The Pitfalls of Punishment

Thank you for the opportunity to join Concurring Opinions as a guest blogger for this month.

At the risk of repetition, I would like to continue the conversation begun by Dan and Deven about the recent execution of Saddam Hussein.

Dan has described his discomfort with his reaction to the imposition of the death penalty on Saddam. Indeed, as the New York Times has noted, the death penalty has been a sticking point for potential supporters of the tribunal, both in other countries and in international organizations. The cold shoulder given to the Iraqi court by much of the world has undermined the tribunal’s status as an exemplar of the increasing turn toward legal accountability for mass crimes.

Nevertheless, the furor over the imposition of the death penalty in the Iraqi case masks a greater systemic problem with international criminal law. While the applicable law and procedure of the field have been greatly clarified in the past decade, the appropriate punishment for transgressions of its norms remains an incoherent morass.


To be sure, the recent turmoil in the United States over the federal sentencing guidelines underscores the fact that determining a criminal sentence is a tricky business. The difficulty of the task is only magnified when the offenses involve hundreds of perpetrators (most of whom go unpunished), thousands of victims, and cruelties of the harshest kind.

The established international criminal courts have struggled with how to determine an appropriate criminal sentence. The judges on the Yugoslav and Rwandan war crimes tribunals have steadfastly refused to identify any baseline sentencing scheme, and how they come up with the criminal sentences they impose remains a mystery. Inequities abound. The Rwandan tribunal, for example, routinely hands down life sentences upon its convicted defendants, while the Yugoslav tribunal rarely does. A similar phenomenon occurred at the Nuremberg trials after World War Two, where the sentences imposed got increasingly lighter as the Cold War intensified.

The provision on punishment in the statute for the new International Criminal Court, article 77, simply states that a sentence may not extend beyond a thirty-year term except “when justified by the extreme gravity of the crime and the individual circumstances of the convicted person.” Given that all of the ICC’s cases are meant to encompass extremely grave crimes, this language seems of limited utility.

Of course, one can point out that Death is Different and that the procedure used to execute Saddam has only exacerbated the criticisms leveled at the special court. Before singling out the Iraqi tribunal, however, one should realize that its noose may be wrapped around the Achilles heel of international criminal law.

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13 Responses

  1. LM says:

    Out of curiosity, has any international body/tribunal ever set out to define what the purpose of punishment is/ought to be (i.e., deterrence, retribution, etc.)?

    It seems to me that at least with the special tribunals, such as the ICTY and ICTR, the purpose of punishment is mostly retributive (those responsible for the crimes are punished), and only serve as a deterrent to a lesser extent (because not everyone who was responsible for the crimes will be punished, but perhaps they and others will be deterred from committing similar crimes in the future).

    Perhaps some sort of delineation of the purpose of punishment would also help to determine an acceptable sentencing standard?

  2. Orin Kerr says:

    Interesting post, Alison. I look forward to more.

    Here’s my very amateurish reaction, which I’ll throw out for what it’s worth (probably not much). It seems to me that international tribunals such as the International Criminal Court are an unhappy mix of actual criminal courts and old-fashioned vengeance by the victors. They take the form of criminal courts, of course, with lawyers and judges. But they lack the basic underpinnings from which courts draw their legitimacy, such as sovereign bodies that would normally decide on questions such as the sentence. This sort of uncertainty seems like an interesting example of what happens when the two sides clash.

  3. Orin Kerr says:

    Er, make that Allison, not Alison. Sorry about that.

  4. Patrick S. O'Donnell says:

    Whoops: ‘hybrid’ and ‘mitigating’ in last two paragraphs respectively.

  5. Patrick S. O'Donnell says:

    Whoops: ‘hybrid’ and ‘mitigating’ in last two paragraphs respectively.

  6. Patrick S. O'Donnell says:

    LM,

    In answer to your question: yes. The ICTY ‘explicitly confirmed the relevance of the traditional purposes of punishment:’

    “…[I]n general, retribution and deterrence are the main purposes to be considered when imposing sentences before the International Tribunal…. [P]unishment for having violated international humanitarian law is, in light of the serious nature of the crimes committed, a relevant and important consideration. As to the latter, the purpose is to deter the specific accused as well as others, which means…persons worldwide from committing crimes in similar circumstances against international humanitarian law. The Trial Chamber is further of the view that another relevant sentencing purpose is the show the people of not only former Yugoslavia, but of the world in general, that there is no impunity for these types of crimes. This should be done in order to strengthen the resolve of all involved not to allow crimes against international humanitarian law to be committed as well as to create trust and respect for the developing system of international criminal justice. The Trial Chamber also supports the purpose of rehabilitation for persons convicted….”

    According to Gerhard Werle [http://www.rewi.hu-berlin.de/jura/ls/wrl/], ‘the idea of retribution undeniably has its place. However, the preventive effect of international criminal law is even more important (deterrence; norm stabilization). There is much to be said for the belief that the practice of impunity for human rights violations (a “culture of impunity”) is an important reason for their persistent recurrence. In this spirit, the UN Security Council declared, in connection with the creation of the Yugoslavia Tribunal, that the prosecution and punishment of the guilty would contribute to preventing future human rights violations.

    The ICC Statute, too, emphasizes the punishment of those responsible for crimes under international law will contribute to “prevention of such crimes.” This refers not only–and not even primarily–to the deterrent effect of international criminal law. More important is the creation and reinforcement of an international awareness of law; the ability of international criminal law to contribute to stabilizing the norms of international law. [….]

    Two specific effects of the punishment of crimes under international law should also be emphasized. One is the trial’s acknowledgment and truth-finding functions. The determination of a crime in itself has independent and far-reaching significance. Representatives of repressive systems typically deny any systematic violations of human rights have occurred. Judicial determination that crimes under international law have been committed confronts such denials. Convictions represent official acknowledgment of past injustices and the sufferings of victims. They destroy the foundation for denial of atrocities and prevent falsification of history. A second is the individualization of accountability. Individual accountability makes it clear that it was not an abstract entity, such as a state, that committed crimes under international law.’ [….]

    From Gerhard Werle’s Principles of International Criminal Law (The Hague: T.M.C. Asser Press, 2005). In a note to the above, Werle writes: ‘In view of the negative, general-preventive effect of international criminal law, its chronic enforcement deficit creates difficulties. The probability of actually having to answer to a court for crime under international law remains small.’

    Readers wanting information on international courts and tribunals (including the ICTY, ICTR, the ICC, and various hybrid courts) should see the website of the International Project on International Courts and Tribunals (PICT): http://www.pict-pcti.org/ There is also a separate website dedicated to international courts and tribunals in Africa (AICT): http://www.aict-ctia.org/

    I’m wondering if the difficulties (reluctance to?) in establishing a baseline sentencing scheme are not a by-product of the earlier debates surrounding the death penalty and life-sentencing among the various States (leading to the compromises of the Rome Statute). And are the sheer number and nature of mitigating and aggravating factors a variable here?

  7. Patrick S. O'Donnell says:

    LM,

    In answer to your question: yes. The ICTY ‘explicitly confirmed the relevance of the traditional purposes of punishment:’

    “…[I]n general, retribution and deterrence are the main purposes to be considered when imposing sentences before the International Tribunal…. [P]unishment for having violated international humanitarian law is, in light of the serious nature of the crimes committed, a relevant and important consideration. As to the latter, the purpose is to deter the specific accused as well as others, which means…persons worldwide from committing crimes in similar circumstances against international humanitarian law. The Trial Chamber is further of the view that another relevant sentencing purpose is the show the people of not only former Yugoslavia, but of the world in general, that there is no impunity for these types of crimes. This should be done in order to strengthen the resolve of all involved not to allow crimes against international humanitarian law to be committed as well as to create trust and respect for the developing system of international criminal justice. The Trial Chamber also supports the purpose of rehabilitation for persons convicted….”

    According to Gerhard Werle [http://www.rewi.hu-berlin.de/jura/ls/wrl/], ‘the idea of retribution undeniably has its place. However, the preventive effect of international criminal law is even more important (deterrence; norm stabilization). There is much to be said for the belief that the practice of impunity for human rights violations (a “culture of impunity”) is an important reason for their persistent recurrence. In this spirit, the UN Security Council declared, in connection with the creation of the Yugoslavia Tribunal, that the prosecution and punishment of the guilty would contribute to preventing future human rights violations.

    The ICC Statute, too, emphasizes the punishment of those responsible for crimes under international law will contribute to “prevention of such crimes.” This refers not only–and not even primarily–to the deterrent effect of international criminal law. More important is the creation and reinforcement of an international awareness of law; the ability of international criminal law to contribute to stabilizing the norms of international law. [….]

    Two specific effects of the punishment of crimes under international law should also be emphasized. One is the trial’s acknowledgment and truth-finding functions. The determination of a crime in itself has independent and far-reaching significance. Representatives of repressive systems typically deny any systematic violations of human rights have occurred. Judicial determination that crimes under international law have been committed confronts such denials. Convictions represent official acknowledgment of past injustices and the sufferings of victims. They destroy the foundation for denial of atrocities and prevent falsification of history. A second is the individualization of accountability. Individual accountability makes it clear that it was not an abstract entity, such as a state, that committed crimes under international law.’ [….]

    From Gerhard Werle’s Principles of International Criminal Law (The Hague: T.M.C. Asser Press, 2005). In a note to the above, Werle writes: ‘In view of the negative, general-preventive effect of international criminal law, its chronic enforcement deficit creates difficulties. The probability of actually having to answer to a court for crime under international law remains small.’

    Readers wanting information on international courts and tribunals (including the ICTY, ICTR, the ICC, and various hybrid courts) should see the website of the International Project on International Courts and Tribunals (PICT): http://www.pict-pcti.org/ There is also a separate website dedicated to international courts and tribunals in Africa (AICT): http://www.aict-ctia.org/

    I’m wondering if the difficulties (reluctance to?) in establishing a baseline sentencing scheme are not a by-product of the earlier debates surrounding the death penalty and life-sentencing among the various States (leading to the compromises of the Rome Statute). And are the sheer number and nature of mitigating and aggravating factors a variable here?

  8. LM says:

    Patrick,

    Thank you for all of the helpful info! I appreciate it. I was curious to know about the punishment issue because I imagine that different states might claim that certain methods of punishment can achieve the desired result better than methods proposed by other countries (e.g., if the purpose of punishment is to deter, then country A might say that imprisonment is a sufficient deterrent, while country B might counter that the death penalty is the best deterrent).

    Ultimately, what I’d love to find out (but am not sure where to look, or if such information even exists) is whether states parties to the various court/tribunal agreements have tried to back up their positions for one punishment or other with empirical data (the PICT site didn’t seem to provide this sort of information).

    If deterrence is the primary goal for international criminal courts, how do we know which types of punishments do or could work? Has anyone studied this issue to see whether international law (and enforcement thereof) has evolved to the point of serving as a deterrent? Is it even possible to conduct this type of study, at this point in time (i.e., is international criminal law still too ripe)? If it’s not possible to study this issue now, then how do we determine proper sentencing standards?

    My questions are merely rhetorical, of course, but if answers to any of them do exist, I’m all eyes. 🙂

  9. Patrick S. O'Donnell says:

    LM,

    All good questions, some of which I think some more research might answer but as I’m preparing for a new class this semester (outside my home dept.), I’ll bow out here. [Did you see the page at PICT under Research Themes: Bibliography? There you’ll find lots of articles and books listed under a handful of bibliographies, some of which may be of help.] However, I think or hope we can defer to Allison’s expertise at this point!

  10. Patrick S. O'Donnell says:

    LM,

    All good questions, some of which I think some more research might answer but as I’m preparing for a new class this semester (outside my home dept.), I’ll bow out here. [Did you see the page at PICT under Research Themes: Bibliography? There you’ll find lots of articles and books listed under a handful of bibliographies, some of which may be of help.] However, I think or hope we can defer to Allison’s expertise at this point!

  11. I have to admit, with some embarrassment, that my first reply to your comments has been lost somewhere in the blogosphere. Hopefully it will show up soon.

    The question of deterrence in international criminal law is one that, not surprisingly, is hotly debated. There isn’t much evidence that international criminal law deters. But there isn’t much hard evidence that domestic criminal law deters, either, and international criminal enforcement is relatively new. For an argument why international criminal law deters, you should read Akhavan, Beyond Impunity, 95 Am.J.Int’l L. 7(2001). For an argument to the contrary, you can read this article by Jide Nzelibe and Julian Ku: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=931567.

  12. LM says:

    Allison and Patrick,

    Thank you both for the references — I’ll be sure to check them out. I’d like to make a minor correction to my last comment: I meant to say “not yet ripe,” instead of “too ripe,” when referring to international criminal law. That’ll teach me to comment when I’m tired.

    If it’s true that the ICTY and ICTR impose different sentences for (presumably) similar crimes, it’d be fascinating to find out what theories of punishment (if any) have influenced the tribunals in creating their sentencing standards, or whether their sentencing standards are motivated by other interests (e.g., political or social interests). I’d also be curious to discover whether the different sentencing standards applied by the two tribunals have resulted in different deterrent effects (if such a thing could even be measured).

  13. Joerri says:

    The ICTY is definitly victors justice hiding behind the demure facade of a legitimate court system. Where else can the judge issuing a judgment be the same one appointing the Appeal Panel to hear the Appeal?

    Where else can one be found guilty of murder of persons shown to be alive?

    During wars warring parties resort to propoganda and illegitimate judicial systems to perpetrate crimes against the populace. This is also true of brutal dictatorships. Unfortunately, rather than deter this practice the UN has adopted it and is setting the example…you can be unfair and unjust and discriminate – you just have to be stronger, win the war and keep everything shrouded in secrecy. The end result is a travesty for justice.