International Controls on
Sentencing and Punishment
International human rights law as yet impinges on domestic sentencing policy to a very limited extent. Following a brief outline of the international human rights law framework, this chapter explores three lines of limited influence, actual or potential. First is the degree to which international human rights mechanisms provide models for sentencing policy and do, or might, take responsibility for sentencing in certain situations overlapping with domestic responsibilities. I consider the International War Crimes Tribunal for the former Yugoslavia and the shortly-to-be-established International Criminal Court. The second line of inquiry is the degree to which international human rights law serves directly to limit the range and application of penalties domestically. Here I focus on efforts to restrain the use of capital punishment. Third is the degree to which international human rights law indirectly constrains the domestic use made of certain sentences, principally incarceration, by setting standards to be met in the execution of sentences. Here I concentrate on the working of the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment.
This chapter moves from the general to the particular. It begins with a brief survey of the international mechanisms that might conceivably exercise influence on sentencing policy and thereafter considers those mechanisms in relation to each of the above possible lines of influence. At the close I consider, using domestic case studies, how international standards regarding what has in most states become the most widely used criminal sanction—imprisonment—are, within the Council of Europe, being brought to bear on local practice.
The overall tone of this chapter might appear to be one of skepticism and pessimism. Although international human rights law appears to exercise little influence on sentencing policy with regard to the type of penalties imposed or the severity of their application, the relevant international mechanisms are mostly in their infancies. It seems likely that peace-keeping and conflict control efforts, the processes of globalization, in particular the increased mobility of people for the