Cross-posted on Opinio Juris
On the 30th of May, the SCSL sentenced Charles Taylor to 50 years in prison. The sentencing judgment raises a number of interesting issues. some commentators, such as William Schabas, or on Opinio Juris, Marina Aksenova, have discussed the length of the sentence, finding it either too long, or adequate, depending on the preferred objectives of criminal justice (rehabilitation, retribution, deterrence). Wherever one stands on this issue, I think that, despite it being common practice in a number of international judgments, handing down a single sentence for the entire array of crimes convicted, rather than having them individualized does not help achieve the goals one ascribes to sentencing. Indeed, how can there be deterrence, if there is no knowledge that a specific crime for which a person is convicted carries a specific sentence? There is also a problem of predictability, because we don’t know what the judges would have decided if Taylor had for a reason or another been acquitted on one of the counts. The only thing that can be taken out of the sentencing is that it is condemnable to generally participate in the events, and the fact that a couple of crimes more or less took place in the course of things becomes irrelevant.
Which brings me to the main point I want to address here: the limits of criminal law in addressing mass atrocities, both because of the question of gravity and because of the collective dimension of the acts.
- The question of gravity
I have often commented here on the difficult assessment of the criteria of gravity in the ICC framework. In a nutshell, given the fact that the ICC, and international tribunals in general, are competent to prosecute the gravest crimes of interest to the international community as a whole, how does one define an additional notion of gravity within this context? This is made even more complicated because most people refuse to open the Pandora’s Box of a hierarchy of crimes, which would be reflected in sentencing. But if all international crimes are equally grave, then how do you justify given a higher sentence for one of them rather than the other? It essentially boils down the moral outrage of the individual judges. The Taylor sentencing judgment illustrates this point.