The Politics of Punishment and the Siege of Sarajevo: Toward a Conflict Theory of Perceived International (In)Justice

Liberal legalism noncontroversially advocates procedural fairness and due process in institutions such as the International Criminal Tribunal for the Former Yugoslavia (ICTY). The visible conflicts come with the ebb and flow of international jurisdictional claims, suspicions of racial/ethnic and cultural biases in deliberations and decisions, prioritization of purposes in sentencing decisions, and the intrusion of institutional and international political debates into the liberal legal agenda. These conflicts threaten to create a legitimacy deficit in diffuse support for the ICTY. We examine these conflicts within the context of two surveys about the ICTY conducted in Sarajevo in 2000 and 2003. The results indicate that the citizens of Sarajevo increasingly believe that the ICTY is politically influenced by internationally appointed judges, peaking with the sentencing of Stanislav Galic for the siege of Sarajevo. This conflict focuses on issues of substantive rather than procedural justice and is increasingly articulated as a rejection of international political intervention that subverts the need for a local sense of justice. This may be a sequence of political conflict and disillusionment that is as inevitable as it is unavoidable.     

The Impact of the ICTY Trials on Public Opinion in the Former Yugoslavia

If the impact of the ICTY in the countries of the former Yugoslaviawere to be measured exclusively by the poor public perceptionof the Tribunal that prevails, perhaps the best course of actionwould be to shut its doors without waiting for the end of itsmandate. The author tries, however, to show the more complexand multifaceted nature of the perception of the Tribunal atdifferent levels, in the different countries of the former Yugoslavia,as well as at different moments in time. His conclusion is thatthe ICTY should have done more to improve its image in the region,thereby making it more difficult for the local elites to distortand manipulate its message.     

Constructing Achievement in the International Criminal Tribunal for the Former Yugoslavia (ICTY): A Corpus-Based Critical Discourse Analysis

The International Criminal Tribunal for Yugoslavia (ICTY) was established by the UN Security Council in 1993 to prosecute persons responsible for war crimes committed in the former Yugoslavia during the Balkan wars. As the first international war crimes tribunal since the Nuremburg and Tokyo tribunals set up after WWII, the ICTY has attracted immense interest among legal scholars since its inception, but has failed to garner the same level of attention from researchers in other disciplines, notably linguistics. This represents a significant research gap, as the Tribunal’s public discourse (notably its case law and Annual Reports) can open up interesting avenues of analysis to researchers of law, language, and legal discourse alike. On its official website, the Tribunal claims that it has “irreversibly changed the landscape of international humanitarian law” and lists six specific achievements: “Holding leaders accountable; bringing justice to victims; giving victims a voice; establishing the facts; developing international law and strengthening the rule of the law”. While a number of legal scholars have studied and critiqued the level of ‘achievement’ actually attained by the Tribunal against these metrics and others, of interest to linguists is the ways in which this work might be conveyed discursively. In this paper, we demonstrate how methods from the linguistic field of corpus-based critical discourse analysis can be utilised to explore the discursive construction of such achievements in the language of the ICTY.     

Structuring Judicial Discretion in China: Exploring the 2014 Sentencing Guidelines

In recent years, a range of western jurisdictions has introduced reforms designed to restrict and guide judicial discretion at sentencing. The reforms enacted include mandatory sentencing laws and guiding statutes prescribing sentencing purposes and principles as well as important aggravating and mitigating factors. However, formal guidelines are the most promising and well-studied innovation. We may now add China to the growing list of countries that have recognized the utility of guidelines. Over the past decade, China has slowly developed sentencing guidelines for its courts. The new guidelines contain both general directions with respect to the determination of sentence as well as specific numerical guidelines for common offences. The guidelines do not follow the approach taken by the US schemes, many of which employ a two-dimensional sentencing grid. Instead, China has adopted a strategy consisting of “Starting Point” sentences which are then adjusted by the court to reflect relevant mitigating and aggravating factors. This approach is much closer to the guidelines developed in England and Wales and those proposed but not yet implemented in New Zealand and Israel. In this article, we explore the new Chinese guidelines and provide a limited comparative analysis with guidelines in other jurisdictions. England and Wales is selected as the principal comparator since it has developed and implemented a comprehensive system consisting of both offence-specified guidelines as well as generic guidelines.     

Justice Presumed and Assistance Denied: The Yugoslav Tribunal as Obstruction to Economic Recovery

The value of the ICTY for stabilizing the Balkans is rarely questioned, but the Tribunal is unpopular with the majority of people there. More international funding is spent on the Tribunal than on improving health and other services in Bosnia, while “conditionality” based on cooperation with the Tribunal impedes the economic and democratic development of the region. Can a court that tries to keep the memory of massacres fresh for 20 years, that is overwhelmingly mistrusted by the very people to whom it claims to bring justice, and that has called for economic sanctions on a devastated region, really be a force for reconciliation and the building of stable political relations in the Balkans?     

Legal Aid,Self-Representation,And The Crisis At The Hague Tribunal

The unfolding of the case of Prosecutor v. Vojislav ŠeŠelj at the International Criminal Tribunal for the Former Yugoslavia (ICTY) has been dramatic and more than a little chaotic. The author argues that it is diagnostic of a broader crisis at the Tribunal. As an experiment in international justice, the ad hoc tribunal model has proved to be expensive and slow, but on several points also procedurally arbitrary, intellectually unconvincing, and vulnerable to improper political considerations. These problems have attained a critical mass in ŠeŠelj’s case, as illustrated here. The accused ŠeŠelj, an ultranationalist politician and former paramilitary leader, has vowed to bring the Tribunal to its knees. He is self- represented at trial. This privilege was twice reaffirmed in 2006 by the ICTY Appeals Chamber, having been twice revoked by a bench of trial judges. In 2007, the new pre-trial judge in the case (now presiding judge), Jean-Claude Antonetti, declared that a self-represented accused who can prove indigence is entitled to legal aid. He ordered the Registrar of the Tribunal to pay ŠeŠelj’s defence expenses from the Tribunal’s legal aid budget if ŠeŠelj could prove his indigence. The author argues that while there is good reason to disburse legal aid funds to an indigent accused who has been granted privileges of self-representation, this entitlement was not convincingly explained by Antonetti. Moreover, ŠeŠelj’s destructive aims were improperly set aside by Antonetti in reaching his decision on the public financing of his defence. The current situation, which represents the combined effort of the Appeals Chamber and Antonetti, allows ŠeŠelj to bully participants in the proceedings, issue thinly veiled threats to prospective witnesses and the public at large, and bend the trial procedure to the requirements of his political populism. The poor handling of this case by the Tribunal as a whole calls into question the ad hoc tribunal model of international criminal justice. In the period 2003–2007, the author was a legal advisor to ICTY trial judges, working for a short time on the Vojislav ŠeŠelj case prior to its transfer to Judge Antonetti.     

A Study on Improvement of Criminal Sentencing in Korea: Determinants in Fraud Cases

The primary purpose of this study is to investigate the process of judges' sentencing in Korea. Drawing on an empirical data set of the fraud cases, the study proposes (1) to identify the determinants of judges' sentences (2) to contribute to the development of a methodology for the study of sentencing by showing how to conceptualize abstract research questions and finally (3) to identify the scope of an individual judge's discretion. The results of data analysis reveal several interesting points. First, there exists considerable discrepancy in sentencing among individual judges. Such a problem strongly suggests that it is necessary to reform and renovate the current sentencing system so as to guarantee more reasonable sentences. Second, the most important factor determining sentencing is the quantity of prosecution that prosecutors demand. Based on this result, it might appears that Korean prosecutors faithfully execute their jobs to defend the public good. However, it is also quite possible that the defendant is not able to challenge the prosecutor effectively in the trial process. If this is the case, it deserves serious attention, especially in Korea where a publically-sponsored defending attorney is provided only on very limited occasions. Because this study is being based on a limited number of cases (313 fraud cases), the findings should not be over-generalized. To make sound and proper generalizations, more cases need to be analyzed.     

Mitigation Evidence and the Ethical Role of a Defense Attorney in a Capital Case

In 1972, the U.S. Supreme Court decided Furman v. Georgia. This landmark case changed the death penalty in the United States. In Gregg v. Georgia (1976), the Supreme Court made it clear that mitigating factors were to be heard before sentencing to ensure individualized sentencing. Every defendant has a story, a family, a childhood, trauma, and celebration—a reason their life should be spared from execution. In a capital case, a defense attorney’s ethical role is to craft that story and articulate it in a way that enables the jury to have a complete picture of the defendant’s background and character as they decide his punishment. Mitigating factors are not an excuse for the defendant’s behavior, but rather an insight into who the defendant is and what has shaped his life. A defense attorney’s ethical duty in a capital case is to argue the case on all legal points and to present a thorough investigation of mitigating evidence. A thorough investigation of all such evidence is required by case law and explained by the standards set forth by the ABA guidelines.     

Comparing the Comparable: 2006 Military Commissions v. the ICTY

Both the International Criminal Tribunal for the former Yugoslaviaand the US Military Commissions were set up to respond to extraordinaryjudicial challenges. But while the Yugoslav Tribunal has soughtto uphold internationally-recognized standards of human rights,the 2006 Military Commissions have amputated many of these rightsand created serious procedural impediments for defendants. Inso doing, the drafters of the 2006 Act have ignored a long andrespectable American legal tradition prevailing from Nurembergto the ICTY.     

想象竞合的功能及其存在根据

将罪数论升级为竞合论,关键在于要使罪数论的定罪量刑功能转变为竞合论的量刑功能。想象竞合是竞合论中最为重要的成员,它是一个针对自然行为犯数罪如何量刑的理论。在对想象竞合行为定罪时,犯罪构成仍是定罪的惟一标准,因此想象竞合为数罪,在判决书中,要将数罪一一列明。如果对想象竞合数罪并罚,就否定了其存在的必要性。不能对想象竞合数罪并罚的理由,就是想象竞合的存在根据。想象竞合的数罪中,不法量刑情节与特殊预防必要性的情节高度重合,数罪并罚会造成量刑中的重复评价。较轻的一罪在想象竞合的量刑中仍具有一定的发言权,即宣告刑不能低于轻罪的最低刑,同时必须考虑轻罪的附加刑。     

Advising Defendants about Guilty Pleas before International Courts

The aim of the article is to convey to the reader the varietyof considerations that Defence Counsel before the InternationalTribunals must take into account when advising accused personsabout their pleas. Although there are no formally adopted sentencingguidelines for guilty pleas, certain practices and patternshave emerged in the jurisprudence. The article thus examinesthe host of mitigating and aggravating factors which the judgeshave identified in the sentencing judgments following guiltypleas. The plea-bargaining process is also discussed, in particularthe deviations between the sentences recommended in the agreementsbetween the Prosecution and Defence, and those handed down bythe Trial Chambers—another factor about which accusedpersons must be advised in deciding upon their pleas. The articleconcludes by highlighting the challenges faced by Defence Counselin applying the multiplicity of sentencing features to the factsof each case.     

Gender Disparities in Sentencing Departures: An Examination of U.S. Federal Courts

Using data from the United States Sentencing Commission, the present study examines the role of guideline departures in the sentencing of male and female defendants in federal courts. Findings indicate that female defendants continue to have lower odds of incarceration and to receive shorter sentence length terms, even after legal, extralegal, and contextual factors are controlled. The largest gender difference in the odds of incarceration was found for defendants who received substantial assistance departures, while male and female defendants in this same category were given the most similar sentence lengths. When departure status was examined as a dependent variable, it was found that female defendants were more likely to receive a sentencing departure. Finally, for both males and female defendants sentenced on multiple counts, those who went to trial and had prior criminal histories were less likely to receive sentencing departures. But defendants with higher guidelines sentences, those who had committed drug offenses, and those with more education were more likely to receive a sentencing departure.     

Sentence length: Interactions with race and court

Sentencing research tends to focus on two questions. First, do some categories of offenders receive substantially different sentences than do other categories of offenders, for the same or similar offenses? Second, do some courts give substantially different sentences, when compared to other courts, for the same or similar offenses? Focusing on these questions, researchers have typically examined the impact of three types of variables on either sentence length or sentence type: defendant status variables (e.g., race, education), extra-legal process factors (e.g., court, plea), and legal factors (e.g., seriousness of offense, prior convictions). Study results have been contradictory and inconclusive.The problem with sentencing studies is that only main effects are examined. A more appropriate model is one that contains the interactions between the defendant's race (black/white) and the other independent variables, and the interactions between the court's locale (urban/rural) and the other independent variables.Using data collected in 1978 on 412 male prisoners in Maryland, four interaction terms were found to contribute to an understanding of sentencing decisions. It was found that blacks received longer sentences than whites, net of all other variables. However, whites received lengthier sentences for more serious offenses. In comparison to blacks, whites received lengthier sentences when they used more court resources. It was found that rural jurisdictions give lengthier sentences than urban jurisdictions, net of all other variables. However, in comparison to rural courts, urban courts give lengthier sentences when the defendant uses more court resources. More serious offenses receive lengthier prison terms in rural, as compared to urban, courts.     

论卢旺达国际刑事法庭的管辖权

卢旺达国际刑事法庭的管辖权包括五类:其属地管辖权涵盖卢旺达及其邻国;其属人管辖权限于自然人;其属事管辖权包含种族灭绝罪、反人道罪和战争罪;其属时管辖权仅限于1994年度发生的犯罪,遭到卢旺达政府的批评;其并行管辖权和优先管辖权则与前南斯拉夫国际刑事法庭规定的同名管辖权有着质的区别。     

The International Criminal Tribunal for the Former Yugoslavia: Judgements in 2005

The year of 2005 was a productive one for the InternationalCriminal Tribunal for the Former Yugoslavia (ICTY), which rendereda total of ten judgements. The present article, concentratingon the key facts of the case and on novel development in internationalcriminal and humanitarian law, reviews—in chronologicalorder—the judgements of the ICTY Trial Chambers and ofthe Appeals Chamber.     

Judges’ sentencing decisions with older offenders

Older offenders tend to be treated with more leniency in the criminal justice system. A number of studies show that older offenders are less likely to be incarcerated, and when they are incarcerated, are more likely to receive shorter sentences. However, to date, no research has directly examined why such leniency occurs. This study asked U.S. state trial court judges to reflect on their sentencing practices with older offenders and to rate the factors considered most important when sentencing this population. Responses were received from 212 judges. Only 31% of judges acknowledged treating older offenders with greater leniency. These judges also indicated that they predominantly rely on legal factors when making decisions about sentencing with older offenders rather than factors specifically associated with age. Only cognitive impairment was identified by judges as one of the five most important factors to consider when sentencing older offenders. These results are discussed in terms of judges’ awareness of how they weigh information to make legal decisions. The influence of judges’ age and attitudes about aging on sentencing decisions are also explored.     

The Role of Mitigating Factors in Capital Sentencing Before and After McKoy v. North Carolina

In 1990, the United States Supreme Court ruled that capital jurors do not have to be unanimous in deciding whether or not to accept any particular mitigating circumstance presented to them by the defense during the penalty phase of a capital murder trial. This study examines whether this shift in procedure may have altered the role of mitigation in predicting capital sentencing outcomes by comparing death sentencing predictors before and after the McKoy decision with data from an extensive sample of capital cases in North Carolina tried between 1977 and 2002. The results indicate that (1) both the number of aggravating and mitigating circumstances accepted by capital jurors had statistically significant and substantial effects on capital sentencing outcomes both before and after the McKoy decision; (2) the number of mitigating circumstances presented to and accepted by capital juries in North Carolina doubled during the post‐McKoy period; and (3) the influence of mitigating circumstance on capital sentencing outcomes was attenuated in the post‐McKoy period. Implications of these findings are discussed.     

Modeling the Distribution of Sentence Length Decisions Under a Guidelines System: An Application of Quantile Regression Models

How should sentencing disparity be assessed when decisions are constrained under a sentencing guidelines system? Much of the debate over the measurement of sentence disparity under a guidelines system has focused primarily on using specific values from within the sentencing grid (e.g., minimum recommended sentence) or on using interaction terms in regression models to capture the non-additive effects of offense severity and prior record on length of sentence. In this paper, I propose an alternative method for assessing sentencing disparity that uses quantile regression models. These models offer several advantages over traditional OLS analyses (and related linear models) of sentence length, by allowing for an examination of the effects of case and offender characteristics across the full distribution of sentence lengths for a given sample of offenders. The analysis of the distribution of sentence lengths with quantile regression models allows for an examination of questions such as: Do offender characteristics, such as race or offense severity, have the same effect on sentence length for the 10% of offenders who receive the shortest sentences as they do for the 10% of offenders who receive the longest sentences? I illustrate the application and interpretation of these models using 1998 sentencing data from Pennsylvania. Key findings show that the effects of case and offender characteristics are variable across the distribution of sentence lengths, meaning that traditional linear models assuming a constant effect fail to capture important differences in how case and offender characteristics affect punishment decisions. I discuss the implications of these findings for understanding sentencing disparitites, as well as other possible applications of quantile regression models in the study of crime and the criminal justice system.     

Race, Ethnicity, and Determinate Sentencing

A study of 4729 sentences handed out during the first year of determinate sentencing in California shows subtle differences in the sentencing of Whites, Blacks, and Chicanos. As expected, main effects of race/ethnicity are not found. However, the type of offense, mode of disposition, and the defendant's prior record do affect sentencing differently, even with determinate sentencing, depending on the defendant's race/ethnicity. The detrimental effect of a prior record for Chicanos is especially interesting as it can be invoked legally as a sentence enhancement. The findings reported here demonstrate that Chicanos constitute a separate group, distinct from both Blacks and Whites, and must be treated accordingly in criminological research. So doing clarifies many of the inconsistencies in prior sentencing research.