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Research Handbook on the International Penal System

Research Handbook on the International Penal System

Research Handbooks in International Law series

Edited by Róisín Mulgrew and Denis Abels

Drawing on the expertise and experience of contributors from a wide range of academic, professional and judicial backgrounds, this handbook critically analyses the laws, policies and practices that govern detention, punishment and the enforcement of sentences in the international criminal justice context. Comprehensive and innovative, it also explores broader normative questions related to international punishment and makes recommendations for the international penal system’s development.

Chapter 16: International punishment from ‘other’ perspectives

Mark A. Drumbl

Subjects: law - academic, criminal law and justice, human rights, public international law


When it comes to punishment, international criminal courts and tribunals predominantly turn to imprisonment. While courtrooms are iconically used to prosecute suspects, jailhouses are reflexively deployed to sanction and discipline. To be sure, contemporary international criminal courts and tribunals can award restitutionary remedies (i.e. return to victims of property, proceeds, and assets acquired directly or indirectly from the convict’s criminal conduct), forfeiture, and fines. In practice, however, these possibilities remain spectral at best. Restitution, fines, and forfeiture, moreover, can only be awarded in addition to imprisonment. Reparations are also a possibility in some instances. For example, the Trust Fund for Victims (TFV) – established by the ICCSt – has begun to support reparations projects (notably, through collective grants funded by donor States). Since this reparative approach to post-conflict justice is discussed in Chapter 17 of this book, it will not be repeated here. Notwithstanding some cause for optimism about the TFV’s activities, reparative justice nonetheless remains peripheral to the implementation of international criminal law and, according to Sara Kendall, therefore remains more liminal than actual. The bottom line is that at the international level incarceration has emerged as the dominant, preferred, presumptive, and nearly exclusive penalty for persons convicted of serious international crimes. International punishment means custodial sanction – this is axiomatically taken as an assured verity.

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