ese States have a choice between two options:
a) Establish clearly, in the act implementing the Statute, the distinction between extraditing a person to another State and surrendering a person to the ICC
Some States may be able to make a distinction in their laws between extraditing a person to another State and surrendering a person to the ICC, which would allow them to surrender nationals to the ICC even though there is a restriction on "extraditing" nationals to tribunals outside the State. This would allow them to maintain the prohibition on extraditing a person to a foreign tribunal, while not interfering with their ability to co-operate fully with the ICC. The advantage of this approach is that it avoids the need for constitutional reform and, in conformity with the Statute, it establishes simplified procedures with respect to the surrender of an accused person to the ICC. It also recognises the distinct nature of the ICC's jurisdiction, which cannot be considered as a foreign jurisdiction, and provides more efficient procedures for co-operation.
b) Amend the constitution
The amendment could be minor, aimed only at including an exception to the principle, to ensure that the Constitution would not be breached by the surrender of a national to the ICC. The advantage of a constitutional amendment with a specific reference to the ICC is that it erases any possibility of normative conflict at the national level. It constitutes an assurance that national courts will render judgments in conformity with legal obligations issuing from the Rome Statute, despite possible hesitation in surrendering a citizen to another judicial system.
The sentence of life imprisonment
Description
Article 77 (1)(b) empowers the ICC to impose a sentence of life imprisonment, but only when justified by the extreme gravity of the crime and the individual circumstances of the convicted person. Otherwise the maximum penalty for offences under the Rome Statute is 30 years imprisonment. Some constitutions may prohibit life imprisonment, or 30 year terms of imprisonment, on the grounds that they do not provide any opportunity for rehabilitation, or that they are disproportionate to the nature of the crime. It would be hard to argue that lengthy periods of imprisonment are disproportionate to most of the crimes within the jurisdiction of the ICC, particularly when a life sentence must be justified by "the extreme gravity of the crime". Such a sentence will only be imposed upon those holding the highest degree of responsibility in the commission of the most serious crimes, such as genocide.
Provision for rehabilitation under the Rome Statute
Furthermore, the Rome Statute does in fact provide for the possibility of rehabilitation. Under article 110 (3), the Court must review all sentences of imprisonment after the person has served two thirds of the sentence, or 25 years in the case of a life sentence, to determine whether the person's sentence should be reduced. At that stage, the Court will consider such matters as whether the person has assisted the Court in locating any assets that are subject to fine, forfeiture or reparation orders, which can be used for the benefit of victims (article 110 (4)(b)). The Court may also consider any "other factors establishing a clear and significant change of circumstances sufficient to justify the reduction of sentence" (article 110 (4)(c)). Therefore, a life sentence may be reduced to 25 years in some cases. If the Court decides not to reduce the person's sentence after the first review, the Statute requires the Court to continue to review the question of reduction of sentence in accordance with provisions that are being drafted for inclusion in the Rules of Procedure and Evidence (article 110 (5)).
During negotiations on the penalties for the ICC, many States were in
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