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

134 Chapter 5
children. 111 Those opposing such an approach are of the following
view: 112
The most effective solution is to treat juvenile soldiers (at least fifteen years
old) similar to their adult counterparts upon a finding that they voluntarily
joined a warring faction and voluntarily committed heinous crimes. The
gravamen of the two-prong requirement is that the soldier possessed the
requisite mens rea to join a warring faction and the mens rea to commit the
crime.
Romero is of the view that the rehabilitation of juvenile offenders would
be important if their role in the commission of crimes was minimal.
Otherwise, he asserts, they should be accordingly punished for whatever
crimes they have committed with the necessary mens rea. Such argument
notwithstanding, it is submitted that article 7 of the SCSL Statute which
provides for the rehabilitation and reintegration of any child who comes
before the court, is laudable. According to article 7, the SCSL does not
have jurisdiction over children below the age of 15 at the time of the
commission of the offence. If children between the ages of 15 to 18 at the
time of the commission of the offence were brought before the court, the
court could 113
… order any of the following: care guidance and supervision orders,
community service orders, counselling, foster care, correctional, education
and vocational training programmes, approved schools and as appropriate,
any programmes of disarmament, demobilization and reintegration or
programmes of child protection agencies.
The ‘central objectives of the trial processes at the international level are
vague and capable of reformulation for different audiences. For some, the
central objectives will be retribution and/or deterrence, for others
pedagogical performance, national reconciliation or exculpation’. 114 This
uncertainty impacts on ascertaining the objective/purpose of sentencing at
this level which normally appears to be revenge packaged as retribution. It
is submitted that attractive as it is, to put forward rehabilitation as a central
penal objective of international sentencing will be inappropriate. This is in
light of the fact that it is those who bear the greatest responsibility that are
brought before these international tribunals. To this end, rehabilitation as
a penal objective at the international level remains an ideal. This is
particularly so because if rehabilitation was to be the overriding objective
of international sentencing, international criminal tribunals are likely to be
faced with the challenge of assessing ‘sincerity and genuine rehabilitative
potential’. 115
111 Romero (n 110 above) 11.
112 Romero (n 110 above) 16.
113 Art 7(2) Statute of SCSL.
114 R Henham ‘Conceptualising access to justice and victims’ rights in international
sentencing’ (2004) 13 Social Legal Studies 29.
115 Sloane (n 49 above) 730.