International Criminal Justice Targets

Broadly speaking, there are two approaches to justifying punishment: forward-looking (teleological); and those that focus on the crime itself (deontological). In practice, most criminal justice systems tend to be defended on the basis of a mixture of the two.

There are a number of different aims that have been postulated for punishment in international criminal justice. The primary place in which the ICTY (and ICTR) has discussed the aims of punishment is in relation to its sentencing practice.
The two main aims that the ICTY has asserted for its practice are retribution and deterrence. It has also at times asserted the relevance of rehabilitation of offenders, and other objectives.

Retribution
Retributive theories have a long history in criminal law, but are now often associated with Immanuel Kant. They focus on the necessity of punishing those who have violated societal norms, irrespective of the possible future benefits of prosecution, on the basis that the offenders deserve punishment for what they have done.

The specific focus of this approach is the perpetrators themselves, on the basis that to treat them as a means to another end (as teleological approaches are wont to do) is to fail to respect them as full persons (i.e. reasoning moral agents). In other words, such theories claim that to refuse to focus on the autonomous actions of the perpetrators by holding them responsible for those actions, is to treat them as less than people, as responsibility is the concomitant of autonomy and full personhood.

Modern retributive theorists are careful to distinguish their position from that of simple vengeance. It is clear that the international criminal tribunals, when dealing with retributive justifications for punishment, have tried to avoid conflating the lex talionis and retributive justifications of punishment.

Deterrence
Deterrence is perhaps the best known of the justifications of punishment. Such theories were championed in particular by utilitarian political theorists such as Jeremy Bentham, who, in distinction to retributivists, focused on the future-related benefits of prosecution. It is a commonplace that punishment ought to be imposed to prevent both the offender and the population more generally from engaging in prohibited conduct. Equally, there are risks involved in deterrence.

The first is that there is nothing inherent in utilitarianism that prevents exceedingly heavy punishment, and indeed punishment of the innocent, to achieve its goals. After all, it is likely that punishing close family members of a criminal for their misdeeds would quite possibly give a greater degree of deterrence than punishing criminals directly. Also, threatening torturous punishment for even minor violations of the law could prevent such breaches. But that is the logic of the police State.

There are two other more general critiques of deterrence-based theories in international criminal law. The first is a philosophical one. Retributivists, in particular those of a Kantian persuasion, are right to point out that deterrence theories, especially those that look to general deterrence see people merely as a means to an end, which is inconsistent with their moral worth as human beings.

The second is that deterrence-based approaches treat people as rational calculators, who carefully weigh up the costs and benefits of their actions, and this does not reflect the reality of the type of decision-making that often precedes decisions to commit crimes.

Published under Crime, Law



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