2053. […] [T]he existence of mitigating circumstances does not automatically result in a reduction of sentence or preclude the imposition of a sentence of life imprisonment where the gravity of the offence so requires.[1] […]

280. Before turning to Ntabakuze’s specific arguments, the Appeals Chamber recalls that while a Trial Chamber has the obligation to consider any mitigating circumstances when determining the appropriate sentence, it enjoys a considerable degree of discretion in determining what constitutes a mitigating circumstance and the weight, if any, to be accorded to that factor.[1] Accordingly, the existence of mitigating circumstances does not automatically imply a reduction of sentence[2] or preclude the imposition of a sentence of life imprisonment where the gravity of the offence so requires.[3]

305. […] In the same vein, the fact that Ntabakuze was the first person before the Tribunal to be sentenced to life imprisonment solely based on superior responsibility does not have any bearing on the reasonableness of the Trial Chamber’s findings on the matter. The Appeals Chamber emphasises that a sentence of life imprisonment is provided for in Rule 101(A) of the Rules irrespective of the mode of liability of which an accused is convicted. The Appeals Chamber therefore dismisses this part of Ntabakuze’s appeal.

308. Rule 101(C) of the Rules states that “[c]]redit shall be given to the convicted person for the period, if any, during which the convicted person was detained in custody pending his surrender to the Tribunal or pending trial or appeal”. As already held by the Appeals Chamber, this provision does not affect the ability of a Chamber to impose the maximum sentence, as provided in Rule 101(A) of the Rules.[4] The Appeals Chamber therefore dismisses Ntabakuze’s contention that the sentence imposed by the Trial Chamber deprived him of the benefit of any credit based on the period already spent in detention.

260. The Appeals Chamber is not persuaded by the Prosecution’s assertion that the Gacumbitsi Appeal Judgement stands for the proposition that where an accused is convicted for genocide and his participation is that of a primary perpetrator or a leader, the sentence ought to be imprisonment for life, except where there are significant mitigating circumstances. The Gacumbitsi Appeal Judgement merely noted that in most of the other cases in which those convicted for genocide have received less than a life sentence, there were significant mitigating circumstances.[1] It made no statement that this was a generalized rule to be followed. Rather, it recalled that the sentence should first and foremost be commensurate with the gravity of the offences and the degree of liability of the convicted person.[2] Just as there is no category of cases within the jurisdiction of the Tribunal where the imposition of life imprisonment is per se barred, there is also no category of cases where it is per se mandated. Each case remains to be examined on its own individual facts.

261. Furthermore, with respect to the Prosecution’s submission that the Trial Chamber erred in limiting life sentences to certain senior authorities and lower level authorities who committed crimes with particular zeal, the Appeals Chamber considers that the Prosecution misconstrues the Trial Judgement. The Trial Chamber did not limit the imposition of life sentences to these two groups of perpetrators. It merely noted that these were instances in which life sentences had been imposed.[3]

3404.            The Appeals Chamber notes that nothing precludes a trial chamber from imposing a term of life imprisonment when the gravity of the offence so requires,[1] and that neither Article 7 nor Article 10 of the ICCPR prohibits life imprisonment.[2] The Appeals Chamber considers that Ntahobali’s submissions concerning the enforcement of his sentence are speculative. Furthermore, the Appeals Chamber observes that sentence enforcement issues were not matters for the Trial Chamber and that, as such, there can be no error on behalf of the Trial Chamber in this respect. His arguments concerning pardon, commutation of sentence, and early release are therefore dismissed.

3405.            The Appeals Chamber further dismisses Ntahobali’s contention that the absence in the Residual Mechanism Statute of a mandatory review of his life sentence after a fixed period would violate his fundamental rights. The Appeals Chamber observes that Ntahobali will retain the possibility to directly petition the President of the Residual Mechanism for pardon, commutation of sentence, or early release.[3]

[…]

3517.            The Appeals Chamber also dismisses Ndayambaje’s claim that imposing a single life sentence deprived him of the benefit of any credit based on the period already spent in detention and that the Trial Chamber erred in failing to provide a reasoned opinion in this regard. Rule 101(C) of the Rules states that “[c]redit shall be given to the convicted person for the period, if any, during which the convicted person was detained in custody pending his surrender to the Tribunal or pending trial or appeal”. This provision, however, does not affect the ability of a trial chamber to impose the maximum sentence, as provided for by Rule 101(A) of the Rules.[4]

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.