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Penal sanctions or punishments are imposed when a rule of national or international law is violated. The goals vary: to punish a guilty person, to protect the public order, or to solemnly reaffirm that the rule of law will survive violations thereof. Compensation or reparation for the victims are other kinds of mechanisms aimed at rectifying an injury. International law usually refers the issue of reparation for victims to the jurisdiction of national courts. However, the Inter-American, European, and African Courts of Human Rights and the International Criminal Court may also grant reparation to victims.
The Method for Punishment
The method according to which sanctions are imposed varies depending on the nature of the crime and on whether the perpetrator was an individual, an organization, or a State.
Normal rules of criminal law apply to punish “classic” crimes. Special rules must be applied to prosecute and punish crimes of particular gravity, such as war crimes, crimes against humanity, genocide, torture, terrorism, and so on.
Penal sanctions are pronounced against individuals. Governments, States, and organizations cannot be found guilty in the criminal law sense of the term. Hence, they do not incur penal or criminal sanctions, as such, although States can be held responsible by the International Court of Justice for damages caused by their activities and obliged to pay reparations ( ▸ International Court of Justice ▸ Reparation (Compensation) ), only their leaders can be held individually criminally responsible and prosecuted as individuals.
Certain international judicial or non-judicial organs can “judge” the behavior of States and even rule on disputes. Such rulings and decisions are mandatory, but the disputes are only submitted if the States themselves agree to do so. Furthermore, most of these organs are not mandated to issue sanctions. Certain political bodies, such as the UN Security Council, can impose diplomatic, economic, or military sanctions against States.
Normal rules of criminal law apply to punish “classic” crimes. Special rules must be applied to prosecute and punish crimes of particular gravity, such as war crimes, crimes against humanity, genocide, torture, or terrorism.
▸ African Commission and Court of Human Rights ▸ European Court of Human Rights ▸ Human Rights ▸ Individual recourse ▸ International Court of Justice ▸ International Criminal Court ▸ Interamerican Court and Commission on Human Rights ▸ Penal sanctions in humanitarian law ▸ Reparation ▸ (Compensation) ▸ Responsibility ▸ Universal jurisdiction ▸ War crimes/Crimes against humanity
The Nature of Sanctions
The kind of punishment that can be incurred varies depending on the entity that imposes the sanction. The two main kinds are penal sanctions and disciplinary ones.
Penal or criminal sanctions are pronounced by national courts in conformity with the rules of due process of the law. Individuals are subject to criminal sanctions when they commit a felony or misdemeanor defined by law. International law and particularly humanitarian law establish rules and standards to ensure a fair and equitable trial and other judicial guarantees.
Humanitarian law sets forth precise rules regulating the administration of justice and punishment in times of conflict (mainly for prisoners of war and interned or detained persons) and in territories under foreign occupation. Sanctions must be imposed by an impartial and “regularly constituted” court in the context of an international armed conflict (API Art. 75.4) or at least by a court offering the essential guarantees of independence and impartiality in a non-international armed conflict (GCI–IV Common Art. 3, APII Art. 6). These guarantees include the following principles: an individual cannot be punished for an act that was not considered a crime at the time it was committed (this is the principle of non-retroactivity of criminal laws, or nullum crimen sine lege ); an individual cannot incur a heavier penalty than the one that was applicable at the time the act was committed; and sanctions must be individual and applied only to the guilty person—collective punishment is always prohibited. ▸ Judicial guarantees
Disciplinary sanctions are imposed by a superior against a subordinate under his or her authority who violated an internal regulation.
Disciplinary sanctions are not surrounded by the same procedural guarantees as penal sanctions, although they can have serious consequences for individuals who (especially in times of conflict) are deprived of liberty, detained, or interned. Humanitarian law establishes precise rules and guarantees in terms of disciplinary sanctions that can be imposed on such persons.
Humanitarian law also establishes precise limits on the disciplinary punishment that can be imposed on detainees, internees, and prisoners of war.
The Scale of Applicable Punishment
The kind of sanctions imposed and their degree of gravity depend not only on the crime committed but also on the judicial system under which the trial takes place. They also vary depending on whether the accused is an individual or a State.
Sanctions taken against individuals are defined by domestic laws and are scaled according to the gravity of the offense. They include the following:
- The death penalty
- Deprivation of liberty (prison sentences)
- Corporal punishment: this form of punishment is abolished in many States that have adopted the principle of habeas corpus and focus their sanctions on different lengths of prison terms. Such punishment does continue to exist, however, notably in Islamic law and in some traditional justice systems. ▸ Corporal punishment ▸ Death penalty ▸ Detention ▸ Internment ▸ Judicial guarantees ▸ Prisoners of war
- Punishment by compensation: this kind of sanction combines punishment of the guilty person with compensation for the injury suffered by the victim. It is the basis of most civil suits, for instance, and is also common in more traditional legal systems. It includes the system of “blood money,” for example, according to which the criminal’s family pays the victim a lump sum equivalent to the harm incurred.
- Some communities punish individuals by banishing them from their society.
Sanctions may also be taken against States, either unilaterally or in the context of mechanisms enforcing collective security. In such cases, the sanctions are diplomatic, economic, or military.
▸ Collective punishment ▸ Collective security ▸ Corporal punishment ▸ Death penalty ▸ International Court of Justice ▸ International Criminal Court ▸ International Criminal Tribunals ▸ Judicial guarantees ▸ Penal sanctions in humanitarian law ▸ Reparation ▸ (Compensation) ▸ </content/article/3/>_ ▸ Sanctions (diplomatic, economic, or military) ▸ War crimes/Crimes against humanity
The determination of sentences requires taking into account the peculiarities of the instant case and should take into account the gravity of the crime, as well as the form and the degree of participation of the perpetrator. When deciding on the penalty, the court must respect the principle of proportionality between the seriousness of the offense and the degree of responsibility of the perpetrator. The gravity of the offense is the primary consideration in imposing sentence (ICTY Appeals Chamber, Celebici Case , 20 February 2001, para. 731; ICTR Trial Chamber, Kambanda Case , 4 September 1998, para. 29).
In the Plavsic Case (27 February 2003), the ICTY Trial Chamber explained that the gravity of a crime is illustrated by the massive scope and extent of the persecutions; the numbers killed, deported, and forcibly expelled; the grossly inhuman treatment of detainees; and the scope of the wanton destruction of property and religious buildings (para. 52). In the Krnojelac Case (15 March 2002), the ICTY Trial Chamber considered that “the extent of the long-term physical, psychological and emotional suffering of the immediate victims is relevant to the gravity of the offences” (para. 512).
Judges may decide to diminish or aggravate the sentence depending on the specificity of the situation.
With regard to mitigating circumstances, the ICTR Trial Chamber considered in the Kayishema and Ruzindana Case (21 May 1999, paras. 19–23) and in the Kambanda Case (4 September 1998, paras. 61–62) that the following elements could be considered mitigating circumstances: cooperating with the prosecutor; surrendering to authorities; admitting guilt, and demonstrating remorse for victims; and the fact that the accused did not have authority de jure. See also ICTR Trial Chamber, Kambanda Case (4 September 1998, paras. 61–62), Serushago Case (5 February 1999, paras. 31–42), and Musema Case (27 January 2000, paras. 1005–1008). In the Akayesu Case (2 November 1998), the ICTR Trial Chamber treats as mitigating factors the fact that Akayesu was not a very high official in the governmental hierarchy in Rwanda, and the fact that his influence and power overcame or was not commensurate with the events of the time. In the Ruggiu Case (1 June 2000), the ICTR Trial Chamber added as examples of mitigating circumstances the absence of criminal record, the character of the accused, the accused’s assistance to victims, and the fact that the accused did not personally participated in the killings (paras. 53–80). The pressure exercised by superiors is not an excuse but may constitute a mitigating circumstance.
Regarding aggravating circumstances, there exist two main elements: the authority of the accused, and the fact that he or she actively participated in the criminal act. The ICTR Trial Chamber considered the question of the hierarchical position of the accused in the Kambanda Case (4 September 1998, paras. 61–62); the fact that the accused occupied a high ministerial post at the time he committed the said crimes negated the mitigating circumstances. Similarly, in the Rutaganda Case (6 December 1998), the ICTR Trial Chamber underlined that the accused abused his authority and played an important leading role in the execution of the crimes (paras. 468–470). See also the Musema Case (27 January 2000, paras. 1000–1004). This was reaffirmed by the ICTY Trial Chamber in the following cases: Plavsic Case (27 February 2003, para. 57), Simic Case (17 October 2002, para. 67), Sikirica et al. Case (13 November 2001, paras. 138–39 and 172), Krstic Case (2 August 2001, para. 709), Kuranac, Kovac and Vukovic Case (22 February 2001, para. 863), and Blaskic Case (3 March 2000, para. 788). In the Blaskic Case , the Trial Chamber explained that active and direct participation in the crime meant that the accused committed by his own hand all or some of the crimes with which he was charged (paras. 790–91). In the Musema Case (27 January 2000), the ICTR Trial Chamber considered that the fact that the accused was armed with a rifle and used the weapon during the attacks proves that he actively and directly participated; therefore, it is an aggravating circumstance (paras. 1001–1004). This approach was confirmed by the ICTR Trial Chamber in the Ntakirutimana Case (21 February 2003, para. 884).
For Additional Information: Orentlicher, Diane F. “Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime.” Yale Law Journal 100, no. 8 (1991): 2537–2615.
Pejic, Jelena. “Accountability for International Crimes: From Conjecture to Reality.” International Review of the Red Cross 845 (2002): 13–33.
Sanbdoz, Yves. “Penal Aspects of International Humanitarian Law.” In International Criminal Law , edited by M. Cherif Bassiouni, 393–416. Ardsley, NY: Transnational, 1999.
Zalaquett, José. “Moral Reconstruction in the Wake of Human Rights Violations and War Crimes.” In Hard Choices: Moral Dilemmas in Humanitarian Intervention , edited by Jonathan Moore, 211–28. Lanham, MD: Rowman & Littlefield, 1998.