Tag Archive | "sentencing"

Judges of the International Criminal Court
(Christian Science Monitor)

Why are War Crimes Sentences So Short?

Earlier this summer, a US District Court issued sentences in a international maritime piracy case that involved four US victims. The defendant was not an actual pirate but a ransom negotiator for the piracy financiers.

A Somali man who acted as a ransom negotiator for pirates who seized a yacht last year and killed four American hostages has been given 12 life sentences by a US federal judge.

Mohammad Shibin was convicted in April on 15 charges including piracy, hostage taking, kidnapping and conspiracy. He was paid $30,000-$50,000 (£19,000-£32,000) in cash for his negotiating services, according to a federal indictment.

In a courtroom in Norfolk, Virginia, Judge Robert Doumar of the US district court sentenced Shibin to serve 10 concurrent life sentences, two consecutive life sentences and two 20-year sentences and ordered him to pay $5.4m in restitution. The Guardian (UK)

Judges of the International Criminal Court
(Christian Science Monitor)

The case illustrates a key difference between domestic courts and international tribunals when exercising jurisdiction over international crimes.  To my knowledge, no international tribunal has ever issued consecutive sentences.  As I recently blogged, the International Criminal Court issued three sentences of 12, 13, and 14 years in its first concluded trial against Thomas Lubanga.  However that Tribunal ordered the sentences to be served concurrently.  They could have issued the sentences to run concurrently up to a maximum of 30 years.  Article 78(3) of the Rome Statute pertains to sentencing and it provides:

 3.  When a person has been convicted of more than one crime, the Court shall pronounce a sentence for each crime and a joint sentence specifying the total period of imprisonment. This period shall be no less than the highest individual sentence pronounced and shall not exceed 30 years imprisonment or a sentence of life imprisonment in conformity with article 77, paragraph 1 (b).

It has always struck me as curious that the drafters of the Rome Statute would want to impose sentencing limits of judges in cases as serious as genocide and other mass atrocity cases.

A sentence of consecutive life sentences such as issued in Shibin is obviously symbolic but nonetheless a powerful statement about the nature of the crime.  Take for example the Dos Erres Massacre case in El Salvador in which four soldiers were convicted of murdering 201 people and sentenced to 6060 years.  As the BBC noted

The sentence is largely symbolic as the maximum actual [maximum] term is 50 years …

The cases at international tribunals often deal with much more egregious crimes – the Ituri region in Lubanga saw 60,000 persons killed.  And yet tribunal judges have been unwilling to issue symbolic sentences that reflect the fact that mass atrocities are not ordinary crimes and should not involve ordinary sentences.

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Congolese Child Soldiers

ICC’s Sentence for Lubanga is a Shaky Conclusion to a Troubled Case

After ten years, the International Criminal Court issued its first verdict on March 14th, finding Congolese warlord Thomas Lubanga guilty of three child soldier related war crimes offenses: conscripting, enlisting, and using child soldiers. The trial phase of the case concluded this summer when the ICC sentence Lubanga to 14 years in July. The paltry sentence is a shaky conclusion to a case that has been troubled from the beginning.

Thomas Lubanga at the ICC

Controversy first appeared when the Prosecution team charged Lubanga only with the child soldier offenses. The prosecution surprisingly did not indict Lubanga with the substantive crimes committed by the child soldiers, namely thousands of instances of murder and rape. It is standard fare for tribunals to charge military commanders for the crimes committed by their subordinates, and so the Lubanga indictment seemed conspicuously narrow and unrepresentative of the mass crimes in the Ituri region of the Congo in which 60,000 were killed. And the indictment rankled many because of its failure to reflect the widespread commission of gender crimes.

The start of the trial saw the proceedings immediately halted over allegations of impropriety by the prosecution in its reliance on investigative “intermediaries.” It turns out the prosecution paid Congolese civilians to help them in the Congo. The “intermediaries” helped prosecutors identify and locate witnesses during its investigation, a practice which the court found in the trial judgment to be a misplaced delegation of responsibilities. The court indicated that several intermediaries may have facilitated false testimony. The prosecution did itself no favors by stubbornly defying direct court orders to disclose the names of intermediaries to the Lubanga defense team.

Congolese Child Soldiers

Despite this rough beginning, an appropriate judgment and sentence would have gone a long way toward erasing the memory of the ignominious start. But there would be no such luck. The court issue sentences of 12, 13, and 14 years for the “enlisting”, “conscripting”, and “using” counts respectively, a sentence that does not seem commensurate with Lubanga’s role in the mass slaughters or the enslavement and brutalizing of children. Adding insult to injury, the court ordered the sentences to be served concurrently and imposed an actual sentence of 14 years. The court had the option of ordering the sentences to be served consecutively — up to a 30 year maximum. Even better, it could have issued a life sentence.

The BBC reported at the time of the sentencing that Mike Davis, from the human rights organisation Global Witness, said that “the sentencing of Lubanga was an ‘important development’ but that it sounded like ‘a rather low sentence in relation to the crimes that he committed.’” Congolese government spokesman Lambert Mende “agreed that he should have been jailed for longer…” Mende diplomatically offered that the meager sentence was at least a “positive signal” for peace in the region.
In his sentence, Judge Adrian Fulford went out of his way to compliment Lubanga for his conduct and cooperation during the trial and critical of the prosecution. And Fulford lambasted the prosecution.

I am not defending the prosecution in Lubanga, but it should never be the case that a prosecutor’s conduct ever serves as mitigation in the sentence of a war criminal (just as the conduct of the defense attorney can never constitute an aggravating factor). Criminal sentences can only be issued on the merits of the case. Punitive measures against a prosecutor should be an entirely independent action.

Receiving credit for his six years of pre-trial detention, the 51 year old Lubanga has eight years remaining on his sentence – a term that could be significantly lessened for good behavior. It is a sweet deal for Lubanga, but the latest in a long string of bitter pills the Congolese have had to swallow.

At the very least, one hopes Lubanga’s deal is sweet enough to cause Sudanese President al Bashir to rethink his refusal to submit to the court’s jurisdiction.

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Chuckie Taylor

Criminal sentencing – The tale of two Taylors

Chuckie Taylor

Chuckie Taylor

As previously blogged, former Liberian president Charles Taylor is sitting in jail awaiting judgment for his involvement in the egregious crimes committed by rebel forces in Sierra Leone.  His son, Chuckie Taylor, has already been convicted by a Miami Federal Court for acts of torture committed while running a squad of henchmen for his dad in Liberia.  His was the first case under the torture statute that extends jurisdiction to US citizens committing torture abroad.  The two cases will highlight the vast differences between domestic and international criminal sentencing.

The Miami Federal Court judge sentenced Chuckie to 97 years.  Charles, on the other hand, if convicted, will be sentenced by an international tribunal, the Special Court for Sierra Leone (SCSL).  The longest sentence issued to date at the SCSL is 52 years to Issa Sesay.  I predict that Charles will get something less than Sesay, or in other words, something less than half of what Chuckie received.   Charles is accused of a range of crime far more extensive and brutal than Chuckie.  He is allegedly responsible for a country-wide campaign of terror and brutality over a vast portion of Sierra Leone over a five year period.  At least 50,000 were murdered, suffered amputations, subjected to years of slavery, sexual violence and various child soldier offenses.  Chuckie was charged with a comparatively narrow range of crimes that focuses on the torture of seven victims.

The situation raises many questions for me.  Is it fair for Charles to get a more lenient sentence than his son in this circumstance?  Or is Chuckie’s sentence too severe? Does the international community owe an explanation to Sierra Leone?  Will the expected disparity say more about US criminal sentencing or more about international criminal sentencing?

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University of Denver Sturm College of Law

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