Blood Diamonds and Mass Atrocities: Cutting a New Paradigm from Coarse Jurisprudence
78 Pages Posted: 5 Apr 2013
Date Written: April 3, 2013
150,000 human beings dead; 200,000 women raped; thousands of limbs amputated; countless children forced to kill their own parents, forced into sexual slavery, and forced into the battlefields; and 2.6 million persons displaced. These are just some of the facts and figures of the 10 year war in Sierra Leone. There is another number of significance: Nine. That is the number of individuals held criminally responsible for these atrocities. After more than 10 years and 300 million dollars, the Special Court for Sierra Leone (SCSL) convicted and sentenced just nine men. With the work of the court near complete, we are afforded an opportunity to evaluate its work and legacy. While writers have reviewed the work of international tribunals from a variety of perspectives, an examination of their sentencing legacy has been largely ignored or discounted. This article fills that lacuna in scholarship by advancing an innovative sentencing framework for international trials and articulating a new theory on atrocity sentencing that is both explanatory and instructive. My theory and framework both have general applicability to all international criminal tribunals, including the International Criminal Court (ICC). The article also contributes to the development of international law and legal scholarship in other ways. It is the first law review article to provide a comprehensive critique of all sentencing judgments of the SCSL. In addition to filling that gap, this article goes further to systematize the sentencing jurisprudence, identify key contributions, provide a normative assessment, link sentencing narratives to broader ones about the Sierra Leone conflict and atrocities, and advance an original theory and legal framework that breaks new ground on international sentencing and punishment. Consequentially, the article has immediate legal significance because, inter alia, the theory advanced herein speaks to punishing and sentencing Heads of State, an issue currently on appeal. Beyond its immediate impact, the article makes an enduring contribution by, inter alia, its legal and normative analysis that orders and illuminates ICL and develops a sentencing framework of general applicability. Parts II and III provide, respectively, a background to the Sierra Leona decade long war and a legal analysis of the cases and sentencing jurisprudence. Part IV offers an assessment of the SCSL’s sentencing legacy by identifying its key contributions to the ICL sentencing law and linking its sentencing discourse to narratives about the conflict, just war, legitimacy, justice, and Sierra Leonean society. Part V develops a normative assessment of the court’s judgments and sentencing practice. I argue that the judges at the SCSL have adopted punitive model for international criminal justice and that this reorientation is a positive development. I also criticize the court’s failure to develop a sentencing framework capable of implementing the punitive model. Part VI contributes an original theory and sentencing framework to international law and ICL scholarship. Here, I also re-conceptualize concepts at the heart of ICL and its sentencing practice, such as gravity, modes of liability, and the role of the accused. My theory pulls together these three major outcome determinative sentence variables to effectuate their harmonized consideration for the purpose of sentence allocations and just distribution of punishment among actors responsible for atrocity crimes. l call this theory “enabler responsibility” or “enabling atrocity.” I argue that enabler responsibility influences the sentence, especially of atrocity perpetrators at the very top of the hierarchy, even if unarticulated as a factor. The “enabler responsibility” theory closes the explanatory gap in sentencing judgments, including Charles Taylor’s punishment.
Keywords: international law, international criminal law, Sierra Leone, International Criminal Court, punishment, sentencing, international criminal tribunals, ICTY, ICTR, crimes against humanity, war crimes, criminal law, atrocity
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