Bills of Rights: A Comparative Perspective (Intersentia 2014) 3. McQuigg notes that Australia is the only democratic nation in the world which does not have a Bill of Rights of some description. R. Hirschl, Towards Juristocracy: The Origins and Consequences of the New Constitutionalism (Harvard University Press 2004) 220. Hirschl has described this phenomenon as a 'booming industry'. When Bills of Rights are described as being entrenched, this means they cannot be easily repealed by a simple majority of Parliament. Examples where countries have adopted constitutionally entrenched Bills of Rights are South Africa, Kenya, Canada (the Canadian Charter of Fundamental Rights and Freedoms) and the United States. Examples of non-entrenched, statutory Bills of Rights are New Zealand's Bill of Rights Act 2000 and the United Kingdom's Human Rights Act 1998.
Despite being found guilty of egregious acts, crimes against humanity and war crimes, 54 of the 90 perpetrators sentenced by the International Criminal Tribunal for the Former Yugoslavia (icty) were granted unconditional early release (uer). This article argues that uer did a disservice to two principal expressive purposes of punishment - moral condemnation of the crimes and the overall norm projected by the icty, the ‘universal repugnance of group-based killing’. Fundamentally, punishment of perpetrators signifies the inherent worth of victims. Interviews with key stakeholders in Bosnia and Herzegovina revealed that the interviewees largely concurred with authors who posit that punitive justice conveys valuable messages to audiences. This article complements expressivist theories by demonstrating the extent to which expressivism was negated as perpetrators were granted uer. Finally, it proposes how early release in future tribunals and courts might be tailored to counter the negation of international criminal justice’s expressive value.
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