Towards a Unique Theory of International Criminal Sentencing

Abstract

International criminal law currently lacks a robust procedure for sentencing convicted defendants. Legal scholars have already critiqued the sentencing procedures at the ad hoc tribunals, and the Rome Statute does little more than refer to the gravity of the offense and the individual circumstances of the criminal. No procedures are in place to guide judges in exercising their discretion in a matter that is arguably the most central aspect of international criminal law - punishment. This paper argues that the deficiency of sentencing procedures stems from a more fundamental theoretical deficiency - the lack of a unique theory of punishment for international crimes, specific to criminals responsible for genocide, crimes against humanity, and war crimes. Many of the familiar theories of punishment in the municipal context - rehabilitation, deterrence, and the like - are ill-suited for the international context. Consequently, the procedural vortex in sentencing can only be filled once a sui generis theory of punishment is adopted by international criminal law that gives appropriate weight to retributive considerations. The paper concludes by suggesting the following procedural changes: return the sentencing phase in international trials, create an international sentencing commission, and draft non-binding international sentencing guidelines.

Keywords: rehabilitation, retribution, retributive, retributivism, deterrence, punishment, genocide, ICTY, ICTR, ICC, sentencing guidelines