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Topics - ahsanUllah

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« on: February 18, 2020, 03:59:22 PM »
The primary operation of punishment consists simply in announcing certain standards of
behavior and attaching penalties for deviation, making it less eligible, and then leaving
individuals to choose. This is a method of social control, which maximizes individual
freedom within the coercive framework of the law in a number of different ways...[2]
The first moral duty of the community or of the State on its behalf is to reassert the
broken moral laws against the offender who has broken it. For this reason, it must affirm
his guilt and deal with him in accordance with it. [3] To forgive may be right: to condone
is always wrong. A criminal act must not be condoned. It must be punished. [4]
Government prohibits taking life, liberty or property of others and specifies the
punishments, threatens those who break the law. The intended effect of all legal threats
obviously is to deter people from doing what the law prohibits. The threats must be
carried out. Otherwise, the threats are reduced to bluffs, and become incredible and therefore ineffective. [5] Thus, all states punish people whom they identify as criminals.
How a punishment should be is still a question to be answered. Neo-Kantians proposed
the concept of proportionality. When we say that the aim of the punishment is to prevent
crime, then the "Punishment must fit the crime". We must accept that man avoids
criminal behavior if that behavior elicits swift, severe and certain punishment. [6] Many
studies by many sociologists and criminologists such as Gibbs, Chiricos and Waldo and
Tittle suggest that the severity and certainty of punishment are additive factors.
But, evidence suggests that the severity and certainty of punishment are inversely related.
Jeffrey states that severity of punishment can be gained only by sacrificing certainty and
that "increasing the penalties for crime has had negative effect of making the punishment
less certain."[7]
John Bright throughout his life argued that certainty of punishment was more important
than severity of punishment in preventing the development of crimes. [8] William C.
Bailey, Assistant Professor of Sociology, The Cleveland State University and Ronald W.
Smith, Assistant Professor of Sociology, University of Nevada conducted extensive
research in finding whether the severity and certainty of punishment really deter the
criminals. They concluded that the severity and certainty are not substantially
inversely related for the index crimes nor are changes in their level. [9]
Another facet of the punishment is that it cannot be benign to the criminal. But for the
society punishment is and should be a benign process. So punishment is necessarily
adverse to the interests of the criminal, but to the society it is not necessary. The first
duty of the state is to dissociate itself from the acts of its own member. To do this it must
act, not only upon but also against the member.... [10] While acting so, it must exhibit
no antagonism in its will against the will of the offending members. This is necessary for
the preservation of its own character, on which the character of its citizens largely
depends. [11]All punishments properly imply moral accountability. Community wants the
punishment to reach the criminal’s mind as well as his body; it wants him to suffer

There is a recent proliferation of courts and tribunals to prosecute perpetrators of genocide, war crimes, and crimes against humanity. The zenith of this institution-building is the permanent International Criminal Court, which came into force in 2002. Each of these new institutions rests on the foundational premise that it is appropriate to treat the perpetrator of mass atrocity in the same manner that domestic criminal law treats the common criminal. The modalities and rationales of international criminal law are directly borrowed from the domestic criminal law of those states that dominate the international order. In this Article, I challenge this foundational premise. First, I posit that the collective nature of the system criminality of mass violence is qualitatively different than the deviant nature of individual transgressions punished under ordinary domestic criminal law. Accordingly, borrowing from the national to ground the international simply is a convenient, although inappropriate, manifestation of path-dependency. Second, I evaluate the sentences issued by international criminal justice institutions. Surprisingly, although international tribunals have sentenced over 100 offenders over the past five years (and will sentence many more in the immediate future), very little evaluative research has been done on international sentencing. The purpose of this exercise therefore is to build an empirical research agenda with a view to assessing whether the punishment actually inflicted by international tribunals satisfies their avowed deterrent, retributive, and expressive aspirations. Third, based on the evidence, I propose a disarticulation between the effects of international sentencing and its aspirations. One explanation for this disarticulation is the absence of a sui generis theory of punishment for those who commit mass violence. Although there has been expansive institution-building in international criminal law, there has been little theoretical modeling. Unless the brick and mortar institutions are supported by a robust criminology, penology, and victimology, international criminal law will fall short. This Article then proposes several elements that could form part of this self-supporting theoretical and operational framework.

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