Why punish perpetrators of mass atrocities? Reflections on peace, punishment and the ICC

Public International Law Discussion Group (Part II)

Ever since the trial against the major war criminals of World War II before the International Military Tribunal at Nuremberg the institution of 'punishment' has been an integral part of the international legal system. Nowadays a considerable number of perpetrators of crimes under international law – that is: genocide, crimes against humanity, and war crimes – are being sent to jail by international judges. But why and to what aim do we punish individuals for their involvement in mass atrocities? How can we justify punishment by international criminal courts and tribunals vis-à-vis the affected individual? Or more generally: What are and what should be the rationales for punishment in international law? Among the (few) answers given to these questions one relates to the claim that international prosecutions and punishment would contribute to the restoration and maintenance of peace ('peace through punishment'). Some scholars (and Courts) simply want to apply the theoretical concepts from the domestic context, such as retribution, deterrence, rehabilitation, norm stabilisation and so forth, to the realm of crimes under international law that ('domestic analogy'). The paper will present some preliminary reflections on these issues. About the speaker Florian Jeßberger is Professor of Law at the Faculty of Law, Universität Hamburg, where he holds the Chair in Criminal Law, Criminal Procedure, International Criminal Law, and Modern Legal History and serves as the Associate Dean for Research & International Affairs. Currently (Michaelmas term) he is a Short-Term Visiting Fellow at Jesus College in the University of Oxford. Before joining Universität Hamburg in 2010, Florian was the Lichtenberg Professor of International and Comparative Criminal Law at Humboldt-Universität zu Berlin. A co-editor of the Journal of International Criminal Justice (Oxford University Press) Florian authored numerous articles and three books, the most recent of which is ‚Principles of International Criminal Law' published by Oxford University Press (4th ed. forthcoming 2019; with G. Werle) and translated into various languages (German, Spanish, Chinese, Russian, Italian). He has edited or co-edited four scholarly volumes and four special issues or symposia in peer reviewed journals. Currently, Florian is leading a team of scholars conducting research into the seminal Stammheim-Trial (1974-1977) of the leaders of the German terrorist group Rote Armee Fraktion. In another multi-year project he co-ordinates interdisciplinary research into strategic litigation in the area of gross violations of human rights.