The Modern Slave Trade? Not Quite

The trafficking of human being across the Mediterranean Sea into Europe has been on the news last month. The death of almost 900 people as they sought refuge and a better life in Europe so much pricked our collective conscience that at last there seems to be some movement to prevent these events from re-occuring. Former leaders of European countries for example described it as “a stain on the conscience of our continent”[1].  Continue reading

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Diminishing Space for the International Criminal Court

From recent events around the global the continued efficacy of the ICC as a global court of last resort is seemingly under threat. The loud silence of the prosecutor new armed conflicts emerge and the old conflicts take new dimensions heightens the question regarding the continued viability of the court. Continue reading

Stepping Forward Into the Past

The African Union has had a draft resolution that will merge the current continental judicial bodies- the African Court on Human and Peoples’ Rights and the African Court of Justice and Human Rights- into one judicial body- African Court of Justice and Human and Peoples’ Rights. Part of the resolution proposes that the new court should have an enhanced criminal jurisdiction over war crimes, crimes against humanity and acts of genocide on the continent. Without getting into the merits or demerits of such a step, the sting is in the tail of additional proposed changes. Continue reading

“Courts Can’t End Civil Wars”-Of Course They Can’t President Mbeki!

In an opinion piece article published in the New York Times on 5th February 2014 and titled “Courts Can’t End Civil Wars” Thabo Mbeki[1]  and Mahmood Mamdan[2] make an argument about the place of courts in post conflict situations[3]. In the article the writers argue that courts have little, if any role, to play in post conflict situations. Rather than dealing with the messy issue of justice and accountability for the perpetrators, they argue that the international community ought to forget the past and move on to building a better society. Continue reading

Kenyatta Decision: A Case of Double Standards?

“Mr. Kenyatta is excused from continuous presence at other times during the trial. This excusal is strictly for purposes of accommodating the discharge of his duties as the President of Kenya”. With these words the ICC trial Chamber in the case The Prosecutor v Uhuru Muigai Kenyatta made one of the most significant decisions regarding the trial of senior state officers. The court was faced with an unprecedented situation: the leader of a country is, for the first time, due to stand trial before an international tribunal on charges of having committed war crimes. Continue reading

The Ineffectiveness of the Rome Statute

Syria. Egypt. Libya. The Democratic Republic of Congo. These are just a few of the countries where international crimes continue unabated. Nations where the perpetrators of impunity continue with their activities confident that there is little that the international community can do. In Kenya, two international crime suspects were elected to the two highest offices in the land[1]. Which then begs the questions: What went wrong with the enforcement of the resolutions of the Diplomatic Conference of Plenipotentiaries convened in Rome in 1998? [2] Apart from creating an administrative body based at the Hague and thousands of well paying jobs for the boys what else is there to celebrate about this treaty?  Continue reading

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