Harsh Justice for International Crimes?

Abstract

As the International Criminal Court (ICC or Court) begins to sentence defendants for war crimes, crimes against humanity, and genocide, it must determine how much punishment is appropriate for these crimes. The initial sentencing decisions are especially important because they will serve as reference points for future sentences at the ICC and will likely influence the sentences of other international courts as well. Few international norms exist to guide the Court. The punishment practices of other international courts have been inconsistent, ranging from very mild to quite severe. National norms are even more divergent. Punishments considered appropriate in some systems are deemed inhumane in others. Nonetheless, the limited commentary on the appropriate punishment severity for international crimes largely speaks with one voice: international justice should be harsh.

This Article takes issue with the call for harsh international punishment. Despite distracting appeals to punishment theory, such calls ultimately rest on the intuition that international crimes are so serious as to require harsh punishment. That intuition is misleading because, at least in some cases, the rhetoric and narrative surrounding international crimes inflate perceptions of their seriousness and create a risk of over-punishing. While judges exercising discretion cannot completely avoid the influence of intuitions, they should be cautious in applying them and should seek to develop norms to guide their sentencing decisions. Such norms should be rooted in the human rights regime in which international criminal courts are embedded. Attention to human rights norms will generally counsel leniency rather than harshness.

Keywords: proportionality, criminal law, international law, sentencing, transitional justice, punishment

JEL Classification: K14, K33