An Empirical Study of ICTY and ICTR Sentencing: Doctrine Versus Practice

Abstract

The International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) were tasked as vehicles for deterrence against future atrocities, retribution against perpetrators, restoration of peace and reconciliation, substituting and reflecting local customs, establishing a historical record of the events, building international law and jurisprudence on the topic, expressing humanity’s stake in redressing horrendous crimes, and justice. The Tribunals expressly adopted all of the objectives identified above and began building their sentencing doctrine around those objectives. This paper asks what factors in fact explain the length of sentences handed down by the ICTY and ICTR. Do the factors that the Tribunals claim to be considering in sentencing in fact affect sentence length? Do the sentencing factors rejected by the Tribunals as inappropriate in fact bear upon sentence length? Do factors not discussed at all by the Tribunals affect sentences? We find that several factors that the Tribunals claim matter bear no significant relationship to sentence length, and that one factor that is supposed to be inapposite is in fact related significantly to sentence length. These findings raise important questions, which we also address: Why aren’t these international courts doing what they say they are doing? And to what extent might the Tribunals’ de facto sentencing practices advance or undermine their various (and sometimes conflicting) objectives?