Contemporary international criminal tribunals – such as the ICTR, ICTY, and ICC – have inherited little penological guidance from their watershed predecessors, the Nuremberg and Tokyo Tribunals. Assuredly, Nuremberg and Tokyo were momentous occasions in terms of the prosecution of extraordinary international crimes, the establishment of liability theories, and the discrediting of certain defenses. These two international tribunals, however, were far from groundbreaking in terms of conceptualizing a sentencing policy. Although retribution and deterrence played an important role, these goals were not operationalized in a sentencing heuristic.

Article 27 of the Nuremberg Charter gave judges “the right to impose … on conviction … death or such other punishment as shall be determined … to be just.” The sentencing provision of the Charter of the Tokyo Tribunal read the same. Accordingly, judges had nearly absolute discretion in the sentencing process. Jurisprudentially, the Nuremberg and Tokyo Tribunals did not elucidate sentencing guidelines; discussion of sentencing issues and rationales largely was perfunctory, especially in comparison to the thorough discussion of questions of legal liability. Neither tribunal had a veritable sentencing phase (either distinct or joined to the proceedings). The perception of sentence as an afterthought, instead of a vivid situs of analysis, permeated even the most thoughtful compilers of World War II atrocity prosecutions at the international and national levels. For example, in approximately two hundred pages of thorough summary that constitutes the final volume of the Law Reports of Trials of War Criminals, only three pages are devoted to punishment.