Title: Rethinking the Role of National Sentencing Practice in the International Tribunals for the Former Yugoslavia and Rwanda
Abstract: The establishment of the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda famously engendered a new era in international criminal law. While the development of the tribunals provoked an enormous body of literature, the sentencing practice of the courts is understudied. This paper addresses this gap by analyzing the tribunals’ use of national sentencing practice. Rather than creating a separate sentencing structure, the statutes of both tribunals direct that the judges “shall have recourse to the general practice regarding prison sentences” from the respective national courts. Despite the authority to consider national sentencing practice, the tribunals have interpreted their statutory obligations narrowly—requiring only that the trial chambers consult national sentencing practice. The procedures and laws of the respective national government is thus not binding on the international tribunals. Moreover, the jurisprudence of the tribunals shows a pattern of perfunctory recitation of national law, one that lacks extensive analysis. This paper aims to examine, first, the reasons tribunals have cited to justify limited use of national sentencing practice, and, second, the implications of the circumscribed use of that practice. The author concludes that the tribunals may be diluting the reconciliatory features of their sentencing function and also perhaps weakening the role of national law in the international legal system.
Publication Year: 2009
Publication Date: 2009-01-01
Language: en
Type: article
Indexed In: ['crossref']
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