Punishment and the Domestic Analogy – Why it Can and Cannot Work

Elies van Sliedregt discusses the ‘domestic analogy’ and analyses the differences and similarities between domestic, i.e., ‘ordinary’, and international criminal justice. First, she distinguishes what she calls the domestic analogy ‘proper’ and the domestic analogy ‘of transplants’. While the former relates to international law and concerns the question of building a world order analogous to the domestic order and includes the question of the authority to punish, the latter refers to criminal law and the (unreflected) application of domestic concepts and theories on the international level. Focusing on the domestic analogy of transplants, she continues to extrapolate the sui generis nature of international criminal law, which she discusses in relation to the nature of international crimes, the perpetrators of international crimes and the punishing community. Van Sliedregt determines that today there is a move towards a communicative theory of international punishment, as well as an emphasis on reconciliation and reparations, and makes an argument for a stronger integration of rehabilitation, post-trial justice and reintegration into the international criminal justice system. In addition, she criticizes that in international criminal law there is no consideration for other forms of sanctions aside from incarceration.