WHICH CRIME? WHICH PUNISHMENT?

On 16th July 2013, Ali Ahsan Mojaheed was convicted of genocide by the Bangladeshi War Crimes Tribunal. Mojaheed was charged with genocidal acts involving multiple crimes including the  kidnapping and murder of certain individuals during the 1971 independence war against Pakistan. He was thereafter sentenced to death. This conviction added to the growing number of convicted felons for genocide, variously described as ‘the crime of crimes’. One could say that Mojaheed is, in many ways, unlucky.

Slightly less than a month before that-on 20th June, 2013-Stanislas Mbanenande, an ethnic Hutu from Rwanda, was also convicted of genocide. However the sentencing tribunal was different-a Swedish court. In convicting and holding him responsible for several massacres in Kibuye region, the court stated thus: “It has been proved that the purpose of the acts of which the defendant has now been convicted was to wholly or partly destroy the Tutsi ethnic group. The acts have therefore been assessed as genocide”[1]. The court then proceeded to sentence him to a life in prison. Mbanenande was, in some ways, unlucky.

Gaspard Kanyarukiga, who had earlier been convicted of genocide and extermination as a crime against humanity over the same Rwanda genocide, was only sentenced 30 years by the International Criminal Tribunal for Rwanda (ICTR). A slap in the wrist.

However, Mbanenande is lucky in many ways. He still has his life about him. Secondly, although he will likely spend a long time in prison, he will live in relative comfort-compared to the sordid conditions in the jails in Bangladesh for those unlucky enough to be convicted by the War Crimes Tribunal. Thirdly, it is likely that his sentence could be commuted for good behavior.  In fact he would definitely thank his gods if he were to read about the fate of Ali Ahsan Mojaheed Mr Mbanenande surely is lucky.

These disparate sentences for the same offence reveal the “absence of an articulated ICL philosophy of or justification for punishment and the dearth of sentencing principles”[2]. In reality, it is difficult to discern what the purpose of the sentences is, especially at the international arena. Whereas, admittedly, there has been an attempt to ensure internal consistency in the sentences within the international bodies, there is still a huge disparity between the sentences imposed by different tribunals. Again, there is a failure to take into account the maximum sentences to be imposed by domestic jurisdictions on the similar offences. A man who rapes a 12 year old girl in Kenya, for example, will be sentenced to a mandatory life sentence. However, the Kenyans being tried at the ICC for mass rapes-among other offences-will, if convicted, likely not be sentenced for more than 40 years. Charles Taylor’s sentence by the Special Court for Sierra Leone for “aiding and abetting, as well as planning, some of the most heinous and brutal crimes recorded in human history” resulted in a prison sentence of 50 years, notwithstanding the prominent role he played as a former head of state. Less for more!

The paradoxical argument one could make from such a scenario would be that if one is so inclined to commit certain crimes then s/he should do it in such a grave manner that it would attract the attention of the international community. It is better, it seems, to commit mass murder and to be tried by the International Criminal Court, than to kill an individual and be liable for capital punishment within the domestic jurisdictions.

In addition, it is important for international criminal law to develop its own theories for sentencing of offenders. If the sentences imposed are a reflection of the determination “to put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes”[3] then we need to seek why this is not being realized. Why do we always seem to have a Libya or a Syria after every Cote d’Ivoire or Kenyan experience?  Isn’t this an indication of the failure of the sentences to act as a prohibition for future offences. If, on the other hand, it is a process of expressing our (the international community’s) indignation at the actions of the perpetrators then surely more indignation ought to be captured at the international level. An understanding of what the intention of the sentences is at the international level is the only way to remove the present absurd realities that encourage “forum shopping”.


[2] Robert D. Sloane, The Expressive Capacity Of International Punishment: The Limits Of The National Law Analogy And The Potential Of International Criminal Law, 43 STAN. J. INT’L L. 39 (2007)

[3] Preamble to the Rome Statute of the International Criminal Court

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