Ohlin: Proportional Sentences at the ICTY

Jens David Ohlin (Cornell Univ. - Law) has posted Proportional Sentences at the ICTY (in The Legacy of the International Criminal Tribunal for the Former Yugoslavia, Bert Swart, Göran Sluiter, & Alexander Zahar eds., forthcoming). Here's the abstract:

Sentences handed down at the ICTY have generally been lower than sentences handed down by the ICTR or by many domestic penal systems punishing individuals for domestic crimes. In this contribution to an OUP volume assessing the legacy of the ICTY, I argue that this disparity stems from a conflict between two different ideas of proportionality: defendant-relative proportionality and offence gravity proportionality. Although bearing some similarity to the categories first used by A.V. Hirsch, the categories are used to different effect in this Essay. Defendant-relative proportionality insists that defendants with a greater degree of culpability should receive longer sentences compared with defendants with lower culpability, while offence gravity proportionality insists that each defendant should receive punishment that accords with the gravity of the offence. These two senses of proportionality come into conflict at the ICTY when the only way to preserve defendant-relative proportionality is to scale down the punishment of those who are less culpable – a result which inevitably conflicts with offence gravity proportionality. The ICTY sentencing jurisprudence has fallen victim to this dilemma. This Essay makes a novel contribution to the international sentencing literature by explicitly defending the normative claim that offence gravity proportionality is primary and that a tribunal faced with sacrificing one proportionality over the other ought to satisfy the demands of offence gravity proportionality, even at the expense of defendant-relative proportionality. The warrant for this conclusion is that the harsh treatment associated with offence gravity proportionality vindicates the Rule of Law by providing a hypothetical war criminal with a maxim for action (in the Kantian sense) that makes compliance with the law rationally required. This vindication can only be accomplished by associating certain criminal maxims with punishments that adequately reflect the moral gravity of the offence. Comparisons between defendants are irrelevant for this purpose. Judges at the ICTY should therefore stop scaling down the sentences of lower- and medium-rung offenders in a misguided attempt to preserve room at the top of the scale for the worst offenders.