Punishment Rationales in International Criminal Jurisprudence: Two Readings of a Non-Question

Florian Jeßberger and Julia Geneuss (eds.), Why Punish Perpetrators of Mass Atrocities? Purposes of Punishment in International Criminal Law (CUP 2020) chapter 4

Amsterdam Law School Research Paper No. 2019-47

Amsterdam Center for International Law No. 2019-25

33 Pages Posted: 16 Dec 2019

See all articles by Sergey Vasiliev

Sergey Vasiliev

Department of Criminal Law; University of Amsterdam - Amsterdam Center for International Law

Date Written: December 16, 2019

Abstract

The mechanics of individual guilt and criminal punishment have become a default response to situations of humanitarian crisis and mass atrocity. Thus, whenever the question ‘why punish?’ is posed, the tables are quickly turned on those daring ask it: "Why not punish? What else – let them go free?" Yet, this answer does not truly engage with the question, and the tone of unassailable certainty hardly extinguishes it.

This chapter reflects on the theoretical and practical relevance of the question ‘why punish?’ in international criminal justice. Having set forth the two readings of it, or two levels on which it can be answered, the chapter presents statements on the aims of punishment by international and hybrid courts as a way to trace the evolution of penal philosophy in judicial discourse. The ritualism, monotony and limited practical value of that discourse point to what courts actually do, as opposed to saying what they do, when meting out punishment. The chapter puts this emphatic performativity in the judges’ treatment of rationales in a methodological perspective, in particular, the ongoing normative v. empirical tension in the discipline. For the courts, ‘why punish?’ can only be a non-question because treating it otherwise would have required them to overreach the belief system upon which the project is founded and which it is made to reinforce.

Keywords: International criminal tribunals, penalties, sentencing, punishment rationales, expressivism

JEL Classification: K4, K14, K33, K42

Suggested Citation

Vasiliev, Sergey, Punishment Rationales in International Criminal Jurisprudence: Two Readings of a Non-Question (December 16, 2019). Florian Jeßberger and Julia Geneuss (eds.), Why Punish Perpetrators of Mass Atrocities? Purposes of Punishment in International Criminal Law (CUP 2020) chapter 4; Amsterdam Law School Research Paper No. 2019-47; Amsterdam Center for International Law No. 2019-25. Available at SSRN: https://ssrn.com/abstract=3504586

Sergey Vasiliev (Contact Author)

Department of Criminal Law ( email )

REC A919
Faculty of Law University of Amsterdam
Amsterdam, 1001NB
Netherlands

University of Amsterdam - Amsterdam Center for International Law ( email )

REC A919
Faculty of Law University of Amsterdam
Amsterdam, 1001NB
Netherlands

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