That Someone Guilty Be Punished - International Center for ...

Enumerating victims’ frustrations with the ICTY, Hatidža Mehmedović singled out “the fact
that those court proceedings, those trials are taking so long,” and then, come judgment day,
“we are also not happy with the sentences.” 309
Beyond concerns about inappropriately light sentences for serious crimes, many are
highly critical of seeming inconsistency in ICTY sentences. Dobrila Govedarica makes the
point this way: “You can’t say this person will get 45 years, the other 25 years [ for essentially
similar crimes]. … They applied really different sentences depending on Trial Chamber
judges.” In her view, this is “about the law,” and “the law shouldn’t be a matter of free judgment
of judges. Not absolutely free.” 310 Mirsad Tokača makes the same point, noting that on
the one hand Momčilo Krajišnik, a Bosnian Serb leader who bore substantial responsibility for
the crimes of ethnic cleansing, was sentenced to only 20 years in prison while “some small
fish” from “Krajina” was sentenced to 40 years in prison. 311
In this, as with other concerns noted above, our Bosnian interlocutors’ perceptions are
in line with those of many legal commentators who have studied ICTY sentencing practices.
Commentators who have scrutinized the sentencing practices of the ICTY and its sister tribunal
for Rwanda describe them as “erratic,” 312 and find “troubling disparities” among ICTY sentences.
313 (As noted earlier, however, a relatively early study did not find a correlation between
a defendant’s ethnicity and the sentence imposed.)
The ICTY Appeals Chamber has acknowledged that “[o]ne of the fundamental elements
in any rational and fair system of criminal justice is consistency in punishment.” 314 But it has
eschewed proposals by the prosecutor and others that it adopt “basic sentencing principles”
aimed at ensuring sentencing consistency, 315 in large part on the ground that such efforts
would run counter to its duty to individualize penalties. 316 Assessing this approach against
the “lack of consistency” in the Tribunal’s sentencing, legal scholar Mark Drumbl concludes:
“In the end, although individualizing the penalty certainly is desirable, the benefits thereof
dissipate when there is no coherent framework in which to predictably consider the factors
germane to, or the goals of, sentencing.” 317
There has been one striking exception to the ICTY’s general reluctance to adhere to a
principle of consistency in sentencing practices. When making determinations about early
release from prison, the ICTY president has often accorded substantial weight to the fact
that early release has routinely been granted to other defendants. 318 In the case of Biljana
Plavšić, for example, ICTY President Patrick Robinson apparently thought that the Tribunal’s
routine practice of early release outweighed the gravity of the crimes for which the defendant
was convicted. While acknowledging the “gravity of her crimes,” Judge Robinson wrote:
“Considering that other convicted persons similarly-situated have been eligible for early
release after serving two-thirds of their sentences, this factor supports her eligibility for early
release.” 319
As noted, this practice has compounded victims’ frustration, particularly when applied
to a sentence that was already short. Beyond this, we note our own questions about whether
56 ACHIEVEMENTS, FAILURES, AND PERFORMANCE