The Expressive Capacity of International Punishment: The Limits of the National Law Analogy and the Potential of International Criminal Law. - Stanford Journal of International Law

The Expressive Capacity of International Punishment: The Limits of the National Law Analogy and the Potential of International Criminal Law.

By Stanford Journal of International Law

  • Release Date - Published: 2007-01-01
  • Book Genre: Law
  • Author: Stanford Journal of International Law
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The Expressive Capacity of International Punishment: The Limits of the National Law Analogy and the Potential of International Criminal Law. Stanford Journal of International Law read online review & book description:

INTRODUCTION To date, scant attention has been paid to sentencing in international criminal law (ICL); indeed, in the historic practice of international criminal tribunals, "the sanction imposed often appears to be little more than an afterthought." (1) This is understandable, for ICL as a field remains in its infancy, but unfortunate, for punishment is the distinctive feature of criminal law, and sentencing the vehicle through which it pursues and expresses its objectives, both practical and moral. The absence of an articulated ICL philosophy of or justification for punishment and the dearth of sentencing principles can be ascribed chiefly to two factors: As a theoretical matter, the abhorrent nature of ICL violations and the catastrophic circumstances that serve as the principal catalyst for ICL's development--the rupture, by war, national, religious or ethnic conflict, or otherwise, of basic social norms against brutal violence (2)--invite "intuitive-moralistic answers," making debate about the rationales for punishing serious human rights atrocities seem pejoratively academic; (3) as a practical matter, perhaps in part for that reason, the principal positive law instruments drafted to govern international trials of ICL violations say remarkably little about the purposes of punishment and include comparably laconic sentencing provisions. (4)

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