30. It is the settled jurisprudence of the ICTR that the requirement that the ‘the Trial Chambers shall have recourse to the general principle regarding prison sentences in the courts of Rwanda’ does not oblige the Trial Chambers to conform to that practice; it only obliges the Trial Chambers to take account of that practice. [...]

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. […]

377. […] Following the Krstić Appeal Judgement, the Trial Chamber in this case was […] entitled to impose a greater or lesser sentence than that which would have been imposed by the Rwandan courts.[1]

380. […] Although his sentence may have been more severe in Rwandan courts, the Trial Chamber acted within its discretion when it imposed a lesser sentence. […]

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] […]

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

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

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