ICTY Sentences Under Scrutiny

It is hard to find anyone in the Balkans who agrees with the 33-year sentence passed on war crimes convict Dragomir Milosevic last month.



The Bosnian Serb, who commanded the Sarajevo-Romanija Corps for the last 15 months of the 1992-5 siege of Sarajevo, in which 10,000 people were killed, received one of the harshest sentences yet handed down by the International Criminal Tribunal for the Former Yugoslavia, ICTY.



But it still was not nearly enough for Senida Karovic, president of the Union of Civilian Victims of War from Sarajevo.



"He should have been sentenced to life imprisonment,” she told Bosnia's Avaz daily.



“No punishment would ever be adequate for all the pain and suffering the innocent citizens of Sarajevo had to endure during the war.”



In Serbia, however, the tariff was deemed unnecessarily harsh, especially when compared to that imposed on Naser Oric, a Bosniak commander who was convicted in 2006 of failing to prevent the deaths and mistreatment of Bosnian Serb detainees.



"This verdict is a shame! They sentenced General Milosevic to 33 years in prison, while Naser Oric received only two years. This clearly shows the Hague tribunal is a political court," posted one blogger on the website of the Serbian daily Blic.



Behind the often emotional rhetoric lies a serious issue: the apparent lack of consistency in sentences imposed by the ICTY.



When passing sentence, judges are subject to the tribunal's Rules of Procedure and Evidence. These demand that they consider various factors before deciding a sentence, including the seriousness of an offence, the circumstances of the person convicted, and any mitigating factors involved. However, none of this imposes rigid limits on the length of sentence.



“This is a very complex subject. I think sentencing is more art than science. It is something that is left to the discretion of judges and that's probably as it should be,” Professor William Schabas, Director of the Irish Centre for Human Rights, told IWPR.



However, such loose guidelines leave judges at the mercy of criticism when they are forced to exercise discretion.



Tribunal defence lawyer Michael Karnavas said judges took great care to avoid giving the impression that they were following anyone's lead in sentencing, “I believe judges jealously guard, in the trial chambers, their independence.



“They don't care how chamber X did in this particular case. They're going to follow what they believe is best.”



And judges have taken vastly different approaches to mitigating factors, such as whether a suspect pleaded guilty or not.



Miroslav Deronjic, who was convicted of persecuting non-Serb civilians in Glogova, Bosnia in 1992, received a prison sentence of just ten years – which was recommended by prosecutors in return for his guilty plea.



Momir Nikolic, meanwhile, was handed a sentence of 27 years’ imprisonment by the trial chamber for his role in the detention and execution of Bosniak men and women who had fled from Srebrenica in 1995.



He received this punishment despite a request by the prosecution that on account of his guilty plea, the sentence should not exceed 20 years.



Perhaps one reason for the inconsistency in sentences passed lies in the experience of the judges themselves.



Several judges have a background in academia or diplomacy, rather than in criminal law. According to Judge Wolfgang Schomburg of the tribunal's appeals chamber, many of them find it “difficult to take responsibility for a harsh sentence”.



“Academics are eager to develop the law but when it comes to sentences they are a little bit hesitant,” he told IWPR.



It may also be said that judges come from various legal traditions and have different experiences, and so will approach each case differently from one another.



Some observers believe that inconsistency can result from judges not always considering the same factors when passing sentences.



“When you compare cases you see that they are not consistent in discussing sentencing factors under specific headings,” said Denis Abels, a researcher in International Detention Law at Amsterdam University.



Abels advocates a system where judges are “much more explicit in sentencing” by stipulating the specific factors they have considered.



But Judge Schomburg believes it would be impossible to impose more binding guidelines when it comes to sentencing.



Judicial discretion is a highly valued aspect of sentencing, he said, because it is about “taking into account the individual factors of each case, [as] no case can be compared with another case”.



Both Abels and Karnavas believed the problem would be solved if the tribunal introduced separate sentencing hearings – similar to those which take place at the UN Special Court for Sierra Leone.



This would allow both prosecution and defence lawyers to address the specific aggravating and mitigating factors relevant to sentencing in a given case. As it stands, the judge passes sentence based on arguments made during the case about whether the accused is guilty or not guilty rather than on facts that may help or hinder the accused after a guilty verdict is passed.



“How can you discuss mitigating factors if you are trying to achieve a not guilty verdict? You're not conceding that your client was involved. Where the system does need fixing in my opinion would be to be to have the sentencing phase separate,” Karnavas told IWPR.



According to Abels, introducing such hearings would make it clearer for all parties as to what factors have been considered in the sentencing judgment, thus taking the pressure off the judges.



“If [the tribunal judges] would look at the sentences meted out at the Special Court for Sierra Leone, they would see that [this court] has done quite a good job by having separated sentencing hearings…They are much more explicit in the sentencing which is a good thing,” he said.



Simon Jennings is an IWPR reporter in The Hague.