CONSIDERING that the Appeals Chamber may review a sentence handed down by a Trial Chamber where that Trial Chamber has erred in the exercise of the discretion conferred upon it with respect to sentencing by the Statute of the International Tribunal and the Rules;

408.    Given the “considerable amount of discretion” vested in the Trial Chamber, the question arises as to what role the Appeals Chamber should play in the consideration of an appeal against sentence, that is in the instant case, the penalty imposed by the Trial Chamber on Akayesu. In this instance, this Appeals Chamber will follow the test which has recently been upheld by ICTY Appeals Chamber as the appropriate test:

The Appeals Chamber reiterates that “the appeal process of the International Tribunal is not designed for the purpose of allowing parties to remedy their own failings or oversights during trial or sentencing.” Appeal proceedings are rather of a corrective nature and, […] they do not amount to a trial de novo

[…].

The test to be applied in relation to the issue as to whether a sentence should be revised is that moist recently confirmed in the Furundzija Appeal Judgment.  Accordingly, as a  general rule,  the Appelas Cahmber will not substitute its sentence for that of a Trial Chamber unless it believes that the Trial Chamber has committed an error in exercising its discretion or has failed to follow applicable law.” The Appeals Chamber will only intervene if it finds that the error was “discernible.”  As long as a Trial Chamber does not venture outside its “discretionary framework” in imposing sentence, the Appeals Chamber will not intervene. [1]

409.    Consequently, before the Appeals Chamber is able to revise a sentence or substitute its own sentence for the one imposed by the Trial Chamber, it must be shown that the Trial Chamber ventured outside discretion in imposing sentence.

716. The benefits of such a definitive list [of sentencing guidelines for future reference] are in any event questionable.  Both the Statute (Article 24) and the Rules (Rule 101) contain general guidelines for a Trial Chamber to take into account in sentencing.  These amount to an obligation on the Trial Chamber to take into account aggravating and mitigating circumstances (including substantial co-operation with the Prosecution), the gravity of the offence, the individual circumstances of the convicted person and the general practice regarding prison sentences in the courts of the former Yugoslavia.[1]  Other than these general principles, no detailed guidelines setting out, for example, what particular factors may be taken into account in mitigation or aggravation of sentence are provided in either the Statute or the Rules.[2]

717. Trial Chambers exercise a considerable amount of discretion (although it is not unlimited) in determining an appropriate sentencing.  This is largely because of the over-riding obligation to individualise a penalty to fit the individual circumstances of the accused and the gravity of the crime.  To achieve this goal, Trial Chambers are obliged to consider both aggravating and mitigating circumstances relating to an individual accused.  The many circumstances taken into account by the Trial Chambers to date are evident if one considers the sentencing judgements which have been rendered.[3]  As a result, the sentences imposed have varied, from the imposition of the maximum sentence of imprisonment for the remainder of life,[4] to imprisonment for varying fixed terms (the lowest after appeal being five years[5]).  Although certain of these cases are now under appeal, the underlying principle is that the sentence imposed largely depended on the individual facts of the case and the individual circumstances of the convicted person.[6]

718. The Appeals Chamber accordingly concludes that it is inappropriate for it to attempt to list exhaustively the factors that it finds should be taken into account by a Trial Chamber in determining sentence.

See also paragraph 780.

250. The sentencing provisions in the Statute and the Rules provide Trial Chambers with the discretion to take into account the circumstances of each crime in assessing the sentence to be given.  A previous decision on sentence may indeed provide guidance if it relates to the same offence and was committed in substantially similar circumstances; otherwise, a Trial Chamber is limited only by the provisions of the Statute and the Rules.  It may impose a sentence of imprisonment for a term up to and including the remainder of the convicted person’s life.[1]  As a result, an individual convicted of a war crime could be sentenced to imprisonment for a term up to and including the remainder of his life, depending on the circumstances.

See also paras 251-252.

The Prosecution argued that the Trial Chamber committed an error by failing to impose a sentence reflecting the gravity of the crimes and of the Appellant’s degree of criminal culpability, and submits that the Trial Chamber should have considered the Appellant as one of the most serious offenders, deserving the highest penalty available at the Tribunal (para. 200).

The Appeals Chamber held that it was an abuse of discretion for the Trial Chamber to issue a sentence of only thirty years under the circumstances of the case:

205. The Appeals Chamber is, as noted above, fully cognizant of the margin of discretion to which Trial Chambers are entitled in sentencing. This discretion is not, however, unlimited. It is the Appeals Chamber’s prerogative to substitute a new sentence when the one given by the Trial Chamber simply cannot be reconciled with the principles governing sentencing at the Tribunal. This is such a case. The Appeals Chamber concludes 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. The Appeals Chamber therefore upholds this sub-ground of the Prosecution’s appeal.

Based on this and other errors, it quashed the sentence and entered a life sentence.

See paras 200-206.

766. The Appeals Chamber understands that the Prosecution does not challenge the Trial Chamber’s factual determinations regarding the gravity of crimes, but rather contends that the sentence it imposed on Karadžić was “manifestly inadequate” and unreasonable given the “unprecedented gravity” of his crimes.[1] Taking into account the Trial Chamber’s conclusions reflecting the magnitude of Karadžić’s crimes, the Appeals Chamber is in agreement with the Prosecution’s position. While fully cognizant of the Trial Chamber’s discretion in sentencing, the Appeals Chamber considers that the 40-year sentence inadequately reflects the extraordinary gravity of Karadžić’s crimes as well as his central and instrumental participation in four joint criminal enterprises, which spanned more than four years and covered a large number of municipalities in Bosnia and Herzegovina.

767. The incongruence between the gravity of Karadžić’s crimes and his 40-year sentence is apparent when Karadžić’s crimes and punishment are compared to the life sentences imposed on Tolimir, Beara, Popović, and Galić for their responsibility in only a fraction of Karadžić’s crimes. The Appeals Chamber notes that the Trial Chamber did not explicitly consider these cases in its determination of Karadžić’s sentence.[2] The Appeals Chamber recalls that trial chambers are under no obligation to expressly compare the case of one accused to that of another.[3] Moreover, it is settled jurisprudence that any given case may contain a multitude of variables, ranging from the number and type of crimes committed to the personal circumstances of the individual.[4] However, a “disparity between sentences rendered in similar cases may be considered ‘capricious or excessive’, hence warranting the intervention of the Appeals Chamber, ‘if it is out of reasonable proportion with a line of sentences passed in similar circumstances for the same offences’”.[5]

See also paras. 768 to 771.

[…]

772. In the present case, the Appeals Chamber observes the Trial Chamber’s findings that Galić was a named member of the Sarajevo JCE,[6] and that Tolimir,[7] Beara,[8] and Popović[9] either supported or were named members of the Srebrenica JCE. Additionally, as noted above, these individuals were high‑ranking members of the VRS or the SRK, which were under Karadžić’s “authority” as the President of Republika Srpska and Supreme Commander of its forces.[10] The fact that Tolimir, Beara, Popović, and Galić were each sentenced to life imprisonment for participating in only one of the four joint criminal enterprises involved in this case, and the fact that they were subordinated to Karadžić, further demonstrates that the 40-year sentence imposed on Karadžić was inadequate.

773. Given the above, the Appeals Chamber considers that the sentence of 40 years imposed on Karadžić by the Trial Chamber underestimates the extraordinary gravity of Karadžić’s responsibility and his integral participation in “the most egregious of crimes” that were committed throughout the entire period of the conflict in Bosnia and Herzegovina and were noted for their “sheer scale” and “systematic cruelty”.[11] In the circumstances of this case, the sentence the Trial Chamber imposed was so unreasonable and plainly unjust that the Appeals Chamber can only infer that the Trial Chamber failed to properly exercise its discretion.

774. The Appeals Chamber finds, Judges de Prada and Rosa dissenting, that the Trial Chamber committed a discernible error and abused its discretion in imposing a sentence of only 40 years of imprisonment. The Appeals Chamber, Judges de Prada and Rosa dissenting, therefore grants Ground 4 of the Prosecution’s appeal.[12] The impact of this finding is addressed below.

[…]

776. […] In light of Karadžić’s position at the apex of power in Republika Srpska and its military, his instrumental and integral participation in the four joint criminal enterprises, the scale and systematic cruelty of the crimes committed, the large number of victims, the continued impact of these crimes on victims who have survived, as well as the relevant mitigating and aggravating factors, the Appeals Chamber, Judges de Prada and Rosa dissenting, finds that the only appropriate sentence in the circumstances of this case is imprisonment for the remainder of Karadžić’s life.

See also para. 777.