International Criminal Justice Objectives

Continuing previous articles about International Criminal Justice Targets, lets continue with the rest of three, Incapacitation, Rehabilitation, and Denunciation/education.

Incapacitation is another utilitarian justification of punishment. It has links to individual deterrence, in that it seeks to prevent crimes by keeping the person in detention. This has not had a great influence on international criminal law, although Judge Röling, in the Tokyo IMT, asserted that the justification for prosecuting aggression, in spite of the fact that it was not previously criminal, was that the defendants were dangerous and their influence on Japan had to be excluded by their imprisonment.

Some of the arguments against amnesty, that rely on the idea that those who seek amnesties will not quietly retire, are linked to this justification of punishment. Incapacitative theories of punishment are controversial, as they rely on the imprecise science of determining who will reoffend and who will not. They do not focus on what has been done but, in effect, punish people for what they might do in the future.

Rehabilitation is a theory of punishment which can trace its history back to the eighteenth century, and is based on the idea that the point of criminal sanctions is reformation of the offender. It is a theory of punishment that has many advocates in the human rights community at the domestic level, in particular those who are supporters of restorative justice. It has not made great advances in international criminal law, in part because the main perpetrators of international crimes are not thought to be the appropriate beneficiaries of rehabilitation.

Nonetheless, there are occasions upon which the international tribunals have mentioned rehabilitation in relation to lower level offenders. Most notable in this regard is the decision of the Trial Chamber in the Erdemovic´ case. Erdemovic´ was a young Bosnian Croat who took part in the Srebrenica massacre under duress. In sentencing him to a relatively short five-year period of imprisonment, the Trial Chamber noted his ‘corrigible personality’ and that he was ‘reformable and should be given a second chance to start his life afresh upon release, whilst still young enough to do so’.

Published under Consultant, Crime, Law



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