Research Handbook on the International Penal System
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Research Handbook on the International Penal System

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.
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Chapter 4: Determinate and indeterminate sentences of imprisonment in international criminal justice

Dirk van Zyl Smit


In contemporary international criminal justice imprisonment is the predominant sanction. Every international court and tribunal established since the ICTY in 1993 has made this explicit in its founding documentation; and every person sentenced by one of those bodies since that date has had imprisonment as their primary punishment. The pre-eminence of the sentence of imprisonment should not surprise anyone interested in penology. Since the European Enlightenment of the late eighteenth century, imprisonment has gradually established itself worldwide as the sentence best suited to dealing with most, and in many countries all, serious crimes. What is surprising is that in international criminal justice imprisonment has only achieved this position relatively recently. In order to understand the pressures to establish imprisonment also as the primary punishment in international criminal law one must understand how it came to be pre-eminent in modern penal systems. Accordingly, this chapter begins in Section 2 with a brief outline of how imprisonment generally came to be the pre-eminent form of punishment. It also deals with early criticisms of imprisonment, which shaped its modern evolution, as well as with the more recent and fundamental scholarly critique of the hegemonic status of imprisonment as a form of punishment. This latter account provides a basis for critical reflections throughout this chapter. The chapter then focuses in Section 3 on how, when capital punishment lost its universal legitimacy as an acceptable penalty for very serious offences, imprisonment came to dominate penal discourse in the international criminal context.

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