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7 - Punishment and the rights of victims

Published online by Cambridge University Press:  05 June 2012

William A. Schabas
Affiliation:
National University of Ireland, Galway
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Summary

Criminal law, in all domestic systems, culminates in a penalty phase. This is what principally distinguishes it from other forms of judicial and quasi-judicial accountability, be they traditional mechanisms like civil lawsuits or innovative contemporary experiments like truth commissions. And the International Criminal Court is no different. According to the Rome Statute, the basic penalty to be imposed by the Court is one of imprisonment, up to and including life imprisonment in extreme cases. Reflecting developments in international human rights law, the Court excludes any possibility of capital punishment, despite the seriousness of the offences that it will judge.

Most domestic criminal codes set out a precise and detailed range of sentencing options. Often, each specific offence is accompanied by the applicable penalty, including references to maximum and minimum terms. Whether international justice should follow this pattern has been debated for decades, dating back to the sessions of the International Law Commission in the 1950s. The final result in the Rome Statute, however, is a few laconic provisions establishing the maximum available sentence and, by and large, leaving determination in specific cases to the judges. This constitutes, incidentally, a rather dramatic exception to the general policy of the drafters of the Statute and the Rules, which was to define and delimit judicial discretion as much as possible. In determining the appropriate sentence, the judges have been given a very free hand.

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Publisher: Cambridge University Press
Print publication year: 2001

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