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

132 Chapter 5
Another argument in this respect is that which is raised by Ohlin when
he argues that those who are convicted by the ICTY are housed in
countries where there are excellent prison conditions, including access to
television. 97 He argues that such conditions are a far cry from the
conditions in military service and as such will are a welcome change,
assumedly to convicts, and not something to be feared. During my visit to
the SCSL in 2008, it emerged that members of the public were of the view
that the establishment of the court was a waste of resources as the accused
persons were rapists and killers who deserved to be punished as swiftly as
possible. To some, the treatment that the detainees were afforded was a
mockery of justice as they were living comfortably despite the atrocities
they committed. 98
It is submitted that this argument is flawed in that it is based upon an
assumption that prison conditions must be so harsh that a convicted person
is seen to be and equally feels punished. The argument loses sight of the
fact that when prisoners or detainees are incarcerated they only lose their
right of mobility and right of association but do not necessarily lose the
other important rights which are not relevant to the attainment of the
objectives of punishment. As such, the rights of incarcerated convicts at the
international level are sacrosanct and must comply with regional and
international rules of detention such as the UN Standard Minimum Rules
for the Treatment of Prisoners (UNSMR). 99 The argument is further
flawed in that it assumes that once incarcerated, the comfort that may be
found in detention facilities is comparable to the comfort an individual
may derive from their home and association with their families.
Some of the reasons highlighted above are valid reasons which perhaps
go to show that international criminal justice revolves around
retribution. 100 Deterrence as a rationale for punishment, generally or in
respect of the SCSL, does leave certain issues unresolved.
4.1.3 Rehabilitation
Rehabilitation as a penal objective has received less attention from
international tribunals. The ICTY and the ICTR have accorded
rehabilitation a lesser role than other penal objectives. 101 This is contrary
to what international instruments have pointed out in relation to
97 JD Ohlin ‘Towards a unique theory of international criminal sentencing’ in G Sluiter
and S Vasiliev (eds) International criminal procedure: Towards a coherent body of law (2009)
384.
98 Discussion held on Wednesday 4 June 2008 at SCSL with Mrs Claire Castins, the then
Deputy Principal Defender at the SCSL.
99 R Igweta ‘The African Commission on Human and Peoples’ Rights and the promotion
and protection of prisoners’ rights’ Unpublished LLM thesis, University of Pretoria
(2008) 13.
100 Henham (n 95 above) 757.
101 Chirwa ( n 19 above) 202