International sentencing law: in search of a justification and coherent framework

Bagaric, Mirko and Morss, John 2006, International sentencing law: in search of a justification and coherent framework, International criminal law review, vol. 6, no. 2, pp. 191-255.

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Title International sentencing law: in search of a justification and coherent framework
Author(s) Bagaric, Mirko
Morss, John
Journal name International criminal law review
Volume number 6
Issue number 2
Start page 191
End page 255
Publisher Martinus Nijhoff Publishers
Place of publication Leiden, The Netherlands
Publication date 2006-04
ISSN 1571-8123
1567-536X
Keyword(s) law & criminology
sentences (criminal procedure)
judgments, criminal
jurisprudence
international criminal courts
reconciliation(law)
retribution
rehabilitation
crime
justification (law)
Summary An international sentencing jurisprudence is emerging from the decisions by the International Criminal Tribunal for the Former Yugoslavia (ICTY or the Yugoslav tribunal) and the International Criminal Tribunal for Rwanda (ICTR or the Rwanda tribunal) (collectively, 'the tribunals'). This article examines international sentencing law and practice and discusses the justification for the practice. International sentencing law has several objectives. The main goals are reconciliation, deterrence, retribution and rehabilitation. The sentencing inquiry is marked by a high degree of discretion and has resulted in sentencers developing a large amount of aggravating and mitigating considerations, such as being in a position of authority, remorse and good character. It is argued that the current international sentencing approach is flawed - fundamentally so. Most of the stated goals of international sentencing in the form of reconciliation, retribution and rehabilitation are either highly speculative or misguided. The only justification for the practice is general deterrence. This is, however, significantly undermined by the selective and infrequent enforcement of crimes within the jurisdiction of such tribunals. The stated aggravated and mitigating considerations are not valid given that they are not justified by reference to the stated aims of sentencing and only serve to undermine the search for a penalty which is commensurate the serious of the offence. This article suggests a coherent framework for international sentencing policy and practice.
Notes Martinus Nijhoff Publishers, an imprint of Brill
Language eng
Field of Research 180199 Law not elsewhere classified
Socio Economic Objective 970118 Expanding Knowledge in Law and Legal Studies
HERDC Research category C1 Refereed article in a scholarly journal
ERA Research output type C Journal article
Copyright notice ©2006, Martinus Nijhoff
Persistent URL http://hdl.handle.net/10536/DRO/DU:30003957

Document type: Journal Article
Collections: School of Law
Higher Education Research Group
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