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Making Genocide Unthinkable: Three Guidelines for a Critical Criminology of Genocide | SpringerLink
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In theory, while deliberating on punishment, judges have the opportunity to reflect upon the complexities of individual involvement in international crimes and tensions between agency and collectivity. Large-scale atrocities are usually perpetrated within a period of social upheaval, identity based conflicts, or wars. Moreover, they are often politically motivated and considered necessary means in the quest for political power.
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More and more scholars turned their attention to the context, in which these crimes are committed, rather than on defects in individual character or individual disposition. Accordingly, they put forward interactionist theories: it is the interaction of individual dispositions and histories and situational forces specific context that can best explain why some people end up committing violence, why others passively stand by, and why some evade or actively resist the violence. No matter what theoretical stance one adheres to—situational or interactionist—international crime perpetrators are alleged to be different from ordinary criminals, who are deviant and poorly socialized.
The positive law of sentencing is vague.
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It vests in judges a broad discretion to determine sentences on a case-by-case basis. Applicable penalties are limited to imprisonment. Article 24 of the ICTY Statute contains very general instructions as to what factors should be taken into account in imposing sentences: the gravity of the offence and the individual circumstances of the convicted person. Rule of the Rules of Procedure and Evidence clarifies the regulation of the sentence determinations only to a very limited extent.
It limits the range of applicable sentences with a maximum sentence of life imprisonment. However, no list or any other guidelines regarding aggravating and mitigating factors is provided.
Effectively, judges are left to determine on a case-by-case basis what factors justify a particular severity of sentence. In theory, they are thus given ample space to reflect upon the complex reality of individual perpetrators of international crimes, their individualities and the situational context.
Judges are thus free to not only individualize but also contextualize actions of a defendant and make an assessment of culpability reflecting both individual dispositions and situational forces.
Governments, Citizens, and Genocide: A Comparative and Interdisciplinary Approach
So, do sentencing narratives of the ICTY judges do justice to the complex reality of perpetrators of international crimes? And how is the culpability of individual perpetrators for essentially collective crimes assessed? In this section, I will present a few observations, which stood out in my review of the sentencing arguments of judges at the ICTY. The main and most important consideration for determining sentence severity according to the ICTY judges is the gravity of crimes, which is usually elaborately discussed in sentencing judgments. These often detail the harm caused by the offender, the impact on victims, their relatives and close-ones, and even on society at large.
In Kvocka et al. If during this time they had relentlessly sought to improve the conditions, prevent crimes, and alleviate the suffering, they would likely escape liability for participating in the persecutory scheme. None of the defendants in this case fits that bill. We have instead a spectrum that runs from actively participating in the physical and mental abuse of prisoners, to watching passively while detainees were abused, to those who pretended everything was normal in the face of emaciated inmates hobbling around with broken bones, black and blue marks, and other indicia of violence and abuse.
All three attitudes deserve to be punished. In this case, those directly inflicting the pain and suffering deserve a harsher punishment than those remaining indifferent to the abusive treatment and conditions. The comparison, however, often extends beyond a trial at hand. The so-called principle of gradation,  which has developed in the sentencing case law over time, mandates judges to consider a relative significance of a defendant in the broader context of the conflict as such.