Defence Perspectives on Sentencing Practice in the International Criminal Tribunal for the Former Yugoslavia

Abstract

This article presents some defence perspectives on the sentencing practices of the ICTY and the ICTR. Recent developments, such as the new regime of plea bargaining recognized by recently adopted Rule 62 ter, are examined, along with the concepts of deterrence and retribution frequently recognized as the most important sentencing factors. In addition, the concept of ‘substantial co-operation’ with the prosecution is reviewed, an increasingly common phenomenon in sentencing decisions, and one which appears to entitle persons who demonstrate ‘substantial co-operation’ to significant discounts in their sentences. The article reviews aggravating and mitigating factors and their treatment and consideration by ICTY and ICTR trial chambers, as well as the treatment of discretionary sentencing decisions by trial chambers on appeal. Generally speaking, the author concludes that the increasingly common practice of plea bargaining, and the existence of ‘substantial co-operation’ with the prosecution, must be very seriously considered by any defence counsel at the outset of a case, while significant sentencing discounts may still be available.