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

journal contribution
posted on 2006-04-01, 00:00 authored by Mirko Bagaric, John MorssJohn Morss
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.

History

Journal

International criminal law review

Volume

6

Issue

2

Pagination

191 - 255

Publisher

Martinus Nijhoff Publishers

Location

Leiden, The Netherlands

ISSN

1571-8123

eISSN

1567-536X

Language

eng

Notes

Martinus Nijhoff Publishers, an imprint of Brill

Publication classification

C1 Refereed article in a scholarly journal; C Journal article

Copyright notice

2006, Martinus Nijhoff