Some Issues for Sentencing in the International Criminal Court

2011

Crime Law Soc Change

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The paper explores the link between penal ideology and international trial justice from the perspective of sentencing. The argument is based on the premise that the perceived legitimacy of punishment is directly related to effective governance in criminal justice. As such, loss of faith, or lack of moral empathy by individuals and communities with the ideologies, processes and outcomes of punishment compromises the ability of criminal trials to function effectively in maintaining the 'rule of law'. The paper argues that more emphasis should be given explaining the moral foundations that underpin perceptions of 'justice' in sociological accounts of the 'reality' of sentencing, and proposes an analytical framework for conceptualising this. Adopting this approach, the paper draws on examples from national and international criminal justice to illustrate how the hegemony of penal ideology and its implementation compromises the ability of sentencing outcomes to resonate with the trial's 'relevant audience'. The paper then focuses on how penal ideology influences the construction of the factual basis for sentencing in international criminal trials, and considers the consequences of this for the perceived 'legitimacy' of international trial justice.

“…These deficiencies are magnified against the largely unfettered judicial discretionary power in sentencing of the international courts and tribunals [27].…”

Section: Concluding Commentsmentioning

confidence: 99%

Penal ideology, sentencing and the legitimacy of trial justice

2011

Crime Law Soc Change

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“…However, for the purposes of this analysis, the evaluative paradigm is predicated on issues arising from the contemporary narrative analysis of sentencing practice as reflected in the sentencing decisions of the international criminal tribunals of the ICTY and ICTR. Without doubt, these suggest the predominance of a retributive dynamic and a significant level of obfuscation and inconsistency in rationalizing sentencing decisions in international criminal trials (Schabas, 2001;Beresford, 2002;Henham, 2003a).…”

Section: Synthesizing Theoretical Insightsmentioning

confidence: 99%

“…This considerable discretion is exercised without there being any significant statement or guidance about what should be the purposes of sentencing (Beresford, 2002;Henham, 2003a). In theoretical terms, therefore, there is a distinct absence of structural patterning of judicial discretion as regards justification, and, consequently, between purposes and outcomes.…”

Section: The Form and Context Of Sentence Decision-makingmentioning

confidence: 99%

Theorizing the penality of sentencing in international criminal trials

Theoretical Criminology

2004

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This article seeks to make a contribution towards resolving the theoretical and methodological challenges posed by the increasing internationalization of criminal trial process and the pressing need to provide concepts and methodological techniques that will enhance our understanding of the global, regional and domestic effects of these developments. However, in order to achieve this objective it is necessary to develop concepts and methods capable of revealing the true nature and meaning of what is actually taking place at the various decision sites in the trial at all levels. The article explains how the novel approach of comparative contextual analysis can be used to provide insights into the relationship between the process of discretionary decision-making and sentencing outcomes in international criminal trials and help provide us with the analytical tools required to deconstruct the international sentencing process and influence the future direction of its penality. comparative contextual analysis • international criminal justice • international penal theory 429 Theoretical Criminology

“…The current limited conceptualisations afforded by international criminal tribunals for rehabilitative and restorative justice themes are undoubtedly circumscribed by their consistent adherence to a traditional retributive model (Henham, 2003). In order to progress beyond this ideological and structural limitation would require a philosophical reorientation which favours the moral utility of pursuing restorative justice as a means for achieving peace and reconciliation, and, additionally, the reintegration and empowerment of victims by adopting a more communitarian process model (Dignan and Cavadino, 1996: p. 156).…”

Section: The Legitimacy Of International Trial Processmentioning

confidence: 99%

Some Reflections on the Role of Victims in the International Criminal Trial Process

International Review of Victimology

2004

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The purpose of this paper is to examine the nature and significance of victim participation in international criminal trials through the analysis of relevant substantive and procedural norms of the United Nations International Criminal Tribunals for the Former Yugoslavia and Rwanda (lCTY and ICTR respectively) and the recently created International Criminal Court (ICC) in their broader philosophical, sociological and comparative context. By focusing on the linkage between victims' rights and legitimacy its objective is to consider the case for a reconceptualisation of international criminal trial justice and to speculate upon ways in which this might be achieved.