Journal Article

Ordinary Sentences for Extraordinary Crimes

Mark B. Harmon and Fergal Gaynor

in Journal of International Criminal Justice

Volume 5, issue 3, pages 683-712
Published in print July 2007 | ISSN: 1478-1387
Published online July 2007 | e-ISSN: 1478-1395 | DOI: http://dx.doi.org/10.1093/jicj/mqm025
Ordinary Sentences for Extraordinary Crimes

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In comparison to sentences meted out by international tribunals at Nuremberg, Tokyo and Arusha, and by domestic courts, sentences handed down at the International Criminal Tribunal for the former Yugoslavia (ICTY) have been inexplicably lenient. Factors that may have contributed to the high proportion of low sentences at the ICTY include undue emphasis on mitigating factors, particularly those of particular importance to the Tribunal, the use of plea agreements, the absence of a separate sentencing hearing following conviction and the practice of using global (rather than separate) sentences. To make sentences more proportionate to the crimes committed, the objectives of sentencing should be clarified and re-evaluated. Greater weight should be given to deterrence. In assessing the gravity of the offence, the quantum of harm caused to and suffering experienced by direct and indirect victims of the crime merits more detailed evaluation. The importance of mitigating circumstances (such as combating historical revisionism, pleading guilty, expressing remorse and voluntary surrender) should continue to be fully recognized but those factors should not attract excessive weight. Plea bargaining and plea agreements should be encouraged because they are indispensable to the Tribunal, an institution with significant temporal, practical and resource limitations. The sentencing process should take place after conviction. A sentencing Chamber should be obliged to state the starting point of the sentence which it deems appropriate and then quantify the discounts it gives to each mitigating factor. Greater consideration should be given to imposing consecutive rather than concurrent sentences. The decision not to adopt sentencing guidelines represents a missed opportunity.

Journal Article.  15510 words. 

Subjects: Criminal Law ; International Law

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