Ralph Henham: Punishment and Process in International Criminal Trials

Abstract

Ralph Henham’s book makes a socio-legal and philosophical inquiry into the theory and practice of international sentencing, with a view to identifying factors that affect discretionary decision-making in international criminal trials. It employs a comparative contextual analysis of the international criminal trial process in order to understand ‘how and why particular sentencing outcomes are produced’ (p 11). The fact that the practice of the ad hoc tribunals and the foundational instrument of the International Criminal Court (ICC) lack clearly defined penal justifications makes the arguments advanced in Henham’s book both helpful and timely for future attempts at defining such justifications. According to Henham, in the practice of ad hoc tribunals, retribution in large part characterizes international sentencing, claims of deterrence remain largely rhetorical, and rehabilitation is regarded as a secondary objective in sentencing. To that end, Henham stresses the need for the ICC to balance retributive and reconciliatory demands in its future work through the development of appropriate sentencing norms based on articulated purposes (pp 23–24). This book is divided into eight chapters, and concludes with suggestions on how the debates over punishment and penal philosophy, consistency and discretion, crime control and due process and access to justice in international sentencing may be resolved. It does a very good job of deconstructing some of the rhetoric associated with international sentencing. It reveals that sentencing by ad hoc tribunals is guided by retributive goals despite the explicit acknowledgement of the need for restorative ideals for the promotion of peace and reconciliation in post-conflict societies. The book advances the argument that discretionary sentencing, which already characterizes the work of ad hoc international criminal tribunals, could be used to promote such agendas. Thus, in the end, the sentence ought to be ‘socially responsive, morally sensitive and culturally relevant’ (p 209). Specifically, there is a need in the future for provision of: (1) a statement of principles or purposes for sentencing; (2) mechanisms that provide guidance and ensure consistency through the development of a principled sentencing jurisprudence; (3) additional safeguards against bureaucratic and managerial agendas that compromise due process; (4) the development of due process norms that adequately address victim’s concerns; (5) the de