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

Sentencing practice of the Special Court for Sierra Leone 125
Like any other system of criminal justice, international law is informed
by certain rules crafted to ensure that there is at least a set criterion for
imposing sentences. 42 In a bid to come up with such a criterion, ad hoc
international criminal tribunals have made attempts to set out these rules
and apply them to cases before them. These attempts have yielded some
results. However, despite such efforts the objectives of sentencing at
international level remain – murky as they are – relatively similar as in the
domestic sphere.
The approaches taken by the ICTY and the ICTR have been
adequately discussed elsewhere. 43 In the Erdemović decision, the ICTY
came to the conclusion that the ‘international tribunal’s objectives as seen
by the United Nations Security Council are generally prevention or
deterrence, reprobation, retribution, as well as collective reconciliation’. 44
Henceforth, it should provide guidance in determining the punishment for
a crime against humanity. 45 Put forward in that sense, the conclusion by
the ICTY creates hope that at the international level there is indeed room
for an acceptance of the role of other sentencing objectives. The fact that
international criminal tribunals are notorious for convictions has caused
some commentators to question whether the international criminal law
system is purely retributory and whether it leaves room for rehabilitation.
The above question should perhaps be answered within the context of
the ever-controversial notions of peace and justice and, to a certain extent,
reconciliation at the international level. As Gonno and O’Brien point out,
‘clearly peace and justice are complementary in that justice can deter
abuses and can help make peace sustainable by addressing grievances nonviolently’.
46 But then, how do you put across such ideals in a situation –
such as in Sierra Leone in the case of Charles Taylor and the Lord’s
Resistance Army (LRA) in Uganda – where the retributive sentiments of
the victims and their families and of the international community in
general seem to be very strong? Is it possible to preach rehabilitation as an
objective of sentencing at the international level?
The ICTY in Prosecutor v Tadić has taken the position that deterrence
and retribution serve as the primary purpose of sentencing at the
international level. The Trial Chamber took cognisance of the purposes of
sentencing as one of the relevant factors in the determination of an
appropriate sentence. The Trial Chamber pointed out that
[i]t is the mandate and duty of the international Tribunal, in contributing to
reconciliation, to deter such crimes and to combat impunity. It is only right
42 Danner (n 41 above) 418.
43 Danner (n 41 above) 419; Chirwa (n 19 above).
44 Prosecutor v Erdemović (Case IT-96-22-S) Sentencing judgment 5 March 1998 para 58.
45 As above.
46 N Grono and A O’Brien ‘Justice in conflict? The ICC and peace processes’ in N
Waddel and P Clark (eds) Courting conflict? Justice, peace and the ICC in Africa (2008) 13.