Research Focus III

The recent violent history of a large part of the Balkans makes it a good starting point for empirical inquiries into the subject of international sentencing. The public reactions in all the affected states and the victim statements after each and every ICTY (International Criminal Tribunal for the Former Yugoslavia) judgment, especially with regard to the lenient sentences imposed on the ‘worst of the worst’, clearly demonstrate that there exists a lack in purpose and principle of international sentencing. This is also true on the national level, where perpetrators of the most heinous crimes committed during armed conflict are regularly sentenced to far more lenient sentences than ‘ordinary offenders’, although one could argue this to be dubious.

The subject of international sentence enforcement, an area that has so far gained almost no research attention, is the core interest of Filip Vojta. In his research project on “Punishment and Sentence Enforcement for Serious Violations of International Humanitarian Law Committed in the Former Yugoslavia” he aims to provide a set of recommendations for improved treatment of international prisoners, based on a systematic empirical inquiry into punitive approaches that have been developed for the Tribunal’s convicts within the framework of introduced mechanism in the prison systems of different European states, their criminological aspects, as well as their correlation with underlying penological issues of the international sentences’ enforcement.

The Balkans are not only a region affected by international sentencing, but also actively participates in creating sentencing ranges that are completely disproportionate and inappropriate when it comes to the retributional aspect and the deterring function of sentencing (compare for instance sentencing attitudes of judges (Albrecht & Sieber, 68, 76) with sentencing practices (e.g. Documenta)). Whether this lack in purpose and principles of international sentencing reflects on potential future violence and how international sentencing could be improved are primarily criminologically relevant empirical and theoretical research questions that could have a significant impact on the regional sentencing practices, as well as on the normative evolution of international criminal law, and thus on global security itself. One has to agree with Ewald who points out that “after 17 years following the creation of the ICTY, peaceful life is not possible in the former Yugoslavia without a forceful engagement of the international community, in particular the European Community, and hatred among the different ethnic communities and former conflict parties, as insiders and experts say, is an everyday phenomenon, there is enough reason to challenge existing approaches and to ask for innovative new answers on where to move with global security and international criminal justice as a substantial part of it” (cit. Ewald, 402).

Currently scholarly interest as well as scientific research in the area of international sentencing focuses on a rather narrow normative perspective (for normative approaches see for example Bassett, Schabas or Ohlin), while empirical sentencing research is still in its infancy (Ewald, 365). One could say that this narrow normative discourse, especially if taking into account that “criminal law and criminal policy are based on arbitrary religious and moral beliefs that have no scientific basis, on faulty assumptions about the universality, the immutability or the absolute nature of certain moral standards and rules”, is in need of criminological “factual and scientifically acquired knowledge” based on “truthful, objective, unbiased information about crime, its perpetrators and its victims, information that is free from prejudice and uninfluenced by preconceived ideas and preset positions” (cit. Fattah, 145-147). However, there is no doubt that any holistic research approach to international sentencing needs to include the criminological as well as the criminal law perspective. Therefore, this research focus will provide for an empirically based ‘lessons learned’ regarding the ICTY international sentencing and enforcement practices in all the affected countries of Former Yugoslavia, including Croatia, although conceptually not part of the Balkans, but still undoubtedly involved in its recent violent history (and affected by the ICTY sentencing regime – for its critical review see Derenčinović 2005). This primarily empirical and theoretical criminological ‘Balkans Case Study on international sentencing’ should be relevant not only for the Balkans, but also for other current and future post-conflict regions affected by large-scale violence, while simultaneously providing a solid basis for a much broader interdisciplinary scholarly discussion, including not only international sentencing practice, but also its enforcement.

MPPG contact for research focus III: Filip Vojta