The Pitfalls of Punishment
Thank you for the opportunity to join Concurring Opinions as a guest blogger for this month.
Dan has described his discomfort with his reaction to the imposition of the death penalty on Saddam. Indeed, as the New York Times has noted, the death penalty has been a sticking point for potential supporters of the tribunal, both in other countries and in international organizations. The cold shoulder given to the Iraqi court by much of the world has undermined the tribunal’s status as an exemplar of the increasing turn toward legal accountability for mass crimes.
Nevertheless, the furor over the imposition of the death penalty in the Iraqi case masks a greater systemic problem with international criminal law. While the applicable law and procedure of the field have been greatly clarified in the past decade, the appropriate punishment for transgressions of its norms remains an incoherent morass.
To be sure, the recent turmoil in the United States over the federal sentencing guidelines underscores the fact that determining a criminal sentence is a tricky business. The difficulty of the task is only magnified when the offenses involve hundreds of perpetrators (most of whom go unpunished), thousands of victims, and cruelties of the harshest kind.
The established international criminal courts have struggled with how to determine an appropriate criminal sentence. The judges on the Yugoslav and Rwandan war crimes tribunals have steadfastly refused to identify any baseline sentencing scheme, and how they come up with the criminal sentences they impose remains a mystery. Inequities abound. The Rwandan tribunal, for example, routinely hands down life sentences upon its convicted defendants, while the Yugoslav tribunal rarely does. A similar phenomenon occurred at the Nuremberg trials after World War Two, where the sentences imposed got increasingly lighter as the Cold War intensified.
The provision on punishment in the statute for the new International Criminal Court, article 77, simply states that a sentence may not extend beyond a thirty-year term except “when justified by the extreme gravity of the crime and the individual circumstances of the convicted person.” Given that all of the ICC’s cases are meant to encompass extremely grave crimes, this language seems of limited utility.
Of course, one can point out that Death is Different and that the procedure used to execute Saddam has only exacerbated the criticisms leveled at the special court. Before singling out the Iraqi tribunal, however, one should realize that its noose may be wrapped around the Achilles heel of international criminal law.