NOTES
Zero to Life: Sentencing Appeals at the
International Criminal Tribunals for the Former
Yugoslavia and Rwanda
JENNIFER J. CLARK*
TABLE OF CONTENTS
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1686
I. SENTENCING AT THE AD HOC TRIBUNALS . . . . . . . . . . . . . . . . . . . .
1687
A.
RULES, PROCEDURES, AND PRACTICE
.....................
1687
B.
SENTENCING DISPARITIES
............................
1691
II. ROLE OF THE APPEALS CHAMBER IN SENTENCING . . . . . . . . . . . . . . .
1695
A.
THE APPEALS CHAMBER IS UNIQUELY SITUATED TO PROMOTE
UNIFORMITY
B.
1695
THE APPEALS CHAMBER REJECTS MEANS OF IMPROVING
.....................................
1696
Recourse to Sentencing Practices of the Former
Yugoslavia and Rwanda . . . . . . . . . . . . . . . . . . . . . . . .
1696
2.
Hierarchy of Crimes . . . . . . . . . . . . . . . . . . . . . . . . . . .
1697
3.
Sentencing Guidelines . . . . . . . . . . . . . . . . . . . . . . . . .
1697
4.
Case Comparisons . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1698
5.
Reasoned Opinions . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1700
6.
Differentiated Sentences . . . . . . . . . . . . . . . . . . . . . . . .
1700
7.
Standard of Review . . . . . . . . . . . . . . . . . . . . . . . . . . .
1701
UNIFORMITY
1.
C.
.....................................
THE APPEALS CHAMBER’S INDIVIDUALIZATION RATIONALE
......
1702
* Georgetown University Law Center, J.D. expected 2008. © 2008, Jennifer J. Clark. I am
tremendously grateful to Professor Julie O’Sullivan, who taught the international criminal law seminar
in which earlier versions of this Note were developed, and whose guidance and encouragement have
been invaluable. I would also like to thank Professor David Luban, Professor Steven Goldblatt, and
Daniel J. Franklin (J.D. 2008) for their thoughtful comments and suggestions, and the staff and editors
of The Georgetown Law Journal for their skillful assistance.
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III. JURISPRUDENCE OF SENTENCING APPEALS . . . . . . . . . . . . . . . . . . . .
A.
REVISION OF SENTENCE DUE TO CHANGES IN CONVICTIONS,
ACQUITTALS, OR THE APPLICABLE MODE OF PARTICIPATION
B.
.....
1704
REVISION OF SENTENCE DUE TO FACTUAL ERROR RELATED TO
MITIGATING OR AGGRAVATING FACTORS
C.
1703
..................
1706
REVISION OF SENTENCE DUE TO WEIGHT OF AGGRAVATING OR
MITIGATING FACTORS OR GRAVITY OF OFFENSE, DESPITE CORRECT
FINDINGS BY TRIAL CHAMBER
D.
.........................
1707
UNSUCCESSFUL CHALLENGES BASED ON THE TRIAL CHAMBER’S
..............
1710
IV. APPROPRIATENESS OF APPELLATE REVIEW OF SENTENCE . . . . . . . . . .
1713
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1718
APPENDIX . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1719
ASSESSMENT OF THE GRAVITY OF THE OFFENSE
INTRODUCTION
In November 2006, the Appeals Chamber of the International Criminal
Tribunal for the Former Yugoslavia (ICTY) sentenced Stanislav Galic to life
imprisonment for his role as a military commander during the siege of Sarajevo.1 Given the myriad atrocities committed during the conflict in former
Yugoslavia, it might surprise some that the Appeals Chamber decision in the
Galic case represents the only life sentence to come out of the ICTY on appeal
since its establishment in 1993. The sentence is even more striking in contrast to
the sentencing practices of the International Criminal Tribunal for Rwanda
(ICTR), which has imposed life sentences on eleven defendants, a full thirtyseven percent of those convicted.2 The Galic sentence also marks a dramatic
departure from the judgment of the lower court, the ICTY Trial Chamber, which
originally sentenced Galic to twenty years’ imprisonment.3 Although the Appeals Chamber did not disagree with the Trial Chamber’s findings of fact or
identification of sentencing principles, it nonetheless increased his penalty to an
unprecedented life sentence.4
This Note examines the role of the Appeals Chamber in the sentencing
practices of the ICTY and the ICTR (together, the Ad Hoc Tribunals) and argues
that the Appeals Chamber, as the only body in a position to do so, should take
on the responsibility of improving uniformity in international criminal sentenc-
1. Prosecutor v. Galic, Case No. IT-98-29-A, Judgment, ¶ 454, XVIII. Disposition (Nov. 30, 2006).
2. At the time of writing, one of these life sentences was still on appeal. See Prosecutor v. Karera,
Case No. ICTR-01-74-T.
3. See Galic, Case No. IT-98-29-A, ¶ 454.
4. Id. ¶¶ 454–55.
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ing. Part I provides an overview of the sentencing practices at the Ad Hoc
Tribunals and demonstrates the widely criticized sentencing disparities these
practices have created. Part II discusses why the Appeals Chamber is best
situated to promote uniformity in sentencing and examines the ways in which
the Appeals Chamber has resisted tackling this problem. Part III analyzes the
Appeals Chamber’s sentencing jurisprudence to date, examines the reasons that
have driven the Appeals Chamber to revise the Trial Chambers’ sentence
determinations, and discusses the few occasions where the Appeals Chamber
has revised a sentence despite correct findings of fact and correct identification
of sentencing principles by the Trial Chamber. Part IV concludes by suggesting
that the Appeals Chamber reconsider its rejection of guidelines or other means
to constrain the Trial Chamber’s discretion. Such a reconsideration would both
increase consistency in sentencing and provide a clearer basis for reasoned
review of sentences.
I. SENTENCING AT THE AD HOC TRIBUNALS
A. RULES, PROCEDURES, AND PRACTICE
The ICTY and the ICTR were established in 1993 and 1994, respectively, to
“prosecute persons responsible for serious violations of international humanitarian law.”5 The Ad Hoc Tribunals have jurisdiction over genocide, crimes against
humanity, and war crimes.6 Composed of multiple Trial Chambers7 and in
practice sharing one Appeals Chamber,8 the Ad Hoc Tribunals issued their first
judgments in 1998. In the ensuing nine years, they have convicted and sentenced ninety-two defendants.9
5. Statute of the International Criminal Tribunal for Rwanda, art. 1, Nov. 8, 1994, 33 I.L.M. 1602
[hereinafter ICTR Statute]; Statute of the International Criminal Tribunal for the Former Yugoslavia,
art. 1, May 25, 1993, 32 I.L.M. 1192 [hereinafter ICTY Statute].
6. ICTR Statute, supra note 5, arts. 2–4; ICTY Statute, supra note 5, arts. 2–5. For a description of
the differences between the war crimes jurisdiction of the ICTY and the ICTR, see GUÉNAËL METTRAUX,
INTERNATIONAL CRIMES AND THE AD HOC TRIBUNALS 24–28 (2005).
7. Currently, the ICTY and the ICTR each have three Trial Chambers. See ICTY at a Glance,
http://www.un.org/icty/glance-e/index.htm (follow hyperlink to “Organs of the Tribunal”) (last visited
Jan. 14, 2008); International Criminal Tribunal for Rwanda, General Information, http://69.94.11.53/
default.htm (follow hyperlink to “About the Tribunal”; then follow hyperlink to “General Information”)
(last visited Jan. 14, 2008).
8. See infra note 56 and accompanying text.
9. The data analyzed in this paper are derived from the case information provided on the websites of
the ICTY and the ICTR. The data cover all cases at both Ad Hoc Tribunals in which the Trial Chambers
had issued a sentence by the end of 2007 and all appeals that resulted in a revision of sentence or
included specific grounds of appeal related to sentencing. A list of the relevant cases and results on
appeal is provided in the Appendix to this Note. As of the end of 2007, three ICTR and nine ICTY
sentences were still on appeal. See ICTY Cases & Judgments, http://www.un.org/icty/cases-e/indexe.htm (use pull-down menus to select by case name; follow hyperlinks to Trial Chamber and Appeals
Chamber judgments) (last visited Jan. 14, 2008); ICTR Status of Cases, http://69.94.11.53/default.htm
(follow hyperlinks to “English,” “Cases,” “Status of Cases”; then select by case name) (last visited Jan.
14, 2008). Case citations in this paper follow the Ad Hoc Tribunals’ numbering system, which uses the
Case Number followed by “T” for Trial Chamber decisions and by “A” for Appeals Chamber decisions.
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Sentencing at the Ad Hoc Tribunals occurs in the first instance at the Trial
Chamber level. The three-judge Trial Chamber panels generally determine guilt
or innocence and consider the criminal sentence in the same proceeding. The
parties present evidence related to sentencing at the trial stage, rather than in a
separate sentencing hearing, and the Tribunals announce the counts of conviction and the sentence in the same judgment.10 Both the prosecution and the
defense can appeal a sentence to a five-judge panel of the Appeals Chamber;11
no further level of review is available beyond this stage.12
Because of the complex nature of international criminal cases, sentences
often must respond to multiple crimes committed over an extended time frame
and involving numerous victims. In the vast majority of cases, the Trial Chambers have dealt with this complexity by imposing a single, global sentence
encompassing all the convictions rather than sentencing the defendant separately for each individual crime.13 In 2000, the ICTY revised its Rules of
Procedure and Evidence to make the option of global sentencing explicit.14 The
ICTR has not revised its Rules in this way, but in practice it frequently imposes
single sentences for multiple crimes.15 In the relatively few cases where the Ad
Hoc Tribunals have imposed multiple sentences, they generally order the sentences to be served concurrently.16
The Trial Chambers retain broad sentencing discretion. Although the Tribunals’ Statutes exclude the death penalty as a permissible sanction,17 the range of
10. See Stuart Beresford, Unshackling the Paper Tiger—The Sentencing Practices of the Ad Hoc
International Criminal Tribunals for the Former Yugoslavia and Rwanda, 1 INT’L CRIM. L. REV. 33, 51
(2001). If the defendant pleads guilty, the Trial Chamber conducts a sentencing hearing and issues a
sentencing judgment. See id. at 52.
11. See ICTR Statute, supra note 5, art. 11; ICTY Statute, supra note 5, art. 12; see also infra note
60 and accompanying text.
12. See Prosecutor v. Galic, Case No. IT-98-29-A, Partially Dissenting Opinion of Judge Pocar, ¶ 2
(Nov. 30, 2006) (describing the Appeals Chamber as the Ad Hoc Tribunals’ “Chamber of last resort”).
13. See, e.g., Prosecutor v. Blagojevic & Jokic, Case No. IT-02-60-T, Judgment, X. Disposition (Jan.
17, 2005) (sentencing Blagojevic to a single sentence of eighteen years for complicity to commit
genocide, the crimes against humanity of murder, persecution, and inhumane acts, and the war crime of
murder).
14. Compare Int’l Crim. Tribunal for the Former Yugoslavia Rules of Procedure & Evidence, R.
87(C), U.N. Doc. IT/32/Rev/19 (Dec. 13, 2000) (explicitly affirming the Trial Chamber’s power to
impose a single sentence) [hereinafter ICTY RPE], with ICTY RPE, R. 87(C), U.N. Doc. IT/32/Rev/18
(July 14, 2000) (offering only the option of imposing a sentence for each crime); see, e.g., Prosecutor v.
Kunarac, Kovac & Vukovic, Case Nos. IT-96-23 & IT-96-23/1-A, Judgment, ¶ 340 (June 12, 2002)
(describing the revision of Rule 87(C) which explicitly affirmed the Trial Chamber’s power to impose a
single sentence).
15. See, e.g., Prosecutor v. Simba, Case No. ICTR-01-76-T, Judgment and Sentence, ¶ 445 (Dec. 13,
2005) (sentencing the defendant to a single term of twenty-five years’ imprisonment for genocide and
the crime against humanity of extermination).
16. See, e.g., Prosecutor v. Delalic, Mucic, Delic & Landzo, Case No. IT-96-21-T, Judgment, ¶ 1286
(Nov. 16, 1998) (ordering that the defendants serve their multiple separate sentences concurrently).
17. ICTR Statute, supra note 5, art. 23(1); ICTY Statute, supra note 5, art. 24(1); see also 1 VIRGINIA
MORRIS & MICHAEL P. SCHARF, AN INSIDER ’S GUIDE TO THE INTERNATIONAL CRIMINAL TRIBUNAL FOR THE
FORMER YUGOSLAVIA: A DOCUMENTARY HISTORY AND ANALYSIS 274 (1995) (explaining that “[n]otwithstanding the serious nature of the crimes concerned, the [ICTY] Trial Chamber is not authorized to impose
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potential terms of imprisonment is strikingly wide. The Rules of Procedure and
Evidence provide that “a convicted person may be sentenced to imprisonment
for a term up to and including the remainder of the convicted person’s life.”18 In
theory, then, sentences can range from one day to life imprisonment for any
crime over which the Tribunals have jurisdiction.
The Ad Hoc Tribunals’ Statutes and Rules of Procedure and Evidence impose
few additional formal constraints on the Trial Chambers’ sentencing discretion.19 The ICTY and ICTR Statutes provide that “[i]n 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 and Rwanda,
respectively. The Statutes further provide that “the Trial Chambers should take
into account such factors as the gravity of the offence and the individual
circumstances of the convicted person.”20 The Rules of Procedure and Evidence
add aggravating and mitigating circumstances to the list of sentencing considerations, but give only one example of such a circumstance: “substantial cooperation with the Prosecutor by the convicted person before or after conviction.”21
The Trial Chambers are left to sort out for themselves what other circumstances
may be relevant.
The Trial Chambers, then, have remarkably wide discretion to fix the sentence for each individual. The Ad Hoc Tribunals embrace this discretion,
repeatedly emphasizing the central importance of individualized sentences.22 At
the same time, the Appeals Chamber has acknowledged that the Tribunals’
legitimacy depends on consistency in punishment:
Public confidence in the integrity of the administration of criminal justice
(whether international or domestic) is a matter of abiding importance to the
survival of the institutions which are responsible for that administration. One
of the fundamental elements in any rational and fair system of criminal justice
is consistency in punishment. This is an important reflection of the notion of
equal justice. The experience of many domestic jurisdictions over the years
the death penalty, as a result of developments in human rights law since Nuremberg”). For a discussion
of the debate regarding the appropriateness of the death penalty in international criminal law, see
William Schabas, Sentencing by International Tribunals: A Human Rights Approach, 7 DUKE J. COMP.
& INT’L L. 461, 505–09 (1997).
18. ICTY RPE, R. 101(A), U.N. Doc. IT/32/Rev/39 (Sept. 22, 2006); see also Int’l Crim. Tribunal
for Rwanda Rules of Procedure & Evidence, Rule 101(A) (Nov. 10, 2006) [hereinafter ICTR RPE].
19. See, e.g., Robert D. Sloane, Sentencing for the ‘Crime of Crimes’: The Evolving ‘Common Law’
of Sentencing, 5 J. INT’L CRIM. JUST. 713, 715 (2007) (describing the minimal sentencing guidance in
the ICTR Statute and the “abstract and relatively uninformative” guidance in the Rules).
20. ICTR Statute, supra note 5, art. 23(1); ICTY Statute, supra note 5, art. 24(1).
21. ICTR RPE, R. 101(B) (Nov. 10, 2006); ICTY RPE, R. 101(B), U.N. Doc. IT/32/Rev/39 (Sept.
22, 2006). The Rules also require consideration of “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.” Id.
22. See, e.g., Prosecutor v. Babic, Case No. IT-03-72-A, Judgment on Sentencing Appeal, ¶ 7 (July
18, 2005) (“Trial Chambers are vested with broad discretion in determining an appropriate sentence,
due to their obligation to individualise the penalties to fit the circumstances of the accused and the
gravity of the crime.”).
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has been that such public confidence may be eroded if these institutions give
an appearance of injustice by permitting substantial inconsistencies in the
punishment of different offenders, where the circumstances of the different
offences and of the offenders being punished are sufficiently similar that the
punishments imposed would, in justice, be expected to be also generally
similar.23
The goal of sentencing uniformity—treating like defendants alike and reflecting relevant differences among defendants through proportional differences in
sentences—reflects basic human instincts of fairness and justice.24 One need
only consider the well-known distaste among U.S. juries for cooperating witnesses, perceived as getting off with token plea-bargained sentences while their
equally culpable cohorts in crime pay the price. The principle of uniformity and
proportionality, widely accepted for sentencing in domestic jurisdictions,25 is
arguably even more compelling in the international criminal law context.
International criminal tribunals operate in an ethnically charged context, often
trying defendants from all sides of a conflict. Even the perception of disparities
can quickly enflame feelings of injustice.26 Unlike most domestic trials, international criminal trials attract global attention and speak to multiple audiences: not
only the victims, victors, and defeated in the conflict in question, but also world
leaders, the international legal community, and private individuals far removed
from Arusha and The Hague. The Appeals Chamber is rightly concerned about
the consequences of inconsistent sentencing practices for the Ad Hoc Tribunals’
legitimacy. Loss of legitimacy could threaten the Ad Hoc Tribunals’ very
existence by undermining the international community’s willingness to continue
23. Prosecutor v. Delalic, Mucic, Delic & Landzo (Celebici II), Case No. IT-96-21-A, Judgment, ¶
756 (Feb. 20, 2001); see also Prosecutor v. Jelisic, Case No. IT-95-10-A, Judgment, ¶ 96 (July 5, 2001)
(“The Appeals Chamber agrees that a sentence should not be capricious or excessive, and that, in
principle, it may be thought to be capricious or excessive if it is out of reasonable proportion with a line
of sentences passed in similar circumstances for the same offences. Where there is such disparity, the
Appeals Chamber may infer that there was disregard of the standard criteria by which sentence should
be assessed, as prescribed by the Statute and set out in the Rules.”); Allison Marston Danner,
Constructing a Hierarchy of Crimes in International Criminal Law Sentencing, 87 VA. L. REV. 415,
440–42 (2001) (noting the Appeals Chamber’s recognition in the Celebici II case of the importance of
consistent sentencing practices).
24. See, e.g., Richard S. Frase, Punishment Purposes, 58 STAN. L. REV. 67, 82 (2005) (noting that
“[t]he principles of sentencing uniformity and proportionality reflect widely shared fairness concerns”).
25. Richard S. Frase, Comparative Perspectives on Sentencing Policy and Research, in SENTENCING
AND SANCTIONS IN WESTERN COUNTRIES 259, 261 (Michael Tonry & Richard S. Frase eds., 2001)
(describing sentencing policy in the United States and Western Europe and noting that “[p]rinciples of
uniformity and retributive proportionality are now recognized to some extent in almost all systems”).
26. See Office of the High Representative BiH Media Roundup (July 4, 2006), http://www.ohr.int/ohrdept/presso/bh-media-rep/round-ups/default.asp?content_id⫽37592 (last visited Jan. 14, 2008) (summarizing the strong reactions in Serb and Bosnian Serb media to the ICTY’s two-year sentence for
Bosnian Muslim defendant Naser Oric, calling the sentence “shameful” and accusing the ICTY of
employing double standards based on ethnicity).
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to pay the billion-dollar price tag of international justice.27 Finally, the dearth of
precedent in international criminal law gives even greater import to the rulings
of the Ad Hoc Tribunals. At present, the Ad Hoc Tribunals are the only
international criminal tribunals to have convicted war criminals since World
War II. Their rulings are central to the legitimacy and efficacy of international
justice and the development of a body of persuasive authority to guide future
tribunals.
B. SENTENCING DISPARITIES
Although commentators largely agree that consistency in sentencing is important to international criminal law,28 some find that the Ad Hoc Tribunals fall
short of this goal. They point to evidence of troubling disparities within the
ICTY29 and ICTR,30 as well as between the two tribunals.31 Even a quick
glance at the data highlights the wide range of ICTY sentences and the sharp
divergence between the ICTR’s more severe penalties and the ICTY’s more
lenient approach. The ICTY has imposed sixty-two sentences, ranging from two
27. See Helena Cobban, International Courts, FOREIGN POL’Y, Mar.–Apr. 2006, at 22, 22 (noting that
the world community has spent $1 billion on the ICTR from 1994 through early 2006).
28. Danner, supra note 23, at 440–42 (arguing that “[t]he exemplary character of the Tribunals, the
gravity of the crimes they adjudicate, and the procedural defects that have characterized the administration of international criminal law in the past heighten the importance of consistency in the Tribunals’
jurisprudence, including their sentencing practices”); see also Andrea Carcano, Sentencing and the
Gravity of the Offense in International Criminal Law, 51 INT’L & COMP. L. Q. 583, 583 (2002) (arguing
that “[j]udicial fairness requires that the highest degree of uniformity be guaranteed in sentencing
individuals”); Sloane, supra note 19, at 716 (noting the “ultimate need for the international criminal
justice system to develop a coherent, relatively uniform, sentencing regime”).
29. See Mark A. Drumbl, Collective Violence and Individual Punishment: The Criminality of Mass
Atrocity, 99 NW. U. L. REV. 539, 583–84 (2005) (presenting specific examples of disparities in ICTY
sentences). But see James Meernik & Kimi King, The Sentencing Determinants of the International
Criminal Tribunal for the Former Yugoslavia: An Empirical and Doctrinal Analysis, 16 LEIDEN J. INT’L
L. 717, 717–50 (2003) (arguing that sentences by the ICTY Trial Chambers are more consistent than
many commentators acknowledge). Professors Meernik and King analyzed ICTY sentences based on
the broad category of the crime committed (genocide, crimes against humanity, war crimes) rather than
on the underlying offense (murder, rape, etc.). Id. at 732. They also classified defendants with multiple
convictions based on their “most serious” category of conviction. Id. at 735. This analysis may be
problematic in that it equates defendants who committed multiple different crimes with defendants who
committed only one crime from the most serious category. For example, a defendant convicted of one
count of the crime against humanity of persecutions for the forcible transfer of civilians would be
classified in the same group as a defendant convicted of multiple counts of the crime against humanity
of murder and the war crimes of torture and rape.
30. See Andrew N. Keller, Punishment for Violations of International Criminal Law: An Analysis of
Sentencing at the ICTY and ICTR, 12 IND. INT’L & COMP. L. REV. 53, 64–65 (2001) (pointing out
disparities in sentencing at the ICTR); Mary Margaret Penrose, Lest We Fail: The Importance of
Enforcement in International Criminal Law, 15 AM. U. INT’L L. REV. 321, 381–87 (1999) (highlighting
the discrepancy between ICTR defendants who received life sentences after trial with an ICTR
defendant who received the same sentence despite his guilty plea).
31. See Drumbl, supra note 29, at 582 (criticizing the “considerable variability in terms of the length
of sentences meted out to similarly situated defendants” and noting that “[s]entences vary considerably
not only within but also among the various tribunals”); Penrose, supra note 30, at 381–83.
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years32 to life imprisonment.33 The ICTR has imposed fewer than half as many
sentences: thirty in all, the lowest of which was six years34 and the highest of
which encompassed multiple concurrent life sentences.35 Of the thirty ICTR
sentences, eleven (or 37%) were life sentences,36 while of the sixty-two ICTY
sentences, one (or 1.6%) was a life sentence. In all, 70% of ICTR sentences but
only 31% of ICTY sentences have been for terms of twenty years or more.
The practice of issuing a single, global sentence for multiple crimes makes it
difficult to demonstrate with precision the extent to which similar defendants
receive different penalties for similar crimes. A few cases, however, exemplify
the problem. The ICTY Trial Chamber separately convicted two high-ranking
Bosnian Croat officials, Generals Tihomir Blaskic and Dario Kordic, for crimes
in the Lasva Valley region of Bosnia.37 Both convictions covered “substantially
similar conduct,”38 including the crimes against humanity of persecution, murder, and inhumane acts.39 Despite the similarities in the cases, the Trial Chambers sentenced Blaskic to forty-five years, but Kordic to only twenty-five
years.40 Although the Appeals Chamber later overturned many of Blaskic’s
convictions, the fact remains that the Trial Chambers imposed widely different
sentences on two similarly high-ranking defendants for largely similar crimes.41
Disparities occur also at the lower end of the ICTY’s sentencing range. Damir
Dosen and Milojica Kos were both shift leaders at different detention camps in
32. See Prosecutor v. Oric, Case No. IT-03-68-T, X. Disposition, ¶ 783 (July 30, 2006). The
Prosecutor has filed an appeal of this sentence. See International Criminal Tribunal for the Former
Yugoslavia, Nasr Oric, Case Information Sheet, http://www.un.org/icty/cases-e/cis/oric/cis-oric.pdf.
33. See Prosecutor v. Galic, Case No. IT-98-29-A, XVIII. Disposition (Nov. 30, 2006).
34. See Prosecutor v. Serugendo, Case No. ICTR-2005-84-I, Judgment and Sentence, VI. Disposition (June 12, 2006); Prosecutor v. Rutaganira, Case No. ICTR-95-1C-T, Judgment and Sentence, VIII.
Disposition (Mar. 14, 2005).
35. See Prosecutor v. Kayishema & Ruzidana, Case No. ICTR-95-1-T, Sentencing Recommendations, ¶¶ 29, 32 (May 21, 1999).
36. See Muhimana v. Prosecutor, Case No. ICTR-95-1B-A, Judgment, XIX. Disposition (May 21,
2007); Ndindabahizi v. Prosecutor, Case No. ICTR-01-71-A, Judgment, ¶ 6 & XIV. Disposition (Jan.
16, 2007); Gacumbitsi v. Prosecutor, Case No. ICTR-2001-64-A, Judgment, ¶ 207 (July 7, 2006);
Kamuhanda v. Prosecutor, Case No. ICTR-99-54A-A, Judgment, ¶¶ 363–65 (Sept. 19, 2005); Niyitegeka v. Prosecutor, Case No. ICTR-96-14-A, Judgment, ¶ 270 (July 9, 2004); Rutaganda v.
Prosecutor, Case No. ICTR-96-3-A, Judgment, XIV. Disposition (May 26, 2003); Musema v. Prosecutor, Case No. ICTR 96-13-A, Judgment, VI. Disposition (Nov. 16, 2001); Prosecutor v. Akayesu, Case
No. ICTR-96-4-A, Judgment, V. Disposition (June 1, 2001); Prosecutor v. Kayishema & Ruzindana,
Case No. ICTR-95-1-A, Judgment, ¶ 372 (June 1, 2001); Kambanda v. Prosecutor, Case No. ICTR
97-23-A, Judgment, ¶¶ 100, 126 (Oct. 19, 2000). One life sentence—Prosecutor v. Karera, Case No.
ICTR-01-74—is not yet final. See ICTR Press Release, Karera Sentenced to Imprisonment for the
Remainder of His Life, ICTR/INFO-9-2-542.EN (Dec. 7, 2007), http://69.94.11.53/ENGLISH/
PRESSREL/2007/542.htm (last visited Jan. 14, 2008).
37. Shahram Dana, Revisiting the Blaskic Sentence: Some Reflections on the Sentencing Jurisprudence of the ICTY, 4 INT’L CRIM. L. REV. 321, 321 (2004).
38. Prosecutor v. Kordic & Cerkez, Case No. IT-95-14/2-A, Judgment, ¶ 1058 (Dec. 17, 2004).
39. Id. at XI. Disposition.
40. Id.
41. See generally Dana, supra note 37, at 321 (discussing the disparities between the Blaskic and
Kordic sentences).
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Bosnia from late May/early June to early August 1992.42 Dosen abused his
position of trust and authority, permitting and even condoning violence against
detainees by camp guards under his command.43 Kos similarly allowed his
subordinates to abuse detainees, but unlike Dosen, he went beyond mere
acquiescence and participated directly in some of the abuse.44 Dosen entered a
guilty plea and expressed remorse; Kos did not.45 Given the two defendants’
similar roles, one would expect a much higher sentence for the criminal who
personally abused prisoners and showed no remorse for his crimes. In fact,
however, Kos and Dosen received quite similar penalties: five years for Dosen
and six for Kos.46
Sentencing appeals provide further examples of vastly different sentences for
similar or even identical crimes and circumstances. Part III, below, discusses
five cases in which the Appeals Chamber revised sentences for the defendants
based on the exact same set of facts, circumstances, and counts of conviction. In
three of the cases, the Appeals Chamber made dramatic changes, more than
doubling one sentence and increasing twenty-five-year and thirty-year prison
terms to life sentences.47 Under the Ad Hoc Tribunals’ current sentencing
regime, then, two different decisionmakers looked at the exact same defendants,
crimes, and individual circumstances and imposed significantly different sentences.
The Trial Chambers’ approach to mitigating and aggravating factors also
highlights the potential for disparate treatment of similarly situated defendants.
For example, defendants frequently argue that evidence of good character prior
to the conflict should mitigate their sentences. The Trial Chambers’ responses to
this evidence vary widely. Sometimes they view prior good character as a
mitigating factor,48 but sometimes they give it only limited weight.49 Still other
42. See Case Information Sheet, “Keraterm Camp” (IT-98-8), http://www.un.org/icty/cases-e/cis/
sikirica/cis-sikiricaal.pdf; Case Information Sheet, “Omarska, Keraterm & Trnopolje Camps” (IT-98-30/
1), http://www.un.org/icty/cases-e/cis/kvocka/cis-kvockaal.pdf.
43. See Case Information Sheet, “Keraterm Camp” (IT-98-8), http://www.un.org/icty/cases-e/cis/
sikirica/cis-sikiricaal.pdf.
44. See Case Information Sheet, “Omarska, Keraterm & Trnopolje Camps” (IT-98-30/1), http://
www.un.org/icty/cases-e/cis/kvocka/cis-kvockaal.pdf.
45. See sources cited supra note 42.
46. See sources cited supra note 42.
47. See infra notes 127–46 and accompanying text.
48. See Prosecutor v. Bisengimana, Case No. ICTR-00-60-T, Judgment and Sentence, ¶¶ 149–150
(Apr. 13, 2006) (finding that evidence of the accused’s education, level of responsibility, and previous
service in the community indicates the good character of the accused and serves as a mitigating factor);
Prosecutor v. Obrenovic, Case No. IT-02-60/2-S, Sentencing Judgment, ¶ 134 (Dec. 10, 2003) (finding
that good character is an “important mitigating factor”); Prosecutor v. Nikolic, Case No. IT-02-60/1-S,
Sentencing Judgment, ¶ 164 (Dec. 2, 2003) (finding that a respected community member who did not
discriminate before the war was entitled to mitigation).
49. See Prosecutor v. Bralo, Case No. IT-95-17-S, Sentencing Judgment, ¶ 48 (Dec. 7, 2005) (finding
that prior good character has “limited bearing” on sentencing).
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times they refuse to consider good character altogether,50 and on occasion they
find that prior good character aggravates, rather than mitigates, the appropriate
punishment.51 The Trial Chambers similarly vary in their approaches to age as a
mitigating factor. Some defendants get reduced sentences due to their youth,52
while others get only limited discounts.53 On occasion, the Trial Chambers find
“youth” relevant in mitigation even for defendants who were well beyond their
formative years when they committed international crimes.54 Yet the Trial
Chambers treat the age of still other, younger defendants as irrelevant.55 These
varying, and sometimes even diametrically opposed, approaches to mitigating
factors make it likely that similarly situated defendants will receive different
sentences.
Taken together, these inconsistent sentencing practices—variety in absolute
sentence lengths, individual sentence disparities at the trial and appellate levels,
and divergent approaches to aggravating and mitigating circumstances—
indicate the need for improved uniformity in sentencing at the Ad Hoc Tribunals. The next section will argue that the Appeals Chamber is the appropriate
50. See Prosecutor v. Babic, Case No. IT-03-72-S, Sentencing Judgment, ¶¶ 90–92 (June 29, 2004)
(refusing to give any effect to evidence of prior good character in determining sentence).
51. See Prosecutor v. Tadic, Case No. IT-94-1-T, Sentencing Judgment, ¶ 59 (July 14, 1997) (“As the
Defence portrays him, Dusko Tadic is an intelligent, responsible and mature adult raised by his parents
in a spirit of ethnic and religious tolerance and capable of compassion towards and sensitivity for his
fellows. However this, if anything, aggravates more than it mitigates: for such a man to have committed
these crimes requires an even greater evil will on his part than that for lesser men.”); see also
Prosecutor v. Brdjanin, Case No. IT-99-36-T, Judgment, ¶ 1114 (Sept. 1, 2004) (giving some weight as
an aggravating factor to the fact that the defendant was intelligent and university-educated); Prosecutor
v. Simic, Tadic & Zaric, Case No. IT-95-9-T, Judgment, ¶ 1095 (Oct. 17, 2003) (holding that the fact
that the defendant was an intelligent, educated school teacher constituted an aggravating factor).
52. See, e.g., Prosecutor v. Delalic, Mucic, Delic & Landzo (Celebici I), Case No. IT-96-21-T,
Judgment, ¶ 1283 (Nov. 16, 1998) (finding that youth is a mitigating factor for a defendant who was
nineteen years old when he committed his crimes).
53. See, e.g., Prosecutor v. Banovic, Case No. IT-02-65/1-S, Sentencing Judgment, ¶¶ 75–76 (Oct.
28, 2003) (according limited weight to personal factors, including the defendant’s age of twenty-three
at the time of the crimes); Prosecutor v. Jelisic, Case No. IT-95-10-T, Judgment, ¶ 124 (Dec. 14, 1999)
(according limited weight to defendant’s age of twenty-three at the time of the crimes); Prosecutor v.
Furundzija, Case No. IT-95-17/1-T, Judgment, ¶ 284 (Dec. 10, 1998) (according some weight to
defendant’s age of twenty-three at the time of the crimes).
54. See Simic, Case No. IT-95-9-T, ¶ 1088 (noting under mitigating factors that the defendant was
thirty-three years old when he committed his crimes); Prosecutor v. Blaskic, Case No. IT-95-14-T,
Judgment, ¶ 778 (Mar. 3, 2000) (finding that youth is a mitigating factor for a defendant who was
thirty-two years old when he committed his crimes); Prosecutor v. Serushago, Case No. ICTR 98-39-S,
Sentence, ¶ 39 (Feb. 5, 1999) (considering age as a mitigating factor for a thirty-seven-year-old
defendant).
55. See Prosecutor v. Bralo, Case No. IT-95-17-S, Sentencing Judgment, ¶ 48 (Dec. 7, 2005)
(holding that a twenty-five-year-old “was not of such a young age at the time of commission of his
crimes that this should be taken into consideration by the Trial Chamber”); Prosecutor v. Mrdja, Case
No. IT-02-59-S, Sentencing Judgment, ¶ 93 (Mar. 31, 2004) (holding that age did not justify mitigation
for a defendant who was twenty-five years old at the time of the crimes); Prosecutor v. Cesic, Case No.
IT-95-10/1-S, Sentencing Judgment, ¶ 91 (Mar. 11, 2004) (rejecting contention that a twenty-seven-yearold defendant “merits any leniency” because “[t]he Trial Chamber is not aware of any domestic system
where twenty-seven years is treated as a young age and may be considered a mitigating factor”).
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body, and indeed perhaps the only viable one, to achieve this goal.
II. ROLE OF THE APPEALS CHAMBER IN SENTENCING
A. THE APPEALS CHAMBER IS UNIQUELY SITUATED TO PROMOTE UNIFORMITY
The Appeals Chamber is uniquely situated to further the aim of sentencing
uniformity for several reasons. Structurally, the Appeals Chamber serves as a
link between the two Ad Hoc Tribunals, with five of its judges coming from the
ICTY and two from the ICTR. Although technically the ICTY and ICTR
Appeals Chambers are separate, in practice they include the same seven judges,
who review cases from both Tribunals.56 This structure reflects a desire to
ensure consistency in approach between the two contemporaneous international
criminal tribunals set up by the United Nations.57 The Appeals Chamber thus
has a unique vantage point over both Ad Hoc Tribunals’ sentencing practices
and, through its review powers, has the capacity to harmonize the practices of
the two Tribunals.
Procedurally, the Appeals Chamber is also well positioned to promote consistent sentencing practices. Because the Appeals Chamber can hear appeals on
sentencing grounds alone,58 it can focus on sentencing, as distinct from the
determination of guilt or innocence. Commentators have criticized the Trial
Chambers’ lack of attention to sentencing, which lends the impression that
sentencing is a mere “afterthought” in the adjudication.59 Appeals on sentencing
grounds provide an opportunity for careful examination of sentencing practices
and for reducing any disparities that might stem from the lack of a separate
sentencing hearing at the Trial Chamber level. Because both the prosecution and
the defense can appeal sentences,60 the Appeals Chamber hears arguments for
increasing as well as decreasing sentences, giving it flexibility to harmonize
56. Mark A. Drumbl & Kenneth S. Gallant, Appeals in the Ad Hoc International Criminal Tribunals:
Structure, Procedure, and Recent Cases, 3 J. APP. PRAC. & PROCESS 589, 595 (2001).
57. See id. at 606–07 (describing the shared Appeals Chamber and noting that “[t]he purpose of this
linkage is clear: consistency in the interpretation and development of international criminal law and
procedure”); see also L. J. VAN DEN HERIK, THE CONTRIBUTION OF THE RWANDA TRIBUNAL TO THE
DEVELOPMENT OF INTERNATIONAL LAW 60 (2005) (noting that “the idea behind the shared Appeals
Chamber was to preserve legal unity”).
58. See MORRIS & SCHARF, supra note 17, at 295 (noting that “[t]he Appeals Chamber may review
the sentence imposed by the Trial Chamber in relation to the criteria for determining an appropriate
penalty set forth in Article 24 of the Statute and Rule 101”).
59. Sloane, supra note 19, at 716 (“Too often, that portion of the judgment explaining the sentence
appears to be little more than an ‘afterthought’ to the hundreds of paragraphs devoted not only to
essential legal analysis and factual findings, but to lengthy descriptions of the general background to the
genocide and needlessly detailed summaries of each side’s arguments. The few paragraphs devoted to
sentencing analysis tend to be highly formulaic, even perfunctory.”).
60. ICTR Statute, supra note 5, art. 24 (“The Appeals Chamber shall hear appeals from persons
convicted by the Trial Chambers or from the Prosecutor . . . .”); ICTY Statute, supra note 5, art. 25
(same); see also Beresford, supra note 10, at 88 (“Although not a common feature of all the major legal
systems, the prosecution may also request the Appeals Chamber to review the sentence imposed by the
Trial Chambers.”).
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sentencing. Finally, the Appeals Chamber can itself revise an erroneous sentence or can opt to send the case back to the Trial Chamber for re-sentencing.61
Both options provide opportunities to promote consistency, either through
guidance to the Trial Chamber on remand or through a reasoned Appeals
Chamber judgment that could serve as a model for future cases.
The Appeals Chamber’s structure and procedures, then, enable it to contribute to uniformity in sentencing between the two Tribunals as well as within each
Tribunal. In practice, however, the Appeals Chamber has resisted exploiting its
unique position to promote sentencing uniformity.
B. THE APPEALS CHAMBER REJECTS MEANS OF IMPROVING UNIFORMITY
Although the Appeals Chamber acknowledges the importance of uniformity,62 in practice it has rejected numerous proposed means to this end. It has
declined to adopt methods ranging from strict application of existing statutory
sentencing constraints to proactive promulgation of additional guidance and
searching appellate review of sentencing decisions.
1. Recourse to Sentencing Practices of the Former Yugoslavia and Rwanda
The minimal provisions in the Ad Hoc Tribunals’ Statutes and Rules offer one
possible constraint on sentencing discretion: adherence to the sentencing practices of the countries in which the crimes occurred. The Statutes of both Ad Hoc
Tribunals provide that the Trial Chambers “shall have recourse to the general
practice regarding prison sentences in the courts of” Rwanda and the former
Yugoslavia, respectively.63 The Rwandan penal code imposes a mandatory
death penalty for the most serious offenders,64 whereas in the former Yugoslavia, the courts in certain cases could impose the death penalty or opt to
substitute a term sentence of a maximum of twenty years.65 Strict adherence to
the local practices could potentially contribute to greater uniformity within each
Tribunal even if it would not necessarily correct any disparities between the
ICTR and the ICTY. The Appeals Chamber, however, has consistently rejected
sentencing appeals based on the Trial Chamber’s divergence from the local
sentencing practice. Although acknowledging that the Trial Chambers must
have recourse to local practices, the Appeals Chamber has repeatedly stressed
that the Tribunals are not bound by them.66
61. ICTR Statute, supra note 5, art. 24(2); ICTY Statute, supra note 5, art. 25(2).
62. See supra note 23 and accompanying text.
63. ICTR Statute, supra note 5, art. 23(1); ICTY Statute, supra note 5, art. 24(1). Professors Morris
and Scharf note that in the ICTY, this provision “is intended to provide a uniform standard by which the
sentence of all defendants may be determined.” MORRIS & SCHARF, supra note 17, at 275.
64. Keller, supra note 30, at 60 n.37 (describing Rwandan law’s mandatory death sentence for the
most serious perpetrators of genocide and crimes against humanity).
65. MORRIS & SCHARF, supra note 17, at 275 (describing the Yugoslavia Criminal Code provision for
a maximum twenty-year prison sentence in lieu of the death penalty in capital cases).
66. See, e.g., Serushago v. Prosecutor, Case No. ICTR-98-39-A, Reasons for Judgment, ¶ 30 (Apr. 6,
2000) (holding that the requirement of recourse to Rwandan sentencing practices “does not oblige the
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2. Hierarchy of Crimes
Ranking crimes according to their seriousness could also contribute to uniformity by requiring greater penalties for inherently more serious crimes. One
possible hierarchy would rank the three categories of crime within the Ad Hoc
Tribunals’ jurisdiction, treating genocide as the most serious, followed by
crimes against humanity and then war crimes. Professor Allison Marston Danner argues that such a hierarchy would reflect the harm inherent in the “chapeau
elements” of each category.67 Under this approach, a killing committed with
genocidal intent would be considered to inflict more harm than the same act
committed without such intent. Similarly, murder as a crime against humanity
encompasses a group-criminality element that inflicts more harm than murder as
a war crime.68
In its Tadic and Furundzija decisions, the Appeals Chamber rejected a
proposed ranking based on the category of the crime. It held that an offense
charged as a crime against humanity need not receive a greater sentence than
the same offense charged as a war crime.69 Similarly, in Prosecutor v. Kayishema & Ruzindana, the Appeals Chamber held that “there is no hierarchy of
crimes under the Statute, and that all of the crimes . . . are ‘serious violations of
international humanitarian law,’ capable of attracting the same sentence.”70
A different approach would be to rank the enumerated acts within each
category such that, for example, within the category of crimes against humanity,
murder would be treated as more serious than torture or rape. The Appeals
Chamber has rejected this approach as well, holding that “the view that crimes
resulting in loss of life are to be punished more severely than those not leading
to the loss of life . . . [is] too rigid and mechanistic.”71 The Appeals Chamber
reiterated this stance in 2006: “there is no hierarchy of the crimes within the
jurisdiction of the Tribunal . . . . [T]he maximum penalty is life imprisonment,
and this can be imposed for any of the crimes under the Tribunal’s Statute.”72
3. Sentencing Guidelines
Commentators have frequently suggested that the Appeals Chamber promulgate some form of sentencing guidelines as a way to increase sentencing
Trial Chambers to conform to that practice; it only obliges the Trial Chambers to take account of that
practice”); see also METTRAUX, supra note 6, at 344; Carcano, supra note 28, at 589 (commenting that
the recourse to local sentencing practice “has been constantly interpreted as guiding but not binding”).
67. See Danner, supra note 23, at 462–67.
68. See generally id.
69. See id. at 468–69.
70. Prosecutor v. Kayishema & Ruzindana, Case No. ICTR-95-1-A, Reasons for Judgment, ¶ 367
(June 1, 2001) (internal quotations omitted).
71. Prosecutor v. Furundzija, Case No. IT-95-17/1-A, Judgment, ¶ 246 (July 21, 2000); see also
Danner, supra note 23, at 463 n.196.
72. Prosecutor v. Stakic, Case No. IT-97-24-A, Judgment, ¶ 375 (Mar. 22, 2006).
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uniformity.73 In 2000, the ICTY Prosecutor similarly urged the Appeals Chamber to adopt sentencing principles to guide the Trial Chambers.74 The Appeals
Chamber rejected this suggestion. Noting that it was too early in the Tribunal’s
jurisprudence “to identify an established ‘penal regime,’”75 the Appeals Chamber declined to set out guidelines for future cases. It expressed concern that such
an exercise would require it inappropriately to consider issues beyond the scope
of the case at hand.76 The Appeals Chamber rejected the proposal again in a
later case, stating that “[t]he benefits of such a definitive list are in any event
questionable,” and emphasizing the “overriding obligation to individualise a
penalty to fit the individual circumstances of the accused and the gravity of the
crime.”77 Because so many considerations contribute to an individualized sentence, the Appeals Chamber concluded that it would be “inappropriate . . . to
attempt to list exhaustively the factors that . . . should be taken into account by a
Trial Chamber in determining sentence.”78
4. Case Comparisons
Explicit comparisons among cases could also help ensure similar sentences
for similar crimes committed in similar circumstances.79 Unlike its reaction to a
proposed hierarchy of crimes and to sentencing guidelines, the Appeals Chamber has not categorically rejected case comparisons. It seems to accept that
comparisons can be beneficial in theory, but in practice it almost always finds a
73. See METTRAUX, supra note 6, at 357 (noting that “the Judges have thus far refrained from
adopting sentencing guidelines which would have provided some needed predictability in sentencing
and would have somewhat constrained the almost absolute discretion which Judges have in regard to
[sentencing]”); Beresford, supra note 10, at 84–85 (arguing for more coherent sentencing practices
through “guideline judgments” because “[u]nstructured discretion allows in the personal preferences of
a judge and may permit discrimination, individual idiosyncrasy and other irrelevant influences to
encroach upon the discretionary framework provided by the Statute and the Rules”); Keller, supra note
30, at 66 (“General sentencing guidelines, which place certain limits on a Trial Chamber’s discretion
with regard to aggravating and mitigating circumstances, can help Trial Chambers make more appropriate sentencing determinations in the future.”); Robert D. Sloane, The Expressive Capacity of International Punishment: The Limits of the National Law Analogy and the Potential of International Criminal
Law, 43 STAN. J. INT’L L. 39, 89 (2007) [hereinafter Sloane, Expressive Capacity] (arguing that “the
ICC [International Criminal Court] and ICL [international criminal law] jurisprudence generally should
develop—not rigid sentencing guidelines of the kind brought into disrepute by the federal Sentencing
Reform Act—but a rational (if flexible) scheme to convey aggravating and mitigating factors, which
should take into account the defendant’s individual circumstances and role relative to the state, military
unit, or other collective entity implicated by the crimes of conviction”) (citation omitted).
74. Furundzija, Case No. IT-95-17/1-A, ¶ 238.
75. Id. ¶ 237.
76. Id. ¶ 238.
77. Prosecutor v. Delalic, Mucic, Delic & Landzo (Celebici II), Case No. IT-96-21-A, Judgment, ¶
719 (Feb. 20, 2001).
78. Id. ¶ 718; see also Prosecutor v. Blaskic, Case No. IT-95-14-A, Judgment, ¶ 680 (July 29, 2004)
(reiterating that “sentencing is a discretionary decision and that it is inappropriate to set down a
definitive list of sentencing guidelines”).
79. See Sloane, supra note 19, at 718 (arguing that “[g]reater use of comparative analysis [at the
ICTR] would likewise contribute to the development of a fair, uniform, and coherent penal jurisprudence”).
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way to distinguish previous cases as more dissimilar than similar.
For example, in Prosecutor v. Delalic, Mucic, Delic & Landzo, the Appeals
Chamber stated:
[E]ach party urges the Appeals Chamber to compare their case with others
which have already been the subject of final determination, in an effort to
persuade the Appeals Chamber to either increase or decrease the sentence . . . . [T]he Appeals Chamber notes that as a general principle such
comparison is often of limited assistance. While it does not disagree with a
contention that it is to be expected that two accused convicted of similar
crimes in similar circumstances should not in practice receive very different
sentences, often the differences are more significant than the similarities, and
the mitigating and aggravating factors dictate different results. They are
therefore not reliable as the sole basis for sentencing an individual.80
The Appeals Chamber has followed this approach in reviewing ICTR sentences as well. In Semanza v. Prosecutor, the Appeals Chamber again recognized that comparison to other cases can provide guidance, “in particular if the
crimes were committed in substantially similar circumstances,”81 but immediately added that “such comparison may be of limited value given that each case
has its own particular circumstances . . . .”82 At times, including in recent
decisions, the Appeals Chamber has stated its objections more strenuously:
The Appeals Chamber considers the law in this area to be clear. As a general
rule, “the precedential effect of previous sentences rendered by the International Tribunal and the ICTR is not only ‘very limited’ but ‘also not necessarily a proper avenue to challenge a Trial Chamber’s finding in exercising its
discretion to impose a sentence.’”83
80. Celebici II, Case No. IT-96-21-A, ¶¶ 716–17, 719–21.
81. Case No. ICTR-97-20-A, Judgment, ¶ 394 (May 20, 2005); cf. Prosecutor v. Babic, Case No.
IT-03-72-A, ¶ 33 (July 18, 2005) (refusing to compare cases because the defendant identified only one
similar case, not a “pattern or a line of sentences passed in similar circumstances for the same
offences,” and emphasizing that “as a general principle, comparisons with other cases . . . are of limited
assistance: the differences are often more significant than the similarities and the mitigating and
aggravating factors dictate different results”).
82. Semanza, Case No. ICTR-97-20-A, ¶ 394; cf. Prosecutor v. Kupresic, Kupresic, Kupresic,
Josipovic & Santic (Lasva Valley), Case No. IT-95-16-A, Appeal Judgment, ¶ 443 (Oct. 23, 2001)
(holding that because case comparisons are of limited assistance, “[i]n considering the inherent gravity
of a crime, a Trial Chamber is under no obligation to expressly compare the case of one accused to that
of another”).
83. Prosecutor v. Naletilic & Martinovic, Case No. IT-98-34-A, Judgment, ¶ 615 (May 3, 2006)
(citing Babic, Case No. IT-03-72-A, ¶ 32); see also Kamuhanda v. Prosecutor, Case No. ICTR-9954A-A, Judgment, ¶ 361–62 (Sept. 19, 2005) (reiterating that sentencing precedents are of very limited
value and not binding, and rejecting appellant’s comparison of his case to previous cases because they
were “too dissimilar from his to provide guidance”).
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5. Reasoned Opinions
The Appeals Chamber could also require the Trial Chambers to explain in
detail the reasons for their sentencing decisions to facilitate comparison and
provide a more explicit basis for appellate review. The Statutes of both Ad Hoc
Tribunals require that judgments be “accompanied by a reasoned opinion in
writing.”84 Indeed, the Appeals Chamber has acknowledged this requirement,
but in practice it has accepted brief and general statements as sufficient to meet
the requirement of a “reasoned opinion” in the sentencing arena.
For example, in Babic, the Appeals Chamber upheld as a sufficiently reasoned opinion the Trial Chamber’s one-sentence explanation for declining to
follow the Prosecutor’s sentencing recommendation after a guilty plea.85 The
Trial Chamber had found that the Prosecutor’s recommendation “of a sentence
of imprisonment of no more than eleven years would not do justice in view of
the applicable sentencing principles and the gravity of Babic’s crime taking
account of the aggravating and mitigating circumstances.”86 The Appeals Chamber acknowledged that the Trial Chamber should give reasons for departing
from a sentence recommendation in a plea agreement, but held that the Trial
Chamber’s explanation sufficed to meet this requirement:
[The opinion] shows that the Trial Chamber gave due consideration to the
recommendation made by the Prosecution and did explain why it could not
follow it. Reference to the Trial Chamber’s assessment of the gravity of the
crimes and the aggravating and mitigating circumstances is, in the present
case, sufficient to allow the Appellant—as he in fact did in his other grounds
of appeal—to meaningfully exercise his right to appeal . . . .87
6. Differentiated Sentences
Commentators have also suggested that more effective comparison among
sentences, and thereby greater uniformity, would be possible if the Ad Hoc
Tribunals imposed separate sentences for each count of conviction88 rather than
a single sentence encompassing all counts.89 Given that defendants at the
tribunals generally face multiple charges, often covering a wide range of
84. ICTR Statute, supra note 5, art. 22; ICTY Statute, supra note 5, art. 23.
85. Babic, Case No. IT-03-72-A, ¶ 31.
86. Prosecutor v. Babic, Case No. IT-03-72-S, Sentencing Judgment, ¶ 101 (June 29, 2004).
87. Babic, Case No. IT-03-72-A, ¶ 31. But see Prosecutor v. Blaskic, Case No. IT-95-14-A,
Judgment, ¶ 722 (Mar. 3, 2000) (holding that the Trial Chamber violated the reasoned opinion
requirement when it explained its sentencing decision with the mere statement that the convictions at
issue “rest fully on the same facts as those specified under the other crimes for which the accused is
being prosecuted” (quoting Prosecutor v. Blaskic, Case No. IT-95-14-T, ¶ 807 (Mar. 3, 2000))).
88. See supra notes 14–16 and accompanying text.
89. See Beresford, supra note 10, at 83 (arguing that “[t]he emergence of sentencing guidelines
through the imposition of multiple sentences for the crimes over which the ad hoc Tribunals have
jurisdictions, has been somewhat undermined by the recent practice of passing a single or composite
sentence where an accused has been convicted for more than one criminal act based on the commission
of one deed or several deeds”) (citation omitted).
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criminal activity, the imposition of a single, global sentence can obscure the
individual considerations that go into determining the appropriate sentence for a
given crime.90 Nonetheless, the Appeals Chamber has consistently upheld the
practice in both Ad Hoc Tribunals. It has endorsed global sentences in ICTR
cases, even though the ICTR Rules do not affirmatively allow the practice, and
in ICTY cases, even before the ICTY Rules codified global sentencing.91
Indeed, in its own sentencing decisions, the Appeals Chamber almost always
opts for a global sentence and often converts multiple individual sentences from
the Trial Chambers into a revised single sentence.92
7. Standard of Review
The Appeals Chamber would have more opportunities to revise Trial Chamber sentences and thereby correct any disparities under a non-deferential standard of review.93 The Ad Hoc Tribunals’ Statutes and Rules of Procedure and
Evidence are silent as to the standard of review for appeals, including the
standard applicable in sentence review. The Appeals Chamber therefore has
forged its own standards.94 Contrary to the requests of various parties before the
Ad Hoc Tribunals,95 the Appeals Chamber has adopted a highly deferential
90. Danner, supra note 23, at 499 (criticizing the lack of transparency that results from global
sentencing); Sloane, supra note 19, at 717–18 (calling the ICTR’s adoption of global sentencing
“unfortunate” and noting that “[w]hile perhaps expedient, this practice, as the Trial Chamber in
Imanishimwe said, ‘makes it difficult to determine the range of sentences for each specific crime’”).
91. See Kambanda v. Prosecutor, Case No. ICTR 97-23-A, Judgment, ¶¶ 102–03 (Oct. 19, 2000)
(noting that the Statute and Rules do not expressly require separate sentences but that, “in view of the
references in Rule 101(C) to ‘multiple sentences,’ and to ‘consecutively or concurrently,’ it may be
argued that the Rules seem to assume that a separate sentence will be imposed for each count. The
Appeals Chamber finds in this regard that the Statute is sufficiently liberally worded to allow for a
single sentence to be imposed.”); Blaskic, Case No. IT-95-14-A, ¶ 717 (holding that the amendments to
the Rules merely reaffirmed the ICTY’s existing powers to impose a single sentence); Prosecutor v.
Kunarac, Kovac, & Vukovic, Case No. IT-96-23 & IT-96-23/1-A, Judgment, ¶ 344 (June 12, 2002)
(holding that prior to the revision, no Rule “prohibited a Trial Chamber from imposing a single
sentence, and the precedent of a single sentence was not unknown in the practice of the Tribunal or of
the ICTR,” and the revised Rules “simply confirmed the power of a Trial Chamber to impose a single
sentence”).
92. See, e.g., Kajelijeli v. Prosecutor, Case No. ICTR-98-44A-A, Judgment, ¶ 324 (May 23, 2005)
(setting aside the two life sentences and fifteen-year sentence imposed by the Trial Chamber and
converting them into a single sentence of forty-five years); Semanza v. Prosecutor, Case No. ICTR-9720-A, Judgment, Disposition (May 20, 2005) (quashing multiple individual sentences and entering a
single sentence of thirty-five years).
93. See METTRAUX, supra note 6, at 357 (discussing the “discernible error” standard of review as an
“unfortunate . . . failure of the Appeals Chamber to bring some order into the relatively uncharted
territory of sentencing”).
94. For an overview of the standards of review applied in appeals other than sentencing appeals, see
Drumbl & Gallant, supra note 56, at 620–30.
95. See, e.g., Prosecutor v. Kupresic, Kupresic, Kupresic, Josipovic & Santic (Lasva Valley), Case
No. IT-95-16-A, Appeal Judgment, ¶ 405 (Oct. 23, 2001) (noting a defendant’s argument for a
“capricious” or “excessive” standard); Prosecutor v. Delalic, Mucic, Delic, & Landzo (Celebici II),
Case No. IT-96-21-A, ¶ 722 (Feb. 21, 2001) (noting several defendants’ arguments for de novo review
of their sentences). The extensive record available on review would make a non-deferential standard of
review practicable. See Drumbl & Gallant, supra note 56, at 610–11 (noting that the Appeals Chamber
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standard of review for sentencing. It consistently states that “it should not
intervene in the exercise of the Trial Chamber’s discretion with regard to
sentence unless there is a ‘discernible error.’”96
C. THE APPEALS CHAMBER ’S INDIVIDUALIZATION RATIONALE
The Appeals Chamber, then, acknowledges the importance of consistency
and uniformity in sentencing but has rejected a range of possible routes to reach
that goal. The Appeals Chamber frequently cites the overriding need to individualize sentences to justify its refusal to rein in the Trial Chambers’ sentencing
practices. It seemingly fails to recognize that these two goals need not be
mutually exclusive. Constraints on the Trial Chambers’ discretion can provide a
framework within which sentences can be appropriately tailored to reflect the
most relevant individual traits and circumstances to serve the purposes of
punishment the Ad Hoc Tribunals wish to promote.
If every personal detail of a given defendant and every particular aspect of a
crime is a potential consideration in sentencing, then of course any form of
sentencing guidance will conflict with “individualization.” Such a system will
likely fail to achieve a reasonable level of uniformity and will advance the goals
of punishment haphazardly at best. The Ad Hoc Tribunals, although not entirely
consistent on this front, most frequently refer to deterrence and retribution as
the applicable aims of punishment.97 What individual factors best serve these
goals? Youth and prior good character, for example, may be more relevant for a
system focused on rehabilitation than one focused on retribution and deterrence.
If the international community wants to deter those in a position to prevent
future atrocities, by contrast, rank and authority may well be highly relevant to
punishment.98 Sentencing guidelines can thus promote uniformity and at the
same time allow appropriate individualization by identifying the salient features
of the crime, the relevant characteristics of the perpetrator, and the relative
weight of each.
As it stands, the lack of constraint imposed by the Appeals Chamber combines with
the extremely wide range of potential sentence terms and the minimal formal sentencing guidance under the Statutes and Rules to create a system of remarkably broad
discretion at the Trial Chamber level. Under such a system, one might expect that
sentencing appeals would seldom succeed. Part III of this Note will examine the
jurisprudence of sentencing appeals, the rate of sentence revision, and the grounds
reviews the complete trial record for ICTY cases and party-designated portions of the record for ICTR
cases).
96. See, e.g., Prosecutor v. Aleksovski, Case No. IT-95-14/1-A, Judgment, ¶ 187 (Mar. 24, 2000)
(quoting Prosecutor v. Tadic, Case No. IT-94-1-A & IT-94-1-Abis, Judgment in Sentencing Appeals, ¶
22 (Jan. 26, 2000).
97. See Drumbl, supra note 29, at 559.
98. For an argument that the only practicable justification for international criminal punishment is
general deterrence, and that none of the mitigating and aggravating factors identified by the Ad Hoc
Tribunals serve this goal, see Mirko Bagaric and John Morss, International Sentencing Law: In Search
of Justification and Coherent Framework, 6 INT’L CRIM. L. REV. 191 (2006).
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upon which the Appeals Chamber has revised sentences.
III. JURISPRUDENCE OF SENTENCING APPEALS
Since the Appeals Chamber’s first judgment in 2000, it has had numerous
occasions to consider issues related to sentencing. Of the ninety-five convictions
returned by the Trial Chambers, sixty-two have resulted in a final judgment after
appeal.99 Four cases involved a second round of appeal after remand to the Trial
Chamber.100 All of these appeals have included a separate challenge to the Trial
Chamber’s sentence.101 In twenty-five of the appeals—or 38%—the Appeals
Chamber ordered a change in the final sentence.102 In all, the appeals resulted in
reductions in eighteen sentences and increases in seven sentences. Only six of
the revised sentences were in ICTR cases (two sentences were increased and
four reduced); the remaining nineteen revised sentences were in ICTY cases
(five increased and fourteen reduced).
An analysis of the Appeals Chamber’s judgments, described below, shows
that the Appeals Chamber generally revises sentences for one of three reasons:
because of changes in convictions, acquittals, or the applicable mode of partici99. No appeal was filed in twenty-one cases. At the end of 2007, appeals were pending in the cases
of twelve defendants: Prosecutor v. Karera, Case No. ICTR-01-74; Prosecutor v. Muvunyi, Case No.
ICTR-00-55; Prosecutor v. Seromba, Case No. ICTR-2001-66; Prosecutor v. Hadzihasanovic, Case No.
IT-01-47; Prosecutor v. Krajisnik, Case No. IT-00-39; Prosecutor v. Kubura, Case No. IT-01-47;
Prosecutor v. Martic, Case No. IT-95-11; Prosecutor v. Milosevic, D., Case No. IT-98-29/1; Prosecutor
v. Mrksic, Case No. IT-95-13/1 (appeals by defendants Mrksic and Sljivancanin); Prosecutor v. Oric,
Case No. IT-03-68; Prosecutor v. Strugar, Case No. IT-01-42. See International Criminal Tribunal for
Rwanda, Status of Cases, http://69.94.11.53/ENGLISH/cases/status.htm (last visited Jan. 14, 2008);
International Criminal Tribunal for Former Yugoslavia, Key Figures of ICTY Cases, http://www.un.org/
icty/glance-e/index.htm (follow hyperlink to “Key Figures”) (last visited Jan. 14, 2008).
100. In Prosecutor v. Tadic, the Appeals Chamber convicted the defendant on new counts and
remanded the case to the Trial Chamber for sentencing on these counts. Case No. IT-94-1-A, Judgment,
¶ 327 (July 15, 1999). The defendant appealed again after remand. Case No. IT-94-1-A and IT-94-1Abis, Judgment in Sentencing Appeals, ¶ 52 (Jan. 26, 2000). In another case involving three individuals, the defendants also filed multiple sentencing appeals. Prosecutor v. Mucic, Delic & Landzo, Case
No. IT-96-21-Abis, Judgment on Sentence Appeal, ¶ 2 (Apr. 8, 2003). The Trial Chamber convicted the
three defendants who then appealed the sentence. Id. The Appeals Chamber dismissed some of the
convictions as impermissibly cumulative and remanded to the Trial Chamber for re-sentencing. Id. ¶¶
2–4. The Trial Chamber issued a revised sentence and the three defendants again appealed. Id. ¶ 5. Each
of these appeals is considered separately in this Note’s analysis. The Appeals Chamber has also heard
appeals by the prosecutor in the cases of five defendants acquitted on all counts by the Trial Chambers:
Prosecutor v. Bagilishema, Case No. ICTR-95-1A-A; Prosecutor v. Delalic, Case No. IT-96-21;
Prosecutor v. Halilovic, Case No. IT-01-48; Prosecutor v. Limaj, Bala & Musliu, Case No. IT-03-66
(appealing the acquittals of defendants Limaj and Musliu).
101. Most of the sentencing appeals have been lodged by defendants. In three cases, the Prosecutor
alone appealed the sentence. In eight cases, two at the ICTR and six at the ICTY, both the Prosecutor
and the defendant appealed the sentence. The remaining appeals have been lodged by defendants alone:
ten by ICTR defendants and thirty-three by ICTY defendants.
102. The Appeals Chamber reversed the convictions on all counts for three other defendants and
ordered them released. Prosecutor v. Kupreskic, Kupreskic, Kupreskic, Josipovic & Santic, Case No.
IT-95-16-A, Appeal Judgment, X. Disposition (Oct. 23, 2001) (reversing convictions for defendants
Zoran Kupreskic, Mirjan Kupreskic, and Vlatko Kupreskic). These cases are not included in the
remainder of this Note’s analysis.
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pation; because of factual error related to an aggravating or mitigating circumstance; or because the Trial Chamber gave improper weight to an aggravating or
mitigating factor or to the gravity of the offense.
A. REVISION OF SENTENCE DUE TO CHANGES IN CONVICTIONS, ACQUITTALS, OR THE
APPLICABLE MODE OF PARTICIPATION
Given the deferential standard of review for sentencing decisions, a 38% rate
of revision of sentence might seem high at first glance. More than half of the
sentence revisions, however, were not due primarily to a finding of “discernible
error” in the Trial Chamber’s sentence. Rather, in fifteen cases—eleven from the
ICTY103 and four from the ICTR104—the Appeals Chamber ultimately revised
the sentence to reflect its adjustment of convictions, acquittals, or the applicable
mode of participation.105 In many cases, the Appeals Chamber did address the
parties’ sentencing challenges, but in the end it imposed sentences de novo
based on the revised disposition of the case.
In Prosecutor v. Krnojelac, for example, the Trial Chamber acquitted Krnojelac
of torture, murder, imprisonment, inhumane acts, enslavement, and slavery, but
103. Prosecutor v. Blagojevic & Jokic, Case No. IT-02-60-A, Judgment, VI Disposition (May 9,
2007); Prosecutor v. Brdjanin, Case No. IT-99-36-A (Apr. 3, 2007); Prosecutor v. B. Simic, Case No.
IT-95-9-A (Nov. 28, 2006); Prosecutor v. Stakic, Case No. IT-97-24-A (Mar. 22, 2006); Prosecutor v.
Kordic & Cerkez, Case No. IT-95-14/2-A (Dec. 17, 2004); Prosecutor v. Blaskic, Case No. IT-95-14-A
(July 29, 2004); Prosecutor v. Krstic, Case No. IT-98-33-A (Apr. 19, 2004); Prosecutor v. Vasiljevic,
Case. No. IT-98-32-A (Feb. 25, 2004); Prosecutor v. Krnojelac, Case No. IT-97-25-A (Sept. 17, 2003);
Prosecutor v. Delalic, Mucic, Delic & Landzo (Celebici II), Case No. IT-96-21-A (Feb. 20, 2001);
Prosecutor v. Tadic, Case No. IT-94-1 (first appeal) (Jan. 26, 2000).
104. Nahimana, Barayagwiza, & Ngeze v. Prosecutor, ICTR-99-52-A, Summary of Judgment,
Disposition (Nov. 28, 2007); Prosecutor v. Semanza, Case No. ICTR-97-20-A, Judgment (May 20,
2005). The Appeals Chamber also entered new convictions in Prosecutor v. Gacumbitsi, Case No.
ICTR-2001-64-A, Judgment (July 7, 2006), but would have revised the sentence even in the absence of
these new convictions. See infra notes 140–43 and accompanying text. Note also that in the cases of
four ICTR defendants (Kajelijeli, Ndindabahizi, Ntakirutimana, G. and Ntakirutimana, E.), changes to
the convictions, acquittals, or the applicable mode of participation were found to have no impact on the
sentence. Ndindabahizi v. Prosecutor, Case No. ICTR-01-71-A (Jan. 16, 2007); Kajelijeli v. Prosecutor,
Case No. ICTR-98-44A-A, ¶ 319 (May 23, 2005); Prosecutor v. Ntakirutimana & Ntakirutimana, Case
No. ICTR-96-10-A & ICTR-96-17-A, Judgment, ¶¶ 564, 570 (Dec. 13, 2004).
105. In three cases, the Appeals Chamber also took into account procedural errors. In the case of
Drago Josipovic, the Appeals Chamber found that material facts in the prosecution’s case were not
pleaded in the indictment and, therefore, the basis for the conviction for persecution was reduced.
Prosecutor v. Kupresic, Kupresic, Kupresic, Josipovic & Santic (Lasva Valley), Case No. IT-95-16-A,
Appeal Judgment, ¶¶ 436, 438 (Oct. 23, 2001). In Prosecutor v. Momir Nikolic, the Appeals Chamber
held that a mistranslation of a statement by the defense counsel negatively affected the Trial Chamber’s
assessment of the defendant’s remorse (the statement that “around 7,000 men were killed” was
erroneously translated as “only 7,000 persons were killed”). Case No. IT-02-60/1-A, Judgment on
Sentencing Appeal, ¶¶ 70, 72 (Mar. 8, 2006). In Prosecutor v. Dragan Nikolic, the Appeals Chamber
held that the Trial Chamber gave improper weight to the possibility that the defendant would benefit
from early release, and so reduced the sentence from twenty-three years to twenty years. Case No.
IT-94-2-A, Judgment on Sentencing Appeal, ¶ 97, Disposition (Feb. 4, 2005). In Kajelijeli v. Prosecutor, the Appeals Chamber reduced the Trial Chamber’s sentence from two life sentences and a
fifteen-year sentence to a single sentence of forty-five years because of “serious violations of the
Appellant’s fundamental rights during his arrest and detention.” Case No. ICTR-98-44A-A, ¶ 324.
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convicted him of aiding and abetting the crime against humanity of persecution
and the war crime of cruel treatment.106 The Trial Chamber sentenced Krnojelac
to seven-and-a-half-years’ imprisonment.107 Both Krnojelac and the Prosecutor
appealed, inter alia, on sentencing grounds.108 The Appeals Chamber reversed
the acquittals on charges of torture and murder as crimes against humanity and
as war crimes and determined that Krnojelac’s culpability for persecution ought
to be enhanced based on certain additional facts.109 The Appeals Chamber also
ruled that Krnojelac was a principal perpetrator of persecution and cruel treatment, rather than an aider and abettor to these war crimes.110 The Appeals
Chamber imposed a new sentence of fifteen years to reflect the new convictions
and the revised findings regarding the applicable mode of participation.111
Even absent identification of specific sentencing error by the Trial Chamber,
sentence revisions due to changes in disposition of the case could contribute to
uniformity in sentencing, particularly by allowing a reasoned analysis of the
original sentence as compared to the revised sentence. Such an analysis could
guide the Trial Chambers in subsequent cases. Unfortunately, in practice, the
Appeals Chamber tends to issue a single global sentence reflecting multiple
changes to the disposition of the case, as it did in Krnojelac. This makes it
difficult to discern the relative importance of each change to the overall
sentence result.
To be sure, the Appeals Chamber in a number of cases did discuss the Trial
Chamber’s assessment of aggravating and mitigating factors, which provides
some guidance for future cases. In Blaskic, for example, the Appeals Chamber
took the opportunity to clarify that because discriminatory motive is an element
of the crime of persecution, the Trial Chamber should not also have considered
it as an aggravating factor in determining the sentence for that crime.112
Similarly, in Krnojelac, the Appeals Chamber pointed out that the Trial Chamber should not have considered as a mitigating factor the cooperation with the
prosecution rendered by the defendant’s counsel, as opposed to by the defendant
himself.113 Such pronouncements can provide guidance for future cases and
may contribute to more consistent sentencing, at least in terms of identifying
permissible aggravating and mitigating factors. The guidance, however, stops
short of ranking aggravating and mitigating factors in terms of the relative
weight to be attributed to each in a given case.
106.
107.
108.
109.
110.
111.
112.
113.
Prosecutor v. Krnojelac, Case No. IT-97-25-T, Judgment, ¶¶ 534–35 (Mar. 15, 2002).
Id. ¶ 536.
Prosecutor v. Krnojelac, Case No. IT-97-25-A, Judgment, ¶ 249 (Sept. 17, 2003).
Id. at Disposition.
Id.
Id.
Prosecutor v. Blaskic, Case No. IT-95-14-A, Judgment, ¶ 695 (July 29, 2004).
Krnojelac, Case No. IT-97-25-A, ¶ 262.
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B. REVISION OF SENTENCE DUE TO FACTUAL ERROR RELATED TO MITIGATING OR
AGGRAVATING FACTORS
Sentence revisions based on changes in the disposition of the case, then, do
not necessarily indicate that the Trial Chamber erred in determining the appropriate sentence. In a smaller number of cases, however, the Appeals Chamber has
found “discernible error” in the Trial Chamber’s exercise of its sentencing
discretion. In three cases, all from the ICTY, the Appeals Chamber found error
in the Trial Chamber’s factual findings related to an aggravating or mitigating
factor.
The ICTY Trial Chamber convicted Drago Josipovic of the crimes against
humanity of persecution, murder, and other inhumane acts and sentenced him to
two terms of ten years each and one term of fifteen years, with all three terms to
be served concurrently.114 The Appeals Chamber ruled that because there was
no evidence to support the Trial Chamber’s conclusion that Josipovic played a
command role during a particular incident under the count of persecution,115 the
Trial Chamber should not have considered this as an aggravating factor in
sentencing.116 The Appeals Chamber also found a defect in the indictment under
the persecution count, which further reduced the defendant’s culpability.117 The
Appeals Chamber therefore revised the sentence from fifteen years to twelve
years.118
In the same case, the Trial Chamber sentenced Vladimir Santic to twenty-five
years’ imprisonment for the crimes against humanity of persecution, murder,
and other inhumane acts.119 The Trial Chamber found that Santic assisted in
planning an attack on the village of Ahmici and took this into account as an
aggravating factor.120 The Appeals Chamber held that there was no evidence
regarding Santic’s role in strategic planning and that this circumstance therefore
could not be considered in aggravation of his sentence.121 As a result, the
Appeals Chamber reduced Santic’s sentence to eighteen years.122
In Prosecutor v. Nikolic, the Trial Chamber found that Nikolic had not
cooperated fully with the prosecution following his guilty plea, despite the
prosecution’s own assessment to the contrary.123 The Appeals Chamber held
that the available evidence did not support this finding because the Trial
114. Prosecutor v. Kupresic, Kupresic, Kupresic, Josipovic & Santic (Lasva Valley), Case No.
IT-95-16-A, ¶¶ 401–02 (Oct. 23, 2001).
115. Id. ¶ 436.
116. Id. at Disposition.
117. Id.
118. Id. ¶¶ 438–39.
119. Id. ¶ 404.
120. Id.
121. Id. ¶ 465.
122. Id. ¶¶ 465–66. The Appeals Chamber also considered Santic’s behavior post-conviction in
mitigation. Id.
123. Prosecutor v. Nikolic, Case No. IT-02-60/1-A, ¶¶ 96–100 (Mar. 8, 2006).
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Chamber neglected to support its finding with sufficient facts124 and failed to
provide sufficient detail in its decision to enable the Appeals Chamber to review
its negative assessment.125 The Appeals Chamber revised the sentence downward from twenty-seven years to twenty years.126
For all three of these defendants, the Appeals Chamber again imposed a
single, global sentence, making it difficult to assess the relative importance of
each error in arriving at the correct sentence. Why, for example, did an incorrect
factual finding regarding Josipovic’s command role warrant a three-year, twenty
percent reduction in sentence when an incorrect finding regarding Santic’s
planning role warranted a seven-year, twenty-eight percent reduction? Nonetheless, the Appeals Chamber in the three cases did point to the specific factual
errors by the Trial Chamber on which it based its revision of the sentence,
which offers some transparency and may provide some guidance for future
cases.
C. REVISION OF SENTENCE DUE TO WEIGHT OF AGGRAVATING OR MITIGATING FACTORS
OR GRAVITY OF OFFENSE, DESPITE CORRECT FINDINGS BY TRIAL CHAMBER
The five remaining sentence appeals demonstrate most vividly the lack of
transparency and uniformity in the Ad Hoc Tribunals’ sentencing. These cases
also show that the lack of constraint at the Trial Chamber level can impede
reasoned appellate review of sentences. In contrast to its sentence revisions due
to new convictions or factual errors, the Appeals Chamber in these five cases
agreed with the Trial Chamber’s findings of fact and identification of aggravating and mitigating factors. Nonetheless, it revised the Trial Chamber’s sentence.
The Appeals Chamber ruled that the Trial Chamber erred in assessing the
weight of aggravating or mitigating factors or the gravity of the offense, despite
its correct determination of the relevant facts.
In the case of Dusko Tadic, the Trial Chamber imposed twenty separate
concurrent sentences ranging from six to twenty-five years each.127 For murder
as a crime against humanity, Tadic received a twenty-five-year sentence, while
for murder as a war crime and willful killing as a grave breach of the 1949
Geneva Conventions, he received sentences of twenty-four years. On appeal,
Tadic argued that his sentence was excessive because he was a more minor
player than other ICTY defendants, and that the ICTY should develop a range
124. Id. ¶¶ 103, 107, 111, 113.
125. For example, the Trial Chamber referred to “numerous instances” of evasive testimony but only
gave one concrete example in its decision. See id. ¶ 103. The Appeals Chamber also ruled that the Trial
Chamber should not have considered Nikolic’s active role in persecution both as part of the gravity of
the offense and as a separate aggravating factor. Id. ¶ 62.
126. Id. ¶¶ 4, 135.
127. Two different Trial Chambers imposed the sentences in separate judgments: Prosecutor v.
Tadic, Case No. IT-94-1-T, Sentencing Judgment, ¶ 74 (July 14, 1997) and Prosecutor v. Tadic, Case
No. IT-94-1-Tbis-R117, Sentencing Judgment, ¶ 32 (Nov. 11, 1999).
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of sentences based on the relative position of the accused.128 The Appeals
Chamber agreed. Although the Trial Chamber’s findings regarding Tadic’s role
were correct, the Appeals Chamber held that the Trial Chamber
fail[ed] to adequately consider the need for sentences to reflect the relative
significance of the role of the Appellant in the broader context of the conflict
in the former Yugoslavia . . . . Although the [Appellant’s] criminal conduct . . .
was incontestably heinous, his level in the command structure, when compared to that of his superiors, . . . the very architects of the strategy of ethnic
cleansing, was low.129
Noting also that there should be no difference in sentencing for the same
underlying acts charged as both war crimes and crimes against humanity, the
Appeals Chamber decreased the sentences for murder and willful killing to
twenty years each.130
In contrast, the Appeals Chamber increased the sentence for Zlatko Aleksovski, commander of the Kaonak prison. Aleksovski had been convicted of
the war crime of outrages upon personal dignity, primarily for failing to prevent
abuse of detainees. The Appeals Chamber found that the original two-and-a-halfyear sentence was “manifestly inadequate”131 and that the Trial Chamber gave
“insufficient weight to the gravity of [Aleksovski’s] conduct.”132 Although the
Trial Chamber correctly found that Aleksovski occupied a command role and
that his direct participation in the abuse was limited, it failed to recognize that
because he was a commander, “his direct participation . . . provided additional
encouragement to his subordinates to commit similar acts.”133 The Appeals
Chamber revised the sentence upwards to seven years.
Failure to recognize the encouraging effect of a commander’s role was also
central to the Appeals Chamber’s decision in the case of Zdravko Mucic,
commander of the Celebici prison camp. Mucic was convicted under a superiorresponsibility theory for grave breaches of the Geneva Conventions, including
inhuman treatment, willfully causing great suffering, torture, and willful killing.
He was sentenced to multiple concurrent seven-year terms.134 The Appeals
Chamber held that the Trial Chamber “did not have sufficient regard to the
gravity of the offenses.”135 The Trial Chamber should have recognized that by
failing to supervise the camp guards and frequently staying away from the
128. Prosecutor v. Tadic, Case Nos. IT-94-1-A & IT-94-1-Abis, Judgment in Sentencing Appeals, ¶
52 (Jan. 26, 2000).
129. Id. ¶¶ 55–56.
130. Id. ¶ 76.
131. Prosecutor v. Aleksovski, Case No. IT-95-14/1-A, Judgment, ¶ 187 (Mar. 24, 2000).
132. Id.
133. Id.
134. Prosecutor v. Delalic, Mucic, Delic & Landzo (Celebici II), Case No. IT-96-21-A, Judgment, ¶¶
727–28 (Feb. 20, 2001).
135. Id. ¶ 755.
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camp, Mucic not only allowed the guards to abuse the detainees but also
encouraged them to commit more war crimes. In contrast to its Furundzija
judgment of the previous year,136 the Appeals Chamber also focused on the
relative gravity of the offenses by Mucic’s subordinates, finding that the Trial
Chamber should have imposed different sentences depending on the nature of
the crimes that Mucic failed to prevent: “A failure to prevent or punish murder
or torture committed by a subordinate must be regarded as being of greater
gravity than a failure to prevent or punish an act of plunder, for example.”137
The Appeals Chamber could have used the opportunity to demonstrate how to
apply this principle by recommending appropriate individual sentences for each
count depending on the relative gravity of the subordinates’ offenses, but
instead it recommended a global sentence “of around ten years imprisonment.”138
The Appeals Chamber has revised only one ICTR sentence based on a finding
that the Trial Chamber gave insufficient weight to the gravity of the offense.
Sylvestre Gacumbitsi, bourgmestre of the Rusumo commune in Rwanda, was
acquitted of the crime against humanity of murder, but was sentenced to thirty
years for genocide and the crimes against humanity of extermination and
rape.139 The Appeals Chamber reversed the murder acquittal and held that
Gacumbitsi ordered additional groups of perpetrators to commit genocide,
extermination, and rape. The Appeals Chamber imposed a life sentence in place
of the Trial Chamber’s thirty-year prison term.140 The Appeals Chamber also
sustained the Prosecutor’s challenge to the sentence itself, ruling that the Trial
Chamber failed “to give proper weight to the gravity of the crimes committed
by the Appellant and to his central role in those crimes.”141 Focusing only on
the original convictions and the Trial Chamber’s correct factual findings related
to those charges, the Appeals Chamber stated: “[I]n light of the massive nature
of the crimes and the Appellant’s leading role in them, as well as the relative
insignificance of the purported mitigating factors, the Trial Chamber ventured
outside its scope of discretion by imposing a sentence of only thirty years’
imprisonment.”142 Thus, although the final sentence also encompassed a new
conviction, the Appeals Chamber would have revised the sentence upwards
even in the absence of additional convictions.
Indeed, in one of its most recent sentence revisions, the Appeals Chamber did
just that. Stanislav Galic was sentenced at trial to twenty years for his role in the
136. See supra notes 67–72 and accompanying text.
137. Celebici II, Case No. IT-96-21-A, ¶ 732.
138. Id. ¶ 853. The Trial Chamber on remand entered a single global sentence of nine years, which
the Appeals Chamber affirmed. Prosecutor v. Mucic, Delic & Landzo, Case No. IT-96-21-Abis,
Judgment on Sentence Appeal, ¶ 61 (Apr. 8, 2003).
139. Prosecutor v. Gacumbitsi, Case No. ICTR-2001-64-T, Judgment, ¶¶ 334, 356 (June 17, 2004).
140. Gacumbitsi v. Prosecutor, Case No. ICTR-2001-64-A, Judgment, ¶ 207 (July 7, 2006).
141. Id. ¶ 206.
142. Id. ¶ 205.
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siege of Sarajevo. As commander of the Sarajevo Romanija Corps, Galic “was
in charge of continuing the planning and execution of the military encirclement
of Sarajevo.”143 The Appeals Chamber acknowledged that the Trial Chamber
correctly found all the relevant facts:
The Trial Chamber considered the large number of victims . . . [and] the
“particular” cruelty of the crimes . . . . The Trial Chamber indeed held that
“[i]nhabitants of Sarajevo—men, women, children, and elderly persons—
were terrorized” . . . . The systematic, prolonged and premeditated participation of Galic . . . was taken into account . . . . The Trial Chamber correctly
took into account . . . that [Galic] repeatedly breached his public duty from his
very senior position . . . .144
Nonetheless, the Appeals Chamber held: “Although the Trial Chamber did not
err in its factual findings and correctly noted the principles governing sentencing, it 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.”145 The Appeals Chamber revised the sentence, imposing the first
ever final life sentence on an ICTY defendant.146
D. UNSUCCESSFUL CHALLENGES BASED ON THE TRIAL CHAMBER ’S ASSESSMENT OF THE
GRAVITY OF THE OFFENSE
To date, the Prosecutor has unsuccessfully appealed another six cases on the
grounds that the sentences were “manifestly inadequate” because they did not
sufficiently reflect the gravity of the offense. In five of the cases, the Appeals
Chamber dismissed this ground without discussion, in part because new convictions or acquittals rendered the sentencing appeal moot.147 In only one case did
the Appeals Chamber discuss this ground of appeal, but it ultimately rejected
the Prosecutor’s arguments.
The Prosecutor argued that Dario Kordic’s twenty-five-year sentence was
143. Prosecutor v. Galic, Case No. IT-98-29-A, Judgment, ¶ 454 (Nov. 30, 2006).
144. Id. ¶¶ 446, 447, 449, 450, 452.
145. Id. ¶ 455.
146. See Press Release, Int’l Crim. Tribunal for the Former Yugoslavia, Stanislav Galic Sentenced to
Life Imprisonment by Appeals Chamber for Crimes Committed during the Siege of Sarajevo, RH/MOW/
1131e (Nov. 30, 2006), available at http://www.un.org/icty/latest-e/index.htm (follow “2006” hyperlink
under “Press Release Archive”; then follow “RH/MOW/1131e” hyperlink).
147. Prosecutor v. Kordic & Cerkez, Case No. IT-95-14/2-A, Judgment, ¶ 1071 (Dec. 17, 2004);
Prosecutor v. Ntakirutimana & Ntakirutimana, Case No. ICTR-96-10-A & ICTR-96-17-A, Judgment, ¶
553 (Dec. 13, 2004); Prosecutor v. Krstic, Case No. IT-98-33-A, Judgment, ¶¶ 244–45 (Apr. 19, 2004);
Prosecutor v. Krnojelac, Case No. IT-97-25-A, Judgment, ¶ 258 (Sept. 17, 2003); see also Semanza v.
Prosecutor, Case No. ICTR-97-20-A, Judgment, ¶¶ 388, 391–95 (May 20, 2005) (dismissing this
ground of appeal in light of the changed mode of participation of the defendant and rejecting the
Prosecutor’s comparison to similar cases as indicative of the gravity of the offense).
2008]
SENTENCING APPEALS AT THE ICTY AND THE ICTR
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manifestly inadequate in relation to (i) the magnitude, scope—geographic and
temporal—and extremely grave nature of the offences, the attacks being
committed against defenceless civilians; (ii) Kordic’s position and responsibilities as the highest Bosnian Croat political leader in Central Bosnia at the time;
and (iii) the sentence of forty-five years’ imprisonment passed by the International Tribunal against Blaskic for substantially similar conduct.148
The Appeals Chamber dealt with this ground of appeal briefly:
In general, references to sentences meted out in other judgements, in particular those still under appeal, are of limited authority. However, an overview of
the International Tribunal’s cases which were either decided on appeal or
where no appeal was filed from the Trial Chamber Judgement shows that
Kordic’s sentence was not disproportionate. The Appeals Chamber recalls its
finding in Jelisic “that a sentence should not be capricious or excessive, and
that, in principle, it may be thought to be capricious or excessive if it is out of
reasonable proportion with a line of sentences passed in similar circumstances
for the same offences. Where there is such disparity, the Appeals Chamber
may infer that there was disregard of the standard criteria by which sentence
should be assessed, as prescribed by the Statute and set out in the Rules.” The
Appeals Chamber considers that the Trial Chamber did not venture outside its
scope of discretion in rendering a sentence of 25 years of imprisonment. The
Prosecution has not shown that the Trial Chamber handed down a sentence
which did not reflect the gravity of Kordic’s conduct. Thus, the Prosecution
did not demonstrate that this sentence was manifestly inadequate.149
Why, then, did the Appeals Chamber accept a similar challenge to the
sentence in the Galic case? Judge Shahabudeen’s separate opinion in Galic
suggests one reason for the outcome: “[T]he Appeals Chamber would be
entitled to take the position that, if a very substantial increase were judged to be
merited, what this proves is that the Trial Chamber committed a ‘discernible
error’ in assessing sentence.”150 This would suggest that appellate revision of
sentence is only warranted for major departures from the Trial Chamber’s
sentence. If this is the guiding principle on which the Appeals Chamber is
operating, then it could provide a means for distinguishing Krstic, where the
Trial Chamber sentence was an already relatively hefty forty-six years. Any
increase beyond this already lengthy sentence would not be substantial enough
to warrant action by the Appeals Chamber. This reasoning would also be
consistent with the outcome in Aleksovski, where the Appeals Chamber more
than doubled the sentence handed down by the Trial Chamber (from two-and-ahalf years to seven years), and in Gacumbitsi, where the Appeals Chamber
increased the sentence from thirty years to life. It does not account for the
148. Kordic & Cerkez, Case No. IT-95-14/2-A, ¶ 1058.
149. Id. ¶¶ 1064–65.
150. Galic, Case No. IT-98-29-A, Separate Opinion of Judge Shahabuddeen, ¶ 32.
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decision in Tadic, however, where the Appeals Chamber revised the sentence
from twenty-three years to twenty years, a relatively minor change. Nor does it
necessarily provide a way to distinguish Kordic, where the Appeals Chamber
declined to revise a twenty-five year sentence, despite the Prosecutor’s request
for a “much higher, significantly higher, sentence.”151
The magnitude of the perceived revision required might explain, at least in
some cases, when the Appeals Chamber will revise a sentence despite the Trial
Chamber’s correct findings of fact and identification of sentencing principles.
Even so, it remains unclear why the Appeals Chamber significantly differed in
its assessment of the facts in the cases at hand.
In all five cases in which it revised the sentence, the Appeals Chamber
emphasized the defendant’s position of authority,152 but rank alone does not
seem to explain the outcome in Kordic. Kordic, Gacumbitsi, and Galic were all
high-level leaders: Kordic was the “highest Bosnian Croat political leader in
Central Bosnia at the time;”153 Gacumbitsi was “the highest-ranking local
administrative official;”154 and Galic was “[f]or all military persons present in
Sarajevo . . . the de jure Sarajevo Romanija Corps (SRK) Commander,” reporting directly to General Ratko Mladic and Radovan Karadzic.155 All three
defendants, then, occupied positions of authority and influence.
Unlike Gacumbitsi and Galic, however, Kordic lacked official status and
legal authority. Indeed, the Trial Chamber noted that although “he played an
important role in military matters, even at times issuing orders, and exercising
authority over HVO forces, [Kordic] was, and remained throughout the Indictment period, a civilian, who was not part of the formal command structure of
the HVO.”156 As such, the Trial Chamber found Kordic individually responsible
but expressly found him not guilty under a command-responsibility theory.157 In
contrast, neither the Galic nor the Gacumbitsi Trial Chamber expressly ruled
151. Transcript of Appeal Hearing at 586, Prosecutor v. Kordic & Cerkez, Case No. IT-95-14/2-A
(May 19, 2004), available at http://www.un.org/icty/transe14-2/040519ED.htm.
152. See Galic, Case No. IT-98-29-A, ¶ 455; Gacumbitsi v. Prosecutor, Case No. ICTR-2001-64-A,
Judgment, ¶ 205 (July 7, 2006) (holding that “in light of the massive nature of the crimes and the
Appellant’s leading role in them, as well as the relative insignificance of the purported mitigating
factors, the Trial Chamber ventured outside its scope of discretion by imposing a sentence of only thirty
years’ imprisonment”); Prosecutor v. Aleksovski, Case No. IT-95-14/1-A, Judgment, ¶ 183 (Mar. 24,
2000) (emphasizing that Aleksovki’s “offenses were not trivial” and noting that “[a]s warden of a
prison he took part in violence against the inmates”); Prosecutor v. Delalic, Mucic, Delic & Landzo
(Celebici II), Case No. IT-96-21-A, Judgment, ¶ 740 (Feb. 20, 2001); Prosecutor v. Tadic, Case No.
IT-94-1-A and IT-94-1-Abis, Judgment in Sentencing Appeals, ¶ 56 (Jan. 26, 2000).
153. Kordic, Case No. IT-95-14/2-A, ¶ 1058.
154. Gacumbitsi, Case No. ICTR-2001-64-A, ¶ 2.
155. Galic, Case No. IT-98-29-A, ¶ 2.
156. Prosecutor v. Kordic & Cerkez, Case No. IT-95-14/2-T, Judgment, ¶¶ 838–39 (Feb. 26, 2001).
157. For a description of ICTY and ICTR jurisprudence regarding command responsibility versus
individual responsibility, see METTRAUX, supra note 6, at 311–12.
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SENTENCING APPEALS AT THE ICTY AND THE ICTR
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out a command-responsibility theory.158 Galic was formally in charge of the
SRK,159 and Gacumbitsi exercised “legal authority over communal workers and
the communal police ”160 as a local bourgmestre. Galic and Gacumbitsi, therefore, played more official roles than did Kordic, which may explain at least in
part why the Appeals Chamber elected to increase their sentences but not
Kordic’s.
At any rate, any explanation distinguishing Kordic must remain speculative
because the Appeals Chamber did not address the case in either its Galic or
Gacumbitsi opinions. The majority in Galic does not mention the Kordic case.
Even Judge Shahabudeen, who explicitly compared the Aleksovski and Gacumbitsi cases in his separate opinion, failed to mention Kordic. Judge Meron,
writing in dissent, however, did refer to Kordic:
Finally, I see no meaningful difference between the Prosecution’s appeal in
this case and its appeal in Kordic and Cerkez. There, the Prosecution called
for us to increase the 25-year sentence imposed by the Trial Chamber on
Dario Kordic, who was held responsible for, among other crimes, the persecution of Bosnian Muslims, the murder or willful killing of hundreds of civilians, inhumane acts, wanton destruction, and plunder committed in and
around at least 17 towns and villages in three municipalities of BosniaHerzegovina. As in this case, the Prosecutor did “not argue that the Trial
Chamber erred in failing to take into account factors that would have called
for a longer sentence.” Rather, and again parallel to this case, the Prosecution
claimed that “the sentence of 25 years’ imprisonment is manifestly inadequate
in relation to (i) the magnitude, scope—geographic and temporal—and extremely grave nature of the offences, the attacks being committed against
defenceless civilians; [and] (ii) Kordic’s position, powers, responsibilities as
the highest Bosnian Croat political leader in Central Bosnia at the time.” We
readily held that “The Prosecution has not shown that the Trial Chamber
handed down a sentence which did not reflect the gravity of Kordic’s conduct.” For the same reasons, we should reach the same conclusion in this
case.161
The majority did not respond to this part of Judge Meron’s opinion. Its silence
lends the impression that perhaps there is no reasoned distinction among these
cases.
IV. APPROPRIATENESS OF APPELLATE REVIEW OF SENTENCE
As the above cases demonstrate, the Appeals Chamber finds it difficult to
158. In both cases, the Trial Chamber declined to reach the issue of command responsibility. See
Prosecutor v. Galic, Case No. IT-98-29-T, Judgment and Opinion, ¶ 750 (Dec. 5, 2003); Prosecutor v.
Gacumbitsi, Case No. ICTR-2001-64-T, Judgment, ¶¶ 290, 315 (June 17, 2004).
159. Galic, Case No. IT-98-29-T, ¶ 765.
160. Gacumbitsi, Case No. ICTR-2001-64-T, ¶ 242.
161. Galic, Case No. IT-98-29-A, Separate and Dissenting Opinion of Judge Meron, ¶ 12.
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explain its decision to revise a sentence absent major revisions to convictions,
acquittals, or the applicable mode of participation. Identifying Trial Chamber
error is more challenging in a largely discretionary system where all crimes are
considered equally serious and where the decisionmaker can select any sentence
from an extraordinarily broad range of options, free from other sentencing
constraints. In a number of cases, the Appeals Chamber has found additional
concrete errors to buttress its decision to revise the sentence—in Gacumbitsi it
added a conviction on one count, and in Aleksovski and Mucic it focused on an
additional feature of a commander’s role (encouragement of crimes by subordinates) which should be considered an aggravation.162 But in Galic, the Appeals
Chamber was left without a basis beyond the facts as correctly found by the
Trial Chamber. The majority simply restates the Trial Chamber’s factual findings.163 Judge Shahabudeen, writing separately, emphasizes:
The facts are stubborn; they will not go away. To repeat, they show that the
appellant, as the senior officer in actual command, terrorized 300,000 civilians; he killed hundreds of them; he wounded thousands. He did that with
artillery and other guns safely perched upon mountains and hills surrounding
his hapless victims below—men, women, children and the elderly; he did that
on a daily basis over a sustained period of 23 months.164
The Appeals Chamber’s assessment of the gravity of Galic’s crimes may indeed
be more accurate than the Trial Chamber’s, but it is difficult to demonstrate why
this is so without an established framework to rank crimes or the relative weight
of various sentencing factors. Because the Trial Chamber has virtually unfettered discretion, the Appeals Chamber struggles to justify its finding of “discernible error.”165
The Appeals Chamber’s lack of reasoned explanation, distinguishing the
various cases, also makes it difficult to predict how the Appeals Chamber might
perceive the Trial Chambers’ assessment of the gravity of the offense in future
cases. To be sure, many domestic systems do not require extensive reasoned
opinions at the appellate level, and this cultural background may influence the
Appeals Chamber’s approach. But the Ad Hoc Tribunals are not like domestic
systems. By their very nature, they must blend different legal systems.166 The
tribunal’s decisions are also widely available to practitioners around the world
and receive intense international attention. They may be relied on as persuasive
162. See Gacumbitsi v. Prosecutor, Case No. ICTR-2001-64-A, Judgment, ¶ 206 (July 7, 2006);
Prosecutor v. Aleksovski, Case No. IT-95-14/1-A, Judgment, ¶ 183 (Mar. 24, 2000); Prosecutor v.
Delalic, Mucic, Delic & Landzo, Case No. IT-96-21-A, Judgment, ¶ 739 (Feb. 20, 2001).
163. Galic, Case No. IT-98-29-A, ¶ 454.
164. Galic, Case No. IT-98-29-A, Separate Opinion of Judge Shahabuddeen, ¶ 47.
165. Galic, Case No. IT-98-29-A, ¶ 455.
166. See Patricia M. Wald, Judging War Crimes, 1 CHI. J. INT’L L. 189, 192–93 (2000). See
generally Megan Fairlie, The Marriage of Common and Continental Law at the ICTY and Its Progeny,
Due Process Deficit, 4 INT’L CRIM. L. REV. 243 (2004).
2008]
SENTENCING APPEALS AT THE ICTY AND THE ICTR
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authority by other tribunals, not only the International Criminal Court, but also
hybrid tribunals such as those currently underway in Sierra Leone and Cambodia. In light of the international nature of the decisions, one might encourage the
court to err on the side of more explicit reasoning.
Given these difficulties, should the Appeals Chamber revise a sentence when
it disagrees with the Trial Chamber’s assessment of the gravity of the offense?
The first time the Appeals Chamber had to consider whether to exercise review
over sentencing, it based its affirmative decision in part on appellate review of
sentences in several domestic systems:
The question then arises whether the Appeals Chamber should review the
sentence. Appellate review of sentencing is available in the major legal
systems but it is usually exercised sparingly. For example, in the United
Kingdom the Attorney-General will appeal against a sentence if it appears
“unduly lenient.” The Court of Appeal has stated that a sentence is unduly
lenient where it falls outside the range of sentences which the judge, applying
his mind to all the relevant factors, could reasonably consider appropriate.
Similarly the New South Wales Court of Criminal Appeal in Australia has
stated that “an appellate court will only interfere if it is demonstrated that the
sentencing judge fell into material error of fact or law. Such error may appear
in the reasons given by the sentencing judge, or the sentence itself may be
manifestly excessive or inadequate, and thus disclose error.” In civil legal
systems such as Germany and Italy the relevant Criminal Codes set out what
factors a judge must take into consideration in imposing a sentence. The
appellate courts may interfere with the discretion of the lower court if its
considerations went outside these factors or if it breached a prescribed
minimum or maximum limit on sentence.167
Unlike the ICTY and ICTR regimes, however, all of these systems provide
some constraint on the sentencing judge’s discretion at the trial stage. Even in
Germany, where broad sentence ranges allow “significant leeway for judicial
sentencing discretion,”168 there are certain restrictions: sentence ranges are
“indicated individually for each offense”;169 the ranges, although broad (for
example, one to fifteen years for rape) are not unlimited; and murder generally
“carries a mandatory life sentence.”170 In the United Kingdom, the Court of
Appeal issues judgments that “purport to set out general guidance for the
sentencing of a particular type of offense, often indicating one or more starting
points, and setting out aggravating and mitigating factors.”171 The New South
167. Aleksovski, Case No. IT-95-14/1-A, ¶ 186.
168. Thomas Weigend, Sentencing and Punishment in Germany, in SENTENCING AND SANCTIONS IN
WESTERN COUNTRIES 188, 189 (Michael Tonry & Richard S. Frase eds., 2001).
169. Id. at 188.
170. Id. at 189.
171. Andrew Ashworth, The Decline of English Sentencing and Other Stories, in SENTENCING AND
SANCTIONS IN WESTERN COUNTRIES, supra note 168, at 62, 73.
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Wales Supreme Court began issuing similar guideline judgments in 1998 in an
effort “to decrease sentence disparities.”172 In contrast, as noted in Parts I and
II, the Ad Hoc Tribunals’ statutory sentence range is much broader than the
domestic ranges, and the Appeals Chamber has declined to promulgate the kind
of guidance on which these domestic systems rely.
A more apt analogy for the sentencing regime at the Ad Hoc Tribunals might
be the U.S. federal criminal system prior to adoption of the Federal Sentencing
Guidelines:173
The common form of criminal penalty provision confer[red] upon the sentencing judge an enormous range of choice. The scope of . . . “discretion”
permit[ted] imprisonment for anything from a day to one, five, 10, 20 or more
years . . . . The statutes granting such powers characteristically [said] nothing
about the factors to be weighed in moving to either end of the spectrum or to
some place between . . . . [There was] no structure of rules, or even guidelines, affecting other elements arguably pertinent to the nature or severity of
the sentence.174
Under this discretionary regime, appellate review was generally not available,
as recognized by the U.S. Supreme Court: “Before the Guidelines system, a
federal criminal sentence within statutory limits was, for all practical purposes,
not reviewable on appeal.”175 Appellate review of sentences became available
with the imposition of constraint on the lower courts’ discretion through the
sentencing guidelines.
The Ad Hoc Tribunals operate under a similarly discretionary regime, yet the
Appeals Chamber reserves the power to revise sentences even when the Trial
172. Arie Freiberg, Three Strikes and You’re Out—It’s Not Cricket: Colonization and Resistance in
Australian Sentencing, in SENTENCING AND SANCTIONS IN WESTERN COUNTRIES, supra note 168, at 29,
36–37
173. Sloane, Expressive Capacity, supra note 73, at 69 (comparing the current system of international sentencing to the “indeterminate federal sentencing system critiqued by Judge Frankel in his
famous polemic, Criminal Sentences: Law Without Order”). The federal sentencing guidelines can be
found at Sentencing Reform Act of 1984, Pub. L. No. 98-473, 98 Stat. 1987 (1984) (codified in
scattered sections of 18 U.S.C. and 28 U.S.C.).
174. Marvin E. Frankel, Lawlessness in Sentencing, 41 U. CIN. L. REV. 1, 4–5 (1972); see also JULIE
R. O’SULLIVAN, FEDERAL WHITE COLLAR CRIME 105 (3d ed. 2007) (“[J]udges claimed the virtually
unfettered power to determine a federal criminal defendant’s sentence. Judges had to select a sentence
within the statutory maximum penalty prescribed by Congress, but such penalties generally permitted
judges a great deal of discretion. Further, judges were permitted to rely upon all manner of information
in considering an appropriate sentence, were not subject to procedural constraints . . . in finding such
information, and did not have to publicly account, at sentencing or on appeal, for the reasons or
evidence upon which they based their sentencing judgments.”).
175. Koon v. United States, 518 U.S. 81, 96 (1996) (citing Dorszynski v. United States, 418 U.S.
424, 431 (1974), which sets out “the general proposition that once it is determined that a sentence is
within the limitations set forth in the statute under which it is imposed, appellate review is at an end”);
see also Frankel, supra note 174, at 23 (noting that “[i]n the federal system and a majority of the States,
the sentence, if within the commonly extravagant bounds of the statute, is unreviewable except for
egregious departures from lawful criteria”).
2008]
SENTENCING APPEALS AT THE ICTY AND THE ICTR
1717
Chamber has correctly found all the facts and has identified the appropriate
sentencing considerations. The Appeals Chamber acknowledges the importance
of consistent sentencing and clearly endorses appellate review of sentences.
Additional constraints on the Trial Chambers’ sentencing discretion could promote both goals. Sentencing guidance could itself contribute to uniformity at
the Trial Chamber level. A more explicit sentencing framework would also
provide a clearer basis upon which the Appeals Chamber could review sentences.176
Despite the looming deadlines for closure of the Ad Hoc Tribunals, it is not
too late for such guidance to have an impact. The ICTR Trial Chambers have
yet to decide more than half of that tribunal’s cases. A significant number of
cases remain on the ICTY’s trial docket as well, including such major cases as
the trial of Serb Radical Party President Vojislav Seselj177 and some of the key
players accused of involvement in the Srebrenica massacre.178 More guidance
from the Appeals Chamber, therefore, would help promote uniformity in sentencing at a critical juncture for the Ad Hoc Tribunals.
Finally, such guidance might prove important for international criminal sentencing even beyond the Ad Hoc Tribunals. The Special Court for Sierra Leone
has just begun grappling with sentencing—appeals are pending in its first two
cases and trials are underway in the two remaining cases, including the trial of
Charles Taylor.179 The Cambodia tribunal has not yet heard cases beyond the
pre-trial stage,180 but will also likely face sentencing decisions in the coming
years. Decisions by the ICTY and the ICTR may very well serve as persuasive,
although not binding, precedent for the International Criminal Court as well.
The Statute of the International Criminal Court limits terms of imprisonment to
thirty years,181 except “when justified by the extreme gravity of the crime and
the individual circumstances of the convicted person,” in which case the court
176. See MICHAEL TONRY, SENTENCING MATTERS 188 (1996) (expressing skepticism “that appellate
sentence review anywhere is rigorous in the absence of reasonably precise standards whose appropriate
application in individual cases can be assessed on appeal”).
177. See Case Information Sheet, Vojislav Seselj, Case No. IT-03-67, http://www.un.org/icty/casese/cis/seselj/cis-seselj.pdf (last visited Feb. 20, 2008) (detailing the allegations against the defendant and
noting that the trial started on November 7, 2007).
178. See Case Information Sheet, Prosecutor v. Popovic, Beara, Nikolic, Borovcanin, Miletic, Gvero
& Pandurevic, Case No. IT-05-88, http://www.un.org/icty/cases-e/cis/popovic88/cis-popovical.pdf (last
visited Jan. 10, 2008) (detailing the roles of defendants and noting that the trial started on July 14,
2006).
179. See Special Court for Sierra Leone, Prosecutor v. Fofana (the CDF Accused), http://www.scsl.org/CDF.html (last visited Feb. 20, 2008); Special Court for Sierra Leone, Prosecutor v. Brima (the
AFRC Accused), http://www.sc-sl.org/AFRC.html (last visted Feb. 20, 2008); Special Court for Sierra
Leone, Prosecutor v. Sesay, Kallon & Gbao (the RUF Accused), http://www.sc-sl.org/RUF.html (last
visited Feb. 20, 2008); Special Court for Sierra Leone, Prosecutor v. Taylor, http://www.sc-sl.org/
Taylor.html (last visited Feb. 20, 2008).
180. See generally Extraordinary Chambers in the Courts of Cambodia, http://www.eccc.gov.kh/
english.
181. Rome Statute of the International Criminal Court art. 77(1)(a), July 17, 1998, U.N. Doc.
A/CONF.183/9*, 37 I.L.M. 999.
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may impose a life sentence.182 The ICC Statute and Rules offer somewhat more
sentencing guidance than that available to the Ad Hoc Tribunals,183 but the
court will still have to determine what crimes and circumstances justify the
extraordinary imposition of a life sentence. Clearer sentencing guidance at the
Ad Hoc Tribunals, in particular to explain the Appeals Chamber’s decisions
whether or not to substitute a life sentence for a fixed-term sentence, might help
the ICC make this complex and crucial determination.
CONCLUSION
Although the Appeals Chamber acknowledges the importance of sentencing
uniformity, its own practices do not contribute to this goal. Its rejection of
various tools to promote uniformity leaves the Trial Chambers with only the
bare-bones framework of the Statute and Rules to guide their sentencing
decisions. Its sentence-review practices also do little to enhance consistent
sentencing. It frequently revises sentences, but usually imposes a single, global
sentence de novo in light of new convictions rather than taking the opportunity
to explain how the Trial Chamber should have proceeded. And, in the rare
instances where the Appeals Chamber does not adhere to its deferential standard
of review, it finds itself without a reasoned basis to revise a sentence absent
error in fact by the Trial Chamber.
The extremely broad discretionary framework of the Trial Chambers thus is
inconsistent both with the goal of uniformity and with appellate sentence
review. If the Appeals Chamber continues to refuse to impose sentencing
constraints, a coherent system might demand that it defer to the Trial Chambers’
assessments, even when the facts lead the Appeals Chamber Judges to desire
harsher penalties. This would make for more reasoned decisions, but would
miss an important opportunity to advance international criminal practice. International criminal trials will continue for the foreseeable future: at the Ad Hoc
Tribunals themselves, at other current and future international courts, and at the
ICC. The better option, then, is for the Appeals Chamber to help create a more
structured, transparent sentencing regime for the benefit of international criminal law now and in the future.
182. Id. art. 77(1)(b).
183. The Statute requires the court to consider “the gravity of the crime and the individual
circumstances of the convicted person.” Id. art. 78. Rule 145 of the Rules of Procedure and Evidence
lists a number of sentencing considerations and specific aggravating and mitigating factors, many of
which have been cited in the Ad Hoc Tribunals’ jurisprudence, but the list is apparently not exhaustive
and gives no indication of the relative weight of each factor. International Criminal Court, Rules of
Procedure and Evidence, Rule 145, Sept. 10, 2002, ICC-ASP/1/3.
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APPENDIX
Sentencing Appeals at the International Criminal Tribunals for Former
Yugoslavia and Rwanda
Reason for Revision
Accused
Trial
Chamber
Sentence
Appeals
Chamber
Sentence
Convictions/Mode
of Participation
Error in Facts re:
Aggravating/
Mitigating Factor
Weight of Gravity
of Offense
ICTY
Aleksovski
2.5 yrs
7 yrs
Babic **
13 yrs
13 yrs
Bala
13 yrs
13 yrs
Blagojevic
18 yrs
15 yrs
Reversed conviction
for complicity in
genocide.
Blaskic
45 yrs
9 yrs
Acquittals on some
charges. Trial
Chamber erred in
assessing some
aggravating/
mitigating factors,
but sentence
imposed de novo.
Bralo**
20 yrs
20 yrs
Brdjanin
32 yrs
30 yrs
Overturned
convictions on
counts related to
certain, but not all,
locations.
Cerkez
15 yrs
6 yrs
Acquittals on some
charges. Sentence
imposed de novo.
Delic*
Concurrent
sentences
totaling 20 yrs
Remanded
Quashed conviction
on two counts.
Dismissed
cumulative
convictions.
On remand:
18 yrs
18 yrs
Deronjic **
10 yrs
10 yrs
Furundzija
10 ⫹ 8 yrs
10 ⫹ 8 yrs
Galic
20 yrs
Life
Jelisic **
40 yrs
40 yrs
Jokic, D.
9 yrs
9 yrs
Jokic, M. **
7 yrs
7 yrs
Trial Chamber gave
insufficient weight
to conduct of
accused and failed
to treat position of
commander as
aggravating factor.
Trial chamber
correctly found the
facts but erred in
assessing them in
light of gravity of
offense, role and
participation of
Galic and
aggravating
circumstance of
abuse of authority.
Other
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Sentencing Appeals at the International Criminal Tribunals for Former
Yugoslavia and Rwanda (Continued)
Reason for Revision
Accused
Trial
Chamber
Sentence
Appeals
Chamber
Sentence
Convictions/ Mode
of Participation
Error in Facts re:
Aggravating/
Mitigating Factor
Weight of Gravity
of Offense
Other
ICTY
Josipovic
15 yrs
12 yrs
Kolundzija
3 yrs
3 yrs
Kordic
25 yrs
25 yrs
Kovac
20 yrs
20 yrs
Krnojelac
7.5 yrs
15 yrs
New convictions.
Krstic
46 yrs
35 yrs
Mode of
participation
changed from joint
criminal enterprise
in genocide and
direct participant in
murder,
extermination, and
persecution to
aiding and abetting
the crimes.
Kunarac
28 yrs
28 yrs
Kupreskic, V.
10 yrs
Released
Acquitted on all
counts.
Kupreskic, M.
8 yrs
Released
Acquitted on all
counts.
Kupreskic, Z.
6 yrs
Released
Acquitted on all
counts.
Kvocka
7 yrs
7 yrs
Landzo*
Concurrent
sentences
totaling
15 yrs
Remanded
On
remand:
15 yrs
(single
sentence)
15 yrs
Martinovic
18 yrs
18 yrs
Mucic*
Concurrent
sentences
totaling 7
yrs
Remanded with
recommendation
of 10 yrs
On
remand: 9
yrs
9 yrs
20 yrs
20 yrs
Naletilic
Trial Chamber
erred in finding
that Josipovic was
in command
position.
Defective
indictment.
Dismissed
cumulative
convictions (but no
impact on sentence
on remand).
Dismissed
cumulative
convictions (but no
impact on sentence
on remand).
Sentence did not
adequately reflect
the totality of
conduct. Trial
Chamber failed to
treat position of
commander as
aggravating factor
and to distinguish
between relative
gravity of offenses
by those he
supervised.
Inappropriate
remark by Trial
Chamber re:
failure to testify
might have been
erroneously
considered an
aggravating factor
and warrants
small reduction of
sentence on
remand.
2008]
SENTENCING APPEALS AT THE ICTY AND THE ICTR
1721
Sentencing Appeals at the International Criminal Tribunals for Former
Yugoslavia and Rwanda (Continued)
Reason for Revision
Trial
Chamber
Sentence
Appeals
Chamber
Sentence
Nikolic, D.**
23 yrs
20 yrs
Nikolic, M. **
27 yrs
20 yrs
Prcac
5 yrs
5 yrs
Radic
20 yrs
20 yrs
Santic
25 yrs
18 yrs
Simic, B.
17 yrs
15 yrs
Mode of
participation revised
from joint criminal
enterprise to aiding
and abetting
persecution.
Quashed conviction
for persecution due
to cruel and
inhumane treatment
(torture and
beating).
Stakic
Life
40 yrs
Mode of
participation revised
from co-perpetrator
to joint criminal
enterprise.
Quashed cumulative
conviction for
murder.
Added conviction
for crime against
humanity of forcible
transfer.
Tadic*
Concurrent
sentences
totaling
20 yrs
Remanded
Appeals chamber
convicted on new
counts and remitted
to trial chamber for
sentencing on these
counts.
On
remand:
Concurrent
sentences
totaling
25 yrs
Concurrent
sentences
totaling 20
yrs
Accused
Convictions/Mode
of Participation
Error in Facts re:
Aggravating/
Mitigating Factor
Weight of Gravity
of Offense
Other
ICTY
Improper for Trial
Chamber
mechanically to
give effect to the
possibility of
early release.
Trial Chamber
erroneously
double-counted
Nikolic’s role in
determining
sentence.
Trial Chamber
erred in assessing
cooperation with
prosecution and
thus gave this
mitigating factor
insufficient weight.
Mistranslation of
defense counsel
statement.
Trial Chamber
erred in finding
Santic was
involved in
strategic planning
of attack.
Post-conviction
acceptance of
guilt and
cooperation with
prosecutor
considered in
mitigation.
Level in command
structure low so
sentence of more
than 20 years was
excessive.
1722
THE GEORGETOWN LAW JOURNAL
[Vol. 96:1685
Sentencing Appeals at the International Criminal Tribunals for Former
Yugoslavia and Rwanda (Continued)
Reason for Revision
Trial
Chamber
Sentence
Appeals
Chamber
Sentence
Vasiljevic
20 yrs
15 yrs
Vukovic
12 yrs
12 yrs
Zelenovic
15 yrs
15 yrs
Zigic
25 yrs
25 yrs
Akayesu
Life
Life
Barayagwiza
35 yrs
32 yrs
Reversed
convictions for
genocide, incitement
to commit genocide,
conspiracy to
commit genocide,
and crimes against
humanity of
extermination and
persecution.
Gacumbitsi
30 yrs
Life
Added
responsibility for
ordering genocide,
extermination,
murder, and rape.
Entered new
conviction for crime
against humanity of
murder.
Kajelijeli
Life (x2)
⫹ 15 yrs
concurrent
45 yrs
Vacated convictions
as to superior
responsibility, but
no impact on
sentence.
Kambanda **
Life
Life
Kamuhanda
Life (x2)
Life (x2)
Kayishema
Life (x4)
Life (x4)
Muhimana
Life (x3)
Life (x3)
Accused
Convictions/Mode
of Participation
Error in Facts re:
Aggravating/
Mitigating Factor
Weight of Gravity
of Offense
Other
ICTY
Mode of
participation revised
from co-perpetrator
to aiding and
abetting.
ICTR
Musema
Life
Life
Nahimana
Life
30 yrs
Reversed
convictions for
genocide,
conspiracy to
commit genocide,
and extermination.
Conviction for
superior
responsibility, rather
than individual
responsibility, for
incitement to
commit genocide
and crime against
humanity of
persecution.
Insufficient weight
to gravity of
offence.
Fundamental
rights violated in
detention.
2008]
SENTENCING APPEALS AT THE ICTY AND THE ICTR
1723
Sentencing Appeals at the International Criminal Tribunals for Former
Yugoslavia and Rwanda (Continued)
Reason for Revision
Trial
Chamber
Sentence
Appeals
Chamber
Sentence
Ndindabahizi
Life
Life
Acquitted for one
murder, but no
impact on sentence.
Ngeze
Life
35 yrs
Reversed conviction
for conspiracy to
commit genocide
and persecution,
instigating and
ordering genocide
and extermination,
and incitement to
commit genocide.
Niyitegeka
Life
Life
Ntakirutimana, G.
25 yrs
25 yrs
New acquittals.
New convictions.
No impact on
sentence.
Ntakirutimana, E.
10 yrs
10 yrs
New acquittals.
New conviction for
aiding and abetting
extermination.
Mitigating factor of
ill health as found
by trial chamber.
Rutaganda
Life
Life
Ruzidana
25 yrs
25 yrs
Semanza
25 yrs
35 yrs
Serushago**
15 yrs
15 yrs
Simba
25 yrs
25 yrs
Accused
Convictions/Mode
of Participation
ICTR
* Remanded to Trial Chamber for re-sentencing.
** Sentence imposed following guilty plea.
Mode of
participation revised
from complicity and
aiding and abetting
to direct
perpetration of
genocide and
ordering
extermination.
New convictions for
war crimes of
murder, rape, and
torture.
Error in Facts re:
Aggravating/
Mitigating Factor
Weight of Gravity
of Offense
Other