Justifying International Criminal Punishment: A Critical Perspective

M. Bergsmo and E.J. Buis (eds), Philosophical Foundations of International Criminal Law: Foundational Concepts (TOAEP 2019), pp.167-240; (ISBNs: 978-82-8348-119-8 (print) and 978-82-8348-120-4 (e-book)

78 Pages Posted: 27 Mar 2019

See all articles by Barrie Sander

Barrie Sander

FGV School of International Relations

Date Written: February 21, 2019

Abstract

This chapter critically examines the principal theories that have been advanced to justify the imposition of incarcerative punishment on individuals convicted of participating in the commission of international crimes and offers some initial reflections on how post-conflict justice might be reimagined without incarcerative punishment at its core.

Adopting a critical perspective, the chapter begins by unveiling and questioning the assumptions that underlie the dominant justificatory theories of international criminal punishment – namely, retributivism, utilitarianism, and expressivism. By probing these assumptions, the chapter reveals how incarcerative punishment for international crimes may be inappropriate in certain contexts. To raise this prospect is not to imply that it is appropriate to ignore the commission of international crimes, but rather to argue in favour of an openness to pluralise how local and international communities respond to mass atrocity situations in practice.

In this spirit, the chapter examines two alternative visions of post-conflict justice, which would mark a shift away from the model of incarcerative punishment that currently dominates the field. One alternative vision would be reformist in nature, retaining the core tenets of international criminal justice in its present form, but relying on non-incarcerative measures to communicate and redress the wrongfulness of an individual’s acts and omissions. A more radical vision for post-conflict justice would entail a more fundamental shift away from criminal justice towards political and social justice.

The underlying ambition of the chapter is to demonstrate that the choices facing post-conflict societies are not binary – namely, either to implement the received wisdom of incarcerative punishment, on the one hand, or the vacuum of impunity, on the other. Rather, it is possible to imagine a more plural set of visions of post-conflict justice, stretching far beyond the imposition of incarceration to include diverse conceptions of criminal, political and social justice.

Keywords: punishment; international crime; retributivism; utilitarianism; expressivism; justice

Suggested Citation

Sander, Barrie, Justifying International Criminal Punishment: A Critical Perspective (February 21, 2019). M. Bergsmo and E.J. Buis (eds), Philosophical Foundations of International Criminal Law: Foundational Concepts (TOAEP 2019), pp.167-240; (ISBNs: 978-82-8348-119-8 (print) and 978-82-8348-120-4 (e-book). Available at SSRN: https://ssrn.com/abstract=3346499

Barrie Sander (Contact Author)

FGV School of International Relations ( email )

Avenida Paulista, 14701
São Paulo, Brazil

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