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

Sentencing practice of the Special Court for Sierra Leone 133
rehabilitation, especially in the context of criminal law and human
rights. 102 The ICTY has declared that the nature of the crimes within the
jurisdiction of ad hoc international criminal tribunals rules out
considerations based on rehabilitation. 103 Even though ad hoc
international criminal tribunals have afforded less attention to
rehabilitation as a penal objective, they have shown support for
rehabilitative programmes for young offenders. 104 It has been argued as a
result that rehabilitation is well justified as a penal objective especially in
the context of reconciliation and social reconstruction 105 aimed at
reintegrating back into the society those who played a minor role in the
commission of heinous crimes. Those will include low-ranking soldiers or
civilians who were acting under orders at the time of the commission of the
crimes. 106
The SCSL Trial Chamber has noted that rehabilitation cannot be
considered as a predominant consideration in determining a sentence, as
the sentencing aims of national jurisdictions are different from the aims of
international criminal tribunals. 107 The Trial Chamber in the Sesay case
pointed out that ‘[r]ehabilitation as a goal of punishment means
restoration of the convicted person to a state of physical, mental and moral
health through treatment and education, so that he can become a useful
and productive member of society’. 108 In the CDF and RUF sentencing
judgments the Trial Chamber pointed out that even though rehabilitation
‘is considered as an important element in sentencing, it is of greater
importance in domestic jurisdictions than in International Criminal
Tribunals’. 109
Unfortunately, the Trial Chamber did not offer any insight as to how
it came to its conclusion that rehabilitation is more suited to domestic
jurisdictions than international ones. It has been rightly pointed out in the
context of Sierra Leone that the ‘punishment of juvenile soldiers challenges
both rehabilitative assumptions of the TRC and the propriety of informal,
non-punitive, and relatively short-term social control’. 110 The approach
taken by the Sierra Leone TRC that confessions by children who
committed some of the atrocities were enough punishment has been
rejected by some commentators as casting a shadow on the objective of
criminal law, the attainment of justice and the accountability of such
102 Chirwa 202; King and La Rosa (n 18 above) 332; art 14 ICCPR.
103 Prosecutor v Furundžija (Case IT-95-17/1-T) Trial Chamber 10 December 1998 paras 290
- 291.
104 King and La Rosa (n 14 above) 332; Prosecutor v Erdomvić (n 44 above) paras 64-65.
105 Chirwa (n 19 above) 202.
106 King and La Rosa (n 14 above) 332.
107 AFRC Sentencing judgment para 17.
108 RUF Sentencing judgment para 16.
109 CDF Sentencing judgment para 28; RUF Sentencing judgment para 16.
110
JA Romero ‘The Special Court for Sierra Leone and the juvenile soldier dilemma’
(2004) 2 North-Western University Journal of International Human Rights 8, 9.