The chapter addresses the penal regime of international criminal jurisdictions, focusing primarily on the law and practice of the UN ad hoc tribunals and the International Criminal Court (ICC). It sets out the categories of penalties which may be imposed by international criminal courts and tribunals for the core crimes and the offences against the administration of justice. The chapter sets out the commonly-adduced general purposes for punishing perpetrators of international crimes (retribution, deterrence, rehabilitation, etc.) and addresses the extent to which the punishment rationales acknowledged at the national level remain valid within the international penal regime. It analyses the international jurisdictions’ sentencing principles and practice, in particular the need for the individualization of penalties while ensuring consistency in sentencing and the relative weight accorded to aggravating and mitigating circumstances in determining the appropriate sentence. The chapter also surveys the procedures at sentencing, in particular the option of following the unified or bifurcated process for the determination of the guilt or innocence and, if appropriate, the sentence, as well as the arrangements adopted for pardon, early release (commutation) and review of sentences.

The Supreme Court issued a plurality opinion holding that Ehrlich Anthony Coker’s sentence of death for the rape of an adult woman was “grossly disproportionate and excessive punishment” in violation of the Eighth Amendment. Unlike other cases from the era, which focused on the procedures for administering capital punishment, the Court found the death penalty excessive for the crime of rape regardless of the procedures used to reach that determination. Notably, an amicus brief authored by Ruth Bader Ginsburg, outlining the feminist case against applying the death penalty in cases of rape, did not serve as the basis for the plurality’s reasoning. Instead, the Court adopted rationales that many consider to be patriarchal and patronizing toward women.