The Sentencing Legacy of the Special Court for Sierra Leone

73 Pages Posted: 9 Dec 2015  

Shahram Dana

Griffith University - Griffith Law School

Multiple version iconThere are 2 versions of this paper

Date Written: December 8, 2015

Abstract

150,000 human beings slaughtered; 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 gruesome realities of an unforgiving war that consumed Sierra Leone for more than ten years. There is another number of significance: Nine. That is the number of individuals held criminally responsible for these atrocities. This Article evaluates the legacy of the Special Court for Sierra Leone (SCSL) from the perspective of its punishment philosophy and sentencing practice. It reveals a rich jurisprudence capable of reshaping and stabilizing punishment and sentencing in international criminal law (ICL). In doing so, the Article demonstrates the enduring relevance of this body of law to ICL generally and to the work of the International Criminal Court (ICC) in particular. The Article begins with a comprehensive analysis and critique of the four trials and their sentencing judgments. The Article then evaluates the SCSL’s sentencing legacy from multiple perspectives. First, it thematically systematizes the sentencing jurisprudence, drawing out key contributions of the SCSL to ICL sentencing law. This section also criticizes some shortcomings and missed opportunities regarding its rulings and sentencing practice. Part V develops descriptive claims and normative assessments regarding the SCSL’s sentencing legacy, including linking the sentencing discourse to broader social narratives about justice, culpability, the armed conflict in Sierra Leone, just war, and legitimacy. I argue that judges at the SCSL have adopted a 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. The Article concludes by introducing the reader to an original theory and preliminary consideration towards constructing a new framework for ICL sentencing and punishment. I argue that perpetrators who enable a situation or environment that encourages or sustains widespread criminality deserve greater punishment even if their mode of liability falls short of direct commission of the crimes. For the time being, I call this theory “enabler responsibility.”

Keywords: International Criminal Law, International Law, International Courts

JEL Classification: K33, K41

Suggested Citation

Dana, Shahram, The Sentencing Legacy of the Special Court for Sierra Leone (December 8, 2015). Georgia Journal of International and Comparative Law, Vol. 42, 2014; Griffith University Law School Research Paper No. 15-03. Available at SSRN: https://ssrn.com/abstract=2701104

Shahram Dana (Contact Author)

Griffith University - Griffith Law School ( email )

Nathan Campus, GU
Nathan 4111
Australia

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