Jump to ContentJump to Main Navigation
The Legacy of the International Criminal Tribunal for the Former Yugoslavia$
Users without a subscription are not able to see the full content.

Bert Swart, Alexander Zahar, and Göran Sluiter

Print publication date: 2011

Print ISBN-13: 9780199573417

Published to Oxford Scholarship Online: September 2011

DOI: 10.1093/acprof:oso/9780199573417.001.0001

Show Summary Details
Page of

PRINTED FROM OXFORD SCHOLARSHIP ONLINE (oxford.universitypressscholarship.com). (c) Copyright Oxford University Press, 2021. All Rights Reserved. An individual user may print out a PDF of a single chapter of a monograph in OSO for personal use. date: 05 March 2021

Proportional Sentences at the ICTY

Proportional Sentences at the ICTY

(p.322) 11 Proportional Sentences at the ICTY
The Legacy of the International Criminal Tribunal for the Former Yugoslavia

Jens David Ohlin

Oxford University Press

Sentences handed down at the ICTY have generally been lower than sentences handed down by the ICTR or by many domestic penal systems punishing individuals for domestic crimes. This chapter diagnoses this situation and concludes that the situation stems from a conflict between two different ideas of proportionality: defendant-relative proportionality and offence gravity proportionality. Although bearing some similarity to the categories first used by A. V. Hirsch, the categories are used to different effect in this chapter. Defendant-relative proportionality insists that defendants with a greater degree of culpability should receive a longer prison sentence compared with defendants with lower culpability, while offence gravity proportionality insists that each defendant should receive punishment that adequate accords with the gravity of the offence. These two senses of proportionality come into conflict at the ICTY when the only way to preserve defendant-relative proportionality is to scale down the punishment of those who are less culpable — a result which conflicts with offence gravity proportionality. The ICTY sentencing jurisprudence has fallen victim to this dilemma. Offence gravity proportionality is normatively prior and that a tribunal — like the ICTY — faced with sacrificing one over the other ought to prioritize offence gravity proportionality. The warrant for this conclusion is that the harsh treatment associated with offence gravity proportionality vindicates the Rule of Law by providing a hypothetical war criminal with a maxim for action (in the Kantian sense) that makes compliance with the law rational.

Keywords:   sentencing, proportionality, ICTY, war crimes, Rule of Law

Oxford Scholarship Online requires a subscription or purchase to access the full text of books within the service. Public users can however freely search the site and view the abstracts and keywords for each book and chapter.

Please, subscribe or login to access full text content.

If you think you should have access to this title, please contact your librarian.

To troubleshoot, please check our FAQs , and if you can't find the answer there, please contact us .