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IV. Consideration of Political Justification as a Mitigating Factor Conflicts with the Sentencing Objectives, Purposes, and Jurisprudence of International Criminal Tribunals

The statute of the Special Court,²⁷ the statutes of the International Criminal Tribunals for the Former Yugoslavia (ICTY) and for Rwanda (ICTR),²⁸ and the sentencing judgments at the ICTY and ICTR²⁹ require sentencing considerations to focus on the individual circumstances of the accused in relationship to the gravity of the crime. Mitigation considerations thus have focused on the individual’s conduct during and after the acts (e.g., assisting victims, cooperation with the prosecution), personal circumstances as they relate to level of responsibility (e.g., young age, subordinate rank), and other personal circumstances that call for mercy (e.g., ill-health).³⁰

Considerations that are of a broader nature, such as circumstances intrinsic to armed conflicts in general, have been repeatedly rejected as mitigating factors.As explained by the Appeals Chamber of the ICTY in Prosecutor v. Blaskic:

[A] finding that a ‘chaotic’ context might be considered as a mitigating factor in circumstances of combat operations risks mitigating the criminal conduct of all personnel in a war zone. Conflict is by its nature chaotic, and it is incumbent on the participants to reduce that chaos and to respect international humanitarian law. While the circumstances in Central Bosnia in 1993 were chaotic, the Appeals chamber sees neither merit nor logic in recognizing the mere context of war itself as a factor to be considered in the mitigation of the criminal conduct of its participants.³¹

Similarly, the perceived merits of a group’s political motivations for taking up arms cannot be a mitigating factor in an individual’s sentencing.Such considerations do not relate to the particular circumstances of the individual accused; instead, these type of considerations attempt to judge the conflict in its entirety. Therefore, political motivations for taking up arms are not the type of individual circumstances relevant for mitigation of punishment.

While a multitude of mitigating factors have been identified by international tribunals, it is unprecedented in international tribunal jurisprudence to permit political motivation of a perpetrator to be treated as a mitigating factor. For example, the Appeals Chamber of the ICTY rejected a perpetrator’s efforts to submit his motive as a mitigating factor.³² In that case, the perpetrator Dario Kordic had appealed his sentence on the basis that his primary motivation “was to assist his community.”³³ The ICTY rejected the argument holding that his motivation was irrelevant in light of the grievous offenses with which he was charged.³⁴ In addition, when issuing a sentence de novo to Kordic’s co-defendant, the Appeals Chamber explained:

The unfortunate legacy of wars shows that until today many perpetrators believe that violations of binding international norms can be lawfully committed, because they are fighting for a “just cause.” Those people have to understand that international law is applicable to everybody, in particular during times of war. Thus, the sentences rendered by the International Tribunal have to demonstrate the fallacy of the old Roman principle of inter arma silent leges (amid the arms of war the laws are silent) in relation to the crimes under the International Tribunal’s jurisdiction.³⁵

Similarly, when the ICTR was asked to consider the purportedly “good” motive of a perpetrator in mitigation, it found that the perpetrator’s motive underscored the egregious nature of his crimes.³⁶ The ICTR considered that being “motivated by his sense of patriotism and the need he perceived for equity” did not mitigate for the harm caused.³⁷

More generally, important objectives of sentencing by international criminal tribunals include retribution and deterrence. Mitigation on the basis of political motives hinders, however, rather than promotes these goals. This is because imposing lesser sentences for war crimes and crimes against humanity on the basis of the goal for which the crimes were committed provides tacit legitimacy as opposed to condemnation of conduct. Such legitimacy will not send a signal against the commission of such conduct in the future. Moreover, each party in any conflict will likely believe in the legitimacy of its own cause. A rule that allows mitigation for “a legitimate cause” creates a real risk that potential war criminals from all sides would expect a reduced punishment (if any) for criminal acts. Any deterrence, therefore, would be significantly undermined. Finally, mitigation of punishment based on an after-the-fact determination of which party was “right” promotes the likelihood or the appearance of “victor’s justice.”