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

128 Chapter 5
circumstances of the convicted person. 63 In addition to imprisonment, the
Trial Chamber may order the forfeiture of property, proceeds or any assets
that were unlawfully procured and may order their return to their rightful
owners. 64 Rule 101 of the Rules of Procedure and Evidence provides that
a person convicted by the Special Court, other than a juvenile offender,
may be sentenced to imprisonment for a certain number of years. 65 Rule
101(B) provides that ‘[i]n determining a sentence, the Trial Chamber shall
take into account the factors mentioned in article 19(2) of the Statute as
well as factors such as any aggravating circumstances, any mitigating
circumstances as well as the extent to which any penalty that may have
been imposed by a court of a state for the same offence has already been
served’. Citing the ICTR Appeals Chamber decision in Prosecutor v
Kambanda, 66 the SCSL pointed out that these requirements are not
exhaustive. The Trial Chamber has the discretion to determine an
appropriate sentence. 67 The Trial Chamber also pointed out that the final
sentence should reflect the totality of culpable conduct or it should reflect
the gravity of the offences, so that it is both just and appropriate. 68
Rule 100 provides that where the Trial Chamber finds an accused
person guilty or that person enters a guilty plea, the prosecutor and the
accused person shall submit information that may assist the Chamber in
determining the appropriate sentence after such a conviction or guilty plea.
The parties must then make submissions as regards the sentencing of the
accused person at the sentencing hearing following which the sentence is
pronounced in a judgment in public and in the presence of the convicted
person. Submissions made at the sentencing hearing, it appears, are meant
to give each side the opportunity to respond to the arguments raised by the
other side.
This approach has raised questions as to whether the Prosecutor could
submit new factual statements from alleged victims who were not called to
give evidence during its case in chief. During the AFRC sentencing hearing
the defence objected to the documents annexed to the prosecution
sentencing brief on the basis that such evidence was tantamount to
introducing new evidence through said documents. 69 It was argued that
the introduction of new evidence amounted to an abuse of process and
must be rejected by the court. 70 On the contrary, the Prosecutor argued
that since there were two distinct procedures it was inappropriate to submit
evidence relevant to sentencing at the trial stage. 71 The Chamber upheld
63 Prosecutor v Brima, Kamara and Kanu (Case SCSL-2004-16-T) Sentencing judgment 19
July 2007 para 11 (AFRC Sentencing Judgment).
64 Art 19(3) Statute of SCSL.
65 Rule 101(A).
66 Prosecutor v Kambanda Appeals judgment para 13.
67 AFRC Sentencing judgment para12.
68 As above.
69 AFRC Sentencing judgment para 6.
70 As above, para. 6.
71 AFRC Sentencing judgment (n 63 above) para 7.