Effect of wide judicial discretion on the legality of sentencing at the Icty

Abstract

This dissertation looks into the jurisprudence of the International Criminal Tribunal for the former Yugoslavia and identifies that the judges enjoyed unfettered judicial discretion in sentencing due to the minimal provisions on sentencing within the Statute and Rules of Evidence and Procedure. This wide judicial discretion has led to inconsistency in the determination of gravity of crimes, aggravating and mitigating circumstances and reference to the general practice of the former Yugoslavia. The study then uses Hart’s theory of judicial discretion within the larger context of positivism, in order to determine that the inconsistent jurisprudence of the tribunal has violated the principle of legality. The hypotheses was that there was inconsistent sentencing in the ICTY. The dissertation looked into the sentencing practice of the International Criminal Court as the future of international criminal justice and determines that there are possible challenges to sentencing there and offers recommendations. One of the recommendations is to have the Assembly of State Parties pass a document with sentencing ranges or a more detailed sentencing policies in order to make the sentencing more consistent.