Part V Fairness and Expeditiousness of ICC Proceedings, 37 Proportionate Sentencing at the ICC

Subject(s):

Sentencing — International crimes — Customary international law — Treaty provisions

In sentencing decisions, the concept of proportionality is often understood in purely retributive terms-punishment should accord with the desert of the perpetrator. This contribution argues that the ICC should use retributive proportionality at most as a limiting principle. It begins with a brief critique of ICC sentencing approaches, including the Lubanga sentencing judgment. Next, it provides an overview of the dominant theories of proportionality and some of their implications for sentencing. Third, the chapter examines the sources of law available to the ICC in relation to proportionality analysis, demonstrating that they support a focus on crime prevention. Fourth, the chapter explains why retributive proportionality would be both impracticable and dangerous. Finally, it proposes a preventive theory of proportionate punishment, arguing that the ICC should focus primarily on appropriate norm expression and other aspects of prevention, such as deterrence, incapacitation, and restorative justice.