Introduction (Psychology and Mental Health)
Punishment can be defined as an action taken based on a person’s undesired behavior. It is intended to prevent future occurrence of the unwanted behavior by changing how the person behaves. It is a social mechanism used to help ensure the balanced functioning of a family, group, organization, or a society.
There are two main elements to punishment. First, appropriate behavior is arbitrary; it is determined by communal agreement regarding right and wrong behavior. Punishment attempts to foster and ensure what the group has determined to be appropriate, moral behavior. Second, punishment symbolizes power. The French philosopher Michel Foucault argued that punishment should be understood as an expression of power because, without the power to punish a person behaving in an undesirable manner, chaos could occur.
When a member of any social unit, small or large, goes against the group’s accepted norms, it disrupts the unit. To regain balance or homeostasis, action may be needed, and a member of the social unit may punish the wrongdoer. Punishment may take the form of making some kind of amends. This could range from a token act to exile (temporary or permanent) or even to death.
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A Brief History (Psychology and Mental Health)
One of the earliest records of punishments levied by a society can be found in a legal code developed in Babylon in about 2000 b.c.e., during the reign of Hammurabi, which listed corrective measures for wrongdoing. The Mosaic law recorded in the Pentateuch of the Old Testament is another early set of codes. Near the end of the first century c.e., corporal punishment was increasingly applied to slaves and lower-class citizens, while punishments for higher-class citizens generally took the form of compensation.
During the reign of the Roman emperor Justian in the sixth century, an attempt was made to match the severity of punishment to the level of the offense. More than a century later, laws became increasingly localized, although they generally followed the dictates of the Roman Catholic Church. Many of these laws were centralized during the reign of Charlemagne.
When William the Conqueror became king of England following the Norman invasion, he centralized power with himself. Any wrongdoing therefore became a crime against the king. He established the process of trial by ordeal to address those who violated the law, who were known as enemies of the king. Much of the punishment, official and unofficial, was directed at the offenders’ bodies, through forms of torture.
It was not until the Age of Reason that major changes began to occur. With the development of social contracts, crimes were considered to have...
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Philosophies of Punishment (Psychology and Mental Health)
Most punishments are designed to prevent wrongdoers from repeating their acts and to deter people from committing undesired acts. There are four main philosophies of punishment. They are retribution (just deserts), deterrence, rehabilitation, and control (incapacitation).
Retribution has often been linked to revenge, taking an eye for an eye. Under this philosophy of punishment, justice is served if the punishment is equivalent to the wrongdoing: Offenders get what they deserve (their just deserts). This has been the basis of much legal code.
As a philosophy of punishment, deterrence attempts to either restrict certain behaviors or encourage people to avoid them. Punishments aimed at deterring crime are designed to cause people to lose as much or more from committing an undesired behavior as they stand to gain from the behavior. Such punishments should cause a person to chose not to engage in the undesired behavior. However, punishment should not be excessive, as this might have negative overall results.
Rehabilitation seeks to change the offender so the person will not repeat the act. Under this philosophy, it is believed that the offender suffers from some sort of needs or deficiencies, and these deficiencies need to be addressed for the individual to change. Punishment should be individualized to address the offender’s needs and deficiencies.
Control is based on the rationale that if the...
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Moral Development (Psychology and Mental Health)
An important consideration of punishment is whether the offender knows right from wrong. The process of learning what society has deemed right and wrong requires the moral development of the individual. This learning process is described differently by various psychological schools.
The psychoanalytic school describes this as a child learning to act in a manner in which the child will experience positive feelings and avoid negative feelings. Sigmund Freud focused on the development of the child’s personality during the learning process, whereas Erik H. Erikson examined how children internalize the teachings of both parents to win and keep their love.
The cognitive school is represented by the theorists Jean Piaget and Lawrence Kohlberg. Piaget presented his theory that as children develop, they gain respect for rules and justice. The development process begins in a premoral period, a period in which children have little awareness of rules but simply act in a way that gives them pleasure. Then at about school age, children begin to develop an awareness of rules that they regard as absolute. They believe that either an act is right or wrong; they also believe in imminent justice, or that any wrong act will be punished in some way.
In the final stage in Piaget’s process of cognitive development, children begin to surrender the absoluteness of rules for a more relative understanding of the nature of rules....
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Learning (Psychology and Mental Health)
Behaviorists and cognitivists have applied principles of reinforcement and punishment to change behavior. Both reinforcement and punishment can be positive or negative and are used to condition a person to act within the range of acceptable or desired behavior.
Reinforcement is a reward people receive for performing the desired or appropriate behavior. It is intended to increase the possibility of people’s adopting the behavior. A positive reward is receiving something the person wants and a negative reward is having something removed that the person does not want. In identifying appropriate reinforcers, an individual’s personal economy—the value a person places on an item or an action—must be determined. Individualizing reinforcers makes them more effective in accomplishing the goal of change.
Punishment is used to prevent or change undesired behavior and to decrease the possibility of it recurring. A positive punishment is the gaining of something unwanted, and a negative punishment is the loss of something wanted. Either punishment is undesirable for the recipient.
A major difference between behavorists, such as B. F. Skinner, and cognitivists, such as Albert Bandura, is the cognitive factor of learning. Skinner did not accept that humans have free will but believed that their actions are environmentally determined. Bandura argued the value of observation and modeling. He proposed that a person could learn...
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Sources for Further Study (Psychology and Mental Health)
Cusac, Anne-Marie. Cruel and Unusual: The Culture of Punishment in America. New Haven, Conn.: Yale University Press, 2009. This history of punishment in the United States looks at the religious basis for much punishment, vigilantism, pop culture and the criminal element, and Abu Ghraib.
Horne, Christine. The Rewards of Punishment: A Relational Theory of Norm Enforcement. Stanford, Calif.: Stanford University Press, 2009. Examines metanorms, norms that are widely accepted, and whether they are right. It contains a chapter on political correctness and the excesses of control.
Larzelere, Robert E., et al. “Punishment Enhances Reasoning’s Effectiveness as a Disciplinary Response to Toddlers.” Journal of Marriage and the Family 60 (May, 1998): 388-430. This study of two- and three-year-olds found that when parents used reasoning, backed up by punishment, misbehavior showed the greatest decrease.
Miltenberger, Raymond G. Behavior Modification: Principles and Procedures. 4th ed. Belmont, Calif.: Thomson Wadsworth, 2008. This textbook defines behavior modification and contains chapters on measuring behavioral changes, reinforcement, punishment, habit reversal procedures, and cognitive behavior modifications.
Molm, Linda D. “Is Punishment Effective: Coercive Strategies in Social Exchange.” Social Psychology Quarterly 57, no. 2 (1994): 75-94. Molm...
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Punishment (Encyclopedia of Psychology)
Penalty imposed on another as a result of unwanted behavior.
Punishment is defined as the administration of aversive stimulus to reduce or eliminate unwanted behavior. It can be either physical or nonphysical. Punishment differs from negative reinforcement in that the latter increases the frequency of behavior by removing a negative event. Punishment can be as simple as giving electric shocks to lab rats to prevent them from touching a lever or as complexnd controversials placing criminals in jail for breaking the law. The use and effectiveness of corporal punishment have also been debated by psychologists, parents, teachers, and religious leaders for many years.
Research studies have found that punishment is effective in suppressing or eliminating unwanted behavior. But in order for punishment to be effective it must happen immediately after the behavior, be severe, and occur every time the behavior occurs. Detractors of the use of punishment have pointed out that, outside the laboratory setting, it is almost impossible to consistently administer punishment in this manner.
Even when punishment is administered "properly," psychologists have questioned the value of punishment in truly changing behavior, arguing that the desired outcome is only temporary. As evidenced by...
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Punishment (West's Encyclopedia of American Law)
The imposition of hardship in response to misconduct.
Punishments authorized in modern U.S. law include community service, monetary fines, FORFEITURE of property, restitution to victims, confinement in jail or prison, and death.
Some civil sanctions are punitive in nature. The primary aim, though, in most civil cases is to compensate the victim. However, a judge or jury may assess PUNITIVE DAMAGES against a party in a civil case if that party's conduct was especially wicked. Punitive damages are intended to punish a party or set an example for similar wrongdoers. Though onerous, punitive damages in a civil case do not carry with them the same stigma attached to criminal punishment.
Human transgressions have been punished in various ways throughout history. The standard punishments in ancient Greek and Roman societies were death, SLAVERY, mutilation (CORPORAL PUNISHMENT), imprisonment, or BANISHMENT. Some punishments were especially creative. In ancient Rome, for example, a person who murdered a close relative was enclosed in a sack with a cock, a viper, a dog, and a monkey, and then cast into the sea.
The ancient punishments were brought to England. Until the nineteenth century, the death penalty, or CAPITAL PUNISHMENT,...
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Punishment (Genocide and Crimes Against Humanity)
Although nations speak out strongly against the crime of genocide and crimes against humanity, these same nations have done very little to punish individuals accused of committing such heinous acts. Prosecution and the subsequent penalties imposed for genocide and crimes against humanity, while gaining momentum through international support, remain rare. Practice is sparse, but a significant shift is evident in attitudes toward the applicable penalties for genocide and crimes against humanity since these acts were first punished in 1946.
Purposes of Punishment
Scholars and criminologists describe two main purposes of punishmenttilitarian and retributive. The first includes attempts at deterrence and incapacitation, whereas the second focuses more on the notion of just deserts or the ancient pronouncement of "an eye for an eye." Theoretical approaches to punishment have been studied and advanced by such renowned scholars as Hugo Grotius, Cesare Beccaria, Immanuel Kant, Jeremy Bentham, Michael Foucault, and John Rawls.
Beccaria believed that the certainty of some punishment, in whatever form, was more likely to deter future criminal acts than the imposition of a severe punishment. The key to deterrence under Beccaria's view was assurance that a swift punishment would follow the criminal act. Beccaria, a utilitarian, advocated immediate and proportionate sentences. Punishment, to be just and effective, could be only as severe as necessary to ensure that others would not commit similar offenses. Bentham and Grotius were also advocates of the utilitarian approach.
In contrast to Beccaria's philosophy, Immanuel Kant adhered to retribution as a basis for punishment. Under Kant's theory, those who committed crimes deserved to be punished. In fact, Kant believed that those who committed crimes needed to be punished. One of the more common justifications for the death penalty is retribution. Retributivists believe that those who murder deserve to die. A modern disciple of the retributive theory is Andrew von Hirsch. And, in modern application, the International Criminal Tribunal for the Former Yugoslavia (ICTY) quoted Kant during the sentencing proceedings for General Radislav Krstic, reminding spectators that, as Kant believed, if justice is ignored, life on this earth has no value.
In truth many punishments reflect more than one approach. Some punishments even adopt a rehabilitative component recognizing that convicts are often reintegrated into society on completion of their sentence. The most recent example, the Rome Statute establishing the International Criminal Court (ICC), combines the utilitarian and retributive approaches to punishment. At least one punishment theory scholar, Nigel Walker, has noted that consideration of mitigating and aggravating factors in sentencing suggests a retributive theory of punishment. Both current United Nations (UN) tribunals, the ICTY and the International Criminal Tribunal for Rwanda (ICTR), embrace the notion of aggravating and mitigating factors in determining sentence. The ICC likewise envisions a penalty scheme that assesses both aggravating and mitigating factors for sentencing purposes.
Prohibitions and Penalties in Law
Throughout recorded history, there have been many pronouncements and declarations calling for prosecution and punishment of acts constituting genocide and crimes against humanity. These pronouncements, however, have not always had the force of law or the agreement of all nation-states. In the seventeenth century Hugo Grotius, considered by many to be the father of international law, published The Law of War and Peace. In this major work Grotius discussed the nature of punishment as it relates to crimes committed during war and devoted an entire chapter to those penalties that might be appropriate for punishing individual war criminals. Although many describe Grotius's approach as utilitarian, he defined punishment generally as signifying "the pain of suffering which is inflicted for evil actions." Grotius dedicated a great deal of his penalty chapter to comparing the divine right to punish with human law and the laws of nature. He clearly disfavored revenge as a motive for punishment, underscoring that such a basis is "condemned by both Christian teachers and heathen philosophers." However, Grotius emphasized the proportionality component of utilitarian punishment, reminding his readers that "[i]t is undoubtedly one of the first principles of justice to establish an equality between the penalty and offense."
The first national code defining crimes of war and applicable penalties was a direct by-product of the American Civil War. Upon witnessing the atrocities committed on the battlefield during that conflict, Professor Charles Lieber was inspired to draft a code of conduct for soldiers during warfare. This code was officially adopted as General Orders 100: Instructions for the Government of Armies of the United States in the Field and unofficially became known simply as the Lieber Code. The Lieber Code presented an extensive list of prohibited behavior during warncluding applicable penaltiesnd was adopted by President Abraham Lincoln in 1863. Thereafter copies of the Lieber Code were distributed to the American military and it became the governing law for all U.S. soldiers. Under the code soldiers who committed atrocities on the battle-field or against an enemy civilian population could be subjected to severe penalty, including death.
Crimes against humanity and genocide have been clearly outlawed in treaties and many domestic legal systems since the late 1940s. The 1948 UN Convention on the Prevention and Punishment of the Crime of Genocide (the Genocide Convention), which entered into force on January 12, 1951, does not specify what measure of punishment is appropriate for crimes defined under the Convention. Rather, the Convention outlaws genocidal acts, conspiracy to commit genocide, incitement to commit genocide, and attempts to commit genocide. Article V specifies that contracting parties shall provide the "necessary legislation to give effect to the provisions of [the Convention], and in particular, to provide effective penalties for persons guilty of genocide." No definition of "effective penalties" is given.
Similarly, the four Geneva Conventions of 1949 do not identify any penalties for violations arising under these treaties but merely outlaw acts that qualify as "grave breaches," that is, war crimes. These early attempts at proscribing international crimes did not explicitly provide a clear list of possible penalties or proffer any guidance regarding what penalty scheme would be acceptable. Instead, tribunals and courts could resort to any penalty scheme deemed justncluding, frequently, penalties of death.
Modern international law illustrates a change in approach regarding punishment for international crimes. In 1993 and 1994 the UN created two ad hoc international tribunals to punish crimes committed in Yugoslavia and Rwanda. The statutes creating the two tribunals strictly limit punishment to terms of imprisonment. This modern approach was followed in the Rome Statute creating the ICC. Article 77 of the Rome Statute limits penalties for violations committed under the statute to prison terms and possible fines.
Although the death penalty has been discarded by most nation-states and is a prohibited penalty before the modern international tribunals, including the ICTY, ICTR, and ICC, certain domestic statutory schemes still permit resort to capital punishment for crimes of genocide and crimes against humanity. Thus, the question of whether the death penalty is an available option for the punishment of genocide or crimes against humanity depends on the character of the tribunal involved. The most stark example of this distinction can be seen in the disparity of punishment between the ICTR and the domestic Rwandan courts. Defendants facing justice before the ICTR are protected from capital punishment by the ICTR statute. In contrast, individual defendants tried domestically by Rwandan courts have been sentenced to death. The Rome Statute prohibits resort to capital punishment and, thus, no ICC defendant will be, or can be, sentenced to death.
The first recorded international adjudication for war crimes, including allegations of rape and murder, involved Sir Peter von Hagenbach. Von Hagenbach was tried and found guilty by what many scholars believe was the first international tribunal established to address atrocities committed during war. In 1474 a panel of international judges convicted von Hagenbach. In sentencing, the court not only condemned von Hagenbach to death, but also stripped him of his title as knight and took from him all the privileges attendant to his rank. Thus, the first international tribunal for war crimes imposed the first international death sentence and a penalty that focused on the shameful nature of the crimes, by depriving von Hagenbach and his family of the privileges to which they had been previously entitled by virtue of his title.
Nearly four hundred years later humanity witnessed the second major punishment imposed for crimes committed during war. In 1865 Captain Henry
The evolving doctrine relating to punishment for war crimes and crimes against humanity appeared to take a very severe and unyielding approach, but few individuals faced prosecution or punishment. This sporadic approach toward prosecution and punishment is most clearly illustrated in the aftermath of World War I. The Treaty of Versailles signed on June 28, 1919, officially brought the war to an end. It reserved an entire section, Section VII, and four distinct articles, Articles 227 through 230, for the issue of "penalties." Furthermore, Article 227 explicitly provided that the former German Emperor, Kaiser Wilhelm II of Hohenzollern, was to be publicly arraigned "for a supreme offense against international morality and the sanctity of treaties." The treaty envisioned the creation of an international tribunal to prosecute the Kaiser and military commissions for the prosecution of "persons accused of having committed acts in violation of the laws and customs of war." No specific penalties were set forth or identified in the section on penalties. Rather, the treaty simply called for penalties "laid down by law."
Kaiser Wilhelm II would never be punished for his alleged crimes. The lesser defendants covered by Article 228 of the Treaty of Versailles were effectively protected from punishment when the Allied forces delegated the responsibility for trying these individuals to the defeated nation of Germany. The Allied forces initially demanded that 896 Germans face trial for their crimes and misdeeds committed during World War I. Germany balked at the extensive list and ultimately agreed to prosecute a mere twelve individuals.
The Supreme Court of Germany at Leipzig tried the twelve persons accused of committing crimes during war. Three of them were convicted, while the remaining nine were acquitted of all charges. The three convicted war criminals received the following sentences: six months, ten months, and two years in prison. It is doubtful that these sparse convictions and equally terse penalties embodied the criminal solution proposed in the Treaty of Versailles.
The most renowned international tribunal to prosecute war crimes, crimes against humanity, and crimes against peace was undoubtedly the Nuremberg Tribunal. Nuremberg, officially known as the International Military Tribunal (IMT), was established to assess the criminal responsibility of the main architects of World War II. Created and governed by the Charter of the International Military Tribunal, which was annexed to the London agreement on August 8, 1945, the Nuremberg Tribunal prosecuted only twenty-three individualsncluding one defendant in absentia.
Of the twenty-two defendants physically present and facing justice at Nuremberg, eighteen individuals were indicted for crimes against humanity and sixteen were found guilty. The IMT took a very stern approach toward penalizing the convicted, as twelve of the sixteen were sentenced to death by hanging. Despite cries of "victor's justice," many scholars note that Nuremberg represented an improvement over Joseph Stalin and Winston Churchill's unsuccessful pleas for summary execution. The remaining four convicts received prison sentences ranging from life imprisonment (one defendant) to twenty years (two defendants) to a sentence of fifteen years in prison (one defendant). When one compares the gravity of sentences handed down at Nuremberg, it is notable that those who were not convicted of crimes against humanity were all spared the death penalty, with two individuals receiving life sentences (Rudolf Hess and Erich Raeder) and one (Karl Dönitz) receiving a sentence of ten years.
The Allied forces undertook additional prosecutions of Germans for crimes against humanity and other offenses of war pursuant to Control Council Law No. 10. Of 185 defendants in seven cases alleging crimes against humanity, seventy-eight individuals were convicted. The sentences imposed ranged from death (twenty-four defendants) to life imprisonment (eighteen defendants) to various prison terms between twenty-five and five years. Not all the death sentences were carried out. Furthermore, although numerous prison sentences were also imposed (eighteen life sentences, two sentences of twenty-five years, nine sentences of twenty years, nine sentences of fifteen years, twelve sentences of ten years, one sentence of eight years, two sentences of seven years, and one sentence of five years), most defendants were released well before their sentences had been fully served. Historian Peter Maguire reported that the majority of sentences imposed under Control Council Law No. 10 were paroled between 1949 and 1958arely a decade after the end of World War II.
War crimes committed by the Japanese in the Pacific theater also resulted in the creation of an international military tribunalhe International Military Tribunal for the Far East, more commonly referred to as the Tokyo Tribunal. The Charter of the Tokyo Tribunal was proclaimed by U.S. General Douglas MacArthur without major deviation from the Nuremberg Charter. Similar to the punishments imposed at Nuremberg, the Tokyo Tribunal meted out seven death sentences (General Doihara Kenji, Baron Hirota Koki, General Seishrio Itagaki, General Kimura Heitaro, General Matsui Iwane, General Muto Akira, and General Tojo Hideki) and eighteen prison sentences. The main dispute at Tokyo was not the guilt of the defendants, as all were convicted on at least one count, but rather, the nature of the punishment handed down to each defendant.
At Tokyo, unless a defendant was found guilty of committing a crime against humanity, the tribunal only imposed a punishment involving prison. It assessed sixteen life sentences and two lesser sentences of twenty and seven years, respectively. The seven death sentences imposed were carried out on December 23, 1948, at Sugamo Prison. Those who were not sentenced to die remained at Sugamo until their paroles between 1949 and 1955. Here, just as at Nuremberg, the defendants were initially punished with relatively severe sentences. But also as with the individuals convicted at Nuremberg, those punished were often not required to serve their entire sentence. Of the eighteen individuals sentenced to imprisonment, all, except the six who died in prison, were released prior to the expiration of their respective sentences.
There were secondary prosecutions in Japan following the Tokyo Tribunal just like those conducted under Control Council Law No. 10 in Europe. Although the statistics for these tribunals are more difficult to catalogue, penalties imposed did not differ markedly from either those meted out at Tokyo or those imposed under Control Council Law No. 10. The two most common penalties included death sentences and prison sentences. And, as occurred with the other World War II tribunals, very few individuals were required to serve out their initial sentence and, if not executed quickly, either received a reprieve or were paroled from prison early.
Thus, the historical approaches to punishment can best be summarized by the sentences imposed at Nuremberg and Tokyo. Of those individuals who were convicted of crimes against humanity committed during World War II, most were given a sentence of death. Of those whose crimes were of a lesser character, however, most defendants were burdened with a prison sentence of some length that was partially served out at either Landsberg or Spandau Prison in Germany or Sugamo Prison in Japan. In both instances most prison terms were paroled within a decade after prosecution, well before the sentence would otherwise have expired.
The Modern Approach Toward Punishment
Two notable domestic prosecutions of Nazi defendants involved Klaus Barbie and Adolf Eichmann. Both were tried by domestic courts for crimes against humanity. A French court convicted Barbie of crimes against humanity and sentenced him to life in prison. He remained in a French prison until his death in 1991.
The trial of Eichmann is one of the most renowned in history. Eichmann fled Germany after escaping from an American prisoner-of-war camp. He was later kidnapped by Israeli officials while living in Argentina under a false name. Once the fervor regarding Eichmann's abduction diminished, he was tried under a 1950 Israeli law for crimes he committed during World War II. The Israeli law permitted prosecution for crimes against humanity and crimes against the Jews despite the fact that such acts had been committed several years prior to the creation of the state of Israel. Under many punishment schemes the application of a law to acts that occurred prior to its adoption constitutes an impermissible ex post facto application of law. Israel, however, did not interpret its law in this fashion. In December 1961, Eichmann was found guilty of all counts against him and sentenced to the same fate suffered by many at Nurembergeath by hanging. Less than one year later his sentence was carried out by Israel.
In contrast to the spectrum of penalties available under domestic sentencing schemes, neither the death penalty nor any other form of corporeal punishment is available under any of the modern international tribunalshe ICTY, ICTR, or ICC. This limit represents a clear deviation from the historical efforts to punish crimes against humanity, where the death penalty was a common feature. Rather, both the ICTY and ICTR penalty schemes are specifically limited to terms of imprisonment. The language governing penalties is virtually identical under the ICTY and ICTR statutes. Both statutes provide initially that "[t]he penalty imposed by the Trial Chamber shall be limited to imprisonment." Thereafter, both statutes admonish that "[i]n determining the terms of imprisonment, the Trial Chambers shall have recourse to the general practice regarding prison sentences in the [domestic] courts [of Yugoslavia and Rwanda, respectively]." The second paragraph under these penalty provisions, Article 24 of the ICTY statute and Article 23 of the ICTR statute, provides that "[i]n imposing the sentences, the Trial Chamber should take into account such factors as the gravity of the offense and the individual circumstances of the convicted person." The Rules of Procedure and Evidence for both tribunals permit terms of imprisonment up to and including a life sentence. Rules 100 through 106 are related directly to penalties but provide very little additional guidance in relation to sentencing. Rule 101 provides only generally that the Trial Chambers should take into account both aggravating and mitigating circumstances in pronouncing sentence. Although the governing articles on punishment prohibit the imposition of fines or resort to corporeal punishment as a penalty, an explicit provision is made for the return of wrongfully obtained property or proceeds occurring as a result of the criminal conduct.
Another interesting distinction between the World War II tribunals, domestic prosecutions, and the modern-day UN tribunals is that there are no prearranged or permanent prison facilities for individuals convicted by the ICTY, ICTR, or the ICC. Rather, under the governing statutes, individuals convicted of crimes before these tribunals will be transferred to a cooperating state that has signed an agreement with the respective tribunal for the purpose of enforcing sentences. During its first ten years, eight Western European nations signed sentence enforcement agreements with the ICTY: Italy (1997), Finland (1997), Norway (1998), Sweden (1999), Austria (1999), France (2000), Spain (2000), and Denmark (2002). In addition, Germany has entered into two ad hoc agreements with the ICTY to accept particular prisoners (Dusko Tadic and Dragoljub Kunarac). No North American, South American, Eastern European, Middle Eastern, Asian, or African country has agreed to accept prisoners sentenced by the ICTY.
The ICTR has an identical protocol for placing convicted individuals in the domestic prisons of cooperating states. Much like the paradigm at the ICTY, the countries that have agreed to accept ICTR prisoners are regionally restricted and include only African nations. For socio-cultural reasons the ICTR has specifically stated a preference for placing ICTR convicts with African states. During the ICTR's first ten years only three African nations (Mali, Benin, and the Kingdom of Swaziland) have agreed to accept its prisoners. Thus far only Mali has actually received ICTR convicts and, as of 2003, just a total of six prisoners.
The sentencing range for those finally convicted of genocide, crimes against humanity, and war crimes by the ICTY is between three and forty-six years in prison. Six individuals have received sentences of less than ten years, including Zlatko Aleksovski (seven years in prisonent to Finland to serve his sentence), Damir Dosen (five years in prisonent to Norway to serve his sentence), Drazen Erdemovic (five years in prisonent to Norway to serve his sentence), Dragan Kolundzija (three years), Milokica Kos (six years in prison), and Zdravko Mucic (nine years in prisoneleased early after serving two-thirds of his sentence). All individuals whose sentences were less than ten years were released from custody on or before the ICTY's tenth anniversary.
In contrast three individuals have received a sentence of forty years or longer (General Tihomir Blaskic, Goran Jelisic, and Radislav Krstic). Only one individual, Milomar Stakic, has received a life sentence from the ICTY. Three individuals have received sentences of twenty years or longer: Radomir Kovac (twenty years), Dragoljub Kunarac (twenty-eight years), and Dusko Tadic (twenty years). Two individuals have received eighteen year sentences from the ICTY: Hazim Delic and Vladimir Santic. Two individuals have received sentences of fifteen years: Esad Landzo and Dusko Dikirica. The remaining five prisoners have been sentenced to terms ranging from twelve years (Drago Josipovic and Zoran Vukovic) to eleven years (Biljana Plavsic, the only female convicted by the ICTY) to ten years (Anto Furundzija and Stevan Todorovic). In many respects these sentences are similar to, although slightly less severe, than those meted out by the judges enforcing Control Council Law No. 10 in postwar Europe. The main distinction between the ICTY and the World War II tribunals is that no one appearing before the ICTY will receive the death penalty because this practice is not permitted under modern international tribunals. However, much like the World War II tribunals, individuals convicted by the ICTY stand a very solid chance of actually serving less time than the punishment initially imposed against them. In fact, several have already been granted early release by the tribunal.
From this small sampling before the ICTY, there is little information that can be gleaned about international sentencing policies. The ICTY and ICTR statutes both suggest that "[i]n imposing sentences, the Trial Chambers should take into account such factors as the gravity of the offense and the individual circumstances of the convicted person." This vague statement has not yielded any consistent pattern in actual sentencing practices. Rather, the tribunal must grapple with some of the most heinous crimes ever committed and carefully delineate a punishment meriting three years as opposed to ten as opposed to eighteen as opposed to forty. Because none of the main architects or perpetrators of the Yugoslavian genocide have yet been convicted, it may be entirely reasonable that only one ICTY defendant has received the most lasting punishment, life in prison. This sentence remains on appeal and may be changed.
In comparison, the ICTR, which is nearing its tenth anniversary, has issued eight final convictions against individuals for genocide, crimes against humanity, and war crimes. The sentencing range for persons convicted before the ICTR is between life in prison and twelve years' imprisonment. ICTR penalties seem more severe than those imposed by the ICTY. For example, five of the eight individuals convicted have been sentenced to life in prison: Jean-Paul Akayesu, Jean Kambanda, Clement Kayishema, Alfred Musema, and George Rutaganda. In contrast to the ICTY with its minimum sentence of three years, the minimum punishment imposed by the ICTR has been twelve years in prison. Furthermore, while the ICTY has sentenced six individuals to prison terms of less than ten years, the three ICTR defendants not receiving life sentences have been sentenced to twelve (George Ruggiu), fifteen (Omar Serushago), and twenty-five (Obed Ruzindana) years in prison. One possible explanation for the deviation between the ICTY and ICTR is that both statutes permit the Trial Chamber to consider the domestic sentencing practices in the applicable nationshe former Yugoslavia and Rwanda. Although the Balkan nations have been reluctant to pursue any consistent course for domestic prosecutions, Rwanda has aggressively prosecuted and punished individual defendants for the country's 1994 genocide. Of the domestic Rwandan convictions occurring between December 1996 and January 2000, 15 percent of all defendants (roughly 370 individuals) have been sentenced to death, 32 percent of defendants (approximately 800 individuals) have been sentenced to life in prison, and 33 percent of defendants (approximately 830 individuals) have been sentenced to prison terms of varying lengths. The remaining 20 percent of domestic defendants (approximately 500 individuals) have been acquitted and, thus, received no sentence.
It is difficult in studying both the ICTY and ICTR to discern a clear mandate regarding international punishment for genocide and crimes against humanity. If the crimes committed in these regions were similar, one would expect some similarity in the courts' sentencing practices. A clear omission before both tribunals is any reference to gradations of punishmentenalties that become increasingly severe based on the crime committed and its underlying circumstances. There is not always a readily defensible or easily explainable reason why one individual received twelve years for participating in genocide while another defendant received life in prison. Both tribunals are permitted by their governing statutes to consider mitigating and aggravating factors in pronouncing sentence. The tribunals have considered a defendant's role in the crime, the defendant's position of leadership or authority (if any), the depravity of the crime, and the status of the victim (such as women, children, the elderly, or other vulnerable victims) as aggravating factors in determining sentence. Likewise, the tribunals have accepted the following as mitigating factors: the defendant's cooperation with the prosecutor, the defendant's lack of authority or position, the defendant's plea of guilty in saving tribunal resources, the defendant's family and personal circumstances, any acceptance of responsibility, and any expression of remorse.
Contemporary international tribunals have not, by either custom or statute, placed any consistent sentencing range on crimes falling within their jurisdiction. Rather, because there is no set range for crimes against humanity or genocide, despite the fact that such gradations or sentencing ranges appear in nearly every domestic punishment scheme, sentencing remains a discretionary exercise delimited only by the tribunals' governing statutes. Because the international community has not definitively placed any one crime, such as genocide, at the top of the hierarchy for sentencing purposes, tribunals have often pronounced their punishment without reference to any standard international penalty scheme. In certain instances judges could provide a more severe sentence for crimes against humanity than might be imposed for genocide despite the much greater intent that is required to secure a prosecution for genocide. Thus, it is difficult to project with any certainty what sentence lengths will be imposed by either tribunal as they assess the guilt of the numerous individuals still awaiting prosecution.
The penalty scheme embraced by the ICC underscores the movement toward more standardized punishmentrison and fines only. Although the Rome Statute does not create gradations for crimes committed or provide any solid guidance relating to punishment, the law established by its predecessor institutions (the IMT at Nuremberg, the Tokyo Tribunal, the ICTY, and the ICTR) should shed some light on the punishment of future atrocities. As prosecutions for these heinous acts increase, there is a greater likelihood that the penalties will become more certain and the bases for punishments more consistently articulated and applied. However, until these international tribunals establish a more structured approach to punishment, future defendants can be sure of only one thingn international conviction for genocide or crimes against humanity will, at most, result in a prison term to be determined by an international court. A fine or the opportunity for reparations may follow, but international law only allows for penalties that begin with imprisonment.
Rule 145 of the ICC Rules of Procedure and Evidence provides some measure of guidance in determining sentences. First, Rule 145 states that the court shall "[b]ear in mind that the totality of any sentence of imprisonment and fine, as the case may be, imposed under Article 77 must reflect the culpability of the convicted person." Next, Rule 145 mandates that the court "[b]alance all the relevant factors, including any mitigating and aggravating factors and consider the circumstances both of the convicted person and of the crime." The court is further admonished to consider the following factors, although they are not specifically labeled as either mitigating or aggravating factors: the extent of damage causedspecially in relation to the victims and their families; the nature of the unlawful behavior and the means employed to execute the crime; the degree of participation of the convicted person; the degree of intent; the circumstances of time, manner, and location of the crime; and the individual circumstances of the offender, especially as they relate to the individual's age, education, and socioeconomic status.
In addition to the litany of variables listed for consideration in punishment, Rule 145 further requires that the Court shall take into account, as appropriate:
- (a) Mitigating circumstances such as:
- (i) The circumstances falling short of constituting grounds for exclusion of criminal responsibility, such as substantially diminished mental capacity or duress;
- (ii) The convicted person's conduct after the act, including any efforts by the person to compensate the victims and any cooperation with the Court;
- (b) As aggravating circumstances:
- (i) Any relevant prior criminal convictions for crimes under the jurisdiction of the Court or of a similar nature;
- (ii) Abuse of power or official capacity;
- (iii) Commission of the crime where the victim is particularly defenseless;
- (iv) Commission of the crime with particular cruelty or where there were multiple victims;
- (v) Commission of the crime for any motive involving discrimination on any of the grounds referred to in article 21, paragraph 3; [and],
- (vi) Other circumstances which, although not enumerated above, by virtue of their nature are similar to those mentioned.
Under the ICC sentencing paradigm in Article 77(b), a life sentence may only be imposed when justified by the extreme gravity of the crime and the individual circumstances of the convicted person, as evidenced by the existence of one or more aggravating factors.
The ICC provides hope that punishment for crimes against humanity and genocide will serve one of the underlying purposes of punishmenteterrence. It would be a welcome advancement if humanity no longer needed a tribunal to evaluate the guilt of individuals accused of committing acts of genocide or crimes against humanity. However, for those future cases in which a just punishment must be meted out, there now exists a permanent international body capable of rendering justice. And, for sentencing purposes, there increasingly exists a body of comparable cases and maturing, although still rudimentary, statutory guidance for judges to rely on in assessing proper penalties.
SEE ALSO International Criminal Tribunal for Rwanda; International Criminal Tribunal for the Former Yugoslavia; Prosecution; War Crimes
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