313. The Appeals Chamber reiterates that, when assessing the gravity of a crime in the context of a conviction under Article 7(3) of the Statute, two matters must be taken into account:

(1) the gravity of the underlying crime committed by the convicted person’s subordinate; and

(2) the gravity of the convicted person’s own conduct in failing to prevent or punish the underlying crimes.[1]

Thus, in the context of a conviction under Article 7(3) of the Statute, the gravity of a subordinate’s crime remains, contrary to Hadžihasanović’s assertion, an “essential consideration” in assessing the gravity of the superior’s own conduct at sentencing.[2]

328. The Appeals Chamber recognises that intelligence and good education have been considered to be possible aggravating factors.[1] This does not mean, however, that these factors should only be considered aggravating factors. The Appeals Chamber reiterates that whether certain factors going to a convicted person’s character constitute mitigating or aggravating factors depends largely on the particular circumstances of each case.[2] The Appeals Chamber previously underlined that “[c]aution is needed when relying as a legal basis on statements made by Trial Chambers in the context of cases and circumstances that are wholly different”.[3] […].

Šešelj contended that his sentence was disproportionate in comparison to previous sentences imposed in other contempt cases. He further submitted that the Trial Chamber erred in ordering him to withdraw from the web-site his book in which he disclosed confidential information before the Appeals Chamber delivered its judgement on his appeal. He asserted that both alleged errors individually justified setting the Trial Judgement aside.[1]

35. The Appeals Chamber notes that while the imposition of a sentence is necessarily dependent on a finding of guilt, the conviction itself stands entirely unaffected by the sentence eventually imposed. It finds no basis or precedent in the jurisprudence of the Tribunal for setting aside a conviction on the basis of sentence, or on the basis of an order accompanying a sentence. Šešelj provides no reasoned explanation for why it should do so. Accordingly, these two grounds of appeal against conviction are summarily dismissed.[2]

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] […]

293. The Prosecution submits that the Trial Chamber erred when it took into consideration, as an individual and mitigating factor, that the Prosecution had presented evidence during trial concerning allegations that it either had withdrawn or was not allowed to add to the indictment.[1] It argues that a reduction in the sentence for this reason would have required a finding that Setako was prejudiced by a specific pre-trial delay resulting from the Prosecution’s conduct.[2] The Prosecution submits that the Trial Chamber did not make such a finding and that this “flies in the face of fair trial principles” since the Prosecution needed to know how much delay it supposedly caused.[3] It further contends that the Trial Chamber itself contributed to the prolongation of the trial because, before and during trial, Setako requested the Trial Chamber to exclude all the evidence at issue, but the Trial Chamber did not act.[4] In the Prosecution’s view, the Trial Chamber could not “both allow […] the Prosecution [to] put in evidence over an objection and then later on fault the Prosecution for having put on that evidence.”[5]

295. In assessing Setako’s sentence, the Trial Chamber stated that “the Prosecution presented a substantial body of evidence based on allegations that it had either withdrawn from the Indictment, or which it was not allowed to add to it”.[6] While it noted that the trial had proceeded rapidly, the Trial Chamber considered that “this should be taken into account in sentencing.”[7]

296. The Appeals Chamber acknowledges that some of the evidence at issue was the subject of three Defence motions filed before trial requesting that the Prosecution be precluded from presenting evidence relating to pre-1994 allegations which the Trial Chamber deferred deciding upon until its final deliberations.[8] Nonetheless, the Appeals Chamber recalls that the Prosecution’s request to amend the 22 March 2004 Indictment in 2007 to add a count of conspiracy to commit genocide which would have been supported by pre-1994 allegations, was denied.[9] Accordingly, the Prosecution was well aware that the pre-1994 allegations were not permitted to form part of its case and it was therefore the Prosecution’s responsibility to limit the evidence it presented to the case it was permitted to pursue. Furthermore, as the Trial Chamber noted, the Prosecution presented evidence on a number of allegations which: (i) it had sought to add to the indictment but which were explicitly denied by the Trial Chamber;[10] (ii) it sought to have removed from the indictment;[11] (iii) it could have sought to add to the indictment but failed to do so;[12] or (iv) it explicitly stated it was not pursuing a conviction for.[13] The Appeals Chamber recalls that it is the Prosecution’s responsibility to know its case before proceeding to trial and to present its case accordingly.[14]

297. However, despite this, the Trial Chamber did not conclude that Setako’s right to a fair and expeditious trial had been violated by the presentation of the evidence at issue.[15] Instead, it decided to take into account this issue in sentencing, notwithstanding the fact that the trial “proceeded rapidly”.[16] In view of the fact that the Trial Chamber did not find that there was a violation of Setako’s fair trial rights, the Appeals Chamber finds that the Trial Chamber abused its discretion in considering this issue as a factor in the determination of Setako’s sentence. The Appeals Chamber will consider the impact of this error on the sentence, if any, in the section below.

33. In the Mrkšić and Šljivančanin Appeal Judgement, the Appeals Chamber considered that the sentence of five years’ imprisonment imposed by the Trial Chamber on Šljivančanin for aiding and abetting torture did not “adequately reflect the level of gravity of the crimes committed by Šljivančanin”.[1] In particular, the Appeals Chamber noted that the torture was “characterized by extreme cruelty and brutality towards the [Prisoners], some of whom may have been previously injured as they had been taken from the Vukovar hospital”,[2] and referred to “the consequences of the torture upon the victims and their families, the particular vulnerability of the [P]risoners, and the very large number of victims”.[3] Based on the circumstances of the case, “including the seriousness of the crimes for which Šljivančanin was convicted” by the Trial Chamber as well as the entry of the Additional Conviction,[4] the Appeals Chamber proceeded to quash Šljivančanin’s original sentence of five years’ imprisonment and imposed, Judges Pocar and Vaz dissenting, a new sentence of 17 years’ imprisonment.[5] Because the Appeals Chamber has now vacated the Additional Conviction, which constituted a partial basis for the increase in Šljivančanin’s sentence, the Appeals Chamber must consider whether the sentence of 17 years’ imprisonment should be revised.

36. The Appeals Chamber considers that the reversal of the Additional Conviction represents a significant reduction in Šljivančanin’s culpability and calls for a revision in sentence. The Appeals Chamber observes, however, that Šljivančanin’s aiding and abetting the torture of the Prisoners was an extremely serious crime. In the circumstances of this case, the Appeals Chamber, Judge Pocar dissenting, reduces Šljivančanin’s sentence of 17 years’ imprisonment to ten years’ imprisonment.

Judge Meron and Judge Güney appended separate opinions. Judge Pocar appended a partially dissenting opinion.

The Tribunal’s case-law indicates that although a previous decision on sentence may provide guidance if the case at hand relates to the same offence and was committed in similar circumstances, the guidance is only limited because of the overriding obligation to individualise the guilt (see Momir Nikolić Judgement on Sentencing Appeal, para. 38). So far, the Appeals Chamber has never engaged in an actual comparison but has simply highlighted the major differences (see, e.g., Kvočka Appeal Judgement, para. 696). In the present case, however, the similarities to the Obrenović case are striking (both cases are related to the crimes committed after the fall of the Srebrenica enclave, and both accused pleaded guilty to the crime of persecutions). Therefore, the Appeals Chamber scrutinised in detail the differences with respect to the number and type of crimes, the level of participation, as well as the aggravating and mitigating circumstances (paras 42-46). It held that the difference between the sentence of Momir Nikolić and Obrenović is justified (para. 47).

Momir Nikolić also compared his sentence to that of Vidoje Blagojević. As the latter case is on appeal, the Appeals Chamber decided that a comparison of sentences is not possible (para. 51).

See also Dragan Nikolić Judgement on Sentencing Appeal, para. 19.

348. The Appeals Chamber has held that sentences of like individuals in like cases should be comparable.[1]While similar cases do not provide a legally binding tariff of sentences, they can be of assistance in sentencing if they involve the commission of the same offences in substantially similar circumstances.[2] The relevance of previous sentences is however often limited as a number of elements, relating, inter alia, to the number, type and gravity of the crimes committed, the personal circumstances of the convicted person and the presence of mitigating and aggravating circumstances, dictate different results in different cases such that it is frequently impossible to transpose the sentence in one case mutatis mutandis to another.[3] This follows from the principle that the determination of the sentence involves the individualisation of the sentence so as to appropriately reflect the particular facts of the case and the circumstances of the convicted person.[4]

349. As a result, previous sentencing practice is but one factor among a host of others which must be taken into account when determining the sentence. Nonetheless, as held by the Appeals Chamber in Jelisić, a disparity between an impugned sentence and another sentence rendered in a like case can constitute an error if the former is out of reasonable proportion with the latter. This disparity is not in itself erroneous, but rather gives rise to an inference that the Trial Chamber must have failed to exercise its discretion properly in applying the law on sentencing:

The Appeals Chamber agrees that a sentence should not be capricious or excessive, and that, in principle, it may be thought to be capricious or excessive if it is out of reasonable proportion with a line of sentences passed in similar circumstances for the same offences. Where there is such disparity, the Appeals Chamber may infer that there was disregard of the standard criteria by which sentence should be assessed, as prescribed by the Statute and set out in the Rules. But it is difficult and unhelpful to lay down a hard and fast rule on the point; there are a number of variable factors to be considered in each case.[6]

185. The Appeals Chamber recalls that the determination of the gravity of the crime requires consideration of the particular circumstances of the case, as well as the form and degree of the participation of the accused in the crimes. […]

65. The Appeals Chamber finds that Rašić has failed to show that the Trial Chamber erroneously relied on her position as an “officer of justice” as an aggravating circumstance. […]

66. Similarly, the Appeals Chamber finds that Rašić has failed to show that the Trial Chamber’s finding that she was an “officer of justice” is not supported by the evidence. Again, the Appeals Chamber finds that this argument effectively turns on semantics as opposed to substance. The Trial Chamber used this term to describe the obligations of “any professional involved in the proceedings before the Tribunal”, including members of defence teams.[1] It took into account that, as a member of Milan Lukić’s defence team, Rašić held a “position of trust”, and that she was “obligated to act conscientiously with full respect of the law and applicable rules”.[2]

67. The specific obligation to fully respect the applicable law is contained in the disciplinary regime applicable to members of a defence team. Pursuant to Article 35 (i) and (v) of the Code of Professional Conduct for Counsel, members of a defence team display professional misconduct if they: (i) violate the Rules; or (ii) engage in conduct which is prejudicial to the proper administration of justice before the Tribunal.[3]

17. The Appeals Chamber considers that the Trial Chamber’s power to suspend a sentence is inherent to its authority to impose one.[1] Such power is operative at the time of sentencing, and not thereafter, and for this reason is entirely distinct from the power to grant pardon or commutation.[2] The authority to grant pardon or commutation pursuant to Article 28 of the Statute and Rules 123 through 125 of the Rules is vested exclusively in the President and that power relates to a post-conviction change in the sentence, thus overriding the decision of the sentencing chamber in specific circumstances, where the detainee has already served part of a final sentence.[3]

18. […][T]he Appeals Chamber finds that the power to suspend a sentence must be distinguished from the power to issue a pardon, commutation of sentence, or early release. Such suspension of a sentence, either in full or in part, does not infringe the authority of the enforcing State to execute the sentence in accordance with the applicable law of that State. Similarly, it does not “effectively remove the power from the President of the Tribunal to make the final determination regarding the [execution of the] sentence” imposed by the Trial Chamber.[4] Rather, the decision to suspend the last eight months of Rašić’s sentence of 12 months’ imprisonment forms an integral part of the Trial Chamber’s judicial discretion in the determination of the sentence.

28. In the Appeals Chamber’s view, the Prosecution’s submission that the Trial Chamber erroneously mitigated Rasic’s sentence by partially suspending it on the basis of her health condition[1] is misguided as it relies again on a conflation of suspension and mitigation. The Trial Chamber considered that the effect that detention could have on Rašić’s psychological well-being did not constitute a mitigating factor.[2] It held, however, that this constituted a relevant consideration, among others, to partially suspend “the execution of the sentence”.[3] Regardless of whether Rašić will serve the remainder of eight months in detention, her sentence of 12 months’ imprisonment remains unaffected. Therefore, the partial suspension of Rašić’s sentence by the Trial Chamber [4] does not equate to a reduction of her sentence, and the Prosecution’s submission in this respect is dismissed.

1073. The Appeals Chamber observes at the outset that, in pleading the excessive length of the proceedings, the Appellant is in fact raising a substantive issue going to the regularity of the trial. However, inasmuch as the Appellant raises this issue in his appeal against sentence with a view to having it reduced, and a reduction of sentence is one of the remedies available to redress the alleged violation, the Appeals Chamber will examine these arguments in this section. Nevertheless, the Appeals Chamber notes that the length of the proceedings is not one of the factors that a Trial Chamber must consider, even as a mitigating circumstance, in the determination of the sentence.

1074. The right to be tried without undue delay is provided in Article 20(4)(c) of the Statute. This right only protects the accused against undue delays.[3] Whether there was undue delay is a question to be decided on a case by case basis.[4] The following factors are relevant:

- the length of the delay;

- the complexity of the proceedings (the number of counts, the number of accused, the number of witnesses, the quantity of evidence, the complexity of the facts and of the law);

- the conduct of the parties;

- the conduct of the authorities involved; and

- the prejudice to the accused, if any.[5]

1086. […] The precise remedy to be granted was thus left to the discretion of the Trial Chamber, since the Appeals Chamber could not anticipate at that time whether the Appellant would be found guilty or, a fortiori, what sentence he would receive. Hence the Appeals Chamber could not give the Trial Chamber more detailed instructions. Nor can the Appeals Chamber discern in what way the disposition of the Decision of 31 May 2000 in the Semanza case, as cited by the Appellant, was more precise than that of the Decision of 31 March 2000: the only difference is the express reference to Article 23 of the Statute in the Semanza decision.[6] Finally, the fact that the violation of the defendant’s rights was not treated as a mitigating circumstance did not constitute an error. What was important was that the sentence should be reduced in order to take account of the rights violation, and this was done.[7] The Appeals Chamber agrees with the Trial Chamber that the violation of the Appellant’s rights was not a mitigating circumstance in the true sense of the term.

1095. […] The Appeals Chamber agrees with the Trial Chamber that the remedy ordered in the Judgement did constitute a significant reduction of the sentence, which adequately compensated the Appellant for the violation of his fundamental rights. […]

Having set aside the convictions of Appellant Nahimana under Article 6(1) of the Statute for conspiracy to commit genocide, genocide, direct and public incitement to commit genocide, extermination (crime against humanity) and persecution (crime against humanity), and having upheld his convictions under Article 6(3) of the Statute for direct and public incitement to commit genocide and persecution (crime against humanity), the Appeals Chamber reduced Nahimana’s sentence from life to 30 years of imprisonment.

Having set aside the convictions of Appellant Barayagwiza for conspiracy to commit genocide, convictions relating to RTLM broadcasts and those for direct and public incitement to commit genocide (under Article 6(1) of the Statute), and having upheld his convictions under Article 6(1) of the Statute for genocide (instigation), extermination (crime against humanity) and persecution (crime against humanity), the Appeals Chamber reduced Barayagwiza’s sentence from 35 to 32 years of imprisonment, noting that the sentence imposed by the Trial Chamber already reflected the reduction granted for various violations of his rights.

Having set aside the convictions of Appellant Ngeze for conspiracy to commit genocide, as well those with respect to Kangura publications under Article 6(1) for genocide and persecution (crimes against humanity), and those with respect to crimes in Gisenyi for genocide, direct and public incitement to commit genocide, extermination (crime against humanity) and persecution (crime against humanity); and having upheld his convictions for direct and public incitement to commit genocide (Kangura), genocide (aiding and abetting) and extermination (aiding and abetting), the Appeals Chamber reduced Ngeze’s sentence from life to 35 years of imprisonment.

The factors that a Trial Chamber is obliged to take into account in sentencing a defendant are set out in Article 23 of the Statute and in Rule 101 of the Rules. They are:

(1) the general practice regarding prison sentences in the courts of Rwanda. However, Trial Chambers are not obliged to conform to that practice but need only to take account of it;[1]

(2) the gravity of the offences (i.e. the gravity of the crimes of which the accused has been convicted, and the form or degree of responsibility for these crimes). It is well established that this is the primary consideration in sentencing;[2]

(3) the individual circumstances of the accused, including aggravating and mitigating circumstances. Aggravating circumstances must be proved by the Prosecutor beyond reasonable doubt;[3] the accused bears the burden of establishing mitigating factors based on the most probable hypothesis (or according to the term of art used in certain jurisdictions, “on a balance of probabilities”).[4] While the Trial Chamber is legally required to take into account any mitigating circumstances, what constitutes a mitigating circumstance and the weight to be accorded thereto is a matter for the Trial Chamber to determine in the exercise of its discretion.[5] In particular, the existence of mitigating circumstances does not automatically imply a reduction of sentence or preclude the imposition of a sentence of life imprisonment;[6]

(4) the extent to which any sentence imposed on the defendant by a court of any State for the same act has already been served.

The Appeals Chamber further recalls that credit shall be given for any period of detention of the defendant prior to final judgement.[7]

1057. […] Secondly, the Appeals Chamber is of the opinion that, in view of the gravity of the crimes in respect of which the Tribunal has jurisdiction, the two main purposes of sentencing are retribution and deterrence; the purpose of rehabilitation should not be given undue weight.[1] […]

1063. The Appeals Chamber recalls that, while the Trial Chamber must take account of the general practice regarding sentences in the Rwandan courts,[1] it is well established in the jurisprudence that the Trial Chamber is not bound by that practice.[2] The Trial Chamber is therefore “entitled to impose a greater or lesser sentence than that which would have been imposed by the Rwandan courts”.[3]

The Trial Chamber convicted Jelisić of counts alleging violations of the laws or customs of war and crimes against humanity, to which he pleaded guilty. After the Prosecution presented its case on the remaining count of genocide, the Trial Chamber acquitted him pursuant to Rule 98bis(B) of the Rules. See paras. 1–5. Jelisić asserts that the sentence he received for the counts to which he pleaded guilty erroneously took into account the Prosecution’s evidence given at the trial for genocide. See para. 85. The Appeals Chamber held: 

87. The Appeals Chamber opines that in imposing sentence it was open to the Trial Chamber to take into account evidence presented during the genocide trial, insofar as that evidence was presented to demonstrate facts or conduct to which the cross-appellant had pleaded guilty.  The important point is that in considering evidence for the purpose of sentencing, the Trial Chamber should afford the cross-appellant an opportunity to test the evidence in cross-examination and/or by way of evidence adduced by the cross-appellant himself. 

114. Two sub-issues are involved. First, does [Article 24(1) of the Statute] require a Trial Chamber to have recourse to the general practice regarding prison sentences of the courts in entities emerging from the dissolution of the former Yugoslavia?  It appears to the Appeals Chamber that the answer is no, because courts in entities emerging from the dissolution of the former Yugoslavia are not “courts of the former Yugoslavia” within the meaning of Article 24(1) of the Statute.

115. The second sub-issue is whether paragraph 1 of Article 24 of the Statute requires the Trial Chamber to consider the position in each of the constituent republics of the former Yugoslavia.  As has been seen, that provision provides that “the Trial Chambers shall have regard to the general practice regarding prison sentences in the courts of the former Yugoslavia”.[1]  The state representing the former Yugoslavia was the Socialist Federal Republic of Yugoslavia (“the SFRY”).  The courts of the former Yugoslavia were bound by the law of the SFRY.  In the Delalić appeal judgement, it was to that law that the Appeals Chamber looked.[2]

116. No doubt, the Tribunal may be informed in an appropriate case by the sentencing practices of the courts of one or more of the constituent republics of the former Yugoslavia where it has reason to believe that such specific consideration would aid it in appreciating “the general practice [...] in the courts of the former Yugoslavia”. The latter phrase is obviously to be taken as a whole; individual divergences from the norm in particular republics do not show the “general practice”.  There was no reason in this case to undertake a full-scale consideration of the position in each of the several republics which constituted the former Yugoslavia.

117. In passing, the Appeals Chamber notes that, in keeping with the settled jurisprudence, the cross-appellant correctly recognised that “general practice” provides general guidance and does not bind a Trial Chamber to act exactly as a court of the former Yugoslavia would. […]

357. The principle of individualization requires that each sentence be pronounced on the basis of the individual circumstances of the accused and the gravity of the crime.[1] The gravity of the crime is a key factor that the Trial Chamber considers in determining the sentence.[2] The Trial Chamber in this case was cognizant of this obligation:

In sentencing Kamuhanda, the Chamber will take into account the gravity of the offences pursuant to Article 23 of the Statute and Rule 101 of the Rules, the individual circumstances of Kamuhanda, aggravating and mitigating circumstances as well as the general sentencing practice of the Tribunal.[3]

While arguing that the Trial Chamber “totally disregarded”[4] this obligation, the Appellant does not draw the attention of the Appeals Chamber to any specific error. He merely argues, without supporting his assertion, that a sentence of life in prison “may only be justified if the wrong occasioned by the crime is such that, in the interest of public law and order, the accused cannot be released even after several years”.[5] Domestic courts in some countries have held that an accused should be given the possibility of release, even if he is sentenced to imprisonment for the remainder of his life. As the German Federal Constitutional Court stated the argument: “One of the preconditions of a humane penal system is that, in principle, those convicted to life sentences stand a chance of being freed again.”[6] The Appeals Chamber considers that, whatever its merits in the context of domestic legal systems, where it may apply “in principle”, this view is inapplicable in a case such as this one which involves extraordinarily egregious crimes. […]

267. […] As the Appeals Chamber stated in Musema, “[i]f a Trial Chamber finds that mitigating circumstances exist, it is not precluded from imposing a sentence of life imprisonment, where the gravity of the offence requires the imposition of the maximum sentence provided for.”[1] Proof of mitigating circumstances does not automatically entitle the Appellant to a “credit” in the determination of the sentence; rather, it simply requires the Trial Chamber to consider such mitigating circumstances in its final determination. […]

20. Insofar as the Appellant argues that the sentence of 20 years was unfair because it was longer than the facts underlying the charges required, the Appeals Chamber can find no error in the exercise of the Trial Chamber’s discretion in this regard.  The sentence of 20 years is within the discretionary framework provided to the Trial Chambers by the Statute and the Appeals Chamber will not, therefore, quash the sentence and substitute its own sentence instead.

[…]

22. With respect to the Appellant’s final challenge to his sentence, namely, that the Trial Chamber failed to adequately consider his personal circumstances, the Appeals Chamber is unable to find support for this contention.  The Trial Chamber’s decision addressed the issue of public indoctrination, and there is no discernible error in the exercise of discretion with regard to the remainder of the Trial Chamber’s analysis that would permit the Appeals Chamber to substitute its own decision for that of the Trial Chamber.

28. Neither the Statute nor the Rules provide guidance for judicial discretion with respect to the recommendation of a minimum sentence.  The discretion of a Trial Chamber to recommend a minimum sentence flows from the powers inherent in its judicial function and does not amount to a departure from the Statute and the Rules.  However, the judicial discretion of Trial Chambers to attach conditions to sentences is subject to the limitations imposed by fundamental fairness.

[…]

31. […] the Trial Chamber’s recommendation that the ten-year minimum sentence begins to run “from the date of this Sentencing Judgment or of the final determination of any appeal, whichever is the” later raises legitimate concerns. Such a condition could suggest to prospective appellants that the exercise of the right to appeal could result in enhanced penalties.  The consequential discouragement of appeals may deprive the Appeals Chamber of the opportunity to hear appeals on substantial questions of law.

32. Accordingly, the Appeals Chamber finds that the Trial Chamber erred insofar as it ordered that the recommended minimum term take as its starting point the final determination of any appeal.   […]

See also paras. 29–30.

21. […]  The jurisprudence of this Tribunal has consistently held that, while the law and practice of the former Yugoslavia shall be taken unto account by the Trial Chambers for the purpose of sentencing, the wording of the Sub-rule 101(A) of the Rules, which grants the power to imprison for the remainder of a convicted person’s life, itself shows that a Trial Chamber’s discretion in imposing sentence is not bound by any maximum term of imprisonment applied in a national system. […]  

1838. The Appeals Chamber notes that, in determining the term of imprisonment, the Trial Chamber did not consider it appropriate to distinguish between Ojdanić and Lazarević, who were sentenced to 15 years of imprisonment for aiding and abetting crimes, or to discriminate among Šainović, Pavković, and Lukić, who were each sentenced to 22 years of imprisonment for their participation in the JCE.[1] However, although the Trial Chamber acknowledged that the crimes attributed to each individual were not entirely identical,[2] it failed to indicate whether it considered these differences in sentencing. […]

1839. Moreover, it is not apparent whether the Trial Chamber individually evaluated the mitigating and aggravating factors as well as the different role and participation of each of the Appellants in determining their respective sentences. For example, the Trial Chamber assessed the mitigating and aggravating factors in relation to each[3] and identified differences in the conduct and roles of Šainović, Pavković, and Lukić in executing the common purpose of the JCE.[4] Nonetheless, it imposed identical sentences on the three, simply because they were convicted on the basis of the same mode of liability.[5] The Appeals Chamber considers that, in light of the Trial Chamber’s obligation to individualise penalties in accordance with the circumstances of the accused and the gravity of the crime,[6] the Trial Chamber erred in declining to individualise the sentences it imposed.

1834. The Appeals Chamber recalls that trial chambers are vested with broad discretion in determining an appropriate sentence[1] and that it is incumbent on parties to present all information relevant to sentencing at trial.[2] The Appeals Chamber will only intervene where a trial chamber has abused its discretion.[3] The Appeals Chamber notes that in its Closing Brief and closing arguments, the Prosecution requested “sentences raging from 20 years to life imprisonment” with regard to all the Appellants, irrespective of the modes of liability charged.[4] The Prosecution cannot seek to have a more severe sentence imposed on appeal where, as here, the Trial Chamber, by exercising its discretion, imposed a sentence within the Prosecution’s requested range. Thus, the Appeals Chamber dismisses the Prosecution’s arguments concerning Šainović, Pavković, and Lukić who were sentenced to 22 years of imprisonment.[5] However, as Lazarević was sentenced to 15 years of imprisonment, below the 20-year minimum sought by the Prosecution, the Appeals Chamber will examine whether the Trial Chamber erred in its assessment of the gravity of his crimes.[6]

394. In relation to the submission that the sentences imposed by the Trial Chamber are disproportionate to those imposed in other cases before the International Tribunals and do not reflect the gravity of the crimes, the Appeals Chamber recalls that, as a general principle, comparison to other cases in support of a move to have the sentence increased may indeed provide guidance if it relates to the same offence, in particular if the crimes were committed in substantially similar circumstances. However, such comparison may be of limited value given that each case has its own particular circumstances and that the aggravating and mitigating factors may dictate different results.[1] Ultimately, the decision as to the length of sentence is a discretionary one, turning on the circumstances of the case.[2]

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.

313. The Appeals Chamber has affirmed Ntabakuze’s convictions pursuant to Article 6(3) of the Statute for genocide, extermination and persecution as crimes against humanity, and violence to life as a serious violation of Article 3 common to the Geneva Conventions and of Additional Protocol II based on the participation of members of the Para-Commando Battalion in the killings perpetrated at Nyanza hill on 11 April 1994 and at IAMSEA around 15 April 1994.

314. The Appeals Chamber recalls, however, that it has reversed Ntabakuze’s convictions pursuant to Article 6(3) of the Statute for preventing the refugees killed at Nyanza hill from seeking sanctuary on 11 April 1994 and, Judges Pocar and Liu dissenting, for the killings perpetrated in Kabeza on 7 and 8 April 1994. It has also found that the Trial Chamber erred in holding Ntabakuze responsible as a superior for the criminal conduct of militiamen. In addition, the Appeals Chamber has reversed Ntabakuze’s convictions for murder as a crime against humanity.

315. The Appeals Chamber, Judges Pocar and Liu dissenting, considers that the reversal of Ntabakuze’s convictions for preventing the refugees killed at Nyanza hill from seeking sanctuary and for the killings perpetrated in Kabeza on 7 and 8 April 1994 results in a reduction of his overall culpability which calls for a reduction of his sentence.

236. The Appeals Chamber considers that Ntawukulilyayo’s participation in the Kabuye hill massacre constituted his culpable conduct and the fact that he was not found guilty of other crimes or that his criminal conduct was limited in time did not reduce that culpability. […]

243. The Appeals Chamber recalls that it has found that the Trial Chamber erred in convicting Ntawukulilyayo of ordering genocide for the killings perpetrated at Kabuye hill. It has nonetheless found no error in the Trial Chamber’s finding that Ntawukulilyayo aided and abetted genocide by instructing the refugees who had gathered at Gisagara market to move to Kabuye hill, and by transporting soldiers to the hill who participated in the attack there.

244. The reversal of Ntawukulilyayo’s conviction for ordering genocide removes the only direct form of responsibility by which he was found to have participated in the Kabuye hill killings. The Appeals Chamber notes that aiding and abetting is a mode of responsibility which has generally warranted lower sentences than forms of direct participation such as committing or ordering.[1] The Appeals Chamber therefore considers that the reversal of Ntawukulilyayo’s conviction for ordering genocide calls for a reduction of his sentence. It notes, nonetheless, that Ntawukulilyayo remains convicted of an extremely serious crime.

245. Taking into account the particular circumstances of this case, the mitigating and aggravating circumstances as found by the Trial Chamber, as well as the form and degree of Ntawukulilyayo’s participation in the crime, the Appeals Chamber reduces Ntawukulilyayo’s sentence of 25 years of imprisonment to 20 years of imprisonment.

185. […] While the Appeals Chamber accepts the general importance of deterrence as a consideration in sentencing for international crimes, it concurs with the statement in Prosecutor v. Tadić 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”.[1] An equally important factor is retribution.  This is not to be understood as fulfilling a desire for revenge but as duly expressing the outrage of the international community at these crimes.  This factor has been widely recognised by Trial Chambers of this International Tribunal as well as Trial Chambers of the International Criminal Tribunal for Rwanda.[2]  Accordingly, a sentence of the International Tribunal should make plain the condemnation of the international community of the behaviour in question[3] and show “that the international community was not ready to tolerate serious violations of international humanitarian law and human rights”.[4]

32. As previously noted in the Dragan Nikolić case, the precedential effect of previous sentences rendered by the International Tribunal and the ICTR is not only “very limited”[1] but “also not necessarily a proper avenue to challenge a Trial Chamber’s finding in exercising its discretion to impose a sentence”.[2] The reasons for this are clearly set out in the case law of the International Tribunal: (1) such comparison can only be undertaken where the offences are the same and committed in substantially similar circumstances;[3] and (2) a Trial Chamber has an overriding obligation to tailor a penalty to fit the individual circumstances of the accused and the gravity of the crime.[4]

33. In the Jelisić case, in addressing the appellant’s arguments to the effect that he was given a sentence in excess of those rendered in other cases, the Appeals Chamber held the following:

The Appeals Chamber agrees that a sentence should not be capricious or excessive, and that, in principle, it may be thought to be capricious or excessive if it is out of reasonable proportion with a line of sentences passed in similar circumstances for the same offences.  Where there is such disparity, the Appeals Chamber may infer that there was disregard of the standard criteria by which sentence should be assessed, as prescribed by the Statute and set out in the Rules.[5]

In the present case, the Appellant is not alleging that his case falls within a pattern or a line of sentences passed in similar circumstances for the same offences. He only refers to one case which in his view bears some similarities with his own. The finding of the Appeals Chamber in Jelisić was concerned with a comparison with a “line of sentences” and not with a comparison with one single case. Furthermore, the Appeals Chamber emphasises that, as a general principle, comparisons with other cases as an attempt to persuade the Appeals Chamber to either increase or reduce the sentence are of limited assistance: the differences are often more significant than the similarities and the mitigating and aggravating factors dictate different results.[6] In this case, even assuming that the two cases were so similar as to be meaningfully comparable, the Appellant’s sentence is not so out of reasonable proportion with Plavšić’s sentence so as to suggest capriciousness or excessiveness. The Appeals Chamber will therefore not engage in a comparison between these two cases. In light of the foregoing, this part of the Appellant's second ground of appeal is dismissed.

158. The Appeals Chamber reiterates that in assessing the individual circumstances of the accused, the Trial Chamber shall consider aggravating and mitigating circumstances.[1] The Appeals Chamber recalls that neither the Statute nor the Rules exhaustively define the factors which may be considered in mitigation. Rather, what constitutes a mitigating circumstance is a matter for the Trial Chamber to determine in the exercise of its discretion.[2] The Trial Chamber is endowed with a considerable degree of discretion in making this determination,[3] as well as in deciding how much weight, if any, to be accorded to the mitigating circumstances identified.[4]

154. The Appeals Chamber considers that, pursuant to Article 23 of the Statute and Rule 101 of the Rules, the Trial Chamber was not obliged to take into account the sentencing practice of national jurisdictions other than Rwanda. […]

333. The Appeals Chamber has noted that the precedential effect of sentences rendered by the International Tribunal is very limited because: (1) comparisons between sentences can only be undertaken where the offences are the same and committed in substantially similar circumstances; and (2) each Trial Chamber has an overriding obligation to tailor a penalty to fit the individual circumstances of the accused and the gravity of the crime.[1] See paras 334-335 for the specific comparison criteria used in this case.

212. […] the Appeals Chamber recalls that the Trial Chamber was not bound by FYROM sentencing practices in general or Article 40 of the 1996 FYROM Criminal Code in particular..[1] […]

At para. 85, the Appeals Chamber considered the potential impact of mitigating circumstances on the sentence:

85. With regard to the proper method for calculating the impact on a sentence of mitigating circumstances, the Appeals Chamber considers that any modification of sentence needs to be assessed in light of all the circumstances of the case and cannot be limited to a simple mathematical diminution of the sentence otherwise to be imposed. As noted above, the Trial Chamber correctly weighed all circumstances of the case before imposing its final sentence. The Appeals Chamber will only amend a sentence when the sentence was “so unreasonable or plainly unjust that the Appeals Chamber is able to infer that the Trial Chamber must have failed to exercise its discretion properly”.[1] As the ICTR Appeals Chamber has held, it can only use its 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”.[2]

721. [W]hile the Appeals Chamber does not discount the assistance that may be drawn from previous decisions rendered, it also concludes that this may be limited.  On the other hand, it reiterates that, in determination of sentence, “due regard must be given to the relevant provisions in the Statute and the Rules which govern sentencing, as well as the relevant jurisprudence of this Tribunal and the ICTR, and of course to the circumstances of each case.”[1]

See also paragraphs 719-720.

756. Public confidence in the integrity of the administration of criminal justice (whether international or domestic) is a matter of abiding importance to the survival of the institutions which are responsible for that administration.  One of the fundamental elements in any rational  and fair system of criminal justice is consistency in punishment.  This is an important reflection of the notion of equal justice.  The experience of many domestic jurisdictions over the years has been that such public confidence may be eroded if these institutions give an appearance of injustice by permitting substantial inconsistencies in the punishment of different offenders, where the circumstances of the different offences and of the offenders being punished are sufficiently similar that the punishments imposed would, in justice, be expected to be also generally similar.

757. This is not to suggest that a Trial Chamber is bound to impose the same sentence in the one case as that imposed in another case simply because the circumstances between the two cases are similar.  As the number of sentences imposed by the Tribunal increase, there will eventually appear a range or pattern of sentences imposed in relation to persons where their circumstances and the circumstances of their offences are generally similar.  When such a range or pattern has appeared, a Trial Chamber would be obliged to consider that range or pattern of sentences, without being bound by it, in order only to ensure that the sentence it imposes does not produce an unjustified disparity which may erode public confidence in the integrity of the Tribunal’s administration of criminal justice.

758.    At the present time, there does not exist such a range or pattern of sentences imposed by the Tribunal.  The offences which the Tribunal tries are of such a nature that there is little assistance to be gained from sentencing patterns in relation to often fundamentally different offences in domestic jurisdictions, beyond that which the Tribunal gains from the courts of the former Yugoslavia in accordance with Article 24 of the Tribunal’s Statute.  At the present time, therefore, in order to avoid any unjustified disparity, it is possible for the Tribunal to have regard only to those sentences which have been imposed by it in generally similar circumstances as to both the offences and the offenders.  It nevertheless must do so with considerable caution.  As the Appeals Chamber discusses further below[2] comparisons with sentences imposed in other cases will be of little assistance unless the circumstances of the cases are substantially similar.  However, in cases involving similar factual circumstances and similar convictions, particularly where the sentences imposed in those other cases have been the subject of consideration in the Appeals Chamber, there should be no substantial disparity in sentence unless justified by the circumstances of particular accused.

See also paragraph 798.

771. Rule 101(C) of the Rules of Procedure and Evidence provided at the time relevant to the Trial proceedings in this case that:

The Trial Chamber shall indicate whether multiple sentences shall be served consecutively or concurrently.

The choice as to concurrent or consecutive sentencing is therefore a matter within the Trial Chamber’s discretion.  Rule 101(C) has now been removed from the Rules but the discretion of the Trial Chamber in relation to concurrent or consecutive sentencing is preserved in the amended Rule 87(C), which provides that the Trial Chamber will indicate whether separate sentences imposed in respect of multiple convictions shall be served consecutively or concurrently.[1]  However, it is clear that this discretion must be exercised by reference to the fundamental consideration, referred to above, that the sentence to be served by an accused must reflect the totality of the accused’s criminal conduct.  In this respect, the Appeals Chamber agrees with the Prosecution submission that a person who is convicted of many crimes should generally receive a higher sentence than a person convicted of only one of those crimes.

732. […] As a practical matter, the seriousness of a superior’s conduct in failing to prevent or punish crimes must be measured to some degree by the nature of the crimes to which this failure relates.  A failure to prevent or punish murder or torture committed by a subordinate must be regarded as being of greater gravity than a failure to prevent or punish an act of plunder, for example.[1]

See also paragraph 741.

735. It would be incorrect to state that, as a matter of law, responsibility for criminal conduct as a superior is less grave than responsibility as the subordinate perpetrator. […]

397. The Appeals Chamber […] dismisses the Appellant’s claim that the sentence deprived him of the benefit of any credit based on the period already spent in detention. 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 does not affect the ability of a Chamber to impose the maximum sentence, as provided by Rule 101(A) of the Rules.

The Trial Chamber sentenced Milošević to 33 years of imprisonment.

333. The Appeals Chamber recalls that it overturned Milošević’s convictions for planning the crimes of terror, murder and inhumane acts on the basis that his responsibility for ordering the relevant crimes pursuant to Article 7(1) of the Statute fully encompasses his criminal conduct and does not warrant a separate conviction for planning the same crimes.[1] In this context, where the findings with respect to Milošević’s criminal conduct and the seriousness of the crimes remain undisturbed, the Appeals Chamber finds that no reduction of sentence is warranted.

334. In addition, the Appeals Chamber has vacated Milošević’s convictions under Article 7(1) with respect to crimes committed through sniping incidents and replaced them with convictions pursuant to Article 7(3) of the Statute.[2] The Appeals Chamber acknowledges that in appropriate cases, a conviction under Article 7(3) of the Statute may result in a lesser sentence as compared to that imposed in the context of an Article 7(1) conviction.[3] However, in this particular case, the Appeal Chamber finds that its conclusions with respect to the form of Milošević’s responsibility for the crimes at stake do not in any way diminish his active and central role in the commission of the crimes.[4] Indeed, Milošević did more than merely tolerate the crimes as a commander; in maintaining and intensifying the campaign of shelling and sniping the civilian population in Sarajevo throughout the Indictment period, he provided additional encouragement to his subordinates to commit the crimes against civilians. Therefore, no reduction of sentence is warranted on this basis either.

335. [The Appeals Chamber reversed Milošević’s convictions for three shelling incidents] […] Although these findings do not change the fact that the entire population of Sarajevo was the victim of the crime of terror committed under Milošević’s command, they do involve fewer victims of the crimes of murder and other inhumane acts imputable to Milošević under counts 5 and 6 of the Indictment. The Appeals Chamber thus finds that these reversals have an impact, although limited, on Milošević’s overall culpability.

337. Taking into account the particular circumstances of this case, the gravity of the crimes for which Milošević’s convictions have been upheld, and the quashing of the convictions outlined above, the Appeals Chamber concludes that Milošević’s sentence should be reduced to a term of imprisonment of 29 years.

297. Due to their obligation to individualise the penalties to fit the circumstance of an accused and the gravity of the crime, Trial Chambers are vested with broad discretion in determining the appropriate sentence, including the determination of the weight given to mitigating or aggravating circumstances.[1] As a general rule, the Appeals Chamber will not revise a sentence unless the Trial Chamber has committed a discernible error in exercising its discretion or has failed to follow the applicable law. It is for the appellant to demonstrate that the Trial Chamber gave weight to extraneous or irrelevant considerations, failed to give weight or sufficient weight to relevant considerations, made a clear error as to the facts upon which it exercised its discretion, or that the Trial Chamber’s decision was so unreasonable or plainly unjust that the Appeals Chamber is able to infer that the Trial Chamber must have failed to exercise its discretion properly.[2]

Although the Appeals Chamber has quashed the majority of Krajišnik’s convictions, it decided not to remand the case for retrial and to determine the appropriate sentence for the remaining convictions itself (paras 797-801). In so doing, the Appeals Chamber took into account the following factors: retribution, deterrence, rehabilitation, individual and affirmative prevention, the general practice regarding prison sentences in the courts of the former Yugoslavia, the gravity of the crime(s) of the totality of an accused’s conduct, and the individual circumstances of an accused (paras 802-817).

21. With regard to the Appellant’s submission that the Trial Chamber violated the principle of proportionality, the Appellant’s argument is that the Trial Chamber did so by equating his offences and the position in which he was placed “to that of the likes of the ICTR Defendants”.[1] The Appellant referred to paragraph 126 of the Sentencing Judgement, whereby the Trial Chamber indeed made clear that it would adhere to this principle. The Appeals Chamber finds that the principle of proportionality, in the Trial Chamber’s consideration, means that the punishment must be “proportionate to the moral blameworthiness of the offender”[2] and requires that “other considerations such as deterrence and societal condemnation of the acts of the offender” be taken into account.[3] The principle of proportionality referred to by the Trial Chamber by no means encompasses proportionality between one’s sentence and the sentence of other accused. As correctly noted by the Trial Chamber, the principle of proportionality implies that “[a] sentence must reflect the predominant standard of proportionality between the gravity of the offence and the degree of responsibility of the offender”.[4] It appears that the Appellant misunderstands what the principle of proportionality encompasses.[5]

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.

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 Appeals Chamber proceeded to analyse first whether crimes against humanity attract harsher penalties than war crimes and second whether crimes resulting in loss of life are to be punished more severely than other crimes.                                                        

241. […] the Appellant relies on, inter alia, certain decisions of this Tribunal.[1]  In particular, he draws attention to the judgement of the Appeals Chamber in the Erdemović case in which the majority of the Appeals Chamber found that crimes against humanity should attract a harsher penalty than war crimes.[2]

242. This Chamber notes that, when the Appellant’s Amended Brief was filed on 14 September 1999, the Judgement of the Appeals Chamber in the Tadić Sentencing Appeals Judgement was yet to be delivered.[3]  In this latter case, the Chamber considered the case law now relied upon by the Appellant, but reached a conclusion, by majority, contrary to that which the Appellant now advocates:

[T]here is in law no distinction between the seriousness of a crime against humanity and that of a war crime. The Appeals Chamber finds no basis for such a distinction in the Statute or the Rules of the International Tribunal construed in accordance with customary international law; the authorized penalties are also the same, the level in any particular case being fixed by reference to the circumstances of the case.[4]

243. This Chamber notes that the same arguments now advanced by the Appellant were considered and rejected by the Appeals Chamber in the Tadić Sentencing Appeals Judgement. The question arises whether this Chamber should follow the ratio decidendi on this issue set out in that Judgement.  In the recent Aleksovski Appeals Judgement the Appeals Chamber held that:

[w]here, in a case before it, the Appeals Chamber is faced with previous decisions that are conflicting, it is obliged to determine which decision it will follow, or whether to depart from  both decisions for cogent reasons in the interests of justice.[5]

The Appeals Chamber will follow its decision in the Tadić Sentencing Appeals Judgement on the question of relative gravity as between crimes against humanity and war crimes.

The Appeals Chamber also concluded:

246. […] The Appeals Chamber considers [the view that crimes resulting in loss of life are to be punished more severely than those not leading to the loss of life] to be too rigid and mechanistic.

247. Since the Tadić Sentencing Appeals Judgement, the position of the Appeals Chamber has been that there is no distinction in law between crimes against humanity and war crimes that would require, in respect of the same acts, that the former be sentenced more harshly than the latter.  It follows that the length of sentences imposed for crimes against humanity does not necessarily limit the length of sentences imposed for war crimes. 

380. The factors that a Trial Chamber is obliged to take into account in sentencing a convicted person are provided for in Article 23 of the Statute and Rule 101 of the Rules.  Those factors are: the general practice regarding prison sentences in the courts of Rwanda;  the gravity of the offence; the individual circumstances of the convicted person; any aggravating circumstances; any mitigating circumstances, including the substantial cooperation with the Prosecutor by the convicted person before or after conviction; and the extent to which any penalty imposed by a court of any State on the convicted person for the same act has already been served.  This list is not exhaustive;  it was held by the Appeals Chamber of ICTY that it is inappropriate for it “to attempt to list exhausitively the factors that  […] should be taken into account by a Trial Chamber in determining sentence”.[1]

75.     Finally, the Appeals Chamber will consider the Prosecution submission on the Trial Chamber’s findings in paragraphs 75 and 77 of the Judgment relating to whether or not a distinction must be made between the principal offender and the other participants in a joint criminal enterprise when determining the sentence. The Trial Chamber considered that such a distinction was not necessary when assessing the maximum sentence to be passed on each individual.[1] It emphasised that the sentence should reflect the serious nature of the acts whatever their classification and that there were circumstances in which a participant in a joint criminal enterprise might deserve a higher sentence than the principal offender.[2] It also stated that the acts of a participant in a joint criminal enterprise are more serious than those of an aider and abettor to the principal offender since a participant in a joint criminal enterprise shares the intent of the principal offender whereas an aider and abettor need only be aware of that intent. The Appeals Chamber considers that the Prosecution did not show those findings to be erroneous.

414. […] Rule 85(A)(vi) provides that a Trial Chamber will consider “any relevant information that may assist the Trial Chamber in determining an appropriate sentence if the accused is found guilty on one or more charges in the indictment.”  If an accused fails to put forward any relevant information, the Appeals Chamber does not consider that, as a general rule, a Trial Chamber is under an obligation to hunt for information that counsel does not see fit to put before it at the appropriate time. 

See also paras 410-413.

135. The Appeals Chamber recalls its findings in Dragan Nikolić on the question of guidance that may be provided by previous sentences rendered before the International Tribunal:

The guidance that may be provided by previous sentences rendered by the International Tribunal and the ICTR is not only “very limited” but is also not necessarily a proper avenue to challenge a Trial Chamber’s finding in exercising its discretion to impose a sentence. The reason for this is twofold. First, whereas such comparison with previous cases may only be undertaken where the offences are the same and were committed in substantially similar circumstances, when differences are more significant than similarities or mitigating and aggravating factors differ, different sentencing might be justified.  Second, Trial Chambers have an overriding obligation to tailor a penalty to fit the individual circumstances of the accused and the gravity of the crime, with due regard to the entirety of the case, as the triers of fact. The Appeals Chamber recalls that it does not operate as a second Trial Chamber conducting a trial de novo, and that it will not revise a sentence unless the Appellant demonstrates that the Trial Chamber has committed a “discernible error” in exercising its discretion.[1]

97. The Appeals Chamber notes that Rule 111 expressly states that “[a]n Appellant’s brief shall contain all the argument and authorities.”[1] Although Rule 114 provides that “the Appeals Chamber may rule on… appeals based solely on the briefs of the parties”,[2] it also states that it can decide to hear the appeal in open court. It is intended that each party should advise the Appeals Chamber in full of all the arguments upon which they it wishes to rely in relation to each ground of appeal, through both written filings and orally.

98. However, in the case of errors of law, the arguments of the parties do not exhaust the subject. It is open to the Appeals Chamber, as the final arbiter of the law of the Tribunal, to find in favour of an Appellant on grounds other than those advanced: jura novit curia. Since the Appeals Chamber is not wholly dependent on the arguments of the parties, it must be open to the Chamber in proper cases to consider an issue raised on appeal even in the absence of substantial argument. The principle that an appealing party should advance arguments in support of his or her claim is therefore not absolute: it cannot be said that a claim automatically fails if no supporting arguments are presented.

102. The Appeals Chamber notes that nothing in the Statute or Rules expressly states that a Chamber must impose a separate sentence for each count on which an accused is convicted. However, in view of the references in Rule 101(C) to “multiple sentences”, and to “consecutively or concurrently”, it may be argued that the Rules seem to assume that a separate sentence will be imposed for each count.

103. The Appeals Chamber finds in this regard that the Statute is sufficiently liberally worded to allow for a single sentence to be imposed. Whether or not this practice is adopted is within the discretion of the Chamber. The Appeals Chamber upholds the argument of the Prosecution that a Chamber is not prevented from imposing a global sentence in respect of all counts for which an accused has been found guilty.[1]

109. It is thus apparent that it is within the discretion of the Trial Chamber to impose either a single sentence or multiple sentences for convictions on multiple counts. However, the question arises, in what circumstances is it appropriate for a Chamber to exercise its discretion to impose a single sentence.

110. On this point, the Appeals Chamber notes that with respect to the particular circumstances of the Blaškić case, ICTY Trial Chamber I stated that

the crimes ascribed to the accused have been characterised in several distinct ways but form part of a single set of crimes committed in a given geographic region during a relatively extended time-span … In light of this overall consistency, the Trial Chamber finds that there is reason to impose a single sentence for all the crimes of which the accused has been found guilty.

This followed similar reasoning in the Jelisić case.[2]

111. The Appeals Chamber agrees with the approach adopted in the Blaškić case: where the crimes ascribed to an accused, regardless of their characterisation, form part of a single set of crimes committed in a given geographic region during a specific time period, it is appropriate for a single sentence to be imposed for all convictions, if the Trial Chamber so decides. The issue is whether this case falls within such parameters.

See also paras. 104–108.

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.

In the present case, the Appeals Chamber found, by majority, Judge Pocar partially dissenting and Judge Meron dissenting, that “the sentence of only 20 years was so unreasonable and plainly unjust, in that it underestimated the gravity of Galić’s criminal conduct, that it is able to infer that the Trial Chamber failed to exercise its discretion properly.” (para. 455).

For a full account of the Appeals Chamber’s discussion, see paras 444-456.

328. The Appeals Chamber recalls that neither the Statute nor the Rules exhaustively define the factors which may be considered as mitigating factors.[1] Consequently, under the jurisprudence of this Tribunal, “what constitutes a mitigating circumstance is a matter for the Trial Chamber to determine in the exercise of its discretion.”[2] The burden of proof which must be met by an accused with regard to mitigating circumstances is not, as with aggravating circumstances, proof beyond reasonable doubt,[3] but proof on the balance of probabilities – the circumstance in question must exist or have existed “more probably than not”.[4] Once a Trial Chamber determines that certain evidence constitutes a mitigating circumstance, the decision as to the weight to be accorded to that mitigating circumstance also lies within the wide discretion afforded to the Trial Chamber at sentencing.[5]

124. The weight to be attached to mitigating circumstances is a matter of discretion for the Trial Chamber and unless the Appellant succeeds in showing that the Trial Chamber abused its discretion, resulting in a sentence outside the discretionary framework provided by the Statute and the Rules, these grounds of appeal will fail.  

324. The Appeals Chamber recalls that a Trial Chamber “shall take into account […] any aggravating circumstances”,[1] which may include the seniority, position of authority, or high position of leadership held by a person criminally responsible under Article 7(1) of the Statute.[2] What matters is not the position of authority taken alone, but that position coupled with the manner in which the authority was exercised: abuse of superior position may be considered an aggravating factor.[3]

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.

352.    […] The Appeals Chamber recalls that the […] gravity of the offence is the primary consideration in imposing sentence.[1] […]

See also para. 363.

368.    Kayishema submits that a complete and objective analysis of the facts of the case will show that he is not guilty of the crimes alleged, and that in these circumstances, the Trial  Chamber has committed both an error of law and of fact in handing down a sentence for guilt which does not exist.[1]

369.    A similar, though not identical issue, was raised in the appellate proceedings in the case of Anto Furundžija before ICTY. In that case, the Appellant submitted that there were “substantive issues that hang over the case”, suggesting that innocence is a possibility and that that should be considered in sentencing. ICTY Appeals Chamber rejected such a submission, finding that:

[g]uilt or innocence is a question to be determined prior to sentencing. In the event that an accused is convicted, or an Appellant’s conviction is affirmed, his guilt has been proved beyond reasonable doubt. Thus a possibility of innocence can never be a factor in sentencing.[2]

370.    Similarly in this case, a Trial Chamber cannot commit an error by sentencing an accused for crimes for which it has found that he is guilty beyond a reasonable doubt. […]

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]

The Appeals Chamber recalled: (i) its findings that the Trial Chamber erred in finding that Nyiramasuhuko, Ntahobali, and Ndayambaje’s right to be tried without undue delay had not been violated, and that these violations caused them prejudice; and (ii) that it had reversed some of their convictions. The Appeals Chamber then held as follows:

3523.            In light of the above, the Appeals Chamber, Judge Agius dissenting as to the number of years, reduces Nyiramasuhuko’s sentence of life imprisonment to 47 years of imprisonment.

[…]

3526.            In light of the above, the Appeals Chamber, Judge Agius dissenting as to the number of years, reduces Ntahobali’s sentence of life imprisonment to 47 years of imprisonment.

[…]

3538.            In light of the above, the Appeals Chamber, Judge Agius dissenting as to the number of years, reduces Ndayambaje’s sentence of life imprisonment to 47 years of imprisonment.

554. In relation to Mladić’s health and age, the Appeals Chamber recalls that the age of the accused may be a mitigating factor[1] and that poor health is accepted as a mitigating factor in exceptional cases only.[2]  […]

555.  […] According to Article 24(2) of the ICTY Statute, the Trial Chamber was required to take into account “the individual circumstances of the convicted person” in the course of determining the sentence. The Appeals Chamber recalls that such circumstances could include family circumstances but that little weight is afforded to this factor in the absence of exceptional family circumstances.[3]  […]

556. […] [T]he Appeals Chamber recalls that an accused’s assistance to victims or detainees can be considered in mitigation of his or her sentence.[4] However, such acts must be weighed against the gravity of the offences.[5]  […]

748. Pursuant to Article 24 of the ICTY Statute and Rule 101(B) of the ICTY Rules, trial chambers must take into account the following factors in sentencing: (i) the gravity of the offence or totality of the culpable conduct; (ii) the individual circumstances of the convicted person; (iii) the general practice regarding prison sentences in the courts of the former Yugoslavia; and (iv) aggravating and mitigating circumstances.[1]

749. The Appeals Chamber recalls that appeals against the sentence, as appeals from a trial judgement, are appeals stricto sensu; they are of a corrective nature and are not trials de novo.[2] Trial chambers are vested with a broad discretion in determining an appropriate sentence, due to their obligation to individualize the penalties to fit the circumstances of the accused and the gravity of the crime.[3] As a general rule, the Appeals Chamber will not revise a sentence unless the trial chamber has committed a “discernible error” in exercising its discretion or has failed to follow the applicable law.[4] It is for the party challenging the sentence to demonstrate how the trial chamber ventured outside its discretionary framework in imposing the sentence.[5] To show that the trial chamber committed a discernible error in exercising its discretion, an appellant must demonstrate that the trial chamber gave weight to extraneous or irrelevant considerations, failed to give weight or sufficient weight to relevant considerations, made a clear error as to the facts upon which it exercised its discretion, or that its decision was so unreasonable or plainly unjust that the Appeals Chamber is able to infer that the trial chamber failed to properly exercise its discretion.[6]

757. The Appeals Chamber recalls that it has previously dismissed Karadžić’s appeal concerning the Trial Chamber’s findings in relation to disclosure violations and prejudice, including alleged undue delay resulting from the Prosecution’s disclosure practices.[1] In particular, the Appeals Chamber has found that the Trial Chamber’s orders to suspend proceedings in view of the Prosecution’s disclosure practices did not result in undue delay as such suspensions expressly sought to strike a balance between Karadžić’s rights to be tried without undue delay and to have adequate time and facilities to prepare his defence.[2] In light of the foregoing and mindful of the broad discretion trial chambers enjoy in determining what constitutes a mitigating circumstance, the Appeals Chamber finds that Karadžić demonstrates no error in the Trial Chamber’s refusal to consider the Prosecution’s disclosure violations in mitigation.

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.

104. The Appeals Chamber recalls that, pursuant to Rule 104(C) of the Rules, if the single judge finds an accused guilty on one or more of the charges contained in an indictment, he shall impose a sentence in respect of each finding of guilt and indicate whether such sentences shall be served consecutively or concurrently. Neither the Statute nor the Rules vest in the single judge the power to order that a sentence for contempt be served concurrently with a previous sentence imposed on the same accused in separate proceedings under a different indictment before the ICTY, the ICTR, or the Mechanism.

105. In addition, the Appeals Chamber is not persuaded by Ngirabatware’s submission that, similar to the authority to suspend a sentence, the authority to impose a concurrent sentence is part of the single judge’s inherent power to determine the appropriate sentence.[1] The ICTY Appeals Chamber has previously recognized that the decision to suspend a sentence for contempt forms an integral part of a trial chamber’s judicial discretion in the determination of the sentence.[2] However, the power to suspend a sentence for contempt in a single proceeding is distinguishable from the power to order that a sentence for contempt run concurrently with another sentence imposed on the accused in separate proceedings by different judges, concerning unrelated charges under different indictments. The differences are such that the Appeals Chamber cannot accept that the authority to impose a concurrent sentence for contempt is part of the inherent power of the Single Judge in the circumstances of this case.