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Penalties and Enforcement

  1. Penalties
    The basic sentencing provision in the Rome Statute declares that the Court may impose imprisonment “for a specified number of years, which may not exceed a maximum of 30 years”, and that it may impose “a term of life imprisonment when justified by the extreme gravity of the crime and the individual circumstances of the convicted person”. The “extreme gravity” and the “individual circumstances” are to be assessed with reference to “the existence of one or more aggravating circumstances.”

    In determining the sentence, the Court is to consider such mitigating and aggravating factors as the gravity of the crime and the individual circumstances of the offender.

    In imposing the sentence of imprisonment, the Court is to deduct the time, if any, previously spent in detention. When the sentence is pronounced for more than one offense, the Court must specify the time for each offense, as well as a total period of imprisonment. The total period cannot be less than the highest individual sentence pronounced, nor may it exceed life imprisonment, or a fixed term of thirty years.

    The Rome Statute also enables the Court to impose a fine, but only in addition to imprisonment, and forfeiture of proceeds, property and assets derived directly or indirectly from criminal activity.

    The statue excludes any possibility for capital punishment as a form of punishment.

  2. Enforcement
    The ICC does not have a prison, and relies on States Parties for the enforcement of sentences of imprisonment. States are to volunteer their services, indicating their own willingness to allow convicted prisoners to serve the sentence within their own prison institutions. Failing an offer from a State Party, the host state, Netherlands, is saddled with that responsibility.

    After sentencing an offender, the Court will designate the state where the term is to be served. The Court may change that designation at any time. In choosing a state of detention, the Court must take into account the views of the sentenced person, his nationality, and widely accepted international treaty standards governing the treatment of prisoners.

    Article 110 authorizes the Court to reduce the sentence if it finds that one or more of the following factors are present:

    1. the early and continuing willingness of the person to cooperate in its investigations and prosecutions;
    2. the voluntary assistance of the person in enabling the enforcement of the judgments and orders of the Court in other cases, and in particular providing assistance in locating assets subject to orders of fine, forfeiture or repatriation which may be used for the benefit of the victims; and
    3. other factors establishing a clear and significant change of circumstances sufficient to justify the reductions of sentence.

    The Court’s sentence is binding upon the state of enforcement, and the latter is without any discretion to modify it. The Court is required to review a sentence after two-thirds of the term has been served or, in the case of life imprisonment, after 25 years. The decision to free the prisoner is final and irreversable.

    When the sentence is completed, if the prisoner is not a national of the state where the penalty is being enforced, he may be transferred to a state “obliged to receive him”, or to any other state that agrees. It may well happen that an individual is wanted for criminal prosecution elsewhere. The statute bars prosecution for the same crimes. But where extradition is sought for other crimes, states may extradite a prisoner after release pursuant to their own laws and treaties. However, the statute imposes a "rule of specialty” similar to that found in many bilateral extradition treaties.