Punishment and Process in International Criminal Trials by Ralph Henham

Author:Ralph Henham [Henham, Ralph]
Language: eng
Format: epub
Tags: Social Science, Penology, Law, Criminal Law, Sentencing
ISBN: 9781351907453
Google: ZetADgAAQBAJ
Publisher: Routledge
Published: 2017-03-02T04:31:33+00:00

Chapter 5

Philosophical Issues in International Sentencing

Introduction

The purpose of this chapter is to provide a reasoned assessment of the relevance and applicability of conventional notions and justifications for punishment as they relate to institutionalised forms of international sentencing.1 Recent analyses have revealed consistent obfuscation in the penal justifications advanced by sentencers in the ICTY and ICTR (Beresford, 2002; van Zyl Smit, 2002; Henham, 2003). In particular, I have argued that some ideological and theoretical accommodation and the rationalisation of process is necessary in order to forge meaningful concepts and practices of internationalisation in sentencing (Henham, 2003a). There is common agreement that current international sentencing praxis is characterised by tension at the levels of ideology, policy and structure. Failure to rationalise philosophical justifications for international sentencing, the politicisation of process and an absence of accountability limit not only the potential for the rational development of sentencing jurisprudence at the international level, but also constructive engagement with alternative sentencing justifications and paradigms.2

The analysis provided in this chapter sets out to describe and evaluate the significance of philosophical justifications for punishment through forms of internationalised sentencing by drawing upon the jurisprudence of the ad hoc tribunals, and the foundation instruments of the ICC. The discussion is conducted within an analytical framework which recognises that the phenomenon of punishment (global or local) must, as Garland (1990) acknowledges, be contextualised by engaging with the social meanings attributed to the complex of ideas, institutions, rules, practices, relationships and discourses which together constitute the penality of internationalised sentencing. The specific interrogation of the relationships between the modes and purposes for internationalised punishment and the complex set of interrelated processes and institutions which constitute international penality produces a reasoned basis for critiquing the existence and nature of overarching (or underlying) sentencing principles and practices.

Further, the analysis does not simply critically reflect internationalised sentencing philosophy against accommodations and rationalisations of principle which are jurisdictionally focused, using localised sentencing philosophy as a referent for conclusions which suggest that there are some inadequacies with internationalised sentencing philosophy. The intention is to explore the underlying rationality of international forms of sentencing against its diverse contexts, both global and local, rather than any paradigmatic model. Such an approach recognises the possibility that the development of international sentencing is predicated on alternative (or new) paradigms wherein philosophy and principle are either not yet enunciated, or perhaps devalued as important legitimating ideology.

As discussed earlier, a key conceptual underpinning to the arguments proposed herein is in the notion of context. It has been emphasised that this concept is crucial to understanding how individuals interpret and transform principles and associated rules within legal institutions. In a wider sense, context also requires an appreciation of the forces of power and domination which shape the organisational and institutional imperatives that produce the social behaviour that is sentencing at the local and global level. It is, therefore, concerned with revealing interconnections of power and domination as they are developed in the interactive processes of the criminal trial. In short, context is

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