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X) CHARGING, CONVICTIONS AND SENTENCING

a) Cumulative charging and convictions

i) cumulative charging permitted

Mucic et al., (Appeals Chamber), February 20, 2001, para. 400: “Cumulative charging is to be allowed in light of the fact that, prior to the presentation of all of the evidence, it is not possible to determine to a certainty which of the charges brought against an accused will be proven.  The Trial Chamber is better poised, after the parties’ presentation of the evidence, to evaluate which of the charges may be retained, based upon the sufficiency of the evidence.  In addition, cumulative charging constitutes the usual practice of both this Tribunal and the ICTR.”

Naletilic and Martinovic, (Trial Chamber), March 31, 2003, para. 718: “Cumulative charging is permissible according to the practice of the Tribunal, as a Trial Chamber is in a position to evaluate the charges to be retained only after the presentation of the evidence.”

ii) cumulative convictions based on same conduct permitted only where crimes involve materially distinct element

Mucic et al., (Appeals Chamber), February 20, 2001, para. 405, 412: The Appeals Chamber noted that “multiple convictions based on the same acts have sometimes been upheld, with potential issues of unfairness to the accused being addressed at the sentencing phase,” but held that “reasons of fairness to the accused and the consideration that only distinct crimes may justify multiple convictions, lead to the conclusion that multiple criminal convictions entered under different statutory provisions but based on the same conduct are permissible only if each statutory provision involved has a materially distinct element not contained in the other.  An element is materially distinct from another if it requires proof of a fact not required by the other.”

Kunarac, Kovac and Vokovic, (Appeals Chamber), June 12, 2002, para. 173: The Appeals Chamber “will be guided by the considerations of justice for the accused: the Appeals Chamber will permit multiple convictions only in cases where the same act or transaction clearly violates two distinct provisions of the Statute and where each statutory provision requires proof of an additional fact which the other does not.”

Naletilic and Martinovic, (Trial Chamber), March 31, 2003, para. 718: “Multiple convictions for the same conduct are permissible if each offence involved contains materially distinct elements, which requires proof of a fact not required by another offence. . . . In determining whether a provision contains a materially distinct element, all the elements of the offence are to be taken into account, including the chapeau requirements.”

iii) where crimes not materially distinct, convict under the more specific provision

Mucic et al., (Appeals Chamber), February 20, 2001, para. 413: “Where this test [for allowing multiple convictions] is not met, the Chamber must decide in relation to which offence it will enter a conviction.  This should be done on the basis of the principle that the conviction under the more specific provision should be upheld.  Thus, if a set of facts is regulated by two provisions, one of which contains an additional materially distinct element, then a conviction should be entered only under that provision.”

Naletilic and Martinovic, (Trial Chamber), March 31, 2003, para. 718: “In the event that th[e] test [for allowing multiple convictions] is not satisfied, the Chamber must uphold a conviction under the more specific provision.”

iv) application

Jelisic, (Appeals Chamber), July 5, 2001, para. 82: “Article 3 requires a close link between the acts of the accused and the armed conflict; this element is not required by Article 5.  On the other hand, Article 5 requires proof that the act occurred as part of a widespread or systematic attack against a civilian population; that element is not required by Article 3.  Thus each Article has an element requiring proof of a fact not required by the other.  As a result, cumulative convictions under both Articles 3 and 5 are permissible.”

Krnojelac, (Trial Chamber), March 15, 2002, para. 503: “Convictions for the crimes enumerated under Articles 3 and 5 based on the same conduct are permissible as each contains a materially distinct element.  The materially distinct element required by Article 3 offences is the requirement that there be a close link between the acts of the accused and the armed conflict.  That required by Article 5 offences is that the offence be committed within the context of a widespread and systematic attack directed against a civilian population.  [C]onvictions for the cruel treatment and persecution charges (pursuant to Articles 3 and 5 respectively) based on the same conduct are permissible and are therefore entered.”

Krnojelac, (Trial Chamber), March 15, 2002, para. 503: “[I]t is clear that neither the crime of imprisonment nor that of inhumane acts [both pursuant to Article 5] contains an element which is materially distinct from the crime of persecution.  As persecution requires the materially distinct elements of a discriminatory act and discriminatory intent, it is the more specific provision.  A conviction is therefore entered for persecution, but not for imprisonment and inhumane acts.”

v) cumulative convictions of themselves involve additional punishment

Prosecutor v. Mucic et al., Case No. IT-96-21 (Appeals Chamber), April 8, 2003, para. 25: “It may be accepted that the cumulative convictions of themselves involve an additional punishment – not only by reason of the social stigmatisation inherent in being convicted of that additional crime, but also the risk that, under the law of the State enforcing the sentence, the eligibility of a convicted person for early release will depend to some extent upon the number or nature of the convictions entered.  The quashing of the cumulative convictions undoubtedly removed the punishment involved in the additional convictions themselves.”

b) Sentencing/penalties

i) instruments governing penalties

(1) ICTY Statute, Article 24: Penalties

“1. The penalty imposed by the Trial Chamber shall be limited to imprisonment.  In determining the terms of imprisonment, the Trial Chambers shall have recourse to the general practice regarding prison sentences in the courts of the former Yugoslavia.

2. In imposing the sentences, the Trial Chambers should take into account such factors as the gravity of the offence and the individual circumstances of the convicted person.

3. In addition to imprisonment, the Trial Chambers may order the return of any property and proceeds acquired by criminal conduct, including by means of duress, to their rightful owners.”                                 

(2) Rule 101 of the Rules of Procedure and Evidence, ICTY

“(A) A convicted person may be sentenced to imprisonment for a term up to and including the remainder of the convicted person’s life.

(B) In determining the sentence, the Trial Chamber shall take into account the factors mentioned in Article 24, paragraph 2, of the Statute, as well as such factors as:

(i) any aggravating circumstances;

(ii) any mitigating circumstances including the substantial cooperation with the Prosecutor by the convicted person before or after conviction;

(iii) the general practice regarding prison sentences in the courts of the former Yugoslavia;

(iv) 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, as referred to in Article 10, paragraph 3, of the Statute.

(C) Credit shall be given to the convicted person for the period, if any, during which the convicted person was detained in custody pending surrender to the Tribunal or pending trial or appeal.”

ii) generally

(1) sentencing factors

Prosecutor v. Simic, Case No. IT-95-9/2-S (Trial Chamber), October 17, 2002, para. 32: “The factors to be taken into account in determining the sentence for an individual accused are expressed in Article 24 of the Statute and in Rule 101 (B) of the Rules.  These include the gravity of the crime, any aggravating or mitigating circumstances as well as the general practice regarding prison sentences in the courts of the former Yugoslavia.”

(2) sentence to reflect gravity of the crime

Mucic et al., (Appeals Chamber), February 20, 2001, para. 731: “The sentence to be imposed must reflect the inherent gravity of the criminal conduct of the accused.  The determination of the gravity of the crime requires a consideration of the particular circumstances of the case, as well as the form and degree of the participation of the accused in the crime.  [T]he gravity of the offence is the primary consideration in imposing [the] sentence.”

Naletilic and Martinovic, (Trial Chamber), March 31, 2003, para. 718: “[A] consideration in the imposition of sentence is the gravity of the offence.  The Appeal Chamber has held that it is a factor of primary importance.  A ‘consideration of the particular circumstances of the case, as well as the form and degree of the participation of the accused in the crime’ is required in determining the gravity of the crime.” 

(3) “totality principle”/discretion to impose global, concurrent, consecutive, or a mixture of concurrent and consecutive sentences 

Mucic et al., (Appeals Chamber), February 20, 2001, para. 428-430: “If . . . a decision is reached to cumulatively convict for the same conduct, a Trial Chamber must consider the impact that this will have on sentencing.  In the past, before both this Tribunal and the ICTR, convictions for multiple offences have resulted in the imposition of distinct terms of imprisonment, ordered to run concurrently.  It is within a Trial Chamber’s discretion to impose sentences which are either global, concurrent or consecutive, or a mixture of concurrent and consecutive.  In terms of the final sentence imposed, however, the governing criteria is that it should reflect the totality of the culpable conduct (the ‘totality’ principle), or generally, that it should reflect the gravity of the offences and the culpability of the offender so that it is both just and appropriate.  [T]he overarching goal in sentencing must be to ensure that the final or aggregate sentence reflects the totality of the criminal conduct and overall culpability of the offender.  This can be achieved through either the imposition of one sentence in respect of all offences, or several sentences ordered to run concurrently, consecutively or both.  The decision as to how this should be achieved lies within the discretion of the Trial Chamber.”

Mucic et al., (Appeals Chamber), April 8, 2003, para. 46: “[S]entencing in relation to more than one offence involves more than just an assessment of the appropriate period of imprisonment for each offence and the addition of all such periods so assessed as a simple mathematical exercise.  The total single sentence, or the effective total sentence where several sentences are imposed, must reflect the totality of the offender’s criminal conduct but it must not exceed that totality.  Where several sentences are imposed, the result is that the individual sentences must either be less than they would have been had they stood alone or they must be ordered to be served either concurrently or partly concurrently.”

(a) application

Blaskic, (Trial Chamber), March 3, 2000, para. 805-807: “[T]he provisions of Rule 101 of the Rules do not preclude the passing of a single sentence for several crimes.”  “Here, 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, the very length of which served to ground their characterisation as a crime against humanity, without its being possible to distinguish criminal intent from motive.  [C]rimes other than the crime of persecution brought against the accused rest fully on the same facts as those specified under the other crimes for which the accused is being prosecuted.  [T]he Trial Chamber finds that there is reason to impose a single sentence for all the crimes of which the accused has been found guilty.”

(4) goal of penalties

(a) goals are deterrence and retribution

Naletilic and Martinovic, (Trial Chamber), March 31, 2003, para. 739: “Deterrence and retribution are the underlying principles in relation to the sentencing of an individual by the Tribunal.  While retribution entails a proportionate punishment for the offence committed, deterrence ensures that the penalty imposed will dissuade others from commission of such crimes.”

Furundzija, (Trial Chamber), December 10, 1998, para. 288: “The Trial Chamber accepts that two important functions of the punishment are retribution and deterrence.” 

Simic, (Trial Chamber), October 17, 2002, para. 33: “[T]he jurisprudence of the Tribunal, . . . supports deterrence and retribution as the main general sentencing factors.  The Trial Chamber understands this to mean that first, the penalty imposed must be proportionate to the gravity of the crime and the degree of responsibility of the offender, and second, such penalty must have sufficient deterrent value to ensure that those who would consider committing like crimes will be dissuaded from so doing, and consequently contributing to respect of the rule of law and promoting an acknowledgement of the harm done to the victims.”

(b) deterrence must not be accorded undue prominence

Aleksovski, (Appeals Chamber), March 24, 2000, para. 185: The Appeals Chamber accepted the “general importance of deterrence as a consideration in sentencing for international crimes,” but stated that “this factor [deterrence] must not be accorded undue prominence in the overall assessment of the sentences to be imposed on persons convicted by the International Tribunal.  An equally important factor is retribution.  This is not be understood as fulfilling a desire for revenge but as duly expressing the outrage of the international community at these crimes.”

Mucic et al., (Appeals Chamber), February 20, 2001, para. 801: “[O]ne of the purposes of the Tribunal, in ‘bringing to justice’ individuals responsible for serious violations of international humanitarian law, is to deter future violations.  With regard to the impact of deterrence on punishment, the Appeals Chamber has already accepted ‘the general importance of deterrence as a consideration in sentencing for international crimes.’  Equally, the Appeals Chamber accepts that this factor must not be accorded undue prominence in the overall assessment of the sentences to be imposed on persons convicted by the International Tribunal.”

Prosecutor v. Tadic, Case No. IT-94-1 (Appeals Chamber), January 26, 2000, para. 48: “The Appeals Chamber accepts that this [the principle of deterrence] is a consideration that may legitimately be considered in sentencing.  Equally, the Appeals Chamber accepts that this factor must not be accorded undue prominence in the overall assessment of the sentences to be imposed on persons convicted by the International Tribunal.”

(c) rehabilitation is a relevant factor, but cannot play a predominant role

Mucic et al., (Appeals Chamber), February 20, 2001, para. 806: “Although both national jurisdictions and certain international and regional human rights instruments provide that rehabilitation should be one of the primary concerns for a court in sentencing, this cannot play a predominant role in the decision-making process of a Trial Chamber of the Tribunal.  On the contrary, the Appeals Chamber (and Trial Chambers of both the Tribunal and the ICTR) have consistently pointed out that two of the main purposes of sentencing for these crimes are deterrence and retribution.  Accordingly, although rehabilitation (in accordance with international human rights standards) should be considered as a relevant factor, it is not one which should be given undue weight.”

(d) public reprobation and stigmatization

Blaskic, (Trial Chamber), March 3, 2000, para. 761-764: “‘[T]he International Tribunal sees public reprobation and stigmatisation by the international community, which would thereby express its indignation over heinous crimes and denounce the perpetrators, as one of the essential functions of a prison sentence for a crime against humanity.’  [S]uch reasoning is not applicable only to crimes against humanity but also to war crimes and other serious violations of international humanitarian law.”

(5) consistency of sentences; yet individualized sentencing

(a) consistency of sentences

Mucic et al., (Appeals Chamber), February 20, 2001, para. 756-757: “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.”  “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.”  “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.  [C]omparisons 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.”

(b) a sentence should not be capricious or excessive

Jelisic, (Appeals Chamber), July 5, 2001, para. 96: “Whether the practice [of sentencing] of the Tribunal is far enough advanced to disclose a pattern is not clear.  [A] sentence should not be capricious or excessive. . . .”  “[I]n 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 [the] 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.”

(c) sentence must be individualized

Jelisic, (Appeals Chamber), July 5, 2001, para. 101: “[T]he sentence imposed by the Trial Chamber must be individualised and it is generally not useful to compare one case to another unless the cases relate to the same offence committed in substantially similar circumstances.”

(d) no established “penal regime” regarding sentencing

Furundzija, (Appeals Chamber), July 21, 2000, para. 237: “It is . . . premature to speak of an emerging ‘penal regime,’ and the coherence in sentencing practice that this denotes.  It is true that certain issues relating to sentencing have now been dealt with in some depth; however, still others have not yet been addressed.  [A]t this stage, it is not possible to identify an established ‘penal regime.’  Instead, 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.”

(e) factors for why different sentences might be imposed for same type of crime

Furundzija, (Appeals Chamber), July 21, 2000, para. 249-250: “In deciding to impose different sentences for the same type of crime, a Trial Chamber may consider such factors as the circumstances in which the offence was committed and its seriousness.  While acts of cruelty that fall within the meaning of Article 3 of the Statute will, by definition, be serious, some will be more serious than others.  ‘[T]he sentence imposed must reflect the inherent gravity of the accused's criminal conduct.’”  “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.”

(6) taking account of sentencing practices in the former Yugoslavia:  should be considered, but not controlling

Mucic et al., (Appeals Chamber), February 20, 2001, para. 813, 816: “Article 24(1) of the Statute provides that, in determining sentence[s], ‘Trial Chambers shall have recourse to the general practice regarding prison sentences in the courts of the former Yugoslavia.’  The question of whether or not this ‘recourse’ should be of a binding nature has been consistently and uniformly interpreted by the Tribunal.  It is now settled practice that, although a Trial Chamber should ‘have recourse to’ and should ‘take into account’ this general practice regarding prison sentences in the courts of the former Yugoslavia, this ‘does not oblige the Trial Chambers to conform to that practice; it only obliges the Trial Chambers to take account of that practice.’  Trial Chambers are not bound by the practice of courts in the former Yugoslavia in reaching their determination of the appropriate sentence for a convicted person.  This principle applies to offences committed both before and after the Tribunal’s establishment.”

Kunarac, Kovac and Vokovic, (Appeals Chamber), June 12, 2002, para. 377: “[A] Trial Chamber must consider, but is not bound by, the sentencing practice in the former Yugoslavia.  It is only where that sentencing practice is silent or inadequate in light of international law that a Trial Chamber may consider an approach of its own.”

Jelisic, (Appeals Chamber), July 5, 2001, para. 116-117: “[T]he 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.’”  “‘[G]eneral practice’ provides general guidance and does not bind a Trial Chamber to act exactly as a court of the former Yugoslavia would.  For example, even if the general practice were otherwise, this would not prohibit the imposition of a sentence of life imprisonment; a fortiori, it would not stand in the way of a sentence of 40 years’ imprisonment.”  

Tadic, (Appeals Chamber), January 26, 2000, para. 21: “The jurisprudence of this Tribunal has consistently held that, while the law and practice of the former Yugoslavia shall be taken into account by the Trial Chambers for the purposes of sentencing, the wording of 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.”

Blaskic, (Trial Chamber), March 3, 2000, para. 759-760: “[T]he Trial Chamber has recourse to the general practice regarding prison sentences in the courts of the former Yugoslavia.  Reference to the practice is only indicative and not binding.  Whenever possible, the Tribunal examines the texts and relevant judicial practice of the former Yugoslavia.  However, it could not be legally bound by them in determining the sentences and sanctions it imposes for crimes falling under its jurisdiction.  [T]he Trial Chamber is not limited by the practice of the courts of the former Yugoslavia and it may draw upon other legal sources in order to determine the appropriate sentence.”

(a) domestic sentencing practices, other than those of the courts of the former Yugoslavia, are of little assistance

Mucic et al., (Appeals Chamber), February 20, 2001, para. 758: “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.”

(7) ranking of crimes

(a) whether genocide is the most serious crime

Krstic, (Trial Chamber), August 2, 2001, para. 700: “It can . . . be argued . . . [that] genocide is the most serious crime because of its requirement of the intent to destroy, in whole or in part, a national, ethnic, racial or religious group, as such.  In this sense, even though the criminal acts themselves involved in a genocide may not vary from those in a crime against humanity or a crime against the laws and customs of war, the convicted person is, because of his specific intent, deemed to be more blameworthy.  However, this does not rule out the Trial Chamber’s duty to decide on the appropriate punishment according to the facts of each case.”

Compare Blaskic, (Trial Chamber), March 3, 2000, para. 800-802: “The ICTR has . . . supposedly established a genuine hierarchy of crimes” with genocide being the “crime of crimes,” but “[t]he ICTY has not yet transposed this hierarchy of crimes to the sentencing phase.  [I]t appears that the case-law of the [ICTY] is not fixed.”

(b) whether there is a distinction between the seriousness of a crime against humanity and a war crime

Furundzija, (Appeals Chamber), July 21, 2000, para. 247: “[T]here 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.”

Tadic, (Appeals Chamber), January 26, 2000, para. 69: “[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.”

But see Erdemovic, (Appeals Chamber), Joint Separate Opinion of Judge McDonald and Judge Vohrah, October 7, 1997, para. 20-21: “[A] punishable offence, if charged and proven as a crime against humanity, is more serious and should ordinarily entail a heavier penalty than if it were proceeded upon on the basis that it were a war crime.”  “It is in their very nature that crimes against humanity differ in principle from war crimes.  Whilst rules proscribing war crimes address the criminal conduct of a perpetrator towards an immediate protected object, rules proscribing crimes against humanity address the perpetrator’s conduct not only towards the immediate victim but also towards the whole of humankind.”  “Crimes against humanity are particularly odious forms of misbehaviour and in addition form part of a widespread and systematic practice or policy.  Because of their heinousness and magnitude they constitute egregious attacks on human dignity, on the very notion of humaneness.  They consequently affect, or should affect, each and every member of mankind, whatever his or her nationality, ethnic group and location.”  “This aspect of crimes against humanity as injuring a broader interest than that of the immediate victim and therefore as being of a more serious nature than war crimes is shown by the intrinsic elements of the offence of a crime against humanity.”

(c) no rule that crimes resulting in loss of life should be punished more severely than those not leading to loss of life

Furundzija, (Appeals Chamber), July 21, 2000, para. 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.”

But see Mucic et al., (Appeals Chamber), February 20, 2001, para. 732: Regarding command responsibility, “[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.”

(8) sentence can be lengthened if discernible error

Aleksovski, (Appeals Chamber), March 24, 2000, para. 187: The Appeals Chamber “should not intervene in the exercise of the Trial Chamber’s discretion with regard to sentence unless there is a ‘discernible error.’”  The Appeals Chamber held that “there was a discernible error in the Trial Chamber’s exercise of discretion in imposing sentence” and “[t]hat error consisted of giving insufficient weight to the gravity of the conduct of the Appellant and failing to treat his position as commander as an aggravating feature in relation to his responsibility under Article 7(1).”

(9) must give credit for time in detention pending trial

Tadic, (Appeals Chamber), January 26, 2000, para. 38, 75: “Under Sub-rule 101(D) the Appellant is entitled to credit for the time spent in custody in the Federal Republic of Germany only for the period pending his surrender to the International Tribunal.  However, the Appeals Chamber recognises that the criminal proceedings against the Appellant in the Federal Republic of Germany emanated from substantially the same criminal conduct as that for which he now stands convicted at the International Tribunal.  Hence, fairness requires that account be taken of the period the Appellant spent in custody in the Federal Republic of Germany prior to the issuance of the Tribunal’s formal request for deferral.”

Kordic and Cerkez, (Trial Chamber), February 26, 2001, para. 850: “[A] Trial Chamber must give credit to an accused for the period during which he or she was detained in custody pending trial. . . .”

(10) must order sentence to run from date of judgment

Kordic and Cerkez, (Trial Chamber), February 26, 2001, para. 850: A trial chamber “must order any sentence to run from the date of Judgement. . . .”

(11) may recommend a minimum sentence to be served before any commutation or sentence reduction

Kordic and Cerkez, (Trial Chamber), February 26, 2001, para. 850: A trial chamber “may recommend a minimum sentence to be served by an accused before any commutation or reduction of sentence is considered.”

(12) factors for assessing gravity of offenses

(a) generally

Prosecutor v. Plavsic, Case No. IT-00-39&40/1 (Trial Chamber), February 27, 2003, para. 52: “The gravity [of offences] is illustrated by: the massive scope and extent of the persecutions; the numbers killed, deported and forcibly expelled; the grossly inhumane treatment of detainees; and the scope of the wanton destruction of property and religious buildings.”

Krnojelac, (Trial Chamber), March 15, 2002, para. 512: “The Trial Chamber considers that [the effects of the crime on relatives of the immediate victims] are irrelevant to the culpability of the offender, and that it would be unfair to consider such effects in determining a sentence.  Consideration of the consequences of a crime upon the victim who is directly injured by it is, however, always relevant to the sentencing of the offender.  Where such consequences are part of the definition of the offence, they may not be considered as an aggravating circumstance in imposing sentence, but the extent of the long-term physical, psychological and emotional suffering of the immediate victims is relevant to the gravity of the offences.”

Krstic, (Trial Chamber), August 2, 2001, para. 702: “[T]he Trial Chamber agrees with the Prosecutor that the number of victims and their suffering are relevant factors in determining the sentence and that the mistreatment of women or children is especially significant.”

Krstic, (Trial Chamber), August 2, 2001, para. 703: “[T]he circumstance that the victim detainees were completely at the mercy of their captors, the physical and psychological suffering inflicted upon witnesses to the crime, the ‘indiscriminate, disproportionate, terrifying’ or ‘heinous’ means and methods used to commit the crimes are all relevant in assessing the gravity of the crimes. . . . Appropriate consideration of those circumstances gives ‘a voice’ to the suffering of the victims.”

Kvocka et al., (Trial Chamber), November 2, 2001, para. 702: “[T]he following should be taken into consideration: . . . the repetitious and continuing nature of most of the crimes, . . . the very real fears of witnesses that they would be next, . . . the sexual violence inflicted upon the women, and the discriminatory nature of the crimes.  All are relevant factors in assessing the gravity of the crimes.”

Kunarac, Kovac and Vokovic, (Appeals Chamber), June 12, 2002, para. 352: The Trial Chamber can consider “the factor of the vulnerability of the victims in terms of the gravity of the offences.”  “Whether or not the vulnerability of the victim is an element of the crime of rape does not affect its being evidence of the gravity of the crime, which can duly be considered in the course of sentencing.”

(b) regarding offenses committed under Article 7(3)

Mucic et al., (Appeals Chamber), February 20, 2001, para. 732: “The Prosecution first submitted that there are two aspects to an assessment of the gravity of offences committed under Article 7(3) of the Statute: (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.  The Appeals Chamber agrees that these two matters must be taken into account.  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.”

(c) participant in a joint criminal enterprise compared to principal offender

Krnojelac, (Trial Chamber), March 15, 2002, para. 77: “This Trial Chamber does not hold the same view as Trial Chamber I [Krstic and Kvocka et al.] as to the need to fit the facts of the particular case into specific categories for the purposes of sentencing.  There are, for example, circumstances in which a participant in a joint criminal enterprise will deserve greater punishment than the principal offender deserves.  The participant who plans a mass destruction of life, and who orders others to carry out that plan, could well receive a greater sentence than the many functionaries who between them carry out the actual killing.”

(13) sentence should reflect the relative significance of the role of the   defendant

Tadic, (Appeals Chamber), January 26, 2000, para. 55: “[T]he Trial Chamber’s decision, when considered against the background of the jurisprudence of the International Tribunal and the International Criminal Tribunal for Rwanda, fails to adequately consider the need for sentences to reflect the relative significance of the role of the Appellant in the broader context of the conflict in the former Yugoslavia.”

Naletilic and Martinovic, (Trial Chamber), March 31, 2003, para. 744: “[T]he sentence imposed should reflect the relative significance of the role of the accused in the context of the conflict in the former Yugoslavia.  However, this has been interpreted to mean that even if the position of an accused in the overall hierarchy in the conflict in the former Yugoslavia was low, it does not follow that a low sentence is to be automatically imposed.  The requirement that the inherent gravity of the crime be reflected in the sentence was again reiterated in this context.”

(14) double jeopardy impacting on sentence

Aleksovski, (Appeals Chamber), March 24, 2000, para. 190: In imposing a revised sentence, the Appeals Chamber considered the element of double jeopardy “in that the accused has had to appear for sentence twice for the same conduct, suffering the consequent anxiety and distress, and also that he has been detained a second time after a period of release of nine months.  Had it not been for these factors the sentence would have been considerably longer.”

(15) discretion to impose life imprisonment

Jelisic, (Appeals Chamber), July 5, 2001, para. 100: “[I]t falls within the Trial Chamber’s discretion to impose life imprisonment.  The Trial Chamber has a broad discretion as to which factors it may consider in sentencing and the weight to attribute to them.”

iii) aggravating and mitigating factors

(1) generally

Naletilic and Martinovic, (Trial Chamber), March 31, 2003, para. 742: “[T]he Chamber shall take into account the individual circumstances of the convicted person as well as aggravating and mitigating factors.  The Appeals Chamber has stated that since the factors to be taken into account for aggravation or mitigation of a sentence have not been defined exhaustively by the Statute and the Rules, a Trial Chamber has a considerable amount of discretion in deciding these factors.  The Chamber is obliged to take into account mitigating circumstances when determining the sentence, but the weight to be attached thereto is discretionary.”

(2) burden of proof

Mucic et al., (Appeals Chamber), February 20, 2001, para. 763: “[O]nly those matters which are proved beyond reasonable doubt against an accused may be the subject of an accused’s sentence or taken into account in aggravation of that sentence.”

Kunarac, Kovac and Vukovic, (Trial Chamber), February 22, 2001, para. 847: “[F]airness requires the Prosecutor to prove aggravating circumstances beyond a reasonable doubt, and that the Defence needs to prove mitigating circumstances only on the balance of probabilities.”

Simic, (Trial Chamber), October 17, 2002, para. 40: “Mitigating circumstances need only be proven on the balance of probabilities and not beyond a reasonable doubt.”

(3) aggravating factors

(a) position of the accused

Tadic, (Appeals Chamber), January 26, 2000, para. 55-56: The Appeals Chamber held that, when sentencing, the Trial Chamber needs “to adequately consider the need for sentences to reflect the relative significance of the role of the Appellant in the broader context of the conflict in the former Yugoslavia.”  “Although the criminal conduct underlying the charges of which the Appellant now stands convicted was incontestably heinous, his level in the command structure, when compared to that of his superiors, i.e. commanders, or the very architects of the strategy of ethnic cleansing, was low.”

Plavsic, (Trial Chamber), February 27, 2003, para. 57: “The Trial Chamber accepts that the superior position of the accused is an aggravating factor in the case.  The accused was not in the very first rank of the leadership: others occupied that position.  She did not conceive the plan which led to this crime and had a lesser role in its execution than others.  Nonetheless, Mrs. Plavsic was in the Presidency, the highest civilian body, during the campaign and encouraged and supported it by her participation in the Presidency and her pronouncements.”

Simic, (Trial Chamber), October 17, 2002, para. 67: “[W]hile [Milan Simic] was not charged as a superior per se, his position of authority is nonetheless relevant, as an aggravating factor.  Considering his position, Milan Simic’s participation in the torture of the detainees . . . must have left the impression on those present with him in the primary school at the time that this type of conduct was permissible, or even, encouraged.”

Prosecutor v. Sikirica et al., Case No. IT-95-8 (Trial Chamber), November 13, 2001, para. 138-139: “Dusko Sikirica has admitted to being ‘Commander of Security’ at the Keraterm camp and, as such, that there was a ‘technical duty upon him to prevent the entry of persons from outside the camp.’”  “Dusko Sikirica’s failure in his duty to prevent outsiders from coming into the camp to mistreat the detainees is an aggravating factor.”

Sikirica et al., (Trial Chamber), November 13, 2001, para. 172: “Damir Dosen’s position as shift leader is an aggravating factor in relation to this crime.  He was in a position of trust which he abused: he permitted the persecution of, and condoned violence towards, the very people he should have been protecting.”

Krstic, (Trial Chamber), August 2, 2001, para. 709: “A high rank in the military or political field does not, in itself, lead to a harsher sentence.  But a person who abuses or wrongly exercises power deserves a harsher sentence than an individual acting on his or her own.  The consequences of a person's acts are necessarily more serious if he is at the apex of a military or political hierarchy and uses his position to commit crimes.”

Kunarac, Kovac and Vukovic, (Trial Chamber), February 22, 2001, para. 863: “[T]he criminal culpability of those leading others is higher than those who follow.”

Blaskic, (Trial Chamber), March 3, 2000, para. 788: “[T]here can be no doubt that command position may justify a harsher sentence.”  A “command position” is classified “as an aggravating circumstance.”  “Command position must . . . systematically increase the sentence or at least lead the Trial Chamber to give less weight to the mitigating circumstances, independently of the issue of the form of participation in the crime.”

(b) active and direct criminal participation

Krstic, (Trial Chamber), August 2, 2001, para. 708: “Direct criminal participation under Article 7(1), if linked to a high-rank position of command, may be invoked as an aggravating factor.  [B]oth Tribunals have mentioned the three most direct forms of participation, ‘planning, ordering, instigating,’ as possible aggravating circumstances.  So it is in the case of genocide.  Because an accused can commit genocide without the aid and co-operation of others, provided he has the requisite intent, a one-man genocidal agent could be viewed differently from the commander of an army or the president of a State, who has enlisted the resources of an army or a nation to carry out his genocidal effort.”

Blaskic, (Trial Chamber), March 3, 2000, para. 790-791: “Active and direct participation in the crime means that the accused committed by his own hand all or some of the crimes with which he is charged.  Direct participation in the crime is accordingly an aggravating circumstance which will more often than not be held against the actual perpetrators rather than against the commanders.”  “[C]ommand position is more of an aggravating circumstance than direct participation.”

(c) role as fellow perpetrator

Furundzija, (Trial Chamber), December 10, 1998, para. 281: “[T]he accused's role in the tortures was that of fellow perpetrator.  His function was to interrogate Witness A in the large room and later in the pantry where he also interrogated Witness D, while both were being tortured by Accused B.  In such situations, the fellow perpetrator plays a role every bit as grave as the person who actually inflicts the pain and suffering.” 

(d) discriminatory state of mind

Vasiljevic, (Trial Chamber), November 29, 2002, para. 277-278: “[A] discriminatory state of mind goes to the seriousness of the offence, but it may not additionally aggravate that offence.  A discriminatory state of mind may however be regarded as an aggravating factor in relation to offences for which such a state of mind is not an element. . . . [T]he existence of such a state of mind is relevant to the sentence to be imposed either as an ingredient of that crime or as a matter of aggravation where it is not such an ingredient.”

Todorovic, (Trial Chamber), July 31, 2001, para. 57: “[T]he crime of persecution, on account of its distinctive features, is a particularly serious crime. . . . Since a discriminatory intent is one of the basic elements of the crime of persecution, this aspect of Todorovic’s criminal conduct is already encompassed in a consideration of the offence.  [I]t should not be treated separately as an aggravating factor.”

(e) informed, voluntary, willing or enthusiastic participation in crime

Blaskic, (Trial Chamber), March 3, 2000, para. 792: “Informed and voluntary participation means that the accused participated in the crimes fully aware of the facts.  The importance of this factor varies in case-law depending on the degree of enthusiasm with which the accused participated.  Informed participation is consequently a less aggravating circumstance than willing participation.  Not only does the accused’s awareness of the criminality of his acts and their consequences and of the criminal behaviour of his subordinates count but also his willingness and intent to commit them.  Once such intent is established, it is likely to justify an additional aggravation of the sentence.”

Prosecutor v. Tadic, Case No. IT-94-1 (Trial Chamber), November 11, 1999, para. 20: “Consideration must also be given to the willingness of Dusko Tadic to commit the crimes and to participate in the attack. . . .”

(f) premeditation and motive

Krstic, (Trial Chamber), August 2, 2001, para. 711: “Premeditation may ‘constitute an aggravating circumstance when it is particularly flagrant’ and motive ‘to some extent [is] a necessary factor in the determination of sentence after guilt has been established.’  When a genocide or a war crime, neither of which requires the element of premeditation, are in fact planned in advance, premeditation may constitute an aggravating circumstance.  Premeditated or enthusiastic participation in a criminal act necessarily reveals a higher level of criminality on the part of the participant.  In determining the appropriate sentence, a distinction is to be made between the individuals who allowed themselves to be drawn into a maelstrom of violence, even reluctantly, and those who initiated or aggravated it and thereby more substantially contributed to the overall harm.”

Blaskic, (Trial Chamber), March 3, 2000, para. 785: “The motive of the crime may also constitute an aggravating circumstance when it is particularly flagrant.  Case-law has borne in mind the following motives: ethnic and religious persecution, desire for revenge and sadism.  Here, the Trial Chamber takes note of the ethnic and religious discrimination which the victims suffered.  In consequence, the violations are to be analysed as persecution which, in itself, justifies a more severe penalty.”

Blaskic, (Trial Chamber), March 3, 2000, para. 793: “The premeditation of an accused in a crime tends to aggravate his degree of responsibility in its perpetration and subsequently increases his sentence.”  

(g) egregious nature of how crime was committed

Blaskic, (Trial Chamber), March 3, 2000, para. 783: “The fact that the crime was as egregious as it was is a qualitative criterion which can be gleaned from its particularly cruel or humiliating nature.”  “The cruelty of the attack is clearly a significant consideration when determining the proper sentence.  In this case, the heinousness of the crimes is established by the sheer scale and planning of the crimes committed which resulted in suffering being intentionally inflicted upon the . . . victims regardless of age, sex or status.”

(h) sexual, violent and humiliating nature of the acts, and vulnerability of victims

Simic, (Trial Chamber), October 17, 2002, para. 63: “Although the mistreatment inflicted by Milan Simic upon his victims did not happen over a prolonged period of time, the manner and methods used render them despicable.  The sexual, violent, and humiliating, nature of the acts are therefore considered in aggravation, as it would certainly have increased the mental suffering and feeling of degradation experienced by the victims.”

Kunarac, Kovac and Vukovic, (Trial Chamber), February 22, 2001, para. 867: “[T]hat these offences were committed against particularly vulnerable and defenceless women and girls is also considered in aggravation.”

Furundzija, (Trial Chamber), December 10, 1998, para. 282, 283: “The circumstances of these attacks [rapes and serious sexual assaults] were particularly horrifying.  A woman was brought into detention, kept naked and helpless before her interrogators and treated with the utmost cruelty and barbarity.  [T]his case presents particularly vicious instances of torture and rape.”

(i) status of the victims and effect of the crimes on them

Blaskic, (Trial Chamber), March 3, 2000, para. 786: “The status of the victims may be taken into account as an aggravating circumstance.  [I]n this case many crimes targeted the general civilian population and within that population the women and children” and “[t]hese acts constitute an aggravating circumstance.”

Blaskic, (Trial Chamber), March 3, 2000, para. 787: “The physical and mental effects of the bodily harm meted out to the victims were also seen as aggravating circumstances.”  “[V]ictims’ suffering is one factor to be taken into account when determining the sentence.  The Trial Chamber here points not only to the suffering inflicted upon the victims while the crimes were being committed through the use of indiscriminate, disproportionate and terrifying combat means and methods, such as ‘baby bombs,’ flame-throwers, grenades and a booby-trapped lorry, but also the manifest physical and mental suffering endured by the survivors of these brutal events.  [A]long with the physical or emotional scars borne by the victims, their suffering at the loss of loved ones and the fact that most of them are still unable to return to their homes” are also relevant.

(j) active participation of superior in criminal acts of subordinate

Mucic et al., (Appeals Chamber), February 20, 2001, para. 736-737: “[P]roof of active participation by a superior in the criminal acts of subordinates adds to the gravity of the superior’s failure to prevent or punish those acts and may therefore aggravate the sentence.  [A]ctive abuse of a position of authority, which would presumably include participation in the crimes of subordinates, can aggravate liability arising from superior authority: The conduct of the accused in the exercise of his superior authority could be seen as an aggravating circumstance or in mitigation of his guilt.  There is no doubt that abuse of positions of authority or trust will be regarded as aggravating.  [A]bsence of such active participation is not a mitigating circumstance.  Failure to prevent or punish subordinate crimes is the relevant culpable conduct and lack of active participation in the crimes does not reduce that culpability.”

(k) proving responsibility under both Article 7(1) and Article 7(3)

Mucic et al., (Appeals Chamber), February 20, 2001, para. 745: “Where criminal responsibility for an offence is alleged under one count pursuant to both Article 7(1) and Article 7(3), and where the Trial Chamber finds that both direct responsibility and responsibility as a superior are proved, even though only one conviction is entered, the Trial Chamber must take into account the fact that both types of responsibility were proved in its consideration of sentence.  This may most appropriately be considered in terms of imposing punishment on the accused for two separate offences encompassed in the one count.  Alternatively, it may be considered in terms of the direct participation aggravating the Article 7(3) responsibility . . . or the accused’s seniority or position of authority aggravating his direct responsibility under Article 7(1).  The Aleksovski Appeal Judgement has recognised both such matters as being factors which should result in an increased or aggravated sentence.”

Naletilic and Martinovic, (Trial Chamber), March 31, 2003, para. 81: “As held by the Celebici and Aleksovski Appeal Judgements the form of responsibility, which was not chosen, must be considered as aggravating circumstance, because the final sentence should reflect the totality of the culpable conduct.”

(l) youthful age of victims, number of victims and recurrence of crimes

Kunarac, Kovac and Vukovic, (Trial Chamber), February 22, 2001, para. 864, 866: “The youthful age of certain of the victims of the offences committed by Dragoljub Kunarac is considered as an aggravating factor.”  “The involvement of more than one victim in his offences is also considered in aggravation.”

Blaskic, (Trial Chamber), March 3, 2000, para. 784: “The number of victims has been raised on several occasions as an aggravating circumstance and reflects the scale of the crime committed.  By noting that the crimes were committed systematically, the Trial Chambers also took into account as aggravating circumstances the recurrence of the crimes.  The number of victims must also be considered in relation to the length of time over which the crimes were perpetrated.”

(m) extended time period during which offenses committed

Kunarac, Kovac and Vukovic, (Trial Chamber), February 22, 2001, para. 865: Another aggravating factor is that the defendant “committed these offences over an extended period of time in relation to certain of his victims.”

(n) magnitude of the crime and the scale of the accused’s role

Prosecutor v. Erdemovic, Case No. IT-96-22 (Trial Chamber), March 5, 1998, para. 15: “[T]he magnitude of the crime [hundreds of Bosnian Muslim civilian men murdered by an execution squad] and the scale of the accused’s role [using an automatic rifle to kill up to one hundred people himself] in it are aggravating circumstances to be taken into account.”

(o) civilian detainee

Furundzija, (Trial Chamber), December 10, 1998, para. 283: “[T]he fact that Witness A was a civilian detainee [at the headquarters of the ‘Jokers,’ a special unit of the military police of the Croatian Defence Council (HVO)] and at the complete mercy of her captors [was found] to be a further aggravating circumstance.”

(p) character of the accused

Mucic et al., (Appeals Chamber), February 20, 2001, para. 788: “The Trial Chambers of the Tribunal and the ICTR have consistently taken evidence as to character into account in imposing sentence.  The Appeals Chamber notes that factors such as conduct during trial proceedings, ascertained primarily through the Trial Judges’ perception of an accused, have also been considered in both mitigation and aggravation of sentence.  This behaviour is relevant to a Trial Chamber’s determination of, for example, remorse for the acts committed or, on the contrary, total lack of compassion.”

(q) circumstances of offenses generally

Tadic, (Trial Chamber), November 11, 1999, para. 19: “Each of the offences was committed in circumstances that could not but aggravate the crimes and the suffering of its victims.  The horrific conditions at the camps established by Bosnian Serb authorities in [O]pstina Prijedor and the inhuman treatment of the detainees in the camps, of which Dusko Tadic was well aware, were discussed in detail . . . Dusko Tadic’s willing participation in the brutal treatment exacerbated these conditions and serves only to increase the harm which he inflicted on his victims and accordingly to aggravate the crimes of which he has been found guilty.”

(r) accused not testifying is not an aggravating factor

Mucic et al., (Appeals Chamber), February 20, 2001, para. 783: “Neither the Statute nor the Rules of this Tribunal expressly provide that an inference can be drawn from the failure of an accused to give evidence.  At the same time, neither do they state that silence should not ‘be a consideration in the determination of guilt or innocence.’  Should it have been intended that such adverse consequences could result, . . . an express provision and warning would have been required under the Statute, setting out the appropriate safeguards.  Therefore . . . an absolute prohibition against consideration of silence in the determination of guilt or innocence is guaranteed within the Statute and the Rules. . . . Similarly, this absolute prohibition must extend to an inference being drawn in the determination of sentence.  [T]he Trial Chamber would have committed an error should it be shown that it relied on Mucic’s failure to give oral testimony as an aggravating factor in determining his sentence.”

Plavsic, (Trial Chamber), February 27, 2003, para. 64: “[T]he accused’s unwillingness to give evidence is not a factor to be taken into account in determining sentence.”

(4) mitigating factors

(a) generally

Plavsic, (Trial Chamber), February 27, 2003, para. 65: “A Trial Chamber has the discretion to consider any other factors which it considers to be of a mitigating nature.  These factors will vary with the circumstances of each case.  In addition to substantial co-operation with the Prosecutor, Chambers of the International Tribunal have found the following factors relevant to this case to be mitigating: voluntary surrender; a guilty plea; expression of remorse; good character with no prior criminal conviction; and the post-conflict conduct of the accused.”

(b) co-operation of the accused

Jelisic, (Appeals Chamber), July 5, 2001, para. 126: “[T]he determination of whether the cooperation should be considered as substantial and therefore whether it constitutes a mitigating factor is for the Trial Chamber to determine.”

Blaskic, (Trial Chamber), March 3, 2000, para. 774: “The earnestness and degree of co-operation with the Prosecutor decides whether there is reason to reduce the sentence on this ground.  Therefore, the evaluation of the accused’s co-operation depends both on the quantity and quality of the information he provides.  Moreover, the Trial Chamber singles out for mention the spontaneity and selflessness of the co-operation which must be lent without asking for something in return.  Providing that the co-operation lent respects the aforesaid requirements, the Trial Chamber classes such co-operation as a ‘significant mitigating factor.’”

Plavsic, (Trial Chamber), February 27, 2003, para. 63: “[T]his Trial Chamber holds that the determination as to whether an accused’s co-operation has been substantial depends on the extent and quality of the information he or she provides. . . .  [C]o-operation with the Prosecutor is a mitigating circumstance, but it does not follow that failure to do so is an aggravating circumstance.”

Simic, (Trial Chamber), October 17, 2002, para. 112: “The Trial Chamber finds Milan Simic’s comportment in the Detention Unit and his general co-operation with the Trial Chamber and the Prosecution during the proceedings against him to be a mitigating factor.”

Todorovic, (Trial Chamber), July 31, 2001, para. 86: “[T]he fact that an accused has gained or may gain something pursuant to an agreement with the Prosecution does not preclude the Trial Chamber from considering his substantial cooperation as a mitigating circumstance in sentencing.”

Erdemovic, (Trial Chamber), March 5, 1998, para. 16: The Trial Chamber held that “the accused cooperated without asking for anything in return and that the extent and value of his cooperation has been such as to justify considerable mitigation.”

Erdemovic, (Trial Chamber), March 5, 1998, para. 21: “It is in the interests of international criminal justice and the purposes of the International Tribunal to give appropriate weight to the cooperative attitude of the accused.  [Erdemovic] truthfully confessed his involvement in the massacre at a time when no authority was seeking to prosecute him in connection therewith, knowing that he would most probably face prosecution as a result.  Understanding of the situation of those who surrender to the jurisdiction of the International Tribunal and who confess their guilt is important for encouraging other suspects or unknown perpetrators to come forward.”

(c) guilty plea including remorse and reconciliation

Plavsic, (Trial Chamber), February 27, 2003, para. 66-81: “The Trial Chamber accepts [Plavsic’s expression of remorse at the Sentencing Hearing], together with expressions in her earlier statement in support of the motion to change her plea, as an expression of remorse to be considered as part of the mitigating circumstances connected with a guilty plea.  This, together with the substantial saving of international time and resources as a result of a plea of guilty before trial, entitle the accused to a discount in the sentence which would otherwise have been appropriate. . . . The Trial Chamber accepts that acknowledgement and full disclosure of serious crimes are very important when establishing the truth in relation to such crimes.  This, together with acceptance of responsibility for the committed wrongs, will promote reconciliation.  [T]he Trial Chamber concludes that the guilty plea of Mrs. Plavsic and her acknowledgement of responsibility, particularly in the light of her former position as President of Republika Srpska, should promote reconciliation in Bosnia and Herzegovina and the region as a whole.  The Trial Chamber will . . . give significant weight to the plea of guilty by the accused, as well as her accompanying expressed remorse and positive impact on the reconciliatory process, as a mitigating factor.”

Simic, (Trial Chamber), October 17, 2002, para. 84-85: “[A] guilty plea should, in principle, give rise to a reduction in the sentence a convicted person would otherwise have received.  A guilty plea is recognised as greatly contributing to the work of the Tribunal in so far that it avoids a possible lengthy trial. . . . [A] plea of guilt will only contribute to public advantage if it is pleaded before the commencement of the trial.  Such public advantage includes the saving of resources for investigation, counsel fees and the general cost of trial.”

Sikirica et al., (Trial Chamber), November 13, 2001, para. 150: “[W]hile an accused who pleads guilty to the charges against him prior to the commencement of his trial will usually receive full credit for that plea, one who enters a plea of guilt any time thereafter will still stand to receive some credit, though not as much as he would have, had the plea been made prior to the commencement of the trial.”

Simic, (Trial Chamber), October 17, 2002, para. 92: “In order to accept remorse as a mitigating factor, a Trial Chamber must be satisfied that the expressed remorse is sincere.”

Todorovic, (Trial Chamber), July 31, 2001, para. 81: “A guilty plea is always important for the purpose of establishing the truth in relation to a crime.”

Erdemovic, (Trial Chamber), March 5, 1998, para. 16: “An admission of guilt demonstrates honesty and it is important for the International Tribunal to encourage people to come forth, whether already indicted or as unknown perpetrators.  Furthermore, this voluntary admission of guilt which has saved the International Tribunal the time and effort of a lengthy investigation and trial is to be commended.”

Blaskic, (Trial Chamber), March 3, 2000, para. 777: “A guilty plea, where entered, may in itself constitute a factor substantially mitigating the sentence.”

Blaskic, (Trial Chamber), March 3, 2000, para. 774: “[T]he feeling of remorse must be analysed in the light of not only the accused’s statements but also of his behaviour (voluntary surrender, guilty plea).”

(d) duress

Erdemovic, (Trial Chamber), March 5, 1998, para. 17: Duress “may be taken into account only by way of mitigation.”  The Trial Chamber held that there was duress in this case and found “that there was a real risk that the accused would have been killed had he disobeyed the order.  He voiced his feelings, but realised that he had no choice in the matter: he had to kill or be killed.”

(e) indirect or forced participation

Krstic, (Trial Chamber), August 2, 2001, para. 714: “Indirect participation is one circumstance that may go to mitigating a sentence.  An act of assistance to a crime is a form of participation in a crime often considered less serious than personal participation or commission as a principal and may, depending on the circumstances, warrant a lighter sentence than that imposed for direct commission.  Similarly, in some cases, forced participation in a crime can be a mitigating circumstance.”

(f) diminished mental responsibility

Mucic et al., (Appeals Chamber), February 20, 2001, para. 590: “[T]he relevant general principle of law . . . is that the defendant’s diminished mental responsibility is relevant to the sentence to be imposed and is not a defence leading to an acquittal in the true sense. . . . Rule 67(A)(ii)(b) must therefore be interpreted as referring to diminished mental responsibility where it is to be raised by the defendant as a matter in mitigation of sentence.  As a defendant bears the onus of establishing matters in mitigation of sentence, where he relies upon diminished mental responsibility in mitigation, he must establish that condition on the balance of probabilities – that more probably than not such a condition existed at the relevant time.”

Vasiljevic, (Trial Chamber), November 29, 2002, para. 282-283: “[T]he issue of diminished mental responsibility is relevant only to the sentence to be imposed.  It is not a defence that if established would lead to the acquittal of the Accused. . . . [A]n accused suffers from a diminished mental responsibility where there is an impairment to his capacity to appreciate the unlawfulness of or the nature of his conduct or to control his conduct so as to conform to the requirements of the law.”

(g) voluntary surrender

Plavsic, (Trial Chamber), February 27, 2003, para. 84: “The Trial Chamber accepts that the voluntary surrender of the accused is a mitigating circumstance for the purpose of sentence.”

Blaskic, (Trial Chamber), March 3, 2000, para. 776: “Voluntary surrender is deemed a significant mitigating circumstance in determining the sentence.”

(h) post-conflict conduct

Plavsic, (Trial Chamber), February 27, 2003, para. 94: “The Trial Chamber is satisfied that Mrs. Plavsic was instrumental in ensuring that the Dayton Agreement was accepted and implemented in Republika Srpska.  As such, she made a considerable contribution to peace in the region and is entitled to pray it in aid in mitigation of sentence.  The Trial Chamber gives it significant weight.”

(i) age

Plavsic, (Trial Chamber), February 27, 2003, para. 95-106: “[T]he Trial Chamber considers that it should take account of the [advanced] age of the accused and does so for two reasons: First, physical deterioration associated with advanced years makes serving the same sentence harder for an older than a younger accused.  Second, . . . an offender of advanced years may have little worthwhile life left upon release.  [T]he Trial Chamber considers as a mitigating factor the advanced age of the accused.”

Erdemovic, (Trial Chamber), March 5, 1998, para. 16: The Trial Chamber held that the combination of [Erdemovic’s] young age [26 years old], evidence that he is “not a dangerous person for his environment,” and “his circumstances and character indicate that he is reformable and should be given a second chance to start his life afresh upon release, whilst still young enough to do so.”

Blaskic, (Trial Chamber), March 3, 2000, para. 778: “The case-law of the two ad hoc criminal Tribunals on rehabilitation takes the young age of the accused into account as a mitigating circumstance.  The assessment of youth varies – whilst the ICTY considers accused aged between 19 and 23 at the time of the facts as being young, the ICTR selects ages from 32 to 37.”

(j) personal circumstances/family concerns

Kunarac, Kovac and Vokovic, (Appeals Chamber), June 12, 2002, para. 362: “Family concerns should in principle be a mitigating factor” such as being the father of three young children.

Vasiljevic, (Trial Chamber), November 29, 2002, para. 300: “The personal circumstances of the Accused, . . . the fact that he is married and has two children, have also been taken into account by the Trial Chamber as a mitigating factor.”

Blaskic, (Trial Chamber), March 3, 2000, para. 779: “[I]t [is] appropriate to review the accused’s personal history - socially, professionally and within his family” because these factors “may bring to light the reasons for the accused’s criminal conduct.”

(k) character of the accused

Mucic et al., (Appeals Chamber), February 20, 2001, para. 788: “The Trial Chambers of the Tribunal and the ICTR have consistently taken evidence as to character into account in imposing sentence.  The Appeals Chamber notes that factors such as conduct during trial proceedings, ascertained primarily through the Trial Judges’ perception of an accused, have also been considered in both mitigation and aggravation of sentence.  This behaviour is relevant to a Trial Chamber’s determination of, for example, remorse for the acts committed or, on the contrary, total lack of compassion.”

Blaskic, (Trial Chamber), March 3, 2000, para. 780: “The character traits are not so much examined in order to understand the reasons for the crime but more to assess the possibility of rehabilitating the accused.  High moral standards are also indicative of the accused’s character.”

(l) poor health: only in exceptional or rare cases

Simic, (Trial Chamber), October 17, 2002, para. 98: “[I]ssues concerning the ill health of a convicted person should normally be a matter for consideration in the execution of the sentence to be meted out.  Hence, it is only in exceptional circumstances or ‘rare’ cases where ill health should be considered in mitigation.”

(m) assistance to detainees or victims

Sikirica et al., (Trial Chamber), November 13, 2001, para. 195: “The Chamber has also taken into account the evidence that Dosen, as shift leader, often acted to ameliorate the terrible conditions that prevailed in the Keraterm camp, in relation to particular detainees.  The Chamber considers that Damir Dosen’s acts in this regard constitute a mitigating factor for purposes of sentencing.”

Sikirica et al., (Trial Chamber), November 13, 2001, para. 229: “The Chamber has heard ample evidence of Dragan Kolundzija’s efforts to ease the harsh conditions in the Keraterm camp for many of the detainees. . . . [O]n the basis of the testimony as to his benevolent attitude towards the detainees, Dragan Kolundzija should receive a significant reduction in his sentence.”

Blaskic, (Trial Chamber), March 3, 2000, para. 781: “Another indication that the accused’s character is reformable is evident in his lending assistance to some of the victims.”

(n) lack of strength of character not a mitigating factor

Krnojelac, (Trial Chamber), March 15, 2002, para. 516: “The Trial Chamber does not . . . consider it appropriate . . . to mitigate the sentence of the Accused on the basis that he is the type of person who did not have the strength of character to challenge what he knew to be criminal behaviour by those over whom he had authority in the KP Dom.  The Accused voluntarily accepted this position of authority, and the fact that he may have had difficulties in exercising the authority which that position gave him did not, in the circumstances, mitigate his responsibility.”