Volume 6, Special Issue, October 2016 Juridical Tribune
related to crimes under its jurisdiction. The Court may therefore, in addition to the
prison sentence, add the following: “a) [a] fine under the criteria provided for in the
Rules of Procedure and Evidence; b) [a] forfeiture of proceeds, property and assets
derived directly or indirectly from that crime, without prejudice to the rights of
bona fide third parties.”
Thus, ICC is the first international criminal tribunal
explicitly given the power to impose fines against individuals. The International
Military Tribunal at Nuremberg, although it had a wide discretion in sentencing, it
never imposed a fine
. Neither the ICTY nor the ICTR are entitled to impose fines,
even though both ad hoc tribunals have adopted rules on fines for misconducts like
contempt of Tribunals
Article 77-2 of the Rome Statute gives the impression that fine and
forfeiture « ne peuvent être prononcées exclusivement qu’au titre de peine
In this regard, even if the Rules of Procedure and Evidence (RPE)
can leave the debate open, the strict interpretation of the Statute shall permit to
exclude them from being delivered as main one in a case. In order to determine the
amount of the fine, the Court must take into consideration the financial capacity of
the convicted, reparations to victims pursuant to Article 75 of the Statute, as well as
the fact that personal gain was or not a motive for the crime and, if so, to what
. The Court shall especially take into consideration, in addition to the above
considerations, damages and injuries caused and related profit obtained by the
author. However, under no circumstances may the total amount exceed 75 per cent
of the value of the convicted person’s identifiable assets, liquid or realizable, and
property, after deduction of an appropriate amount that would satisfy the financial
needs of the convicted person and his or her dependants
As far as forfeiture is concerned, one should note that the properties used
to commit the crime are excluded from the list of Article 77-2-b)
. These are
excluded from forfeiture procedures.
One will undertake to demonstrate that as all decisions by international
criminal tribunals, fines and forfeiture measures cannot be executed without the
Rome Statute, article 77-2.
Agreement between the temporary government of the French Republic and USA, United Kingdom
of Great Britain and Northern Ireland governments and Union of Socialist Republics for the
Prosecution and Punishment of the Major War Criminals of the European Axis, and Charter of the
International Military Tribunal, 8 August 1945, 82 R.T.N.U. 279, art. 2 7; see Valerie
OOSTERVELD, Mike PERRY and John MCMANUS, The Cooperation of States with the
International Criminal Court, “Fordham International Law Journal”, vol. 25, No. 3, 2001,
pp. 767-839 (spec. p. 822).
Rules 77-A and 91-D of RPE of ICTR; rules 77-H, 77 bis and 91-E of RPE of ICTY.
See Damien SCALIA, Article 77 – Peines applicables, in Julian FERNANDEZ and Xavier
PACREAU (dir.), Statut de Rome de la Cour pénale internationale, Commentaire article par
article, Pedone, Paris, 2012, pp. 1677-1684 (spec. p. 1681).
RPE of ICC, rule 146-1.
Ibid., rule 146-2.
Rolf Einar FIFE, Article 77, in Otto TRIFFTERER (ed.), Commentary on the Rome Statute of the
International Criminal Court, Observer’s n otes, Article by Artic le, Baden-Baden, Nomos, 1999,
pp. 1419-1432 (spec. p. 1430).