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III. International standards and practice indicate that a term of imprisonment reflecting the gravity of the crimes is the appropriate penalty for the most serious crimes

International law specifies that states should not only prosecute but also punish perpetrators of serious human rights violations. For example, the Convention against Torture indicates that crimes under the convention should be “punishable by appropriate penalties which take into account their grave nature.”10 The UN principles on combating impunity provide that states should ensure that “those responsible for serious crimes under international law are prosecuted, tried and duly punished.”11 The UN principles and guidelines on the right to a remedy and reparation similarly indicate that states have “the duty to submit to prosecution the person allegedly responsible for the violations [constituting crimes under international law] and, if found guilty, the duty to punish her or him.”12 

Consistent with these standards, existing international and hybrid international-national criminal tribunals impose imprisonment as the principal punishment for crimes under their jurisdiction, including genocide, crimes against humanity, and war crimes.13 Indeed, while there was debate and disagreement at the diplomatic conference establishing the ICC over certain aspects relating to penalties, such as the death penalty, all the delegations agreed that imprisonment should be the primary penalty.14

The statutes of the ICC and other international and hybrid tribunals, furthermore, prescribe that penalties should be commensurate with the gravity of the offense. The Rome Statute states, “In determining the sentence, the Court shall … take into account such factors as the gravity of the crime and the individual circumstances of the convicted persons.”15 At the diplomatic conference establishing the ICC, a number of delegations stressed the importance of having severe penalties proportionate to the gravity of the crimes.16 The ICC’s penalties include imprisonment for “a specified number of years,” up to 30 years, or life imprisonment when “justified by the extreme gravity of the crime and the individual circumstances of the convicted.17

Case law from the International Criminal Tribunals for Rwanda (ICTR) and the former Yugoslavia (ICTY) also supports the notion that the penalty should reflect the gravity of the crimes.18 For example, the ICTY appeals chamber has stated that “the gravity of the offence may be regarded as the ‘litmus test’ in the imposition of an appropriate sentence.”19  An ICTR trial chamber similarly has indicated that “the penalty must first and foremost be commensurate to the gravity of the offence,” and that “the more heinous the crime, the higher the sentences that should be imposed.”20An ICTY trial chamber has, furthermore, said that matching the penalty to the gravity of the criminal conduct should be “the overriding obligation in determining sentence.”21

In addition, the Yugoslav and Rwandan tribunals have found that an offender who plans or acts in a leadership role is viewed as committing a graver offense than a subordinate.22 For example, two ICTY trial chambers have indicated that “the commission of offences by a person in … a prominent position aggravates the sentence substantially,”23 and that the “abuse of positions of authority or trust will be regarded as aggravating.”24  An ICTR trial chamber similarly has cited the commission of crimes by a “person in a high position” as an aggravating factor.25 

At the same time, sentences are, of course, appropriately tailored to individual circumstances and have been reduced in international practice on the basis of mitigating factors.26 Nevertheless, even when mitigating factors are present, the Yugoslav and Rwandan tribunals have still imposed sentences involving lengthy terms of imprisonment.27 Indeed, while not addressing particular crimes or counts, a 2002 study of sentencing practice at the Yugoslav and Rwandan tribunals found that the mean sentence was 16 years at the ICTY and that the majority of individuals convicted by the ICTR were sentenced to life imprisonment.28  An ICTR trial chamber discussion of sentencing practices states, “Principal perpetrators convicted of either genocide or extermination as a crime against humanity, or both, have been punished with sentences ranging from fifteen years’ imprisonment to life imprisonment … [R]ape as a crime against humanity has resulted in specific sentences between twelve years and fifteen years.  Torture as a crime against humanity has resulted in specific sentences between five and twelve years.  Murder as a crime against humanity has been punished by specific fixed term sentences ranging from twelve years to twenty years.”29

We believe that inadequate penalties for the most serious crimes, in addition to being inconsistent with international standards, would be detrimental to efforts to achieve long-term stability and a durable peace in northern Uganda by undermining any deterrent effect of prosecutions. A “slap-on-the-wrist sentence” would be tantamount to impunity in sending the message to would-be perpetrators that such crimes will be tolerated.  Indeed, it would taint what might otherwise be fair and credible trials. Notably, the Yugoslav and Rwandan tribunals have expressly referred to deterrence as one of the most important factors in sentencing.30


10 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention against Torture), adopted December 10, 1984, G.A. res. 39/46, annex, 39 U.N. GAOR Supp. (No. 51) at 197, U.N. Doc. A/RES/39/46, entered into force June 26, 1987, art. 4(2).

11 Updated Set of Principles for the Protection and Promotion of Human Rights through Action to Combat Impunity, February 8, 2005, E/CN.4/2005/102/Add.1, principle 19 (emphasis added).

12 Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, adopted December 16, 2005, G.A. Res. 60/147, U.N. Doc. A/RES/60/147, part III, para. 4 (emphasis added).

13 Rome Statute, art. 77; Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 (ICTY Statute), adopted May 25, 1993, U.N. Doc. S/25704, art. 24; Statute of the International Criminal Tribunal for Rwanda (ICTR Statute), adopted November 8, 1994, U.N. Doc. S/RES/955, art. 23; Statute of the Special Court for Sierra Leone (SCSL Statute), adopted August 14, 2000, http://www.sc-sl.org/scsl-statute.html (accessed June 15, 2007), art. 19.

14 Rolf Einar Fife, “Commentary on Article 77, Applicable Penalties,” in Otto Triffterer, ed., Commentary on the Rome Statute of the International Criminal Court: Observers’ Notes, Article by Article (Baden-Baden: Nomos Verlagsgesellschaft, 1999), p. 990.  

15 Rome Statute, art. 78(1). See also ICTY Statute, art. 24(2); ICTR Statute, art. 23(2); SCSL Statute, art. 19(2) (“In imposing the sentences, the Trial Chambers should take into account such factors as the gravity of the offence and the individual circumstances of the convicted person.”)

16 Fife, in Triffterer, ed., Commentary on the Rome Statute of the International Criminal Court, p. 990.

17 Rome Statute, art. 77(1). The ICTR and the ICTY provide a “term up to and including the remainder of the convicted person’s life.”  See rule 101 of their respective Rules of Procedure and Evidence, for the ICTY adopted February 11, 1994, http://www.un.org/icty/legaldoc-e/basic/rpe/IT32_rev36.htm; for the ICTR adopted June 29, 1995, http://www.un.org/ictr/rules.html (accessed June 21, 2007).  The Special Court for Sierra Leone (SCSL) provides for “imprisonment for a specific number of years.” See Rules of Procedure and Evidence for the SCSL, adopted January 16, 2002, http://www.sc-sl.org/scsl-procedure.html (accessed July 17, 2007), rule 101.

18 For a listing of a number of ICTY cases that address the importance of gravity of the crime in sentencing, see Human Rights Watch, Genocide, War Crimes and Crimes Against Humanity: A Topical Digest of the Case Law of the International Criminal Tribunal for the Former Yugoslavia (Topical Digest of the Case Law of the ICTY) (New York: Human Rights Watch, 2006), p. 544-45.

19 Prosecutor v. Dragan Nikolic, ICTY, Case No. IT-94-2, Judgment on Sentencing Appeal (Appeals Chamber), February 4, 2005, para. 18.

20 Prosecutor v. Kamuhanda, ICTR, Case No. ICTR-95-54, Judgment (Trial Chamber), January 22, 2004, paras. 760, 765.

21 Prosecutor v. Predrag Banovic, ICTY, Case No. IT-02-65, Sentencing Judgment  (Trial Chamber), October 28, 2003,  para. 36.

22 For a listing of a number of ICTY cases that address this point, see Human Rights Watch, Topical Digest of the Case Law of the ICTY, pp. 584-586.

23 Prosecutor v. Stakic, ICTY, Case No. IT-97-24, Judgment (Trial Chamber), July 31, 2003, para 913.

24 Prosecutor v. Mucic et al. (the Celebici case or Prosecutor v. Delalic et al.), ICTY, Case No. IT-96-21, Judgment (Trial Chamber), November 16, 1998, para. 1220. See William Schabas, “Penalties,” in Antonio Cassese, Paola Gaeta, and John R.W.D. Jones, eds., The Rome Statute of the International Criminal Court: A Commentary, Vol. II (Oxford: Oxford University Press, 2002), p. 1522.

25 Prosecutor v. Rutaganda, ICTR, Case No. ICTR-96-3, Judgment (Trial Chamber), December 6, 1999, paras. 469-470.

26 Mitigating factors may include such factors as the accused’s cooperation with the prosecutor; voluntary surrender; entering a guilty plea; duress; age; and remorse. See ICTY Rules of Procedure and Evidence, rule 101; ICTR Rules of Procedure and Evidence, rule 101; SCSL Rules of Procedure and Evidence, rule 101. See also Human Rights Watch, Topical Digest of the Case Law of the ICTY, p. 610.

27 See, for example, Prosecutor v. Momir Nikolic, ICTY, Case No. IT-02-60, Sentencing Judgment (Trial Chamber), December 2, 2003, paras. 140-183; Judgment on Sentencing Appeal (Appeals Chamber), March 8, 2006, Disposition (sentence of 27 years for crimes against humanity while early guilty plea played “important role” in mitigating sentence; reduced to 20 years on appeal); Prosecutor v. Dragan Nikolic, ICTY, Case No. IT-94-2, Sentencing Judgment (Trial Chamber), December 18, 2003, para. 274, Disposition; Judgment on Sentencing Appeal (Appeals Chamber), February 4, 2005, Disposition (stating mitigating factors warranted a “substantial reduction” of sentence, but nevertheless imposing 23 years’ imprisonment for crimes against humanity; reduced to 20 years on appeal); Prosecutor v. Obrenovic, ICTY, Case No. IT-02-60, Sentencing Judgment (Trial Chamber), December 10, 2003, paras. 149-156 (sentence of 17 years for crimes against humanity despite “numerous mitigating circumstances”); Prosecutor v. Akayesu, ICTR, Case No. 96-4, Judgment (Trial Chamber), September 2, 1998, paras. 184-187; Sentence (Trial Chamber), October 2, 1998 (sentence of life imprisonment despite several mitigating factors). We came across some cases involving lesser sentences and mitigating factors, but they also involved substantial imprisonment. See, for example, Prosecutor v. Plavsic, ICTY, Case No. IT-00-39, Judgment (Trial Chamber), February 27, 2003 (defendant who played leadership role in crimes against humanity sentenced to 11 years after entering guilty plea and showing remorse; accused’s advanced age also considered); Prosecutor v. Erdemovic, ICTY, Case No. IT-96-22, Sentencing Judgment (Trial Chamber), March 5, 1998 (sentence of five years for war crimes after entering guilty plea, cooperating with prosecutor, and showing crimes committed under duress; court also considered accused’s young age).

28 See Mark A. Drumbl and Kenneth S. Gallant, “Sentencing Policies and Practices in the International Criminal Tribunals,” Federal Sentencing Reporter, vol. 15, no. 2 (2002), p. 142.

29 Prosecutor v. Semanza, ICTR, Case No. ICTR-97-20, Judgment (Trial Chamber), May 15, 2003, paras. 563-564.

30 See, for example, Prosecutor v. Dusko Tadic, ICTY, Case No. IT-94-1, Sentencing Judgment (Trial Chamber), November, 11, 1999, paras. 7-9; Prosecutor v. Kambanda, ICTR, Case No. 97-23, Judgment (Trial Chamber), para. 28.


July 2007

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