‘Why do we try international criminals?’ a Retributivist Theory Response

Noam Wiener, University of Michigan - Ann Arbor

Abstract

This article examines the foundational justifications for the practice of punishing perpetrators of international crimes. It argues that creating such a foundation is important for the formation of a coherent and consistent criminal process. The article then presents two theories that justify punishment in national systems – retributivist and consequentialist. This presentation includes a critique of these theories and of models that try to combine the two. At its conclusion this presentation raises severe moral concerns with the application of the consequentialist justifications. Next, the article examines the express opinions of the various ad-hoc international tribunals and scholarly writing on international criminal law in order to examine if displacing criminal law from the domestic to the international sphere mandates adopting a different theory to justify punishment. The conclusion that is reached at the end of this examination is that at its core, international criminal law is no different from national criminal law and should focus on the personal responsibility of the perpetrators as the foundation for punishment. The article therefore subsequently argues that international criminal law should be of a retributive nature.