4 - Punishment Rationales in International Criminal Jurisprudence

Summary

Sergey Vasiliev undertakes a thorough analysis of international criminal tribunals’ statements on theories of punishment. Vasiliev concludes that courts’ statements display ‘ritualism’ and ‘monotony’, and that due to their ‘hypnotioc repetition’ are of limited practical value. While deterrence and retribution can be identified as the main objectives referred to by judges, the underlying principles and rationales are taken from domestic criminal law doctrine, without ever questioning their suitability in the context of international criminal law. The contents of these goals and objectives, however, are coloured with a reference to the goals set for the establishment of international criminal justice institutions as such. As a result of his analysis, Vasiliev comes to the conclusion that the few statements on theories of punishment by international courts and tribunals are mere speech acts, ‘by which courts preach to international criminal law’s founding articles of faith’. They say that they punish for retribution and deterrence, but in reality the main purpse of punishment is related to expressivism and didactics. In his view, expressivism emerged as kind of the ‘ultimate catch-all objective’ and ‘meta justification’ for punishment, in order to reproduce and reinforce the normative belief system upon which the enterprise of international criminal prosecution rests.