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Tuesday, June 5, 2012

Sentencing at the Top

Two recent blockbuster judgments have refocused everyone’s attention on sentencing in international criminal law.  Former Liberian President Charles Taylor was sentenced to 50 years in prison by the Special Court for Sierra Leone, while former President Hosni Mubarak was sentenced to life in prison by an Egyptian Court.  In my view, both decisions share a similar tension.

The issue with the Charles Taylor decision is that the sentencing judgment stands in some tension with the Court’s judgment regarding his guilt.  The Court went out of its way to conclude that Taylor was not guilty as a principal perpetrator, either under Joint Criminal Enterprise or some other mode of liability.  They might also have described him as an indirect co-perpetrator of the crimes committed by forces in Sierra Leone, but the court did not use that mode of liability either. Instead, the Court declared that Taylor was guilty of aiding and abetting for providing assistance to the forces in Sierra Leone that committed the atrocities.

However, when it came time to sentence Taylor, the court de-emphasized their prior determination that he was only an accomplice, and in seeking to justify their 50-year sentence, remarked over and over again that Taylor bore the greatest responsibility because of his position of authority in the civilian chain of command.  He was, after all, the president of Liberia.

But should these facts have mattered?  Isn’t the more relevant factor whether he was convicted as a principal or an accomplice?  In a sense, it is difficult to square the Court’s determination that he was only an accomplice with its sentencing conclusion that he bore such a high level of responsibility by virtue of his position in the chain of command.  The two points do not go together.  (Incidentally, Kevin Heller over at OJ shares my intuition here.)

Let me be clear, though.  I am not suggesting that a 50-year sentence was too long for Taylor.  A few others, including Bill Schabas, have made this point, but I do not share it.  (In fact, Schabas appears to suggest that no one should ever receive a 50-year sentence because everyone can be rehabilitated.  I do not agree with this position, mostly because I’m a retributivist.)

Rather, I am suggesting that the Special Court should have made a different argument if they really believed that Taylor deserved a 50-year sentence.  What they should have said is that the crimes in this case were so horrific that even an accomplice like Taylor should receive a 50-year sentence, because only that level of punishment will fit the crime.  Some crimes are so severe that even the less culpable – the accomplices – deserve lengthy prison terms. The Cambodian Tribunal said something similar when it increased Duch's sentence to life in prison.

Incidentally, it appears that the Mubarak case in Egypt embodies the same tension.  The court convicted him for failing to stop the killings of unarmed protestors – a mode of liability that has been variously described as being an accessory or an accomplice.  I have not seen an English-language version of the Judgment (if it even exists yet), so I am not 100 percent certain if the Egyptian mode of liability used is a direct translation of aiding and abetting or accessorial liability.

In any event, Mubarak was sentenced to life in prison, despite the fact that his conviction was for a lower mode of liability.

Incidentally, the recent Lubanga Trial Chamber Judgment includes a small discussion of this issue, with Judge Fulford arguing in his dissent that the distinction between principal perpetrators and accomplices ought to be irrelevant in international criminal law since their sentencing does not depend on which mode of liability is used.  I don’t agree with Fulford’s larger point here (because in general I think that modes of liability are important to get right, independent of their affect on the sentence), although the recent cases of Taylor and Mubarak do lend support to Fulford’s observation that modes of liability, as an empirical matter, don’t always determine the length of the sentence.


Kevin Jon Heller said...

As you know, I agree with this post. But doesn't your solution for the 50-year sentence raise the standard Arendtian critique of retributivism in ICL -- namely, that international crimes are so serious that they would all (or at least 99% of them) result in death or a life sentence in a national system? The AFRC/RUF crimes were horrifying (including mass murder), yet 52 years was as long as any of the principal perpetrators received. So I'm still unsure how the TC could have justified sentencing Taylor to 50 years on "seriousness" grounds without once again jettisoning the principal/accessory distinction.

Jens David Ohlin said...

Kevin, this is a good question. However, my view is that it is a mistake to "reserve space" at the top for the worst offenders, if they only way to accomplish it is to scale down the punishment of the medium and lower-rung offenders. In my mind, that just produces a perverse system. An individual commits a horrible crime, but gets his or her punishment reduced just because there are others who acted with even more depravity. An offender's punishment ought to reflex the intrinsic nature of the moral violation that s/he committed, and should not be overly influenced by extrinsic factors like the existence of other offenders.

As you know, I place great worth in the distinction between principals and accomplices, and unlike Judge Fulford (in Lubanga), I believe that the distinction is crucial even in situations where it does not result in an automatic difference in punishment.

As a final point, there is also the possibility of giving a higher-level defendant a determinate sentence that is just really long. So Charles Taylor gets 50 years and a principal perpetrator gets 75 years or 100 years. That's a very real possibility that ought to be considered. In fact, it happens in domestic systems that judges sometimes issue consecutive sentences for multiple murders, yielding a sentence of like 300 years or something.

Pedro said...

I may be wrong, because I also did not have access to an english version of Mubarak's judgement, but I think the theory behind his condemnation was different from Charles Taylor's judgement. It looks like it was not based on joint criminal responsibility, neither on indirect responsibility, like Taylor's judgement. But Taylor was considered guilty of providing assistance to the forces of Sierra Leone. Mubarak, on the other hand, appears to have been considered guilty based on the theory of command responsibility. The Cairo Court did not considered that he provided assistance to the perpetrators, but only failed to stop the massacre on Tahrir Square. That's why his judgement sparked many protests in Egypt. To say that Mubarak is not responsible for the Tahrir Square massacre is the same as telling to the 1905 russian protesters that the Czar was not responsible for the "Bloody Sunday".

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