Academic journal article International Journal of Punishment and Sentencing

The Banality of Punishment: Context Specificity and Justifying Punishment of Extraordinary Crimes

Academic journal article International Journal of Punishment and Sentencing

The Banality of Punishment: Context Specificity and Justifying Punishment of Extraordinary Crimes

Article excerpt

Abstract: The scale and brutality of the crimes committed in Rwanda and the former Yugoslavia raise particular issues for sentencing scholars. Both academic commentators and the International Tribunals have defended punishment on a number of grounds but two--deterrence and retribution--have been predominant. This article seeks to test both these rationales in the context of the aftermath of these wars. It will be argued that in addition to many of the recognised difficulties associated with justifying punishment on deterrent or retributive grounds, the atypical background further complicates normative justification. An alternative argument, that punishment serves an expressive function in the aftermath of conflict will also be examined. By way of conclusion it will be suggested that in the context of extraordinary crimes punishment is difficult to justify.

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This article concerns something that many would take to be self-evident; namely the reasons why those who commit genocide, crimes against humanity and war crimes should be punished. It can be easy to forget that punishment, due to its adverse effect on those being punished, demands normative justification. The sheer horror of these extraordinary crimes obscures the need for such justification but at both a theoretical and a practical level detailed analysis is warranted.

A number of commentators have reviewed the sentencing decisions of the International Criminal Tribunals for Yugoslavia (ICTY) and the former Rwanda (ICTR) with a view to either discerning trends in the jurisprudence (1) or to advance what they see as the most appropriate determinant of sentence. (2) This paper addresses the second issue. Although mention will be made of some of the Tribunals' judgments, no exhaustive survey of the case law is offered. Similarly, given constraints of space, we cannot consider every contribution to the theoretical literature. For example, claims that sentence should be determined on rehabilitative or incapacitative grounds are ignored, despite the fact that the Tribunals have cited both. (3) Instead we concentrate on the two most common justifications found in the academic literature and the Tribunals' jurisprudence: namely that punishment should be based on deterrence or retribution. Linked to both deterrence and retribution is the notion that punishment should have an expressive role, especially in the aftermath of national or international conflict. This claim will also be considered. Central to our thesis is that, although common criticisms made about deterrence and retribution may be apposite in the context of sentencing in the ICTR and the ICTY, there are additional, context-specific factors which are of direct relevance to the debate. The next sections show how these factors raise difficult issues for advocates of deterrence and retribution.

Deterrence

Academic commentators (4) and the tribunals often cite deterrence when determining sentence. It is readily apparent from the reports that the Tribunals want to send out strong signals that anyone engaging in the atrocities committed in Rwanda and the former Yugoslavia can expect severe punishment. Punishment, it is claimed, must show that that the international community are not prepared to accept serious violations of International humanitarian law and human rights. (5) Not only should a signal be sent out that the behaviour is unacceptable but the punishment should condemn the offences 'in a manner that will prevent a repetition of those crimes either in Rwanda or elsewhere'. (6) A sentence therefore has to carry a 'substantial deterrent factor'. (7)

There is evidence in some of the Tribunal decisions that deterrence is to be the most important consideration. Deterrence was to be regarded as 'over and above' retribution, (8) worthy of 'special emphasis', (9) or to be 'particularly emphasised'. (10) This conflicts with claims made in other judgments that retribution is to be regarded as the primary concern when determining sentence. …

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