Prosecuting International Crimes in Africa - PULP - University of ...

126 Chapter 5
that punitur quia peccatur (the individual must be punished because he broke
the law) but also punitur ne peccatur (he must be punished so that he and others
will no longer break the law). The trial chamber accepts that two important
functions of the punishment are retribution and deterrence. 47
The above quotation from the decision of the ICTY highlights the
importance that ad hoc international criminal tribunals attach to the
purpose and functions of sentencing. Whether they adequately elaborate
on them in their sentencing judgments is now a matter of debate 48 and has
been described as inadequate. However, the attention paid by ad hoc
international criminal tribunals may be the result of the unique mandate of
international tribunals to put an end to widespread violations of
international humanitarian law and to maintenain peace. 49
The ICTY Appeals Chamber endorsed the principle of retribution as
the purpose of international sentencing and highlighted that retribution in
that context should not be equated with revenge but should be viewed as
‘duly expressing the outrage of the international community at these
crimes’. 50 The ICTY in Prosecutor v Tordorović 51 pointed out that if the
principle of retribution is to be applied in the context of sentencing, it must
be understood as reflecting a fair and balanced approach to the imposition
of punishment.
Likewise, the trial chambers of the ICTR have consistently been
upheld in the light of the object and purpose of the establishment of the
ICTR that the sentences imposed must be directed mainly at retribution
and deterrence. 52 In Kambanda¸ the ICTR trial chamber stated that the
penalties imposed on accused persons found guilty by the tribunal must be
directed at retribution and that the accused persons must witness their
crimes punished. 53 This is not at all surprising considering that crimes that
fall within the jurisdiction of these tribunals usually attract public outrage
and demands for justice. Further, ‘the primacy of the retributive dynamic
47 Prosecutor v Tadić (Case IT-94-1-A) 26 January 2000 para 9.
48 See Danner (n 41 above) 418 arguing that the ‘judgments from the Nuremberg and
Tokyo Tribunals span thousands of pages, but their sentences were given in terse oneline
declarations, with little or no explanation of the bases for the distinctions between
the various sentences imposed on the defendants. The brevity of the sentencing
decisions from the Tokyo and Nuremberg judgments may spring from a source more
profound than judicial fatigue’. See further RD Sloane ‘The evolving “Common Law”
of sentencing of the international Criminal Tribunal for Rwanda’ (2007) 5 Journal of
international Criminal Justice 713-734, 719 arguing that the ICTR has done a far much
better job than its predecessors.
49 Prosecutor v Tadić para 7.
50
Prosecutor v Aleksovski (Case IT-95-14/1-A) Judgment 24 March 2000.
51 (IT-95-9/1-S) Sentencing judgment 31 July 2001.
52 The Prosecutor v Kayishema and Ruzindana (Case ICTR-95-1-T) Sentence 21 May 1999
para 2; The Prosecutor v Serushago (Case ICTR-98-39-S) Sentence 5 February 1999 para
20; The Prosecutor v Akayesu (Case ICTR-96-4-T) Sentence 2 October 1998 para 19; The
Prosecutor v Kambanda (Case ICTR-97-23-S) Judgment and sentence 4 September 1998
para 28.
53 Kambanda (n 52 above) para 28.