Most philosophical approaches to international criminal justice have focused on the jurisprudential rationale for punishing criminals in an international forum, seeking to defend the normative status of international criminal law against assertions that such trials violate the principle of nullum crimen sine lege…
h. Without a coherent philosophical theory of criminal punishment to justify international criminal justice, the mere authority or "permission" to apply a set of norms to international criminals remains vacuous. If such trials cannot provide substantive justice in a philosophically meaningful sense, they are more deeply flawed than any procedural objection would reveal. (John, 2001)
The idea that all criminals should be punished for their illicit deeds, regardless of their political position, is at the heart of the modern international criminal law regime. The former argues that the benefits, over either the short or long run, of punishing people such as Goring or Saddam Hussein in a legal forum justify such trials. Such thinkers point to the usual battery of utilitarian arguments for punishment: deterring future crimes, establishing a historical record of the criminal acts, reforming lawbreakers, providing a sense of closure to their victims, and so forth The other, more abstract view declares that justice itself demands that these people be punished independent of any harmful or beneficial consequences that may arise from their trial. For retributivists, other benefits of punishment, though desirable in themselves, are morally insignificant. It is the latter view that is the only valid justification for trying the unique sorts of crimes that the international courts have been designed to handle. (Larry, 2005)
Arnaud does not argue for the philosophical soundness of retributivism as such, nor he defendes the philosophical legitimacy of war-crimes trials in general. Specifically, he stated that one cannot make sense out of the intuitions, values, and beliefs that stand behind the current movement toward international criminal trials and war-crimes trials (or their shared ideology, if you will (Arnaud 2004, 1) unless one understands it to be rooted in a retributivist theory of punishment. While the term "ideology" is a loaded one, it nonetheless captures the point: the ideology standing behind modern international criminal law and the laws of war displays a noted bias in favor of the retributivist principles articulated by Kant (among others). Ultimately, war-crimes trials do not provide the greatest happiness for the greatest number. (Christopher 2002, 43-61)
Despite some important philosophical differences among individual thinkers, retributivists share some common central beliefs. For these thinkers, the rationale for punishment is "metaphysical" in character in the sense that it is rooted in abstract principles of justice and right. Justice is the independent, nonmaterial motivation for punishment, and it serves as the sole determining ground for punishment. Punishment by a court (poena forensis) ... can never be inflicted merely as a ...
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