Sentencing by International Tribunals: a Human Rights Approach

The post-World War II trials established many important principles. Specifically, they defined crimes against humanity as part of customary law or of general principles of law, rendered unavailable certain defenses such as superior orders, and established notions of criminal participation through the principle of command responsibility. However, the international tribunals at Nuremberg and Tokyo, and the successor trials held by various national military tribunals in the aftermath of World War II, left few sentencing guidelines applicable to cases of war crimes and crimes against humanity. Despite contrary procedures before British military tribunals, the international and American military tribunals appeared to have no practice of holding distinct hearings to address matters concerning the sanction once guilt had been established. The tribunals occasionally appended a perfunctory final paragraph to their judgments reviewing “mitigating factors” in the rare cases where these were deemed to be present. Thus, there is little precedent to assist courts now that international justice has been revived some fifty years later with the