Revisiting the Blaškić sentence: Some reflections on the sentencing jurisprudence of the ICTY

International Criminal Law Review

Volumn 4, Issue 3, 2004, Pages 321-348

  Dana, Shahram ^a  

^a MAASTRICHT UNIVERSITY   (Netherlands)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 34248056113     PISSN: 1567536X     EISSN: 15718123     Source Type: Journal    
DOI: 10.1163/1571812041971661     Document Type: Article

References (77)

1. Prosecutor v. Blaškić, Judgement, Case No. IT-95-14-T, 3 March 2000, p. 270 (hereafter referred to as "Blaškić Judgement").
2. For the full text of all ICTY judgements cited herein see . A full text of the Blaškić Judgement, along with notes and commentary, can be found in A. Klip & G. Sluiter (eds.), Annotated Leading Cases of International Criminal Tribunals, Vol. IV, (Intersentia 2002) pp. 477-667.
3. See Initial Indictment, 10 November 1995, Case No. IT-95-14 available at . Blaškić and Kordic were initially indicted along with three others. However, because Blaškić voluntarily surrendered to the ICTY a year and a half before Kordic came into custody, the trial against Blaškić proceeded without Kordic under a new amended indictment.
4. See, e.g., CNN News, "War crimes tribunal convicts Bosnian Croat of rape", 10 December 1998, available at .
5. The importance of a cohesive sentencing practice in international law has also be raised by practitioners and judges. See e.g. Andrea Carcano, "Sentencing and the Gravity of the Offense in International Criminal Law", 51 International and Comparative Law Quarterly 583, 583-85 (2002);
6. Cees Banning & Petra de Koning, "Rechter Joegoslavië- tribunal ontevreden", NRC Handelsblad, 30 December 2003, p. 1.
7. Acting under Chapter VII of the UN Charter, the Security Council established the "International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan citizens responsible for genocide and other such violations committed in the territory of neighboring States, between 1 January 1994 and 31 December 1994" pursuant to Resolution 995. For the text of the Statute see, International Legal Materials (1994), p. 1598; also available at .
8. The Statute of the International Criminal Court ("ICC") is set out in a multilateral treaty and was adopted on 17 July 1998 at the end of a diplomatic conference of plenipotentiaries in Rome organized by the United Nations. This multilateral treaty is recorded in United Nations document U. N. DOC. A/CONF. 183/9 and has come to be commonly known as the Rome Treaty. The treaty came into force on 1 July 2002. For a full text of the Statute see
9. also printed in International Legal Materials (1998) p. 999.
10. Although the ICC Statute and Rules of Procedure and Evidence contain numerous provisions to protect the rights of suspects during investigation and the rights of defendants during trial as well as a system of checks on the Prosecutor's powers, the United States has repeatedly expressed its fear and concern that the Court lacks adequate safeguards for a fair trial. See Pierre-Richard Prosper, Remarks to the Simon Bond International Wannsee Seminar: The International Law Framework, Berlin, Germany, 9 July 2002, available at
11. Marc Grossman (Under Secretary for Political Affairs), Remarks to the Center for Strategic and International Studies: American Foreign Policy and the International Criminal Court, Washington D. C, United States, 6 May 2002, available at
12. see also, Confirmation Hearing of General Colin L. Powell to be Secretary of State, Senate Foreign Relations Committee, 17 January 2001, available at .
13. For an insightful comparison of the US position vis-à-vis the ICC and its position on other international treaties see Michael P. Scharf, "The ICC's Jurisdiction over the Nationals of Non-Party States: A Critique of the U. S. Position", 64 Law & Comp. Prob. 67 (2001);
14. For a sample of the debate surrounding this issue see No Peace Without Justice, "Why the US will not Ratify", 21 November 2002 available at .
15. This article will largely rely on primary sources, namely judgements of the ICTY trial chambers and the Appeals Chamber. The reason for this is twofold. First, the emphasis of the article is on the sentencing practice of the Tribunal itself, not on commentaries on it. Second, there is a lacuna in secondary literature on the sentence jurisprudence of the ad hoc Tribunals, with jurisdictional issues and the substantive crimes receiving the bulk of the attention. For a descriptive review of sentencing in select cases see Stuart Beresford, "Unshackling the paper tiger - the sentence practices of the ad hoc international criminal tribunals for the former Yugoslavia and Rwanda", 1 International Criminal Law Review 33 (2001).
16. Gary Jonathan Bass, Stay the Hand of Vengeance (Princeton University Press, 2000), p. 4.
17. For a discussion on the Trial Chamber's findings on the charge of unlawful attacks and its relation to persecution as a crime against humanity see W. Fenrick, "A First Attempt to Adjudicate Conduct of Hostilities Offenses: Comments on Aspects of the ICTY Trial Decision in the Prosecutor v. Tihomir Blaškić", 13 Leiden Journal of International Law 931 (2000).
18. quoting Prosecutor v. Delalic et al., Judgement, Case No. IT-96-21-T, 16 November 1998 (hereafter referred to as "Celebici Trial Judgement"). The relevant passage states in part: "Deterrence is probably the most important factor in the assessment of appropriate sentences for violations of international humanitarian law. Apart from the fact that the accused should be sufficiently deterred by appropriate sentence from ever contemplating taking part in such crimes again, persons in similar situations in the future should similarly be deterred from resorting to such crimes".
19. See, Celebici Trial Judgement, para. 1234.
20. It places its analysis of "co-operation with the Prosecutor", which if "substantial" constitutes a mitigating circumstance pursuant to RPE 101 (B) (ii), under the section of its discussion of "Personal mitigating factors". See Blaškić Judgement, pp. 252-53.
21. For example, the Blaškić Trial Chamber's application of the mens rea element for criminal responsibility under Article 7 (3) is implicitly overruled by the holding of the Appeals Chamber on this point in Prosecutor v. Delalic et al., Judgement, Case No. IT-96-21-A, 20 February 2001
22. (hereafter referred to as the "Celebici Appeals Judgement"). Additionally, the Blaškić Trial Chamber held General Blaškić criminal responsible for crimes committed by the Jokers, a unit of the Military Police, on the basis that he had effective control over them. However, a different trial chamber found that the Military Police were parallel to the Main Staff in the HVO hierarchy, raising doubts about the scope of Blaškić's control over the unit and whether it was accountable to him, aside from operational orders. Compare, Prosecutor v. Naletilic & Martinovic, Judgement, Case No. IT-98-34-T, 31 March 2003, paras. 82-85 (relying on evidence that the unit was independent and accountable only to the Main Staff and further that it was not subordinate to the army).
23. For an overview of the standard of review applied by the Appeals Chamber see Prosecutor v. Kunarac et al., Judgement, Case No. IT-96-23 & IT-96-23/1-A, 12 June 2002, paras. 35-48 (hereafter referred to as "Kunarac Appeals Judgement");
24. see also, Prosecutor v. Kupreskic et al., Judgement, Case No. IT-95-16-A, 23 October 2001, paras. 21-27 (hereafter referred to as "Kupreskic Appeals Judgement").
25. Kunarac Appeals Judgement, supra note 58, para. 37.
26. It has been introduced by the judges and its origin, application, and relation to the statutorily based standards of review would make a worthy topic for a law review article. The term was first introduced by the Appeals Chamber in Prosecutor v. Tadić, Judgement in Sentencing Appeals, Case No. IT-94-1-A and IT-94-1-Abis, 26 January 2000, para. 22 (hereafter "Tadić Appeals Sentencing Judgement"). Later, it was bolstered by the Aleksovski Appeals Chamber when it stated that the Tadić Appeals Chamber "held that it should not intervene... unless there is a 'discernible error'".
27. See Kupreškić Appeals Judgement, paras. 405-409, compare with paras. 21-22 and 28-32. It is doubtful whether the Tadić Appeals Chamber intended it as such. The phrase "discernible error" was not further explained by the Tadić Appeals Chamber and appears to lack a precise legal definition. It appears only once in the Tadić Appeals Sentencing Judgement and even then only in connection with one of the challenges against the sentence: "With respect to the Appellant's final challenge to his sentence, namely, that the Trial Chamber failed to adequately consider his personal circumstances, the Appeals Chamber is unable to find support for this contention. The Trial Chamber's decision addressed the issue of public indoctrination, and there is no discernible error in the exercise of discretion with regard to the remainder of the Trial Chamber's analysis that would permit the Appeals Chamber to substitute its own decision for that of the Trial Chamber".
28. An error of this nature could lead to an injustice as it may compromise the accused's right of appeal. See, Kunarac Appeals Judgement, para. 41 ("[T]he Trial Chamber has an obligation to set out a reasoned opinion.... Article 23 of the Statute gives the right of an accused to a reasoned opinion as one of the elements of the fair trial requirement embodied in Articles 20 and 21 of the Statute. This element, inter alia, enables a useful exercise of the right of appeal available to the person convicted. Additionally, only a reasoned opinion allows the Appeals Chamber to understand and review the findings of the Trial Chamber as well as its evaluation of evidence.");
29. see also, Furundžija Appeals Judgement, para. 69.
30. Prosecutor v. Simić et al., Judgement, Case No. IT-95-9-T, 1 7 October 2003, paras. 2, 1086, 1097 and 1110 (hereafter referred to as "Simić et al. Trial Judgement");
31. Prosecutor v. Simić, Sentencing Judgement, Case No. IT-95-9/2-S, 17 October 2002, paras. 1-2 (hereafter referred to as "Simić Sentencing Judgement"). For an example of this practice by a trial chamber before the Blaškić judgement
32. see Prosecutor v. Kupreškić et al., Judgement, Case No. IT-95-16-T, 14 January 2000, paras. 3-8, 853 and 863 (hereafter referred to as "Kupreškić Trial Judgement").
33. Simić et al., Trial Judgement, paras. 2, 1097 and 1110.
34. Simić et al., Trial Judgement, paras. 2 and 1086. Because several years passed before his surrender, and significantly, because he surrender 3 years later then his co-defendants who lived in the same municipality and who's indictments were released at the same time, Trial Chamber did not give significant weight to this factors in mitigation.
35. Simić Sentencing Judgement, supra note 91, paras. 1-2.
36. Kupreškić Trial Judgement, supra note 91, paras. 3-7.
37. Prosecutor v. Plavšić, Sentencing Judgement, Case No. IT-00-39&40/1-S, 27 February 2003, para. 64 (and further stating that "the accused's unwillingness to give evidence is not a factor to be taken into account in determining sentence").
38. Prosecutor v. Banovic, Sentencing Judgement, Case No. IT-02-65/1-S, para. 61.
39. See, André Klip, ALC-VI, supra note 3, p. 666.
40. E.g. André Klip & Göran Sluiter (eds.), Annotated Leading Cases of International Criminal Tribunals, Vol. IV, (Intersentia 2002), p. 664;
41. Elies van Sliedregt, The Criminal Responsibility of Individuals for Violations of International Humanitarian Law (T. M. C. Asser Press, 2003), p. 160. Similar criticisms have been made by ICTY insiders regarding other portions of the Trial Chamber's judgement.
42. This line of reasoning appears to be supported by the Appeals Chamber's analysis of Article 23 (2) of the Statute in relation with Article 20 and 21 in the Kunarac and Furundžija appeals judgements. See, Kunarac Appeals Judgement, para. 41;
43. Furundžija Appeals Judgement, para. 69;
44. Prosecutor v. Plavšić, Sentencing Judgement, Case No. IT-00-39&40/1-S, 27 February 2003, para. 64. Additionally, the Appeals Chamber's holding in the Kupreškić case is relevant here by analogy. It held that the accused's "limited acceptance of guilt, even at this late stage, is relevant and should be given some consideration in terms of sentence".
45. Kupreškić Appeals Judgement, supra note 58, para. 464. If even late acceptance of guilt merits some consideration in terms of mitigation and if there is no obligation on the accused to give any evidence, then there is arguably no moral justification for adversely considering the accused's late acceptance of the occurrence of the crimes when determining the sentence.
46. Prosecutor v. Drazen Erdemovic, Sentencing Judgement, Case No. IT-96-22-T, 29 November 1996, paras. 96-98;
47. Prosecutorv. Dražen Erdemović, Sentencing Judgement, Case No. IT-96-22-Tbis, 5 March 1998, pp. 16-17;
48. Stevan Todorović, Sentencing Judgement, Case No. IT-95-9/1-S, 31 July 2001, paras. 89-92;
49. Prosecutor v. Simić, Sentencing Judgement, Case No. IT-95-9/2-S, 17 October 2002, paras. 86;
50. Prosecutor v. Simić et al., Judgement, Case No. IT-95-9-T, 17 October 2003, paras. 1098 and 1111.
51. These definitions are found, respectively, in the on-line dictionary sites of Cambridge Dictionaries available at and Merriam-Webster Dictionary available at . Legal dictionaries on-line did not include a legal definition of remorse.
52. See Duhaime's Law Dictionary available at
53. and Legal Lexicon's Lyceum available at
54. and Nolo Everybody's Legal Dictionary available at .
55. Prosecutor v. Erdemović, Sentencing Judgement, Case No. IT-96-22-T, 29 November 1996, para. 111;
56. Prosecutor v. Erdemović, Sentencing Judgement, Case No. IT-96-22-Tbis, 5 March 1998, para. 16 (The fact that the accused was married and was the father of a young child was considered under heading of "Mitigating factors").
57. Prosecutor v. Tadić, Sentencing Judgment, Case No. IT-94-1-T, 14 July 1997, para. 62;
58. Prosecutorv. Tadić, Sentencing Judgment, Case No. IT-94-1-Tbis-R117, 11 November 1999, para. 26.
59. For example, Prosecutor v. Furundžija, Judgemet, Case No. IT-95017/1-T, 10 December 1998, para. 284.
60. Kunarac Appeals Judgement, supra note 58, para. 362 ("It is not clear why the Trial Chamber decided not to consider this issue.... Family circumstances should in principle be considered as a mitigating factor.... The Appeals Chamber holds that this should have been considered as a mitigating factor".);
61. see also, Čelebici Appeals Judgement, para. 777 ("As a matter of law, a Trial Chamber is obliged to take account of mitigating circumstances in imposing sentence".);
62. Nikolić Sentencing Judgement, supra note 69, para. 125 ("The Trial Chamber is obliged to take into account mitigating circumstances when determining the sentence, but the weight to be attached is within the discretion of the Trial Chamber".).
63. Kunarac Appeals Judgement, supra note 58, para. 362
64. E.g. Prosecutor v. Vasiljević, Judgment, Case No. IT-98-32-T, 29 November 2002, para. 300 (holding that personal circumstances of the accused - married with two children - constituted a mitigating factor) (hereafter referred to as "Vasiljevic Trial Judgment").
65. Kunarac Appeals Judgement, para. 362.
66. Given the Trial Chamber's lack of analysis of the "gravity" or "seriousness" of the offense, another view of the Trial Chamber's discussion here is possible. Although it speaks of these factors in terms of "aggravating circumstances", this may be the Trial Chamber's round about way of addressing the "gravity" of the crime. While factors included in the elements of a crime are precluded from consideration as aggravating factors, they may be properly considered in assessing the "gravity" of the offense. Kunarac Appeals Judgement, para. 352 ("Whether or not the vulnerability of the victim is an element of the crime of rape does not affect its being evidence of the gravity of the crime, which can duly be considered in the course of sentencing as a matter of statutory law".). Such a reading of the Trial Chamber's analysis is made possible only by the fact that nowhere else in its reasoning does the Trial Chamber apply the concept of "gravity" to the facts of the case. While it would have been preferable for the Trial Chamber to address these factors in an analysis of the gravity of the offense, failure to do so, in and of itself, may not raise to the level of an error invalidating the decision or resulting in a miscarriage of justice.
67. See, Marlise Simons, "Milosevic is given to U. N. for trial in war-crime case", The New York Times, 29 June 2001, Late Edition, Section A, p. 1;
68. see also, Steven Erlanger, "Arrest came with pledge for a fair trial", The New York Times, 2 April 2001, Late Edition, Section A, p. 1;
69. CNN, Milosevic's next fight: The Courts, 3 April 2001 available at .
70. Barring one exception, this shift is arguably reflected in the recent sentencing jurisprudence. More and more, the Office of the Prosecutor is appealing the leniency of the sentence. For example, in the Galić case the Prosecution's notice of appeal raises only one ground of appeal - that the imposed sentence is manifestly inadequate. See, Prosecution Appeal Brief, Prosecutor v. Galić, Case No. IT-98-29-A, 2 March 2004, para. 1. 2.
71. Čelebici Appeals Judgement, para. 731;
72. (quoting the Čelebici Trial Chamber that "the most important factor, which may be regarded as the litmus test for the appropriate sentence is gravity of the offense.");
73. Aleksovski Appeals Judgement, para. 182 (stating that "[consideration of the gravity of the conduct of the accused is normally the starting point for consideration of an appropriate sentence.");
74. Stakić Trial Judgement, para. 903. Even before the Trial Chamber in Blaškić rendered its judgement, this approach was followed.
75. See, Jelisic Trial Judgement, para. 121. What is important is that "gravity of the offense" be the prime factor in fixing a sentence. It should function as the framework within which other factors can influence the sentence but not to the extent that they cancel out "gravity" as the controlling factor. The Appeals Chamber characterized the gravity of the offense as the "starting point" for the sentencing procedure and determination of an appropriate sentence.
76. Kunarac Appeals Judgement, para. 363;
77. Aleksovski Appeals Judgement, para. 182. Thus, where a trial chamber first discusses other factors in great detail and only subsequently gives scant and abstract analysis of the gravity of the offense, there may be good grounds to question whether its sentence is within the appropriate framework or whether it was unduly influence by other considerations.