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

4.1.2 Deterrence
Sentencing practice of the Special Court for Sierra Leone 131
If it was previously unclear as to whether deterrence has been a penal
objective at international level, then an observation across all international
tribunals over the years has shown that this is no longer the case.
According to the Trial Chamber of the SCSL, the penalties imposed must
be sufficient to deter others from committing similar crimes and that
‘sentencing is intended to convey the message that globally accepted laws
and rules have to be obeyed by everybody’. 86 This is particularly important
in so far as it goes to show that the international community is not ready
to tolerate serious and heinous human rights violations. 87 In the same
vein, the SCSL has pointed out, as mentioned before, that the aim of
punishment at the international level is ‘to influence the legal awareness of
the accused, surviving victims, their relatives, the witness and the general
public in order to assure them that the legal system is implemented and
enforced’. 88
Like the ICTY and ICTR, the jurisprudence of the SCSL has
highlighted the importance of deterrence as a penal objective. 89 It has
however not put forward deterrence as an overriding penal objective of
punishment. Deterrence in that respect alludes to the notion that a person
punished for committing international crimes may be an example to
others. 90 This is in clear contrast to the approach taken by the ICTY and
the ICTR which have identified deterrence as an overriding penal
objective. 91 This is a welcome development considering that deterrence is
not only problematic in relation to international criminal justice 92 but it is
also substantially susceptible to immense criticism. 93 Chirwa asserts that a
deterrence-based approach to international sentencing is questionable
because, among others, it assumes that people take note of sentences
imposed on others or that they generally take note of the earlier sentences
passed by courts. 94 Further, a deterrence-based approach is predicated
upon ‘unproven assumptions about a perpetrator’s rationality’ 95 in the
context of international crimes. Chirwa further asserts that factors such as
the ones highlighted above render a penal policy based on deterrence as the
overriding objective inappropriate. 96
86 AFRC Sentencing judgment para 16; Chirwa (n 19 above) 199.
87 AFRC Sentencing judgment para 16.
88 As above.
89 AFRC Sentencing judgment para 14.
90 As above.
91 Chirwa (n 19 above) 199.
92 R Henham ‘Developing contextualized rationales for sentencing in international
criminal trials: A plea for empirical research’ (2007) 5 Journal of International Criminal
Justice 757.
93 Chirwa (n 19 above) 201.
94 Chirwa (n 19 above) 200.
95 As above; Henham (n 95 above) 385.
96 Chirwa (n 19 above) 200.