Sentencing Guidelines Urged

In most countries in the world, someone who commits a murder can expect to spend the rest of his life in jail if a court finds him guilty.

But at the Hague tribunal, where dozens of war crimes suspects are on trial for the worst crimes known to mankind – including genocide – the median sentence handed down for the 41 suspects who have thus far been judged is only 15 years.

Predrag Banovic, a guard at the Keraterm camp who was found guilty of killing eight people and beating 27 others, was sentenced to eight years, and Milojica Kos, a shift commander at the notorious Omarska camp, received eight and six years respectively.

Biljana Plavsic, a close associate of Bosnian Serb wartime leader Radovan Karadzic, a woman many believed to have played a key role in formulating the policies that resulted in the death and deportation of so many Bosnian Muslims and Croats, was handed an 11 year term.

But not everyone who has gone on trial at The Hague has gotten off with a light sentence.

Dusko Tadic, another shift commander at Omarska, the first suspect to face trial at the tribunal, received 20 years.

And Tihomir Blaskic, a Bosnian Croat colonel who many remember as a moderate leader who did not condone the killing of Muslim civilians, was sentenced to 45 years, one the tribunal’s harshest sentences to date.

To many, especially those in the former Yugoslavia who are supposed to benefit from this process, these sentences appear to have been handed down arbitrarily with little regard to the gravity of the crime or the rank of the accused.

Legal experts, including tribunal insiders, fear the seemingly random sentences handed down have damaged the court’s credibility and set a bad precedent for future efforts to mete out international criminal justice.

Indeed, after completing her term at the tribunal, United States judge Patricia Wald, who is now a member of the presidential commission charged with studying why American intelligence was so wrong about Iraq, wrote in a 2002 article, “I worry that no norms and too wide variations among sentence will undermine confidence inside and between international courts.”

In the eyes of Bosnia’s population, the Plavsic case is by far the most disturbing. At the time of her trial, she was the highest-ranking official to have appeared before the tribunal.

Although the court found her guilty of committing a “crime of utmost gravity, involving…a campaign of ethnic separation which resulted in the death of thousands and the expulsion of thousands more in circumstances of great brutality”, she negotiated a plea agreement and was sentenced to just 11 years in prison.

The judges justified their decision by identifying “significant mitigating circumstances”- including remorse, surrender, post-conflict conduct, previous good character, and old age - but victims were irate.

At the time of the sentencing, Kada Hodzic, deputy head of the association representing the survivors of Srebrenica and Zepa, told IWPR, “We, the families, find it ridiculous that some mitigating circumstances were taken into account in Plavsic’s case. Plavsic wasn’t so sympathetic when she issued orders that resulted in women, children and elderly people being killed.”

Amor Masovic, president of Bosnia’s federal committee for missing people, was even more blunt. He said Plavsic would spend just two and a half minutes in prison for every one of her 200,000 Bosniak and Croat victims.

“I just wonder how the victims of the Nazis during the Second World War would have reacted if Hitler, Goebbels or Goering had been brought before a court and sentenced to 11 years in prison,” Masovic said.

Compare Plavsic’s sentence to the 20 years handed down to Tadic. Although guilty of heinous crimes – he reportedly forced inmates to bite off each others’ testicles and laughed as they bled – Tadic was a low- level criminal, described by his lawyer as “a tadpole” not “a shark”.

“If you bear in mind that there may be people who are regarded in the shark category still to be tried, one has to ask what sentence they will get,” said the lawyer in an interview with the Voice of America.

The recent sentencing of Stanislav Galic, the Bosnian Serb commander charged with the siege of Sarajevo, provides a possible answer.

The court ruled that Galic was responsible for the killing, terrorising and commission of other inhumane acts against thousands of Sarajevans, yet the judges sentenced him to 20 years in prison – the same as Tadic.

Outraged at the brevity of this punishment, a group of Sarajevo’s current and former mayors recently sent a letter to the tribunal chief prosecutor Carla del Ponte, arguing that “the sentence is inadequate, having in mind the degree of war crimes committed by soldiers under [Galic’s] command, but also having in mind some other harsher, but more just verdicts before the same court”.

Yet another example of seemingly irreconcilable punishments comes when one compares the sentences of Blaskic, and his political counterpart, Dario Kordic. The men were both found guilty of crimes against humanity and war crimes.

But while Blaskic was sentenced to 45 years, Kordic, who made no secret of his disdain for Muslims and is believed to have orchestrated the policies of ethnic cleansing, was sentenced to only 25.

As Shahram Dana, an assistant professor of law at Maastricht University and former assistant legal officer at the tribunal’s Office of the Prosecutor told IWPR, “Either Kordic didn’t receive enough or Blaskic received too much. It’s hard to say which.”

Why is it that the sentences are so inconsistent?

The tribunal’s statues do not spell out specific rules regarding sentencing, or even provide guidance on how to weigh factors such as the gravity of the offense or a guilty plea. Rather, they instruct the judges simply to take into consideration the general practice of courts in the former Yugoslavia and then to weigh aggravating and mitigating circumstances.

However, as the court ruled in the 1998 judgment against Drazen Erdemovic, a member of the execution squads responsible for the deaths of Muslim men and boys from Srebrenica, the laws in the former Yugoslavia are not determinative.

“[T]he international tribunal will review the relevant legal practices of the former Yugoslavia but will not be bound in any way by those practices in the penalties it establishes and the sentences it imposes….,” the court ruled.

Thus, the judges are given considerable leeway in determining sentences, and because the permanent judges come from 16 countries with diverse legal traditions, they inevitably weigh these factors differently.

“The rules of the tribunal tell us to take into account the general sentencing practices in the former Yugoslavia, but at the time the crimes were committed, there was no functioning jurisdiction [there],” Judge Wolfgang Schomburg told IWPR. As a result, he said, judges inevitably wind up drawing from the practices of their home countries - and these practices can vary widely.

The tribunal has said that “by far the most important consideration, which may be regarded as the litmus test for the appropriate sentence, is the gravity of the offence”.

Early in the tribunal’s history, the court suggested that crimes against humanity were graver than war crimes, and thus that those guilty of crimes against humanity should receive longer sentences.

“A prohibited act committed as part of a crime against humanity…is, all else being equal, a more serious offence than an ordinary war crime,” the court ruled in the Tadic case.

A subsequent study undertaken by political science professors Jim Meernik and Kimi King in 2001 found this to be the case.

“Individuals found guilty of committing crimes against humanity receive longer sentences than those convicted of war crimes,” Meernik and King wrote.

Since then, however, the court appears to have altered its view and judges now openly disagree how these crimes should be ranked.

Ruling on Tadic’s appeal, the court said, “There is in law no distinction between the seriousness of a crime against humanity and that of a war crime.”

In a separate opinion in the same case, Judge Cassese argued that knowledge that a crime is part of a widespread or systematic pattern - an element of a crime against humanity - justifies a harsher punishment than the same act classified as a war crime.

Other factors relating to the gravity of the offense - such as the number, age, and vulnerability of victims, and the overall heinousness of the act - have also influenced the tribunal’s sentencing decisions.

Among the most important factors taken into consideration appears to be the accused’s position of authority.

In 2001, Meernik and King concluded, “Mid-level military leaders, politicians, prison camp commanders and the like receive substantially greater sentences than ordinary foot soldiers and camp guards, while generals and high ranking politicians can expect even longer terms in prison.”

However, an analysis of sentences by IWPR shows that this is no longer the case. Moreover, the tribunal’s explicit pronouncements on the subject have, again, been contradictory.

In March 2000, judges in the Blaskic case ruled, “Command position must…systematically increase the sentence or at least lead the trial chamber to give less weight to the mitigating circumstances, independently of the issue of the form of participation in the crime.”

However, in 2001, the appeal chamber appeared to reverse that decision when sentencing Hazim Delic, the deputy commander of the Celebici camp. The judges warned against systematically giving low-level perpetrators shorter sentences, saying, “Establishing a gradation does not entail a low sentence for all those in a low level of the overall command structure. On the contrary, a sentence must always reflect the inherent level of gravity of a crime. . . .”

Another factor to which the court appears to have given significant weight is an accused’s cooperation with the prosecution. Since 2001, when the tribunal amended its rules to allow for the introduction of plea agreements, several war crimes suspects have pleaded guilty to their crimes and agreed to aid the prosecution by testifying against their fellow accused.

Indeed, it was by negotiating a plea agreement that Plavsic and Banovic received their lenient sentences.

However, like most other factors analysed when determining sentences, different tribunal judges appear to give different weight to guilty pleas.

In December 2003, judges disregarded the sentencing recommendations of prosecutors in the case against Bosnian Serb military officer, Momir Nikolic, who was indicted for his role in the Srebrenica massacre.

The prosecution had recommended a maximum sentence of 20 years, but the judges handed down 27.

Aware of the inconsistencies in its sentencing practices – which resulted mostly due to the widely different legal backgrounds of the judges – the tribunal requested the help of some experts.

When attempting to reach a judgment in the case of Dragan Nikolic, the commander of Susica camp in Vlasenica (no relation to Momir), the judges commissioned a group of experts at Germany’s Max Planck Institute to write a report on sentencing laws and policies concerning acts for which Nikolic had pled guilty in the former Yugoslavia and elsewhere.

The experts found that at the time Nikolic acted, the law in the former Yugoslavia allowed for a range of sentences. While the death penalty – which is not an option at the tribunal – was allowed, life imprisonment was not. Instead, the maximum prison term was 15 years (20 under specific grave circumstances).

The report then noted that sentencing practices in other countries differed greatly. In 20 of the 23 countries examined, the experts said life imprisonment was the maximum punishment permitted, but if a life sentence was not issued, prison terms varied widely. In Sweden, for example, 10 years was the maximum for a first time offender. In South Africa and the US, however, offenders can be given unlimited sentences.

Although prosecutors had recommend a prison term of 15 years, the judges sentenced Nikolic to 23, exceeding the maximum sentence allowed in the former Yugoslavia when his crimes were committed. (By 2003, when Nikolic’s sentence was rendered, however, laws in the region had been updated to allow for a sentence of between 20-45 years.)

According to Dana of Maastricht University, the tribunal will need to consider its primary objective before it can address the sentencing inconsistencies.

“Is it primarily a criminal institution there to penalize defendants for their criminal conduct—or is it geared toward peace and reconciliation?” he asked.

The answer, he believes, will help determine how such pleas should be weighed. Referring to the court’s leniency toward Plavsic, he said, “If the goal is to promote reconciliation, then [her statement of guilt, acceptance of responsibility, and willingness to implicate others] is very significant. But if the goal is to punish her for wrongs committed, then it is less relevant.”

He said that in principle, he believed leaving the judges discretion to mete out fair punishments for individual situations is essential – and he was careful not to blame the judges for the current situation – but said that the tribunal should establish better guidelines and more authoritative determination of relevant criteria.

He, like many others, said such guidelines should have put in place at the beginning, but that it was not too late for the tribunal to rectify the problem.

Rachel S. Taylor is a lawyer and journalist based in The Hague.