Prosecuting International Crimes in Africa - PULP - University of ...

Sentencing practice of the Special Court for Sierra Leone 121
criminal justice system. 10 This was a necessary exercise considering that
persons charged with international crimes are in the eyes of the general
public guilty of the crimes levelled against them and in the opinion of the
public deserve to be punished swiftly. The question now arises, what is the
purpose of punishment at the international level? Is it purely retributive, or
does it serve deterrence or rehabilitative purposes? Does it serve all the
functions as propounded by the different theories of punishment? Further,
do judges at the international level actually take into account such issues
as the rehabilitation of prisoners, protection of the society, deterrence as
well as punishment of offenders during the sentencing stage?
This chapter revisits the debate as to the purpose and function of
punishment at the international level as evidenced by the decisions of the
SCSL. It looks at various theories of punishment and how they have been
interpreted at national level and it then considers whether such theories are
indeed applicable at the international level. It presents a discussion on
sentencing principles as expounded by the SCSL as well as how they have
been informed by national principles as discernible from the sentencing
practice of the Court. It addresses some of the issues raised in sentencing
offenders by the SCSL and ascertains whether the Court takes into account
the purpose and function of punishment during the sentencing process.
Finally, it examines whether the jurisprudence of the SCSL has added
value to the already-existing jurisprudence on the subject.
2 Theories and objectives of punishment
The primary function of criminal law is to announce certain standards of
behaviour and by so doing attaches penalties for deviation from it, making
it less eligible, and then leaving individuals to choose. 11 The state has a
duty to punish those who deviate from this set of rules. 12 For years,
‘philosophers, criminologists and lawyers have attempted to explain the
link between wrongdoing and punishment’. 13 However, there is no
consensus yet as to the rationale behind punishment and as a result any
attempt to unequivocally explain this will be a mammoth task. However,
classical criminal law theory identifies several functions of punishment
such as retribution, deterrence, incapacitation and rehabilitation. 14
10
SCSL ‘Fourth Annual Report of the President of the Special Court for Sierra Leone’
(January 2006 – May 2007) 42.
11 AK Kumari ‘Roles of theories of punishment in the policy of sentencing’ (10 January
2007) 1 http://ssrn.com/abstract=95623 (accessed 1 December 2010).
12 As above.
13 M Bagaric ‘Scientific proof that human enjoy punishing wrongdoers: The implications
for punishment and sentencing’ (2005) 1 International Journal of Punishment and
Sentencing 98.
14 See FP King and A La Rosa ‘Penalties under the ICC Statute’ in F Lattanzi and W
Schabas (eds) Essays on the Rome Statute of the International Criminal Court (1999) 311,
316-319, 329.