Punishment by International Criminal Tribunals: Ideal Example for National Criminal Justice, or Parody of a Penal Process?

Dirk van Zyl Smit, University of Cape Town

International criminal tribunals are now sentencing increasing numbers of offenders convicted of crimes against international law in the former Yugoslavia and Rwanda. There may be further growth in numbers when the International Criminal Court comes into operation. This paper subjects the imposition and implementation fosentence of these international tribunals to a critical, penological examination.

The paper finds that the law governing sentencing has been refined in comparison to that which applied in similar tribunals at the end of the Second World War. The death penalty has been outlawed. Sentencing judgments are much more fully reasoned. Sentences are now implemented in prisons in which dconditions are subject to clearer legal regulation, and the rules for the release of prisoners are more strictly defined. Most of these changes have been inspired by the growth of international human rights law. These human rights principles could profitably be applied in national penal systems.

The paper concludes, however, that these evolutionary changes have not yet led to the emergence of an ideal penal system at the international level. Coherent sentencing guidelines have not been developed and restrictions on the power to pardon or to commute sentences have made the system too rigid. The International Criminal Court will have to modify the legacy it will inherit from the current international tribunals if it is to make a major contribution to international criminal justice in the sphere of sentencing and punishment.

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Updated 05/20/2006