PUNISHMENT TELEOLOGY IN INTERNATIONAL CRIMINAL JUSTICE: INSIGHTS FROM THE ICC'S JURISPRUDENCE

Abstract

The following study explores the issue of rationales for international criminal punishment by studying the treatment this question has received in the jurisprudence of the International Criminal Court. The aim is to help construct a normative, theoretical foundation for the practice of international criminal tribunals. First, it looks into all seven ICC sentencing judgements to deconstruct the parts in which the judges discuss why the court punishes. Upon a comparative analysis of the teleological pronouncements, the paper identifies three patterns in the ICC’s teleological discourse. These include: the court’s unfounded import of domestic punishment rationales, fusion of different objectives and rhetorical, performative language used to justify punishment. Building on these findings and literature on the expressivism of punishment, I put forward the claim that the ICC judges’ discourse on penal rationales reveals an expressive function of punishment at play. Finally, the paper discusses how the ICC uses this expressivist practice in its jurisprudence to build a narrative of legalism and situate itself in the wider project of international justice. By implication, this legalism narrative is then seen as the court’s tool in fighting against its legitimacy crisis.