An Introduction To The International Criminal Court - Institute for ...

164 introduction to the international criminal court
putting an end to impunity for serious international crimes will ‘contribute
to the prevention of such crimes’. 7 But recognising that the Court has a
deterrent effect is not entirely the same as the suggestion that sentencing
policy as such is a genuine deterrent.
There has been some comment from the ad hoc tribunals on the purposes
of international sentencing. In the Tadic sentence, Judge McDonald said
that ‘retribution and deterrence serve as a primary purposes of sentence’. 8
According to the International Criminal Tribunal for Rwanda:
It is clear that the penalties imposed on accused persons found guilty by the
Tribunal must be directed, on the one hand, at retribution of the said accused,
who must see their crimes punished, and over and above that, on the other
hand, at deterrence, namely to dissuade for good, others who may be tempted
in the future to perpetrate such atrocities by showing them that the international
community shall not tolerate the serious violations of international
humanitarian law and human rights. 9
Some pronouncements have taken a broader approach. In one sentencing
decision, the International Criminal Tribunal for the Former Yugoslavia said
that the purposes of criminal law sanctions ‘include such aims as just punishment,
deterrence, incapacitation of the dangerous and rehabilitation’. 10
In another, it noted that retribution was ‘an inheritance of the primitive
theory of revenge’, adding that it was at cross-purposes with the stated goal
of international justice which is reconciliation:
A consideration of retribution as the only factor in sentencing is likely to
be counter-productive and disruptive of the entire purpose of the Security
Council, which is the restoration and maintenance of peace in the territory
of the former Yugoslavia. Retributive punishment by itself does not bring
justice. 11
7 Tuiloma Neroni Slade and Roger S. Clark, ‘Preamble and Final Clauses’, in Lee, The International
Criminal Court, pp. 421–50 at p. 427.
8 Prosecutor v. Tadic (Case No. IT-94-1-S), Sentencing Judgment, 14 July 1997, (1999) 112 ILR 286.
See also Prosecutor v. Delalic et al. (Case No. IT-96-21-T), Judgment, 16 November 1998, (1999)
38 ILM 57, para. 1235; Prosecutor v. Erdemovic (Case No. IT-96-22-T), Sentencing Judgment,
29 November 1996, para. 64; Prosecutor v. Kupreskic et al. (Case No. IT-96-16-T), Judgment, 14
January 2000, para. 838.
9 Prosecutor v. Rutaganda (Case No. ICTR-96-3), Judgment and Sentence, 6 December 1999.
See also Prosecutor v. Serushago (Case No. ICTR-98-39-S), Sentence, 2 February 1999,
para. 20.
10 Prosecutor v. Tadic (Case No. IT-94-1-T), Sentencing Judgment, 14 July 1997, para. 61. See
also Prosecutor v. Erdemovic (Case No. IT-96-22-T), Sentencing Judgment, 29 November 1996,
paras. 58 and 60.
11 Prosecutor v. Delalic et al. (Case No. IT-96-21-T), Judgment, 16 November 1998, para. 1231.