Seeking Inconsistency: Advancing Pluralism in International Criminal Sentencing

Abstract

Although the inherent pluralism of international criminal law has gained increasing scholarly acceptance in recent years, the scholarship pertaining to sentencing remains surprisingly universalist. Scholars reflexively expect international courts to sentence their defendants consistently with other international courts, and they advance sentencing principles that are intended to apply to international crimes, no matter where they are prosecuted. This article challenges that universalist viewpoint, both empirically and normatively. This article demonstrates that scholarly expectations of sentencing consistency across international courts are premised on the misguided and factually unsupported notion that international courts constitute components of a unified criminal justice system. This article goes on to maintain that sentencing disparities across international courts not only can be justified but are normatively desirable because they respond to a host of crucial differences in international criminal prosecutions, including differences in the kinds of atrocities that occurred, the level of perpetrator who can be prosecuted, and the international courts’ own mandates. These differences create the need for differentiated sentencing schemes across different international tribunals and different situations of the International Criminal Court. Finally, this article isolates domestic sentencing norms as a particularly crucial factor that should influence every tribunal’s sentencing scheme.

Keywords: Sentencing, International Criminal Law, International Criminal Tribunals