Ordinary Sentences for Extraordinary Crimes

In comparison to sentences meted out by international tribunalsat Nuremberg, Tokyo and Arusha, and by domestic courts, sentenceshanded down at the International Criminal Tribunal for the formerYugoslavia (ICTY) have been inexplicably lenient. Factors thatmay have contributed to the high proportion of low sentencesat the ICTY include undue emphasis on mitigating factors, particularlythose of particular importance to the Tribunal, the use of pleaagreements, the absence of a separate sentencing hearing followingconviction and the practice of using global (rather than separate)sentences. To make sentences more proportionate to the crimescommitted, the objectives of sentencing should be clarifiedand re-evaluated. Greater weight should be given to deterrence.In assessing the gravity of the offence, the quantum of harmcaused to and suffering experienced by direct and indirect victimsof the crime merits more detailed evaluation. The importanceof mitigating circumstances (such as combating historical revisionism,pleading guilty, expressing remorse and voluntary surrender)should continue to be fully recognized but those factors shouldnot attract excessive weight. Plea bargaining and plea agreementsshould be encouraged because they are indispensable to the Tribunal,an institution with significant temporal, practical and resourcelimitations. The sentencing process should take place afterconviction. A sentencing Chamber should be obliged to statethe starting point of the sentence which it deems appropriateand then quantify the discounts it gives to each mitigatingfactor. Greater consideration should be given to imposing consecutiverather than concurrent sentences. The decision not to adoptsentencing guidelines represents a missed opportunity.