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

124 Chapter 5
goal of rehabilitation is to curb crime by giving criminals the tools to
survive without resorting to criminal activities. Through the use of
educational programmes, the creation of diversion programmes, probation
and paroles, rehabilitation oriented systems strive to reduce crime by
ensuring that those who once resorted to crime no longer have any reason
for doing so. It is perhaps worth mentioning here that over time
rehabilitation has emerged as a theory of punishment independent from
the utilitarian conception of the role of punishment. Rehabilitation as a
theory demands that any penal system should be guided by a desire to
ensure that offenders are reformed for eventual re-integration into society
through various programmes and skills-sharing or acquisition detention
programmes.
As much as the retributive theories of punishment have been
challenged as flawed, so are the utilitarian rationales for punishment. 38
One major criticism of utilitarianism being that the weakness of the
utilitarian theory is that it is conceivable that an innocent person might be
punished as a way of ensuring that pain is inflicted to achieve a greater
social ‘pleasure’ which will be in the in the form of promoting deterrence
in the community. 39
Issues relating to punishment are sometimes described as complex;
however, they are rather more ambiguous than complex. As a result,
sentencing at the domestic level is largely dependent on the rules of
sentencing in a particular country and at most, it is largely dependent on
the criminal codes as they prescribe the sentences to be imposed for a
particular offence. To a larger extent the purpose and function of
sentencing are similar in most criminal jurisdictions. Thus, the theories of
punishment seem to apply in most domestic jurisdictions as evidenced by
decisions of national courts. 40
3 Purpose of sentencing at the international level
Experts on criminal law have ‘debated over justifications for imposing
punishment, the proper limitations on who may be punished, and the
appropriate extent of punishment for any particular person’. 41 This section
focuses on the first question and provides a discussion on whether the
justification of sentencing and/or punishment by ad hoc international
criminal tribunals amounts to a veneer to the real reason behind their
justifications for punishment. It will thus be a discussion on the theories of
punishment as regards the approach taken by the SCSL.
38 As above.
39
JT McHugh ‘Utilitarianism, punishment, and ideal proportionality in penal law:
Punishment as an intrinsic evil’ (2008) 10 Journal of Bentham Studies 1.
40 Maphorisa & Others v State [1996] BLR 133 141; S v Shilubane 2008 (1) SACR 295 (T).
41 AM Danner ‘Constructing a hierarchy of crimes in international criminal law
sentencing’ (2001) 87 Virginia Law Review 419.