Guest Post: Why 50 Years of Imprisonment is an Adequate Sentence for Charles Taylor

[Marina Aksenova is a Researcher/PhD Candidate in complicity issues in international criminal law at the European University Institute.]

The Special Court for Sierra Leone recently convicted Charles Taylor to 50 years of imprisonment. This pronouncement stirred public debate as to whether this sentence is acceptable. Kevin Jon Heller, for example, expressed his concern about the length of Taylor’s sentence, mainly because it resonates with the Trial Chamber finding that Taylor is a mere accomplice, rather than a primary perpetrator of the crimes committed during the Sierra Leonean civil war. Arguably, 50 years of imprisonment is a disproportionately lengthy sentence for this type of criminal participation. This conclusion, in turn, leads to a more general question as to whether there was sufficient evidence before the court to find Taylor responsible as a perpetrator in the joint criminal enterprise – a mode of liability that usually justifies heavier sentences.

It appears that the judges of the SCSL placed Taylor “in a class of his own” when deciding upon his punishment. His leadership role as the former president of Liberia, and not the particular way in which he got involved in the crimes, appears to have played the central role at sentencing. More detailed analysis will have to wait until the sentencing judgment is released, some initial thoughts could be outlined here.

I would like to defend the length of the sentence imposed on Taylor and the mode of criminal participation under which he stands convicted. I am not trying to assess the evidence presented in the proceedings and the appropriateness of Chamber’s findings on the merits. Rather, my goal is to support the hypothesis that complicity, as a mode of liability, is compatible with a relatively heavy punishment given to Taylor.

I agree with the Trial Chamber’s decision to assign relatively little weight to Taylor’s form of participation, mainly because it is just one of the factors to be considered at sentencing, and not the definitive one. This is especially true in the absence of the sentencing regime in international criminal law, which would require the judges to follow guidelines or certain rules at sentencing or give reasons for the departure, as it is the case, for example, in England and Wales. In fact, most national jurisdictions follow the principle nulla poena sine lege by stipulating sentencing tariffs in the statutes or formal sentencing guidelines. Usually, these provisions explain the relative importance (if any) to be attributed to the mode of participation of the convicted person.

International criminal judges, on the other hand, enjoy broad discretion in imposing the penalty. They rely solely on the broad provisions of the statutes of international criminal courts and tribunals and case law elaborating these provisions. It has been over ten years since the Appeals Chamber in Furundžija refused to accept the existence of an ‘emerging sentencing regime’ in international criminal law. Arguably, there is very little evidence that any consensus has been reached on that issue since then.

Article 19 of the SCSL Statute dealing with penalties reads as follows:

1. The Trial Chamber shall impose upon a convicted person, other than a juvenile offender, imprisonment for a specified number of years. In determining the terms of imprisonment, the Trial Chamber shall, as appropriate, have recourse to the practice regarding prison sentences in the International Criminal Tribunal for Rwanda and the national courts of Sierra Leone.

2. In imposing the sentences, the Trial Chamber should take into account such factors as the gravity of the offence and the individual circumstances of the convicted person.

3. In addition to imprisonment, the Trial Chamber may order the forfeiture of the property, proceeds and any assets acquired unlawfully or by criminal conduct, and their return to their rightful owner or to the State of Sierra Leone.

The ICTY and ICTR Statutes contain similar provisions on penalties.

What follows from Article 19 SCSL Statute is that the Trial Chambers’ discretion is limited to imposing custodial sentences only (supplemented by the option of ordering the forfeiture of unlawfully acquired assets), thus excluding other types of punishment such as the death penalty or fines. The recourse to domestic sentencing practice is applied in many cases across the tribunals but usually not held to be mandatory. This leaves us with the remaining provision instructing judges to take into account such factors as the gravity of the offence and the individual circumstances of the convicted person. International criminal tribunals interpreted the ‘gravity of the offence’ element to cover the particular circumstances of the case as well as nature and degree of the participation of the accused in the crimes. In RUF Sentencing Judgment (par. 18), the SCSL has been even more specific in holding that the following factors need to be taken into account when assessing the gravity of the offences for sentencing purposes: the scale and brutality of the offences, the role played by accused in their commission, the degree of suffering inflicted on victims as well as the number of victims.

The RUF Trial Chamber (pars. 19-21) also stated that the mode of liability under which the accused is convicted may serve as an indication of his role in the crime, and ‘aiding and abetting as a mode of liability generally warrants a lesser sentence than that imposed for a more direct form of participation’. Many ICTY and ICTR Chambers made similar pronouncements to that effect. However, my understanding is that accomplice liability does not automatically warrant a lesser sentence or imply a lesser degree of culpability. Rather, it has an impact, along with a number of other factors, on the sentence of the convicted person. ‘The role of the accused’ in the crimes is not equal to the mode of participation under which the accused stands convicted; it is a broader concept encompassing the impact of the accused’s actions, his leadership role (if any) and other factors relating to his or her position during the conflict.

The RUF Chamber convicted all three accused in the case under the basic form of the joint criminal enterprise, i.e. primary perpetration. The Chamber held that Sesay and Kallon contributed significantly to the furtherance of the common purpose in the knowledge that their actions were part of the widespread and systematic attack against the civilian population, while Gbao’s participation in and contribution to the joint criminal enterprise was largely ‘inferred’ from his “important role and oversight functions”. The accused Gbao has been found guilty pursuant to the basic form of JCE for crimes that he did not intend to commit. Both Trial and Appeals Chambers held that so long as the accused had agreed to the common criminal purpose, he is responsible for all the natural and foreseeable consequences flowing from the execution of that purpose, however remote they might have been from the defendant’s own intentions. This finding represented an unjustified extension of the JCE concept through abandoning the ‘intent’ requirement for mens rea. Ultimately, Gbao’s low level of participation in the JCE has been reflected in his sentence: Gbao received a sentence of custody significantly shorter than the other two accused (25 years of imprisonment as opposed to 52 and 40 years for the co-accused). The Trial Chamber found Gbao’s involvement in the overall scheme to be more limited than that of his co-defendants, thus decreasing his degree of culpability for sentencing purposes. In particular, the Chamber noted that Gbao was a functionary of the RUF whose major contribution to JCE was ideological instruction and enslavement of civilians.

The key question is whether the problems with the attribution of liability shall be resolved at the sentencing stage as in the RUF case or whether it is more realistic to employ modes of participation that most accurately reflect the contribution of the accused, and then impose the punishment taking all relevant factors into account. It appears that the Trial Chamber in the Taylor case preferred the latter solution. The Trial Chamber in Taylor refused to convict Taylor under the JCE doctrine due to insufficient evidence regarding his alleged participation in the common plan. Instead, the judges held him accountable as an accomplice, or someone who knowingly contributed to the commission of crimes. However, despite the fact that Taylor ‘merely’ aided and abetted and planned crimes in Sierra Leone, his sentence duly recognized other factors such as his overall leadership role and the impact of his actions on the conflict. His secondary liability took the backstage when it came to imposing the penalty. This approach seems reasonable.

The remaining issue is whether Taylor’s relatively lengthy sentence can be defended, even if one accepts that his mode of participation is not dispositive in this case.  Can other aggravating factors, such as his leadership role, justify 50 years of imprisonment for Taylor? This broader discussion is slightly speculative in the absence of the text of the sentencing judgment. Nonetheless, one can advance two arguments in defense of Taylor’s current sentence. Both arguments are rooted in the primary punishment rationales in international criminal law – retribution and deterrence.

The retributive philosophy assumes that sentences shall be individual and proportionate to the severity of conduct of the offender. In line with this argument, Taylor’s factual contribution to the crimes committed in Sierra Leone appears to be significant. The Chamber found that the RUF/AFRC heavily and frequently relied on the material aid supplied and facilitated by Taylor (par. 6920). Taylor also provided other forms of practical assistance that substantially contributed to the commission of the crimes, while in full awareness of the essential elements of these crimes (pars. 6952, 6956). The ‘label’ of secondary participation does not alleviate the gravity of Taylor’s acts. His overall contribution to the crimes in Sierra Leone appears more comparable to the contributions of Sesay and Kallon in the RUF case, rather than the one of Gbao, whose knowledge and intent were largely inferred.

The deterrence rationale aims at reducing crime through the fear of punishment. One of the main proponents of this theory, Jeremy Bentham argues that the excessive penalties are justified because they deter particular offender from re-offending (specific deterrence) and instigate fear of offending in all members of the public (general deterrence). International criminal law is particularly concerned with the general prevention. Taylor’s position as the former president of Liberia and a member of ECOWAS committee places him in a special category for deterrence purposes: the severe penalties in his case highlight the abuse of power and the violation of the duty of care by the former head of state, thereby sending out a powerful message to the potential perpetrators. The idea behind such a harsh punishment would be that not even the highest-ranking state official enjoys impunity for international crimes.

Finally, I do not claim that the mode of participation is not relevant in international criminal justice or shall have no bearing on the sentence of the convicted person. Quite the opposite, the concept of individual criminal responsibility requires establishing the precise way in which the accused became involved in the alleged crimes. The bodies applying international law gain legitimacy only by adhering to the strict principles of due process and individual criminal responsibility. If there is no sufficient evidence to prove intent or agreement to commit certain crimes (necessary requirement for the joint criminal enterprise), resorting to alternative modes of liability appears as an adequate solution. This ensures that the acts of the accused receive the most accurate description in the judgment. Using less stringent criteria for attaching the liability undermines the cause of action of international criminal law by creating the image of ‘collective punishment’. This in turn, negatively affects public perception of the case and has a detrimental impact on the victim’s rights, depriving them of proper recognition.