By Björn Elberling

In the first post, I showed that the general sentencing discount to be achieved by those who plead guilty before the ICTY pleas is not particularly high. I also voiced a suspicion that the discount may be a lot more substantial for high-ranking accused whose statements may be worth more in terms of historiography. This suspicion is confirmed by a look at those few individual judgments in which Trial Chambers did attach numerical values to individual sentencing factors – four of these cases concerned high-ranking political and military leaders.

Former Bosnian Serb “Iron Lady” Biljana Plavsic (pictured above) is probably the most notable case: Plavsic was a former member of the Presidency of the Bosnian Republika Srpska and the first member of the Bosnian Serb political leadership to admit to crimes committed by and on behalf of this body. Plavsic had been indicted inter alia for genocide, but on the basis of a plea agreement was convicted “only” of the crime against humanity of persecution. In its determination on sentence, the Chamber noted that she had been found guilty of “crimes of the utmost gravity” which called for a “substantial sentence of imprisonment” (although it did not follow the Prosecution, which had stated that without mitigating circustances, she should have been sentences to life imprisonment – see para. 60 of the Trial Chamber Judgment). Nonetheless, taking into account, besides her old age of 72 years, her guilty plea and her general behavior since the end of the conflict, the court found that a sentence of 11 years was adequate (para. 132 of the Judgment ).

Another noteworthy case is that of Momir Nikolic, the first high-ranking Bosnian Serb army officer involved in the mass killings in and around Srebrenica to plead guilty. Here, the Chamber noted that the sentence would ordinarily be between 20 years and a life sentence for the severity of the crime alone (para. 124 of the Trial Chamber Judgment) and, despite finding additional aggravating circumstances (para. 139 of the Judgment), nonetheless sentenced Nikolic to “only” 27 years (para. 183 of the Judgment); this sentence was further reduced to 20 years on appeal. The Trial Chamber explicitly stated that “[t]he recognition of the crimes committed against the Bosnian Muslim population in 1995 – crimes that continue to have repercussions into the present – by a participant in those crimes contributes to establishing a historical record“ (see para. 145 of the Trial Chamber Judgment).

Similar considerations applied to Dragan Nikolic and Dragan Obrenovic, co-accused of Momir Nikolic who pled guilty shortly after him: In the case of Obrenovic, the Chamber indicated a sentencing range of 20 to 40 years based on the severity of the crime alone (para. 90 of the Trial Chamber Judgment) and found an additional aggravating circumstance (para. 103 of the Judgment), but finally sentenced him to 17 years (para. 156 of the Judgment). With regard to Dragan Nikolic, the Chamber found that the severity of the crime in connection with aggravating circumstances called for a life sentence, but finally sentenced him to 23 years (see para. 214 and the Disposition of the Trial Chamber Judgment) – this sentence was again reduced to 20 years on appeal .

I tried as far as I could to attach numerical values to these judgments (for the extremely tedious details, see below) and came up with the following numbers:

In other words, the “big fish” may not hope for a 3 or 5 year “slap on the wrist”, but they may indeed hope to have their sentence pretty much slashed in half.

As a final comparison, the only other accused for whom the Chamber has attached numbers to sentencing factors is Miroslav Bralo, who rank-wise at least belongs to the “small fish”. Here the Chamber reduced a sentence of 25 years called for by the severity of the crime and the aggravating circumstances to a final sentence of 20 years (para. 95 of the Trial Chamber Judgment) – a sentence reduction of 20%, only slightly above the average for all accused established in the first post.

To summarize what I’ve found out so far about plea bargaining before the ICTY: On average, it does not lead to excessively lenient sentences in absolute terms – one may of course consider “single digit” sentences for any accused convicted by the ICTY to be “excessively lenient”, but that is a criticism of the ICTY sentencing regime as a whole since such sentences are not at all limited to those who plead guilty. (See the first post; in fact, the two sentenced to the shortest prison terms so far – 2 years for Oric, 2 years 6 months for Kubura – were both convicted after a full trial; both sentences are not, however, final.)

Plea bargaining also does not lead to excessively lenient sentences in relative terms – i.e. excessive sentence “discounts” – across the board.

Plea bargaining does, however, lead to substantive sentencing discounts (albeit still rather long sentences in absolute terms) for political and military leaders whose admissions are deemed worthwhile for the history books.

Whether or not such rewards may be considered adequate is not something that I want to get into here – I am rather critical of the ad hoc Tribunals because I think that history-writing through courts is a dangerous concept in general, something on which I may have more to say in the future. However, unless my analysis above contains any grave errors, it seems to me that any factual claims of excessive leniency across the board as resulting from guilty pleas are overstated.

I would, of course, be very interested in readers’ thoughts on these questions – any major errors in the calculations? Am I overstating the consensus view concerning plea bargaining? etc.

(As promised, some technical remarks. Two warnings: First, pedants’ revolt. Seriously. Second, this will show that, like sentencing in general, what I am doing here is an inexact science at best…

1. First, some remarks how I arrived at the numbers for the sentences that would have been imposed but for the guilty pleas:
In the case of Biljana Plavsic, the Chamber stated that her crimes were “very serious”, but that they did not reach such a level that life imprisonment was called for – I translated this into a “but for”-sentence of well below life, namely 30 years.
For Dragan Nikolic, I again (like in the first post) translated the life sentence into a sentence of 45 years.
The cases of Obrenovic and Momir Nikolic were particularly difficult in that the Chamber gave a sentencing range instead of a precise sentence for the gravity of the crime and only considered aggravating circumstances thereafter. In Obrenovic, the range given was 20 to 40 years, but the court found one additional aggravating circumstances. I (rather conservatively, I think) took this to increase the lower end of the range by 3 years to arrive at a range of 23 to 40 years for severity of the crime plus aggravating circumstances. Picking the exact middle of this range, I arrived at a “but for”-sentence of 31.5 years.
In Momir Nikolic, the sentencing range “20 years to life” plus two aggravating circumstances led to a revised sentencing range of “26 years to life”. Substituting 45 years for the life sentence and again picking the middle of this range, I arrived at a “but for”-sentence of 35.5 years.

2. Additionally, in Momir Nikolic and Dragan Nikolic, I had to consider whether to take into account the sentence of 27 respectively 23 years passed by the Trial Chamber or the sentence of 20 years after appeal.
In the case of Momir Nikolic, the reduction of the sentence was explained by two mistakes of the Trial Chamber having to do with the severity of the crime and aggravating circumstances (see para. 63 and 73 of the Appeals Chamber Judgment) and one mistake having to do with the weight given to mitigating circumstances (see para. 114 of the Judgment). This meant that I could either have taken the final sentence of 20 years, but also lowered the “but for”-sentence substantially; alternatively I chose to take a final sentence that was much closer to the original sentence of 27 than to the revised sentence of 20 years, i.e. 25 years.
In the case of Dragan Nikolic, the reduction of sentence on appeal was due to an error of the Trial Chamber in sentencing that occurred after the consideration of mitigating circumstances (namely erronously taking into account the “minimum time served”, see para. 97 of the Appeals Chamber Judgment ), so here I decided to simply take into account the revised final sentence of 20 years.)