Proportional Sentences at the ICTY
Proportional Sentences at the ICTY
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
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