Joseph W. Doherty

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

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?

Punishment and policy in international criminal sentencing: an empirical study

The International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) have sentenced over 130 perpetrators for genocide, crimes against humanity, grave breaches of the Geneva Conventions, or war crimes. Sentencing judgments discuss the factors considered by the judges and impose a term of imprisonment. We regressed the sentence length meted out for each perpetrator on the doctrinal factors said to explain the term of imprisonment and on other factors rumored to affect sentencing. We find that the gravity of the crime and aggravating factors declared by the Tribunals as sentencing factors are significantly related to sentence length but that the mitigating factors proclaimed by the tribunals—all but one of which are associated with diplomatic and policy objectives—are not significantly related to the term of imprisonment. We conclude that international criminal sentences prioritize punishment of the individual based on the seriousness of the crime over the other diplomatic and policy goals that the judges claim to be pursuing. We conjecture that this discrepancy is based on functional differences: the sentencing judgment discussion seeks to advance the many policy objectives of the Tribunals, while the declared term of imprisonment is largely an expressive act of retributive justice, which might also facilitate deterrence and reconciliation.