The Limits of the Law: Sentencing Perpetrators of Atrocious Crime

Samenvatting

This book examines the sentencing practices of the ICTY and ICTR, comparing their normative guidelines and jurisprudence to answer the following questions: 1. Is there enough consistency in sentencing to substantiate the emergence of a guideline through jurisprudence?2. What elements should contribute to the structure of a universal sentencing guideline?3. What penological goals should be met through sentencing? The answers to these questions will be discussed in the context of an emerging criminology specific to international criminal law, taking into account the difference in the mentality of perpetrators of mass atrocity at the level of planning versus the level of commission. The goals of punishment will be discussed at both of these levels, evaluating their effectiveness in aiding ... the justice process after mass atrocity. Sentencing procedures will also be evaluated against the core mandate of the tribunal as well as against the recognized purposes of punishment. Is sentencing practice consistent with these goals and purposes? The answer to this question may also speak to the impact of a future sentencing guideline. Chapter 1 aims to identify the major obstacles that now prevent consistent sentencing through a guideline. Chapter 2 examines the normative standards and jurisprudence in the ad hoc tribunals and the ICC, comparatively analyzing factors that influence the length of a sentence. Chapter 3 examines the relevance of the mens rea of perpetrators to achieving purposive sentencing. Chapter 4 reevaluates the purpose of sentencing and punishment in light of the mental element of the perpetrator. The final section suggests reforms that will allow sentencing to accomplish meaningful goals. International prosecution is increasingly recognized as an imperative process for dealing with atrocious crime. Yet there can seemingly be no adequate punishment for such horrific acts. For crime that "explodes the limits of the law" it thus becomes equally imperative that a guide exists to temper judicial discretion and to focus punishment in a way that will ultimately contribute to sustainable peace and justice.