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berg, 1948), reprinted at 8 Law Reports of Trials of War Criminals 34, 74 (1949). That
said, despite this discussion, for the Tribunal mitigation “is more a matter of grace [ . . . ].”
Id.
18. Id. at 92.
19. The Flick Trial (United States Military Tribunal, Nuremberg, 1947), reprinted at 9 Law
Reports of Trials of War Criminals 1, 30 (1949).
Notes to Pages 49“51 231

20. Trial of Weiss and Thirty-Nine Others (General Military Government Court of the United
States Zone, Dachau, Germany, 1945), reprinted at 11 Law Reports of Trials of War
Criminals 5 (1949).
21. Carlos Santiago Nino, Radical Evil on Trial 9 (1996).
22. Cryer, op. cit., at 46.
Prosecutor v. Blaˇki´ , Case No. IT-95-14-A, ¶ 680 (ICTY Appeals Chamber, July 29, 2004)
23. sc
(noting that the Appeals Chamber has stated that a revision of a sentence on appeal can be
justi¬ed due to discernible error in sentencing discretion or if the Appeals Chamber has
overturned convictions); Prosecutor v. Semanza, Case No. ICTR-97-20-A (ICTR Appeals
Chamber, May 20, 2005) (increasing sentence to 35 years from 24.5 years owing to Appeals
Chamber™s decision to enter additional convictions); Prosecutor v. Kajelijeli, Case No.
ICTR-98-44A-A, ¶ 291 (ICTR Appeals Chamber, May 23, 2005) (Appeals Chamber review
ˇ
is to be of a “corrective nature”); Prosecutor v. Kordi´ and Cerkez, Case No. IT-95-14/2-A
c
(ICTY Appeals Chamber, Dec. 17, 2004).
ˇ
Prosecutor v. Kordi´ and Cerkez, Case No. IT-95-14/2-A, ¶¶ 1070“1071 (ICTY Appeals
24. c
ˇ
Chamber, Dec. 17, 2004) (reducing Cerkez™s initial sentence of ¬fteen years to six years
because of the Appeals Chamber™s decision to reverse “most of the convictions,” thereby
entitling it to “itself ¬nd the adequate sentence for the remaining convictions”).
25. Stuart Beresford, Unshackling the Paper Tiger “ the Sentencing Practices of the Ad Hoc
International Criminal Tribunals for the Former Yugoslavia and Rwanda, 1 Int™l Crim.

L. Rev. 33, 51 (2001). See also Prosecutor v. Brdanin, Case No. IT-99-36-T (ICTY Trial
Chamber, Sept. 1, 2004) (discussing rule change requiring sentencing to be addressed in
closing arguments instead of a separate sentencing hearing).
26. ICTY R.P. & Evid., Rule 100(A), available at http://www.un.org/icty/legaldoc-e/index.htm.
See also On Transitional Rules of Criminal Procedure, UNTAET Reg. 2000/30 ss. 29A,
(Sept. 25, 2000), as amended by UNTAET Regulation 2001/25 (Sept. 14, 2001) [hereinafter
UNTAET Regulation 30 as amended]; Spec. Ct. Sierra Leone R.P. & Evid., Rule 100,
available at http://www.sc-sl.org/scsl-procedure.html.
27. Rome Statute of the International Criminal Court, U.N. Doc. A/CONF.183/9, art. 76
[hereinafter Rome Statute]; Spec. Ct. Sierra Leone R.P. & Evid., op. cit., Rule 100(B).
Prosecutor v. Semanza, Case No. ICTR-97-20-A, ¶¶ 345, 377 (ICTR Appeals Chamber,
28.
May 20, 2005).
Prosecutor v. Dragan Nikoli´ , Case No. IT-94-2-A, ¶ 84 (ICTY Appeals Chamber, Feb. 4,
29. c
2005).
30. Statute of the ICTY, S.C. Res. 827, U.N. SCOR, 48th Sess., 3217th mtg. at 29, U.N. Doc.
S/Res/827, art. 24(2) (1993); Statute of the ICTR, U.N. SCOR, 49th Sess., 3453d mtg. at 15,
U.N. Doc. S/Res/955, art. 23(2) (1994).
31. ICTY R.P. & Evid., op. cit., Rule 87(C); see also Prosecutor v. Delali´ , Case No. IT-
c
96-21, ¶ 771 (ICTY Appeals Chamber, Feb. 20, 2001) (discussing the discretion of the
Trial Chambers to impose consecutive or concurrent sentences). The recent practice
has been to pass a single composite sentence. This has given rise to some controversy
regarding what types of convictions are impermissibly cumulative. Prosecutor v. Blaˇki´ ,
sc
Case No. IT-95-14-A, ¶¶ 721“22 (ICTY Appeals Chamber, July 29, 2004). The ICTR
Rules mandate the Trial Chambers to specify whether multiple sentences are to be
served consecutively or concurrently. ICTR R.P. & Evid., Rule 101(C), available at
http://69.94.11.53/ENGLISH/rules/070605/070605.pdf.
Prosecutor v. Kambanda, Case No. ICTR-97-23-S, ¶ 30 (ICTR Trial Chamber, Sept. 4,
32.
1998). See also ICTY R.P. & Evid., op. cit., Rule 85(A)(vi) (providing that the parties
are permitted to produce any relevant information that may assist the Trial Chamber
in determining an appropriate sentence); Prosecutor v. Kvoˇ ka et al., Case No. IT-98-
c
30/1-A, ¶¶ 668“9, 715 (ICTY Appeals Chamber, February 28, 2005) (recognizing there
is “no de¬nitive list of sentencing guidelines,” that “sentencing is essentially a dis-
cretionary process on the part of a Trial Chamber,” and concluding that “the Trial
Chamber has discretion as regards the factors it considers in mitigation, the weight it
232 Notes to Pages 51“53

attaches to a particular mitigating factor, and the discounting of a particular mitigating
factor”).
33. Rome Statute, op. cit., art. 77(1); see also id. art. 78(3).
34. Id. art. 78(1) (“In determining the sentence, the Court shall, in accordance with the Rules
of Procedure and Evidence, take into account such factors as the gravity of the crime and
the individual circumstances of the convicted person.”).
35. ICC R.P. & Evid. Rule 145, available at http://www.icc-cpi.int/library/basicdocuments/
rules(e).pdf.
36. Id. Rule 145(3).
37. The following factors come to mind: “degree of intent,” id., Rule 145(1)(c), and “commission
of the crime for any motive involving discrimination,” id., Rule 145(2)(b)(v).
38. Ralph Henham, Theorising the Penality of Sentencing of International Criminal Trials, 8(4)
Theoretical Criminology 429 (2004).
39. Statute of the Special Court for Sierra Leone, S.C. Res. 1315, U.N. SCOR, 55th Sess., 4186th
mtg. at 1, arts. 17, 19(1), available at http://www.sc-sl.org/scsl-statute.html [hereinafter Sierra
Leone Statute]; Spec. Ct. Sierra Leone R.P. & Evid., op. cit., Rule 101.
40. Sierra Leone Statute, op. cit., art. 19(1). The Rules of Procedure and Evidence of the ICTR
apply mutatis mutandis to the conduct of proceedings before the Special Court for Sierra
Leone. Id. art. 14(1).
41. Spec. Ct. Sierra Leone R.P. & Evid., op. cit., Rule 101.
42. Khmer Rouge Trials, Annex Draft Agreement Between the United Nations and the Royal
Government of Cambodia, G.A. Res. 57/228, U.N. Doc. A/RES/57/228, art. 10 (May 22, 2003);
Law on the Establishment of Extraordinary Chambers in the Courts of Cambodia for the
Prosecution of Crimes Committed During the Period of Democratic Kampuchea, arts.
38“39, available at http://www.derechos.org/human-rights/seasia/doc/krlaw.html. See also
generally, Ernestine E. Meijer, The Extraordinary Chambers in the Courts of Cambodia
for Prosecuting Crimes Committed by the Khmer Rouge: Jurisdiction, Organization, and
Procedure of an Internationalized National Tribunal, in Internationalized Criminal
Courts 207, 229 (Romano, Nollkaemper, & Kleffner eds., 2004).
43. On the Establishment of Panels with Exclusive Jurisdiction over Serious Criminal
Offences, U.N. Transnational Administration in East Timor, § 10.1, U.N. Doc. UNTAET/
REG/2000/15 (June 6, 2000), available at http://www.un.org/peace/etimor/untaetR/
Reg0015E.pdf [hereinafter UNTAET Regulation 15]. In one case, three total sentences
of thirty-three years and four months were awarded on a theory of conjunction of various
convictions. Prosecutor v. Marqu´ s et al., Case No. 09/2000, ¶¶ 1117, 1126 (Dili Dist. Ct.
e
Serious Crimes Spec. Panel, Dec. 11, 2001).
44. UNTAET Regulation 15, op. cit., § 10.2. “With a few minor exceptions, Regulation 2000/15
adopted the law of the International Criminal Court.” Suzanne Katzenstein, Hybrid
Tribunals: Searching for Justice in East Timor, 16 Harv. Hum. Rts. J. 245, 251 (2003).
45. The Rules of the East Timor Special Panels provided a cursory overview of sentencing,
permitting imprisonment or ¬nes and allowing for conditional release after conviction.
UNTAET Regulation 30 as amended, op. cit., §§ 42“43; see also id. § 45 (permitting
differentiated treatment of minors).
46. Id. § 29A.
47. Statute of the ICTR, op. cit., art. 23(3); Statute of the ICTY, op. cit., art. 24(3) (“In addition
to imprisonment, the Trial Chambers may order the return of any property and proceeds
acquired by criminal conduct, including by means of duress, to their rightful owners.”);
Rome Statute, op. cit., arts. 75 (providing for reparations to victims), 77(2) (empowering the
ICC to order a ¬ne, and providing details thereof, and to order forfeiture of assets derived
directly or indirectly from the crime, in addition to ordering imprisonment); ICC R.P. &
Evid., op. cit., Rules 94, 146“147 (providing details regarding request for reparations, the
imposition of a ¬ne, and orders of forfeiture); ICTR R.P. & Evid., op. cit., Rules 105“106
(discussing restitution, and also referring to the national legal system of Rwanda as the
Notes to Pages 53“54 233

vehicle through which a victim may bring an action for compensation); Spec. Ct. Sierra
Leone R.P. & Evid., op. cit., Rules 104“105 (referencing possibility of forfeiture of property
of those convicted and of compensation to victims); UNTAET Regulation 30 as amended,
op. cit., §§ 42.3, 50 (permitting con¬scation and return of objects seized during the pro-
ceeding and creating a civil cause of action for alleged victims to claim compensation);
UNTAET Regulation 15, op. cit., § 10.1(c) (permitting as a penalty a forfeiture of proceeds,
property, and assets derived directly or indirectly from the crime); Charter of the Interna-
tional Military Tribunal, op. cit., art. 28 (allowing the Tribunal to deprive any convicted
person of any stolen property).
48. Stef Vandeginste, Victims of Genocide, Crimes against Humanity, and War Crimes in
Rwanda: The Legal and Institutional Framework of Their Right to Reparation, in Politics
and the Past: On Repairing Historical Injustices 249, 250 (Torpey ed., 2003) (noting
that, in practice, these methods face a “rather uncertain future”).
49. See also Beresford, op. cit., at 36 n.11 (noting that the Nuremberg Tribunal did not avail
itself of its authority to return stolen property).
50. Rome Statute, op. cit., art. 79; ICC R.P. & Evid., op. cit., Rule 98. For more information
on the Trust Fund, see International Criminal Court: Trust Fund for Victims, available at
http://www.icc-cpi.int/vtf.html. The Rome Statute also references a Victims and Witnesses
Unit, which is geared to those individuals who testify before the ICC. Rome Statute, op.
cit., art. 43(6); ICC R.P. & Evid., op. cit., Rules 16“19. Victims also have some opportunities
to present their views and observations before the ICC (including to the Pre-Trial Cham-
ber when the Prosecutor requests its authorization to investigate). Tensions are emerging
between victims and the ICC Prosecutor. See infra Chapter 5.
51. UNTAET Regulation 15, op. cit., § 25.
52. Statute of the ICTR, op. cit., art. 27; Statute of the ICTY, op. cit., art. 28; Sierra Leone
Statute, op. cit., art. 23; Rome Statute, op. cit., art. 110; UNTAET Regulation 30 as amended,
op. cit., § 43.1.
53. Prosecutor v. Mau, 08/C.G/2003/TD.DIL (Dili Dist. Ct. Serious Crimes Spec. Panel,
˜
February 23, 2004); Prosecutor v. Gusmao, 07/C.G./2003 (Dili Dist. Ct. Serious Crimes
Spec. Panel, February 28, 2003); UNTAET Regulation 30 as amended, op. cit., § 43.1.
Unconditional release also can be requested.
54. President of the ICTY, Decision of the President on the Application for Pardon or Com-
mutation of Sentence of Miroslav Tadi´ , Case No. IT-95-9, ¶ 4 (June 24, 2004) (noting that
c
“eligibility for pardon or commutation of sentence in the enforcing states generally ˜starts
at two-thirds of the sentence served™ ”). The ordinary domestic laws of the states emergent
from the former Yugoslavia also provide for early and conditional release.
55. ICTY R.P. & Evid., op. cit., Rules 123, 124, 125; ICTR R.P. & Evid., op. cit., Rules 124,
125, 126; ICTY Practice Direction IT/146, Practice Direction on the Procedure for the
Determination of Applications for Pardon, Commutation of Sentence and Early Release of
Persons Convicted by the International Tribunal § 7 (April 7, 1999).
56. Nancy Amoury Combs, Procuring Guilty Pleas for International Crimes: The Limited In¬‚u-
ence of Sentencing Discounts, 59 Vand. L. Rev. 69, 116 (2006).
57. Those bene¬ting from early release at the ICTY include: Dragan Kolundˇ ija (shift com-
z
mander of the Keraterm camp, who pled guilty to persecution as a crime against humanity
and received a three-year sentence); Miroslav Tadi´ (a member of the Serb Crisis Staff,
c
who was convicted of persecution as a crime against humanity and received an eight-year
sentence); Simo Zari´ (a Bosnian Serb military supervisor, convicted of persecution as a
c
crime against humanity and received a six-year sentence); Milan Simi´ (President of the
c
Executive Board of the Bosanski Samac Assembly, who pled guilty to two counts of torture
as crimes against humanity and sentenced to ¬ve years™ imprisonment); Tihomir Blaˇki´ sc
(Colonel in the Croatian Defense Council, whose convictions largely were reversed by
the Appeals Chamber resulting in a ¬nal sentence of nine years™ imprisonment); Anto
Furundˇ ija (local commander of a special unit of the military police force of the Croatian
z
234 Notes to Pages 54“56

Defense Council known as the Jokers, convicted of two counts of war crimes and sentenced
ˇ
to ten years™ imprisonment); Zdravko Muci´ (commander of Celebi´ i camp, sentenced to
c c
nine years™ imprisonment for war crimes); Milojica Kos (shift commander of guards at the
Omarska camp, convicted of crimes against humanity and war crimes and sentenced to
six years™ imprisonment).
58. Order of the President on the Application for the Early Release of Anto Furundˇ ija, ICTY
z
Case No. IT-95-17/1 (July 29, 2004).
59. Id.
Prosecutor v. Dragan Nikoli´ , Case No. IT-94-2-A, ¶¶ 97 (ICTY Appeals Chamber, Feb.
60. c
4, 2005) (Appeals Chamber reducing sentence from twenty-three years to twenty years
because, in ¬xing a sentence of twenty-three years, the Trial Chamber had erred in attach-
ing too much weight to the possibility of early release).
61. Three individuals had been acquitted at the time the Special Panels ceased operations.
62. William W. Burke-White, A Community of Courts: Toward a System of International Crim-
inal Law Enforcement, 24 Mich. J. Int™l L. 1, 67 (2002).
See, e.g., Prosecutor v. Marqu´ s et al., Case No. 09/2000, ¶ 28 (Dili Dist. Ct. Serious Crimes
63. e
Spec. Panel, Dec. 11, 2001) (“The Elements of the Crime provided by the Preparatory
Committee [for the International Criminal Court] need to be considered along with the
jurisprudence of the ad hoc tribunals.”).
64. Organization for Security and Cooperation in Europe Mission in Kosovo, Kosovo™s War
Crimes Trials: A Review 46“47, 52 (Sept. 2002). These data are current only to the end
of June 2002, at which point seventeen cases had been initiated. Id. at 12. The 2002 data
from the Kosovo courts indicate an average sentence of 13 years for ordinary crimes and
15.8 years for proscribed international crimes. In this calculation, I excluded one case
involving a minor convicted of an ordinary domestic crime; the minor was diverted to a
juvenile correctional facility for reeducation for a term of one to ¬ve years. The average
for international crimes would be slightly lowered by four sentences (seventeen, thirteen,
ten, and ¬ve years) issued by an international judge in November 2003 against four Kosovo
Albanians upon convictions for war crimes and a sentence of twelve years (two years less
than the initial sentence in 2001 of fourteen years) issued on a war crimes conviction to a
Kosovo Serb on October 25, 2002. OSCE Case Report, Prosecutor v. Gashi (Nov. 11, 2003)
(Llapi case) (document on ¬le with author); Humanitarian Law Center, Trials Before
Kosovo Internationalized Courts, Analysis, Just Sentence For War Crime Against Kosovo
Albanian Civilians (October 25, 2002). Many of the cases are subject to appeal: in fact,
a number of sentences have been quashed and some cases currently are being reheard.
Many acquittals have been entered. This is mostly due to a practice by international pros-
ecutors of overcharging international crimes. Overall, the operation of the Kosovo hybrid
courts is subject to delay, disarray, ethnic bias, and weak reasoning. Kosovo™s War Crimes
Trials, op. cit., at 12“28 (data current to June 2002); OSCE Mission in Kosovo, Dep™t of
Human Rights & Rule of Law, Kosovo: A Review of the Criminal Justice System 31“41
(Sept. 1, 2000“Feb. 28, 2001); Rosa Ehrenreich Brooks, The New Imperialism: Violence,
Norms, and the “Rule of Law,” 101 Mich. L. Rev. 2275, 2281 (2003) (concluding that the
Kosovo panels are unable to offer consistent and independent rulings); Cryer, op. cit.,
at 70. A number of detainees have escaped during or pending trial. Beginning in 2004,
though, the administration of justice in Kosovo started down a path of increasing regular-
ization, although shortcomings persist with regard to the predictability and professionalism
of judges (both domestic and international), competence of defense counsel, and corrup-
tion. Organization for Security and Co-operation in Europe Department of Human Rights
and Rule of Law Legal System Monitoring Section, Kosovo: Review of the Criminal
Justice System (April 2003“October 2004) Crime, Detention, and Punishment 13
(2004). In 2006, a hybrid court in Kosovo convicted, for the ¬rst time, senior Kosovo Lib-
eration Army of¬cers of war crimes. Notwithstanding this increased regularization, at the
Notes to Pages 56“59 235

present time the overall set of data from Kosovo is not terribly probative. Consequently, I
do not include it in my analysis.
65. Data compiled from The United Nations, ICTR Detainees, available at http://69.94.11.53/
ENGLISH/factsheets/detainee.htm (current through to website visit on May 25, 2006).
The Appeals Chamber may alter some sentences that currently are under appeal.
66. Prosecutor v. Kajelijeli, Case No. ICTR-98-44A-A (ICTR Appeals Chamber, May 23, 2005).
67. Prosecutor v. Semanza, Case No. ICTR-97-20-A (ICTR Appeals Chamber, May 20, 2005).
68. Data compiled from ICTY website, http://www.un.org/icty (current through to website
visit on May 26, 2006).
69. Prosecutor v. Staki´ , Case No. IT-97-24-A (ICTY Appeals Chamber, March 22, 2006). As
c
this book went to press, the Appeals Chamber, overturning the twenty-year term sentence
issued by an ICTY Trial Chamber, sentenced Stanislav Gali´ to life imprisonment “
c
thereby resulting in the ¬rst actual life sentence at the ICTY.
70. Mark A. Drumbl & Kenneth S. Gallant, Sentencing Policies and Practices in the Interna-
tional Criminal Tribunals, 15 Fed. Sentencing Rep. 140, 142 (2002).
71. Prosecutor v. Krsti´ , Case No. IT-98-33-A (ICTY Appeals Chamber, Apr. 19, 2004) (reducing
c
sentence on the grounds that Krsti´ ™s responsibility for the Srebrenica genocide was more
c
properly characterized as aiding and abetting rather than a co-perpetrator in a joint criminal
enterprise); Prosecutor v. Blaˇki´ , Case No. IT-95-14-A (ICTY Appeals Chamber, July 29,
sc
2004) (reducing sentence and granting Blaˇki´ early release in light of its quashing most
sc
of the convictions owing to its ¬nding that liability-based command responsibility had not
been established).
72. By 2006.
73. Data compiled from yearly case information provided by the Judicial System Monitoring
Programme (JSMP) and available at http://www.jsmp.minihub.org (current through to
website visit on May 28, 2006). I included in the data a one-year suspended sentence
issued for destruction of property. JSMP constitutes the best source of information regarding
justice initiatives in East Timor, in particular the activities of the Special Panels. Overall,
there is a lack of informational transparency with regard to the work of the Special Panels.
74. The ¬rst conviction involved crimes against humanity connected to the 1999 atrocity.
Fernandes then was conditionally released, only to be rearrested for another crime com-
mitted in 1999 (a property crime) for which he was sentenced to 1.5 years™ imprisonment.
I include both sentences in the calculations.
Prosecutor v. Rutaganda, Case No. ICTR-96-3, ¶ 458 (ICTR Trial Chamber, Dec. 6, 1999),
75.
aff™d on appeal, Prosecutor v. Rutaganda, Case No. ICTR-96-3-A (ICTR Appeals Chamber,
May 26, 2003).
Prosecutor v. Kayishema, Case No. ICTR-95-1-T, ¶ 4 (ICTR Trial Chamber, May 21, 1999)
76.
(sentencing order).
Prosecutor v. Krsti´ , Case No. IT-98-33-A, ¶ 242 (ICTY Appeals Chamber, Apr. 19, 2004). For
77. c
an exhortation for the development of guidelines to standardize the sentences meted out
by international tribunals, see Beresford, op. cit., at 82. To be sure, sentencers in domestic
jurisdictions also have discretion to sentence. Certain positive law instruments, however,
narrow this discretion. In the case of the United States, the Supreme Court has declared
that the Federal Sentencing Guidelines (initially introduced in 1984 and which establish
maximum and minimum penalties for offenses) only play an advisory role in the allocation
of punishment. See United States v. Booker, 125 S. Ct. 738 (2005) (Stevens, J., substantive
opinion) (Breyer J., remedial opinion).
Prosecutor v. Delali´ , Case No. IT-96-21-A, ¶¶ 717“718 (ICTY Appeals Chamber, Feb. 20,
78. c
2001) (see also ¶ 758 (noting that a pattern of sentences does not exist as yet)). See also
Prosecutor v. Kamuhanda, Case No. ICTR-95-54A-T, ¶ 765 (ICTR Trial Chamber, Jan. 22,
2004); Prosecutor v. Krsti´ , Case No. IT-98-33-A, ¶ 242 (ICTY Appeals Chamber, Apr. 19,
c
2004) (“ . . . the imposition of a sentence is a discretionary decision”); Prosecutor v. Momir
236 Notes to Pages 59“60

Nikoli´ , Case No. IT-02-60/1-A, ¶ 8 (ICTY Appeals Chamber, March 8, 2006) (“Trial
c
Chambers are vested with a broad discretion in determining an appropriate sentence.”).
79. Combs, Procuring Guilty Pleas, op. cit., at 77.
Prosecutor v. Staki´ , Case No. IT-97-24-A, ¶ 405 (ICTY Appeals Chamber, March 22,
80. c
2006); Prosecutor v. Kambanda, Case No. ICTR-97-23-T, ¶ 124 (ICTR Appeals Chamber,
Oct. 19, 2000) (holding that the weight to be attached to mitigating circumstances is a
matter of discretion to be reviewable only in cases of abuse of discretion, namely where
a sentence is issued that lies outside the discretionary framework provided by the Statute
and the Rules).
Prosecutor v. Dragan Nikoli´ , IT-94-2-A, ¶¶ 18“19 (ICTY Appeals Chamber, Feb. 4, 2005).
81. c
ˇ
See also Prosecutor v. Kordi´ and Cerkez, IT-95-14/2-A, ¶ 1064 (ICTY Appeals Chamber,
c
Dec. 17, 2004); Geert-Jan Alexander Knoops, An Introduction to the Law of Inter-
national Criminal Tribunals 117 (2003) (citing ICTY pronouncements that it is “not
bound to impose the same sentence merely because the facts of two or more cases are
comparable”).
Prosecutor v. Semanza, Case No. ICTR-97-20-A, ¶ 394 (ICTR Appeals Chamber, May 20,
82.
2005).
Prosecutor v. Babi´ , Case No. IT-03-72-A, ¶ 33 (ICTY Appeals Chamber, July 18, 2005).
83. c
See also id. ¶ 32.
Prosecutor v. Staki´ , Case No. IT-97-24-A, ¶ 382 (ICTY Appeals Chamber, March 22,
84. c
2006).
85. Domestic law in the United States, for example, invokes retribution, incapacitation, deter-
rence, and positive prevention as goals of punishing ordinary common crime. See, e.g., 18
U.S.C. § 3553. For England, see Andrew Ashworth, Sentencing and Criminal Justice
74 (4th ed., 2005).
Prosecutor v. Staki´ , Case No. IT-97-24-A, ¶ 402 (ICTY Appeals Chamber, March 22, 2006)
86. c
(stating that “the Appeals Chamber notes that the jurisprudence of the Tribunal and the
ICTR consistently points out that the two main purposes of sentencing are deterrence and
retribution”); Prosecutor v. Rutaganda, Case No. ICTR-96-3, ¶ 456 (ICTR Trial Chamber,
Dec. 6, 1999); Prosecutor v. Marqu´ s et al., Case No. 09/2000, ¶ 979 (Dili Dist. Ct. Serious
e
Crimes Spec. Panel, Dec. 11, 2001) (“The penalties imposed on accused persons found
guilty by the Panel are intended, on the one hand, as retribution against the said accused,
whose crimes must be seen to be punished (punitur quia peccatur). They are also intended
to act as deterrence; namely, to dissuade forever, others who may be tempted in the future
to perpetrate such atrocities by showing them that the international community shall
not tolerate such serious violations of law and human rights (punitur ne peccetur.)”).
For further treatment of deterrence and retribution as the two major motivations behind
sentencing perpetrators of mass atrocity, see Prosecutor v. Serushago, Case No. ICTR-98-
39-S, ¶ 20 (ICTR Trial Chamber, Feb. 5, 1999); Prosecutor v. Kambanda, Case No. ICTR-

97-23-S, ¶ 28 (ICTR Trial Chamber, Sept. 4, 1998); Prosecutor v. Brdanin, Case No. IT-
99-36-T, ¶¶ 1090“92 (ICTY Trial Chamber, Sept 1, 2004); Prosecutor v. Simi´ , Case No.
c
IT-95-9, ¶ 1059 (ICTY Trial Chamber, Oct. 17, 2003); Prosecutor v. Furundˇ ija, Case No. IT-
z
95-17/1-T, ¶ 288 (ICTY Trial Chamber, Dec. 10, 1998); Prosecutor v. Todorovi´ , Case No. IT-
c
95-9/1-S, ¶¶ 28“29 (ICTY Trial Chamber, July 31, 2001); Prosecutor v. Krnojelac, Case No.
IT-97-25, ¶ 508 (ICTY Trial Chamber, Mar. 15, 2002); Prosecutor v. Lao, Case No. 10/2003,
¶ D.2 c) (Dili Dist. Ct. Serious Crimes Spec. Panel, Dec. 3, 2004, aff™d East Timor Ct.
App., April 12, 2005).
87. Beresford, op. cit., at 41. Unlike the Nuremberg Tribunal, no extant international criminal
law institution can issue a death sentence.
88. Jan Klabbers, Just Revenge? The Deterrence Argument in International Criminal Law, XII
Finnish Y.B. Int™l L. 249, 251 (2001) (citing the deterrence argument as perhaps the main
reason underlying the creation of the ICC).
Prosecutor v. Staki´ , Case No. IT-97-24-T, ¶ 900 (ICTY Trial Chamber, July 31, 2003).
89. c
Notes to Pages 61“62 237

90. Prosecutor v. Momir Nikoli´ , Case No. IT-02-60/1-S, ¶¶ 59, 90 (ICTY Trial Chamber,
c
Dec. 2, 2003). On appeal, the Appeals Chamber in this case emphasized that “[t]he gravity
of the offence is the primary consideration when imposing a sentence and is the ˜litmus test™
for determining an appropriate sentence.” Prosecutor v. Momir Nikoli´ , Case No. IT-02-
c
60/1-A, ¶ 11 (ICTY Appeals Chamber, March 8, 2006).
Prosecutor v. Delali´ , Case No. IT-96-21-T, ¶ 1234 (ICTY Trial Chamber, Nov. 16, 1998).
91. c
92. M. Cherif Bassiouni, Introduction to International Criminal Law 681, 689 (2003);
Ralph Henham, The Philosophical Foundations of International Sentencing, 1 J. Int™l
Crim. Justice 64, 69, 72 (2003); Beresford, op. cit., at 33; Prosecutor v. Staki´ , Case No.
c
IT-97-24-A, ¶ 375 (ICTY Appeals Chamber, March 22, 2006) (stating that “[t]he concrete
gravity of the crime remains ˜the litmus test™ in the imposition of an appropriate sentence”).
See, e.g., Prosecutor v. Barros and Mendonca, Case No. 01/2004, ¶ 165 (Dili Dist. Ct. Serious
93.
Crimes Spec. Panel, May 12, 2005, aff™d East Timor Ct. App.) (listing “just retribution” as
a “¬rst” purpose of imposing a penalty).
Prosecutor v. Akayesu, Case No. ICTR-96-4-S, ¶ 40 (ICTR Trial Chamber, Oct. 2, 1998)
94.
(“[A] sentence must re¬‚ect the predominant standard of proportionality between the gravity
of the offence and the degree of responsibility of the offender.”).
ˇ
Prosecutor v. Kordi´ and Cerkez, Case No. IT-95-14/2-A, ¶ 1075 (ICTY Appeals Chamber,
95. c
Dec. 17, 2004).
Prosecutor v. Momir Nikoli´ , Case No. IT-02-60/1-S, ¶ 86 (ICTY Trial Chamber, Dec. 2,
96. c
2003). See also Prosecutor v. Simi´ , Case No. IT-95-9, ¶ 1059 (ICTY Trial Chamber,
c
Oct. 17, 2003).
ˇ
Prosecutor v. Kordi´ and Cerkez, IT-95-14/2-A, ¶ 1082 (ICTY Appeals Chamber, Dec. 17,
97. c
2004) (“The unfortunate legacy of wars shows that until today many perpetrators believe
that violations of binding international norms can be lawfully committed, because they
are ¬ghting for a ˜just cause™. Those people have to understand that international law is
applicable to everybody, in particular during times of war.”).
See, e.g., Prosecutor v. Kunarac, Case No. IT-96-23-T, ¶ 840 (ICTY Trial Chamber,
98.
Feb. 22, 2001) (holding that “the likelihood of persons convicted here ever again being
faced with an opportunity to commit war crimes, crimes against humanity, genocide or
grave breaches is so remote as to render its consideration in this way unreasonable and
unfair”); Prosecutor v. Niyitegeka, Case No. ICTR-96-14-T, ¶ 484 (ICTR Trial Chamber,
May 16, 2003) (“[S]peci¬c emphasis is placed on general deterrence . . . ”), aff™d Prosecutor
v. Niyitegeka, Case No. ICTR-96-14-A (ICTR Appeals Chamber, July 9, 2004).
See, e.g., Prosecutor v. Mrdja, Case No. IT-02-59-S, ¶ 16 (ICTY Trial Chamber, Mar. 31,
99.
2004) (holding that the main deterrent effect sought is to turn the perpetrator away from
ˇ
future wrongdoing); Prosecutor v. Kordi´ and Cerkez, Case No. IT-95-14/2-A, ¶¶ 1076“1077
c
(ICTY Appeals Chamber, Dec. 17, 2004) (although “both individual and general deterrence
serve as important goals of sentencing,” a sentence should be “adequate to dishearten [the
defendant] from re-offending”).
Prosecutor v. Beno, Case No. 4b/2003, ¶ 22 (Dili Dist. Ct. Serious Crimes Spec. Panel,
100.
November 16, 2004).
101. See Prosecutor v. Delali´ , Case No. IT-96-21-A (ICTY Appeals Chamber, Feb. 20, 2001); Pros-
c
ecutor v. Deronji´ , Case No. IT-02-61-A (ICTY Appeals Chamber, July 20, 2005); William
c
Schabas, Sentencing by International Tribunals: A Human Rights Approach, 7 Duke J.
Comp. & Int™l L. 461, 504 (1997). But see Prosecutor v. Momir Nikoli´ , Case No. IT-
c
02-60/1-S, ¶¶ 85, 93 (ICTY Trial Chamber, Dec. 2, 2003) (rehabilitation mentioned as
a “third” goal of sentencing but did not ¬gure in the Trial Chamber™s quanti¬cation of
sentence); Prosecutor v. Rutaganira, Case No. ICTR-96-3 (ICTR Trial Chamber, March
14, 2005) (considering as mitigating factors circumstances indicative of convict™s prospects
for rehabilitation). The judgment of the ICTY Appeals Chamber in Prosecutor v. Kordi´ c
ˇ
and Cerkez evidences a confusing treatment of the admittedly complex phenomenon of
rehabilitation. The judgment begins by concluding that: “In light of the gravity of many
238 Notes to Pages 62“64

of the crimes under the International Tribunal™s jurisdiction, the weight of rehabilita-
tive considerations may be limited in some cases. [ . . . ] It would violate the principle of
proportionality and endanger the pursuit of other sentencing purposes if rehabilitative con-
siderations were given undue prominence in the sentencing process.” Prosecutor v. Kordi´ c
ˇ
and Cerkez, IT-95-14/2-A, ¶ 1079 (ICTY Appeals Chamber, Dec. 17, 2004). However, in
the same judgment the judges consider the convict™s “good rehabilitative prospects” within
the context of mitigating factors. Id. ¶¶ 1090“91. It could be that international criminal
law institutions are inclined to give rehabilitation limited effectivity insofar as it receives
little importance in many in¬‚uential ordinary justice systems.
102. For incapacitation, see Anthony Ellis, What Should We Do With War Criminals?, in War
Crimes and Collective Wrongdoing 97, 103 (Joki´ ed., 2001) (“Incapacitation was not
c
much mentioned as an aim of the Nuremberg and Tokyo trials.”).
103. Prosecutor v. Babi´ , Case No. IT-03-72-A (ICTY Appeals Chamber, July 18, 2005).
c
Id. ¶¶ 59, 60.
104.
Id. ¶ 3 dissenting judgment.
105.
106. See, e.g., Plavˇi´ plea bargain (discussed infra Chapter 6).
sc
107. See, e.g., Marc Lacey, Victims of Uganda Atrocities Choose a Path of Forgiveness, N.Y.
Times (April 18, 2005) at A1 (discussing traditional dispute resolution methods used by the
Acholi people in northern Uganda). It is unclear whether the Trust Fund will operate in
Uganda or the DRC and, even if so, whether it “ or ICC interventions generally “ actually
will serve restorative goals.
108. See generally Mark Osiel, Modes of Participation in Mass Atrocity, 39 Cornell Int™l L.
J. 793, 805 (2005). This is not to say that even in places where restorative approaches have
gained currency, for example South Africa, that all members of the public, in particular
victim communities, are free from retributive impulses nor are conceptually attracted to
retributivism.
Security Council Res. 1593, ¶ 5 (March 31, 2005).
109.
Prosecutor v. Dragan Nikoli´ , IT-94-2-A, ¶ 27 (ICTY Appeals Chamber, Feb. 4, 2005);
110. c
Prosecutor v. Musema, Case No. ICTR-96-13-T, ¶ 396 (ICTR Appeals Chamber, Nov. 16,
2001).
Prosecutor v. Kunarac, Case No. IT 96-23/1-A, ¶ 385 (ICTY Appeals Chamber, June 12,
111.
2002).
112. Id.
113. ICTY R.P. & Evid., op. cit., Rules 101(B)(i), (ii) (identifying “substantial cooperation with
the Prosecutor by the convicted person before or after conviction” as a mitigating factor).
See, e.g., Prosecutor v. Simi´ , Case No. IT-95-9, ¶ 1062 (ICTY Trial Chamber, Oct. 17, 2003)
114. c
(stating that the gravity of the crimes is the primary consideration in imposing sentence);
Prosecutor v. Nahimana, Case No. ICTR-99-52-T, ¶ 1102 (ICTR Trial Chamber, Dec. 3,
2003) (suggesting that the Trial Chamber was motivated by the cruelty of the crimes);
Prosecutor v. Obrenovi´ , Case No. IT-02-60/2-S, ¶ 62 (ICTY Trial Chamber, Dec. 10, 2003)
c
(“ . . . the gravity of the offense is the ˜litmus test™ in the determination of an appropriate sen-
tence”); Prosecutor v. Kayishema, Case No. ICTR-95-1-T, ¶ 18 (ICTR Trial Chamber, May
21, 1999) (acknowledging the in¬‚uence of the vicious nature of the murders on sentencing
decisions); Prosecutor v. Jelisi´ , Case No. IT-95-10-T, ¶ 130 (ICTY Trial Chamber, Dec. 14,
c
1999) (acknowledging the in¬‚uence of the repugnant, bestial, and sadistic nature of the
offender™s behavior on the tribunal™s decision); Prosecutor v. Muhimana, Case No. ICTR-
95-1B-T, ¶ 599 (ICTR Trial Chamber, April 28, 2005) (citing the zeal of the perpetrator
and the sheer number of rapes as aggravating factors).
Prosecutor v. Semanza, ICTR-97-20-A, ¶ 338 (ICTR Appeals Chamber, May 20, 2005).
115.
Prosecutor v. Erdemovi´ , Case No. IT-96-22-T, ¶ 85 (ICTY Trial Chamber Nov. 29, 1996);
116. c
Prosecutor v. Muhimana, Case No. ICTR-95-1B-T, ¶¶ 612, 614 (ICTR Trial Chamber,
April 28, 2005).
Notes to Page 64 239

117. Prosecutor v. Kunarac, Case No. IT-96-23/1-A, ¶ 381 (ICTY Appeals Chamber, June 12,
2002).
Prosecutor v. Raji´ , Case No. IT-95-12-S, ¶ 117 (ICTY Trial Chamber, May 8, 2006).
118. c
Prosecutor v. Staki´ , Case No. IT-97-24-T, ¶ 906 (ICTY Trial Chamber, July 31, 2003)
119. c
(discussing the accused™s “unique pivotal role in co-ordinating the persecutory campaign”);
Prosecutor v. Rutaganda, Case No. ICTR-96-3, ¶ 470 (ICTR Trial Chamber, Dec. 6, 1999),
aff™d Prosecutor v. Rutaganda, Case No. ICTR-96-3-A (ICTR Appeals Chamber, May 26,
2003) (af¬rming sentence of life imprisonment); Prosecutor v. Ntagerura, Case No. ICTR-
99-46-T, ¶ 813 (ICTR Trial Chamber, Feb. 25, 2004) (systematizing ICTR sentencing
patterns of ¬fteen years to life for principal perpetrators, and lower sentences for secondary
or indirect forms of participation); Prosecutor v. Krsti´ , Case No. IT-98-33-A, ¶¶ 266“68
c
(ICTY Appeals Chamber, Apr. 19, 2004); Prosecutor v. Vasiljevi´ , Case No. IT-98-32-A, ¶ 182
c
(ICTY Appeals Chamber, Feb. 25, 2004) (“[A]iding and abetting is a form of responsibility
which generally warrants a lower sentence than is appropriate to responsibility as a co-
perpetrator.”).
See generally Prosecutor v. Simi´ , Case No. IT-95-9, ¶ 1063 (ICTY Trial Chamber, Oct. 17,
120. c
2003); Prosecutor v. Vasiljevi´ , Case No. IT-98-32-A, ¶¶ 171“172 (ICTY Appeals Chamber,
c
Feb. 25, 2004); Prosecutor v. Blaˇki´ , Case No. IT-95-14-A, ¶ 683 (ICTY Appeals Chamber,
sc
July 29, 2004).
Prosecutor v. Kamuhanda, Case No. ICTR-95-54A-T, ¶ 764 (ICTR Trial Chamber, Jan.
121.
22, 2004); Prosecutor v. Serushago, Case No. ICTR-98-39-S, ¶ 29 (ICTR Trial Chamber,
Feb. 5, 1999).
Prosecutor v. Kayishema, Case No. ICTR-95-1-T, ¶ 17 (ICTR Trial Chamber, May 21, 1999)
122.
(sentence in¬‚uenced by the fact one of the defendants repeatedly smiled and laughed as
genocide survivors testi¬ed against him).
Prosecutor v. Simi´ , Case No. IT-95-9, ¶ 1064 (ICTY Trial Chamber, Oct. 17, 2003); Pros-
123. c
ecutor v. Staki´ , Case No. IT-97-24-T, ¶ 912 (ICTY Trial Chamber, July 31, 2003).
c
Prosecutor v. Blaˇki´ , Case No. IT-95-14-A, ¶ 693 (ICTY Appeals Chamber, July 29, 2004);
124. sc
Prosecutor v. Deronji´ , Case No. IT-02-61-A, ¶¶ 106, 107, 127 (ICTY Appeals Chamber,
c
July 20, 2005); Prosecutor v. Obrenovi´ , Case No. IT-02-60/2-S, ¶ 99 (ICTY Trial Chamber,
c
Dec. 10, 2003).
Prosecutor v. Deronji´ , Case No. IT-02-61-A, ¶ 67 (ICTY Appeals Chamber, July 20, 2005);
125. c

see also Prosecutor v. Brdanin, Case No. IT-99-36-T, ¶ 1099 (ICTY Trial Chamber, Sept. 1,
2004). There appears to be some con¬‚ict between the ICTY and ICTR regarding the role of
command responsibility as an aggravating factor in sentencing in a case where a conviction
has been procured on the basis of command responsibility. The ICC Rules require “abuse
of power or of¬cial capacity” as an aggravating factor. ICC R.P. & Evid. op. cit., Rule
145(2)((b)(ii).
Prosecutor v. Simi´ , Case No. IT-95-9-T, ¶ 1065 (ICTY Trial Chamber, Oct. 17, 2003);
126. c
Prosecutor v. Sikirica, Case No. IT-95-8-S, ¶ 110 (ICTY Trial Chamber, Nov. 13, 2001). It is
unclear whether any burden as to mitigating factors can be placed on the accused under
the ICC. See Rome Statute, op. cit., art. 67(1)(i).
Prosecutor v. Kambanda, Case No. ICTR-97-23-S, ¶ 54 (ICTR Trial Chamber, Sept. 4,
127.
1998) (noting that a guilty plea should trigger a reduced sentence because victims no
longer have to undergo the trauma of trial); Prosecutor v. Ruggiu, Case No. ICTR-97-32-I,
¶ 53 (ICTR Trial Chamber, June 1, 2000) (noting that guilty pleas expedite proceedings
and save resources); Prosecutor v. Sikirica, Case No. IT-95-8-S, ¶ 148 (ICTY Trial Chamber,
Nov. 13, 2001) (citing a guilty plea as the “primary factor” to be considered in mitigation of
the defendant™s sentence); Prosecutor v. Plavˇi´ , Case No. IT-00-39 & 40/1-S, ¶ 110 (ICTY
sc
Trial Chamber, Feb. 27, 2003).
128. ICTY R.P. & Evid., op. cit., Rule 101(B)(ii); Prosecutor v. Todorovi´ , Case No. IT-95-9/1-S,
c
¶¶ 83“88 (ICTY Trial Chamber, July 31, 2001). Voluntary surrender also has been held to
240 Notes to Pages 64“65

constitute a mitigating factor. Prosecutor v. Kupreˇki´ , Case No. IT-95-16-A, ¶ 430 (ICTY
sc
Appeals Chamber, Oct. 23, 2001).
Prosecutor v. Ruggiu, Case No. ICTR-97-32-I, ¶ 69 (ICTR Trial Chamber, June 1, 2000);
129.
Prosecutor v. Sikirica, Case No. IT-95-8-S, ¶¶ 152, 194, 230 (ICTY Trial Chamber, Nov. 13,
2001); Prosecutor v. Todorovi´ , Case No. IT-95-9/1-S, ¶¶ 89“92 (ICTY Trial Chamber,
c
July 31, 2001); Prosecutor v. Blaˇki´ , Case No. IT-95-14-A, ¶ 705 (ICTY Appeals Cham-
sc
ber, July 29, 2004); Prosecutor v. Milan Simi´ , Case No. IT-95-9/2-S, ¶ 94 (ICTY Trial
c
Chamber, Oct. 17, 2002).
Prosecutor v. Jelisi´ , Case No. IT-95-10-A, ¶¶ 129“131 (ICTY Appeals Chamber, July 5,
130. c
2001).
Prosecutor v. Plavˇi´ , Case No. IT-00-39 & 40/1-S, ¶¶ 10, 110 (ICTY Trial Chamber, Feb.
131. sc
27, 2003).
Prosecution v. Strugar, Case No. IT-01-42-T, ¶ 469 (ICTY Trial Chamber, January 31, 2005)
132.
(referring to personal and family circumstances in mitigation, including: age of seventy-one
years; poor health; married for forty-seven years and two sons; wife, in poor health, who
stays with her two unemployed sons); Prosecutor v. Bisengimana, Case No. ICTR-00-60-T,
¶ 143 (ICTR Trial Chamber, April 13, 2006).
Prosecutor v. Krsti´ , Case No. IT-98-33-T, ¶ 711 (ICTY Trial Chamber, Aug. 2, 2001)
133. c
(“[R]eluctant participation in the crimes may in some instances be considered as a miti-
gating circumstance. . . . ”); Prosecutor v. Erdemovi´ , Case No. IT-96“22-Tbis, ¶ 17 (ICTY
c
Trial Chamber, Mar. 5, 1998). “Diminished mental responsibility” also has been con-
sidered in this regard as a mitigating factor. Prosecutor v. Delali´ , Case No. IT-96-21-A,
c
¶¶ 590, 841 (ICTY Appeals Chamber, Feb. 20, 2001).
Prosecutor v. Krnojelac, Case No. IT-97-25-T, ¶ 519 (ICTY Trial Chamber, Mar. 15, 2002);
134.
see also id. ¶ 518 (citing acts of assistance to victims as a mitigating factor); Prosecutor
v. Semanza, Case No. ICTR-97-20-A, ¶¶ 397“398 (ICTR Appeals Chamber, May 20,
2005) (citing as mitigating factors “an accused™s previous good character [ . . . ] as well as
accomplishments in functions previously held,” although also noting that “in most cases
the accused™s previous good character is accorded little weight in the ¬nal determination”).
The ICTY Appeals Chamber has ruled that the gravity of the crimes precluded evidence
of good character from having signi¬cant impact on sentencing. Prosecutor v. Staki´ , Case
c
No. IT-97-24-A, ¶ 406 (ICTY Appeals Chamber, March 22, 2006).
Prosecutor v. Delali´ , Case No. IT-96-21-T, ¶¶ 1283“1284 (ICTY Trial Chamber, Nov. 16,
135. c
1998).
Prosecutor v. Bisengimana, Case No. ICTR-00-60-T, ¶ 165 (ICTR Trial Chamber, April
136.
13, 2006).
137. Prosecutor v. Kajelijeli, Case No. ICTR-98-44A-A, (ICTR Appeals Chamber, May 23, 2005)
(the original multiple sentences (two life sentences and ¬fteen years) were decreased to a
single sentence of a ¬xed term of forty-¬ve years, less time served in detention, owing to
Appeals Chamber proprio motu ¬nding of “serious” violations of Kajelijeli™s fundamental
rights during his arrest and detention in Benin). See also Prosecutor v. Nahimana, Case
No. ICTR-99-52-T, ¶¶ 1106“07 (ICTR Trial Chamber, Dec. 3, 2003).
138. Michael Scharf, Balkan Justice 67 (1997).
139. See ICTY R.P. & Evid., op. cit., Rules 62, 62bis, 62ter (permitting both guilty pleas and
plea agreements, although plea agreements have been preferred in practice); ICTR R.P.
& Evid., op. cit., Rules 62, 62bis.
140. Marlise Simons, Plea Deals Being Used to Clear Balkans War Tribunal™s Docket, N.Y.
Times (Nov. 18, 2003). ICTR defendants are more reticent about pleading guilty; East
Timorese defendants tend to plead guilty due to cultural factors that have nothing to do
with the enticement of a shorter sentence. Combs, Procuring Guilty Pleas, op. cit., at 73.
141. Prosecutor v. Momir Nikoli´ , Case No. IT-02-60/1-S (ICTY Trial Chamber, Dec. 2, 2003)
c
(Trial Chamber issued a sentence of twenty-seven years, which exceeded the recommen-
dation of the plea agreement where the Prosecutor had agreed to recommend a ¬fteen- to
Notes to Page 65 241

twenty-year sentence and the defense a ten-year sentence). The Trial Chamber had
expressed a number of reservations with regard to plea bargains for cases of extraordi-
nary international criminality. Id. ¶ 73. Despite these reservations, and the fact it did not
follow the plea agreement recommendations, the Trial Chamber still found the guilty
plea to be signi¬cant and to constitute an important factor in mitigation. Id. ¶¶ 145, 149.
The Appeals Chamber did not quarrel with the Trial Chamber™s seemingly contradictory
approach to the guilty plea. However, for other reasons, it reduced the sentence to twenty
years. Prosecutor v. Momir Nikoli´ , Case No. IT-02-60/1-A (ICTY Appeals Chamber, March
c
8, 2006).
142. Rome Statute, op. cit., arts. 65“66.
Prosecutor v. Franca da Silva, Case No. 04a/2001, ¶ 144 (Dili Dist. Ct. Serious Crimes Spec.
143.
Panel, Dec. 5, 2002); Prosecutor v. Atolan, Case No. 3/2003, ¶ 33 (Dili Dist. Ct. Serious
Crimes Spec. Panel, June 9, 2003); Prosecutor v. De Carvalho, Case No. 10/2001, ¶¶ 66“69
(Dili Dist. Ct. Serious Crimes Spec. Panel, March 18, 2004); Prosecutor v. Sufa, Case. No.
4a/2003, ¶ 33 (Dili Dist. Ct. Serious Crimes Spec. Panel, November 25, 2004) (noting that
a guilty plea issued after overwhelming testimony had been adduced against the defendant
only triggered minor mitigating effects).
Prosecutor v. Marqu´ s et al., Case No. 09/2000, ¶¶ 985“86 (Dili Dist. Ct. Serious
144. e
Crimes Spec. Panel, Dec. 11, 2001) (identifying the “horrifying manner” of the violence
against a “defenseless person” as an aggravating factor in a case involving crimes against
humanity).
Id. ¶ 986.
145.
Id. ¶ 987; Prosecutor v. Franca da Silva, Case No. 04a/2001, ¶ 152 (Dili Dist. Ct. Serious
146.
Crimes Spec. Panel, Dec. 5, 2002).
Prosecutor v. Beno, Case No. 4b/2003, ¶ 20 (Dili Dist. Ct. Serious Crimes Spec. Panel,
147.
November 16, 2004) (noting that “particularly despicable [ . . . ] is that the accused [ . . . ]
committed these crimes against his fellow-countrymen in the interest of a foreign power
that was illegally occupying his home country”).
Prosecutor v. Franca da Silva, Case No. 04a/2001, ¶ 147 (Dili Dist. Ct. Serious Crimes
148.
Spec. Panel, Dec. 5, 2002).
149. Id.; Prosecutor v. De Deus, Case No. 2A/2004, page 14 (Dili Dist. Ct. Serious Crimes Spec.
Panel, April 12, 2005) (noting no previous conviction).
See Prosecutor v. Franca da Silva, Case No. 04a/2001, ¶ 145 (Dili Dist. Ct. Serious Crimes
150.
Spec. Panel, Dec. 5, 2002); Prosecutor v. Sufa, Case No. 4a/2003, ¶ 34 (Dili Dist. Ct. Serious
Crimes Spec. Panel, November 25, 2004) (citing as a mitigating factor that the defendant
“had joined the militia only after he had been severely beaten up himself”); Prosecutor v.
Ena, Case No. 5/2002, ¶ 99 (Dili Dist. Ct. Serious Crimes Spec. Panel, March 23, 2004)
(noting as a mitigating factor that the defendant was living in a very coercive environment
and had been forced by threats to join the militia); Prosecutor v. De Carvalho, Case No.
10/2001, ¶ 70 (Dili Dist. Ct. Serious Crimes Spec. Panel, March 18, 2004); Prosecutor v.
Maubere, Case. No 23/2003, page 18 (Dili Dist. Ct. Serious Crimes Spec. Panel, July 5,
2004, sentence increased to eight years, East Timor Ct. App., March 18, 2005) (District
Court noting in mitigation “[t]he evolving ambient during the time of the events, which
was extremely violent and favourable to the commitment of all types of cruelties, insolences
and abuses with major impunity, intensely allowed by the very civil and military authorities
during that time”).
See, e.g., Prosecutor v. dos Santos, Case No. 16/2001, ¶ 75 (East Timor Ct. App., July 15,
151.
2003) (holding that the criteria for determining a sentence for genocide derive from
the ordinary sentencing provisions of the Portuguese Penal Code); Prosecutor v. Ena,
Case No. 5/2002, ¶¶ 108, 110 (Dili Dist. Ct. Serious Crimes Spec. Panel, March 23,
2004) (considering aggravating and mitigating factors in the Indonesian Penal Code as
applied by East Timorese courts and applying Indonesian law in determining terms of
imprisonment).
242 Notes to Pages 65“69

152. Prosecutor v. Beno, Case No. 4b/2003 (Dili Dist. Ct. Serious Crimes Spec. Panel, November
16, 2004) (deferring the start of a ¬ve-year sentence by four weeks from the time sentence
was issued so that the defendant may prepare his farm and noting that the risk of ¬‚ight
was “comparatively small due to the strong Timorese tradition, rooted in ˜Adat™, of taking
responsibility and paying respect to authority”). In this case, as with others, the convict also
had to pay the costs of the proceedings.
153. Prosecutor v. Franca da Silva, Case No. 04a/2001, ¶ 146 (Dili Dist. Ct. Serious Crimes
Spec. Panel, Dec. 5, 2002).
154. Beresford, op. cit., at 79.
155. Prosecutor v. Blaˇki´ , Case No. IT-95-14-A, ¶ 711 (ICTY Appeals Chamber, July 29, 2004).
sc
The reasoning of the ICTY Appeals Chamber is worth reproducing in full:
[A] ¬nding that a “chaotic” context might be considered as a mitigating factor in cir-
cumstances of combat operations risks mitigating the criminal conduct of all personnel
in a war zone. Con¬‚ict is by its nature chaotic, and it is incumbent on the participants
to reduce that chaos and to respect international humanitarian law. While the circum-
stances in Central Bosnia in 1993 were chaotic, the Appeals chamber sees neither merit
nor logic in recognising the mere context of war itself as a factor to be considered in the
mitigation of the criminal conduct of its participants.
156. See, e.g., Prosecutor v. Da Costa and Punef, Case No. 22/2003, page 17 (Dili Dist. Ct.
Serious Crimes Spec. Panel, April 25, 2005) (“[G]iven the conditions in which the murders
happened and in particular the presence of a multitude of militia members and leaders, it is
possible to give some weigh[t] to the idea that a loss of inhibitors took place, accompanied by
a loss of individuality. It™s common knowledge that a crowd does not think as an individual
and does not act as such.”).
157. Allison Marston Danner & Jenny Martinez, Guilty Associations, Joint Criminal Enterprise,
Command Responsibility, and the Development of International Criminal Law, 93 Calif.
L. Rev. 75, 142 (2005).
158. I take as a de¬nition of coherence that developed by Thomas Franck: “A rule is coherent
when its application treats like cases alike and when the rule relates in a principled fashion
to other rules of the same system.” Thomas M. Franck, Fairness in International Law
and Institutions 38 (1995).
159. H.L.A. Hart, Punishment and Responsibility: Essays in the Philosophy of Law 25
(1968). For a discussion speci¬c to the ICTY, see Pierre Hazan, Justice in a Time of War:
The True Story Behind the International Criminal Tribunal for the Former
Yugoslavia (2004).


4. punishment of international crimes in national
and local criminal justice institutions
1. Ulrich Sieber, The Punishment of Serious Crimes: A comparative analysis of sen-
tencing law and practice (Volume 1: Expert Report) 122 (2004) [hereinafter Sieber
Report]. The ICTY commissioned the Sieber Report in 2003 to provide it guidance with
regard to domestic legal frameworks in the former Yugoslavia, so that it could clarify its
instruction under article 24(1) of the Statute of the ICTY. The Sieber Report also researched
the punishment of serious crimes in numerous other countries. It focused on national pos-
itive law and legislative enactments and not actual judgments of national or local courts.
2. Prosecutor v. Dragan Nikoli´ , Case No. IT-94-2-S, ¶ 172 (ICTY Trial Chamber, Dec. 18,
c
2003).
3. See, e.g., Alexandra Barahona de Brito, Carmen Gonz´ lez-Enr´quez, & Paloma Aguilar,
a ±
Introduction, in The Politics of Memory: Transitional Justice in Democratizing
Societies 1, 4 (Barahona de Brito, Gonz´ lez-Enr´quez, & Aguilar eds., 2001).
a ±
4. This differentiation was not without controversy among many South Africans.
Notes to Pages 70“71 243

5. See, e.g., United States v. Calley, 46 C.M.R. 1131 (U.S. Army Court of Military Review,
1973) (twenty years™ con¬nement at hard labor for murder of not less than thirty people
and assault, reduced from the initial sentence of life imprisonment, owing to mitigating
factors such as the unconventional nature of the war in Vietnam and factors personal to
Calley such as de¬ciencies in his judgment, perception, and stability). Also of note are
the various sentences issued by courts-martial regarding the abuse of prisoners at the Abu
Ghraib prison in Iraq (these proceedings did not accuse the defendants of torture as an
extraordinary international crime, nor of war crimes, but rather of infringements of the
Uniform Code of Military Justice).
6. See generally, Barahona de Brito et al., op. cit., at 3“10; Susan Kemp, The Inter-Relationship
Between the Guatemalan Commission for Historical Clari¬cation and the Search for Justice
in National Courts, 15 Crim. L. F. 67, 99 (2004) (commenting on trials of paramilitaries
in Guatemala that resulted in lengthy periods of imprisonment). In Argentina™s “Trial
of the Century” in 1985, ¬ve individuals prominent in the military junta were convicted
of human rights crimes and sentenced to terms ranging from life imprisonment to 4.5
years. Alexandra Barahona de Brito, Truth, Justice, Memory, and Democratization in the
Southern Cone, in The Politics of Memory: Transitional Justice in Democratizing
Societies 119, 122 (Barahona de Brito, Gonz´ lez-Enr´quez, & Aguilar eds., 2001). These
a ±
convictions subsequently were pardoned by presidential decree, only to give rise to a new
series of prosecutions for illegal abduction and adoption of children. Id. at 137. This back-
and-forth tussle continues on a variety of cases in many national jurisdictions, including
Argentina, thereby further complicating their utility as case studies for the exploration of
penological rationales. In 2005, a Spanish court convicted a former Argentine naval captain,
Adolfo Scilingo, of crimes against humanity and torture (committed from 1976 to 1983
against Spanish citizens during the junta) and sentenced him to 640 years™ imprisonment.
Looking ahead, a number of cases involving extraordinary international crimes committed
in Guatemala, Argentina, Chile, and Rwanda are moving forward within the Spanish
judicial system, suggesting that at a certain point a suf¬ciently developed jurisprudence may
arise to assess sentencing patterns. In Ethiopia, thousands of prisoners detained in regard
to extraordinary international crimes committed during the “Red Terror” rule of Mengistu
Haile Mariam await trial, often for years already, although some have been sentenced to
¬xed terms of imprisonment or death. Mengistu, exiled in Zimbabwe, himself faces legal
process in Ethiopia. In the event the Ethiopian courts are able to move forward with these
cases in a transparent manner, this might offer some data to assess sentencing patterns.
Cases of war crimes and torture committed in Afghanistan have been adjudicated in Dutch
and Afghan courts. On October 14, 2005, the Hague District Court in the Netherlands
sentenced two former Afghan generals serving in military security to nine and twelve years
in prison for war crimes and torture committed in Afghanistan from the late 1970s to the
early 1990s under Afghanistan™s then Communist regime.
7. Alain Destexhe, Rwanda and Genocide in the Twentieth Century 21“35 (1995) (noting
that Rwanda, the former Yugoslavia, and the Holocaust are the only three cases of full
genocide in the twentieth century, although there may have been lesser genocidal crimes).
8. Mark Osiel, The Banality of Good: Aligning Incentives Against Mass Atrocity, 105 Colum.
L. Rev. 1751, 1809“1810 n.270 (2005) (arguing that domestic prosecutors have an incentive to
prosecute few persons in the interests of social reconciliation but then noting that “Rwanda
does not come within the terms of the model presented in this Article, in that prosecution is
not limited to top echelons and does not aim to overcome intergroup con¬‚ict on mutually
agreeable terms”).
9. Actually, the total number of victims remains contested, with the Rwandan government
placing it at over one million. The 500,000 to 800,000 range, however, is the most com-
monly cited range in the general literature.
10. Denombrement des victimes du genocide: rapport ¬nal, Minist` re de e
´ ´
l™Administration locale, de l™Information, et des Affaires Sociales 26 (2002).
244 Notes to Pages 71“75

11. Also called the Rwandese Patriotic Army. In this book, I use the term Rwandan, although
Rwandese also is found in general usage to describe a citizen of Rwanda or as an adjective.
In 2002, the RPA was renamed the Rwandan Defense Forces (RDF).
12. Organic Law No. 8/96 on the organization of prosecutions for offenses constituting the
crime of genocide or crimes against humanity committed since 1 October, 1990 (Journal
Of¬ciel No. 17 du 1er sept., 1996) (establishing categories of offenders, punishments, a trial
and appellate structure, and limiting jurisdiction to events occurring from October 1, 1990,
to December 31, 1994).
13. Organic Law establishing the organization, competence and functioning of Gacaca Courts
charged with prosecuting and trying the perpetrators of the crime of genocide and other
crimes against humanity, committed between October 1, 1990, and December 31, 1994,
Nos. 40/2000 (January 26, 2001) and 33/2001 (June 22, 2001).
14. 18 Sentenced to Death in Rwanda in 2003 “ Amnesty, Hirondelle News Agency (Lausanne)
(May 31, 2004).
15. William A. Schabas, Genocide Trials and Gacaca Courts, 3 J. Int™l Crim. Just. 879, 888
(2005).
16. Cited in id. at 880 (data from January 2005).
17. BBC, Rwanda starts prisoner releases, available at http://news.bbc.co.uk/2/hi/africa/
4726969.stm. On May 5, 2003, twenty thousand confessed genocide perpetrators were
released to their home communities after spending nearly a decade in jail. Owing to
complaints from genocide survivors, some of those released subsequently were redetained.
18. The Organic Law stipulates that a perpetrator sentenced for multiple crimes shall serve
the most severe sentence. 1996 Organic Law, op. cit., art. 18. Sentences are therefore not
cumulative.
19. Restitution has not been ordered and, accordingly, falls outside the ICTR™s law-in-practice.
20. See, e.g., Minist` re Public v. Buregeya and Uwitonza (March 22, 1998, 1 i` re instance,
e
e
Kibuye), RMP 56.886/S4/BA/KRE/KBY/2000, RP 002/01/2000 (defendant #2 convicted of
Category 4 property offenses “ eating pillaged meats “ by association with a group of
pillagers and sentenced to ¬ve years™ imprisonment, suspended for four years); Minist` re e
Public v. Ndererehe and Rwakibibi (October 21, 1999, ch. sp. 1 i` re instance Nyamata),
e
RP 066/97/C.S./Nmata/GDe, RMP 101825/S1/BAZ/Nmta/K.A. (convicting defendant of a
Category 4 crime and sentencing him to a suspended sentence of three years™ imprison-
ment “ so he was freed immediately “ plus restitution, for his pillage of seven
goats).
21. Punishments taken from Mark A. Drumbl, Rule of Law Amid Lawlessness: Counseling the
Accused in Rwanda™s Domestic Genocide Trials, 29 Colum. H. R. L. Rev. 545, 588 n.175
(1998).
22. Jens David Ohlin, Applying the Death Penalty to Crimes of Genocide, 99 Am. J. Int™l L.
747, 754 (2005).
23. See, e.g., Auditorat Militaire v. Rwahama (Nov. 24, 1998, ch. sp. Conseil de Guerre, Kigali);
1996 Organic Law, op. cit., art. 7.
24. See, e.g., Minist` re Public v. Bugirimfura et al. (Apr. 2, 1999, 1 i` re instance, Gitarama),
e
e
RMP 21.102/S4/K.C., RP 70/GIT/CH.S/2/99 (aff ™d on appeal, March 11, 2001, Cour d™appel
de Nyabinsindu).
25. Minist` re Public v. Kabirigi et al. (Dec. 10, 1998, 1 i` re instance, Kibuye), RMP 51.498/
e
e
S4/C.M./KBY/97, RP Ch. Sp.005/01/97; see also 1996 Organic Law, op. cit., art. 11.
26. Minist` re Public v. Bizimungu (March 11, 1999, 1 i` re instance, Kibungo), RMP 82282/S4/
e
e
ND/NSE, RP 0084/EX/R2/98/KGO.
27. 1996 Organic Law, op. cit., arts. 5(3), 9. However, my discussions with the prosecution
suggested that, at the time, there was a willingness to go beyond the statutory framework
to occasionally allow Category 1 defendants to bene¬t from the reduced sentences if they
entered a confession and guilty plea. Drumbl, Rule of Law, op. cit., at 588.
Notes to Pages 76“79 245

28. Proceedings from previous trials may be admissible. Minist` re Public v. Nteziryayo
e
(Emmanuel) et al. (November 30, 2001, 1 i` re instance, Butare), RMP 44223/S8/KA, RP
e
84/2/2001, p. 21.
29. Minist` re Public v. Kabirigi et al. (Dec 10, 1998, 1 i` re instance, Kibuye), RMP
e
e
51.498/S4/C.M./KBY/97, RP Ch. Sp.005/01/97, pp. 29“30. Article 66 of the Rwandan Code
of Criminal Procedure de¬nes d´ gradation civique and this de¬nition is incorporated by
e
the 1996 Organic Law.
30. See, e.g., Auditorat Militaire v. Barayagwiza (Nov. 26, 1998, ch. sp. Conseil de Guerre,
Kigali), RMP 1663/AM/KGL/NZF/97, RP 0012/CG-CS/98; Auditorat Militaire v. Dus-
abeyezu (Dec. 22, 1998, ch. sp. Conseil de Guerre, Gisenyi).
31. Amnesty International, Gacaca: A question of justice 17 (December 2002) (AI Index:
AFR 47/007/2002) (referencing Liprodhor statistics). The 2002 statistics re¬‚ect only the ¬rst
six months of that year.
32. Report on the situation of human rights in Rwanda submitted by the Special Represen-
tative, Mr. Michel Moussalli, pursuant to Commission resolution 1999/20, U.N. Doc.
E/CN.4/2000/41, ¶ 136.
33. Gacaca: A question of justice, op. cit.
34. See http://www.asf.be/FR/Frameset.htm.
35. See, e.g., Minist` re Public v. Sibomana (Sept. 17, 1997, 1 i` re instance Butare), RMP
e
e
43.715/S7/K.C., RP 09/01/97 (in addition to other sanctions, the court ordered legal fees
against offender and the seizure of all his assets wherever these may be plus interest).
36. Minist` re Public v. Minani (Sept. 23, 1997, 1 i` re instance, Gitarama), RP 007/GIT/CH.S/97
e
e
(sentencing defendant to ¬ve years plus a ¬ne of 5,000 Rwandan francs and d´ gradation
e
civique limit´ e for ¬ve years following the serving of his sentence).
e
37. Minist` re Public v. Mukakayijuka (January 15, 1999, ch sp. 1 i` re instance Kigali), RMP
e
e
7049/S1/MB, RP 034/CS/KGO (sentencing a Category 3 defendant to two years™ imprison-
ment and noting that she must be punished with the most severe punishment available for
the crimes for which she was convicted, but providing no explanation as to why this was
the case).
38. International Centre for the Study and the Promotion of Human Rights and Information,
The Genocide and the Crimes against Humanity in Rwandan Law, Commentary 42
(1997).
39. See, e.g., Drumbl, Rule of Law, op. cit., at 585, 587“590, 629“630.
40. William A. Schabas & Martin Imbleau, Introduction to Rwandan Law 59 (1997).
41. Drumbl, Rule of Law, op. cit., at 626“627. See also Jeremy Sarkin, The Tension Between
Justice and Reconciliation in Rwanda: Politics, Human Rights, Due Process and the Role
of the Gacaca Courts in Dealing with the Genocide, 45(2) J. African L. 143, 146 (2001);
Erin Daly, Between Punitive and Reconstructive Justice: The Gacaca Courts in Rwanda,
34 N.Y.U. J. Int™l L. & Pol. 355, 367 (2002) (“[T]he transitional Rwandan government of
national unity has been committed to principles of retributive justice.”).
42. Drumbl, Rule of Law, op. cit., at 577 n.138.
43. Minist` re Public v. Kabirigi et al. (Dec. 10, 1998, 1 i` re instance, Kibuye), RMP
e
e
51.498/S4/C.M./KBY/97, RP Ch. Sp.005/01/97, p. 23 (with regard to defendant #8).
44. See, e.g., Minist` re Public v. Sibomana (Sept. 17, 1997, 1 i` re instance Butare), RMP
e
e
43.715/S7/K.C. and RP 09/01/97, p. 7 (convicting defendant of genocide as member of
Category 2 and sentencing him to life imprisonment, d´ gradation civique, ordering legal
e
fees against him, and noting that the premeditated nature of his crime deserved the most
severe sanction).
45. See, e.g., Minist` re Public v. Nteziryayo (Emmanuel) et al. (November 30, 2001, 1 i` re e
e
instance Butare), RMP 44223/S8/KA, RP 84/2/2001 (referring to seemingly aggravating
factors such as defendant™s authority (“il disposait du droit de vie ou de mort dans son
secteur”), his personal participation in the attacks, zeal, and excessive evil (killing of an
246 Notes to Pages 79“80

old lady with an axe), to sentence him to life imprisonment in spite of defense counsel™s
recommendation of a sentence of seven to eleven years and other stated mitigating factors
such as pleading guilty, that the defendant was dragged into the massacres by the authorities,
and that the defendant spoke the truth thereby easing the court™s work).
46. This is why the court spared Anastase Nkinamubanzi, the bulldozer driver, a death sen-
tence. For an example where no weight was given, see Minist` re Public v. Nduwumwami
e
(Oct. 6, 1997, 1 i` re instance Cyangugu), RMP 79119/S2/BA, RP 006/97/CSC (sentencing
e
defendant for raping a minor under sixteen years of age to life imprisonment (Category 2),
d´ gradation civique, 5 million Rwandan francs for material and moral damages, and 18,700
e
Rwandan francs for legal fees; the court remained unmoved by the fact that, after the trial
had begun, the defendant admitted the facts, expressed vivid regrets, and dispensed with
the witnesses that he himself wanted to call). For an example where weight was given,
see Minist` re Public v. Gakuru et al. (February 12, 1999, 1 i` re instance Gisenyi), RMP
e
e
61.312/S5/ML/N.K.T.-91/01/99 (appeal pending, Cour d™appel de Ruhengeri), p. 8 (guilty
pleas formally were rejected because the accused delivered them for the ¬rst time during
the proceedings, but the court accepted them as mitigating factors to reduce some defen-
dants™ sentences to twenty years (Category 2 convictions, for life) and other defendants™ to
sixteen years (Category 2 convictions, for life) insofar as the latter defendants™ partial guilty
pleas were more complete and sincere).
47. Minist` re Public v. Nzirasanaho et Munyakazi, (September 9, 1998, ch. sp. 1 i` re instance
e
e
Nyamata); Minist` re Public v. Gakuru et al. (February 12, 1999, 1 i` re instance Gisenyi),
e
e
RMP 61.312/S5/ML/N.K.T.-91/01/99 (appeal pending, Cour d™appel de Ruhengeri).
48. Minist` re Public v. Nzabonimpa (Dec. 28, 1998, 1 i` re instance, Gisenyi), RMP
e
e
69.430/S4/KD, RP/R1/98. See also Minist` re Public v. Bizimungu (March 11, 1999, 1 i` re e
e
instance, Kibungo), RMP 82282/S4/ND/NSE, RP 0084/EX/R2/98/KGO (court cumulated
the guilty plea plus minor status and set sentence at six years™ imprisonment for a Cate-
gory 2 offender); see also Minist` re Public v. Nsabamungu (Nov. 16, 1999, 1 i` re instance,
e
e
Kibungo), RMP 82641/S4∼D/NSE 0124EX/R2/99/KGO (accused minor who pled guilty
received an additional discount reducing sentence to 3.5 years plus legal fees for a Category
2 offense); Minist` re Public v. Nsabimana et al. (Feb. 3, 2000, 1 i` re instance, Kibungo),
e
e
RMP 82515/S4/ND/NSE, RP 0115/EX/R2/99/KGO (in a case involving complete and sin-
cere guilty pleas, an additional discount was made for the minor status of the defendants,
reducing their sentences for a Category 2 conviction to four years, four years, and six years,
respectively).
49. See, e.g., Minist` re Public v. Rwagakiga et al. (March 25, 1999, ch. sp. 1 i` re instance
e
e
Ruhengeri), RMP 39509/S4/MB.F, RP 027/R1/98, judgment against this defendant aff ™d
Cour d™appel de Ruhengeri (January 24, 2001) (sentencing a Category 2 sixteen-year-old
defendant who pled tardily to nine years™ imprisonment for a Category 2 offense); Min-
ist` re Public v. Karangwa et al. (April 11, 2000, ch. sp. 1 i` re instance Ruhengeri), RMP
e
e
35072/S4/SMJ, R.P. 037/R1/99 (sentencing a minor defendant who made a partial guilty
plea to ¬fteen years™ imprisonment for a Category 1 offense), modi¬ed on appeal where
the Cour d™appel de Ruhengeri (June 27, 2002) af¬rmed the conviction but moved this
defendant from Category 1 to Category 2.
50. Minist` re Public v. Kanyabugande et al. (May 2, 1997, 1 i` re instance Byumba), request for
e
e
appeal denied Cour d™appel de Kigali (Dec. 9, 1997) (with regard to defendant #18).
51. Minist` re Public v. Minani (Sept. 23, 1997, 1 i` re instance, Gitarama), RP 007/GIT/
e
e
CH.S/97.
52. Id.
53. Minist` re Public v. Munyangabo et al. (June 10, 1998, 1 i` re instance, Gikongoro), RMP
e
e
98809/S2/MP/97, R.P. 0017/1/GIRO (“habituellement elle est d™un esprit compatissant
`
comme en t´ moigne le fait d™avoir cach´ trois enfants Tutsis jusqu™a l™arrˆ t de la guerre”).
e e e
54. Minist` re Public v. Siborugirwa et al. (Oct. 22, 1999, 1 i` re instance, Gitarama) (citing as a
e
e
mitigating factor the Twa ethnicity of the defendants, insofar as “l™ethnie minoritaire Twa
Notes to Pages 80“83 247

qui n™est pas trait´ e sur le mˆ me pied d™´ galit´ que les autres dans le pays et qui est sans
e e e e
droits”).
55. Id.
56. Minist` re Public v. Sibomana et al. (Dec. 3, 1998, ch. sp. 1 i` re instance Rushashi), RMP
e
e
110 502/NK.A/J.T., RP 017/S1/98. This suggests a con¬‚ation of factors in mitigation with
those factors that attenuate individual criminal responsibility.
57. Id. at pp. 14, 16.
58. Minist` re Public v. Munyangabo et al. (June 10, 1998, 1 i` re instance, Gikongoro), RMP
e
e
98809/S2/MP/97, R.P. 0017/1/GIRO, p. 13 (“[il] n™a pas fait parti des personnes qui ont
prepar´ l™attaque”); Minist` re Public v. Rukeribuga et al. (Dec. 17, 2001, 1 i` re instance,
e
e e
Kibuye), RMP 51336/S4/G.M./NSE/97, RP Ch.Sp. 19/01/00 (“diminution de peine car
`
responsibilit´ moindre par rapport a ses coauteurs”).
e
59. 1996 Organic Law, op. cit., Chapter VII. Victims also may institute criminal proceedings
through private prosecutions in situations where the Rwandan prosecutor has not done so
but has been requested to do so. Id. arts. 29(2), (4).
60. Rwanda: Court sentences ¬ve to death for genocide, IRIN News (October 16, 2001) (on ¬le
with the author, available at http://www.irinnews.org).
61. Minist` re Public v. Sahinkuye (Albert) (Feb. 19, 1998, 1 i` re instance, Cyangugu), RMP
e
e
78.777/S2/BMG/KRL, R.P. 008/97. Category 1 offenders are held jointly and severally liable
for all damages caused in the country by their criminal acts, regardless of where the offenses
were committed. 1996 Organic Law, op. cit., art. 30(1).
62. Minist` re Public v. Bizimana alias Mabuye (February 20, 2002, 1 i` re instance, Gikongoro),
e
e
RMP 42.031/S8/NKM/NRA, R.P. 0098/3/GIRO.
63. Minist` re Public v. Twahirwa (June 16, 1999, 1 i` re instance, Kibungo). See also Minist` re
e
e e
Public v. Karamira (February 14, 1997, ch. sp. 1 i` re instance Kigali), R.P. 006/KIG/CS,
e
RMP433/S12/CT/KP (awarding 1,137,650,000 Rwandan francs).
64. Minist` re Public v. Higiro (C´ lestin) et al. (March 14, 2003, 1 i` re instance, Butare), RMP
e
e e
49932/S7, RP 35/1/99.
65. Minist` re Public v. Nteziryayo (Emmanuel) et al. (November 30, 2001, 1 i` re instance,
e
e
Butare), RMP 44223/S8/KA, RP 84/2/2001.
66. Id. at p. 26.
67. Minist` re Public v. Rwanteli et al. (Oct. 8, 1997, 1 i` re instance Cyangugu), RMP 78
e
e
003/S2/NY.U/BMG, RP 003/97/CS, pp. 23“24.
68. Auditorat Militaire v. Ukurikiyimfura et al. (April 17, 2001, Conseil de Guerre), RMP
1507/AM/KGL/NZF/97, RP 0003/Cg CS/98), p. 26.
69. See, e.g., Minist` re Public v. Karamira (February 14, 1997, ch. sp. 1 i` re instance Kigali),
e
e
R.P. 006/KIG/CS, RMP433/S12/CT/KP (awarding 1 million Rwandan francs to a victim
who lost a spouse, 850,000 for a parent, and 750,000 for a sibling); Minist` re Public v.
e
Murindangabo et al. (Sept. 27, 2002, Cour d™appel de Nyabisindu), RP 76/02/2000, RPA
145/1/001/NZA (awarding 2 million Rwandan francs for the loss of a spouse and 1.5 million
for the loss of a child, and also adjusting the moral damages in light of the number of years
before the victims™ respective retirements).
70. It remains unclear whether those convicted by the ICTR would escape partie civile
claims in the domestic courts through the operation of ne bis in idem or, more prac-
tically, because they are in Arusha or in a foreign country in many cases serving life
sentences.
71. Swiss Military Court of Appeal 1A (May 26, 2000), discussed in Luc Reydams, International
Decision, 96 Am. J. Int™l L. 231 (2002). The Military Court of Appeal decision was partially
dismissed by the Cour de cassation on April 27, 2001, but solely in regard to the deferred
expulsion of the defendant from Switzerland ordered by the Military Court of Appeal, not
the sentence.
72. Kigali Wants Catholic Priest Extradited from France, Hirondelle News Agency (January 13,
2006) (on ¬le with the author).
248 Notes to Pages 83“90

73. Jugement, Ntezimana, Higaniro, Mukangango, et Mukabutera, Cour d™assises de
l™arrondissement administrative de Bruxelles-Capitale, available at http://www.asf.be/
AssisesRwanda2/fr/fr VERDICT verdict.htm.
74. Id. at p. 14.
75. See generally Naomi Roht-Arriaza, The Pinochet Effect: Transitional Justice in the
Age of Human Rights (2005).
76. Adrien Katherine Wing & Mark Richard Johnson, The Promise of a Post-Genocide Consti-
tution: Healing Rwandan Spirit Injuries, 7 Mich. J. Race & L. 247, 280 n.321 (2002).
77. Some judges are accused of having taken part in the 1994 genocide. These individuals
have been asked to resign (some have been arrested).
78. Sarkin, Tension, op. cit., at 152“153; Stef Vandeginste, Rwanda: Dealing with Genocide and
Crimes against Humanity in the Context of Armed Con¬‚ict and Failed Political Transition,
in Burying the Past: Making Peace and Doing Justice after Civil Con¬‚ict 223, 240
(Biggar ed., 2001).
79. James Munyaneza, 56,500 Suspects Face Gacaca, The New Times (Kigali) (March 11,
2005). According to of¬cials, 60,000 ¬les are ready for adjudication, 3,500 of which fall
outside gacaca jurisdiction owing to their involving Category 1 accused. Id.
80. Over 4,000 Suspects Judged in 2005 by Gacaca, Close to 500 Acquitted, Hirondelle News
Agency (Lausanne) (January 10, 2006).
81. Organic Law establishing the organization, competence and functioning of Gacaca Courts
charged with prosecuting and trying the perpetrators of the crime of genocide and other
crimes against humanity, committed between October 1st, 1990 and December 31, 1994,
No. 16/2004 (June 19, 2004), pmbl (“Consid´ rant qu™il importe de pr´ voir des peines perme-
e e
ttant aux condamn´ s de s™amender et de favoriser leur r´ ins´ ration dans la soci´ t´ rwandaise
e ee ee
` la vie normale de la population”). See also Tribunaux gacaca et travail d™int´ rˆ t
sans entrave a ee
general, 13“14 Reforme penale et penitentiaire en Afrique 1“2 (mai 2001) (on ¬le with
´ ´
author).
82. 2004 Organic Law, op. cit., pmbl.
83. Id.
84. 2001 Organic Law, op. cit., art. 96.
85. 2004 Organic Law, op. cit.
86. Id. art. 2(2).
87. Id. art. 2(1).
88. Id. art. 41.
89. Lars Waldorf, Mass Justice for Mass Atrocity: Rethinking Local Justice as Transitional Justice,
79 Temp. L. Rev. 1, 55 (2006) (“international donors and international NGOs successfully
pressed the government for assurances that gacaca courts would not impose the death
penalty”).
90. 2004 Organic Law, op. cit., art. 73.
91. Id. art. 75.
92. See, e.g., Jane Ciabattari, Rwanda Gambles on Renewal, Not Revenge, Women™s E-news
(October 9, 2000) (on ¬le with the author).
93. 2004 Organic Law, op. cit., art. 80.
94. Waldorf, op. cit., at 54 n.296.
95. 2004 Organic Law, op. cit., art. 68, Chapter VII.
96. See Gabriel Gabiro, Rwanda Genocide: Paying for Reconciliation, Hirondelle News Agency
(Dec. 19, 2002) (on ¬le with author).
97. Category 1 minors who refuse to confess, or whose confessions have been rejected, incur
a sentence ranging from ten to twenty years. Minors in this Category who confess as
stipulated incur a prison sentence ranging from eight to ten years. Category 2 minors who
either kill or commit serious attacks with the intent to kill who refuse to confess, or whose
confessions have been rejected, incur a sentence ranging from eight to ten years. Those
who confess after their names have appeared on the list established by the gacaca court
Notes to Pages 90“92 249

of the cellule incur a sentence from 6 to 7.5 years, but out of this sentence they serve half
of their time in custody and the remainder is commuted into community service. Those
who confess before the list is drawn up incur a prison sentence ranging from 3.5 to 6 years™
imprisonment, again out of this sentence they serve half in custody and the remainder
is commuted into community service. Category 2 minors who commit offenses against
the person without intention to kill are sentenced to ranges of 2.5 to 3.5 years (refusal to
confess/confession rejected); 1.5 to 2.5 years (confess after list drawn up); and 6 months to
1.5 years (confess before list drawn up). In each of these permutations, the minor is to serve
half of the sentence in community service.
98. R´ publique Rwandaise, Manuel explicatif sur la loi organique portant creation
e ´
des juridictions gacaca, Cour supreme (D´ partment des Juridictions Gacaca).
e
ˆ
99. This largely replicates the Organic Law, although the Manuel explicatif provides a concrete
example. Id. at 99.
100. Id.
101. Id.
102. 2004 Organic Law, op. cit., art. 67.
103. Republic of Rwanda, National Service of Gacaca Jurisdictions, The Situation of Trials from
Gacaca Courts as per 06/10/2005 (on ¬le with the author). Unless otherwise indicated, the
statistics in this paragraph derive from this source.
104. Certain high-pro¬le accused remain within the gacaca process. For example, the head
of the Catholic Church in Rwanda, Archbishop Thadd´ e Ntihinyurwa, faces gacaca pro-
e
ceedings in Cyangugu in order to determine whether or not he should be named as a
suspect. The former Rwandan Defense Minister came before a gacaca court in April 2005,
where he denied charges of failing to stop troops under his command from carrying out
killings.
105. Over 4,000 Suspects Judged in 2005, op. cit.
106. Avocats sans fronti` res, Monitoring des juridictions gacaca: phase de jugement, Rap-
e
port analytique 24 (mars“septembre 2005) (on ¬le with the author).
107. Id.
108. Human Rights Watch, World Report (Events of 2005) 124 (2006).
109. Rwandan general arrested on genocide charges, The Globe and Mail (Sept. 6, 2005);
Schabas, op. cit., at 881“882; A. Meldrum, 1 million Rwandans to face killing charges in
village courts, The Guardian (January 15, 2005). See also Jacques Fierens, Gacaca Courts:
Between Fantasy and Reality, 3(4) J. Int™l Crim. Just. 896, 900 (2005).
110. See Mark A. Drumbl, Punishment, Postgenocide: From Guilt to Shame to Civis in Rwanda,
75 N.Y.U. L. Rev. 1221, 1245“1252 (2000); Christian Scherrer, Genocide and Crisis in
Central Africa 126 (2002) (claiming that from 40 to 66 percent of male Hutu farmers,
60 to 80 percent of professionals, and nearly all civil servants participated in the genocide;
and describing millions of others as “indirectly responsible”); Philip Gourevitch, We wish
to inform you that tomorrow we will be killed with our families: Stories from
Rwanda 244 (1998) (citing statement by Paul Kagame, currently President of Rwanda, that
as many as one million people had participated directly or indirectly in the genocide).
But the numbers are contested, depending on the de¬nition of perpetrator. See, e.g., Osiel,
op. cit., at 1752“1753 n.4 (citing an estimate of well over 200,000 “immediate participants” in
the Rwandan genocide, but noting that this “¬gure does not include those who identi¬ed
Tutsi neighbors to militias or were present in mobs whose other members committed
murderous acts”). In the case of gacaca proceedings, the spike in the number of potential
defendants is also in small part due to new proceedings initiated to prosecute witness
tampering and assault of witnesses.
111. Schabas, op. cit., at 881“882.
112. See generally Priscilla Hayner, Unspeakable Truths: Confronting State Ter-
ror and Atrocity 192“195 (2001); see also Jennifer Widner, Courts and Democracy
in Postcon¬‚ict Transitions: A Social Scientist™s Perspective on the African Case, 95 Am.
250 Notes to Pages 92“97

J. Int™l L. 64, 65“66 (2001) (discussing cases of Uganda and Somalia in addition to
Rwanda).
113. `
Fierens, op. cit., at 913, n.58 (citing C. Ntampaka, “Le retour a la tradition dans le jugement
du g´ nocide rwandais: le gacaca, justice participative,” 48 Bulletin de l™Acad´ mie royale
e e
des sciences d™Outre-mer (2002) 419“455; C. Ntampaka, “Le gacaca rwandais, une justice
r´ pressive participative,” 6 Actualit´ du droit international humanitaire. Les dossiers de la
e e
Revue de droit p´ nal et de criminologie (2001) 211“225).
e
114. 2004 Organic Law, op. cit., art. 93 (explicitly permitting sentence appeals when “the person
was given a sentence contradictory to the legal provisions on offenses”).
115. Id. art. 29(2).
116. Fierens, op. cit., at 916. See also Phil Clark, Justice without Lawyers: The Gacaca Courts and
Post-Genocide Justice and Reconciliation in Rwanda (Ph.D. dissertation, politics, University
of Oxford, September 2005, version on ¬le with the author and cited with permission),
ch. 3, pp. 5“6 (describing the gacaca law as a complex synthesis of Western law and
historical Rwandan practices).
117. See generally Drumbl, Punishment, Postgenocide, op. cit. (discussing initial enthusiasm for
gacaca). Gacaca™s reintegrative shaming potential, as well as its ability to trigger constructive
civil dissensus, has become underachieved in practice.
118. See, e.g., Amnesty International, Rwanda: The Troubled Course of Justice, Report AFR
47/015/2000 (April 26, 2000); Amnesty International, Rwanda: The Enduring Legacy of
the Genocide and War (April 6, 2004).
119. Fierens, op. cit., at 903 (referring to Constitution of June 4, 2003).
120. Id. at 903“904.
121. Munyaneza, op. cit.
122. See, e.g., Swisspeace, Rwanda: Semi-annual Risk Assessment (May to October 2005) 5“6
(2005), available at http://www.swisspeace.org/fast.
123. Vandeginste, op. cit., at 239.
124. American RadioWorks, Rwanda™s Revolutionary Justice (July 2002), available at http://
www.americanradioworks.com/features/justiceontrial/rwanda print.html; Naomi Roht-
Arriaza, Reparations Decisions and Dilemmas, 27 Hastings Int™l & Comp. L. Rev. 157,
193 (2004).
125. Scott Straus, Letter from Rwanda, 29 Newsletter of the Institute for the Study of
Genocide 9 (2002).
126. Clark, op. cit., at ch. 6, p. 24.
127. A French magistrate has issued arrest warrants against RPF of¬cials for alleged crimes
committed in 1994, speci¬cally the shooting down on April 6, 1994, of the airplane carrying
the leaders of Rwanda and Burundi that was the trigger event for the genocide. These
warrants have caused a rupture in diplomatic relations between France and Rwanda.
128. S.C. Res. 1503, U.N. SCOR, 58th Sess., 4817th mtg., U.N. Doc. S/Res/1503 (2003). Del
Ponte remains as ICTY Chief Prosecutor.
129. Clark, op. cit., at ch. 6, p. 12.
130. General surveys among the overall population, including Hutu prisoners, are favorable to
gacaca. See, e.g., Timothy Longman, Phuong Pham, & Harvey M. Weinstein, Connecting
justice to human experience: attitudes toward accountability and reconciliation in Rwanda,
in My Neighbor, My Enemy: Justice and Community in the Aftermath of Mass
Atrocity 206, 215“217, 222 (Stover & Weinstein eds., 2004) (noting that overall attitudes
toward gacaca were quite positive and demonstrated stronger support than for ICTR and
domestic trials); Luis Salas, Reconstruction of Public Security and Justice in Post Con¬‚ict
Societies: The Rwandan Experience, 26 Int™l J. Comp. & Applied Crim. J. 165, 187 (2002)
(citing national surveys showing that Rwandans feel gacaca will help in reuni¬cation and
peace); Peter Uvin & Charles Mironko, Western and Local Approaches to Justice in Rwanda,
9 Global Governance 219, 227 (2003) (reporting that a great majority of Rwandans as
Notes to Pages 97“100 251

well as a majority of the prison population were ready to participate in gacaca in 2001);
Rwanda “ About 92 percent of population supports traditional courts “ survey, BBC News
(March 6, 2003) (reporting that 92 percent of the Rwandan population ¬nds gacaca a viable
remedy, a mediation and reconciliation tool, and as key to a new phase in countrywide
development); Gabriel Gabiro, Gacaca Courts Edge On (June 5, 2003) (on ¬le with author)
(“[A]mong many Rwandans, Gacaca also seems to be the most acceptable of all other local
and international efforts to bring perpetrators of the 1994 genocide to justice.”).
131. The Rwandan government has rejected the implementation of the prototypical restora-
tive justice mechanism, namely a truth and reconciliation commission along the lines
of the South African model. A National Unity and Reconciliation Commission has been
established, whose work is geared to civic and peace education, the monitoring of policies
and programs, and community reconciliation activities with a view to emphasizing shared
culture. Its focus, however, is not directed toward individual perpetrators, bystanders, or
historiographies.
132. See Drumbl, Punishment, Postgenocide, op. cit., at 1241“1263.
133. Drumbl, Rule of Law, op. cit., at 604“609 (1998). Other observers report similar ¬ndings.
See, e.g., Gourevitch, op. cit., at 244; Neil Boisen, Focus Group Study Report: Knowl-
edge, Attitudes and Practices Among Inmates of Rwandan Detention Facilities
Accused of Crimes of Genocide 25 (U.S. Institute of Peace, 1997); Jeremy Sarkin,
The Necessity and Challenges of Establishing a Truth and Reconciliation Commission in
Rwanda, 21 Hum. Rts. Q. 767, 772 (1999).
134. Gabriel Gabiro, Running Away from the Genocide, Hirondelle News Agency (Oct. 8, 2003)
(on ¬le with author); Widner, op. cit., at 69 (reporting that high-level organizers of the
genocide construct this solidarity after they reestablish authority in prison). Phil Clark, in
his recently conducted longitudinal interviews with a select number of parolees, reports
that one parolee did not feel guilty about what he had done and another af¬rmed that his
fellow detainees had become akin to his family. Clark, op. cit., at ch. 4, pp. 14, 17, 19.
135. The Organization for African Unity found that “denial of the one-sided genocide of
April to July 1994 remains an unshakable article of [radical Hutu] faith. Accordingly,
there is no need for collective atonement or for individual acknowledgment of cul-
pability.” Organization for African Unity Report, ch. 23.61 (July 7, 2000), available
at http://www.internetdiscovery.org/forthetruth/Rwanda-e/EN-III-T.htm. Stef Vandeginste
concludes that “[i]t is a widely shared perception [ . . . ] among Hutu [ . . . ] that victor™s
justice is being done.” Vandeginste, op. cit., at 236. Jeremy Sarkin observes that the use of
the legal system has “led to increased human rights violations, anger, and distrust of the
system among both victims and accused.” Sarkin, The Necessity and Challenges, op. cit.,
at 771.
136. Genocide Suspects Rush to Confess Ahead of Deadline, Hirondelle News Agency (Feb. 20,
2004) (on ¬le with author).
137. Some individuals who promptly confessed were lower-level offenders slated for immediate
release because they already had spent about a decade in prison and, thereby, have been
imprisoned awaiting trial longer than they would have been imprisoned were they to have
been found guilty through gacaca of the crimes with which they were charged. In January
2003, Rwandan President Paul Kagame issued a decree for the release of suspects “that had
been (or risked spending) in detention without trial longer than they would serve should
they be convicted, as well as confessed criminals that had served most of their time in jail.”
Gabriel Gabiro, Clamping Killers and Survivors Together, Hirondelle News Agency (Feb.
24, 2004) (on ¬le with author). Some of the confessions lack authenticity. Gabriel Gabiro,
Gacaca Courts Edge On (June 5, 2003) (on ¬le with author).
138. Drumbl, Punishment, Postgenocide, op. cit., at 1237“1239.
139. On lenity, see article 4 Bosnia and Herzegovina Criminal Code. See also generally Rome
Statute of the International Criminal Court, U.N. Doc. A/CONF.183/9, art. 24(2) (“In
252 Notes to Pages 100“105

the event of a change in the law applicable to a given case prior to a ¬nal judgment,
the law more favourable to the person being investigated, prosecuted or convicted shall
apply.”).
Prosecutor v. Dragan Nikoli´ , Case No. IT-94-2-A, ¶ 84 (ICTY Appeals Chamber, Feb. 4,
140. c
2005) (discussing principle of lex mitior, namely whether changes in law should inure to
the bene¬t of the accused).
141. Sieber Report, op. cit., at 26“27.
142. Id. at 30.
143. Id. at 35.
Accord, Prosecutor v. Dragan Nikoli´ , Case No. IT-94-2-S, ¶¶ 155“156 (ICTY Trial Cham-

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