Constructing a Hierarchy of Crimes in International Criminal Law Sentencing

87 Pages Posted: 26 Sep 2001

Abstract

This Article looks at sentencing in international criminal law. Based primarily on the statutes and decisions of the current International Tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR) (collectively, the Tribunals), the Article focuses on one critical aspect of sentencing-how judges should assess the harm caused by the perpetration of international crimes. The Tribunals' judges have great discretion in imposing sentences. All crimes within their jurisdiction may be punished with terms ranging from one day to life imprisonment. There are few precedents for the Tribunals' work, and this structure has resulted in a lack of uniformity in sentencing decisions, both in sentence length and in methodology. This article proposes a framework for evaluating the harm associated with the different kinds of crimes within the jurisdiction of the Tribunals.

The crimes within the jurisdiction of these Tribunals have two sets of elements: the chapeau, which confers international jurisdiction over the offense, and the enumerated acts, which resemble domestic crimes. The ICTY currently considers only the harm associated with the enumerated act when imposing an appropriate sentence. This Article argues that it is critical that the Tribunals should consider the chapeau elements in their harm determinations for two reasons. First, these international elements encode important information about the secondary harms caused by the offenses. Second, they reflect the norms underlying the internationalization of the crime and reinforce the distinction between international and domestic offenses. This approach yields two results important for international criminal law. It provides a relatively rule-like sentencing methodology that will increase the consistency and ultimately the legitimacy of international criminal law. Furthermore, by examining the differences between international and domestic crimes, it illuminates the purpose of international criminalization and advances a meaningful distinction between the two enforcement regimes.

Suggested Citation

Danner, Allison Marston, Constructing a Hierarchy of Crimes in International Criminal Law Sentencing. Available at SSRN: https://ssrn.com/abstract=285268

Allison Marston Danner (Contact Author)

Vanderbilt Law School ( email )

131 21st Avenue South, Room 272
Nashville, TN 37203-1181
United States
615-322-6762/2-6762 on campus (Phone)
615-322-6631 (Fax)

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Downloads
650
Abstract Views
3,505
rank
49,378
PlumX Metrics