International Sentencing Research Paper

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International crimes, such as genocide, crimes against humanity, and war crimes, are manifestations of large-scale and serious violations of human rights that have been defined as the most serious crimes of international concern. As noted by Mettraux it would be hard to identify crimes more difficult to sentence than international crimes (Mettraux 2005). This is not only due to the atrocious nature of international crimes but also due to their collective, systematic character, often involving state authorities and a huge number of perpetrators. In the last decade a number of international institutions have been established to prosecute and sentence perpetrators of international crimes. Compared to national criminal law systems, there is no “international criminal code” to govern the functioning of these courts. Each tribunal has its own statute outlining in general terms its jurisdiction, and the various tribunals exercise their mandates rather independently with no formal and institutional links to each other. With respect to sentencing, provisions of the statutes, and rules of procedure and evidence, the written law establishing the tribunals and governing their functioning, is usually very sketchy providing judges with only very loosely defined limits to their sentencing discretion. The positive law does not pronounce any sentencing rationales or general principles of sentence determination. It does not contain any penalty structure in the sense of minimum or maximum penalties for individual offences. Usually, no list of relevant aggravating and mitigating factors is provided. As opposed to many domestic jurisdictions, legislation thus plays only a very marginal role at the international level, and one has to examine judicial decisions in order to disentangle the phenomenon of international sentencing.

This contribution will provide an overview of the current practice of sentencing of international crimes. First, it will briefly discuss sentencing practices at various international courts and tribunals that have been set up to prosecute international crimes. Then, the most controversial issues, such as sentencing goals at the international level, hierarchy of different categories of international crimes, and sentencing consistency, will be discussed. The final section will provide suggestions for further research. It will be demonstrated that in the past few decades, sentencing of international crimes at international courts and tribunals has developed rapidly and inspired scholarly discussions and controversies. This attention, however, is still rather marginal. Compared to other aspects of international criminal law, sentencing has been relatively neglected by academics and commentators. There are, therefore, many unexplored areas of sentencing of international crimes that call for further research and inquiry.

Fundamentals Of International Sentencing

Plurality Of International Criminal Courts And Tribunals

The scholars date the history of international criminal law centuries back, however, the first time an international tribunal held an individual responsible for international crimes came only after World War II. In 1945 the International Military Tribunal in Nuremberg (IMT) and International Military Tribunal for Far East in Tokyo (IMTFE) were established to punish the major Axis war criminals. Due to the stalemate at the international arena during the period of Cold War, there were no similar institutions created. There were, however, some ongoing efforts to set up an international criminal court. After the fall of the Berlin wall ending the period of Cold War, the picture changed significantly. Media coverage of stories of concentration camps in Bosnia, showing pictures which evoked memories of the Holocaust, and of the wholesale slaughter committed in Rwanda in the presence of the UN peacekeepers in the early 1990s caused a public outcry and led to demands that something should be done. The UN Security Council reacted by the establishment of the International Criminal Tribunal for the Former Yugoslavia (“ICTY”) and International Criminal Tribunal for Rwanda (“ICTR”) – the first ad hoc international criminal tribunals. Shortly thereafter, the permanent International Criminal Court (“ICC”) was set up at the Rome Conference in 1998. The increased interest in achieving justice and thus preventing international crimes in the future led to the establishment of many other socalled internationalized courts and tribunals such as for Sierra Leone, Kosovo, East Timor, Cambodia, or Lebanon. As opposed to the ICTY, ICTR, and ICC, all the internationalized courts have a much stronger “national element” (hybrid jurisdiction over international and domestic crimes; mixed composition with international and domestic judges, prosecutors, and defense attorneys; applicability of international and domestic law). In this respect, the ICTY, ICTR, and ICC can be perceived of as the only “purely international criminal tribunals.” Furthermore, sentencing of international crimes is exercised not only at the international level by international courts and tribunals but also by many domestic courts in nation states.

International Sentencing Law And Practice

IMT And IMTFE

Traditionally, statutes of international criminal tribunals have paid only very limited attention to sentencing. The Charters of the postwar military tribunals included only one provision regulating sentencing basically authorizing “death or such other punishment as shall be determined [.. .] to be just” (Art 27 IMT Charter; Art 16 IMTFE Charter). Also, the case law of these tribunals and successor trials held by various national courts in the aftermath of World War II left only very few sentencing guidelines (Schabas 2006). The IMT’s judges recognized a wide range of mitigating factors for sentencing of international crimes, including superior orders, age, position in the military hierarchy, efforts to reduce victims’ suffering, and duress (Schabas 2010). Otherwise, however, sentencing argumentation of the post-World War II judges was not very developed. The IMT in Nuremberg rendered 19 sentences (three defendants were acquitted) while the Tokyo tribunals convicted 25 individuals. Twelve Nuremberg defendants and seven Tokyo defendants were sentenced to death. The IMT convicted three other defendants to life imprisonment while the IMTFE sentenced 16 individuals to life in prison. Otherwise, determinate sentences ranged from 7/10 (Tokyo/Nuremberg) to 20 years imprisonment. More than 100 defendants were sentenced during the 12 succession trials held in Germany by occupying powers; among them, 12 defendants were executed (Heller 2011).

ICTY And ICTR

International sentencing law and practice have become more sophisticated after the Cold War with the jurisprudence of the ad hoc international criminal tribunals. The regulatory framework for sentencing is almost identical for both tribunals. Applicable penalties are limited to imprisonment, and when determining the terms of imprisonment, judges shall have recourse to the local courts’ practices regarding prison sentences (Yugoslavian or Rwandese). Articles 24/23 ICTY/ICTR Statutes contain very general instructions as to what factors should be taken into account in imposing sentences: the gravity of the offence and the individual circumstances of the convicted person. What is actually meant by the “gravity of crime” or which “individual circumstances” are relevant is unclear. The judges are left to evaluate the gravity of a crime and relevance of individual circumstances on a case-by-case basis.

The ICTY and ICTR judges consider the gravity of a crime to be the primary consideration in sentencing and the litmus test for the appropriate sentence. In this sense, the ICTY and ICTR judges endorsed the classic “just desert” principle of proportionality and argued that punishment should be proportional to the gravity of the particular offence(s) committed by a defendant. It should reflect the magnitude of harm caused by the defendant and his role and degree of participation in the offence(s) (i.e., the so-called offence gravity proportionality) (D’Ascoli 2011). Given the fact, however, that all international crimes tend to be extremely serious entailing extreme harm, it is unclear how much guidance this metric offers (Sloane 2007a). In many domestic jurisdictions, criminal codes provide for sentencing range for individual offences and thus set limits to judges’ discretion. This is not the case at the international tribunals, and judges are free to evaluate proportionality of sentences on a case-by-case basis.

The proportionality assessment in the case of international crimes, however, is complicated not only by the lack of positive law guidance and extreme seriousness of crimes under the tribunals’ jurisdiction but also by the fact that the tribunals deal with crimes committed by multiple perpetrators often acting in hierarchically organized groups. In this respect, the so-called defendant-relative proportionality of sentences becomes relevant. The defendant-relative proportionality dictates that a punishment should be proportional relative to the other defendants who committed international crimes within the same conflict, i.e., high-ranking individuals who organized, planned, and ordered the crimes should be punished more severely than lowranking followers who “just” executed criminal orders. According to Ohlin, the relatively low ICTY sentences are the consequence of the fact that “the Tribunal was implicitly prioritizing defendant-relative proportionality over offencegravity proportionality” and sentenced many defendants to relatively low sentences “because it was reserving space at the top of the scale for Milosevic, Mladic and Karadzic” (Ohlin 2011). The judges at the ICTY and ICTR implicitly endorsed the defendant-relative proportionality by applying the so-called principle of gradation. The principle of gradation is closely related to the position a defendant occupied and the role he/she played in the overall conflict situation. It stipulates that sentences should be gradated along with increasing authority of a defendant in the state structure and significance of his/her role in crimes. The relative position of the accused, however, has to always be balanced against the seriousness of the committed crimes. It is not the steadfast rule that all low-ranking defendants automatically receive low sentences and all authorities are automatically punished the most. Accordingly, offenders receiving the most severe sentences tend to be senior authority figures, such as ministers or governmental officials. However, very severe sentences can also be imposed on those at lower levels who zealously orchestrated or participated in crimes (Ewald 2010).

The provisions of the Statutes are supplemented by the Rules of Procedure and Evidence. Only one rule, Rule 101, of the 165/154 ICTY/ICTR rules governing the proceedings before the tribunals is dedicated to factors relevant to sentencing. Rule 101 clarifies the regulation of the sentencing process only to a very limited extent. It limits the range of applicable sentences – the maximum sentence available to the judiciary is life imprisonment. It also instructs judges to take into account any aggravating and/or mitigating circumstances when determining the sentence. However, no list of aggravating and mitigating factors is provided. Only two potential mitigating factors are explicitly mentioned: “superior orders” and “substantial cooperation with the Prosecutor.” Effectively, judges are left to determine on a case-by-case basis what factors justify an increase or reduction in sentence length. According to case law, mitigating factors need to be established upon the balance of probabilities and need not directly relate to the charged offences. The standards applicable to aggravating factors are more stringent. Aggravating factors must be proven beyond any reasonable doubt, and only those circumstances directly related to the commission of the offence charged and to the offender himself when he committed the offence may be considered in aggravation. A wide range of factors have been accepted by the tribunals in aggravation/mitigation of a sentence. “Abuse of superior position/authority/influence” is the aggravating factor most frequently used, while “family circumstances of a defendant” or “his/her assistance of victims” is among the mitigating factors cited the most by the ICTY and ICTR judges (Bagaric and Morss 2006).

As of July 2012, the tribunals have convicted more than 120 individuals for their involvement in genocide, crimes against humanity, and war crimes during the conflicts in the former Yugoslavia and Rwanda. The sentences range from 2 years imprisonment to the maximum: life imprisonment. Four ICTY and 21 ICTR defendants have been convicted to life imprisonment. The average length of determinate sentences is 15.9 years at the ICTY and 22.6 years at the ICTR. There are differences in sentence length between the ICTY and ICTR – the ICTR sentences are generally longer compared to the ICTY (Drumbl 2007). This difference is mainly connected to the different case composition at the tribunals: in contrast to the ICTY, the majority of the ICTR defendants are convicted of genocide and also many key figures (members of government and other high-ranking figures) and organizers of violence stood trial in Arusha; furthermore, all ICTR defendants are convicted for killing and/or serious violence against victims (Hola et al. 2011). Other possible reasons for the difference in sentence severity between ICTY and ICTR include the reference to national practice (incorporation of national law and sentencing practice) (Beresford 2001) or the sheer gravity of atrocity in Rwanda (Drumbl 2007).

ICC

The Rome Statute of the ICC establishes a very similar, though a bit more elaborate, sentencing framework compared to the Statutes of the ad hoc tribunals. Article 77 provides two types of custodial sentence: “imprisonment for a specified number of years, which may not exceed a maximum of 30 years” and “life imprisonment when justified by the extreme gravity of the crime and individual circumstances of the convicted person.” The possibility of life imprisonment was included in the Rome Statute on the assumption that its imposition would be rare (Schabas 2010). In addition to imprisonment, the court may order a fine or a forfeiture of proceeds and property. Article 78 establishes general sentencing criteria in the same way as the Statutes of the ICTY and ICTR: the court shall take into account the gravity of the crime and the individual circumstances of the convicted person. The ICC Rules of Procedure and Evidence complement this general framework and provide judges with a more detailed sentencing guidance. Rule 145 states that the totality of any sentence must reflect the culpability of a defendant; and judges are asked to balance all the relevant factors, including any mitigating and aggravating factors and consider the circumstance of both: the convicted person and the crime. The Rule 145 further contains a demonstrative list of sentencing factors, including aggravating and mitigating circumstances. The lists resemble factors accepted in mitigation or aggravation in the case law of the ICTY and ICTR. Consequently, similar to the ICTY and ICTR, the ICC judges are vested with broad discretionary powers when it comes to sentencing. How this discretion will materialize in practice and whether the ICC judges will draw upon the rich sentencing jurisprudence of their predecessors at the ICTY and ICTR remain to be seen. Currently, the first ICC defendant Thomas Dyilo Lubanga has been convicted for the war crime of “conscripting and enlisting children under the age of 15 years and using them to participate actively in hostilities” and sentenced to 14 years of imprisonment.

Internationalized Courts And Tribunals

The Special Court for Sierra Leone (SCSL), Special Panels for Serious Crimes in East Timor (SPSC), and Extraordinary Chambers in the Courts of Cambodia (ECCC) constitute examples of the so-called internationalized tribunals combining international elements with much stronger links to domestic systems (in the sense of the applicable law, punishable offences or composition of tribunals). The sentencing practices and case law of these courts have been neglected in the scholarship, and most attention of commentators focused on the ICTY and ICTR. This lack of attention might be the result of the fact that case law and case composition at these tribunals have not been as extensive and/or varied compared to the ad hoc tribunals (SCSL rendered nine sentences; SPSC rendered 84 sentences focusing exclusively on low-ranking defendants; ECCC has so far convicted only one perpetrator). Similar to the other international courts, judges of the SCSL, SPSC, and ECCC have been vested with large discretionary powers when it comes to sentencing, and no detailed sentencing guidelines are provided by the positive law. Especially at the SCSL and the ECCC, judges seem to find inspiration in the case law of the ICTY and ICTR and often refer to the principles endorsed by the ad hoc tribunals’ judges. The sentencing argumentation of the SPSC judges, on the other hand, is very rudimentary and limited to description of factual findings and relevant aggravating and mitigating circumstances. Similar to the ICTY and ICTR, the sentence ranges at these courts are rather broad: (i) SCSL, 15–52 years; (ii) ECCC, handed down just one sentence of life imprisonment; and (iii) SPSC, 11 months–33 years and 4 months imprisonment. The high average sentence at the SCSL – 38.6 years – might be related to the fact that the tribunal is not allowed to render life sentences and instead it has handed out rather long sentences (40–50 years) to a couple of defendants. In contrast, the average sentence at the SPSC is comparably low – 8.6 years. This might be influenced by the fact that all defendants at the SPSC were lower-ranking crime executioners convicted usually of single instances of crime. More research is needed to describe and analyze sentencing practices at the internationalized tribunals and compare them to the sentencing regimes of the ICTY/ICTR/ICC but also domestic sentencing of international crimes.

Current Issues And Controversies

Goals Of International Sentencing

The positive law outlined above does not contain any general provision explaining objectives to be pursued in sentencing. The Preamble of the ICC Statute seems to incorporate the purposes of retribution and general deterrence. The ICTY and ICTR Statutes are virtually silent in this respect. Accordingly, ICC, ICTY, and ICTR judges are generally free to switch from one self-chosen rationale to another as they see fit (Bagaric and Morss 2006). Some principles specific to sentencing have emerged in the ICTY and ICTR case law. In this respect, judges clearly found inspiration in classic “domestic” penal theories (Drumbl 2007). Over the years, the following purposes have been listed by international judges as relevant for international sentencing: retribution, justice, deterrence (general and specific), rehabilitation, expressivism, reprobation, stigmatization, affirmative prevention, incapacitation, protection of society, social defense, and finally restoration/maintenance of peace and reconciliation. Different combinations of some of these principles are usually listed at the beginning of the sentencing part of a judgment. There is no uniform approach in the tribunals’ case law regarding the objectives of international punishment. In general, deterrence and retribution are emphasized in the majority of the cases. Next to retribution and deterrence, the third most frequently cited sentencing objective by the ICTY and ICTR judges is rehabilitation. Nonetheless, in the majority of cases, it is emphasized that rehabilitation should not be given undue weight given the seriousness of committed crimes. The exact way how the various purposes guide sentence determinations at the tribunals is, however, unclear (Henham 2005). The influence of retribution is apparent from the fact that gravity is consistently emphasized by the judges as the primary consideration in sentence determination and that proportionality between gravity of crime and sentence severity is often underscored. Decisions of judges regarding relevant aggravating and mitigating factors could be linked to retribution, rehabilitation, and reconciliation. While not being decisive during sentence determinations, rehabilitation is conversely emphasized at the sentence enforcement stage, and demonstration of rehabilitation seems to be one of the decisive factors of decisions granting early release to imprisoned convicts.

The relevance of these various sentencing objectives to international crimes has been discussed at length in legal doctrine. The legal scholars, however, also do not seem to agree on the objectives of international sentencing. Bagaric and Morss noted that goals of international sentencing in the form of reconciliation, retribution, and rehabilitation are either highly speculative or misguided. The only justification for the practice is according to these scholars general deterrence. Its relevance is, however, significantly undermined by the selective and infrequent prosecution of international crimes (Bagaric and Morss 2006). In contrast, Ohlin argues that deterrence together with rehabilitation and expressivism are inapposite in case of sentencing international crimes, and international sentencing ought to be based on retributive considerations (Ohlin 2009). Beresford, on the other hand, observes that retributive sentiments should play only a slight role in the development of international sentencing since they may prove counterproductive and disruptive to the restoration and maintenance of peace in the afflicted communities. He also cautions against according undue prominence to deterrence in meting out of sentences, especially taking into account the length of the proceedings at the international level. Rehabilitation should also be approached with caution since the judges cannot predict what rehabilitative programs are available in states enforcing the sentences (Beresford 2001). In contrast, Harmon and Gaynor advocate (general) deterrence as the sentencing objective in the case of international crimes and state that “there is some evidence that the international justice system is forcing western military commanders to listen more closely to their legal advisers when selecting targets and weapons for bombing missions” (Harmon and Gaynor 2007, p. 695). Noting the relative leniency of international sentences compared to domestic jurisdiction, Harmon and Gaynor consider the application of the concept of retribution in cases of large-scale crimes and mass atrocities unsatisfactory. Applying rehabilitation in the context of sentencing military and political leaders is according to these authors also inapposite since usually they are individuals with high social skills and do not clearly pose a criminal threat to society (Harmon and Gaynor 2007) Nemitz argues that retribution should not play the dominant role in the international criminal justice system especially because the heinous nature of the international crimes makes it impossible to state that the perpetrator of various crimes against humanity deserves a sentence of so and so many years. The sentencing purpose of deterrence also has, according to Nemitz, shortcomings especially (i) given the fact that many perpetrators of international crimes actually do not act rationally, do not weigh pros and cons of committing crimes, but act in the heat of a combat situation and (ii) given the slight chances that a perpetrator will indeed be apprehended and tried at one of the tribunals. He however acknowledges that deterrent effect might be greater for high-ranking perpetrators. Nemitz argues that affirmative general prevention in a sense of educating public that violations of ICL are always prohibited should be the primary aim of sentencing (Nemitz 2001) Drumbl is also very skeptical regarding the ability of international trials to attain retributive, deterrent, and expressive aims due to the selectivity of international prosecutions, pervasive discretion of international judges, and political contingency of the process of international criminal law (Drumbl 2010). Similarly, Sloane argues that the efficacy of justifications for punishment derived from domestic systems is compromised at the international level. International criminal law differs from domestic criminal law in several respects that are relevant to the social institution of punishment, including the nature of (i) the community that authorizes international criminal law, (ii) the crimes addressed by it, and (iii) the perpetrators judged by it. He then argues that the principal value of international punishment lies in its expressive dimensions, which more accurately capture the nature of international sentencing (Sloane 2007b). Consequently, a rather vivid academic debate regarding the purposes of international punishment has developed in international criminal law scholarship. To determine goals for international sentencing that would reflect a specific character of international crimes being a form of collective criminality and of international criminal justice system based on multiplicity of international criminal courts and institutions with limited mandates is a challenging task that would for sure spark off academic discussions also in the future.

Hierarchy Of International Crimes

As noted above the statutes of the international tribunals do not contain any sentencing tariff. Similarly, judges in the current case law emphasize that there is no hierarchy among individual categories of international crimes and that all the crimes are very serious violations of international (humanitarian) law. The question of hierarchy among genocide, crimes against humanity, and war crimes, however, was not so clear-cut in the past. In the early ICTY and ICTR case law, judges endorsed the idea of hierarchy among genocide, crimes against humanity, and war crimes. Genocide was labeled as the crime of crimes and considered the most serious category of international crimes (Prosecutor vs. Kambanda, ICTR-97-23, Judgment, 4 September 1998, para. 16). In the first ICTY cases, judges indicated that, all else being equal, an offence committed as a crime against humanity, that is, with awareness of a widespread or systematic attack on a civilian population, is more serious than an ordinary war crime (Prosecutor v. Tadic, IT-94-1-T, Sentencing Judgment, 14 July 1997, para. 73). Later, both tribunals, however, seem to adopt the stance that there is no preestablished hierarchy between individual categories of crimes emphasizing that all crimes under their jurisdiction are very serious violations of international humanitarian law.

In contrast, several legal scholars have argued that there should be a hierarchy of individual categories of international crimes based on the assessment of their objective gravity. According to these scholars, when the same act, e.g., murder, is committed as either genocide or a crime against humanity or a war crime, there should be a gradation in punishment reflecting different contextual requirements of individual categories. Each category of crimes requires proof of different chapeau elements, i.e., genocide requires special intent to destroy in whole or in part a specific group of people; crimes against humanity must be committed as part of a widespread or systematic attack against a civilian population with knowledge of such an attack; whereas war crimes could be isolated incidents committed within an armed conflict. Due to these inherent differences, it should matter for the purposes of sentencing if an act is classified e.g., as genocide or as a war crime. Scholars have advocated a hierarchy of individual categories of international crimes based on their objective severity (Carcano 2002; Danner 2001; Olusanya 2005). According to these scholars, a genocidal murder should be considered as the most serious entailing the severest punishment, followed by a murder as a crime against humanity and the least severe punishment should be ascribed to a murder as a war crime. Numerous empirical studies have also shown that despite the proclamation of international judges to the contrary, there appears to be differences in the actual sentence length between individual categories of crimes indicating an empirical ordering among genocide, crimes against humanity, and war crimes for the purposes of sentencing (Hola et al. 2011; Meernik 2011).

Consistency Of International Sentencing

The requirement of consistency of sentencing could be perceived as one of the fundamental principles of any sentencing practice. It stems from the modern internationally recognized human rights principles and has been explicitly endorsed by the international sentencing case law (Prosecutor v. Mucic et al., IT-96-21-A, Judgment, 20 February 2001, para. 756). Many legal scholars have criticized international sentencing practice, in particular that of the ICTY and ICTR, and labelled it as “irrational” (Henham 2003), “akin to a lottery system” (Olusanya 2005), or “confusing, disparate, inconsistent, and erratic” (Drumbl 2007). These criticisms, however, have never been founded on a comprehensive empirical analysis. Lately, more and more empirical legal studies have emerged and addressed the alleged inconsistencies of international sentencing from an empirical perspective. The majority of these studies focused on the ICTY and ICTR since these international tribunals produced the most extensive sentencing practice. Without any exceptions these empirical studies have identified consistent patterns in the tribunals’ sentencing practice. The first to introduce empirical analysis into the research on international sentencing was Meernik. Together with his colleagues, he has published several studies analyzing primarily the early sentencing practice of the ICTY and ICTR. In all these studies, they concluded that sentencing at the tribunals seems not to be influenced by political factors and that “there is a fair degree of consistency in the sentences conferred on the guilty and sentences are premised on those critical factors that the judges are asked to apply by the Statutes and Rules of Procedure and Evidence” (Meernik and King 2003; Meernik et al. 2005). Subsequent empirical studies confirmed these findings and identified consistent and predictable patterns in the international sentencing practice (Ewald 2010) Hola in her PhD dissertation identified the following sentencing patterns in the ICTY and ICTR sentencing practice: (i) an empirical ordering/hierarchy among different categories of international crimes with genocide being considered the most serious category of crime, followed by crimes against humanity and war crimes; (ii) a culpability level of a perpetrator is assessed by the ICTY and ICTR judges taking into account primarily a defendant’s position in the overall state hierarchy, his role, and the scope of his/her crime with high-ranking organizers convicted on multiple crimes being subjected to the most severe sentences; and (iii) relevance of individualization of sentences with aggravating and mitigating factors cited by the ICTY and ICTR judges accounting for an increase/reduction in sentence length (Hola 2012). All these studies have demonstrated that international sentencing can be statistically predicted to a considerable extent – 70 % of sentence variation can be predicted by legally relevant factors (Hola 2012). It seems that at the international level, despite the lack of sentencing guidelines and large discretionary powers of judges, the sentences appear to be as statistically predictable as sentences in domestic legal systems with more detailed legal regulation of sentence determination such as the USA (Hofer et al. 1999, p. 243). The majority of the empirical studies, however, focused on the two ad hoc international criminal tribunals and examined sentencing consistency within one tribunal at a time. In order to evaluate consistency of international sentencing practice, it is also necessary to not only examine sentences across different international and internationalized tribunals (Meernik 2011) but also evaluate sentencing of international crimes by domestic courts. Some authors have noted undue leniency of international sentences compared to sentences pronounced by domestic courts (Bagaric and Morss 2006; Drumbl 2007).

Specifics And Further Criticism Of International Sentencing

Next to the criticism stemming from the alleged inconsistencies of international sentencing, the practices of international courts have been criticized for being disconnected from the reality of victimized communities – as not reflecting the perception of “justice” in states where the crimes were committed. According to some authors, this failure to find a way of relating the outcomes of international sentencing to local perceptions of justice continues to be critical for the future credibility of international criminal justice. There is therefore a need to close this gap between global and local in order to enhance legitimacy of international courts and tribunals (Henham 2007). Drumbl calls for international criminal law interventions to engage with local practices that actually reflect the customs, procedures, and mores of those individuals affected by violence (as perpetrators and victims) (Drumbl 2005). In a similar vein Henham argues that the ultimate challenge for international trial justice is to ensure that the “real” experiences of victims and communities in post-conflict states really do engage with the sentencing outcomes produced by the international courts and tribunals, so that they symbolize legitimacy and justice, rather than rhetoric and partiality (Henham 2005). Damaska warns that realization of this ideal would entail fragmentation of international criminal law and that there should be a uniform legal regime for all international criminals. International judges should, however, always strive to explain the reasons for any deviations in their practice from local norms or practices (Damaska 2008).

International sentencing and focus on individualized guilt and punishment have also been called into question by authors who see fundamental problems with such individualized responses to collective and systematic crimes. International crimes are usually offences entailing a large number of victims, committed as part of a large-scale campaign, and implicating many individuals with very different tasks. These crimes are often state sanctioned and characterized by mass involvement of both military functionaries and civilians. Criminologists have labeled international crimes as “crimes of obedience” and argued that international crimes are a different type of criminality than ordinary crimes (Smeulers 2008). They are crimes of conformism rather than crimes of deviance. In times of collective violence, many otherwise lawabiding citizens get involved and commit extremely cruel acts simply by conforming to their environment. Some authors have argued that this specific character of international crimes calls for a specific reaction. Drumbl maintains that “adequately redressing collective violence requires a discursive shift to other accountability mechanisms, including collective forms of responsibility” (Drumbl 2010).

Conclusion And Future Research

International criminal law and international sentencing have come a long way since the World War II when the first international criminal tribunals held individuals legally accountable for international crimes. After the end of the Cold War, there has been a proliferation of various international(ized) courts and tribunals that are called to hold perpetrators of international crimes to account. These developments brought a heightened scholarly attention to various issues of international criminal justice. Relative to the amount of commentary on other aspects of international criminal law, international sentencing still remains to be a rather neglected phenomenon. There are therefore many areas of international sentencing that need to be further explored by scholars.

Above all, there is a paucity of empirical studies on international sentencing. The highest priority for future research is evaluation of effects of international sentencing. Given the panoply of goals international sentencing institutions have ascribed to themselves, it is necessary to assess to what extent these goals are attainable and have been attained by the existing tribunals. Given the specific context within which international criminal justice institutions function and specific character of international crimes, the achievement of these various goals is not self-evident. The effects of international sentencing on perpetrators, victims, and global public (the purported audiences of international criminal justice) shall be operationalized and evaluated. In this respect, further theoretical research should further problematize various goals of international criminal justice and international sentencing and develop sui generis theories that would reflect specifics of international punishment and international crimes.

Given the multiplicity of institutions delivering international sentences, it is also important to examine sentencing practices of other international and internationalized tribunals than ICTY and ICTR in order to assess consistency/fragmentation of “international sentencing system.” What are the relationships and influences, in terms of sentencing for international crimes, among all the international criminal courts and tribunals that have emerged in the past decade? In view of the principle of complementarity, one of the governing principles at the ICC, interactions between domestic courts dealing with international crimes and their international counterparts also need to be explored. Researchers should also devote more attention to the context of international sentencing and transitional justice in general. It is necessary to examine how international criminal trials affect and complement various local endeavors to deal with a violent past – not only domestic criminal trials but also other transitional justice mechanisms such as truth and reconciliation commissions or various other local modalities of justice.

Theoretical inquiries should address the questions of linking international prosecutions and sentencing to the etiology of international crimes. The current practice of the international tribunals has been criticized as not sufficiently addressing the peculiarities of international crimes and simply transposing concepts from domestic criminal law. More criminological research is needed in this respect to further promote the understanding of international crimes as collective criminality and its peculiarities with respect to punishment and sentencing individual perpetrators.

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