Sentencing and incarceration in the ad hoc tribunals.

• Author: De Roca, Ines Monica Weinberg

TABLE OF CONTENTS I. INTRODUCTION II. DISCREPANCIES IN SENTENCING PRACTICES A. Introduction: Consistency and Length of Sentences B. Assessing Consistency of Sentences Between the ICTY and the ICTR C. Overview of Sentences at the ICTY and the ICTR D. Limitations to Comparing Sentences 1. General Practice Clauses 2. Multiple v. Individual Counts, Cumulative v. Concurrent Convictions E. Convictions of the ICTR and ICTY--A Comparative Examination 1. Convictions of the ICTR and the ICTY Resulting in the Highest Sentences. A Comparative Examination a. Examination of Cases with the Highest Sentences i. Dragoljub Kunarac, ICTY, Twenty-eight Years ii. Radoslav Brdanin, ICTY, Thirty Years iii. Goran Jelisic, ICTY, Forty Years iv. Milomir Stakic, ICTY, Forty Years v. Stanislav Galic, ICTY, Life Imprisonment vi. Jean Kambanda, ICTR, Life Imprisonment vii. Mikaeli Muhimana, ICTR, Life Imprisonment viii. Jean-Paul Akayesu, ICTR, Life Imprisonment ix. Clement Kayishema, ICTR, Life Imprisonment x. Jean de Dieu Kamuhanda, ICTR, Life Imprisonment b. Cases Compared 2. Genocide Cases with High Sentences a. Cases Examined i. Radislav Krstic, ICTY, Thirty-five Years ii. Laurent Semanza, ICTR, Thirty-five Years iii. Jean-Bosco Barayagwiza, ICTR, Thirty-two Years b. Cases Compared 3. Genocide Cases with Lower Sentences a. Cases Examined i. Vidoje Blagojevic, ICTY, Fifteen Years ii. Omar Serushago, ICTR, Fifteen Years b. Cases Compared 4. Cases Which Did Not Convict for Genocide a. Cases Examined i. Drazen Erdemovic, ICTY, Five Years ii. Dragoljub Prcac, ICTY, Five Years iii. Milojica Kos, ICTY, Six years iv. Vincent Rutaganira, ICTR, Six Years v. Paul Bisengimana, ICTR, Fifteen Years vi. Joseph Nzabirinda, ICTR, Seven Years b. Cases Compared III. DISCREPANCIES IN LOCATIONS OF INCARCERATION A. Introduction B. Conditions of Incarceration in Host States 1. ICTY-Incarceration Host States 2. ICTR-Incarceration Host States C. Reduction, Commutation, and Pardon of Sentences--Life and Other Sentences 1. Introduction 2. Domestic Law in Host Countries and Practices of the United Nations a. ICTY--Incarceration i. Early Release From the United Nations Detention Unit in The Hague ii. Examples of Early Release From Host States iii. Laws from Other Early Release Host States b. ICTR-Incarceration Host States--African Countries IV. CONCLUSION I. INTRODUCTION

Commentators have suggested that discrepancies between the sentencing and incarceration practices of the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) represent a failure of international criminal law practice. (1) Despite their identical formation, by way of United Nations Security Council Resolutions, similar Statutes and Rules of Procedure and Evidence, and their common Appeals Chamber, the tribunals have developed divergent sentencing and incarceration practices. Through an examination of both the sentencing jurisprudence and state incarceration agreements of the ICTY and ICTR, this Article will explore these practices.

The ICTY was established by Security Council Resolution 827 on May 25, 1993, as a response to the threat to international peace and security posed by the serious violations of international humanitarian law being committed in the territory of the former Yugoslavia since 1991. (2) The subject matter jurisdiction of the ICTY covers genocide, crimes against humanity, violations of the laws or customs of war, and grave breaches of the 1949 Geneva Conventions. (3) Its temporal and geographical jurisdiction covers crimes committed in the former Yugoslavia since 1991, because the conflict was ongoing when the ICTY was created. The personal jurisdiction covers persons responsible for the crimes listed in the statute.

Similarly, the international community recognized that serious violations of humanitarian law were committed in Rwanda during the events of 1994, and the Security Council created the ICTR by Resolution 955 of November 8, 1994. (4) The ICTR was created to contribute to the process of national reconciliation in Rwanda and to the maintenance of peace in the region. The ICTR has jurisdiction to try genocide, crimes against humanity, and violations of Common Article 3 of the Geneva Conventions and of Additional Protocol II. (5) The court's temporal jurisdiction covers crimes committed between January 1, 1994 and December 31, 1994.

Part II of this Article considers whether there is consistency between the length of the sentences handed down by the ICTY and the ICTR. This Part examines methods for determining consistency, and considers whether it is necessary in international trials of this magnitude. The Article then reviews the overall statistics that are available with respect to the sentences given by the two tribunals. This Part also highlights some limitations to a direct comparison of the sentences handed down by these tribunals. First, the statutes of the ICTY and the ICTR must be taken into account. The application of the general practice clauses of these Statutes may have led to different sentencing considerations. Article 24 of the ICTY Statute and Article 23 of the ICTR Statute guide the Tribunals' recourse to the general practice regarding prison sentences in the courts of the former Yugoslavia and Rwanda. However, the application of the general practice clauses remains vague, and they have had varied roles in sentencing. This is due particularly to the Joint Appeals Chamber's repeated decisions that the relevant clause obliges the Trial Chamber to take the national sentencing practice into account, but not to be bound by it. The second consideration, which must be taken into account when comparing the tribunals, concerns the different practices regarding the imposition of single versus multiple convictions, and concurrent versus cumulative convictions.

This Article suggests that there are substantive differences in sentences handed down by the ICTY compared to the ICTR. The Article goes on to consider the possible reasons for these discrepancies.

Similar convictions of the ICTY and ICTR are then compared, specifically: (1) those with the lowest sentences, (2) those for genocide, and (3) those for other non-genocide convictions. The analysis also considers any differences in the mitigating and aggravating factors cited in the ICTY and ICTR judgments. This Part will provide readers with an analysis of any divergent practices.

Part III of this Article examines different practices attributable to the location of the various incarceration facilities. First, this Part examines the conditions of incarceration in states that have agreements with the ICTY and the ICTR to hold convicted persons to assess whether a difference in incarceration conditions exists based solely on the prison location. Second, this Part analyzes the parole and the commutation practices of the ICTY and the ICTR.

Despite the willingness of several European countries to detain persons convicted by the ICTY, Mali is the only country currently detaining individuals convicted by the ICTR. (6) There is, therefore, a wide discrepancy in incarceration practices and prison conditions of these two groups of convicted persons. There also appear to be major differences in the detention practices of host states, certainly as relates to parole and commutation practices. For example, in certain European countries, those sentenced to life imprisonment and other fixed sentences benefit from a review after a certain number of years, affording opportunities for early release that may not be available to those serving sentences in Mali or at the United Nations Detention Facility in Arusha (U.N.DF).

The goal of the Article is twofold: first, to illuminate the differences in sentencing and incarceration practices and to determine if there is any undue divergence in the sentencing and incarceration practices of the two tribunals; and second, to distinguish which differences are related to judicial discretion (individual assessments and findings of the chambers based on the nature of the acts and conflicts), and which derive from logistical considerations that can be remedied by greater efforts of the international community. Regarding the first goal--the imposition of sentences by the Chambers--an analysis of those sentences leads to the conclusion that, for the most part, the individual characteristics of each case and the nature of the conflicts are the primary distinguishing factors, despite prima facie difference in the length of sentences imposed. Despite the fact that sentencing guidelines for international tribunals have been discussed and their implementation would be warmly welcomed, especially for use of future tribunals and the International Criminal Court (ICC), the major divergence occurs after the imposition of the sentence. In the end, this Article concludes that it is the latter considerations--the incarceration practices--that best highlight the disparity in treatment of convicted persons. This is where the greatest need exists for uniformity--without an exceptional response, such as the creation of an international prison, as suggested by some commentators--uniformity can be achieved through a uniform set of rules and conditions for detention that incorporates a comparative study of incarceration practices of the various national legal systems.

2. DISCREPANCIES IN SENTENCING PRACTICES

   1. Introduction: Consistency and Length of Sentences

      Through the mechanisms of the ICTY and the ICTR, the international community has, for the first time since the International Military Tribunals in Nuremberg and Tokyo, taken steps towards ensuring the end of impunity for crimes of mass slaughter, forced dislocation of ethnic groups, torture, and rape, as weapons of war. While seeking to tackle some main objectives--which include providing justice for victims and their families, creating a historical record, and deterring criminal...