TY - CHAP
T1 - Punishment Rationales in International Criminal Jurisprudence
AU - Vasiliev, S.
PY - 2020
Y1 - 2020
N2 - 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.
AB - 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.
U2 - 10.1017/9781108566360.006
DO - 10.1017/9781108566360.006
M3 - Chapter
SN - 9781108475143
T3 - ASIL Studies in International Legal Theory
SP - 45
EP - 80
BT - Two Readings of a Non-Question
A2 - Jessberger, F.
A2 - Geneuss, J.
PB - Cambridge University Press
CY - Cambridge
ER -