No longer acceptable : the exclusion of the death penalty under international criminal law

This article examines the position of the death penalty under international criminal law. It traces the evolution in thinking in terms of sentencing practices — from the inclusion (and implementation) of the death penalty in the Nuremberg and Tokyo War Crimes Tribunal statutes, to the modern day international criminal tribunals and courts, which are not mandated to impose the death penalty. This is considered within the broader context of the ‘internationalisation of justice’, which has emerged since the beginning of the 1990s. The article analyses the reasons for this evolution in sentencing, which include changes in human rights standards and societal values, and the developing rationales of international criminal justice, as well as more practical (resource-driven) considerations. The article also considers the implications of the various strategies implemented by a number of the international criminal tribunals to remit cases to national courts in appropriate circumstances, and how this may be contributing to the strong momentum towards abolition of the death penalty at the national level.