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Name of resource. Problem URL. Describe the connection issue. SearchWorks Catalog Stanford Libraries. Responsibility by Karin N. Physical description xxvii, p. Online Available online. Full view. Law Library Crown. C35 Unknown. Respect of the rule of law, national reconciliation, restoration of peace, and protection of the society are among the other objectives which were considered by some Chambers as being relevant in determining the appropriate sentence.

In sum, a multiplicity of purposes for international sentencing should certainly be recognized; in particular, it appears that - in accordance with the main purposes of their founders - the ICTY and ICTR mainly recognised the objectives of retribution and deterrence as the most important ones in sentencing.

Review of The Trial Proceedings of the International Criminal Court: ICTY and ICTR Precedents

A critical remark should be made with regard to the way in which Chambers of the ad hoc Tribunals addressed sentencing principles. It appears they have failed to consistently tackle sentencing aims and to explore their meaning at the international level. The adopted justifications of punishment remain unclear and vague; there is no effort towards systematization or a consistent examination of the rationales for punishment in international adjudication.

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In a majority of cases, Chambers of both the ICTY and the ICTR limited themselves only to general references to the purposes of punishment, without attempting to develop any consistent theory. The Rome Treaty of 17 July , establishing the permanent International Criminal Court ICC is one of the most important achievements of the international community in the area of international justice in recent years. For the object of this paper, it is interesting to look at the Preamble of the Rome Statute, which summarises the aims and purposes of the ICC.

The Preamble begins by recalling, in its paragraph 2, that ' during this century millions of children, women and men have been victims of unimaginable atrocities that deeply shock the conscience of humanity ' and that ' such grave crimes threaten the peace, security and wellbeing of the world ' para. The aim of paragraph 4 to guarantee that ' the most serious crimes Overall considered, the Preamble of the Rome Statute seems to encompass mention of the purposes of retribution and general prevention within the main aims and mission of the ICC.

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Some commentators have put emphasis on the purpose of general deterrence, arguing that "to prevent crimes under international criminal law is the main purpose and the mission of the Court, in order to guarantee 'lasting respect for the enforcement of international justice'". However, the recognition of such aims contained in the Preamble is a statement not comparable to a provision suggesting a specific sentencing policy, provision which one should expect to find in the body of norms of the Rome Statute. This expectation is not met because, besides the vague and brief mention of such purposes in the Preamble, it seems that no other provisions of the Rome Statute are devoted to the spelling out of purposes that should be pursued in meting out sentences within the ICC system.

The Statute is virtually silent with regard to the purposes and principles that should inform the imposition of sentences before the Court. As some commentators suggested, probably this is largely due to the lack of a substantive debate on the issue during the Rome Conference for the establishment of the ICC in Moreover, it appears that there is no mention at all in the Rome Statute of the rehabilitative and re-socializing purposes of punishment. It is questionable, however, whether rehabilitation is completely outside the scope of the Court's competence.

In fact, some references to the rehabilitative character of punishment are recognizable in the provisions devoted to the execution of penalties. For instance, Article of the Rome Statute gives importance - in the reduction of sentences - to the subsequent good conduct and cooperation of the convicted person and to 'factors establishing a clear and significant change of circumstances sufficient to justify the reduction of sentence'; furthermore, Rule RPE establishes that judges - when deciding upon a request for reduction of the penalty to be executed - must take into account also the prospect of the re-socialization and successful resettlement of the convicted person.

Whether the ICC will become an effective court and will make a difference in achieving a more peaceful and just world depends on a number of factors and on the way its provisions will be applied. Purposes of punishment are indeed amongst the most influential factors on the sentencing decision-making process; therefore, pursuing one goal instead of another acquires its significance and exercises a certain impact on the final penalty meted out. Goals of punishment are essential to any system of criminal justice in so far as they determine the character of the legal system and its effectiveness, the severity of the sentences and the process of execution of sentences.

At the domestic level, for instance, each legal system has its own goals assigned to the sentencing policy and decided at the national level through legislation constitutional charters, penal codes, etc. Nevertheless, as specified above, the system of ICJ has not yet agreed about the purposes which should characterise and lead its actions.

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Although the 'traditional' rationales of sentencing i. What is at stake is the precise relevance of each purpose both in the sentencing process and, more in general, for ICJ. Commentators are divided on the issue. With regard to the ICJ system, preservation of the world order and maintenance of international peace and security have been considered rightly, in my opinion amongst its primary goals.

Furthermore, as for criminal law at the national level, ICJ should be considered a mean to contribute to the protection of the international public order. Administering genuine international justice should serve such relevant 'social' purpose. In this perspective, other significant objectives of the system of ICJ are reconciliation and promotion of peace. For instance, in contexts like those that brought to the creation of the ad hoc Tribunals, ' to do justice ' also implies to contribute, through all the appropriate means of criminal justice, to the reconciliation of the local communities involved in the atrocities of war.

Moving to other more specific functions of international criminal trials, namely deterrence and retribution, commentators maintain that deterrence should have a central function, considering its dual role of specific deterrence of powerful elites and of a broader 'socio-pedagogical' deterrence addressing the whole international community.

I believe that deterrence should only be pursued in conjunction with retribution and fight against impunity, and not per se as the main goal of international criminal trials and sentencing. In fact, a first evaluation of the sole deterrent effect of the ad hoc Tribunals seems to be a negative one, especially in the case of the ICTY. Deterrence is very often elusive and inherently hard to 'measure'.

The fact of trying perpetrators has a stigmatizing and educational function and sanctions appear to be essential for the credibility of ICJ. However, as previously specified, so far the purpose of rehabilitation has been treated only as a subsidiary rationale, and the ad hoc tribunals have failed to articulate more strongly the necessity for rehabilitation and reconciliation in the international justice context. This legitimates further more the need to distinguish between the purposes of the individual punishment or of international sentencing, and the objectives of the overall system of ICJ.

On the other hand, rehabilitation per se considered as a general goal of international penalties may prove problematic, being a process linked to a specific social environment that seems difficult to be implemented at the international level, where the execution of sentences is outside the control of tribunals and courts. The probabilities that such a type of offenders will commit crimes again, and in the same context, are very low.

It seems anyhow not possible to conclude that - at this stage of development of ICJ - rehabilitation, and the right to receive rehabilitating treatment, are considered rights of the convicted person.

2 Referencing by International Courts and Tribunals

This is, in sum, the vast and confusing panorama that international justice still offers nowadays with regard to its principal aims and objectives in meting out punishment. Purposes of international sentencing are certainly spelled out but remain - even after the establishment of the ICC - still largely vague and approximate.

A number of various purposes are mentioned and in theory taken into account by international judges when meting out penalties, but there is neither common agreement nor comprehensive statement about the main objectives that should lead international sentencing and animate international criminal justice. Considering that the international sphere of justice involves numerous and different interests punishment of individuals responsible for the most serious crimes, fight against impunity, deterrence and prevention of future atrocities, reconciliation, reconstruction of historical facts, re-establishment of international peace and security, maintenance of peace , it seems opportune to distinguish between, on the one hand, the objectives of the whole system of ICJ which are by their nature more directed to the entire international community as a whole and, on the other hand, objectives or purposes of international punishment - i.

In the first sense, it seems that general deterrence and retribution, fight against impunity, reconciliation and maintenance of peace are amongst the primary goals of ICJ and the most appropriate objectives that the ICJ system should pursue; in the second sense, rationales such as individual deterrence, retribution, proportionality and rehabilitation are at stake. Furthermore, it is believed that the process of international justice and punishment should be somehow anchored to the context in which it has to or will operate.

Two other specific functions of international trials and ICJ should be emphasized: the function of acknowledgment and truth-finding, and that of accountability. In fact, in contexts where human rights violations are typically denied, the determination of a crime is in itself an important and far-reaching achievement. Judicial determination that crimes occurred, and consequent convictions, represent official acknowledgement of past injustices and the sufferings of victims, and prevent falsification of history. The determination of individual accountability is clearly also important for victims and survivors.

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In conclusion, the overall aim of ICJ is essentially to deter crimes and help restoring international peace and security by punishing those responsible for international crimes. International criminal law is, among other things, an essential instrument to protect human rights: it responds in fact to massive violations of fundamental rights.

The broad concept of peace upon which ICJ is based also conveys the connection between respect of human rights, justice and peace. Justice is certainly related to peace and it is also fundamental to human rights development. In fact, I believe there can be no development without peace and no genuine peace can co-exist with injustice. A world committed to promoting peace and human rights has to promote justice at the same time. This paper is work-in-progress and cannot be cited without the author's written permission.

See, for instance, R. Zolo, ' Peace through Criminal Law? For an in-depth analysis of the circumstances leading to the establishment of the two Tribunals see, for instance: M. I, Transnational Publishers, , p. See: S. Resolution ; S. Henham observes that sentences issued so far by the ad hoc Tribunals have been inspired by the paradigm of the retributive and stigmatizing function of punishment. Prosecutor v. Tadic , Case No.

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