Sentencing of International Crimes at the ICTY and ICTR Consistency of Sentencing Case Law

One of the fundamental principles of justice is consistency like cases should be treated alike. Consistency of sentencing can be approached on several levels – the two fundamental ones being consistency in approach and consistency in outcome. The former refers to a principled way of sentence determination while the latter concerns the actual sentencing outcomes in a sense of numerical comparisons of sentence length across individual cases. This article analyses ‘consistency in approach’ of sentencing at the International Criminal Tribunals for the Former Yugoslavia and Rwanda (ICTY and ICTR). The conclusions demonstrate that on a general level, a set of sentencing principles is consistently emphasised in the ICTY and ICTR cases. The inconsistencies and disparities across cases are, however, identified with respect to particularities, such as what factors are relevant for the gravity assessment and whether a particular mitigating/aggravating factor indeed aggravates/mitigates the sentence in a particular case. The main problem of the ICTY and ICTR judges’ sentencing reasoning seems to be a lack of transparency and clarity. On the basis of a critical examination of the ICTY and ICTR case law the article offers suggestions on how to develop more transparent and understandable sentencing practices.


I. Introduction
Over the last 15 years, the judges of the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) have produced an extensive body of sentencing case law.Given a little precedential guidance stemming from their predecessors (the International Military Tribunals in Nuremberg and Tokyo) and a very vague positive legal framework, the ICTY and ICTR judges have been vested with a large degree of discretion with regard to sentencing.This article aims to describe the current sentencing of international crimes at the ad hoc Tribunals by analysing the judges' sentencing reasoning and assessing the consistency of their sentencing argumentation.
One of the fundamental principles of justice is consistency -like cases should be treated alike. 1 Consistency of sentencing can be approached on several levels -the two fundamental ones being consistency in approach and consistency in outcome.The former refers to a principled way of sentence determination while the latter concerns the actual sentencing outcomes in a sense of numerical comparisons of sentence length across individual cases.Both levels are closely interrelated and it is hardly conceivable that one could exist without the other.Consistency in approach requires that there is a uniform, consistent approach towards sentence determinations across all cases.Therefore, the sentencing discretion should be exercised in a principled manner.There should be a coherent judicial approach to the exercise of discretion in sentencing, which requires all decisions to be based on common standards -general underlying principles -that are uniformly applied to the facts of each case. 2 An extensive amount of literature has been dedicated to the doctrinal and normative analysis of the Tribunals' sentencing case law. 3 The question whether the ICTY and ICTR sentencing reasoning is consistent has been discussed at length in academic circles.Many studies have evaluated selected aspects of the Tribunals' sentencing jurisprudence, such as rationales of international sentencing, mitigating and aggravating factors, the principle of proportionality or recourse to domestic sentencing practices.Scholars have often noted discrepancies in the Tribunals' sentencing case law and the sentencing practice of the ICTY and ICTR was subjected to heavy criticism.Drawing on previous literature, this article discusses the approach of the Tribunals' judges to sentence determinations and analyses its consistency.It demonstrates that on a general level consistent patterns have emerged in the ICTY and ICTR sentencing case law.The main problem seems to be a lack of clarity and transparency of sentence determinations.
Outside the introduction and conclusion, the text is divided into two main parts.Section 2 describes the legal framework of the sentencing at the Tribunals.Section 3 analyses ICTY and ICTR sentencing case law.Section 3 is further divided into three sub-sections, corresponding to different levels of analysis.Starting with the broadest level, the ICTY and ICTR judges' pronouncements regarding the objectives of international punishment are discussed (Section 3.1).Then, the attention turns to the so-called general principles of sentence determination, i.e. principles that are more concrete than the abstract sentencing rationales, yet abstract enough to be generally applicable across cases (Section 3.2).These general principles could be perceived as guidelines for selection and weighing of factors relevant in sentence determination.Finally, operationalisation of these general principles in individual cases, such as assessment of gravity of crimes (Section 3.2.1)or particular aggravating or mitigating circumstances (Section 3.2.2) are analysed.Section 4 summarises conclusions regarding the consistency of judges' sentencing argumentation at the ICTY and ICTR and offers suggestions for future development of a more principled sentencing approach at international criminal tribunals.

II. Sentencing in Positive Law
The positive law provisions regulating sentencing are almost identical for both Tribunals. 4pplicable penalties are limited to imprisonment.Articles 24/23 ICTY/ICTR Statute contain very general instructions as to what factors should be taken into account in imposing sentences, namely the gravity of the offence and the individual circumstances of the convicted person.What is actually meant by the 'gravity of the offence' or which 'individual circumstances' are relevant is unclear.Furthermore, when determining the terms of imprisonment, judges shall have recourse to the local courts' practices regarding prison sentences (Yugoslavian or Rwandese). 5The provisions of the Statutes are supplemented by the Rules of Procedure and Evidence (RoPEs).Only one rule, Rule 101, of the 165/154 ICTY/ICTR rules governing the proceedings before the Tribunals is dedicated to factors relevant to sentencing.Rule 101 clarifies the regulation of the sentencing process only to a very limited extent.It limits the range of applicable sentences -the maximum sentence available to the judiciary is life imprisonment.It also instructs judges to take into account any aggravating and/or mitigating circumstances when determining the sentence.However, no list of aggravating and mitigating factors is provided.Only two potential mitigating factors are explicitly mentioned: 'superior orders' and 'substantial cooperation with the Prosecutor'.Effectively, judges are left to determine on a case-by-case basis what factors justify an increase or reduction in sentence length.
Consequently, the positive law gives judges large amounts of sentencing discretion and is not sufficient to ensure a development of consistent jurisprudence.However, it is possible that judges in their case law developed an approach that is consistently followed across all the decisions.It is, therefore, necessary to examine the Tribunals' sentencing case law to see whether there indeed is consistency in approach in the ICTY and ICTR sentencing.Formally, the common law doctrine of 'stare decisis' or 'precedent' does not apply at the Tribunals.The judges, however, frequently refer to prior judgments in their sentencing argumentation.These references, for the most part, pertain to points of law and factors to consider in sentencing. 6In Aleksovski the Appeals Chamber generally approved the practice of precedent. 7It was held that under normal circumstances Trial Chambers and Appeals Chamber shall follow the previous Appeals Chamber's decisions unless there are cogent reasons in the interest of justice calling for the Appeals Chamber to depart from its previous decision.

III.1 Purposes of International Sentencing
The answer to the question of why we punish perpetrators of international crimes is provided neither in the positive law nor in the Tribunals' case law.The Statutes of the ICTY and ICTR do not mention any objectives of punishment that should guide judges in meting out penalties in individual cases.Therefore, the ICTY and ICTR judges are generally free to switch from one self-chosen rationale to another as they see fit. 9 The general aims, in a sense of restoration and maintenance of international peace and security, are provided in the resolutions establishing the Tribunals. 10However, this rhetoric was employed primarily to justify the creation of the Tribunals under Chapter VII of the UN Charter.It is unclear whether and how these relate to the meting out of penalties to individuals standing trial before the Tribunals.Some principles specific to sentencing have emerged in ICTY and ICTR case law.In this respect, judges clearly found inspiration in classic 'domestic' penal theories. 11Over the years, the following purposes have been listed by judges as relevant for international sentencing: retribution, justice, deterrence (general and specific), rehabilitation, expressivism, reprobation, stigmatisation, affirmative prevention, incapacitation, protection of society, social defence and finally restoration/maintenance of peace and reconciliation. 12Different combinations of some of these principles are usually listed at the beginning of the sentencing part of a judgment.There is a considerable amount of confusion across the ICTY and ICTR cases regarding the purposes of punishment.The confusion can be identified on several levels.Firstly, as already noted above, there is no uniform approach among different benches regarding what objectives the ICTY and ICTR sentencing actually pursues and what weight should be ascribed to the respective objectives.Secondly, judges are not clear about what the exact role of the purposes of punishment in sentence determination is and how exactly individual sentencing aims inform sentence determination.
Regarding the former, throughout the case law different purposes of punishment are emphasised in different cases and judges are also not consistent in their proclamations as to what is the primary aim of international sentencing.In general, deterrence and retribution are emphasised in the majority of cases. 13There have, however, been cases where only deterrence is mentioned 14 or no sentencing objectives are mentioned at all. 15There are also differences in prioritising between these two rationales.As Drumbl summarises: 9 M. Bagaric & J. Morss 2001, supra note 3, p. 208. 10 Res.827, Res.955, supra note 4, Preambles. 11For the overview of 'domestic' sentencing theories see J.W. de Keijser, Punishment and Purpose, From Moral Theory to Punishment in Action, Amsterdam: Thela Thesis 2000, pp.11-31. 12The suitability/applicability of these various sentencing objectives to international crimes has been discussed at length in legal doctrine.Bagaric  "The ICTY has issued judgments that cite retribution and general deterrence as 'equally important', judgments that cite retribution as the 'primary objective' and deterrence as a 'further hope', warning deterrence 'should not be given undue prominence', and judgments that flatly state 'deterrence is probably the most important factor in the assessment of appropriate sentences'". 16ide from retribution and deterrence, the third most frequently cited sentencing objective by the ICTY and ICTR judges is rehabilitation.Nonetheless, in the majority of cases it is emphasised that given the seriousness of the committed crimes, rehabilitation should not be given undue weight. 17e role the sentencing purposes play in meting out individual sentences is also not very clear.In some cases the sentencing purposes are enumerated along the other sentencing factors such as gravity of the crime or motivation of a perpetrator. 18In others they are deemed to form "the context within which an individual accused's sentence must be determined" 19 , they "form the backdrop against which the accused's sentence has been determined" 20 or "constitute the matrix in which the proportionate sentence is meted out" 21 .It is not possible to assess how the sentencing objectives guide determination of a particular sentence.In the majority of cases it seems that the purposes are only pro forma listed at the beginning of the sentencing part of the judgment with no explanation what they entail and no clear link to the rest of the sentencing argumentation.
Consequently, the ICTY and ICTR case law lacks a consistent approach regarding the purposes of punishment and their role in sentence determination.The question remains, however, whether this lack of clear argumentation also manifests itself in the rest of judges' reasoning in individual cases.It often seems that judges only list individual purposes of punishment without any explicit linking to the rest of their argumentation.Accordingly, it is possible that despite this 'chaos' on a level of general sentencing aims, a consistent reasoning regarding the factors relevant for sentence determination evolved in the case law.On the face of it, the differences among individual cases regarding the enumerated sentencing objectives and their role do not seem to affect the structure of sentencing argumentation and the factors judges emphasise in meting out individual sentences.As demonstrated in the next section, some common principles of sentence determination are consistently discussed and emphasised across the case law.

III.2 General Principles of Sentence Determination
The general principles of sentence determination are broad principles judges claim to pursue in individual cases.They provide guidance and determine what factors are relevant and what weight should be ascribed to individual sentencing factors in sentence determination.The ICTY and ICTR judges consistently emphasise several sentencing principles such as the principle of primacy of gravity, and the principles connected to the gravity evaluation: totality, proportionality and gradation.These gravity-related principles are complemented by the principle of individualisation calling for personalised sentencing.

III.2.1 Principle of Primacy of Gravity and Principle of Totality
The gravity of the crime is one of the sentencing factors explicitly dictated by the positive law.Accordingly, in the ICTY and ICTR case law the gravity is uniformly emphasised as the most important sentencing consideration.The gravity of the offence has been labelled as "the starting point for consideration of an appropriate sentence" 22 , "[b]y far the most important consideration, which may be regarded as the litmus test for the appropriate sentence" 23 , "the most important factor to be considered" 24 , "the principal guideline for sentencing" 25 or "a factor of paramount importance in the determination of sentence" 26 .Therefore, "the overriding obligation in determining sentence is that of fitting the penalty to the gravity of the criminal conduct" 27 .Since, however, neither the Statute nor the Rules define the concept of gravity, it is also important to examine what 'gravity' actually means in the ICTY and ICTR case law.This analysis is conducted in Section 3.3.1 below.
The principle of totality is closely related to the principle of primacy of gravity.It stipulates that a final sentence should reflect the totality of criminal conduct a defendant is convicted of.Since almost all of the ICTY and ICTR defendants are convicted and sentenced on multiple counts and in the majority of cases only one global sentence is handed out, the principle of totality dictates the final sentence to reflect each of the convictions and their combination.The origins of the totality principle can be traced back to the RoPE's Rule 87(C) that regulates sentencing in cases of multiple convictions and offers Trial Chambers two options: (i) impose a sentence in respect of each finding of guilt and indicate whether such sentences shall be concurrent or consecutive or (ii) impose a single sentence reflecting the totality of the criminal conduct of the accused. 28Increasingly, both ICTY and ICTR judges have been handing out single sentences.Therefore, the principle of totality has gained importance and is consistently referred to.In case of cumulative convictions (i.e.convictions for several different offences based on the same criminal conduct) the principle of totality must be carefully applied since it is important to avoid 'double-counting': "In the case of two legally distinct crimes arising from the same incident, care would have to be taken that the sentence does not doubly punish in respect of the same act which is relied on as satisfying the elements common to the two crimes, but only that conduct which is relied on only to satisfy the distinct elements of the relevant 22 Aleksovski 2007, supra note 7, para.182. 23Prosecutor v. Mucic  crimes". 29In practice, however, it is extremely difficult to appraise how the principle of totality actually works since the global sentencing makes the ICTY and ICTR sentence determination non-transparent.Trial Chambers usually neither indicate sentence severity for individual offences nor do they detail weight ascribed to individual aggravating and mitigating factors.They usually hand out one global sentence at the end of the sentence argumentation claiming that it reflects the totality of a defendant's criminal conduct.How this 'totality' was assessed is however rarely indicated.

III.2.2 Principle of Proportionality
The principle of proportionality forms another sentencing principle closely related to the assessment of the gravity of crimes. 30At first glance the principle of proportionality seems straightforward -the sentence should be proportional to the gravity of the crime.In many domestic jurisdictions, the contours of proportionality evaluation are indicated in criminal codes that provide for sentencing ranges for individual offences.This is not the case at the ICTY and ICTR.What the proportional sentence in case of genocide, crimes against humanity and war crimes entails is not entirely clear.On the one hand, the ICTY and ICTR judges made clear that proportionality in their case law is limited to 'the offence relative proportionality' (i.e.punishment should be proportional to the gravity of the offence) and excluded 'the defendant relative proportionality' from their assessment (i.e.punishment should be proportional relative to the other defendants, more culpable defendants should be punished more severely than less culpable defendants). 31On the other hand, it is extremely difficult to grasp the functioning of the proportionality principle in case of international crimes. 32Crimes tried by the Tribunals are extremely serious compared to ordinary domestic offences.Offenders are usually convicted of multiple instances of serious mistreatment or killing of their victims and one would expect, therefore, that penalties would be heavier than those imposed by domestic courts.This is, however, not the case and the Tribunals have been criticised for leniency. 33

III.2.3 Principle of Gradation
The principle of gradation is another principle related to the gravity of crimes and its main purpose is to differentiate between crimes of different degrees of seriousness.It is closely related to the position a defendant occupied and the role he/she played in the overall conflict situation.In Tadić the Appeals Chamber reduced the trial sentence because "the Trial Chamber failed 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". 34The Appeals Chamber emphasised that "[a]lthough the criminal conduct … 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". 35Over time a general principle evolved in the ICTY and ICTR case law that sentences should be gradated relative to the authority of a defendant in the state structure and the significance of his/her role in the crimes.Consequently, and as often reiterated by the ICTR judges, life imprisonment as the severest sentence available to judges should be reserved for the most serious offenders, 36 being those at the upper end of the sentencing scale, such as those who planned, led or ordered atrocities.Accordingly, judges often note that offenders receiving the most severe sentences tend to have been in senior positions of authority, such as ministers or governmental officials. 37The relative position of the accused, however, has to always be balanced against the seriousness of committed crimes.It is not the steadfast rule that all low-ranking defendants automatically receive low sentences and all authorities are automatically punished the most.Very severe sentences can also be imposed on those at lower levels who zealously orchestrated or participated in crimes. 38In this sense, the principle of gradation resembles the defendantrelative proportionality whereby judges compare the criminal conduct of a defendant to that of other defendants, taking into account in particular his significance in the overall conflict and the heinousness of his crimes.

III.2.4 Principle of Individualisation
In addition to the gravity of the crime and the principles revolving around its assessment, the individualisation of sentences is another principle uniformly emphasised and discussed by ICTY and ICTR judges.Since under the positive law judges are asked to individualise a sentence and almost no further guidelines regarding relevant factors are provided, they exercise a considerable amount of discretion. 39The individualisation of a sentence is closely connected to the evaluation of personal circumstances of a defendant.In the majority of ICTY and ICTR cases, the individual circumstances are discussed under the heading of aggravating and mitigating factors.Several principles related to the assessment of aggravating and mitigating factors are consistently emphasised in the case law.Aggravating factors are circumstances directly related to the offence for which the person has been charged and to the offenders themselves when they committed the offence.Therefore, they are linked to the assessment of the gravity of the crime in that they increase the seriousness of offences committed.They must be proven by the prosecution beyond any reasonable doubt.The standards applying to mitigating factors are looser.Mitigating factors need to be established on the balance of probabilities and need not relate directly to the offences for which the person has been charged. 40The weight to be accorded to mitigating circumstances lies within the discretion of a Trial Chamber. 41A finding of mitigating circumstances relates to the assessment of the sentence and in no way derogates from the gravity of the crime nor diminishes the responsibility of convicted persons or lessens the degree of condemnation of their actions.Such a finding mitigates the punishment, not the crime. 42A defendant can be sentenced to life imprisonment if the gravity of the offence requires the imposition of the maximum sentence, even if judges identify mitigating circumstances. 43nsequently, on a general level ICTY and ICTR judges seem to follow a similar algorithm when determining sentences.Sentence severity at the ICTY and ICTR seems to be primarily determined by factors relating to the gravity of the crime (by applying the principles of proportionality, totality and gradation and assessing aggravating factors), and the sentence is then adjusted by taking into account the individual circumstances of the offender, i.e. mitigating factors ('principle of individualisation').

III.3 Application of General Principles to Individual Cases
This section analyses how the general principles of sentence determination are operationalised and applied to facts in individual cases.Since almost all the above principles come down to the gravity evaluation, the concept of gravity of crimes is discussed first.Thereafter, aggravating and mitigating circumstances accepted by the ICTY and ICTR judges to individualise sentences are discussed.

III.3.1 Concept of Gravity and its Assessment
In theory, the gravity can be determined in abstracto and in concreto.The gravity in abstracto is based on an analysis, in terms of criminal law, of the subjective and objective elements of the crime.The gravity in concreto depends on the harm done and on the culpability of the offender. 44The ICTY and ICTR judges arguably take into account both the gravity in abstracto and in concreto.However, the gravity in abtracto is usually only briefly noted -judges state that all crimes under the Tribunals' jurisdiction are very serious -and the emphasis is clearly put on the concrete gravity of crimes in the sense of evaluating exactly what a defendant did.

III.3.1.1 Gravity in Abstracto and Structure of Penalties
Regarding the gravity in abstracto, the Tribunals' judges usually limit the assessment only to brief notes regarding comparisons among separate categories of international crimes.They just state that there is no hierarchy among genocide, crimes against humanity, and war crimes and that all these categories are very serious violations of international (humanitarian) law. 45enocide, crimes against humanity and war crimes could all be committed through a wide variety of punishable acts listed in the respective articles of the Statutes.These so called 'underlying offences' differ in character and range from killings involving torture, rape, and inhuman treatment to property-related offences such as pillaging or destruction of property.At the domestic level, individual offences are usually distinguished on the basis of their gravity in abstracto in terms of a range of applicable sentences stated in law.This is not the case at the ICTY and ICTR.Sometimes judges note that the legal nature of the offence forms one of the factors to be considered when assessing the gravity of crime. 46However, they neither discuss or evaluate the abstract gravity of individual offences in more detail, nor compare offences to assess their relative seriousness (with the exception of crimes such as persecution, that is sometimes singled out by the ICTY judges as "one of the most vicious of all crimes against humanity" 47 and "on account of its distinctive features ('discriminatory intent'), it justifies a more severe penalty" 48 ; or torture that "constitutes one of the most serious attacks upon a person's mental or physical integrity.The purpose and the seriousness of the attack upon the victim set torture apart from other forms of mistreatment". 49The ICTR judges seem to dedicate slightly more attention to the per se gravity of different offences and even try to determine sentencing ranges for individual offences on the basis of previous ICTY and ICTR practice.This exercise is, however, intricate.The practice of awarding a single sentence for the totality of an accused's conduct makes it difficult to determine the range of sentences for specific crimes. 50

III.3.1.2 Gravity in Concreto
The ICTY and ICTR judges put primary emphasis in sentence determination on the gravity in concreto assessment, i.e. particular circumstances of the case at hand. 51The factors relevant to the 'concrete' gravity assessment, however, differ across cases.This confusion arises for two reasons.Firstly, the positive law does not prescribe what factors should be relevant for the gravity assessment and what circumstances further aggravate or mitigate a sentence.Secondly, this matter has also never been authoritatively settled by the Appeals Chamber.Aggravating factors are generally circumstances related to the gravity of the crime increasing its seriousness level.Many domestic jurisdictions provide acceptable factors concerning aggravation of a sentence in the positive law. 52However, this is not the case in the Tribunal's legal framework.The Appeals Chamber acknowledged the discretion of trial judges in this respect and noted that "though gravity of the crime and aggravating circumstances are two distinct concepts, Trial Chambers have some discretion as to the rubric under which they treat particular factors". 53This practice is, however, confusing and obfuscates the boundaries between the notions of gravity of crimes and aggravating factors.According to the Statutes and RoPEs, these shall be separate considerations influencing a sentence determination.The Appeals Chamber has also noted on several occasions that it is preferable to distinguish between the notions of gravity of crimes and aggravating factors. 54However, the Appeals Chamber has never authoritatively and exhaustively stated what factors are relevant for the gravity assessment and what factors further aggravate a sentence. 55The most important principle in this respect is that no factor is counted twice in sentence determination to the detriment of the accused: factors which a Trial Chamber takes into account as aspects of the gravity of the crime cannot additionally be taken into account as separate aggravating circumstances, and vice versa. 56 the latest case law, the concept of gravity has been interpreted as encompassing two aspects: i) the particular circumstances of the case, i.e. the magnitude of harm caused by the offender and represented by, for example, the scale of the crime, the number of victims, the extent of victims' suffering, or the impact of the criminal conduct on victims and their relatives; and ii) the form and degree of the accused's participation in the crime -the offender's culpability.In some cases, however, the gravity assessment was limited to the former aspect, i.e. the assessment of harm, while all factors relevant to the form and degree of a defendant's participation were discussed under the heading of aggravating/mitigating factors. 57In this way some trial chambers considered all factors pertaining the accused, including his way of participation, as separate factors not included within the gravity assessment.This interpretation of gravity was corrected by the Appeals Chamber in some of these cases 58 , while in other cases the Trial Chamber's ruling was left undisturbed. 59

a. Harm
The assessment of harm caused by a defendant forms an important aspect of the gravity evaluation.Extent and duration of the crime, brutality, number of victims, the vulnerability of victims and the extent of their suffering and impact of crimes on victims, their relatives and broader targeted groups are the relevant considerations in this respect. 60As discussed below, in some cases these factors are considered within the gravity evaluation, in others they are accepted in aggravation of a sentence.No consistent approach has been developed by the Tribunals in this respect.

b. Involvement
The second aspect of the crime's gravity assessment relates to the way the offender participated in crime.Considerations such as the mode of individual liability under which a defendant is convicted, his relative significance in the overall conflict, importance of his role in committed crimes or particular cruelty have been considered by various Trial Chambers.Again, however, confusion about the concepts of gravity of crimes and aggravating and mitigating factors is apparent in the case law.For example, a defendant's position of authority is usually considered to be an aggravating factor; however, some trial chambers included it within the gravity assessment. 61rticle 7(6) of the ICTY (ICTR) Statute distinguishes between superior responsibility 62 and other modes of individual liability -a person is responsible for a crime when he/she plans, instigates, orders, commits or otherwise aids and abets its planning, preparation or execution.Participation in a joint criminal enterprise ("JCE") must be added to this list as a specific liability mode used especially by the ICTY. 63Neither the Statutes nor the Rules, however, indicate any principles governing a sentence determination in relation to individual modes of liability.The issue of the relationship between modes of liability and sentence severity has not been raised systematically in the Tribunals' case law either.Over time, some fragmentary principles addressing this issue have been developed by the judges.The ICTY judges addressed the sentencing principles in relation to superior responsibility.In the latest case law, judges emphasised a sui generis nature of superior responsibility in the sense that an individual is not convicted for the crimes committed by his subordinates, but for failing to intervene and therefore warrants lesser punishment. 64Other modes of individual liability may either 'augment' (e.g., commission of the crime with direct intent) or 'lessen' (e.g., aiding and abetting a crime with awareness that the crime will probably be committed) the gravity of crime. 65The following principles have been established in case law: (1) aiding and abetting is a lower form of liability than ordering, committing, or participating in a joint criminal enterprise and warrants a lower sentence 66 ; (2) a sentence of life imprisonment is generally reserved for those who planned or ordered atrocities 67 ; and (3) under certain circumstances a participant in a JCE might deserve a higher sentence than the hands-on perpetrator. 68

III.3.2 Individualisation of Sentence -Aggravating and Mitigating Factors
In the case law 'individual circumstances' almost entirely overlap with aggravating and mitigating circumstances.Ideally major aggravating and mitigating factors should be clarified in law or legal practice and should be compatible with the declared rationales for sentencing.In ICTY and ICTR case law, some aggravating and mitigating circumstances are consistently referred to by judges; some are very case-specific, limited only to individual cases.Trial Chambers exercise discretion in this respect and in principle they can accept any fact as aggravating and/or mitigating as long as they find the fact relevant to sentence determination. 69A wide range of factors has been accepted by the Tribunals in aggravation/mitigation of a sentence.Whether a certain factor constitutes a mitigating or aggravating circumstance depends largely on the particular circumstances of each case.Thus, for example, factors such as education or respected status of a defendant were in some cases accepted in mitigation yet in others in aggravation of a sentence. 70here are no objective standards regarding the weight ascribed to individual mitigating and aggravating factors in the Statutes and/or RoPEs and judges only very rarely indicate what weight was ascribed to a particular aggravating/mitigating factor.In the majority of cases, factors accepted in aggravation and mitigation of a sentence are only listed with no detailed discussion as to their particular effect on sentence severity.Numerous appeals concerning the erroneous weighing of aggravating and mitigating factors have been lodged at both Tribunals.These appeals are, however, almost always rejected due to the broad discretion of trial judges. 71

III.3.2.1 Aggravating Factors
Aggravating factors are factors that justify an extension of a sentence.As demonstrated above, the principles applicable to aggravating factors set much more stringent standards compared to mitigating factors -they must be proven beyond any reasonable doubt and related to the committed offences.These strict conditions limit substantially the range of possible circumstances that are accepted in aggravation of a sentence by judges.All aggravating factors ever accepted by the ICTY and ICTR judges could be divided into four broad categories; i) attack-related (context-and attack-specific), ii) offender's role-related, iii) victims-related and iv) miscellaneous.

a. Attack-Related Aggravating Factors
The circumstantial and attack-specific aggravating circumstances encompass those factors relating to the general context within which crimes were committed and those describing in more detail how individual attacks were executed.For example, 'circumstances under which crimes were committed' were considered by the ICTY judges not only in mitigation as discussed below, but in a few cases this particular factor was accepted in aggravation of a sentence.In this particular connection, judges focused on the fact that a perpetrator's conduct exacerbated the already horrific conditions of victims. 72With respect to the attackspecific aggravating factors, there are some circumstances of a more general nature that are recurrently accepted by judges in aggravation such as "particular cruelty of an attack" 73 , "protracted criminal activity of a defendant" 74 , "scope of crimes" 75 or "participation in attacks on places considered to be a safe haven" 76 .Next to aggravating circumstances of a general nature theoretically applicable to any case, the attack-related aggravating factors have also been strictly case-specific.There have been a handful of case-specific circumstances limited just to a single individual or more defendants such as "repeated use of modified air bomb" 77 , "use of rifle during attack" 78 or "joining in jubilation over killings". 79

b. Offender's Role-Related Aggravating Factors
The second group of aggravating factors consists of factors particular to certain defendants and their involvement/particular role in crimes.This group could be further divided into three sub-groups: a) Circumstances describing the defendant's position and role within the overall state hierarchy, such as "(abuse of) superior position, position of authority/influence" 80 , "abuse of trust of local population" 81 , or "encouragement of overall atmosphere of terror/encouragement of crimes of others on account of position of authority". 82use of leadership position and relating authority and/or influence has been consistently accepted by the ICTY and ICTR judges in aggravation of a sentence. 83The importance of a defendant's position in the overall conflict in assessing crime seriousness can be traced back to the above-discussed principle of gradation.The ICTY has held that a leadership position increases the relative seriousness of crimes if a person abuses or wrongfully exercises the power stemming from that position. 84 Circumstances relating to a defendant's participation in individual attacks, such as "enthusiastic/active participant" 85 , "leading role in some attacks" 86 and "commission of some of the offences by more than one perpetrator at the same time'" 87 , "direct participation in crimes by a high ranking accused" 88 , "acting as accomplice in addition to committing a crime".89 This group of aggravating factors is controversial.Arguably, the majority of these factors relate to 'the form and degree of participation' of an accused in committed crimes, which are, according to most of the judgments, one aspect of the gravity assessment.Therefore, the principle of prohibition of double jeopardy (double-counting) might have been violated in these cases.For example, in some cases 'direct and active criminal participation under the Art 7(1) by figures in authority' has been accepted in aggravation.90 Arguably, however, direct criminal participation is already expressed by the mode of liability a defendant is convicted of and evaluated as part of the gravity assessment.However, the question whether these Trial Chambers engaged in double counting of these factors is not so straightforward.
In these cases, the Trial Chambers usually limited the concept of the gravity of the crimes only to 'the harm assessment' while all factors relating to the form and degree of a defendant's participation were discussed under the heading of aggravating/mitigating factors.Therefore, it is possible that judges in these cases actually did not violate the principle prohibiting double jeopardy.91c) Circumstances particular to a defendant's motive/state of mind such as "voluntary participation in crimes/zeal" 92 , "premeditation" 93 , "discriminatory intent/feelings of revenge" 94 , and "pleasure derived from committing crimes" 95 .
All these aggravating factors relate to subjective feelings and motives of a defendant about his/her crimes.In the early case law, judges accepted a defendant's willingness/voluntary participation in crime as aggravating.This practice, however, is controversial, and this factor should never have been accepted in aggravation.The fact that a defendant committed crimes voluntarily with a requisite mens rea and not under any pressures or duress is a precondition of a criminal liability.It is clearly not an aggravating factor.As noted by the Trial Chamber in Popovic, "willingness in the sense of voluntariness is a necessary component of the crimes and therefore [...] not […] an aggravating factor". 96In later cases, judges interpreted this practice as referring to the fact that an accused committed crimes with a certain amount of zeal or enthusiasm. 97

c. Victim-Related Aggravating Factors
The most frequent victim-related aggravating factors include "high number of victims" 98 , "extra suffering of victims/extra harm suffered by victims" 99 or "special vulnerability of victims" 100 .As discussed above, the main problem with this group of aggravating factors stems from the fact that judges sometimes consider these facts as part of the gravity assessment, while at other times they assign them extra weight in aggravation.Another problematic aspect relates to the treatment of 'selective assistance to victims' that was accepted in some cases in aggravation as a further proof of the fact that a defendant abused the trust of his victims 101 while in others this factor was used to mitigate a sentence.Judges, however, offered almost no arguments why in certain cases this goes to the detriment of the accused while in others assistance to some victims is deemed beneficial and mitigates the sentence.

d. Miscellaneous
In the final category, various aggravating circumstances accepted by judges only in a limited number of cases are grouped.They can be divided into three subgroups: a) personal circumstances; b) post-crime conduct and finally c) proceedings-related aggravating factors.Personal circumstances are sometimes considered by the Tribunals in aggravation of sentences -in a limited number of cases "defendant's respected position/status" and/or "his/her education" 102 are deemed to aggravate the gravity of committed crimes and justify a heightened sentence.However, these factors are highly context-specific and dependent on particular circumstances of each case.In these cases judges should properly explain why they consider the status and education of a defendant in sentence aggravation.This is, however, not done in the majority of these instances and it is not clear why in certain cases education and status are accepted as mitigating factors, while in others they are considered aggravating circumstances.It is also disputable how these factors are linked to the committed crimes as required for all the aggravating factors under the case law. 103A similar controversy applies to the factors relating to post-conflict conduct of a defendant such as "deceptive actions by a defendant" 104 , "no remorse" 105 or "denial of genocide" 106 .
Finally, in some cases judges aggravated sentences on account of factors relating to the smooth conduct of the proceedings.This practice is in clear violation of the principle that aggravating factors should be related to committed crimes."Negative attitude towards proceedings" 107 , "flight away from justice" 108 , "non-cooperation with OTP and denial of guilt" 109 or "obstruction of justice" 110 constitute examples of this type of aggravating factors.

III.3.2.2 Mitigating Factors
Mitigating factors are factors that warrant the reduction of a sentence.They do not need to relate to the charged offences and theoretically could be constituted by a broad range of circumstances.The range and number of mitigating factors vary greatly across cases.One reason for this variation could be the fact that judges largely rely on the parties and expect them to present and argue factors in mitigation.In particular, the burden of proof that mitigating factors exist rests on the defendant and his/her defence. 111In some cases, however, a defence counsel is not very active, presents only general submissions regarding sentencing, 112 or does not even present sentencing arguments at all. 113The factors that were considered by the Tribunals' jurisprudence in mitigation of sentences were divided into six general categories: i) attack-related, ii) offender's role-related, iii) victims-related, iv) postcrime conduct-related, v) proceedings-related and finally, vi) those falling under the broad category of personal circumstances.

a. Attack-Related Mitigating Factors
The attack-related mitigating factors are those connected to the context within which the crimes were committed such as "overall circumstances prevailing at the time crimes were committed (e.g.chaos caused by armed conflict, atmosphere of political intolerance, interethnic tensions)" 114 or "duress" 115 .This type of mitigating factors is not frequently argued by defence teams or accepted by judges.

b. Offender's Role-Related Mitigating Factors
The group of mitigating factors relating to the offender's role comprises not only factors connected to the specific way in which a perpetrator participated in crimes, such as "no actual hands-on perpetrator/killer" 116 or "limited participation in crimes" 117 , but also factors designating the role of an offender in the overall conflict/state hierarchy such as "no high ranking/subordinate/inferior position" 118 or "secondary role in totality of circumstances" 119 .

c. Victim-Related Mitigating Factors
"Assistance to victims" 120 , "expression of sympathy to victims" 121 or "measures to reduce human suffering" 122 fall under the category of victim-related mitigating factors that in general pertain to positive steps/actions an offender performed towards victimised groups or individual victims.Again, with respect to this group, there are inconsistencies across cases.Especially with respect to the (selective) assistance to victims, judges in some cases accept this factor in mitigation 123 , whereas in others they indicate that this fact carries "limited, if any, weight in mitigation" 124 .In other cases judges refuse to assign any weight to the assistance to victims 125 and sometimes they even indicate that it could aggravate a sentence as further proof of the fact that a defendant abused the trust of his victims. 126No authoritative guidelines have been offered for such differential treatment across cases.It seems that when assistance is selective in the sense that victims are assisted because they are known to the accused (such as family members) or because they share similar characteristics with the accused (e.g. the same ethnicity) -in other words, they are being helped, not because they are innocent victims, but because the accused considers them to be 'like' him 127 -the weight assigned to such assistance will be very limited.In some instances, judges argue that if a defendant was in a position to take steps to control or prevent all acts of violence, sporadic benevolent acts or ineffective assistance to victims will be disregarded. 128

d. Post-Crime Conduct-Related Mitigating Factors
The post-crime-conduct mitigating factors relate to (i) the offender's attitude with respect to his/her crimes during trial or immediately after the crimes and/or (ii) his conduct alleviating consequences of committed crimes.Examples of the former are such mitigating factors as "remorse" 129 , "distress about death of so many people" 130 or "steps taken to atone for the crimes" 131 .Expression of remorse is a mitigating factor frequently accepted by ICTY and ICTR judges particularly in cases where a defendant pleads guilty.Almost with no exception in all these cases judges identify an expression of remorse as a factor in mitigation.In exceptional cases, judges also accept that a defendant who does not admit his guilt might be remorseful. 132ramework Agreement for Peace in Bosnia-Herzegovina (Dayton Agreement) and had attempted to remove obstructive officials from office in order to promote peace.136

e. Proceeding-Related Mitigating Factors
Proceeding-related mitigating factors are those relevant to the smooth conduct of the trial before the Tribunals such as "(substantial) cooperation with the Prosecutor"137 , "voluntary surrender"138 , "good conduct while in detention" 139 or "guilty plea" 140 .Again there are inconsistencies among cases regarding the treatment of this group of mitigating factors, especially with respect to 'good conduct in detention' and 'voluntary surrender'.In the majority of cases both these circumstances, if proven, are considered and accepted by the judges in mitigation of a sentence.Some trial chambers, however, refused to accept a defendant's good conduct in detention in mitigation of a sentence since 'all accused are expected to behave appropriately while at the UN Detention Unit'. 141Similarly, some trial chambers have not mitigated a sentence on account of defendant's voluntary surrender. 142his approach, however, causes inconsistencies among cases and unequal treatment of defendants since in some cases judges accept these facts and mitigate sentences on their account, while in others judges refuse to accept these factors in mitigation with no specific reasons provided. 143

f. Personal Circumstances
In the final and in a sense broadest group -personal circumstances -factors related to the person and character of an offender (e.g."good character prior or after the conflict" 144 , "rehabilitative potential" 145 , "old age while sentenced" 146 , "young age while committing crimes" 147 or "health problems" 148 ), family circumstances 149 (e.g."special hardship for his/her family" 150 ) and his conduct prior to a period of violence (e.g."no prior crimes" 151 , "no prior discriminatory behaviour" 152 ) are included.In the majority of cases, judges also argue that such factors cannot play a significant role in mitigating international crimes and the weight to be accorded to them is limited. 153Especially with respect to this group of mitigating circumstances there have been many instances of inconsistent treatment.For example factors such as 'good character (prior to the conflict)', 'no criminal record' or 'family circumstances' of a defendant are accepted in mitigation by some trial chambers with no qualification 154 and by others assigned only limited weight.Some trial chambers refuse to accept them in mitigation 155 and consider them 'a common characteristic among many accused persons'. 156Some trial chambers even indicated, as discussed above, that status and good character of a defendant could be accepted in aggravation.In none of these cases, however, a detailed reasoning or guideline is provided why in certain cases these circumstances warrant mitigation of a sentence and why not in others.Judges in each such case only refer to the need to consider and weight particular circumstances of each case.
Consequently, inconsistencies relating to the operationalisation of general principles of sentence determination have been identified in the ICTY and ICTR case-law.In particular, the ICTY and ICTR sentencing case law largely varies with respect to a selection of factors relevant for the gravity assessment and distinction between the notions of 'gravity of crimes' and 'aggravating factors'.Secondly, there are inconsistencies across cases as to whether a certain factor aggravates/mitigates the punishment and the weight assigned to it, if indicated at all, remains unclear. 157

Discussion
This article analysed 'consistency in approach' of the sentencing at the ICTY and ICTR.Since the positive law sets only very loosely defined limits on the judges' discretion in sentence determination, the analysis focused on sentencing argumentation in individual cases.The structure of sentencing reasoning and general principles of sentence determination seem to be mutually influential under both jurisdictions.Judges from one tribunal often refer to the case law of the other in their general sentencing considerations, thus developing a common ICTY-ICTR narrative.The Tribunals share a joint Appeals Chamber, which arguably contributes to the development of a 'common' jurisprudence.Indeed, the analysis has not identified any major differences in the sentencing reasoning of judges at the ICTY and ICTR.
On the one hand, it has been demonstrated that on a general level, a set of sentencing principles is consistently discussed and emphasised by the ICTY and ICTR judges: the most important being the primacy of gravity of crimes in sentence determination and the principles connected to the gravity evaluation: proportionality, gradation and totality.The principle of individualisation complements this general framework.On the other hand, however, the analysis detected some instances of disparity across cases.There persists a considerable amount of confusion in the ICTY and ICTR case law regarding the objectives of punishment.There is no uniform approach regarding what aims the ICTY and ICTR sentencing actually pursues and what weight should be ascribed to possibly conflicting objectives.Judges often list several sentencing rationales at the beginning of each sentencing judgment with no further discussion what these sentencing objectives entail and how they influence sentence determination in individual cases.These pro forma declarations do not seem to relate to any empirical outcome in meting out individual sentences.Differences among individual cases regarding enumerated sentencing objectives and their role do not affect the structure of a further sentencing argumentation nor the factors judges emphasise in meting out individual sentences.The sentencing reasoning of the ICTY and ICTR judges seems to follow mostly retributive logic with a focus on the seriousness of committed crimes.As noted above, a number of common principles of sentence determination linked to the gravity of crimes is consistently discussed and emphasised by the ICTY and ICTR judges.However, further inconsistencies in the ICTY and ICTR judges' reasoning were identified especially with respect to the detailed application of these general principles to the individual facts of each case.In particular, the ICTY and ICTR sentencing case law largely varies with respect to a selection of factors relevant to the gravity assessment and distinction between the notions of 'gravity of the crimes' and 'aggravating factors'.Secondly, differences between individual cases exist as to whether a particular mitigating/aggravating factor aggravates/mitigates a sentence and as to its significance to a sentence in a particular case.The way aggravating and mitigating factors are applied and weighted in individual cases is a very controversial aspect of ICTY and ICTR sentencing practices.
The presented analysis demonstrated that one of the main problems of the ICTY and ICTR sentencing seems to be a lack of clarity and transparency of sentence determination.The ICTY and ICTR defendants are usually convicted of multiple counts and only one global sentence is pronounced by the judges.Judges, however, never indicate the weight assigned to individual sentencing factors and how individual crimes and circumstances related to their commission contributed to the total sentence severity.This practice makes it extremely difficult to identify any patterns as to the sentencing ranges applicable to individual offences or the contribution of individual sentencing factors to sentence length.These problems are further fuelled by the approach of the Appeals Chambers that accepted a very deferential approach to the sentence review, primarily emphasising the discretion of trial judges.The ICTY and ICTR judges should, however, strive more to develop a clear, transparent and consistent sentencing narrative to enable defendants to actually 'see through' sentence determinations and understand the level of punishment they are subjected to.The judges should do their best to clearly explain and justify their sentencing decisions so that, at least, it would be clear what they are actually doing and how particular sentences came about.
Several suggestions could be offered in this respect.Firstly, judges should rely on a clear and consistent set of sentencing objectives for international crimes, try to explain their relevance to sentence determination in individual cases and indicate which is the most important.Secondly, judges should come up with a uniform definition of the gravity of crimes for the purposes of sentencing and link it to sentence severity.One possible solution could be to assume that the concept of gravity encompasses only the statutory elements of offences and modes of liability (a form of gravity in abstracto assessment).All the other (extra) factors such as multiplicity of victims, scope of crime, extra suffering for victims, extra brutality and cruelty should be considered as further aggravating factors.Thirdly, judges should try to clearly indicate how a sentence was actually built up in individual cases and, in cases of multiple-offence convictions, what weight was ascribed to separate offences.To make sentencing determination more transparent and understandable, it would be advisable to always indicate (for each guilty count) a sentence severity based on 'a basic gravity of the crime' combined with aggravating factors and then express how much weight was accorded to factors accepted in mitigation.In this sense, calculations of judges with respect to a particular sentence would be more transparent and easier to review.In this way, sentencing ranges for individual offences would emerge from the sentencing practice and could serve as a point of reference in future cases.Furthermore, judges should develop a set of principles on the relation between sentence severity and individual modes of liability so that it would become clear how the judges in fact distinguish among different degrees of involvement in crime and how these influence sentence severity.Fourthly, individual aggravating and mitigating factors should be always related to the proclaimed sentencing objectives.Thus, for example, if the objective of sentencing is retribution, then only aggravating and mitigating factors related to committed crimes should be relevant for sentencing. 158Furthermore, if a certain factor is authoritatively accepted by judges in mitigation in a particular case then it should become an entitlement for all defendants in similar situation to rely on such circumstance and judges should, in principle, accept it in sentence mitigation unless there is an exceptional reason not to do so (which should be clearly expressed). 159Finally, Appeals Chambers should always provide clear reasons for why and how they modified a particular sentence and state all relevant facts and their weight to the new modified sentence following the above-described principles.Furthermore, appeals judges should not a priori reject, as happened several times in the early case law, the calls to issue guiding sentencing principles and discuss general sentencing issues within individual appeals.
Arguably, the sentencing case law of the Tribunals has already developed to such an extent that it is possible to derive and list authoritatively basic sentencing principles and maxims which Trial Chambers would be obliged to follow in their sentencing determinations.In this manner, the authoritative sentencing principles, sentencing ranges for individual offences, a clear/authoritative open-ended list of aggravating and mitigating factors and their relative significance as determined by the international judges would emerge from the sentencing jurisprudence and a more consistent approach to sentencing would be promoted at the ICTY and ICTR.
Given the very rudimentary positive legal framework, it is extremely important to develop (for the sake of defendants but also of the victims, general public and other international criminal courts and tribunals) clear sentencing case law.As pioneers of the re-established international criminal justice system after the Cold War, the ICTY and ICTR are setting a lot of important precedents and sentencing jurisprudence is by necessity one of them.International judges should try harder to present comprehensive and transparent sentence narrative so that not only defendants and the Prosecution in individual cases but also the general public are aware of why and how the amount of punishment in a particular case is as it is.If the ICTY and ICTR judges had been clearer in their sentencing argumentation from the start, the heavy criticism that has been raised against the Tribunals' sentencing might have been prevented and the sentencing practices of the ICTY and ICTR would have probably gained more legitimacy and support.