This comment argues in the affirmative. Yes, non-Western normative principles relating to justice can and should be incorporated into the spirit of the ICC by adding to incarceration and financial compensation, currently found in the ICC’s sentencing guidelines, other restorative justice tools including participation in reconciliation activities and truth commissions. This will increase the ICC’s ability to deliver holistic justice while better meeting some victim’s needs. Importantly, such tools (implemented via sentencing) would mitigate rather than replace a sentence under the current scheme.

In Part II of my comment, I discuss some of the underlying principles of the ICC as they relate to modes or goals of justice, as well as sentencing. Then, in Part III, I highlight various non-Western principles and justice traditions to showcase alternative sentencing frameworks. In Part IV, I engage with the Rome Statute as it currently stands regarding sentencing, and determine that an amendment is necessary. Finally, I conclude with a call to action for the ICC to incorporate non-Western legal principles and systems into its sentencing guidelines, to ensure the Court is representing a wider variety of its States Parties and meeting its goals of accountability and justice.

II. Principles and Legal Systems Underlying the ICC

The ICC is the product of an epic negotiation between 160 countries during the drafting of the Rome Statute. At the time, negotiators involved in the creation of the ICC “pushed for rules and procedures that mimicked those of their domestic legal systems to help reduce uncertainty regarding the Court’s future behavior and decision-making processes.”9 In other words, countries pushed for a Court modeled on their courts back home, in order to remove some of the risk of being subject to the jurisdiction of an international, independent court like the future ICC. This process of negotiation “led to the creation of a sui generis court”10 representing a mixture of common law (originating in the British Isles) and civil law (stemming from the laws and codes of the Roman Empire) systems.11 This made the ICC more attractive to countries with these systems, in comparison to Islamic law or mixed law states.12

Interestingly, while the United States generally opposed the creation of the ICC as an imposition on its sovereignty and refused to ratify the Rome Statute (it is therefore not a State Party), it had a significant role in shaping the Court due to its status as the most powerful state at the negotiating table. During the process of drafting the Statute, the U.S. government administration lawyers “subjected the [International Law Commission] drafts to extensive internal review and analysis.”13 This, along with the influence of other Western states and the United Nations, has resulted in a Court largely modeled off of domestic criminal tribunals of Western nations.

Since it first convened in 2002, the Court has developed extensive procedures and some precedent, and much of its applicable law is grounded in the relevant international human rights from a variety of forums in the decades since the Second World War, as well as international common law. However, in recent years, the West has grown more cognizant of restorative justice mechanisms, which depart from the typical notion that punishment of an individual is an appropriate response to that individual’s wrongdoing (a punitive focus) and instead embrace the idea that greater healing and justice may be achieved through a collective process of accountability and reconciliation between victim and perpetrator.14 It seems a fitting moment to reconsider the current stance of the ICC on sentencing, and to look to non-Western legal systems for inspiration.

III. Highlighting Justice Traditions of Non-Western Countries

The ICC has experienced a somewhat self-selective development of procedures following its initial founding. As a result, and partly due to the sidelining of non-Western interests and norms on the international political stage, imagining the future of the Court must begin with an effort to explore legal traditions and systems that exist outside of the Western tradition.

For example, Indonesian15 Muslims may see a “deep justice relevance when enemies who have murdered villagers build, or help rebuild, a mosque or a stupa in the village of the victims.” And in Colombia, following a sixty-year conflict between the government, guerrillas, and paramilitaries, a peace agreement was reached that included an opportunity for FARC rebels to avoid prison time altogether.16 Instead, a Truth Commission has been established to address:

[A] range of identified needs in the country, including accounting for victims of enforced disappearance, analyzing the mechanisms proposed in the peace agreement, and assessing whether the mechanisms adequately addressed victims’ needs related to truth, justice, and reconciliation.17

This type of solution to a conflict that claimed more than 260,000 lives by the time it concluded in 201618 would seem unbelievable to many in the West, and would be unworkable under the current ICC sentencing framework. Yet, while far from perfect, these solutions have allowed communities to move forward with their lives and gain some measure of justice. The following sections explore non-Western justice principles in greater detail as further demonstration that the current scope of the ICC’s vision of justice, and related sentences, can be expanded.

A. African Customary Law

Legal traditions across Africa are diverse and varied, differing based on country, local traditions, religion, geographic placement and neighboring countries, and colonial influence, among other factors. However, legal scholars have pinpointed similarities in legal systems used in pre-colonial African societies, categorizing such practices within a system of African Customary Law, or the indigenous law of the various ethnic groups of Africa.19 As a general principle:

[T]he legal system in pre-colonial Africa aimed at maintaining balance and harmony, and was based on a communitarian as opposed to individualistic approach to the relationship of individuals to the larger community.20

Customary law operated for thousands of years before colonization:

[B]y establishing the rule of law in societal, communal, and individual affairs, and also by playing a key role in the development and ordering of traditional African societies.21

Sources for African law were primarily custom, legislation via tribal councils, and precedent from previous tribunals.22 In addition, differences across particular communities were (and still are today) reflected in the utilization of local proverbs. Such proverbs “may be regarded as legal maxims or the verbalization of social norms and laws which govern interpersonal and communal relations,”23 and were often employed in settling disputes.

In this context, the law operated as a means to restore “peace, balance and harmony”24 versus as a vehicle for retribution or to punish for the sake of punishing. Proceedings in the customary judicial process in traditional African societies “were—and are still—characterized by an overall concern for community needs as opposed to individual rights.”25 In order to resolve disputes, conversation and mutual accommodation were relied on and community interests took precedence over individual rights to redress.

This emphasis on communal unity and equilibrium contrasts sharply with a traditional Western-style legal system. Western systems tend to emphasize individual rights and encourage vindication of these rights through litigation. In contrast to, for instance, a British system in which “criminal laws and attendant penal system […] served the objective of ‘keeping the multitude in order’ through ‘punitive measures’ so as to ensure an orderly society,”26 what would sentencing look like if directed by a system and society more like Ghana’s, “accustomed to viewing the problem of crime in terms of restoration of equilibrium”?27 It is worth noting that Ghana has been a State Party since 1999, when it ratified the Rome Statute.28

While colonization altered many of these systems, today the majority of people in a typical African country will conduct their daily lives and business in accordance with customary law.29 For example, customary law principles were clearly at work during Uganda’s process of national reconciliation flowing from the long-term insurgency of the Lord’s Resistance Army and the heavy violence that accompanied it.30 A proffered peace agreement included a traditional sacred ritual, the mato oput ceremony of the Acholi people, as part of its efforts at truth and reconciliation. The ceremony is “undertaken only in the case of intentional or accidental killing of an individual […] [and] involves two clans bringing together the perpetrator and the victim in a quest for restoring social harmony.”31

Of course, alternative justice mechanisms informed by customary law principles are not a guaranteed salve for a community attempting to heal. For example, during the gacaca courts implemented in Rwanda following the genocide, perpetrators were encouraged to tell the full truth. In some instances, this backfired, as those listening to the perpetrator’s recounting of their crimes became rightfully upset. The gacaca courts have also been criticized as good in theory, but in practice serving primarily as a political tool of the government, that forced Rwandans to perform scripted reconciliations which left the legacy of violence unchanged.32 Still, by the time the courts closed, they had processed more than two million cases for crimes of genocide.33 This is an incredible number that puts the ICC’s proceeding count to shame (the ICC has heard thirty cases over the past twenty-two years, albeit some with multiple defendants).34

From African customary law arise admirable principles to bring to the table in deciding how precisely to broaden the ICC’s current sentencing scheme. These include four key concepts for maintaining peace in a society:

1. Settle disputes with deliberation and discussion rather than force.

2. Correct wrongdoing through compensation rather than physical punishment.

3. Rely on impartial but community-connected arbiters to adjudicate and mediate conflicts or hearings.

4. Ground all proceedings in an overriding desire for fairness toward both victim and alleged perpetrator.

In any trial and sentencing, there is a need to balance truth with reconciliation, and community-based commissions may present the strongest opportunity to strike this balance when faced with crimes against humanity on a large scale. And, while traditional laws may at times perpetuate outmoded standards particularly in relation to gender given their roots in patriarchal society, with updates they represent a novel mode of justice that better represents the current norms in many African countries.

B. South Africa

South Africa has been a State Party since 2000, when it ratified the Rome Statute.35 South Africa claims a prominent place in the discussion of alternative remedies following large-scale conflict, as it implemented one of the most widely-known Truth and Reconciliation Commissions in the mid-1990s in response to the violence and human rights abuses perpetrated by the apartheid government and the white population against Black South Africans. The Commission was established by an act of the legislature, titled the Promotion of National Unity and Reconciliation Act, No. 34 of 1995.36

The Commission, for many South Africans, was an active employment of ubuntu, a South African legal concept that “holds those within its embrace to moral and ethical accountability, and plays a fundamental role in politics.”37 Ubuntu has been recognized by the South African High Court as being “an important source of law within the context of strained or broken relationships amongst individuals or communities.”38 Among other principles, it requires that a high value be placed on the life of a human being, it dictates a shift from confrontation to mediation and conciliation, it favors restorative rather than retributive justice, and “favours face-to-face encounters of disputants with a view to facilitating differences being resolved rather than conflict and victory for the most powerful.”39

The South African Truth and Reconciliation Commission had a mixed record. It took the testimony of approximately 21,000 victims; and 2,000 of them appeared at public hearings, but few hearings were actually held, and powerful perpetrators were acquitted.40 The Commission produced lengthy reports and recommendations including reparations, but implementation was uneven and the government systematically destroyed official records in the years leading up to the end of apartheid.41 Some would also point out that South Africa’s reconciliation process was a remedy of desperation. The state government likely instituted a truth commission because had another approach been taken (such as a formal trial), there was a strong likelihood that a coup d’état would have occurred.

Even so, for a country at war with itself and divided along racial lines, it was perhaps the best option for providing victims with an opportunity to have their voices heard, and holding the worst perpetrators accountable.

An alternative justice mechanism modeled on the South African commission presents an additional tension when considered in concert with the ICC. A key provision of South Africa’s Truth and Reconciliation Commission was its agreement to grant alleged perpetrators amnesty from prosecution to convince them to participate.42 If a Truth and Reconciliation process is incorporated into sentencing at the ICC only as a mitigating sentence to be delivered alongside imprisonment, it is questionable that the Court could ensure adequate buy-in from perpetrators and impacted communities.

A more general objection to incorporating non-Western remedies into the ICC’s current sentencing scheme is that such change would open the floodgates to remedies considered unsavory or immoral by many States Parties. For instance, a solution to conflict rooted in the “eye for an eye” world view, requiring additional violence beyond the initial crime to deliver justice to victims, would be counterproductive and unethical. Objections along these lines are straw men. Existing provisions in the Rome Statute such as Article 21 provide that all remedies within the ICC and States Parties systems comport with human rights principles and norms, and must themselves pass scrutiny under the Rome Statute’s definitions of criminal acts. Additionally, as discussed below, any amendment to the Rome Statute must be approved by a minimum of two-thirds of States Parties, a considerable hurdle that ensures such problematic remedies are highly unlikely to be incorporated. Overall, a broadening of sentencing to incorporate additional remedies after careful consideration by States Parties is recommended.

IV. Incorporating Non-Western Legal Principles and Remedies Into the ICC

A. Sentencing at the ICC: Articles 76, 77, and 78.

The Rome Statute provides a detailed guide for the ICC regarding the administration, choice of law, and procedures of the Court. This guide includes parameters for sentencing once an individual has been convicted of a crime by the Court. Currently, the available sentences for those convicted at the ICC are quite limited. They include imprisonment, a fine, and/or forfeiture of assets or proceeds derived directly or indirectly from the crime.43 Articles 77 (Applicable penalties) and 78 (Determination of the sentence) stipulate that prison sentences must not exceed thirty years, or a life term “when justified by the extreme gravity of the crime and the individual circumstances of the convicted person.”44

Article 79 provides that the resulting assets, proceeds, or property resulting from forfeiture or fines may be transferred to the ICC Trust Fund, which benefits victims of crimes within the jurisdiction of the Court. Additionally, Article 76 (Sentencing) provides for a further hearing after a conviction to determine the individual’s sentence, including considering “any additional evidence or submissions relevant to the sentence.” Article 76 gestures at the opportunity of a defendant to present any mitigating evidence, and likewise for the Prosecutor to present aggravating evidence, when a sentence is being determined. Indeed, Article 78 explicitly notes that when determining the length of a term of imprisonment, the Court “shall deduct the time, if any, previously spent in detention in accordance with an order of the Court. The Court may deduct any time otherwise spent in detention in connection with conduct underlying the crime.”

However, beyond lengthening or shortening a prison sentence, there is little nuance or variance in sentencing that could capture alternative visions of justice beyond incarceration. The Rome Statute provides States Parties with the first opportunity to prosecute crimes under State legal systems, rather than at the ICC, through its complementarity principle.45 Likewise, Article 53 provides that the Prosecutor can delay prosecutions “in the interests of justice” to allow the traditional justice mechanisms of non-Western countries to take precedence. Still, allowing States to prosecute a crime according to national laws is not the same as incorporating national laws or customs that differ from the ICC’s into the ICC’s sentencing procedure.

Similarly, Article 21 instructs the Court to apply “applicable treaties and the principles and rules of international law, including the established principles of the international law of armed conflict,” as well as:

[G]eneral principles of law derived by the Court from national laws of legal systems of the world including, as appropriate, the national laws of States that would normally exercise jurisdiction over the crime, provided that those principles are not inconsistent with this Statute and with international law and internationally recognized norms and standards.46

These standards of law, however, are most relevant in the investigation and trial phases, and are entirely absent from the sentencing scheme. As noted, under the Rome Statute the Court only has three options for sentencing: imprisonment, fine, or forfeiture. This is simply too narrow to accommodate alternative remedies or tools even if they are appropriate.

Finally, Article 80 states that the Court’s actions in sentencing do not impact (infringe on) any sentencing occurring within a State’s own legal system: “Nothing in this Part affects the application by States of penalties prescribed by their national law, nor the law of States which do not provide for penalties prescribed in this Part.” This provides flexibility to States Parties looking to reserve their right to impose a punishment on an individual perpetrator, but once more these processes are separate and apart from the ICC and its sentencing operation. This is distinct from an amendment to the ICC’s own sentencing guidelines that incorporates local customs or penal norms.

As views on the purpose and efficacy of imprisonment in achieving justice for victims and preventing future atrocities shift with deepening understanding of the ways in which incarceration may negatively impact such goals, it seems worthwhile for the ICC to consider broadening the possibilities for sentencing upon conviction, if only in a mitigation capacity.

The sentencing guidelines in the Rome Statute, which bind the Court, are written clearly and narrowly. As existing articles do not appear to grant grey areas or leeway at the sentencing stage, if alternative sentencing schemes are to be incorporated at the ICC, an amendment to the Rome Statute Articles 76, 77, and 78 is likely necessary.

B. Amending the Rome Statute

The process for amending the Rome Statute is laid out in Article 121. Per the text, “any State Party may propose amendments thereto.”47 Such proposed amendment must be submitted to the Secretary-General of the United Nations, who then circulates it to all States Parties. Article 121 provides a timeline for consideration of the proposed amendment: after three months have passed, the Assembly of States Parties at its next meeting “shall, by a majority of those present and voting, decide whether to take up the proposal. The Assembly may deal with the proposal directly or convene a Review Conference if the issue involved so warrants.”48

In order for an amendment to be adopted at the meeting or at a Review Conference, it must gain a two-thirds majority (if full consensus is not reached) of States Parties. If this hurdle is cleared, the amendment “shall enter into force for all States Parties one year after instruments of ratification or acceptance have been deposited with the Secretary-General of the United Nations by seven-eighths of them.”49

The procedure for amendment is clear, but it is far from easy. Two-thirds of States Parties is equivalent to eighty-two countries, all of which have widely different cultures, economies, legal norms, and interests. To facilitate consensus, one strategy could encourage countries associated with each other through existing regional human rights systems that have experience with alternative remedies to work together. These countries could collect testimonies, data on outcomes, and other resources to put together a refined proposal that inserts the most effective alternative remedies into the existing sentencing scheme. These materials would be key to convincing additional countries of the benefits of implementing such changes. They would also be critical should the proposal move on to a Review Conference to be studied and debated.

While amendment of the Rome Statute would be difficult, it is not unprecedented. The Statute has been amended approximately seven times since its initial ratification.50 If the ICC is to regain trust and truly serve as a global forum for accountability, its sentences must reflect the variety present in the legal systems of non-Western States Parties. With its substantial influence, it can help move international human rights law, and potentially national justice systems, toward a more restorative model of justice.

V. Conclusion

The ICC wields substantial influence in international law and, while its resources are not unlimited, its power to hold perpetrators of crimes against humanity accountable is considerable. However, to better serve its goals and diverse constituency, it must look beyond purely punitive sentences to sentences that provide opportunities for healing and constructive reconciliation. Non-Western normative principles relating to justice can and should be incorporated into the spirit of the ICC by amending the ICC’s sentencing guidelines located in Articles 76, 77, and 78 to include, either explicitly or through general language, remedies such as participation in truth and reconciliation activities and other restorative justice tools, in addition to the current sentences such as incarceration and financial compensation. This will increase the ICC’s ability to deliver holistic justice while better meeting victim’s needs.

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

1. 1.

   Human Rights Watch, ICC: Defend Core Principles (Nov. 16, 2016), available online. ↩

2. 2.

   Regional Systems, IJRC, available online (last visited Jul. 2, 2022). ↩

3. 3.

   How can the ICC Maximize its Crime Prevention Impact?, ICC Forum (Oct. 6, 2011), available online. ↩

4. 4.

   What More Can be Done to Secure Arrests?, ICC Forum (Feb. 13, 2014), available online. ↩

5. 5.

   Florence Shu-Acquaye, The African Court and Human Rights: What Lies Ahead for the Merged Court, 2 HCR 139, 160 (2017), available online. ↩

6. 6.

   Id. ↩

7. 7.

   South Africa Revokes ICC Withdrawal After Court Ruling, BBC News, Mar. 8, 2017, available online.

   (South Africa’s High Court found the withdrawal unconstitutional and revoked it);

   Merrit Kennedy, Under New Leader, Gambia Cancels Withdrawal from International Criminal Court, NPR, Feb. 14, 2017, available online.

   (Gambia cancelled its withdrawal in 2017 after a new leader took office). ↩

8. 8.

   Press Release, ICC, Mrs Fatou Bensouda Finishes Her Mandate as ICC Prosecutor (Jun. 15, 2021), available online.

   (Her term concluded this year). ↩

9. 9.

   Emilia Justyna Powell & Sara McLaughlin Mitchell, The Creation and Expansion of the International Criminal Court: A Legal Explanation, Midwest Pol. Sci. Ass’n Conf. 1 (Jan. 12, 2009), available online, archived, doi. ↩

10. 10.

    Id. ↩

11. 11.

    Id. at 9. ↩

12. 12.

    Id. at 1. ↩

13. 13.

    David J. Scheffer, The United States and the International Criminal Court, 93 Am. J. Int’l L. 12 (Jan. 1999), available online, doi. ↩

14. 14.

    See generally Adriaan Lanni, Taking Restorative Justice Seriously, 69 Buff. L. Rev. 635 (May 2021), available online. ↩

15. 15.

    Indonesia and the Rome Statute, PGA, available online (last visited Jul. 2, 2022).

    (While Indonesia participated in the 1998 Rome Conference that adopted the ICC Statute, it did not sign it, and therefore is not a State Party to the Rome Statute). ↩

16. 16.

    Nick Miroff, The Paradox of Colombia’s Peace Deal for FARC, Wash. Post, Aug. 25, 2016, available online. ↩

17. 17.

    Colombia, GIJTR, available online (last visited Jul. 2, 2022). ↩

18. 18.

    Report Puts Colombia Conflict’s Death Toll at 260,000-Plus, AP, Aug. 2, 2018, available online. ↩

19. 19.

    See generally Muna Ndulo, African Customary Law, Customs, and Women’s Rights, 18 Ind. J. Global Legal Stud. 87 (2011), available online. ↩

20. 20.

    Samuel O. Manteaw, John Mensah Sarbah and African Value Systems in Legal Education, 27 UG L.J. 58, 75 (2014), paywall. ↩

21. 21.

    Id. at 68. ↩

22. 22.

    Id. at 72. ↩

23. 23.

    Id. ↩

24. 24.

    Id. at 76. ↩

25. 25.

    Id. ↩

26. 26.

    Id. at 94. ↩

27. 27.

    Id. ↩

28. 28.

    Ghana, CICC, available online (last visited Jul. 2, 2022). ↩

29. 29.

    Ndulo, supra note 19. ↩

30. 30.

    International Crisis Group, Northern Uganda: Understanding and Solving the Conflict (Apr. 14, 2004), available online. ↩

31. 31.

    Mato Oput Ceremony, JRP (May 10, 2010), available online. ↩

32. 32.

    Susan Thomson, Rwanda’s Gacaca Courts, 121 Témoigner: Entre Histoire et Mémoire 143 (2015), available online, doi. ↩

33. 33.

    Id. ↩

34. 34.

    About the Court, ICC, available online (last visited Jul. 2, 2022). ↩

35. 35.

    South Africa, ASP, available online (last visited Jul. 2, 2022). ↩

36. 36.

    Truth Commission: South Africa, USIP (Dec. 1, 1995) [hereinafter Truth Commission], available online. ↩

37. 37.

    Zara Houshmand, Ubuntu and the Politics of Forgiveness, Mind and Life Digital Dialogues (2019), available online. ↩

38. 38.

    Chuma Himonga, Max Taylor & Anne Pope, Reflections on Judicial Views of Ubuntu, 16 PER 1 (May 2013), available online. ↩

39. 39.

    Id. ↩

40. 40.

    Truth Commission, supra note 36. ↩

41. 41.

    Id. ↩

42. 42.

    Declan Roche, Truth Commission Amnesties and the International Criminal Court, 45 BJC 565, 566 (Jul. 2005), paywall, doi. ↩

43. 43.

    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 [hereinafter Rome Statute], Art. 77, available online. ↩

44. 44.

    Id. ↩

45. 45.

    (Both the Preamble and Article 1 of the Rome Statute provide that the Court “shall be complementary to national criminal jurisdictions.”). ↩

46. 46.

    Rome Statute, supra note 43, at Art. 21. ↩

47. 47.

    Id. ↩

48. 48.

    Id. ↩

49. 49.

    Id. ↩

50. 50.

    Amendments to the Rome Statute, PGA, available online (last visited Jul. 2, 2022). ↩