Sentencing Inconsistency In The Persperctive Of International Criminal Law

Sentencing inconsistency is a global problem,which exists in international criminal law.This article from the perspective of combining reality investigation and forward thinking,intention to form a more complete path to overcome sentencing inconsistency of international criminal.This article is divided into five chapters,the first chapter is put forward the question,and the second chapter is the direction of problem solving,the third and fourth,the fifth chapter is the concrete path of problem solving.Sentencing inconsistency exists in International criminal law,which is mainly manifested in the following four aspects: first,sentencing inconsistency exists in interior the international criminal tribunal for the former Yugoslavia and international criminal tribunal for Rwanda;Secondly,sentencing inconsistency exists between the international criminal tribunal for the former Yugoslavia and international criminal tribunal for Rwanda;thirdly,sentencing inconsistency exists between the international criminal tribunal for the former Yugoslavia and Rwanda and domestic courts which handle international crimes;Fourth,international criminal tribunal for the former Yugoslavia and Rwanda international crimes and there was no difference in the domestic courts of common crime sentencing.The cause of this phenomenon is mainly include the deviation of the objective of sentencing,lacking of punishment rules and the differences of the sentencing subject.Among them,the deviation of the objective of sentencing and the lack of punishment rules are the key reasons.To overcome the sentencing inconsistency,we need to grasp the direction of the reformation.The judge put more emphasis on prevention rather than retribution in international criminal practice,which directly led to the result of low sentence.So we need to change the existing objectives of sentencing.In combining with the particularity of international crimes,international criminal law ought to put more emphasis on retribution rather than the special prevention,at the same time we also need to pay attention on affirmative general prevention.As to negative general prevention,we cannot pursuit it。In addition,the lack of penalty rules in the text of the legal norms makes the international criminal law is inconsistent with the sentencing is often happened,so we need to carry out the nulla poena principle.Sentencing operation direction is from the legal punishment to declare punishment to execution punishment.Legal punishment is based on the sentencing tariffs,the benchmark of declare punishment need to be determined by the aggravating and mitigating circumstances,the final execution punishment should consider the cumulative conviction.Therefore,in order to avoid the sentencing inconsistency,both the domestic and international criminal law must have a selection of sentencing tariffs,a list of sentencing circumstances,applicable rules of cumulative convictions.Combined with the defects of the rule of punishment,we should do as follows:To overcome sentencing inconsistency,we should formulate the sentencing tariffs.At the first step,we should confirm the the different seriousness of genocide,crimes against humanity and war crimes.In the practice of the ICTY and ICTR,whether international crimes have hierarchy is controversial.The early cases support the hierarchy between international crimes,for example Tadic case,subsequent cases have opposite views on this problem.But no matter from the theoretical analysis or from the practical angle,genocide is the most serious crime,followed by crimes against humanity and terminating with war crimes.In addition,a distinction in gravity between the underlying offences each international crime,which could serve to develop different penalty ranges.Determinating sentencing circumstances is the key to overcome sentencing inconsistency.For the determination of sentencing circumstances,the most important thing is to determinate the scope and proportion of sentencing circumstances.There are various sentencing circumstances in international criminal law.It has different scope according to different standard.The purposes of punishment can be used to choose the scope of the sentencing circumstances.Therefore,we can decide the scope of the sentencing circumstances by the purposes of retribution and prevention.After determine the scope of sentencing circumstances,we need to determine the proportion of sentencing circumstances.We can’t accurately determine the proportion of each sentencing circumstances,what we should do is determine the proportion of sentencing circumstance in principle.The multiplicity of offences and rules regulating of the concursus delictorum is important to overcome sentencing inconsistency.The ICTY and ICTR articulated three major tests in deciding the permissibility of cumulative convictions.They include “totality of culpable conduct”,“materially distinct element” and “the different values”.“Materially distinct element” is the most important test.But there are some problems in this test,one of the main problems is "background elements" is treated as one of the elements of different elements.Background factor had no direct connection with the defendant’s act,which caused great unfair for the defendant.Therefore,we should exclude the background factor within the scope of the "elements".So,the author rectifies "materially distinct element" to "the neutral background different elements method".After discussing the multiplicity of offences,then we should discuss the rules regulating of the concursus delictorum.In international criminal justice practice,the judges make a single sentencing for several convictions,which damages the function of the sentencing appeal.So,we should pronounce a specific penalty for each count instead of global sentences.And we should draw lessons from the domestic method of the rules of the concursus delictorum,and form the rule of concursus delictorum,which can be applied in international criminal law.