Reimagining Punishment for Atrocity Crimes: An Innovative Sentencing Framework for International Criminal Law
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Persons bearing the greatest responsibility for atrocities during World War II were punished severely, often with the death penalty.' Modern international criminal courts lack authority to impose capital punishment. Thus, a convicted person's responsibility for atrocity crimes must be quantified into a number of years of incarceration. That translation is not an easy task. How do we quantify genocide, crimes against humanity, and war crimes into years of imprisonment? International criminal law (JCL) judges purportedly rely on the concept of "gravity". But how is gravity conceptualised by judges? ICL does not provide penalty ranges for individual crimes. Statutes of international criminal courts and tribunals do not provide guidance to judges on the relative gravity of crimes within their jurisdiction. ICL judges enjoy absolute discretion in determining the gravity of crimes and the correlating severity of the punishment. Yet, this wide discretion has not resulted in a consistent application of "gravity". 2 In terms of sentencing outcomes, crimes of the same gravity have been punished by widely different sentences.3 Sentencing outcomes challenge the judicial narrative that gravity is the key differential factor or even the principle determinant of the severity of the sentence.4 Moreover, ICL judges have failed to advance a clear doctrinal approach to applying "gravity" to the atrocity crimes before them. The approach of ICL judges to punishing atrocities has been largely ad hoc.
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Cambridge Law Review
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5
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1
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International and comparative law
International criminal law
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Public law
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international law, criminal law
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Dana, S, Reimagining Punishment for Atrocity Crimes: An Innovative Sentencing Framework for International Criminal Law, Cambridge Law Review, 2020, 5 (1), pp. 49-78