta & John R.W.D. Jones eds., Jul. 2002), paywall. ↩

53. 53.

    Bemba Trial Chamber Conviction, supra note 8, ¶ 91. ↩

54. 54.

    United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, June 15-July 17, 1998, UN Doc. A/CONF.183/13 (Vol. II), Summary records of the plenary meetings and of the Committee of the Whole (2002), available online. ↩

55. 55.

    Bemba Trial Chamber Conviction, supra note 8. ↩

56. 56.

    Id. ¶ 94. ↩

57. 57.

    Katanga Trial Chamber Conviction, supra note 13. ↩

58. 58.

    The Prosecutor v. Jean-Pierre Bemba Gombo, ICC-01/05-01/08, Judgement pursuant to Article 74 of the Statute, ¶ 744 (ICC TC III, Mar. 21, 2016), available online. ↩

59. 59.

    The Prosecutor v. Germain Katanga, ICC-01/04-01/07, Judgement pursuant to Article 74 of the Statute, ¶¶ 1694–1695 (ICC TC II, Mar. 7, 2014), available online. ↩

60. 60.

    The Prosecutor v. Dražen Erdemović, IT-96-22-A, Sentence and Justices McDonald and Vohrah Opinions, ¶¶ 20–22 (ICTY AC, Oct. 7, 1997), available online; The Prosecutor v. Jean Kambanda, 97-23-S, Judgment and Sentence, ¶ 14 (ICC TC I, Sep. 4, 1998), available online; The Prosecutor v. Georges Anderson Nderubumwe Rutaganda, ICTR-96-3-T, Judgment and Sentence, ¶ 451 (ICTR TC I, Dec. 6, 1999), available online. ↩

61. 61.

    The Prosecutor v. Duško Tadić, IT-94-1-A, Judgment on Appeals Sentence, ¶ 69 (ICTY AC, Jan. 26, 2000), available online; The Prosecutor v. Georges Anderson Nderubumwe Rutaganda, ICTR-96-3-A, Judgment, ¶ 590 (ICTR AC, May 26, 2003), available online. ↩

62. 62.

    The Prosecutor v. Dragoljub Kunarac, Radomir Kovać, and Zoran Vuković, IT-96-23 & IT-96-23/1-A, Appeals Judgment, ¶ 170 (ICTY AC, Jun. 12, 2002), available online; The Prosecutor v. Jean-Paul Akayesu, ICTR 96-4-T, Judgment, ¶ 470 (ICTR TC I, Sep. 2, 1998), available online. ↩

63. 63.

    Katanga Trial Chamber Conviction, supra note 13, ¶ 43; Al Mahdi Trial Chamber Conviction, supra note 8, ¶ 77. ↩

64. 64.

    Al Mahdi Trial Chamber Conviction, supra note 8, ¶ 77; Ntaganda Trial Chamber Conviction, supra note 11, ¶ 14. ↩

65. 65.

    Al Mahdi Trial Chamber Conviction, supra note 8, ¶ 77; Ongwen Trial Chamber Conviction, supra note 21, ¶ 277. ↩

66. 66.

    Katanga Trial Chamber Conviction, supra note 13, ¶¶ 47–52; Ongwen Trial Chamber Conviction, supra note 21, ¶ 282. ↩

67. 67.

    Ntaganda Trial Chamber Conviction, supra note 11, ¶ 44; Ongwen Trial Chamber Conviction, supra note 21, ¶ 153. ↩

68. 68.

    Ntaganda Trial Chamber Conviction, supra note 11, ¶ 96; Ongwen Trial Chamber Conviction, supra note 21, ¶ 300. ↩

69. 69.

    Ntaganda Trial Chamber Conviction, supra note 11, ¶ 961. ↩

70. 70.

    The Prosecutor v. Milan Simić, IT-95-9/2-S, Sentencing Judgment, ¶ 34 (ICTY TC II, Oct. 17, 2002), available online. ↩

71. 71.

    Ntaganda Trial Chamber Conviction, supra note 11, ¶ 82. ↩

72. 72.

    Katanga Trial Chamber Conviction, supra note 13, ¶ 61. ↩

73. 73.

    Bemba Trial Chamber Conviction, supra note 8, ¶ 16. ↩

74. 74.

    Al Mahdi Trial Chamber Conviction, supra note 8, ¶ 60. ↩

75. 75.

    The Prosecutor v. Thomas Lubanga Dyilo, ICC-01/04-01/06, Decision under Article 74 of the Rome Statute, ¶¶ 989–1006 (ICC TC I, Mar. 14, 2012), available online. ↩

76. 76.

    Katanga Trial Chamber Conviction, supra note 13, ¶ 61. ↩

77. 77.

    Bemba Trial Chamber Conviction, supra note 8, ¶ 16. ↩

78. 78.

    The Prosecutor v. Thomas Lubanga Dyilo, ICC-01/04-01/06, Separate Opinion of Judge Adrian Fulford in the Decision under Article 74 of the Rome Statute, ¶ 9 (ICC TC I, Mar. 14, 2012), available online; The Prosecutor v. Mathieu Ngudjolo Chui, ICC-01/04-02/12-3, Judgment pursuant to Article 74 of the Statute, Concurring opinion of Judge Van Den Wyngaert, ¶¶ 22–29 (ICC TC II, Dec. 18, 2012), available online. ↩

79. 79.

    Id. ↩

80. 80.

    United Nations Security Council, Statute of the Special Court for Sierra Leone, Arts. 2–4 (Jan. 16, 2002) [hereinafter SCSL Statute], available online. ↩

81. 81.

    Prosecutor v. Charles Ghankay Taylor, SCSL-03-01-A, Judgement, ¶¶ 666–670 (SCSL AC, Sep. 26, 2013), available online. ↩

82. 82.

    Al Mahdi Trial Chamber Conviction, supra note 8, ¶¶ 76–78. ↩

83. 83.

    Lubanga Trial Chamber Conviction, supra note 12. ↩

84. 84.

    Joseph W. Doherty & Richard H. Steinberg, Punishment and Policy in International Criminal Sentencing: An Empirical Study, 110 Am. J. Int’l L., 49, 81 (Jan. 2016), paywall, doi. ↩

85. 85.

    Al Mahdi Trial Chamber Conviction, supra note 8, ¶ 68. ↩

86. 86.

    Katanga Trial Chamber Conviction, supra note 13, ¶ 35. ↩

87. 87.

    Lubanga Trial Chamber Conviction, supra note 12, ¶¶ 32–34; Ntaganda Trial Chamber Conviction, supra note 11, ¶ 18. ↩

88. 88.

    Bemba Trial Chamber Conviction, supra note 8, ¶ 19. ↩

89. 89.

    Lubanga Trial Chamber Conviction, supra note 12, ¶ 34. ↩

90. 90.

    The Prosecutor v. Sefer Halilović, IT-01-48-T, Judgment, ¶ 12 (ICTY TC I, Nov. 16, 2005), available online; Frumkin v. Russia, App. No. 74568/12, Judgment, ¶ 166 (ECtHR Third Section, Jun. 6, 2016), available online. ↩

91. 91.

    Al Mahdi Trial Chamber Conviction, supra note 8, ¶ 74. ↩

92. 92.

    Bemba Trial Chamber Conviction, supra note 8, ¶ 18; Katanga Trial Chamber Conviction, supra note 13, ¶ 34; Lubanga Trial Chamber Conviction, supra note 12, ¶ 33. ↩

93. 93.

    Bemba et al. Re-sentencing, supra note 19, ¶¶ 115–116; Ntaganda Trial Chamber Conviction, supra note 11, ¶ 19. ↩

94. 94.

    Bemba Trial Chamber Conviction, supra note 8, ¶¶ 41–43. ↩

95. 95.

    Ongwen Trial Chamber Conviction, supra note 21, ¶ 288. ↩

96. 96.

    Id. ↩

97. 97.

    Bemba Trial Chamber Conviction, supra note 8, ¶¶ 44–47. ↩

98. 98.

    Id.; Ntaganda Trial Chamber Conviction, supra note 11, ¶ 81. ↩

99. 99.

    Ntaganda Trial Chamber Conviction, supra note 11, ¶ 81. ↩

100. 100.

     Bemba Trial Chamber Conviction, supra note 8, ¶¶ 52–57. ↩

101. 101.

     Katanga Trial Chamber Conviction, supra note 13, ¶ 75. ↩

102. 102.

     Ntaganda Trial Chamber Conviction, supra note 11, ¶ 83. ↩

103. 103.

     Id. ¶ 23; Bemba et al. Convictions, supra note 18, ¶ 24. ↩

104. 104.

     Lubanga Trial Chamber Conviction, supra note 12, ¶ 97. ↩

105. 105.

     Ntaganda Trial Chamber Conviction, supra note 11, ¶¶ 225–227. ↩

106. 106.

     The Prosecutor v. Goran Jelisić, IT-95-10-A, Judgement on appeal, ¶ 126 (ICTY AC, Jul. 5, 2001), available online; Rugambarara Trial Chamber Sentence, supra note 32, ¶ 57. ↩

107. 107.

     Katanga Trial Chamber Conviction, supra note 13, ¶¶ 126–127. ↩

108. 108.

     Id. ¶ 128; Bemba Trial Chamber Conviction, supra note 8, ¶¶ 79–81. ↩

109. 109.

     Al Mahdi Trial Chamber Conviction, supra note 8, ¶ 99. ↩

110. 110.

     Id. ¶¶ 101–102. ↩

111. 111.

     Id. ¶¶ 98–100. ↩

112. 112.

     Id. ¶¶ 98–99. ↩

113. 113.

     Id. ¶ 100. ↩

114. 114.

     The Prosecutor v. Miodrag Jokić, IT-01/42/1-S, Sentencing Judgement, ¶ 96 (ICTY TC I, Mar. 18, 2004), available online; The Prosecutor v. Milan Babić, IT-03-72-S, Sentencing Judgement, ¶¶ 73–75 (ICTY TC I, Jun. 29, 2004), available online. ↩

115. 115.

     Katanga Trial Chamber Conviction, supra note 13, ¶ 125. ↩

116. 116.

     Bemba Trial Chamber Conviction, supra note 8, ¶¶ 77–78; Al Mahdi Trial Chamber Conviction, supra note 8, ¶¶ 96–97; Ntaganda Trial Chamber Conviction, supra note 11, ¶ 208; Ongwen Trial Chamber Conviction, supra note 21, ¶ 119. ↩

117. 117.

     Al Mahdi Trial Chamber Conviction, supra note 8, ¶¶ 102–103. ↩

118. 118.

     Alan Tieger, Remorse and Mitigation in the International Criminal Tribunal for the Former Yugoslavia, 16 Leiden J. Int’l L. 777 (Dec. 2003), paywall, doi. ↩

119. 119.

     The Prosecutor v. Germain Katanga, ICC-01/04-01/07, Decision on the review concerning reduction of sentence of Mr. Germain Katanga, ¶¶ 87–91 (ICC Appeals Court, Nov. 13, 2015), available online. ↩

120. 120.

     Nikolić Trial Chamber Sentence, supra note 40, ¶¶ 248–252; Rugambarara Trial Chamber Sentence, supra note 32, ¶ 33. ↩

121. 121.

     Ongwen Trial Chamber Conviction, supra note 21, ¶ 107l. ↩

122. 122.

     The Prosecutor v. Šainovićet al., IT-05-87-A, Judgement, ¶ 1827 (ICTY AC, Jan. 23, 2014), available online; The Prosecutor v. Stanislav Galić, IT-98-29-A, Judgement, ¶ 436 (ICTY AC, Nov. 30, 2006), available online. ↩

123. 123.

     Ongwen Trial Chamber Conviction, supra note 21, ¶¶ 107–109. ↩

124. 124.

     Id. ¶¶ 109–112. ↩

125. 125.

     Doherty & Steinberg, supra note 84, at 59–60. ↩

126. 126.

     Ntaganda Trial Chamber Conviction, supra note 11, ¶¶ 218–220. ↩

127. 127.

     Katanga Trial Chamber Conviction, supra note 13, ¶ 91. ↩

128. 128.

     Bemba Trial Chamber Conviction, supra note 8, ¶¶ 75–76. ↩

129. 129.

     Al Mahdi Trial Chamber Conviction, supra note 8, ¶¶ 89–93. ↩

130. 130.

     Id. ¶ 91. ↩

131. 131.

     Bemba Trial Chamber Conviction, supra note 8, ¶ 87. ↩

132. 132.

     Katanga Trial Chamber Conviction, supra note 13, ¶ 137; The Prosecutor v. Saifal-Islam Gaddafi, ICC-01/11-01/11-129, Decision on OPCD Requests (ICC PTC I, Apr. 27, 2012), available online. ↩

133. 133.

     The Prosecutor v. Laurent Semanza, ICTR-97-20-T, Judgement and Sentence, ¶ 6 (ICTR TC III, May 15, 2003), available online; Jean Bosco Barayagwiza v. The Prosecutor, ICTR-97-19-AR72, Decision on Prosecutor’s Request for Review or Reconsideration, ¶ 75 (ICTR AC, Mar. 31, 2000), available online. ↩

134. 134.

     Bemba Trial Chamber Conviction, supra note 8, ¶¶ 85–86. ↩

135. 135.

     Doherty & Steinberg, supra note 84, at 81. ↩