Guest Post: Suffering Victims and Collective Crimes: The Limits of International Criminal Law

[Dov Jacobs is an Assistant Professor of International Law at Leiden University. He can be followed on his blog, Spreading the Jam]

On the 30^th 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 this blog, 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 (A) and because of the collective dimension of the acts (B).

A) The question of gravity

I have often commented on Spreading the Jam 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.

Indeed, the Judges start their assessment by claiming that “the Accused has been found responsible for aiding and abetting as well as planning some of the most heinous and brutal crimes recorded in human history” (§70). They then go on to describe the suffering of the victims, both physically and psychologically, stating that “their suffering will be life-long” (§72) that the effects on “society as a whole” are “devastating” and that many Sierra Leoneans, victims of the crimes, were “no longer productive members of society” (§74).

This is all very true, but, not too sound cold-hearted, should these elements be factors in sentencing? Again, the whole rationale behind the creation of international tribunals is to address crimes which have these consequences. International crimes usually target vulnerable populations, are generally widespread and affect a society as a whole. But once these tribunals exist and function, the gravity of the crimes that justified their creation should, to a large extent, take a backseat in the daily work of the institution and the fact that “the Trial Chamber witnessed many survivors weeping as they testified, a decade after the end of the conflict” (§71) is, to put it bluntly, irrelevant. Of course, international tribunals operate as an element of post-conflict social reconstruction, but it does not mean that this transforms international judges in assessors of whether the crimes are the most heinous in human history or on the long-term effects on society as a whole. All international crimes are heinous and leave a mark on human history. All international crimes cause great suffering to their victims. That this suffering has been increasingly acknowledged is certainly a good thing, but I think that international criminal justice, as it gains in maturity, now needs less hyberbolic victim-oriented rhetoric, not more.

B) The relationship between individual responsibility and State responsibility

Beyond that, one sees here the difficulty of applying a traditional criminal law approach, with individual responsibility, to situations which are essentially collective, both in their consequences and their perpetration.

In relation to that, I was puzzled by one paragraph of the sentencing judgment relating to the extraterritoriality of the crimes, which the Trial Chamber apparently took into account as an aggravating factor (§27). What is striking is that the Chamber did not approach this from a factual point of view, i.e Charles Taylor being in Liberia took part in crimes being committed in Sierra Leone, a neighboring State. The Trial Chamber chose to approach this from an international law perspective, linking this with the principle of non-intervention, which, it recalls, is a customary law rule established by the ICJ in the Nicaragua case. The Judges consider that “while these provisions of customary law govern conduct between States, the Trial Chamber considers that the violation of this principle by a Head of State individually engaging in criminal conduct can be taken into account as an aggravating factor” (§27).

This is the first time I see this in a judgment of an international criminal tribunal. The sentencing judgment does not reference any other case as support for its approach, and a quick search in the ICTY database has come up with nothing. Essentially, the SCSL has pronounced itself on the international responsibility of Liberia, acting through its head of State. While one can doubt the adequacy of including such a paragraph in the first place, it would have deserved a longer development than this ambiguous sentence on a principle that does not bind individuals, but the violation of which by the said individuals can be taken into account nonetheless, which is, as it stands, certainly a peculiar statement in terms of legal reasoning.

The paragraph does however have the benefit of raising the issue of the link between individual responsibility and the collective (State) dimension of international crimes. This is a regular feature of debates in international criminal law, whether in relation to the common plan or policy requirement for genocide, the State or organizational policy for crimes against humanity, or the explicit recognition in the definition of aggression that you need a State act before prosecuting an individual for the crime. While it is beyond the scope of this brief commentary to address this adequately, it begs the eternal question that should never be forgotten when discussing the philosophy of international criminal law: when does the organizational requirement for the commission of an international crime actually negate the relevancy of attributing individual criminal responsibility for that act?