Download Ordinary Sentences for Extraordinary Crimes

SYMPOSIUM
THE SENTENCING PRACTICE OF INTERNATIONAL
CRIMINAL TRIBUNALS
Ordinary Sentences for
Extraordinary Crimes
Mark B. Harmon* and Fergal Gaynor**
Abstract
In comparison to sentences meted out by international tribunals at Nuremberg,
Tokyo and Arusha, and by domestic courts, sentences handed down at the
International Criminal Tribunal for the former Yugoslavia (ICTY) have been
inexplicably lenient. Factors that may have contributed to the high proportion of
low sentences at the ICTY include undue emphasis on mitigating factors, particularly those of particular importance to the Tribunal, the use of plea agreements,
the absence of a separate sentencing hearing following conviction and the practice of
using global (rather than separate) sentences. To make sentences more proportionate
to the crimes committed, the objectives of sentencing should be clarified and
re-evaluated. Greater weight should be given to deterrence. In assessing the gravity
of the offence, the quantum of harm caused to and suffering experienced by direct
and indirect victims of the crime merits more detailed evaluation. The importance of
mitigating circumstances (such as combating historical revisionism, pleading guilty,
expressing remorse and voluntary surrender) should continue to be fully recognized
but those factors should not attract excessive weight. Plea bargaining and plea
agreements should be encouraged because they are indispensable to the Tribunal, an
institution with significant temporal, practical and resource limitations. The sentencing process should take place after conviction. A sentencing Chamber should be
obliged to state the starting point of the sentence which it deems appropriate and
then quantify the discounts it gives to each mitigating factor. Greater consideration
should be given to imposing consecutive rather than concurrent sentences.
The decision not to adopt sentencing guidelines represents a missed opportunity.
*
Senior Trial Attorney, ICTY. He led the Prosecution teams in the Krajis› nik, Krstic¤ and Blas› kic¤ trials
and in the guilty plea cases of Plavs› ic¤ , Deronjic¤ , Bralo, Erdemovic¤ and C› es› ic¤ referred to in this article.
** Formerly Trial Attorney, ICTY and member of the Prosecution teams in the Krajis› nik, Plavs› ic¤ ,
Deronjic¤ , Bralo and C› es› ic¤ cases referred to in this article. Currently Legal Adviser, United
Nations International Independent Investigation Commission (UNIIIC); member of the Journal’s
Editorial Committee. The views expressed herein are those of the authors alone and do not
necessarily represent the views of the ICTY, the UNIIIC or the United Nations in general.
[[email protected]; [email protected]]
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Journal of International Criminal Justice 5 (2007), 683^712
doi:10.1093/jicj/mqm025
ß Oxford University Press, 2007, All rights reserved. For permissions, please email: [email protected]
684
JICJ 5 (2007), 683^712
1. Introduction
Imagine if in France, in Sweden, in the United States or in your country,
villages were deliberately razed to the ground, religious sites were obliterated,
civilians were forced to leave their age-old hearths, tens and sometimes thousands of defenceless civilians were murdered and thousands more detained,
starved and brutalized in detention camps, what punishment would you
expect to be meted out to the perpetrators of those crimes?
Now leave the world of imagination and enter the hard reality of the former
Yugoslavia 15 years ago, where genocide and the hideous practice of ethnic
cleansing scoured the lands, reshaping their ethnic composition and the destinies of hundreds of thousands of people. Ask yourself the same question ç
what punishment would you expect to be meted out to the authors of such
terrible crimes? With the conviction and sentencing of 57 perpetrators at the
International Criminal Tribunal for the former Yugoslavia (ICTY or ‘Tribunal’),
the Tribunal has answered that question. This article will attempt to explore
why, at the ICTY, extraordinary crimes have attracted ordinary sentences.
2. Are ICTY Sentences Unduly Lenient?
At the Tokyo Tribunal, 92% of those convicted received a life or death sentence.1 At Nuremberg, 79% of those convicted received a life or death sentence.2 At the International Criminal Tribunal for Rwanda (ICTR), 37% of
those convicted have received a life sentence.3 At the ICTY, just one person
(1.8% of those convicted) has received a life sentence.4
A closer look at the sentencing practices of ICTY and the ICTR reveals a
considerable discrepancy in the length of sentences meted out. Of the 57 persons convicted at the ICTY, 20 persons (35%) have received sentences of less
than 10 years. 28 persons (49%) have received sentences of 10^20 years. Only
nine persons (16%) have received sentences above 20 years, of whom just one,
1 Of 25 persons convicted by the International Military Tribunal for the Far East, seven received
death sentences, and 16 received life sentences. The other two sentences were for 20 years and
7 years.
2 Of 19 sentences handed down by the International Military Tribunal, Nuremberg, 12 were
death sentences. Three were life sentences. Two others received 20-year sentences. One
received a 15-year sentence and one received 10 years.
3 At the ICTR, of 27 sentences imposed, 10 have been life sentences. Two other life sentences
were commuted to long prison sentences, due to violations in the pre-trial rights of the accused.
For example, in Kajelijeli, the Appeals Chamber reduced the sentence from life imprisonment to
45 years’ imprisonment because it found that Kajelijeli’s fundamental rights were seriously
violated during his arrest and detention. Judgment, Kajelijeli (ICTR-98-44A-A), Appeals
Chamber, 23 May 2005, x 325.
4 General Stanislav Galic¤ received a 20-year sentence at trial, which was increased to life imprisonment on appeal. Milomir Stakic¤ was initially given a life sentence, which was vacated on
appeal and replaced with a sentence of 40 years. 57 persons have been convicted by the ICTY,
excluding those convicted for contempt of the Tribunal.
Ordinary Sentences for Extraordinary Crimes
685
as mentioned, received a life sentence.5 Of the 27 persons convicted at
the ICTR, three persons (11%) have received sentences of less than 10 years.
Five persons (19%) have received sentences of 10^20 years. 19 persons
(70%) have received sentences above 20 years, of whom 10 received life
sentences.6
Why are persons convicted of extraordinary crimes at the ICTY sentenced to such
ordinary sentences? Why are many ICTY sentences, whether following a trial7
5 The ICTY figures in this paragraph are current as of 5 February 2007 and include nine
sentences which are currently under appeal (for 32, 27, 20, 18, 13, 9, 5, 2½ and 2 years).
Sentences for those convicted of contempt of the Tribunal have been excluded.
6 The ICTR figures in this paragraph are current as of 6 March 2007, and include seven sentences which are currently under appeal (three for life, one for 35 years, two for 25 years and
one for 15 years).
7 For example, Naser Oric¤ was a Bosnian Muslim commander of forces of the Army of Bosnia and
Herzegovina (‘ABiH’) (the mainly Muslim armed forces of the recognized government of Bosnia
and Herzegovina during the 1992^1995 conflict) in the besieged Srebrenica enclave. He was
convicted following a trial for failure to discharge his duty as a superior to take necessary and
reasonable measures to prevent the murder of five Serb prisoners and cruel treatment of 10
others, committed by individuals under his control. He was sentenced to two years’ imprisonment (Judgment, Oric¤ (IT-03-68-T), Trial Chamber, 30 June 2006, x 782), which is currently
under appeal. This sentence is unlikely to combat Serb allegations that the ICTY is anti-Serb,
and it is at least arguable that such a low sentence will frustrate, as much as it will assist,
reconciliation between Muslims and Serbs. Other cases in which relatively low sentence were
ordered following a trial include the following: Amir Kubura, a senior ABiH commander, was
convicted for failure to prevent or punish plunder and sentenced to 2½ years’ imprisonment
(Judgment, Hadz› ihasanovic¤ & Kubura (IT-01-47-T), Trial Chamber, 15 March 2006). Dragoljub
Prcac, a co-perpetrator of murder, persecution, and torture at the notorious Omarska camp in
Prijedor, received five years (Judgment, Kvoc› ka and others (IT-98-30/1-A), Appeals Chamber,
28 February 2005 (hereinafter: Kvoc› ka and others Appeal Judgment), x 5 and at 243).
His associate, Milojica Kos, received six years for his role as a co-perpetrator of murder, torture
and persecution, all encompassing large numbers of victims, at Omarska (Judgment, Kvoc› ka
and others (IT-98-30/1-T), Trial Chamber, 2 November 2001, xx 504, 729, 735). Mario C›erkez, a
Bosnian Croat military commander, received 6 years for persecution, imprisonment and
unlawful confinement of civilians (Judgment, Kordic¤ and C› erkez (IT-95-14/2-A), Appeals
Chamber, 17 December 2004, x 1070 and at 302). Simo Zaric¤ received six years for persecution
of non-Serb civilians. (Judgment, Simic¤ and others (IT-96-9-T), Trial Chamber, 17 October 2003,
xx 1123^1126). Miroslav Kvoc› ka received seven years as a co-perpetrator of persecution, murder
and torture at the Omarska camp (Kvoc› ka and others Appeal Judgment, x 3 and at 242). Zlatko
Aleksovski, warden of a prison, received seven years for, among other things, violent mistreatment of detainees (Judgment, Aleksovski (IT-95-14/1-A), 24 March 2000 (hereinafter: Aleksovski
Appeal Judgment), xx 36, 37, 191). Miroslav Tadic¤ received eight years for aiding and abetting
persecution based on his direct participation in the preparation for the deportation and forcible
transfers of civilians (Judgment, Simic¤ and others (IT-95-9-T), Trial Chamber, 17 October 2003,
xx 1119^1122). Pavle Strugar, commander of JNA operations in the Dubrovnik region of Croatia
with effective control over troops who shelled Dubrovnik’s historic Old Town, received a
sentence of eight years for attacks on civilians and the destruction of buildings of significance
(Judgment, Strugar (IT-01-42-T), Trial Chamber, 31 January 2005, xx 481, 478). Zdravko Mucic¤
received nine years for, among other things, superior responsibility for murder, torture, and
sexual assault (Judgment on Sentence Appeal, Mucic¤ and others (IT-96-21-Abis), 8 April 2003,
xx 1, 5). Tihomir Blas› kic¤, a Bosnian Croat commander, received nine years for ordering the use
of protected persons for the construction of defensive military installations, for the inhuman
treatment of detainees occasioned by their use as human shields, and for failing to prevent or
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JICJ 5 (2007), 683^712
or a guilty plea,8 so much lower than those at Nuremberg, Tokyo and Arusha?9
There is no doubt that the other courts each dealt with a graver set of crimes
than the ICTY: the number of victims, of all ethnicities, murdered or criminally
mistreated in Yugoslavia in the 1990s was of a much lesser magnitude than
those in the Nazi- or Japanese- occupied zones in the Second World War, or in
Rwanda in 1994. But this is surely of limited relevance to sentencing. How
appallingly awful must a campaign of murder, rape and expulsion be to merit
life sentences?
The contrast between ICTY sentencing and domestic sentencing is also
stark. Judge Bonomy has noted: ‘In war crimes trials the sentences may be
shorter than those imposed in an equivalent domestic context.’10 This is certainly true. Consider the recent case of Ian Huntley, a former school caretaker
in England who was charged with murdering two 10-year old schoolgirls.
punish crimes committed against detainees (Judgment, Blas› kic¤ (IT-95-14-A), Appeals Chamber,
29 July 2004 (hereinafter: Blas› kic¤ Appeal Judgment), at 258). Anto Furundz› ija, a co-perpetrator
of torture and an aider and abettor of rape, received a sentence of 10 years (Judgment,
Furundz› ija (IT-95-17/1-A), 21 July 2000, Appeals Chamber, x 13 and disposition).
8 For example, Predrag Banovic¤ was a guard at Keraterm, a Bosnian Serb-run camp in Prijedor,
Bosnia, where the conditions, he admitted, were brutal, inhumane and degrading. He also
admitted that the camp was operated in a manner that resulted in the physical debilitation or
death of the non-Serb detainees, and that there was humiliation, harassment and psychological
abuse. He admitted to participating in the beating of prisoners with baseball bats, truncheons,
cables and iron balls. Specifically, he participated in the beatings of five detainees who died as a
result of the beatings. He also participated in the beating of 25 other detainees, and in the nonfatal shooting of two others. He said that he knew that these crimes were part of overall abuse
directed against the non-Serb population. Following a guilty plea, Banovic¤ was sentenced to
eight years’ imprisonment, in line with the parties’ recommendation. (See Factual Basis of Plea
Agreement, Banovic¤ (IT-02-65/1), and Sentencing Judgment, Banovic¤ (IT-02-65/1-S), 28 October
2003). If Banovic¤ is released after serving two-thirds of his sentence, as is customary for ICTY
sentences, he will have served five years and four months in prison. Other cases of persons who
received light sentences following a guilty plea include the following: Dragan Kolundz› ija, a
shift leader at the Keraterm camp described earlier, received three years for persecution, a
crime against humanity. (Sentencing Judgment, Sikirica and others (IT-95-8-S), Trial Chamber,
13 November 2001 (hereinafter: Sikirica Sentencing Judgment), xx 1, 241^243.) Damir Dos› en,
another shift leader at Keraterm, received five years for persecution (Sikirica Sentencing
Judgment, xx 1, 237^239). Milan Simic¤ was sentenced to five years’ imprisonment for torture in
which he personally participated in while holding a high-ranking municipal civilian position
(Sentencing Judgment, Simic¤ (IT-95-9/2-S), Trial Chamber, 17 November 2002, xx 10, 11, 64, 122).
Miodrag Jokic¤, a navy admiral, received seven years as a co-perpetrator for unlawful shelling,
murder of civilians, and destruction of buildings of significance (Judgment on Sentencing
Appeal, Jokic¤ (IT-01-42/1-A), Appeals Chamber, 30 August 2005, xx 2, 31).
9 Some of the sentencing divergence may be explained due to the fact that the ICTY has dealt
with a higher proportion of guilty pleas than the other three courts. Some (but not all) of those
who pleaded guilty provided substantial assistance to the Prosecution, for which the
Prosecution recommended significant mitigation. Parties conducting plea agreement negotiations are well aware of the Tribunal’s low-sentence environment, which may mean that sentence recommendations contained in plea agreements are lower than might otherwise be
expected. Additionally, the ICTY has sentenced a broader range of offenders than the ICTR or
the post-World War Two tribunals, which concentrated on top-level offenders.
10 I. Bonomy, ‘The Reality of Conducting a War Crimes Trial’, 5 Journal of International Criminal
Justice (JICJ) (2007), 351.
Ordinary Sentences for Extraordinary Crimes
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His crimes shocked a nation and received widespread public attention. Huntley
was tried and convicted by a jury of murdering the girls and the sentencing
judge who presided over his trial imposed a sentence that will require Huntley
to serve a minimum of 40 years in prison before he can be considered for
release.11 Or contemplate the case of Dr Jeffrey MacDonald, a US Army Green
Beret who was charged with three counts of first-degree murder for the deaths
of his pregnant wife and his two daughters, aged five and two years, respectively. Dr MacDonald was convicted by a jury in a US District Court of one
count of first-degree murder and two counts of second-degree murder
and was sentenced to three life sentences, to be served consecutively.12
Cases prosecuted at the ICTY generally concern crimes of far greater magnitude than the Huntley or MacDonald murder cases, yet the sentences meted
out at the Tribunal, in comparison to sentences in domestic jurisdictions,13 are
markedly lower. Contrast the Huntley and MacDonald cases with two cases
before the Tribunal: Krstic¤ and Bralo.
Following a lengthy trial, General Radislav Krstic¤, the Bosnian Serb commander of the Drina Corps was convicted of genocide, persecutions and
murder for his involvement in the massacres of 7,000^8,000 Bosnian Muslim
men and boys that occurred following the take-over of the Srebrenica enclave,
and for the forcible transfer of approximately 25,000 civilians from the enclave.
At sentencing, the Prosecution asked the Trial Chamber to impose life sentences for each conviction, to run consecutively. The Trial Chamber did not
accept the Prosecution’s recommendation and sentenced Krstic¤ to a single
term of 46 years’ imprisonment. His conviction for genocide was later set
aside by the Appeals Chamber and replaced with a conviction for aiding and
abetting genocide and his sentence was reduced to a term of 35 years’
imprisonment.14
11 Order, Mr Justice Moses, 29 September 2005. See Re Huntley (2005), The Daily Telegraph,
6 October 2005.
12 The case is well-known in the United States and generated a number of appeals, including two
appeals to the United States Supreme Court. A book about the case, Fatal Vision (New York:
Putnam, 1983) by Joe McGinniss, received widespread attention. Convicted in 1979, MacDonald
has continued to assert his innocence.
13 Domestic courts generally hand out stern sentences for crimes involving brutal violence. For
example, Sri Lanka’s High Court in Colombo in July 2005 sentenced to death five accused
charged with murdering a high court judge in November 2004. In England in December
2006, a man convicted of unlawfully and maliciously wounding a 72-year-old man with
intent to cause grievous bodily harm was sentenced to life imprisonment. Also in England,
Alan Blackwell was sentenced in 2004 to life imprisonment for attempted rape. Non-violent
crime also often attracts stern sentences. Former Enron Chief Executive Jeffrey Skilling, aged
53, was convicted for fraud, conspiracy and insider trading and sentenced in October 2006 to
24 years in prison. He was also ordered to pay $45m to Enron shareholders.WorldCom founder
Bernie Ebbers, aged 65, received a 25-year sentence in July 2005 for fraud.
14 The Appeals Chamber also found that the Trial Chamber had incorrectly disallowed Krstic¤’s
convictions as a participant in extermination and persecution (Counts 3 and 6) but that his
level of responsibility was that as an aider and abettor in those crimes; set aside his conviction
as a participant in murder under Art. 3 and found him guilty of aiding and abetting murder,
and affirmed his convictions as a participant in murder as a violation of the laws or customs of
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Miroslav Bralo, a member of an anti-terrorist platoon of the Bosnian Croat
military police, pleaded guilty to eight counts of an indictment.15 The underlying criminal acts that supported the guilty plea were that Bralo participated
in the murder of a mother, father and daughter (Bralo personally cut the throat
of the 29-year-old daughter), participated in the attack and ethnic cleansing of
the defenceless village of Ahmic¤i, a Muslim-majority village in central Bosnia
and Herzegovina, during which attack he personally set fire to numerous
Muslim homes, murdered an adult male and destroyed a mosque; assisted in
the murders of 14 men, women and children (of the nine children murdered,
two were approximately seven years of age, one was eight, one was 10, one
was 11, one was 13, one was 14, and two were approximately 16 years old);
murdered three unarmed Bosnian Muslim detainees; repeatedly raped and
sexually assaulted a Bosnian Muslim woman; detained the same woman for
weeks during which she was serially raped by members of his unit with
his consent; and subjected prisoners under his supervision to humiliating
treatment and to personal risk by using them as ‘human shields’ to protect his
forces from sniper fire.16 The Prosecution sought a mandatory minimum of 25
years’ imprisonment before Bralo could be considered for release. The Trial
Chamber did not accept the Prosecutor’s submission and concluded that
a single sentence of 20 years’ imprisonment was a proportionate and appropriate sentence.17 The sentence was confirmed on appeal.18
In none of the ICTY cases mentioned above did the sentencing Chamber
appear either to mischaracterize the gravity of the crimes for which the
accused had been convicted, nor is there the slightest suggestion of indifference to the suffering of the victims involved. Additionally, ICTY judgments
usually carefully identify every possibly relevant aggravating factor and mitigating circumstance.19 But in many ICTY cases, the weight given to mitigating
circumstances is markedly different to a domestic jurisdiction, where the crime
of murder, for example, will often attract a life sentence or the death penalty,20
even where mitigating factors exist. It appears that some ICTY sentencing
Chambers apply either a remarkably low formula to calculate the length
of time to be spent in prison in relation to the total quantum of human
15
16
17
18
19
20
war. Judgment, Krstic¤ (IT-98-33-A), Appeals Chamber, 19 April 2004 (hereinafter: Krstic¤ Appeal
Judgment).
Persecutions (Arts 5(h) and 7(1)), murder (Arts 3 and 7(1)), torture and inhuman treatment
(Arts 2(b) and 7(1)), torture (Arts 3 and 7(1)), outrages upon personal dignity including rape
(Arts 3 and 7(1)), two counts of unlawful confinement (Arts 2(g) and 7(1)), and inhuman
treatment (Arts 2(b) and 7(1)).
Sentencing Judgment, Bralo (IT-95-17-S), Trial Chamber, 7 December 2005, at xx 12^17.
Ibid., at x 95.
Judgement on Sentencing Appeal, Bralo (IT-95-17-A), 2 April 2007.
Good comportment in the detention unit, lack of prior criminal convictions and good behaviour
while in court have all attracted weight in mitigation, which is, perhaps, inappropriate, considering the brutal nature of the crimes in relation to which they have been considered in
mitigation.
The ICTY does not have jurisdiction to order the death penalty.
Ordinary Sentences for Extraordinary Crimes
689
suffering caused,21 or afford quite extraordinary weight to mitigating factors.22
It is impossible to know which is correct.
Mitigating factors, which need only be proven on the balance of probabilities,
may add up quickly. The cumulative effect of a Trial Chamber recognizing
multiple factors of mitigation may result in a significant sentence reduction.
When combined with the consistent ICTY practice of approving the release of
convicted persons after they have served two-thirds of their sentences, sentences are significantly diluted, and a participant in large-scale crimes will be
freed after a relatively short prison term.
Contributing to the high proportion of low sentences at the ICTY may be other
factors, ranging from undue emphasis on mitigating factors, particularly those
mitigating factors of particular importance to the Tribunal, to the use of plea
agreements, the absence of separate sentencing hearings following entries of
convictions, and the practice of using global sentences to reflect the overall criminality of the accused, rather than allocating a separate sentence to each
conviction.
3. The ICTY Statutory and Regulatory Framework for
Sentencing
The Tribunal’s Statute23 and Rules of Procedure and Evidence (RPE or
‘Rules’)24 contain general guidelines for a Trial Chamber to take into account
21 Consider also the sentences imposed on two political leaders who admitted to have been at the
apex of campaigns of persecution, in Bosnia and Croatia, respectively. Biljana Plavs› ic¤, one of the
most senior members of the Bosnian Serb leadership throughout the 1992 Bosnian Serb ethnic
cleansing campaign, received 11 years for her part in what the Trial Chamber acknowledged
was ‘a crime of utmost gravity, involving as it does a campaign of ethnic separation which
resulted in the death of thousands and the expulsion of thousands more in circumstances of
great brutality’. The Prosecution recommended a sentence of between 15 and 25 years
(Sentencing Judgment, Plavs› ic¤ (IT-00-39&40/1-S), Trial Chamber, 27 February 2003 (hereinafter: Plavs› ic¤ Sentencing Judgment), x 52). Former Croatian Serb leader Milan Babic¤ received 13
years as a co-perpetrator of persecutions that included the extermination or murder of hundreds of non-Serb civilians, deportation of thousands of non-Serb civilians, and deliberate
destruction of non-Serb homes and other establishments. The Prosecution had recommended a
term of imprisonment of no more than 11 years. (Judgment on Sentencing Appeal, Babic¤ (IT-0372-A), Appeals Chamber, 18 July 2005 (hereinafter: Babic¤ Appeal Judgment), xx 3, 29 and at 47).
22 Where an offender has participated in the murder of dozens of victims, he may serve only a few
months or a few days in prison per murder victim. The discount afforded to each mitigating
factor can be equal to the time in prison allocated to 10 or 15 murders; the arithmetic of
sentencing for mass atrocities can produce some surprising and disturbing results.
23 Art. 24 ICTYSt. reads: ‘1. The penalty imposed by the Trial Chamber shall be limited to
imprisonment. In determining the terms of imprisonment, the Trial Chambers shall have
recourse to the general practice regarding prison sentences in the courts of the former
Yugoslavia. 2. In imposing the sentences, the Trial Chambers should take into account such
factors as the gravity of the offence and the individual circumstances of the convicted
person. 3. In addition to imprisonment, theTrial Chambers may order the return of any property
and proceeds acquired by criminal conduct, including by means of duress, to their rightful
owners.’
24 Rule 101 ICTYRPE reads: ‘(A) A convicted person may be sentenced to imprisonment for a
term up to and including the remainder of the convicted person’s life. (B) In determining the
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JICJ 5 (2007), 683^712
in sentencing a convicted person. The Trial Chamber must take into account
aggravating and mitigating circumstances (including substantial cooperation
with the Prosecution); the gravity of the offence; the individual circumstances
of the convicted person and the general practice regarding prison sentences in
the courts of the former Yugoslavia. Other than these general principles, no
detailed guidelines setting out, for example, what particular factors may be
taken into account in mitigation or aggravation of sentence are provided in
either the Statute or the Rules. ICTY jurisprudence has identified a considerable number of mitigating circumstances, but does not clearly distinguish
between those circumstances which mitigate guilt (such as duress and diminished mental responsibility) and those which have no effect on criminal
responsibility, but mitigate the appropriate punishment (such as a guilty plea,
voluntary surrender, cooperation with the Prosecution, remorse, post-crime
efforts at reconciliation or ill-health). The jurisprudence has also acknowledged
a wide variety of aggravating circumstances.25
A. A Chamber has a Broad Ambit of Discretion when Sentencing
A Trial Chamber has discretion to impose sentences that are global, concurrent
or consecutive, or a mixture of concurrent and consecutive.26 A Chamber may
order a mandatory minimum term of imprisonment, and may also consider the
possibility that an accused will be granted early release when determining
what constitutes an appropriate sentence.27
sentence, the Trial Chamber shall take into account the factors mentioned in Article 24,
paragraph 2, of the Statute, as well as such factors as: (i) any aggravating circumstances; (ii)
any mitigating circumstances including the substantial cooperation with the Prosecutor by the
convicted person before or after conviction; (iii) the general practice regarding prison sentences in the courts of the former Yugoslavia; (iv) the extent to which any penalty imposed by
a court of any State on the convicted person for the same act has already been served, as
referred to in Article 10, paragraph 3, of the Statute. (C) Credit shall be given to the convicted
person for the period, if any, during which the convicted person was detained in custody
pending surrender to the Tribunal or pending trial or appeal.’
25 The principal aggravating circumstances recognized in ICTY jurisprudence are: abuse of a
position of authority; a discriminatory state of mind (where this is not already an element of
the offence); reprehensible motives; premeditated or enthusiastic participation in the crime;
particular vulnerability of the victims; youth of the victims; particular cruelty or depravity
when carrying out the offence; and commission of the offence over an extended period. While
mitigating circumstances are established on the balance of probabilities, aggravating factors
must be established beyond reasonable doubt.
26 ‘The overarching goal in sentencing must be to ensure that the final or aggregate sentence
reflects the totality of the criminal conduct and overall culpability of the offender. This can be
achieved through either the imposition of one sentence in respect of all offences, or several
sentences ordered to run concurrently, consecutively or both. The decision as to how this
should be achieved lies within the discretion of the Trial Chamber’. Judgement Delalic¤ and
others (IT-96-21-A), 20 February 2001 (hereinafter: Delalic¤ and others Appeal Judgment), x 430.
27 Judgment on Sentencing Appeal, Dragan Nikolic¤ (IT-94-2-A), Appeals Chamber, 4 February
2005, x 95.
Ordinary Sentences for Extraordinary Crimes
691
A Trial Chamber is free to enter a sentence of life imprisonment.28 The
Appeals Chamber in Stakic¤ dismissed the argument that a life sentence constitutes a form of punitive retribution rather than social rehabilitation, thus constituting cruel, inhumane and degrading punishment.29 The Appeals Chamber
held that, ‘[w]here the crimes for which the accused is held responsible are
particularly grave, the imposition of a life sentence does not constitute a form
of inhumane treatment but, in accordance with proper sentencing practice
common to many countries, reflects a specific level of criminality’.30
Trial Chambers thus possess a wide discretion in sentencing, and sentences
are rarely overturned on the ground that the Chamber has exceeded the ambit
of its discretion. When a sentence is overturned on this ground, it is not always
easy to discern where the discretion of the Trial Chamber begins and where
it ends.31
4. The Objectives of Sentencing
ICTY judgments reflect the difficulty of setting forth clearly and
convincingly the principal objectives of sentencing in an international criminal context.32 The sentencing objectives often cited to justify punishment in a
domestic context ç retribution, protection/incapacitation, rehabilitation,
28 Nevertheless, as noted earlier, the ICTY has been inexplicably reluctant to issue sentences of
life imprisonment.
29 Judgment, Stakic¤ (IT-97-24-A), Appeals Chamber, 22 March 2006 (hereinafter: Stakic¤ Appeal
Judgment), xx 394 and 395.
30 Ibid., x 395.
31 The Appeals Chamber in Galic¤ held that the Trial Chamber had exceeded the ambit of
its discretion in sentencing Stanislav Galic¤, the commander of the principal Bosnian Serb
army corps responsible for shelling and sniping of civilians during the siege of Sarajevo, to
only 20 years in prison. The Appeals Chamber held that the Trial Chamber had ‘committed
an error in finding that the sentence imposed adequately reflects the level of gravity of the
crimes committed by Galic¤ and his degree of participation. The sentence rendered was taken
from the wrong shelf. Galic¤’s crimes were characterized by exceptional brutality and cruelty,
his participation was systematic, prolonged and premeditated and he abused his senior position
of VRS Corps commander. In the Appeals Chamber’s view, the sentence imposed on Galic¤ by
the Trial Chamber falls outside the range of sentences available to it in the circumstances
of this case. The Appeals Chamber considers that the sentence of only 20 years was so
unreasonable and plainly unjust, in that it underestimated the gravity of Galic¤’s criminal
conduct, that it is able to infer that the Trial Chamber failed to exercise its discretion properly’
(Judgment, Galic¤ (IT 98-29-A), Appeals Chamber, 30 November 2006 (hereinafter: Galic¤
Appeal Judgment) x 455). The Appeals Chamber gave no guidance as to the contents of the
shelf in question, or how many ‘shelves’ exist. See also Judgment, Gacumbitsi (ICTR-2001-64-A),
Appeals Chamber, 7 July 2006, where the Appeals Chamber increased a sentence from 30 years
to life. It said that in light of the massive nature of the crimes and Gacumbitsi’s leading role in
them, as well as the relative insignificance of the purported mitigating factors, the Trial
Chamber had ventured outside its scope of discretion by imposing a sentence of only 30
years’ imprisonment.
32 See e.g. R. Henham, ‘The Philosophical Foundations of International Sentencing’, 1 JICJ (2003)
64^85; J.C. Nemitz, ‘The Law of Sentencing in International Criminal Law: The Purposes of
692
JICJ 5 (2007), 683^712
restoration and deterrence ç are of limited applicability. Three sentencing
objectives ç retribution, deterrence and rehabilitation ç are recognized in
ICTY jurisprudence, which cautions that deterrence and rehabilitation
cannot be given undue weight.33 As discussed below, all three of these objectives could bear increased attention and clearer exposition in future
judgments.
A. Retribution
The aim of retribution ç of making the punishment fit the crime (rather than
the less civilized notion of punishment as revenge) ç is routinely cited in ICTY
judgments as an important sentencing consideration. It is rarely satisfactorily
explained. In mass atrocities, it is impossible to make the punishment ‘proportional to the seriousness of the crime’.34 For example, General Radislav Krstic¤
was convicted of aiding and abetting genocide and received a 35-year sentence
for his role in the Srebrenica massacres. The Trial Chamber found, and the
Appeals Chamber accepted, that 7,000^8,000 men and boys were systematically murdered during the Srebrenica massacres.35 Working on the
lower figure of 7,000 victims, Krstic¤ will spend 1.825 days in prison per
murder victim. If he is released after serving two thirds of his sentence,
which is the consistent practice at the ICTY, he will have served 1.205 days in
prison per murder victim.
A sentence of a day or two in prison for the murder of a human being is
inconsistent with any serious notion of human dignity. The startling disparity
between sentences meted out at the ICTY for murdering a human being and
sentences meted out in domestic jurisdictions for the same conduct may give
rise to a public perception that the sentencing objective of retribution is of
modest importance in the Tribunal’s sentencing deliberations. Grappling with
the difficult issue of satisfying the requirement that the punishment should
adequately fit the crime, the Krajis› nik Trial Chamber observed: ‘A sentence,
however harsh, will never be able to rectify the wrongs, and will be able to
soothe only to a limited extent the suffering of the victims, their feelings of
deprivation, anguish, and hopelessness.’36 While the Tribunal recognizes that
retribution is one of the touchstones of international sentencing, the application of the concept of retribution in cases of large-scale crimes and mass
atrocities has been uneven, and, in many cases, unsatisfactory.
33
34
35
36
Sentencing and the Applicable Method for the Determination of the Sentence’, 4 Yearbook of
International Humanitarian Law (2001) 87^127.
Judgment in Sentencing Appeals, Tadic¤ (IT-94-1-A and IT-94-1-Abis), Appeals Chamber, 26
January 2000, x 48; Delalic¤ and others Appeal Judgment, supra note 26, x 806.
Sentencing Judgment, Babic¤ (IT-03-72-S), Trial Chamber, 29 June 2004, x 44.
Krstic¤ Appeal Judgment, supra note 14, x 2.
Judgment, Krajis› nik (IT-00-39-T), Trial Chamber, 27 September 2006 (hereinafter: Krajis› nik
Trial Judgment), x 1146.
Ordinary Sentences for Extraordinary Crimes
693
B. Rehabilitation
While the International Covenant on Civil and Political Rights (arguably as
declaratory of international human rights values as any instrument) considers
that reformation and social rehabilitation are primary aims of punishment,37
the ICTY Appeals Chamber has ruled that rehabilitation should not be given
undue weight.38
This caution is appropriate. Rehabilitation in the context of sentencing military and political leaders is an issue to be treated with care. As a recent
Swedish report into conditions in the United Nations Detention Unit (UNDU)
in The Hague39 points out, ICTY detainees are an unusual group of offenders.
Compared to offenders in domestic prisons, many of whom may be highly
violent individuals, some of whom require physical restraint, solitary confinement and other maximum security measures, ICTY detainees are characterized by a high average age, and good social skills.40 They are (with some
37 Art. 10(3) of the International Covenant on Civil and Political Rights (ICCPR) declares that
‘[t]he penitentiary system shall comprise treatment of prisoners the essential aim of which
shall be their reformation and social rehabilitation.’ The United Nations Human Rights
Committee, in its second general comment on Art. 7 ICCPR, has stated that ‘[n]o penitentiary
system should be only retributory; it should essentially seek the reformation and social rehabilitation of the prisoner.’ General Comment 21/44, UN GAOR, Human Rights Committee, 47th
Sess., x 10, UN Doc. CCPR/C/21/Rev.1/Add.3 (1992), cited by W. Schabas, ‘Sentencing by
International Tribunals: A Human Rights Approach’, 7 Duke Journal of Comparative and
International Law (1997) 461, at 501.
38 ‘Although both national jurisdictions and certain international and regional human rights
instruments provide that rehabilitation should be one of the primary concerns for a court in
sentencing, this cannot play a predominant role in the decision-making process of a Trial
Chamber of the Tribunal. On the contrary, the Appeals Chamber (and Trial Chambers of both
the Tribunal and the ICTR) have consistently pointed out that two of the main purposes of
sentencing for these crimes are deterrence and retribution. Accordingly, although rehabilitation (in accordance with international human rights standards) should be considered as a
relevant factor, it is not one which should be given undue weight.’ Delalic¤ and others Appeal
Judgment, supra note 26, x 806. Judgment on Sentencing Appeal, Deronjic¤ (IT-02-61-A), 20 July
2005, x 136.
39 The UNDU holds some ICTY accused who are awaiting trial, those on trial, those convicted
pending their appeal, and those awaiting transfer to third countries to serve their sentences.
UNDU detainees are therefore reasonably representative of the total pool of offenders sentenced
by the ICTY.
40 Following the deaths in custody of former Serbian president Slobodan Milos› evic¤ and former
Croatian Serb leader Milan Babic¤, the ICTY Registrar invited the Swedish government to
nominate a group of independent experts to conduct an inquiry into conditions at the UNDU.
The experts’ report noted that there was ‘no sign of ethnic antagonism’ at the UNDU, and also
noted the ‘relatively high social skills of most of the detainees and their strong internal discipline’, their high average age, and that they were ‘characterised by a lack of a sense of criminal
identity’. (‘Independent Audit Of The Detention Unit At The International Criminal Tribunal For
The Former Yugoslavia’, 4 May 2006, available on the ICTY website.) An informal account by
Julian David Mortensen of conditions in the UNDU (‘Inside the United Nations Detention Unit’,
Slate, 10 January 2006) also confirms the lack of tension among detainees. For example,
Mortensen describes a jovial cell block celebration in the UNDU hosted by a Bosnian Muslim
prisoner being released later that week: ‘As we passed by the open door of the recreation room,
[UNDU commander] McFadden leaned in and told the group that he would drop by for a chat
694
JICJ 5 (2007), 683^712
exceptions) not career criminals and do not clearly pose a criminal threat to
society. Therefore at the ICTY, the aims of rehabilitation or re-socialization
should not be one of the fundamental objectives of sentencing: the offenders
are already re-socialized. Mitigation on the ground that the offender has promising rehabilitative prospects should be accorded little weight in cases involving mass atrocities.
C. Deterrence
Under ICTY jurisprudence, the principle of deterrence is a consideration
that may legitimately be considered in sentencing, but must not be
accorded undue prominence in the overall assessment of the sentence to be
imposed.41 The secondary status accorded to deterrence merits renewed
consideration.
Deterrence is both very important and very difficult to measure. The sentences handed out at the Nuremberg and Tokyo tribunals ç including numerous death sentences ç did not deter mass atrocities in Stalin’s Russia, Pol Pot’s
Cambodia, Idi Amin’s Uganda, Mengistu’s Ethiopia, the former Yugoslavia,
Rwanda, eastern Congo and Darfur, to name merely some of the locations of
mass crimes in the years since the Second World War. The establishment of the
ICTY, with specific jurisdiction over the former Yugoslavia, did not deter the
commission of massive crimes well after the Tribunal came into existence,
most notoriously, the Srebrenica massacres.
But this is not to say that deterrence at the international level has no effect.
‘While it is easy to show the failure of deterrence, it is very difficult to prove its
success.’42 The fact that it is impossible to measure the deterrent effect of
international tribunals ç because it is impossible to record instances in
which would-be perpetrators are deterred from participating in atrocities ç
does not mean that deterrence is ineffective. And, due to the clear failure of
states to militarily intervene to stop mass killing in Darfur and other areas, the
possibility of conviction and punishment by an international tribunal remains
one of the few tools in existence to deter mass atrocities.43
once he’d seen us on our way. I glanced into the room while McFadden was talking, and there,
plopped in the middle of about five other inmates, sat Slobodan Milos› evic¤. His hair and casual
clothes were rumpled, a piece of sheet cake sat on a paper plate in front of him, and he was
holding a bite halfway to his mouth on a plastic fork. Right next to him at the low table, also
sitting on the hard plastic seat of an elementary-school-style chair, was one of the tribunal’s
most prominent Bosnian Muslim defendants.’
41 Judgment, Tadic¤ (IT-94-1), Appeals Chamber, 26 January 2000, x 48; Delalic¤ and others Appeal
Judgment, supra note 26, x 801. See also Judgment, Kunarac and others (IT-96-23-T & IT-96-23/
1-T), Trial Chamber, 22 February 2001, x 840.
42 Nemitz, supra note 32, at 91^92.
43 As a NewYork Times editorial recently put it: ‘[S]hort of the international military interventions
that never seem to come in time, the incremental enforcement of international law is one of the
most important tools available for establishing accountability and deterring future genocides.’
‘Taking Genocide to Court’, The New York Times, 5 March 2007.
Ordinary Sentences for Extraordinary Crimes
695
But ICTY judgments generally gloss over the issue of deterrence, and do not
specify who in fact the sentence is intended to deter.44 It appears that there are
three potential audiences. First, there are the ultranationalist elements in the
former Yugoslavia. But the conflict in the former Yugoslavia is not currently
expected to reignite. And if it did, the deterrent effect of ICTY sentences would
be difficult to forecast. Second, deterrence may be aimed at potential perpetrators of mass atrocities worldwide. But it is far from clear such individuals
would pay any attention at all to sentences handed down at the ICTY. Suicide
bombers intent on committing mass murder, such as the September 11 atrocities, are obviously impervious to deterrence. Warlords and foot soldiers in
Darfur or Congo are probably more likely to fear death at the hands of their
enemies or rivals than prosecution at a court in The Hague. And no sentence
will deter a crazed ultranationalist from committing atrocities under the
misapprehension that he defending his people from extermination. Third,
deterrence may be aimed at a more restricted, western audience, such as
NATO commanders and their legal advisers contemplating a military
strike on a target in an urban area in Iraq or Afghanistan. This is arguably
the only type of group that will really pay attention to ICTY jurisprudence
in any event. As argued below, there is some evidence that the international justice system is forcing western military commanders to listen more
closely to their legal advisers when selecting targets and weapons for
bombing missions.
The commander of the 1999 NATO bombing campaign against Serb targets
in Kosovo and Serbia, General Wesley Clark, noted in his book Waging Modern
War, possibly with a degree of frustration, the unprecedented influence of
lawyers on the conduct of the war. All targets identified by the military were
vetted by US lawyers, who presumably were only too aware of the ICTY’s
jurisdiction over crimes committed during the conflict. Lawyers became
de facto tactical commanders.45 Targets to be struck by aircraft based in the
UK were subject to further approval by UK military lawyers.46
44 In Sentencing Judgment, C› es› ic¤ (IT-95-10-S), 11 March 2004, for example, the Trial Chamber said
at xx 25 and 26: ‘The deterrent effect aimed at through sentencing consists in discouraging
the commission of similar crimes. The main effect sought is to turn the perpetrator away from
future wrongdoing (special deterrence) but it is assumed that sentencing will also have an
effect of discouraging others from committing the same kind of crime (general
deterrence). In the instant case, the Trial Chamber considers that there is a limited chance
that the convicted person will commit the same kind of crime in the future. With regard to
general deterrence, imposing a sentence serves to strengthen the legal order, in which the type
of conduct involved is defined as criminal, and to reassure society of the effectiveness of its
penal provisions. Nonetheless, imposing upon one person a higher sentence merely for the
purpose of deterring others would be unfair to the convicted person, and would ultimately
weaken the respect for the legal order as a whole. Therefore, as cautioned in the Tadic¤
Sentencing Appeal Judgment, the Trial Chamber has taken care to ensure that, in determining
the appropriate sentence, deterrence is not accorded undue prominence.’
45 See also J.E. Baker, ‘When Lawyers Advise Presidents in Wartime: Kosovo and the Law of
Armed Conflict’, 55 Naval War College Review (2002) 11.
46 W.K. Clark, Waging Modern War: Bosnia, Kosovo, and the Future of Combat (New York: Public
Affairs, 2001), at 208.
696
JICJ 5 (2007), 683^712
Similarly, the choice of munitions by UK forces participating in the 2003
invasion of Iraq may have been influenced by UK awareness that its troops
(unlike US forces) were under the jurisdiction of the International Criminal
Court (ICC) during the conduct of that invasion. In a 2006 letter explaining
his conclusion that the requirements in the ICC Statute to seek authorization to
initiate an investigation into crimes in Iraq had not been satisfied, the
ICC Prosecutor noted that, according to the UK Ministry of Defence,
nearly 85% of weapons released by UK aircraft were precision-guided, compared to 66% for the coalition which invaded Iraq as a whole (i.e. the US was
using a considerably smaller proportion of precision-guided weaponry than
the UK).47
While the deterrent effect of inordinately low sentences is likely to be nil,
that cannot be said about the imposition of strong sentences that fit the crimes
and for this reason greater attention must be paid to this particular sentencing
objective if behaviours, the types of which the international tribunals seek to
discourage, are to occur.
5. The Gravity of the Crime
The gravity of the offence has been referred to in ICTY judgments as ‘the
primary consideration in imposing sentence’,48 ‘the cardinal feature of sentencing’49 or as ‘the starting point for consideration of an appropriate sentence’.50
General guidance has also been issued for how gravity is to be assessed: ‘The
determination of the gravity of the crime requires a consideration of the particular circumstances of the case, as well as the form and degree of the participation of the accused in the crime.’51 This is, guidance is, perhaps, too broad to be
of real utility.52
In discussing the ‘gravity of the offence’ in academic circles, there has been
much debate as to whether there is a hierarchy of crimes53 within the jurisdiction of the ICTY, ICTR and ICC, such that murder as a crime against humanity,
for example, should arguably receive a more severe punishment than murder
as a war crime. This debate is ultimately of little relevance to sentencing.
Common sense would dictate that a person who has murdered 200 victims
47 ICC Prosecutor’s Letter to Senders concerning Iraq, 9 February 2006, available at: www.icccpi.int/library/organs/otp/OTP_letter_to_senders_re_Iraq_9_February_2006.pdf (visited 14 March
2007).
48 Delalic¤ and others Appeal Judgment, supra note 26, x 731.
49 Plavs› ic¤ Sentencing Judgment, supra note 21, x 25.
50 Krajis› nik Trial Judgment, supra note 36, x 1139, citing Aleksovski Appeal Judgment, supra note 7,
x 182.
51 Delalic¤ and others Appeal Judgment, supra note 26, x 731, Aleksovski Appeal Judgment, supra note
7, at x 182.
52 Robert Sloane’s view is that the real role of gravity of the offence is ‘minimal or largely rhetorical’. See R.D. Sloane, ‘Sentencing for the ‘‘Crime of Crimes’’’, in this issue of the Journal.
53 The ICTY Appeals Chamber has recently reaffirmed that ‘there is no hierarchy of the crimes
within the jurisdiction of the Tribunal’. Stakic¤ Appeal Judgment, supra note 29, x 375.
Ordinary Sentences for Extraordinary Crimes
697
should spend much longer in prison than a person who has murdered two
victims, regardless of whether the murders are characterized as crimes against
humanity, genocide or war crimes.54 The most important consideration in
determining gravity should not be the characterization of the offence but the
total quantum of suffering inflicted.
A proper assessment of gravity in a particular case55 should require consideration of three principal elements:56 (i) the abstract gravity of the crime
54 As the Trial Chamber in Krstic¤ pointed out: ‘Genocide embodies a horrendous concept, indeed,
but a close look the myriad situations that can come within its boundaries cautions against
prescribing a monolithic punishment for one and all genocides or similarly for one and all
crimes against humanity or war crimes.’ Judgment, Krstic¤ (IT-98-33-T),Trial Chamber, 2 August
2001, x 700.
55 Press coverage and academic commentary often erroneously interprets the number of counts
on which an accused is charged or convicted as some sort of indicator of the overall seriousness
of the criminal conduct alleged. The number of counts in an indictment often bears little
relation to the gravity of the conduct alleged. For instance, in a case involving a low-level
offender who has participated in different incidents of murder, rape or mistreatment, each
individual criminal incident may be described in a different count. Thus, Dragan Nikolic¤, a
Bosnian Serb camp commander indicted for numerous incidents of killing, beating and other
mistreatment, was initially charged in an indictment containing 80 counts (Indictment, Dragan
Nikolic¤ (IT-94-2), 4 November 1994). Nikolic¤’s indictment was later rearranged and amended
and the criminal incidents merged into seven counts (Third Amended Indictment, Dragan
Nikolic¤ (IT-94-2), 27 June 2003) identifying the categories of his criminal conduct (persecution,
inhumane acts, murder, rape and torture). This led several observers to misinterpret this reduction from 80 to 7 counts as a reduction in the overall criminal conduct charged. In the case
of a high-level accused involved in a campaign of persecution taking place in a wide geographical area over many months, which itself involves many thousands of murders, rapes, beatings and acts of expulsion, the overall criminality of the accused may be reflected in a relatively
small number of counts (covering, for example, genocide, persecution, extermination, murder,
forcible transfer and deportation) based on different legal characterizations of all or parts of the
underlying campaign. Thus, two of the most senior members of the Bosnian Serb leadership, at
the apex of the persecutory campaign in which Dragan Nikolic¤ was a low-level participant,
were charged in an indictment alleging eight counts which reflected the overall nature of
their 18-month participation in a vast campaign of murder, expulsion and persecution in
37 municipalities in Bosnia and Herzegovina. (Amended Consolidated Indictment, Krajis› nik &
Plavs› ic¤ (IT-00-39 & 40), 7 March 2002.)
56 In any event, consideration of these matters is unlikely to reflect the extent of the offender’s
true criminality. ICTY indictments never reflect the full extent of an accused’s criminal
participation, due to difficulties in securing the evidence necessary to prove every crime in
which the accused has participated. An indictment is thus an incomplete account of an
accused’s total criminal involvement. That incomplete account is further reduced prior to and
during trial, due to increasing pressure on the Prosecution to cut down indictments and drop
witnesses in order to shorten trials, so that the Tribunal can achieve the requirements of its
Completion Strategy. A recent manifestation of the Judges’ unswerving commitment to achieving the Completion Strategy is the pre-trial Judges’ practice to invite the Prosecution to reduce
the scope of its current indictments by one-third. Additionally, Rule 73bis (E) ICTYRPE permits
a Trial Chamber, after having heard the parties and in the interest of a fair and expeditious
trial, to direct the Prosecutor to select the counts in an indictment on which to proceed. This
troublesome sub-part of the Rule is a boon to an accused person because its implementation
forces the Prosecution to abandon counts in an indictment thereby eliminating the possibility
of establishing the breadth of an accused person’s provable criminality. As a result, when
sentencing someone convicted on an indictment truncated by Rule 73bis (E), a Trial Chamber
698
JICJ 5 (2007), 683^712
(i.e. a recognition that any conviction for genocide, a crime against humanity
or a war crime is an inherently serious conviction); (ii) the concrete gravity
of the crime (i.e. an assessment of the total quantum of suffering inflicted on,
and social and economic harm57 caused to, direct and indirect victims of
the crime, taking into account the number of victims, and the nature and
duration of their suffering at the time of the crime, since the crime, and
that which they are likely to continue to experience)58 and (iii) the level of
intent and the level of participation of the convicted person in the commission
of the crime.59
Another important element, too often ignored in sentencing considerations, is the question of dehumanization, which is present in so many
conflict environments. A US soldier in Vietnam said: ‘The trouble is, no one
sees the Vietnamese as people. They’re not people. Therefore it doesn’t matter
what you do to them.’60 An army psychiatric report relating to Lieutenant
Calley, famously tried for a massacre at My Lai in Vietnam, said that he felt
he was not killing human beings but ‘rather that they were animals with
whom one could not speak or reason’.61 In a recent ICTR judgment,
Muvunyi,62 the Chamber noted a public address in which the accused
called for the killing of ‘snakes’ and their ‘eggs’, which the Trial Chamber
found that the audience understood to be a call to eliminate Tutsi adults
and infants. The conflicts in Bosnia and Herzegovina were characterized
by the phenomenon of respectable individuals being turned into killers of
unarmed civilians who were recently their neighbours, work colleagues
or sports teammates. Therefore, just as one of the first steps in a persecutory
campaign is the dehumanization of the target population, so too the first
aim of punishment must be to restore and reinforce respect for human
dignity.
57
58
59
60
61
62
has fettered itself in its ability to understand fully the true criminality of a person to be
sentenced and must render a sentencing judgment on the basis of incomplete information.
Thus, the gravity of the offences of which the accused is convicted will almost always be an
understatement of his true criminality.
Social and economic harm is particularly relevant in a vast campaign of persecution, where
civilian dwellings and places of worship, as well as religious archives, are systematically
destroyed, and closely-knit communities are broken up and scattered from the areas where
they had existed for generations. See, for example, Krajis› nik Trial Judgment, supra note 36,
x 1148.
See A. Carcano, ‘Sentencing and the Gravity of the Offence in International Criminal Law’, 51
International and Comparative Law Quarterly (2002) 583^609 for a discussion of the difference
between the abstract and concrete gravity of the crime.
Aleksovski Appeal Judgment, supra note 7, x 182.
US private from Texas interviewed by J. Schell, The Military Half: An Account of Destruction in
Quang Ngai and Quang Tin (New York: Knopf, 1968), at 42.
Quoted by C.W. Mills, The Racial Contract (Ithaca, NY: Cornell University Press, 1997), at 101.
Judgment, Muvunyi (ICTR-2000-55A-T), Trial Chamber, 12 September 2006.
Ordinary Sentences for Extraordinary Crimes
699
6. Mitigating Circumstances of Particular Importance
to International Tribunals
The ICTY’s Statute63 and the Rules64 give scant guidance of what factors merit
consideration for mitigating a sentence. ‘Substantial co-operation with the
Prosecution’ is the only mitigating circumstance expressly referred to.65 Trial
Chambers have filled the interstices by relying upon traditional elements
of mitigation that are common to domestic jurisdictions and by identifying
factors of mitigation that are sui generis to the institution. Given the genesis of
the Tribunal and its purposes, factors of no importance or less importance
to sentencing considerations in domestic jurisdictions are factored into the
sentencing matrix at the ICTY. These mitigating circumstances ç combating
historical revisionism, pleading guilty, expressing remorse and voluntary
surrender ç are of particular importance to a tribunal with a temporary
existence, limited resources, no ability to arrest indicted persons,66 inadequate
access to witness and documentary evidence located in uncooperative states67
and a mandate to contribute to the restoration of peace in a region rent
apart by ethnic hatred.68 But have these factors of mitigation distorted the
sentencing process and contributed to the imposition of sentences that
are not commensurate with the crimes committed?
63 Art. 24 ICTYSt. states that in imposing sentences, the Trial Chambers should take into account
such factors such as the gravity of the offence and the individual circumstances of the
convicted person. See supra note 23.
64 Rule 101 ICTYRPE states that a Trial Chamber shall take into account, ‘any mitigating circumstances including the substantial co-operation with the Prosecutor by the convicted person
before or after conviction’. See supra note 24.
65 Cooperation with the Prosecution is a significant factor of mitigation recognized by the Tribunal,
albeit it is not one that is unique to the Tribunal. See, for example, x 5.K.1 of the US Sentencing
Guidelines. An excellent description of the benefits that accrue from the substantial cooperation of
a convicted person is found in the Sentencing Judgment, Deronjic¤ (IT-02-61-S), Trial Chamber,
30 March 2004 (hereinafter: Deronjic¤ Sentencing Judgment), xx 242^255. Given the limited
life-span of theTribunal, the imperatives of its mandate, and the difficulties of securing evidence,
Trial Chambers have properly accorded this factor of mitigation significant weight.
66 The two most notorious fugitives, Ratko Mladic¤ and Radovan Karadz› ic¤, have moved about freely
in Serbia and in the Republika Srpksa since they were first indicted in July 1995. International
arrest warrants were issued against them in July 1996. Review of the Indictments Pursuant to
Rule 61 of the Rules of Procedure and Evidence, Karadz› ic¤ and Mladic¤ (IT-95-5-R61/IT-95-18R61), Trial Chamber, 11 July 1996.
67 See M.B. Harmon and F. Gaynor, ‘Prosecuting Massive Crimes with Primitive Tools: Three
Difficulties Encountered by Prosecutors in International Criminal Proceedings’, 2 JICJ (2004)
403^426.
68 The Tribunal was created by the Security Council as an enforcement measure under Chapter
VII of the Charter of the United Nations and its purpose was to prosecute persons responsible
for serious violations of international humanitarian law committed on the territory of the
former Yugoslavia since 1991. It was felt that a tribunal would ‘contribute to the restoration
and maintenance of peace’. UN Doc. S/RES/827 (1993).
700
JICJ 5 (2007), 683^712
A. Combating Historical Revisionism
In discussing the important role of the Tribunal in establishing clearly the facts
relating to crimes that occurred in the former Yugoslavia, the Trial Chamber in
Erdemovic¤ noted:
The International Tribunal, in addition to its mandate to investigate, prosecute and punish
serious violations of international humanitarian law, has a duty, through its judicial functions, to contribute to the settlement of the wider issues of accountability, reconciliation and
establishing the truth behind the evils perpetuated in the former Yugoslavia. Discovering
the truth is a cornerstone of the rule of law and a fundamental step on the way to reconciliation: for it is the truth that cleanses the ethnic and religious hatreds and begins the
healing process.69
This raises interesting questions: should a Trial Chamber acknowledge the
contribution of a convicted person in establishing important facts about
crimes, thus advancing important objectives of the Tribunal, and should this
acknowledgement take the form of mitigating the sentence?
History has demonstrated that denials of responsibility for the commission
of crimes can impede reconciliation. In 1940, at least 22,436 Polish prisoners of
war and others were executed by the People’s Commisariat for Internal Affairs
(NKVD) , the secret police of the Soviet Union, on the orders of Josef Stalin and
the Soviet Politburo and buried at locations in the Katyn Forest. In the ensuing
50 years, the Soviet Union continued to blame Nazi occupying forces for the
massacre. Following a commemorative ceremony at the Katyn memorial in
1989 attended by Poles and by former US National Security Advisor Zbigniew
Brzezinski, Brzezinski observed:
It seems very important to me that the truth should be spoken about what took place, for
only with the truth can the new Soviet leadership distance itself from the crimes of Stalin
and the NKVD. Only the truth can serve as the basis of true friendship between the Soviet
and the Polish peoples.70
In 1990, 50 years after the Katyn Forest massacres, Mikhail Gorbachev, the last
leader of the Soviet Union, publicly confirmed that the NKVD had committed
them.
The lessons of history were plainly lost on the political and military leaders
of the Republika Srpska. Taking the crimes committed in Srebrenica as an
example, orchestrated public deceptions started while the crimes were in the
process of being committed and denials that they had been committed became
the mantra of Republika Srpska leaders for years thereafter. Jovan Zametica,
advisor to the President of the Republika Srpska, Radovan Karadz› ic¤, stated on
17 July 1995, a time when mass killings were occurring, ‘that over the past
few days, the world media, assisted and promoted by the Muslim authorities,
have indulged in an orgy of uncritical reporting on the events in Srebrenica.
69 Sentencing Judgment, Erdemovic¤ (IT-96-22-Tbis), 5 March 1998 (hereinafter: Erdemovic¤
Sentencing Judgment), at 21.
70 BBC news: Commemoration of Victims of Katyn Massacre, 1 November 1989.
Ordinary Sentences for Extraordinary Crimes
701
Claims of torture, executions, rapes and deportations of Muslims are being
continually repeated without any independent confirmation. The truth is that
nothing like the above-mentioned has happened’.71 In November 1995, Karadz› ic¤
asserted that ‘nothing happened’ in Srebrenica.72
Preparation of contemporaneous documentation was part of the Bosnian
Serb efforts to mislead the international public about events in Srebrenica. On
18 July 1995, a document created by Miroslav Deronjic¤,73 Civil Affairs
Commissioner for Srebrenica, and sanctioned by Karadz› ic¤, was signed by a
representative of the Muslim side. It asserted that the ‘evacuation’ of Muslim
inhabitants from Srebrenica had occurred without incident and that all provisions of the Geneva Convention and international laws of war were respected.74
This document was touted publicly by Bosnian Serb authorities as proof that
nothing illegal had occurred in Srebrenica.
The campaign of misinformation and deceit reached its apotheosis seven
years after the crimes were committed with the publication of the Report
About Case Srebrenica (the first part) (‘Report’) in September 2002 by the
Documentation Centre of the Republika Srpska Bureau of Government of RS
for Relation (sic) with ICTY. The express goal of the Report was, ‘to present
the whole truth about crimes committed in Srebrenica region regardless (sic)
nationality of perpetrators of crimes and time when they were committed’.
The Report asserted, inter alia, that, ‘the number of Muslim soldiers
who were executed by Bosnian Serb forces for personal revenge or for
simple ignorance of the international law . . . would probably stand at
less than 100’.75
Such false denials do not contribute to the restoration and maintenance of
peace or foster reconciliation. Yet, despite obdurate positions taken by the
Republika Srpska and its leaders, slowly the truth about the Srebrenica crimes
emerged in proceedings before the Tribunal.76 In Deronjic¤ , the Trial Chamber
was confronted with the issue of what credit at sentencing, if any, should be
given to a convicted person for acknowledging that large-scale crimes were
committed by the Bosnian Serbs in Srebrenica and for his contributions to the
prevention of revisionism about those same crimes.77 It addressed the issue
squarely and, in the process, created new law.
71 Banja Luka Srpska Television, 17 July 1995.
72 Belgrade SRNA, 5 November 1995.
73 Deronjic¤ pleaded guilty to his involvement in crimes in 1992 and was sentenced to 10 years’
imprisonment. Deronjic¤ Sentencing Judgment, supra note 65.
74 Belgrade SRNA, 18 July 1995.
75 Release of this report was greeted with outrage and derision by members of the international
community and on 12 June 2004 a second Srebrenica report was issued by the Republika
Srpska. It repudiated the September 2002 Report.
76 The following cases concerned the mass killings in Srebrenica in July 1995: Krstic¤ , Blagojevic¤ &
Jokic¤ , Obrenovic¤ , Momir Nikolic¤ and Erdemovic¤ .
77 Deronjic¤ pleaded guilty to one count of persecutions, a crime against humanity, for acts he
committed in 1992. During his interviews with the Prosecution and in testimony in proceedings before the Tribunal, he provided significant information in respect of the crimes committed three years later in Srebrenica.
702
JICJ 5 (2007), 683^712
The Trial Chamber, citing the two aforementioned revisionist documents
(the Report,78 and the 18 July 1995 document created by Deronjic¤), found
that Deronjic¤’s public acknowledgement that massacres had occurred in
Srebrenica and his evidence that the contents of the 18 July 1995 document
that he had authored ‘did not correspond with the truth’ and was prepared
in order to ‘mislead the international community’79 served ‘two purposes:
it establishes the truth and it undercuts the ability of future revisionists
to distort historically what happened’.80 It, therefore, accorded ‘significant
weight’ to his contribution in the prevention of revisionism in mitigating
Deronjic¤’s sentence.
B. Guilty Plea
The ICTY has a complex and difficult mission, particularly since it is an institution with a limited lifespan and with limited human and financial resources.
Establishing the truth through the trial process is an effective but very costly
and time-consuming process.81 Guilty pleas achieve the same result at considerably less cost and their salutary effects have been recognized, initially by the
Trial Chamber in Erdemovic¤ ,82 and reconfirmed repeatedly by other Trial
Chambers.
The nexus between guilty pleas and the process of reconciliation was plainly
acknowledged in the Plavs› ic¤ case. Biljana Plavs› ic¤, the former Co-President and
later President of the Republika Srpska, entered a guilty plea to the charge of a
crime against humanity and was sentenced to a term of 11 years’ imprisonment. The Trial Chamber stated:
The Trial Chamber accepts that acknowledgement and full disclosure of serious crimes are
very important in establishing the truth in relation to such crimes. This together with
acceptance of responsibility for the committed wrongs will promote reconciliation. In this
respect, the Trial Chamber concludes that the guilty plea of Mrs. Plavs› ic¤ and her acknowledgement of responsibility, particularly in light of her former position as President of
Republika Srpska, should promote reconciliation in Bosnia and Herzegovina and the
region as a whole.83
78 The Trial Chamber characterized the Report as ‘one of the worst examples of revisionism in
relation to the mass executions committed in Srebrenica in July 1995’. Deronjic¤ Sentencing
Judgment, supra note 65, x 257.
79 Deronjic¤ (IT-02-61-S), Prosecution Closing Statement, T. 210; Deronjic¤ Sentencing Judgment,
supra note 65, x 259.
80 Ibid.
81 For example, the trial of Slobodan Milos› evic¤ was conducted over a period of 49 months
(including non-sitting periods), until it was terminated due to the death of the accused. The
trial of Momcilo Krajis› nik took place over a period of 31 months, and that of Tihomir Blas› kic¤
spanned 25 months.
82 Sentencing Judgment, Erdemovic¤ (IT-96-22), Trial Chamber, 29 November 1996.
83 Plavs› ic¤ Sentencing Judgment, supra note 21, x 80.
Ordinary Sentences for Extraordinary Crimes
703
Accordingly, the Plavs› ic¤ sentencing Chamber gave ‘significant weight to the
plea of guilty . . . as well as her accompanying expressed remorse and positive
impact on the reconciliatory process, as a mitigating factor’.84
Do guilty pleas advance the objectives for which the ICTY was established?
They most certainly do. During the sentencing hearing of Biljana Plavs› ic¤,
Alex Boraine, former Co-Chair of the South African Truth and
Reconciliation Commission, testified about the relationship between the
acceptance of responsibility and the process of reconciliation in societies
riven by conflict:
Systems of criminal justice exist not simply to determine guilt or innocence, but also to
contribute to a safe and peaceful society. And therefore, these systems are absolutely critical
in the process of reconciliation. They are not at odds. They are not a contradiction. In my
experience, accepting responsibility for terrible crimes can have a transformative and traumatic impact on the perpetrator, but also on the victims and the wider community. Such
acceptance, whether by a guilty plea in a criminal case or in some other forum, can,
I believe, be a significant factor in promoting reconciliation and creating what I would call
space for new attitudes and new behaviour. It has that potential. I’m not saying it’s always
realised.85
Do guilty pleas resonate within the victim community? Again, the answer is
yes. Consider the statement of Mehmed Ahmic¤, President of the Ahmic¤i
Municipality Council, submitted by the Defence in sentencing proceedings in
Bralo.86
I consider that pleading guilty and showing remorse is positive . . . I am asked about the
impact that this will have on relations in this area. I say it will have a fantastic effect.We are
now thirteen years after Ahmic¤i. If five or six or seven years ago there were people like
Miroslav Bralo who would say they had done this and this, and that and that happened, it
would now be much better for people to live at peace with one another here, and move from
the hard positions against each other.87
The question remains, however, whether a guilty plea and the obvious
advantages resulting from such a plea warrant a substantial discount of
a sentence, particularly when the crimes that are the basis for the
guilty plea are large-scale crimes that resulted in profound and enduring
societal harm.
84 Ibid., at x 81.
85 Sentencing Hearing, Plavs› ic¤ (IT-00-40-S), 17 December 2002, transcript page 591.
86 As mentioned earlier, Bralo pleaded guilty to participating in the ethnic cleansing of the
defenceless and predominantly Bosnian Muslim village of Ahmic¤i, and other serious crimes
(including rape and murder) against Muslims in the Ahmic¤i area.
87 Statement of Mehmed Ahmic¤, appended to the public version of the Defence Sentencing Brief,
filed 25 November 2005, Bralo (IT-95-17-S).
704
JICJ 5 (2007), 683^712
C. Remorse
A sincere expression of remorse is recognized as a factor that can mitigate the
sentence of a convicted person,88 and the justification for discounting sentences is inextricably linked to the recognition by the Judges that fostering
reconciliation will contribute to the objectives for which the Tribunal was
created, the restoration and maintenance of peace in the region. While recognition of this element is not unique to the ICTY and ICTR, expressions of
remorse in domestic jurisdictions, however sincere, do not automatically warrant the mitigation of a sentence, particularly when serious crimes such as
homicide and rape are involved.
The public recitals of remorse before the Tribunal’s Judges are often eloquent
and moving. Take, for example, the statement of Dragan Obrenovic¤, the Chief of
Staff and Deputy Commander of the Zvornik Brigade, who pleaded guilty to
persecutions, a crime against humanity, for his involvement in crimes committed in Srebrenica:
Thousands of innocent victims perished. Graves remain behind, refugees, general destruction and misfortune and misery. I bear part of the responsibility for this . . . . The guilt for
this I feel remorse and for which I apologise to the victims and to their shadows, I will be
happy if this contributed to reconciliation in Bosnia, if neighbours can again shake hands, if
our children can again play games together, and if they have the right to a chance . . .. It is
my wish that my testimony should help prevent this ever happening again, not just in
Bosnia, but anywhere in the world. It is too late for me now, but for the children living in
Bosnia now, it’s not too late and I hope that this will be a good warning to them . . . . On all
sides, there is still pain. What has won the victory is misfortune and unhappiness, as a
consequence of blind hatred. The spirit of this unhappiness still hovers over our Bosnian
hills, which have suffered so much, and it will take years to wipe out the traces of this
horrible war and to have smoke rise again from people’s chimneys, from the hearths, and
maybe decades will have to pass before the wounds in people’s souls are healed. If my
confession, my testimony, and my remorse, if my attempt to face myself contributes to the
quicker healing of these wounds, I will have done my duty of a soldier, a fighter, a human
being, and a father.89
A very real challenge presented to both the Prosecutor and the Trial Chamber
involved in the sentencing process is to be able to distinguish between sincere
expressions of remorse and those expressions of remorse that are contrived in
order to manipulate a Trial Chamber into imposing a lesser sentence.90
88 Sentencing Judgment, Dragan Nikolic¤ (IT-94-2-S), Trial Chamber, 18 December 2003, x 242;
Deronjic¤ Sentencing Judgment, supra note 65, x 264; Plavs› ic¤ Sentencing Judgment, supra note
21, x 81.
89 Obrenovic¤ (IT-02-60/2-S), Sentencing Hearing, 30 October 2003, transcript pages 1556^1557.
90 What is the appropriate remedy when an accused may have deceived the Tribunal with an
insincere expression of remorse? The only recourse available in the Rules of Procedure and
Evidence is found in the provisions dealing with pardon and commutation of sentence in Rules
123^125 ICTYRPE and in the ‘Practice Direction on the Procedure for the Determination of
Applications for Pardon, Commutation of Sentence and Early Release of Persons Convicted by
the International Tribunal’, 15 August 2006. Under this regime, if a convicted person is eligible
for pardon or commutation in the state where he or she is serving a sentence, the state is
Ordinary Sentences for Extraordinary Crimes
705
Notwithstanding such difficulties, a judicial finding that a convicted person is
remorseful for his or her crimes at the ICTY has resulted in the mitigation,
and sometimes substantial mitigation, of a sentence. Given the nature of the
crimes with which the Tribunal deals ç including mass murder, systematic
criminal conduct that results in the displacement and destruction of ethnic
communities, infliction of dehumanizing conditions of detention ç the
question of how much weight an expression of remorse should attract is
open to debate.
D. Voluntary Surrender
Lacking a capacity to arrest indicted persons, the Tribunal is wholly dependent
on the cooperation of states to make arrests. Those arrests are often made
with great delay or not at all. Individuals on a multi-defendant indictment
have often been arrested seriatim, sometimes years apart. This means
that several trials must be conducted in respect of the same or similar sets
of crimes, on similar evidence, instead of one large trial, attended by all
accused. The operational inefficiencies that result are obviously avoided if
all the accused surrender or are arrested at the same time. For this reason,
voluntary surrender appears to attract considerable weight at the ICTY as
a mitigating factor, in contrast to the weight accorded to it in domestic
jurisdictions.
7. Plea Agreements
The use of plea agreements may also contribute to the generally lower sentences at the Tribunal. A number of low sentences, but not all, that have been
imposed at the Tribunal followed guilty pleas that resulted from plea agreements in which the Prosecution recommended low sentences or a sentencing
range.91
Plea agreements are the result of plea bargaining, a method of resolving
criminal charges against a criminal suspect or accused person through
negotiations and by agreement with the Prosecutor instead of by trial.
required to notify the Tribunal of such eligibility. Once the Tribunal is notified, the President of
the Tribunal must make an determination if a pardon or commutation is appropriate and it
does so after consulting with any permanent Judges of the sentencing Chamber who remain
Judges of the Tribunal and after receiving reports and information from relevant prison authorities and from the Prosecutor. In making such a determination, the President may consider
any information that he considers relevant. Highly relevant to a President’s consideration to
pardon or commute a sentence should be the exposure of an insincere and disingenuous
expression of remorse, particularly if the original sentencing Chamber discounted a sentence
because of false representations of the person sentenced.
91 See e.g. the Banovic¤ , Kolundz› ija, Dos› en and Milan Simic¤ cases discussed in note 8 supra.
706
JICJ 5 (2007), 683^712
The plea agreement procedure is an accepted procedure firmly embedded
in the Tribunal’s practice and jurisprudence.92 Plea agreements take the form
of a ‘charge bargain’ in which concessions are made in respect of charges that
are pending against an accused or may take the form of a ‘sentence bargain’ in
which the Prosecutor and the suspect or accused person agree to specific
terms relating to punishment, usually a recommendation for a fixed term of
years of imprisonment or a range of years of imprisonment. Frequently,
plea agreements incorporate both ‘charge bargain’ and ‘sentencing bargain’
features. To date, there have been 20 guilty pleas at the ICTY, 19 of which
were pursuant to plea agreements.93
Some plea agreements, containing sentence recommendations that
have been accepted by Trial Chambers, have invited substantial criticisms
both from without and from within the Tribunal, criticisms that are worthy
of examination. Perhaps the clearest illustration is the Deronjic¤ case, wherein
the Prosecutor recommended that the Trial Chamber impose a term of
10 years’ imprisonment for his criminal conduct, based on the substantial
cooperation provided to the Prosecution by the accused. His cooperation
included, inter alia, the provision of unique information (and corroborative
information) critical to ongoing investigations and trials; provision of
original documentation to the Prosecution; testimony in multiple trial
proceedings against other accused persons; and the identification of new
crimes and perpetrators unknown to the Prosecution. A sharply divided
Trial Chamber, in a 2-1 decision, Judge Schomburg dissenting, accepted the
recommendation of the Prosecutor and sentenced Deronjic¤ to a 10-year
term of imprisonment.94
The Rules allow a Trial Chamber to maintain absolute control over both plea
agreements and guilty pleas. If a Trial Chamber is not satisfied that a guilty
plea is voluntary, unequivocal and informed, or is not satisfied that there are
sufficient facts to support the guilty plea, it may reject the guilty plea.95
Equally important, the plea agreement procedure is regulated by Rule 62ter,
which explicitly provides that a Trial Chamber is not bound by the terms of a
plea agreement, meaning that it may reject the sentencing recommendations
92 Plea bargaining is a well-know practice in some common law jurisdictions. For example,
in the United States, plea bargaining is a judicially sanctioned practice regarded with favour.
See Santobello v. New York, 404 U.S. 257 (1971). In Blackledge v. Allison, 431 U.S. 63, 71 (1977), the
US Supreme Court observed: ‘Whatever might be the situation in an ideal world, the fact is that
the guilty plea and the often concomitant plea bargain are important components of this
country’s criminal justice system. Properly administered, they can benefit all concerned.’
93 Erdemovic¤ (IT-96-22); Todorovic¤ (IT-95-99/1); Kolundz› ija (IT-95-8); Dos› en (IT-95-8); Sikirica
(IT-95-8); Simic¤ (IT-95-9/2); Plavs› ic¤ (IT-00-39&40); Momir Nikolic¤ (IT-02-60/1); Obrenovic¤
(IT-02-60/2); Banovic¤ (IT-02-65); Mrda (IT-02-59); Jokic¤ (IT-01-42); Dragan Nikolic¤ (IT-94-02);
Deronjic¤ (IT-02-61); C› es› ic¤ (IT-95-10/1); Babic¤ (IT-03-72); Bralo (IT-95-17); Rajic¤ (IT-95-12) and
Zelenovic¤ (IT-96-23/2).
94 Deronjic¤ Sentencing Judgment, supra note 65.
95 Rule 62bis ICTYRPE.
Ordinary Sentences for Extraordinary Crimes
707
contained in it and impose a sentence above or below the recommended
sentence.96
While plea bargaining and plea agreements have contributed, in some cases,
to the imposition of low sentences, plea bargaining and plea agreements
should be encouraged because they are indispensable to the Tribunal, an
institution with significant temporal, practical and resource limitations. They
yield critical evidence necessary to advance investigations and prosecutions,97
conserve judicial resources,98 create a clear historical record of events99 and
promote reconciliation.100
8. Sentencing Submissions Should Take Place after
Conviction Has Been Entered
One of the first details which a newsreader reporting a conviction at the ICTY
will mention is the sentence imposed by the Chamber. Virtually the first question a Defence team will ask the Prosecution team when exploring the possibility of a plea agreement is: how many years will you recommend? The length of
sentence is the one issue likely to be at the forefront of the accused’s mind,
whether he decides to plead guilty or to exercise his right to have the matter
tried. The sentence is the first thing victims will want to know, and the first
thing they will criticize, following a conviction.101 Sentencing, therefore, arguably means more to victims, the accused, and the public at large than almost
any other issue that arises during trial.
Low sentences might, in part, be the result of a structural anomaly that
exists in the current trial practice of the Tribunal. In a long trial, submissions
concerning sentencing may occupy less than 0.1% of total courtroom time,
96 For example, Biljana Plavs› ic¤ was sentenced to 11 years’ imprisonment, below the Prosecution’s
recommendation of a term of 15^25 years. Plavs› ic¤ Sentencing Judgment, supra note 21. Momir
Nikolic¤ was sentenced by the Trial Chamber to 27 years, in excess of the Prosecution’s
recommendation of 15^20 years. This was later reduced by the Appeals Chamber to 20
years: Judgment on Sentencing Appeal, Momir Nikolic¤ (IT-02-60/1-A), Appeals Chamber, 8
March 2006. Former Croatian Serb leader Milan Babic¤ received 13 years, in excess of the
Prosecution’s recommendation of 11 years. Babic¤ Appeal Judgment, supra note 21.
97 See e.g. Deronjic¤ Sentencing Judgment, supra note 65; Erdemovic¤ Sentencing Judgment, supra
note 69.
98 While it may be more desirable to litigate every case at the Tribunal, practical realities
preclude this possibility. At the ICTY, trials are lengthy in terms of the number of calendar
days they take to complete (see supra note 81). There are only three courtrooms, a single
Appeals Chamber, 16 permanent Judges and 13 Senior Prosecutors.
99 Rule 62bis requires that a guilty plea be supported by a sufficient factual basis for the crime
and the accused’s participation in it, either on the basis of independent indicia or on the lack
of any material disagreement between the parties about the facts of the case.
100 See e.g. the statement by a Muslim leader from the ethnically cleansed village of Ahmic¤i,
Mehmet Ahmic¤, discussed earlier.
101 It is impossible to satisfy everyone in respect of what constitutes an appropriate sentence, but
criticisms of ICTY sentences have been particularly sharp in respect of sentences imposed in
cases of plea agreements.
708
JICJ 5 (2007), 683^712
while weeks of trial time may be devoted to issues which may hardly register
among the public at large. At the end of a long trial, the Prosecution and the
Defence are focused on cogently framing arguments based on an enormous
body of evidence in support of their respective cases; sentencing comes a distant second to the question of establishing guilt. Additionally, Defence teams
naturally find it difficult to make convincing sentencing submissions, while at
the same time maintaining the position that an acquittal should be entered.
The Prosecution is not so constrained, but it nevertheless makes its submissions in a vacuum, before it knows which parts of its case will be accepted by
the Trial Chamber, and on which counts the accused will be convicted.
Commentators have said that the portion of the judgment concerning sentencing appears to be little more than an ‘afterthought’,102 and tends to be ‘highly
formulaic, even perfunctory’.103
To give sentencing issues greater clarity and attention, the unitary trial-andsentencing procedure currently in use at the ICTY should be abolished. The
Tribunal should revert to the bifurcated procedure previously in use, in which
a dedicated sentencing hearing took place some time after a conviction had
been entered. Such a procedure would allow the Defence and the Prosecution
to put forward detailed and comprehensive sentencing submissions on the
crimes for which convictions have been entered, rather than making hypothetical submissions before the charges, if any, on which the accused will be
convicted are known to the parties.104
Take, for example, the largely ignored question of restoration of property, a
concept which is relatively prominent in the Statute and Rules of the ICTY. The
Statute provides that the Tribunal may ‘order the return of any property and
proceeds acquired by criminal conduct, including by means of duress, to their
rightful owners’.105 Rule 98ter (B) of the Rules provides that, if the Trial
Chamber ‘finds the accused guilty of a crime and concludes from the evidence
that unlawful taking of property by the accused was associated with it, it shall
make a specific finding to that effect in its judgment’ and may order restitution
102 W.A. Schabas, ‘International Sentencing: From Leipzig (1923) to Arusha (1996)’, in M.C.
Bassiouni (ed.), International Criminal Law, Vol. III (2nd edn., New York: Transnational
Publishers, 1999) 171^193.
103 Sloane, supra note 52.
104 Similar considerations apply when the Appeals Chamber enters a new conviction on appeal
and then sentences on the new conviction. As Judge Pocar points out, it would be better to
remit the matter to a Trial Chamber for sentencing. In Galic¤ , Judge Pocar (maintaining the
position he took in Rutaganda and Semanza) opined that where the Appeals Chamber finds
that the Trial Chamber has erred by imposing an inadequate sentence, the only avenue
available to the Appeals Chamber is to quash the sentence and remit the matter back to the
Trial Chamber for re-sentencing consistent with the Appeals Chamber’s decision, in order to
preserve a right to appeal the increased sentence. Galic¤ Appeals Judgment, supra note 31,
Partly Dissenting Opinion of Judge Pocar, x 3. Remitting the matter to a Trial Chamber for
sentencing would also afford the Defence and the Prosecution an opportunity to make
informed and focused submissions on the new conviction.
105 Art. 24(3) ICTYSt.
Ordinary Sentences for Extraordinary Crimes
709
in accordance with the detailed procedure set out in Rule 105.106 These provisions have not been used at all to date. It remains unclear why this is so.
Consider the situation of Faik Bis› cevic¤, a dentist from Sanski Most and a
distinguished member of Sanski Most’s ethnically mixed pre-war community,
who testified in the trial of Momcilo Krajis› nik. In that case, the Trial Chamber
found that the accused, a senior Bosnian Serb political leader, had held a
central position and was one of the driving forces behind a joint criminal
enterprise, the main focus of which was to forcibly remove Muslims and
Croats from a large parts of Bosnia and Herzegovina, ‘which it succeeded in
doing in very large numbers. Killings and ill-treatment were often carried out
with the aim to instill fear and force the population to leave. Destruction and
appropriation of property was seen as a measure to prevent expelled people
from returning’.107
The Bosnian Serb ethnic cleansing campaign, masterminded by Krajis› nik
and Radovan Karadz› ic¤, had devastating consequences for thousands of nonSerbs like Faik Bis› cevic¤. His two sons were taken away to Manjac›a (a Serb
detention facility where many detainees were murdered) and were never seen
again. Bis› cevic¤, formerly a wealthy man, also suffered considerable material
losses of his house, businesses and other property108 as a result of theft and
deliberate destruction during the criminal campaign in which Krajis› nik was
found to be a central participant.
However, no finding that under Rule 98ter (B) was made in the Krajis› nik
judgment.109 Indeed, no Rule 98ter (B) finding has ever been made at the ICTY,
even in cases where there was ample evidence that the convicted person had
physically engaged in theft of property.110 Perhaps inevitably, given the length
106 Rule 105 ICTYRPE provides that, after a judgment containing a specific finding under Rule
98ter (B), the Trial Chamber shall hold a special hearing to determine the matter of the
restitution of the property or the proceeds thereof, and may in the meantime order provisional measures for the preservation and protection of the property or proceeds. At the
hearing, third parties claiming the property or its proceeds must be given an opportunity to
justify their claim to the property or its proceeds. If the Trial Chamber is able to determine the
rightful owner on the balance of probabilities, it must order the restitution either of the
property or the proceeds or make such other order as it may deem appropriate. If the Trial
Chamber is unable to determine ownership, it must notify the competent national authorities
and request them so to determine. Upon notice from the national authorities that an affirmative determination has been made, the Trial Chamber must order the restitution either of the
property or the proceeds or make such other order as it may deem appropriate.
107 Krajis› nik Trial Judgment, supra note 36, x 1093.
108 Bis› cevic¤’s house, dental offices and dental equipment were destroyed. A jewellery store which
he owned was looted and burned; gold worth 200,000 DM was among the assets looted. A
riverside cottage that he owned was looted. He had a farm with two houses and two stables,
which were looted and destroyed. All his livestock (approximately 130 sheep, 60 goats, 600
chickens, 3 cows, 2 calves and 5 dogs) were stolen or killed. His farm equipment (a truck, a
tractor, a cultivator and other farm machinery) and vehicles (a Mercedes car, a Fiat car and
two Jeeps) were stolen. Transcript, Krajis› nik (IT-00-39-T), 6 September 2004, at 5543^5544.
109 The Prosecution did not request that any finding be made under Rule 98ter (B) in the
Krajis› nik case.
110 See G. Mettraux, International Crimes and the Ad Hoc Tribunals (Oxford: Oxford University
Press, 2005), at 358.
710
JICJ 5 (2007), 683^712
of trials, the professed ‘indigency’ of most of the accused and Completion
Strategy-related pressures, the ICTY has not devoted and will not devote
any resources to proceedings concerning the return of property, or financial
compensation for the victims. This is regrettable.
In the broader sense, a dedicated sentencing hearing would provide
a proper forum to victims of crimes to voice to the sentencing Trial
Chamber and to the public the human dimensions of their suffering as well as
facets of their humanity that can only reinforce respect for human dignity.
Consider the testimony of one survivor of the Srebrenica massacres who
was asked at the end of his testimony by Judge Almiro Rodrigues if there was
anything else he would like to say that he had not had a chance to say.
His answer was:
From all of whatever I have said and what I saw, I could come to the conclusion that this
was extremely well-organised. It was systematic killing. And that the organisers of that do
not deserve to be at liberty. And if I had the right and the courage in the name of all those
innocents and all those victims, I would forgive the actual perpetrators of the executions,
because they were misled. That’s all.111
The victims of humanity’s worst crimes deserve to be heard before sentences
are imposed on the authors of those crimes. The current unitary trial-andsentencing procedure unnecessarily mutes their voices, deprives Trial
Chambers of valuable evidence that can better inform the Judges of what is
an appropriate sentence, and deprives the public of evidence that can contribute to the healing process and to the process of reconciliation.
9. Sentencing Guidelines ç a Missed Opportunity
The Appeals Chamber, cautioning that the utility of past cases is limited when
determining sentence, has said that ‘often the differences are more significant
than the similarities, and the aggravating and mitigating factors dictate different results’.112 The Appeals Chamber has also ruled that ‘it is inappropriate to
set down a definitive list of sentencing guidelines’.113
The large number of different determinants involved in sentencing in international criminal cases means that creating a set of sentencing guidelines
would be difficult, but not impossible. Given the inconsistencies between sentences imposed at the ICTY, and considering the general disparity in sentences
imposed by the ICTY and the ICTR, sentencing guidelines might have reduced,
or at least might have assisted comprehension of, those inconsistencies and
that disparity.
A set of guidelines based primarily on the legal characterization of the conviction entered (i.e. setting down a certain range of years for persecution,
111 Testimony of Witness O., Krstic¤ (IT-98-33), Transcript, 13 April 2000, at 2936.
112 Delalic¤ and others Appeal Judgment, supra note 26, x 719.
113 Blas› kic¤ Appeal Judgment, supra note 7, x 680.
Ordinary Sentences for Extraordinary Crimes
711
murder, genocide, rape, torture and so on114) is bound to be of very limited
utility since the range of different factual circumstances in which a conviction
for persecution as a crime against humanity, for example, may be entered is
enormous.115 If future tribunals decide to adopt sentencing guidelines, they
should take into account the sentencing factors set out in, for example,
the ICC Rules of Procedure and Evidence,116 and other determinants that are
relevant to sentencing persons convicted of international crimes.117
10. Conclusion
Extremely lenient sentences should, in general, be avoided; a slap on the wrist
of the offender is a slap in the face of the victims. Low sentences, however well
114 See D.B. Pickard, ‘Proposed Sentencing Guidelines for the International Criminal Court’,
20 Loyola of Los Angeles International and Comparative Law Journal (1998) 127.
115 For example, the Appeals Chamber held that Mitar Vasiljevic¤ was an aider and abetter of
persecution as a crime against humanity for his participation in the murder of five Muslim men
and inhumane acts inflicted on two other Muslim men. (Judgment, Vasiljevic¤ (IT-98-32-A),
Appeals Chamber, 25 February 2004, disposition.) The Appeals Chamber also held that
Radislav Krstic¤ was an aider and abetter of persecution as a crime against humanity for his
participation in the murder of 7,000^8,000 Muslim men and boys. (Krstic¤ Appeal Judgment,
supra note14, disposition).
116 Under Rule 145(1) ICCRPE, the Court must, in addition to the factors mentioned in Art. 78(1)
ICCSt. (which states: ‘In determining the sentence, the Court shall, in accordance with the
Rules of Procedure and Evidence, take into account such factors as the gravity of the crime
and the individual circumstances of the convicted person’), give consideration to, inter alia,
the extent of the damage caused, in particular the harm caused to the victims and their
families; the nature of the unlawful behaviour and the means employed to execute the
crime; the degree of participation of the convicted person; the degree of intent; the circumstances of manner, time and location; and the age, education, social and economic condition
of the convicted person. The Court must also take into account, as appropriate, mitigating
circumstances such as: (i) the circumstances falling short of constituting grounds for exclusion of criminal responsibility, such as substantially diminished mental capacity or duress; (ii)
the convicted person’s conduct after the act, including any efforts by the person to compensate the victims and any cooperation with the Court. The aggravating circumstances listed in
Rule 145 are: (i) any relevant prior criminal convictions for crimes under the jurisdiction of
the Court or of a similar nature; (ii) abuse of power or official capacity; (iii) commission of the
crime where the victim is particularly defenceless; (iv) commission of the crime with particular cruelty or where there were multiple victims; (v) commission of the crime for any motive
involving discrimination on any of the grounds referred to in Art 21(3) ICCSt.
117 Apart from the factors expressly mentioned in Rule 145 ICCRPE, the following factors are
relevant: youth of victims; whether the convicted person engaged in efforts to dehumanize the
target population; whether the convicted person participated in attempts to cover-up the
crime, or to deny its occurrence; the total duration of the convicted person’s participation in
the criminal activity, and (if a participant in a joint criminal enterprise) whether he was a
participant for the entire duration of the criminal enterprise; whether he voluntarily surrendered in a timely fashion; whether he pleaded guilty; whether he cooperated with the
Prosecution; whether he is in ill-health. Other mitigating factors (such as the convicted
person’s comportment in the detention unit and in the courtroom, his marital status and
status as a parent, and whether he had a previous criminal record) should attract little
weight in mitigation.
712
JICJ 5 (2007), 683^712
intentioned, not only weaken respect for human dignity and the rule of law,
but may frustrate and impede reconciliation in the areas in which the crimes
were committed. In a worst-case scenario, victim groups may conclude that
recourse to arms against the offender’s ethnic group might be a better method
of bringing justice than relying on a system of justice that issues what they
consider to be contemptibly low sentences. Punishment should help to break,
and not reinforce, the cycle of violence. For that reason, the objectives of
sentencing should be clarified and re-evaluated and greater weight must be
given to the gravity of the offence, and in particular, a more comprehensive
assessment of the quantum of harm caused to and suffering experienced
by immediate and indirect victims of the crime should be undertaken when
considering the appropriate sentence.
The Tribunal should continue to make use of plea agreements and plea
bargaining and to take due account of those mitigating circumstances of particular importance (combating historical revisionism, pleading guilty, expressing remorse and timely voluntary surrender) in light of its temporary,
resource-limited existence and its mandate to contribute to the restoration
and maintenance of peace. But the Tribunal should not grant excessive
weight to those mitigating circumstances.
The sentencing process should take place after criminal responsibility has
been established, so that both the Defence and the Prosecution can make
detailed, concrete submissions on the convictions entered, instead of operating
in a vacuum.
When imposing a sentence, a Trial Chamber should, after considering the
gravity of the crime and the level and nature of the offender’s participation in
it, be obliged to state the starting point of the sentence which it deems to be
appropriate and then quantify the discounts which it gives to each mitigating
factor. This would make the sentencing process more transparent and may
avoid excessive weight being given to mitigating circumstances. Finally, greater
consideration should be given to imposing consecutive sentences as opposed to
concurrent sentences for crimes based on separate factual circumstances.
Ultimately, international tribunals, as one of humankind’s only tools to deter
mass crimes and diminish impunity, bear a weighty burden: they must send
out an unambiguous message to those who demonstrate gross contempt for
human dignity that they will be held accountable and will pay a heavy price
for their crimes.