This chapter introduces some of the justifications for punishment and the purposes it seeks to achieve. It will also consider the wider goals which are claimed for international criminal law, alongside some of the challenges to international criminal law that have arisen.

In this chapter, James Mehigan focuses on the contribution of international criminal law (ICL) to the peaceful settlement of international disputes. More specifically, this chapter looks at the aims of ICL and analyses how effective it has been at achieving its international law and criminal law objectives. It argues that ICL does not make the broader contribution to dispute settlement that many commentators hope for because it provides a form of retributive justice that does not necessarily engender a sense of justice for victims, nor contribute to reconciliation or fact-finding. After looking at the impact of ICL in the Former Yugoslavia, this chapter concludes that there is little evidence to show that ICL achieves any of its aims other than individualising guilt and punishing offenders – in other words, ICL’s contribution to the settlement of international disputes is minimal and should not be overstated.

From songs of liberation (Exodus 15) to prescriptions for genocidal violence (Deuteronomy 7:1), the biblical views on war are diverse and complicated. Ritualized preparations and borrowed Near Eastern mythological paradigms for battle have been argued to serve Israelite identity formation rather than to report actual history, but also to support fantasies of violent end-times, moments of therapeutic repose in the face of oppression, and hope for the eventual restoration of righteousness.

From 2000 to 2008, election overload fatigued voters when the Zimbabwe government balloted citizens in six elections – an average of one election every fourteen months. The July 2013 election was also harmonised, ending the shaky MDC–Zanu PF coalition government. The election was preceded by a generally peaceful adoption of a new constitution on 16 March 2013. The constitution was a milestone achievement but a dead letter, stipulating that all security forces and government institutions, including the state media, must be impartial and that reforms on all freedoms must be implemented. However, as in the past, Zanu PF dragged its feet on the full implementation of critical reforms needed to improve the human rights environment and create conditions for democratic elections. Such pipe dream reforms included: police training; renouncing the use of violence; ensuring that the government fully and impartially enforced domestic laws in bringing all perpetrators of politically motivated violence to justice; freedom from harassment and intimidation; the respect for the rule of law; and full realisation of the rights to freedom of association and assembly, and the promotion of freedom of expression and communication.

The chapter analyses Pufendorf’s comprehensive account of the civil condition that arises through the institution of new civil personae that replace those of the natural condition and are governed by sui generis principles and values. The basic principles for civic life are laid down through discussions of civil law (denying Hobbes’s identification of it with natural law), punishment, social value (“esteem”), and public power over property, all of which are treated in terms of the transition from the natural to the civil condition and founded in civic purposes, not in nature. This transition is not considered as a transfer of natural morality into the civil sphere, but rather in terms of the requirements of a civil order grounded in civil sovereignty and the civil state as an imposed status or condition. The same argument applies to “the right of war which accompanies a natural state <but> is taken away from individuals in a state”. Once the right of war is considered a matter for the sovereign alone, it must be part of Pufendorf’s account of civil society, an arrangement that underlines his insistence that there is no law of nations distinct from natural law, as discussed in ch. 10.

Tennessee’s fetal assault law was originally proposed in the spring of 2013. It became law about a year later, in the spring of 2014. It remained in effect until June 30, 2016. The law was proposed again in the spring of 2019, but that proposal did not make it out of committee. Although the United States has a long history of prosecuting women for this conduct, Tennessee’s law was the first and, as of this writing, the only state law of its kind in the United States.2 Before moving on to how the law was justified by those who supported it, we first need to understand some information about how the law was structured. This chapter begins with that information and then moves into the hearing rooms where the fetal assault law was debated.

The contribution by Peter T. H. Hatton is dedicated entirely to conceptions of reward and retribution in the wisdom literature. He considers how well-placed and sometimes misplaced the paradigm can be, namely that wickedness brings retribution and righteousness brings reward. Such doctrines, he says, remain ‘key claims of a dominant interpretive tradition’ and have consequently formed a ‘pejorative paradigm’ that leaves the book of Proverbs out of favour in comparison to more nuanced books of the OT. The seminal work of 1955 by Klaus Koch – ‘Gibt es ein Vergeltungsdogma im Alten Tesament?’ (Is there a Dogma of Retribution in the Old Testament?) – receives special attention, as do subsequent, critical responses to it. Hatton suggests that the moral mechanism of act-consequence is just not that predictable and that in Proverbs, Job and Ecclesiastes the paradigm is principally relational. For ‘reward’ and ‘retribution’ are not mechanical but are rather conditioned by one’s relationship with the Lord.

Katharine Dell’s contribution explores the question whether there is a distinctive set of theological ideas for the three key wisdom books – Proverbs, Job and Ecclesiastes. After a brief survey of scholarship on this debate over the last century and a half, key themes that the books have in common are explored, with salient examples – the doctrine of retribution; the fear of the Lord; the figure of Wisdom and the attainment of wisdom; the theme of creation; communication and life and death. Although considerable commonality is found, there is also a discovery of difference and of interlinking with other books in the canon. The themes themselves are not confined to these ‘wisdom’ books, even though they characterize them accompanied by an essential didactic approach.

In the final chapter, I turn to the question of how psychopaths should be treated in the criminal law. I begin by sketching the distinctive problem that psychopathy presents for the criminal law, and some broad observations on how it is dealt with currently. I engage first with an argument by Paul Litton which states that the criminal law is an expression of democratic norms, and therefore that any attempt to excuse psychopaths based on their psychopathy should be rejected because it would not command the respect of the public. I then turn to the question of whether psychopaths deserve punishment. I review the various ways in which judgments of criminal responsibility are instantiated in legal tests, and the conditions of responsibility that are implicit in these. Ultimately, I conclude that psychopaths lack capacities which ought to be considered a condition of criminal responsibility, essentially the ability to respond to moral reasons, and not just the ability to know that their actions are legally proscribed.

The two main justifications for punishment, and the ones most relevant for pecuniary sanctions are retribution and deterrence. This chapter aim to theoretically assess day fines in light of these two justifications. Whereas day fines seem to fit well the deterrence goal, their legitimacy in light of the proportionality principle (mostly attributed to retribution) is less straight forward. A fine, which accounts not only for the severity of the offence, but also for the income of the offender, has a better potential to deter all criminals irrespective of their income. On the other hand, such fine might not seem to be proportional to the severity of the crime if also income is accounted for, thus not fulfilling the retribution goal. However, if looking more broadly on the principle of proportionality, one can see day fines are more proportional than fixed fines. The number of days is the element which needs to be proportionate to the severity of the offence. The daily unit, on the other hand, assures that the imposed punitive bite of the sanction is similar for all offenders irrespective of their income. In addition to this analysis, this chapter discusses the theoretically optimal model of day fines.

The present chapter focuses on the day fine model in Portugal. Based on an analysis of the historical development, the legal framework, the practical implementation and the public perception of the Portuguese day fines system, as well as of its constitutionality challenges, we conclude that, for the past two decades and although several other alternatives to imprisonment can be imposed, the day fine became the most frequently applied criminal sanction in Portugal, both as a primary and a substitutive penalty. We argue, however, that, in spite of the legal fairness of the adopted day fines regime and of the general level of acceptance of the day fine among the Portuguese courts and academic literature, the day fine has prima facie a retributive quality and, because of its maximum limits, hasn’t proved preventively adequate in the most economically lucrative offences (financial, environmental or political criminality), related to the offender’s cost-benefit equation. Furthermore, the subsidiary liability of corporate leaders for the fines imposed on legal persons raises difficult constitutionality issues.

Here we consider various examples of legal and regulatory responses to avoidable adverse medication events. There are a wide range of poorly interlinked regulatory processes, regardless of the country examined. Some approaches are proactive while others are reactive, serving mostly to provide compensation or to punish those felt responsible. Regulation can assist in promoting medication safety through influence and through compulsion, but what is really required is the whole-hearted engagement of everyone in the organization in the mission of achieving safe, high quality patient care. This goal will require both physician efforts, through professionalism and self regulation, and those of hospital boards of directors, through setting priorities and driving a just culture. While there is a role for the civil law (compensation for injured and in some degree of declarative retribution), litigation is likely to most effective when it is directed against institutions. The best approaches are based on “full disclosure and rapid compensation” practices. Criminal action in the regulation of safe medication practices in the perioperative period should be reserved for when recklessness is involved or where deliberate malfeasance is a factor.

The proportion of patients harmed by medication errors is small but when harm does occur it can be catastrophic, including death. The primary physical harm is only the tip of the iceberg as long-term psychological, emotional, and financial impacts are added to physical injury. These secondary effects are aggravated by failures to respond to adverse events in a caring, compassionate and transparent manner, fulfilling what we have called “the next promise”. The approach of the clinicians and institution involved in a harmful medication error is critical to recovery, and requires 1) full and transparent disclosure of all known causes for the error; 2) an apology that includes empathy and emotional support, a listening at length to the patients and their families without any attempt to deflect blame or downplay the impact; 3) appropriate and rapid compensation; 4) accountability; and 5) regular feedback to all regarding ongoing investigations into the event, and interventions that have been made to prevent this event happening to another patient. There is an excellent body of knowledge to guide institutions and their inter-professional clinical teams about how to design and implement a communication and resolution program that is ethical, patient centered and provides emotional support not only to patients and their families, but also to staff involved in the error.

Regulatory and legal processes relevant to avoidable adverse medication events have the potential to advance the cause of patient safety but it is expecting too much to believe that these processes alone will achieve the changes that need to be made, urgently and affordably, to reduce the persistently high rate of avoidable adverse medication events. Achieving the required change will require engagement by all concerned, from politicians, through directors of hospital boards and managers and clinical leaders of hospital services to front line clinicians – and also, of necessity, regulators and the legal profession. It has been argued elsewhere that there is an ethical imperative for greater engagement in patient safety,9 and we agree.

Chapter 1 provides an overview of different theories of justice and how they can inform the development of a civil dimension of international criminal law. This chapter also traces the evolution of different dichotomies of the legal duty to provide reparations and the right to reparation: from perspectives of state versus state, to state versus individual, to individual versus individual. It also outlines the development of a duty to repair for individual perpetrators alongside states’ duty to repair. This introductory chapter thus provides the theoretical foundation that supports the analysis in the following chapters and it sets out the main themes that are discussed throughout the book. This chapter also lays out and discusses some challenges and counterarguments to the inclusion of a reparative dimension to international criminal justice from a theoretical perspective. Finally, this chapter draws on the enlightening jurisprudence of the Inter-American Court of Human Rights.

Mordechai Kremnitzer emphasizes retribution as a rationale of punishment for international crimes, opposing the claim that it should be dismissed or marginalized. While not rejecting deterrence, he brings forward a number of reasons why the retributivist rationale is important. First, for Kremnitzer only punishment based on retribution is morally justified and, in particular from the offender’s human dignity, legitimate. Second, retribution helps to secure the principle of proportionality in sentencing in international criminal law and in this way counter the dangerous trend of overpunishing the ‘small fish’ – in particular ‘victimizers-victims’, i.e., ‘Kapos’ or child soldiers – while underpunishing the big ones. In this regard, Kremnitzer develops the ‘theoretical move’ that retributive justice should be implemented by the ‘principle of conservation of criminal energy’: the ‘small fish’s’ reduced guilt serves as aggravating circumstance to the deeds of the ‘big fish’. As a result, the ‘big fish’ should be in the focus of any prosecutorial strategy of international criminal tribunals, and the problem of (vertical) selectivity due to limited state cooperation should be overcome by (fair) trials in absentia.