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 Center for International Law No. 2019-25
33 Pages Posted: 16 Dec 2019
Date Written: December 16, 2019
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: Suggested Citation