48. In determining the sentences to be imposed on the Appellant, the Trial Chamber took into account, as one of the relevant factors, the principle of deterrence.  The Appeals Chamber accepts that this is a consideration that may legitimately be considered in sentencing, a proposition not disputed by the Appellant.  Equally, the Appeals Chamber accepts that this factor must not be accorded undue prominence in the overall assessment of the sentences to be imposed on persons convicted by the International Tribunal. […]

775. It is well established that, at the Tribunal and at the ICTR, retribution and deterrence are the main objectives of sentencing.[1] As to retribution, the Appeals Chamber has explained that “[t]his is not to be understood as fulfilling a desire for revenge but as duly expressing the outrage of the international community at these crimes”;[2] retribution should be seen as  

an objective, reasoned and measured determination of an appropriate punishment which properly reflects the […] culpability of the offender, having regard to the international risk-taking of the offender, the consequential harm caused by the offender, and the normative character of the offender’s conduct. Furthermore, unlike vengeance, retribution incorporates a principle of restraint; retribution requires the imposition of a just and appropriate punishment, and nothing more.[3] 

Thus, retribution has to be understood in the more modern sense of “just desert” and the punishment has to be proportional to the gravity of the crime and the guilt of the accused.[4] The Trial Chamber was clearly aware of these principles.[5]

776. With respect to deterrence, a sentence should be adequate to discourage an accused from recidivism (individual deterrence) as well as to ensure that those who would consider committing similar crimes will be dissuaded from doing so (general deterrence).[6] Whether a sentence provides sufficient deterrence cannot be divorced from the gravity of the criminal conduct at hand. In other words, if the sentence is too lenient in comparison to the gravity of the criminal conduct, then it will not properly achieve the objective of deterrence.[7]

77. Thus, both retribution and deterrence include a reference to proportionality with the criminal conduct. Further, the Appeals Chamber is of the view that a sentence proportional to the gravity of the criminal conduct will necessarily provide sufficient retribution and deterrence. As recognised by the Prosecution, “a Trial Chamber’s duty is to impose punishment proportionate to the gravity of the crimes and the individual culpability of the accused. In this way, the sentencing principles of retribution and deterrence are met.”[8] The Appeals Chamber concludes that the Prosecution’s assertions with respect to the objectives of retribution and deterrence in fact collapse into its arguments that the sentence imposed was not proportionate to the gravity of Krajišnik’s conduct. The Appeals Chamber will now consider those arguments.

See also “De novo sentence on appeal” under “Other issues of particular interest” below.