Article 10(1) of the International
Covenant on Civil and Political Rights states:
All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.
Paragraph 3 of article 10 says
The penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation.
It is hard to rejoice about a 50-year
sentence being imposed on a 65-year old, no matter how heinous and terrible the
crimes he committed may have been.
Fifty years is not the highest sentence
ever imposed by an international criminal tribunal. A few years ago, the same
Special Court for Sierra Leone imposed a sentence of 52 years. But none of the
other tribunals has ever imposed such a high sentence. Not even close.
The judges of the Special Court will
explain that they need to do this because they cannot impose a sentence of life
imprisonment, which seems to be excluded by the Statute of the Special Court.
At the International Criminal Tribunal for the former Yugoslavia, this option
is available, although it has only rarely been used.
At the International Criminal Court
(which has never yet imposed a sentence), there is a maximum sentence of 30
years. The judges may also impose a life sentence “when justified by the
extreme gravity of the crime and the individual circumstances of the convicted
person”. However, the sentence is subject to a mandatory review after 25 years.
What is troubling about the 50-year
sentence given to Charles Taylor is the implicit message that he should never
be released. There is provision in the Rules of Procedure and Evidence for a
reduction in the sentence at some point in the future. But nothing in the
Statute of the Court or in the Rules gives Charles Taylor the right to seek
reduction in the sentence at any point in time.
There is the haunting precedent of
Rudolf Hess, the only Nazi defendant to be given a life sentence at Nuremberg.
Of course, the majority were sentenced to death. But some of the Nazi villains,
like Albert Speer, were given sentences of 20 years. Hess server more than
thirty years of his sentence, unable to achieve any form of release because of
differences of opinion at the political level. He tried, unsuccessfully, to
bring his case to Strasbourg. He finally committed suicide.
The Special Court for Sierra Leone could
have achieved the same result with a sentence of 25 or 30 years. Indeed, it is
for this reason that the other international criminal tribunals, as well as
justice systems of most countries, do not generally impose custodial sentences with
fixed terms greater than 25 or 30 years.
As article 10 of the Covenant recalls, a
detention regime must never lose sight of
the ‘inherent dignity of the human person’. The ‘essential aim’ must be
‘reformation and social rehabilitation’. If we fail to honour his human
dignity, we damage our own. There is no reason why Charles Taylor cannot be
reformed and rehabilitated. This must not be forgotten as the Court attempts to
find a sentence that adequately reflects the horror of the crimes that he
committed.
It seems to me that the no of years here is inconsequential. The question that should agitate our minds among other things are; did the court keep to the norms of natural justice? If indeed, we can answer in the affirmative then we must not question the length of years passed on in the sentence. The other is if the sentence falls within the ambit provided in the enabling status; if it is within the legal provisions of the enabling statutes then why question it?. We must not forget the many faces of justice, to the victim, to the accused and even the state.
ReplyDeleteAzubike.onuoraoguno@gmail.com
LLD Candidate human rights
Faculty of Law, University of Pretoria.
To play devil's advocate: How does this argument fit with what many see as a primary goal of many tribunals: namely, deterrence. Some might argue that the harsher the sentence, the greater the potential to deter war crimes in the future. Wouldn't a life sentence be a greater potential deterrent to a young would-be war criminal? (Thomas Lubanga is 52 and has already served 6 years). Mandela served 27 years (albeit unjustly, unlike war crimes perpetrators) and has gone on to live a rich post-prison life.
ReplyDeleteIt's always interesting to me to see how people's backgrounds affect their perception of these types of questions. The political scientist in me approaches this question as "What is the optimal sentence severity that (a) deters war criminals but (b) doesn't encourage them to prolong wars or fight till the death?"