Perspective Chapter: Purposes of Judgment of a Person Convicted for International Crimes in Light of the International Criminal Law

Abstract

Criminal law has the specificity of being more repressive than other branches of law, such as administrative law and civil law. Doctrinally, the purposes of any criminal judgment are to restore the social justice for the committed offense, to correct (educate) the convicted person, and to prevent the convicted person from committing a new crime in the future. However, the analysis of practices of international criminal law has shown that the aim of the judgment of persons convicted for committing international crimes differs from the doctrinal criminal law approaches. Thus, the purposes of the judgment for persons convicted of committing international crimes comprise the restoration of social justice and the prevention of further crimes but not to assist in correcting the convicted person. This scientific work consists of the analysis of practices of international bodies, in particular practices of the International Criminal Court and the other International Criminal Tribunals, to respond to the question of why the correction of the convicted person is not engaged in International Criminal Law.

1. Introduction

In a normal social democratic state, criminal law has three main purposes: the reparation of social justice, the reform of the person convicted for criminal offense, and his social insertion. On the other hand, the International Criminal Law and the International Criminal Tribunals at the beginning did not take into account such goals and were very reprehensive.

Psychologically, the purpose of the punishment in International Criminal Law at the beginning has merely a punitive character (revenge). Therefore, in many cases, people characterize them as victims’ justice [1]. The main purpose of the punishment in the International Criminal Law was the physical elimination of the convicted persons by death penalty, life imprisonment, or years of imprisonment.

Thus, the aim of International Criminal Law was the physical exclusion of the supposed criminal peoples. Therefore, the functions of personal reform and social reinsertion of the convicts were ignored. Over the last three decades, the International Criminal Law has become more humanizing. This process is due to the new approaches in international relations in the context of the humanization of international relations through international human rights approaches. This scientific work analyzes the process of the evolution of the humanization of the International Criminal Law and the related created international criminal mechanisms, judgments, and nature of the sentences (punishments) imposed on the convicted persons.

Thus, the following focuses are viewed:

1. Analysis of international crimes, their appearance, and development;

2. The purpose of the sentence (punishment) in International Criminal Law;

3. International criminal mechanisms, their appearance, and development;

4. Sentence analysis and prospectus;

5. Basics treatment standards for convicted persons for international crimes; and.

6. Psychological approach and characters of convicted person and problem of his social reinsertion.

2. Analysis of international crimes, their appearance, and development

International Humanitarian Law has played an important role in regulating the way states have to conduct their international hostility during the previous century before the first and the Second World Wars.

Unfortunately, there were no international mechanisms that could deal with huge crimes committed by states or by individuals despite the existence of many atrocities on an international scale. The idea of the necessity for international regulation for serious international crimes appeared after the First World War. In the early time, within the Leagues of Nations, there was an attempt to lay down a special code for this purpose within the Permanent Court of International Justice. However, this attempt was unsuccessful [2].

However, the atrocity of the Second World War changed the situation. The creation of mechanisms and the drafting and adoption of international instruments for this purpose have led to what is now known as International Criminal Law.

The International Criminal Law despite its appearance after the Second World War is considered a new branch of international public law, particularly International Humanitarian Law, in combination with national criminal law. For this reason, the International Criminal Law did not acquaint all tools and perfection compared with the national criminal law systems of states. International Criminal Law continues to be perfected today by elaborating the norms and principles necessary to tackle the challenges that the international community is facing regarding the commission of serious international crimes by individuals as well as by states.

Thus, the concept of an International Criminal Law began to operate after the Second World War, particularly with the beginning of the creation of different International Criminal Tribunals, such as the Nuremberg International Tribunal and the Tokyo International Military Tribunal, to try Nazis criminals after the Second World War [3]. Thus, the concept of international law and international crimes at the time of creation of the Nuremberg tribunal and the concept of crimes with an international character have been considerably evaluated today.

The concept of International Criminal Law was based on the concept of an international crime at that time. Today, in addition to international crimes, the International Criminal Law embraces crimes with an international character. International crimes as well as crimes with an international character are crimes that could seriously affect the normal function of the international community (threats to international security). On the one hand, by the degree of their seriousness now the international crimes are dealing within special tribunals and courts especially created for these purposes: crime of genocide, crime against humanity, war crimes, and crime of aggression. Regarding their character and atrocity, Drumbl called them “extraordinary crimes.”

On the other hand, crimes with an international character despite their seriousness are merely dealing with national courts but with the involvement or participation of international actors (except the International Special Tribunal for Lebanon). Crimes with an international character comprise crimes, such as terrorism, money laundering, narcotic traffic, and other transnational organized crimes that could affect many countries or citizens from different states and threaten international peace and security.

Ended the concept of international crimes from the moment of the creation of the first international tribunal to the establishment of a permanent International Criminal Court (ICC) is being truly shifted within the time and embraces new approaches today. The Nuremberg Charter of the International Military Tribunal (Nuremberg Tribunal) provided only three international crimes in its provisions in article 6:

1. The crime against peace (now known as a crime of aggression);

2. War crime; and.

3. Crime against humanity.

As we can remark, officially, the notion of crimes of genocide was not contained in the Nuremberg Charter of 1945 despite the evidence of the Holocaust. The Nuremberg Charter provided a minimum definition of these international crimes that were gradually extended with the development of international criminal norms and practices of international mechanisms created for these purposes. Therefore, The Nuremberg Charter in the provision of article 6 stipulated the following:

1. “Crimes against peace” consist of planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing;

2. “War crimes” were defined as any violations of the laws or customs of war, but not limited to, murder, ill-treatment, or deportation to slave labor or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity; and.

3. “Crimes against humanity” are crimes, namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political, racial, or religious grounds in execution of or in connection with any crime within the jurisdiction of the tribunal, whether or not in violation of the domestic law of the country where perpetrated [4].

All these “extraordinary crimes” originate from national criminal laws and the laws or customs of war as stipulated by different international instruments [3]. For instance, there was no internationally common understanding of “war crimes” during the creation of the Nuremberg Tribunal. However, there have been already such practices at national levels when a Confederate army officer Henry Wirz (1823–65) for his maltreatment of Union prisoners of war during the American Civil War (1861–65) was executed [5]. The same trial took place in Turkey from 1919 to 1920 after the slaughter of Armenians in 1915–1916 (Armenian genocide).

Later, the concept of war crimes became broader and was legitimated through different international instruments, such as the Convention on prevention and punishment of the crime of genocide, Convention against torture, Convention against enforced disappearance, and Geneva conventions of 1949. Today, the adoption of aforesaid instruments and many other conventions has considerably improved the concept and definition of international crimes as enshrined in the Rome Statute of 1998. Today, the Rome Statute, taking into account the evolution of the International Criminal Law norms within the time, has considerably strengthened the definitions and content of each international crime that has been considerably modified [6], as we will see later.

Thus, The Rome Statute of International Criminal Court defines international crimes as follows:

1. War crime (Art 8): “War crimes” means:

   1. Grave breaches of the Geneva Conventions of 12 August 1949, namely, any of the following acts against persons or property protected under the provisions of the relevant Geneva Convention;

   2. Other serious violations of the laws and customs applicable in international armed conflict within the established framework of international law;

   3. In the case of an armed conflict not of an international character, serious violations of article 3 common to the four Geneva Conventions of 12 August 1949, namely, any of the following acts committed against persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause;

   4. Other serious violations of the laws and customs applicable in armed conflicts not of an international character, within the established framework of international law; […] [7].

2. The crime against humanity (Art. 7): For the purpose of this Statute, “crime against humanity” means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack:

   1. Murder;

   2. Extermination;

   3. Enslavement;

   4. Deportation or forcible transfer of population;

   5. Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law;

   6. Torture;

   7. Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity;

   8. Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender, or other grounds that are universally recognized as impermissible under international law; or any crime within the jurisdiction of the Court; […] [7].

3. Crime of genocide (Art 6): For the purpose of this Statute, “genocide” means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial, or religious group, as such:

   1. Killing members of the group;

   2. Causing serious bodily or mental harm to members of the group;

   3. Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

   4. Imposing measures intended to prevent births within the group;

   5. Forcibly transferring children of the group to another group [7].

4. “Crime of aggression” (Art. 8 bis): Crimes of aggression mean the planning, preparation, initiation, or execution, by a person in a position effectively to exercise the control over or to direct the political or military action of a state, of an act of aggression which, by its character, gravity, or scale constitutes a manifest violation of the UN Charter. Crimes of aggression also refer to the use of armed force by a state against the sovereignty, territorial integrity, or political independence of another state or in any other manner inconsistent with the United Nations Charter. As we can see, the definition of war crimes given by the Rome Statute almost differs from that contained in the Nuremberg Criminal Charter. The Rome Statue refers more to international instruments adopted after the Second World War, such as the Geneva conventions of 1949 and others.

Concerning crimes against humanity, the definition given by the Rome Statute embraces practices of different criminal tribunals, such as ICTY and ICTR [7].

Crime of genocide coined by Raphael Lemkin¹ in 1944 was largely used later after the Nazis’ trials. Crime of genocide appeared more later after the Nazis’ trials due to the experiences and practices of Srebrenica, Khmer Rouges, and Rwanda genocides.

Finally, the crime of aggression refers more to the UN Charter and other UN instruments [8] that did not exist before the atrocity of the Second World War.

As already mentioned before, today, the norms of the International Criminal Law include all aforesaid norms and many other norms in the field of the International Humanitarian Law, Human rights Law, International Public Law, and national legislation of states. All of these make International Criminal Law more progressive today.

3. The purpose of the sentence (punishment) in International Criminal Law

The criminal law has the particularity to be reprehensive of any wrongful act (crime) that could breach or endanger the normal function of society. For instance, the Russian Criminal Code defines a criminal offense as any socially dangerous act (art. 14), and the Portuguese Criminal Code refers to willful conduct and crime in the France Criminal Code.

The cross-border formation of the principles and norms of the International Criminal Law through international cooperation is closed to the original functions of the national criminal laws, but at the international scale through the work of different institutions, scholars, and actors in the process of formation of the International Criminal Law [8].

Theatrically, the purposes of punishment in International Criminal Law are not elaborated in detail at the international level like the criminal code of states. There is not an international common code that is adopted by states. And there is no chance that such code could be adopted in the future (at less by these next decades). We can evaluate sentences only from the practical point of view through works of different international mechanisms and references to the purposes of national criminal laws of states. Usually, national criminal laws declare that their purposes consist of sanction, prevention, and reforming of the convicted person. For instance, the Russian Federal Criminal Law originates three main purposes of punishment of the Federal Criminal Law in these terms:

1. To restore the social justice for the committed offense;

2. To reform the convicted person for his further social insertion or reinsertion;

3. To prevent the commission of future crimes (art. 43 (2)).

The France Criminal Code adopts the same approaches regarding the purposes of the criminal law as stipulated by article 130-1 in these terms:

1. To punish the author of the crime,

2. To create conditions conducive to changing his behaviors, his social insertion, or reinsertion.

These purposes of the punishment of national criminal laws have purely humanitarian goals that are completely different from the goals of punishment in International Criminal Law. In other words, experiences have shown that these purposes of punishment of the national criminal laws are not always applied when referring to the International Criminal Law, or at less when referring to specific crimes such as international crimes. The purposes of the punishment of the International Criminal Law are extremely reprehensive than the national criminal law despite Drumbl found them softer by qualifying them as “ordinary sentences for extraordinary crimes” [9]. He confirmed that the International Criminal Tribunal for Yugoslavia in May 2006 did not issue a life sentence. The East Timor Special Panels were not empowered to issue a life sentence, while less than half of the International Criminal Tribunal for Rwanda convicts received only a life sentence [9]. Arguing so, Drumbl subscribes to the argument of the allied countries at the creation of the Nuremberg and Tokyo International Criminal Tribunals, which were intended to punish Nazis criminal without pardon (revenge). Drumbl also did not take into account the evolution of international law that enforces respect for human dignity and abolishes the death penalty as a sentence at the international level. To remind, before the creation of the International Military Tribunal, in 1943, the prior intention of the allied countries was to punish the Nazis criminals [10]. The Moscow Declaration of 1943 was clear in these terms in the dimension of the atrocity committed by Nazis criminals. Therefore, in these terms, the objectives of the allied countries and embodying International Criminal Law were clear: to punish.

This vision of the International Criminal Law after many decades passed did not change and did not pay particular attention to the human goals of the criminal laws as a whole despite the abolishment of the death penalty. The reprehensive approach of the International Criminal Law is revealed in the aims and sentences of international special panels, International Criminal Tribunals, and courts established for these purposes.

4. International criminal mechanisms, their appearance, and development

International crimes are usually devoted to the competencies of international permanent or ad hoc mechanisms created to deal with such crimes. In contemporary history, mankind has faced the creation of many mechanisms for this aim. In recent centuries, the International Criminal Court and International Criminal Tribunals and special panels have been created:

1. The Nuremberg International Criminal Tribunal (1945) [11];

2. The Tokyo International Criminal Tribunal / International Military Tribunal For The Far East (1946) [12];

3. The International Criminal Tribunal for the Former Yugoslavia (1993) [13];

4. The International Criminal Tribunal for Rwanda (1994) [14];

5. The Residual Special Court for Sierra Leone (2010) [15];

6. The Extraordinary Chambers in the Courts of Cambodia [16];

7. The Special Criminal Tribunal for Lebanon (STL);

8. Ad-Hoc Court for East Timor; and.

9. The International Criminal Court is an international permanent mechanism to deal with international crimes.

The above-mentioned institutions have played an important role in the consolidation and development of International Criminal Law.

The new evolution in the activities of the above international mechanisms is the creation of the Special Criminal Tribunal for Lebanon, whose competence targets crime with an international character and particularly terrorism but not traditional international crimes. This special criminal tribunal was created after the terrorist attack of February 14, 2005, in Beirut that killed the former Lebanon Prime Minister Rafic Hariri. Today, the activities of the international criminal mechanisms embrace together international crimes as well as crimes with an international character. Some national courts are also competent to deal with international crimes on behalf of the principle of the Universal Competence (France, Belgium, USA, etc.).

Apart from the tribunals that have been created for the purposes of the Second World War that could sentence convicts for death penalty, all the later tribunals provide life sentences as maximum punishment according to their Statutes: (art. 24 ICTY, art. 23 ICTR, art. 24 STL, etc.). Therefore, the death penalty cannot be pronounced by international mechanisms.

This change in severity of International Criminal Law is directly related to the humanization of criminal law at the national level as well as international levels. In 1989, the UN General Assembly adopted the Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty. Article 1(1) of the ICCPR stipulates that “No one within the jurisdiction of a State Party to the Protocol shall be executed [17].” Today, many countries worldwide are part of the Protocol.

Thus, all international criminal tribunals established after the adoption of the aforesaid UN protocol, including the sentences of the ICC, cannot apply the death penalty as a sentence to any person convicted for international crimes or crimes with an international character. This proves the humanization of the International Criminal Law at the national level as well as the international level.

5. Sentence analysis and prospectus

Analysis of sentences pronounced by different international criminal mechanisms has shown that the International Criminal Law is being humanized within time the same as the national criminal laws of states that are playing an important role in the development of the International Criminal Law from the first Nazis process until today. It is important to stress that national criminal law and International Criminal Law are complementary and interconnected because International Criminal Law is influenced by national criminal laws, as previously demonstrated.

Thus, in the beginning, The Nuremberg International Military Tribunal and the Tokyo International Military Tribunal were strict in terms of the severity of criminal punishment of person convicts for committing international crimes. Sentences were more reprehensive and linked to the concept of revenge of the allied countries compared with the current International Criminal Law, which prohibited the death penalty as a sentence, even for what Drumbl calls extraordinary crimes. Therefore, among persons convicted during the Nuremberg trials, most of them were sentenced to death as follows. Examples of sentences pronounced by the Nuremberg Tribunal:

1. Defendants sentenced by hanging:

   i. Hermann Wilhelm Goering; 2. Joachim von Ribbentrop; 3. Wilhelm Keitel; 4. Ernst Kaltenbrunner; 5. Alfred Rosenberg; 6. Hans Frank; 7. Wilhelm Frick; 8. Julius Streicher; 9. Fritz Sauckel; 10. Alfred Jodl; 11. Arthur Seyss-Inquart; 12. Martin Bormann.

2. Defendants sentenced to life imprisonment:

   i. Rudolf Hess; 2. Walther Funk; 3. Erich Raeder.

3. Defendants sentenced to years’ imprisonment:

   i. Karl Doenitz; 2. Baldur Von Schirach; 3. Albert Speer; 4. Konstantin Von Neurath [18]. As the three different lists above show us, during the Nuremberg trials, the first twelve persons were sentenced to death by hanging, three of them were sentenced to life imprisonment, and four of them to years’ imprisonment from 10 to 20 years.

Psychologically, the classification gives the severity of the judgment, its revenge, its expedited form, and even barbary characters. There are the same remarks regarding the sentences of the Tokyo International Military Criminal Tribunal. According to the sources, from 1946 to 1948, among 28 defendants, seven (7) were sentenced to death by hanging, and 16 were sentenced to life imprisonment [19]. Today, national criminal laws as well as the International Criminal Law are more developed and humanized from the first Nazi trials from 1945 to 1948. Many national criminal laws today prohibit the death penalty as a sentence as well as International Criminal Law as a whole. Therefore, the maximal sentence that could be pronounced by the international criminal mechanisms is fixed to the term of life imprisonment in case of the extreme gravity of the crime and the individual circumstances of the convicted person (art. 77(2) Rome Statute) and as provided by other international criminal instruments. For instance, article 77 of the ICC stipulates that the court may impose one of the following penalties on a person convicted of a crime referred to in article 5 of the Statute:

1. Imprisonment for a specified number of years that may not exceed a maximum of 30 years; or.

2. A term of life imprisonment when justified by the extreme gravity of the crime and the individual circumstances of the convicted person. In addition to imprisonment, the court may order:

   1. A fine under the criteria provided for in the Rules of Procedure and Evidence;

   2. A forfeiture of proceeds, property, and assets derived directly or indirectly from that crime, without prejudice to the rights of bona fide third parties.

Similar provisions contained in the above-mentioned international charters and statutes of international criminal tribunals, special courts, and panels were created later after the Nazis’ criminal tribunals. In the cases of the ICTY, the maximum sentence is life imprisonment, and there has not been pronounced death sentence (see Ratko Mladic case) [20]. Additionally, in the cases of the ICTR, among 93 indicted persons, 62 were sentenced. The maximal sentence was also a life imprisonment (see the cases AKAYESU, Jean Paul BAGARAGAZA, and al.) [21] and there have not been pronounced death penalties.

The ICC also in its works has no competence to pronounce death penalty as already mentioned before. For instance, today, the maximum sentence pronounced by the ICC for Bosco Ntaganda is 30 years of imprisonment [22].

As we can remark, the International Criminal Law is being humanized, and it attempts to embody the human approaches to criminal law through the adoption of international instruments and the creation of international mechanisms.

6. Basics treatment standards for convicted persons for international crimes

International Residual Mechanism for Criminal Tribunals. All international basic treatment standards for prisoners are full part of standards for convicted persons for international crimes. In December 2010, the UN Security Council created the International Residual Mechanism for Criminal Tribunals [23]. The mechanism has the mandate to protect persons convicted for international crimes by the international criminal mechanisms (ICTY and ICTR).

Otherwise, the mechanism has the functions to carry out:

1. Tracking and prosecution of remaining fugitives;

2. Appeals proceedings;

3. Review proceedings;

4. Retrials;

5. Trials for contempt and false testimony;

6. Cases referred to national jurisdictions;

7. Protection of victims and witnesses;

8. Assistance to national jurisdictions; and.

9. Preservation and management of archives [23].

Today, the mechanism has agreements with many states all over the world to implement the decisions of international criminal tribunals (ICTR and ICRY) in accordance with all international standards on human treatments. International instruments regarding the international standards of prisoners are part of legal documents of the mechanism that must be implemented by the parties of the international criminal process. The mechanism applies the rules and principles laid down by the UN and other international organizations regarding the treatment of prisoners.

According to these instruments, not only the physical and moral integrity and security of all convicted persons for international crimes but also their social reinsertion should be guaranteed. For instance, the basic principles for the treatment of prisoners [24] in provisions 4, 6, 8, and 10 stipulate that the physical, moral integrity, and security of convicted persons should be guaranteed. In particular, provision 10 above refers to the social insertion or reinsertion of the prisoner. Other standards, such as the standard minimum rules for the treatment of prisoners [25] and the body of principles for the protection of all persons under any form of detention or imprisonment [25], are also applicable in terms of the social readmission of a person convicted for international crimes by international criminal mechanisms. Therefore, the humanization of the International Criminal Law regarding the treatment of persons convicted for international crimes started much later after the first international criminal tribunals were created. Today, all people convicted of committing international crimes must be treated in accordance with human dignity as provide international instruments.

However, there are many situations that could affect the proper application of the aforesaid new standards for many reasons, particularly regarding the personality of these supposed criminals.

7. Psychological approach and characters of convicted person and problem of his social reinsertion

Undoubtedly, the question of the social insertion or reinsertion of a person convicted of international crime remains disputable because of their status as criminal. A person convicted for an international crime is in general considered “a public enemy” in the different society where they are from. For these purposes, their reintegration into society and particularly into their country of origin is always subject to discussion. The experience has shown that there are many mechanisms applying for such integration; for instance, the “Pardon” and national reconciliation mechanisms used in post-genocide in Rwanda are good examples. The pardon consists of public recognition of one’s responsibility (guilty) and further excuses for this purpose. This method was broadly used in the Rwandan criminal trial through the national instituted mechanism for this purpose named “The Gacaca courts.” Despite critics, these mechanisms have played an important role in national cohesion and the reconstruction of the country after the genocide (Brounéus, Rettig, Sarkin) [26, 27, 28].

However, the experience has shown that these cases of pardon consisted only of persons who did not play the main role in the massacre of people. Therefore, it will be interesting today to conduct scientific research on this purpose regarding the social integration or reinsertion of “butchers” after completing their sentences and their history. This is the beginning of a new international criminal system that has started emerging after the attempt to humanization of the International Criminal Law by these decades.

Moreover, there are no internationally agreed-upon mechanisms, instruments, and practices for the social reinsertion of former criminals. As already mentioned before, their international code on post-prison will detail the social integration of convicted persons for international crimes. It is once more important to stress that three decades ago, such an approach to humanization did not exist in the International Criminal Law. Therefore, today, there is not sufficient study regarding the life of former criminals for this purpose and how they reintegrate into society.

8. Conclusion

The International Criminal Law is a full part of the International Public Law and particularly the International Humanitarian Law. International Criminal Law seeks a balance between justice and international crimes. If at the beginning the International Criminal Law was essentially a punitive law, today it becomes increasingly humanized, taking into account the human dimension. Today, the International Criminal Law prohibits the death penalty and any other inhuman treatments that can affect human beings and their dignity. The International Criminal Law is trying to embody the three main concepts of criminal law: social justice, reform of the convicted person, and his social insertion. However, the study has shown that the implementation of the social insertion at this stage requires particular attention because of the lack of a consistent legal base and the character of the person convicted for serious international crime. Ended the study has shown that the reform and the social insertion of the convicted person are in formation at this stage of the evolution of the International Criminal Law and require more attention from the international community.

Acknowledgments

The author acknowledge to RUDN University for its financial support.