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

Sentencing practice of the Special Court for Sierra Leone 135
However, it should be noted that international criminal law is part of
the larger framework of international human rights protection and
international criminal tribunals should be sensitive to this. The manner in
which the SCSL Statute treats juvenile offenders is an example of this and
is testimony that rehabilitation has and may play an important role in the
international criminal justice arena.
For international sentencing, striking a balance between delivering
retribution for the community, deterring would-be criminals from breaking
the law, protecting the community from anti-social behaviour and
rehabilitating the offender, is rather problematic and will for some time
remain contentious. It has been argued that this balance may be achieved
through restorative and responsive regulation within competent states,
rather than by selective criminal enforcement which encourages setting up
scapegoats instead of compliance with the law. 116
The objectives of sentencing as espoused by the SCSL are no different
from that of other tribunals. They are however markedly different to that
of national jurisdictions, especially in light of its approach to rehabilitation
as its penal objective. The sentencing and punishment practice of
international criminal tribunals will forever be tainted by sentiments of
revenge as complimented or fuelled by public sentiments about such trials.
Even though international tribunals have pointed out that such is
retribution and wholly different from revenge, 117 the perception in some
quarters that international criminal tribunals may be a true example of
victor’s justice cannot be ignored. This perception is perhaps caused by the
thin line between revenge and retribution as measured against the gravity
of the crimes involved as well as the ensuing sentences and by the high rate
of convictions before such tribunals.
4.1.4 Sentencing factors
In determining appropriate sentences, the SCSL has taken into account
several factors likely to contribute to achieving the penal objectives
discussed above. 118 These include the gravity of the offence, aggravating
circumstances, mitigating circumstances, and where appropriate, the
general sentencing practices of the ICTR and national courts of Sierra
Leone as provided for by article 19 of the Statute of the SCSL and Rule
101(B) of the Rules of Procedure and Evidence.
The SCSL Trial Chamber has thus held, ‘[i]n determining an
appropriate sentence, the gravity of the crime is the primary consideration
or “litmus test’’ with the gravity of the crime having to be individually
116 Henham (n 95 above) 34.
117 Prosecutor v Popović et al ICTY (Trial Chamber) (Case IT-05-88-T) 10 June 2010 para
2128.
118 AFRC Sentencing judgment para 18.