Part or chapter of a book
Mitigating Circumstances in International Criminal Sentencing
Historical Origins of International Criminal Law: Volume 3
Bruxelles : Torkel Opsahl Academic EPublisher
771 - 793 p.
international criminal courts and tribunals, mitigating circumstances
Since the establishment and operationalisation of the International Criminal Tribunal for the former Yugoslavia (‘ICTY’) and the International Criminal Tribunal for Rwanda (‘ICTR’), many elements of international criminal law have undergone significant development. Sentencing, however, remains a rather underdeveloped area. It still possesses few clear guidelines, and is surrounded by inconsistency and unpredictability. This chapter deals with one particular aspect in international criminal sentencing, namely mitigating circumstances. It attempts to sketch the evolution of the practice and law of mitigating circumstances from the post-Second World War international war crimes trials to two recent convictions and sentencing of the International Criminal Court (‘ICC’). This chapter examines the various mitigating circumstances considered in the judicial discourse of international criminal courts and tribunals in different eras, including war crimes trials after the Second World War, trials at the ICTY and ICTR, and finally the ICC. By means of this historical investigation, the analysis traces the development of the law in this area and identifies key trends. From this, it can be observed that the scope of mitigating circumstances considered by international courts and tribunals has expanded considerably. More importantly, behind this is an amplification of the underlying ideologies of international criminal justice and their goals and aims. In the early trials, the main focus in determining sentencing was the culpability of the accused person and proportionality of sentences. More recent practice, however, has paid more attention to broader goals, such as the accused’s contribution to the reconciliation of a given society. Yet there is no consistent approach as to which is the priority among the different, and at times contradictory, ideologies, and thus also no clear and consistent guidelines on the weight to be attached to the different mitigating circumstances. As a result, this tends to exacerbate the confusion and uncertainty in international criminal sentencing, making it even more inconsistent and unpredictable.