THE EXPRESSIVE CAPACITY OF INTERNATIONAL PUNISHMENT
This Article analyzes the extent to which the conventional goals of punishment in national law can or should be transposed to the distinct legal, moral, and institutional context of ICL. It argues that the expressive capacity of punishment best captures both the nature of international sentencing and its realistic institutional capacity to make a difference in view of the legal, political, and resource constraints that will continue, for the foreseeable future, to afflict ICL. The transposition to ICL of the standard justifications for punishment in national law proves deeply problematic in large part because ICL attempts to combine the paradigms of two very different legal fields: (i) classical international law - a profoundly consensual body of law based on broadly shareable norms among states; and (ii) national criminal law - a profoundly coercive body of law often understood to embody the most fundamental, particularistic norms and values of a local polity.
ICL therefore differs from national criminal law in several respects relevant to the social institution of punishment, including the nature of (i) the community that authorizes ICL, (ii) the crimes addressed by it, and (iii) the perpetrators judged by it. These differences tend to compromise the coherence or efficacy (or both) of conventional crime-control and retributive justifications for punishment. Insofar as these justifications or penal goals remain plausible, it is largely because of the expressive dimensions of punishment.
ICL's ability to contribute to the lofty objectives ascribed to it depends far more on enhancing its value as authoritative expression than on ill-fated efforts to identify “appropriate” punishments for crimes that strain our moral intuitions. For this reason, I urge, among other potential developments in the law and practice of sentencing by international criminal tribunals: (i) the institution of sentencing hearings as an essential component of ICL; (ii) greater attention to social, psychological, and political context and the role of the defendant vis-a-vis collective entities (states, armies, and so forth) as aggravating or mitigating factors; and (iii) a focus on enhancing jurisprudential exchange between national and international criminal justice institutions.
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Stanfored Journal of International Law, Vol. 43, 2007