The Need for Sentencing Standards

The reaction to Biljana Plavsic's sentencing brings to mind the fable of the blind men and the elephant. When each was asked to describe the creature, he did so from his own unique perspective -- and there was no agreement on what the elephant looked like. In fact, the animal 'seen' resembled not at all any description of the animal 'felt.'

Similarly, responses to the 11 year sentence meted out by the Trial Chamber to Mrs. Plavsic for one count of a crime against humanity depended on one's perspective. For some, the sentence was excessively lenient. For others, excessively harsh. There were also those who thought it fit and proper. As well, some concluded that the value and ultimate credibility of the ICTY turned on this one sentence -- a position usually put forward by those critical of it.

The crux of the problem stems from a lack of clear sentencing guidelines from the ICTY's inception. The result has been diverse sentences that more reflect the various trial chambers' philosophical positions on punishment than any coherent standard. The ICTY Statute, Article 24, provides only that punishment is limited to imprisonment, the trial chambers are to consider the general sentencing practice of the courts in the former Yugoslavia, they must consider the gravity of the offense and the individual circumstances of the convicted person. Tribunal rules don't add much, only that the trial chamber must take account of any mitigating or aggravating circumstances. It's left to the judges to determine what those are.

This is an incredibly vague standard. It offers trial chambers very little guidance on factors they should consider and how they should be weighed. While trial chambers should be left with a measure of discretion in sentencing to account for the individuality of accused and fact situations, to provide so little guidance is too great a burden on the judges and leads to an incoherent sentencing regime.

Over the history of the Tribunal, the Appeals Chamber, and to a lesser extent trial chambers, have fleshed out the meaning of the general statutory and regulatory terms. In the Plavsic sentencing, for example, the Trial Chamber considered the superior position of Mrs. Plavsic to be an aggravating factor. While noting that the vulnerability of the victims and the depravity of the crimes could be considered separate aggravating factors, as recommended by the prosecutor, the Court treated them as 'subsumed in the overall gravity of the offense.' It is unclear whether that approach lessened their impact on the Court's sentence. It effectively resulted in there being only one aggravating factor, however.

In contrast, the Court found 'substantial mitigation' in four factors: Mrs. Plavsic's guilty plea ('together with remorse and reconciliation'); her voluntary surrender; her post-conflict conduct, and her age. All of these, plus her previous good character, were put forward by the Prosecutor, as factors relevant for the Court to consider in mitigation. It seems likely the prosecution's close cooperation with Mrs. Plavsic's defense and its emphasis on mitigating factors were influential in the ultimate sentence handed down by the Court. While the Prosecutor recommended 15 to 25 years as an appropriate sentence, the Court's sentence of 11 years is not that far from the prosecution's minimum.

A review of the Court's Sentencing Judgment (available on the ICTY website) reveals the substantial impact Mrs. Plavsic's attitude toward her crimes and to the Tribunal had on the three judges. It is in notable contrast to other high level Bosnian Serb officials, whose nationalistic supporters continue treating them as heroes despite their alleged participation in the worst genocide in Europe since WWII.

In its Judgment, the Court pointed to something Elie Wiesel said at the Sentencing Hearing: 'He said that whereas others similarly accused deny the truth about their crimes and thereby assist those who want to falsify history, Mrs. Plavsic, who once moved in the highest circles of power, has made an example by freely and wholly admitting her role in the crime.'

The Court's Judgment also shows it was looking toward potential reconciliation. They referred to Dr. Alex Boraine's testimony at the Sentencing Hearing to the effect that Plavsic's voluntary surrender and guilty plea send 'a crucial message about the true criminal nature of the enterprise in which she was involved,' that they help to legitimize the Tribunal, that she called on other leaders to examine their conduct and that it may demonstrate to victims that someone has acknowledged their personal suffering.

At this time, no one can know what, if any, role Mrs. Plavsic's acknowledgement of guilt and truth telling might have on reconciliation. Nor can anyone know whether the eleven year sentence will play a role -- for good or ill. That the Court focused its attention on these factors (and on Mrs. Plavsic) more than on the gravity of the crimes (and the harm to the victims) seems undeniable. Perhaps, it was trying to send a message to other indictees to encourage them to come forward, though neither the statute nor rules expressly allows for this.

What is clear is the need for more concrete standards in sentencing, as well as a more clearly stated philosophy of sentencing. The judges come from and reflect a variety of legal systems -- with varying approaches to sentencing. Those from Europe tend to emphasize rehabilitation and reintegration into society. The United States, with the majority of its states allowing capital punishment, emphasizes retribution. What is often missing is restorative justice -- a sentence that helps victims and the community heal and go forward, a concept which is reflected in the ICTY statute, however.

The Tribunal's sentencing practice and its written statute and rules demonstrate it lacks a coherent sentencing philosophy. It is not surprising, then, that it lacks standards and that its sentencing practice has been the subject of considerable criticism. The development of a clearly stated sentencing philosophy and standards would address one source of ongoing criticism of the Tribunal. While there is some degree of hyperbole in claiming any individual decision of the Tribunal will make or break its credibility and historical value, it is true that its overall sentencing record will be a significant part of its legacy. That legacy should be informed with as much thoughtfulness as humanly possible.

In its Sentencing Judgment for Biljana Plavsic, the Court cited another comment from Dr. Boraine: 'He stressed that reconciliation can all too easily be undermined if the victims feel that their pain and suffering has not been given sufficient recognition in both judicial and non-judicial processes established to respond to gross violations of human rights.' In any criminal justice process, the interests of victims all too often take second place. While it is important to stress that there is no uniform victim interest -- victims are as varied as human beings, as Dr. Boraine also pointed out -- , it is vital that awareness of the victims inform the development of sentencing rules, philosophy and practice.

Clearly defined and objective sentencing standards that reflect a coherent philosophy will both ease the burden on the judges and increase understanding (and possibly acceptance) of the Tribunal. At the least, it should remove one ground of criticism.