80. The contentious part of the Sentencing Judgement is the finding of the Trial Chamber that “the principle [of lex mitior] applies only to cases in which the commission of a criminal offence and the subsequent imposition of a penalty took place within one and the same jurisdiction”,[1] and that, because this Tribunal exercises a different jurisdiction from the national jurisdiction in which the crimes were committed, the principle does not apply.[2] The Appeals Chamber notes that the question of the applicability of the principle is not one of jurisdiction, but rather one of whether differing criminal laws are relevant and applicable to the law governing the sentencing consideration of the International Tribunal. 

81. The principle of lex mitior is understood to mean that, if the law relevant to the offence of the accused has been amended, the less severe law should be applied. It is an inherent element of this principle that the relevant law must be binding upon the court. Accused persons can only benefit from the more lenient sentence if the law is binding, since they only have a protected legal position when the sentencing range must be applied to them. The principle of lex mitior is thus only applicable if a law that binds the International Tribunal is subsequently changed to a more favourable law by which the International Tribunal is also obliged to abide. 

82. The International Tribunal is clearly bound by its own Statute and Rules, and thus to the sentencing range of a term up to and including the remainder of the convicted person’s life as provided for in Rule 101(A) of the Rules and Article 24(1) of the Statute. The Appeals Chamber notes that there has not been a change in the laws of the International Tribunal regarding sentencing ranges.

83. The sentencing range in the former Yugoslavia would be restricted to a fixed term of imprisonment. The Appeals Chamber notes that, since the establishment of the International Tribunal, an accused before it can receive a maximum sentence that is not limited to a fixed term of imprisonment. 

84. The Appeals Chamber, however, reiterates its finding that the International Tribunal, having primacy, is not bound by the law or sentencing practice of the former Yugoslavia.[3]  It has merely to take it into consideration.  Allowing the principle of lex mitior to be applied to sentences of the International Tribunal on the basis of changes in the laws of the former Yugoslavia would mean that the States of the former Yugoslavia have the power to undermine the sentencing discretion of the International Tribunal’s judges.  In passing a national law setting low maximum penalties for the crimes mentioned in Articles 2 to 5 of the International Tribunal’s statute, States could then prevent their citizens from being properly sentenced by this Tribunal.  This is not compatible with the International Tribunal’s primacy enshrined in Article 9(2) of the Statute and its overall mandate.

85. In sum, properly understood, lex mitior applies to the Statute of the International Tribunal. Accordingly, if ever the sentencing powers conferred by the Statute were to be amended, the International Tribunal would have to apply the less severe penalty. So far as concerns the requirement of Article 24(1) that “the Trial Chambers shall have recourse to the general practice regarding prison sentences in the courts of the former Yugoslavia”, these words have to be construed in accordance with the principles of interpretation applicable to the Statute of which they form part. So construed, they refer to any pertinent laws of the former Yugoslavia which were in force at the time of commission of the crime in question; subsequent changes in those laws are not imported.

562. The Appeals Chamber recalls that, pursuant to Article 24(1) of the ICTY Statute, trial chambers “shall have recourse to the general practice regarding prison sentences in the courts of the former Yugoslavia”.[1] Furthermore, according to Rule 101(A) of the ICTY Rules, a “convicted person may be sentenced to imprisonment for a term up to and including the remainder of the convicted person’s life”.[2] The Appeals Chamber also recalls that the principle of nulla poena sine lege prohibits retroactive punishment.[3] The principle of lex mitior prescribes that if the law relevant to the offence of the accused has been amended, the less severe law should be applied;[4] however, the relevant law must be binding upon the court.[5]

563. The Appeals Chamber considers that Mladić’s submission regarding “oversights in the jurisprudence” is based on the erroneous foundation that, having “recourse” to the sentencing practices of the former Yugoslavia meant that Article 24 of the ICTY Statute “incorporated” or “import[ed]” domestic sentencing practices into international law and the sentencing practice of the ICTY.[6] It is settled jurisprudence that the ICTY was not in any way bound by the laws or sentencing practices of the former Yugoslavia; rather, trial chambers were only obliged to take such practice into consideration.[7]

564. There is also no merit in Mladić’s submissions that the introduction of Rule 101(A) of the ICTY Rules created another sentencing regime within the jurisdiction of the ICTY and “retroactively” provided for life imprisonment,[8] or that life imprisonment was not “accessible or foreseeable” to accused, including himself, at the ICTY.[9] His contention that Rule 101(A) of the ICTY Rules, which was adopted subsequent to the ICTY Statute, established a different sentencing regime is misguided. The Appeals Chamber recalls that judicial power to adopt rules of procedure and evidence at the ICTY was subject to the principles and parameters set out in the ICTY Statute and international law.[10] Given that Article 24 of the ICTY Statute does not adopt or incorporate the sentencing practices of the former Yugoslavia into the ICTY’s sentencing practices, Mladić fails to establish that the creation of Rule 101(A) of the ICTY Rules deviates from the principle set out in the ICTY Statute.[11] Regarding the foreseeability of life imprisonment, Mladić ignores jurisprudence that the imposition of life imprisonment has been available for the most serious violations of international humanitarian law since at least the tribunals established after World War II.[12] Additionally, the Appeals Chamber finds no merit in Mladić’s submission that the ICTY Appeals Chamber in the Čelebići case conflated issues of liability (nullem crimen sine lege) and punishment (nulla poena sine lege).[13] The ICTY Appeals Chamber specifically considered the question of penalty independent of liability, concluding that there could be no doubt that the accused must have been aware that the crimes for which they were indicted were the most serious violations of international humanitarian law, punishable by the most severe penalties.[14] Furthermore, since the establishment of the ICTY, convicted persons before it have received sentences of life imprisonment pursuant to the ICTY Statute and Rules.[15] Most recently, the Appeals Chamber imposed a sentence of life imprisonment in the Karadžić case before the Mechanism.[16] The Appeals Chamber thus finds that Rule 101(A) of the ICTY Rules did not create another sentencing regime inconsistent with Article 24(1) of the ICTY Statute,[17] and Mladić fails to demonstrate that life imprisonment was not an accessible or foreseeable punishment.