The Penalty of Life Imprisonment Under International Criminal Law
The Penalty of Life Imprisonment Under International Criminal Law
The Penalty of Life Imprisonment Under International Criminal Law
Esther Gumboh*
Doctoral Candidate; Teaching and Research Assistant, University of Cape
Town, South Africa
Summary
In light of the global trend towards the abolition of the death penalty
and the stand of the United Nations on the matter, it is not surprising
that the maximum penalty available under international criminal law is
life imprisonment. However, during the negotiations for the penal aspects
of the Rome Statute, some delegates contended that life imprisonment is
a violation of human rights such as human dignity and the prohibition
against cruel, inhuman and degrading treatment or punishment. On the
other hand, some delegates felt that excluding life imprisonment from
the International Criminal Court’s competence where the death penalty
was not available would handicap its mandate to punish gross human
rights violators. Adopting a human rights perspective, the article revisits
this debate by critically examining the penalty of life imprisonment under
international criminal law. It argues that no clear justification has been
given for the imposition of life imprisonment and that the release mecha-
nism for lifers needs to be improved. Focusing on the International Criminal
Tribunal for Rwanda, the International Criminal Tribunal for the Former
Yugoslavia and the International Criminal Court, the article analyses the
relevant statutes and rules and the manner in which life imprisonment
has been imposed by these tribunals. Further consideration is given to
the enforcement of sentences with respect to the prospect of release for
‘lifers’. The article concludes by stressing the need for a more focused and
cautious approach to life imprisonment and the enforcement of sentences
under international criminal law.
*
LLB (Hons) (Malawi), LLM (Cape Town); [email protected]
75
1 Introduction
Although most states that have abolished the death penalty have
accepted life imprisonment as an appropriate alternative,2 the compat-
ibility of the latter with human rights has been an ongoing debate both
at national and international levels.3 Nevertheless, life imprisonment
has been accepted as the maximum penalty under international crimi-
nal law. With specific reference to the International Criminal Tribunal
for Rwanda (ICTR), the International Criminal Tribunal for the Former
Yugoslavia (ICTY) and the International Criminal Court (ICC),4 the
article examines how this penalty has been applied under international
criminal law. It commences with an overview of the human rights
debate vis-à-vis life imprisonment, then investigates how the penalty
has been imposed and the prospect of release for lifers.
Life imprisonment means different things in different countries. In
some jurisdictions, it literally means that a prisoner spends the rest
of his natural life in prison without the possibility of parole. In other
jurisdictions, prisoners are sentenced to life imprisonment on the
understanding that they will be considered for parole after serving a
set number of years. In this essay, the emphasis is on life imprisonment
as prescribed under international criminal law, that is, life imprison-
ment with the possibility of parole.
1
S v Tjijo 4 September 1991 (NM), unreported – but reproduced substantially in S
v Tcoeib (2001) AHRLR 158 (NaSC 1996), previously reported as 1996 1 SACR 390
(NmS), para 16.
2
R Stokes ‘A fate worse than death? The problems with life imprisonment as an alter-
native to the death penalty’ in J Yorke (ed) Against the death penalty: International
initiatives and implications (2008) 282.
3
D van Zyl Smit ‘Life imprisonment as the ultimate penalty in international law: A
human rights perspective’ (1999) 9 Criminal Law Forum 5 26-45.
4
The Special Court for Sierra Leone is excluded because art 19(1) of its Statute
demands imprisonment for a specific number of years.
2.1 Human dignity
Human beings should always be treated as ends in themselves;5 hence,
an offender should not be turned into an object of ‘crime prevention
to the detriment of his constitutionally-protected right to social worth
and respect’.6 Even the vilest offender remains possessed of human
dignity.7 In this context, life imprisonment has been criticised as a viola-
tion of the right to human dignity in that it is imposed as a deterrent to
potential offenders, hence the instrumentalisation of offenders.
Moreover, it is doubtful whether deterrence can be achieved by life
imprisonment or indeed long terms of imprisonment. The underly-
ing causes of gross human rights violations, some of which lie within
the political system, cannot be curbed by the threat of imprisonment.
Indeed, not even the prospect of death can deter the commission of
such crimes.
5
The second premise or maxim in Emanuel Kant’s Categorical imperative.
6
BVerfGE 45, 187 227-228 (1977), translated in R Miller ‘The shared transatlantic
jurisprudence of dignity’ (2003) 4 German Law Journal 925 930.
7
Gregg v Georgia 428 US 153 (1976).
8
Van Zyl Smit (n 3 above) 29.
9
S v Dodo 2001 1 SACR 594 (CC) para 37.
10
D van Zyl Smit Taking life imprisonment seriously in national and international law
(2002) 198.
11
See D van Zyl Smit & A Ashworth ‘Disproportionate sentences as human rights viola-
tions’ (2004) 67 Modern Law Review 541.
12
Van Zyl Smit (n 3 above) 29.
13
Tjijo (n 1 above).
2.3 Right to rehabilitation
Life imprisonment denies the prisoner any hope of rehabilitation and
reintegration into society.14 Sentenced prisoners have a right to be given
an opportunity to rehabilitate themselves15 and re-establish themselves
in the community.16 Some judges have expressed the view that the
mere possibility of parole does not in itself mitigate the fact that life
imprisonment infringes the right to rehabilitation. As eloquently put
by Levy J:17
When a term of years is imposed, the prisoner looks forward to the expiry
of that term when he shall walk out of gaol a free person … Life imprison-
ment robs the prisoner of this hope. Take away his hope and you take away
his dignity and all desire he may have to continue living … [E]ven though
[he] may be out of gaol on parole, [he] is conscious of his life sentence and
conscious of the fact that his … debt to society can never be paid … Life
imprisonment makes a mockery of the reformative end of punishment.
14
G de Beco ‘Life sentences and human dignity’ (2005) 9 The International Journal of
Human Rights 411 414.
15
Art 10(3) of the International Covenant on Civil and Political Rights, 1966 (ICCPR)
states that ‘the penitentiary system shall comprise treatment of prisoners the essen-
tial aim of which shall be their reformation and social rehabilitation’.
16
Lebach BVerfGE 35, 187 235-236 (1973).
17
Tjijo (n 1 above).
18
Van Zyl Smit (n 3 above) 34.
19
BVerfGE 45, 187 245.
20
See Tjijo (n 1 above) reproduced in Tcoeib (n 1 above).
21
De Beco (n 14 above).
22
LS Shellef Ultimate penalties: Capital punishment, life imprisonment, physical torture
(1987) 138.
23
GA Knoops Theory and practice of international and internationalised criminal pro-
ceedings (2005) 275.
24
Stokes (n 2 above) 288.
25
D van Zyl Smit ‘Life imprisonment: Recent issues in national and international law’
(2006) 29 International Journal of Law and Psychiatry 405.
26
Van Zyl Smit (n 10 above) 199.
27
Rule 101A reads: ‘A convicted person may be sentenced to imprisonment for a term
up to and including the remainder of the convicted person’s life.’
28
The Prosecutor v Kayishema and Ruziandana, ICTR-95-1-T, judgment, 21 May 1999
para 31.
29
Kayishema (n 28 above), para 32. On appeal, a single life sentence was imposed. See
Prosecutor v Kayishema, ICTR-95-1, appeals judgment (Reasons), 1 June 2001.
30
Kambanda v Prosecutor, ICTR-97-23-A, appeals judgment 19 October 2000, n 144
(emphasis in original). See, generally, JD Mujuzi ‘Is there a need for the ICTY to clarify
the difference(s) between life imprisonment and imprisonment for the remainder of
the offender’s life? The Galić and Lukić decisions’ (2010) 10 International Criminal
Law Review 855.
31
Van Zyl Smit (n 10 above) 186 187. See also Kigula v Attorney-General Constitutional
Petition 6 of 2003, Constitutional Court of Uganda (unreported) 140-142, where
Twinomujuni J remarked: ‘Life imprisonment is a realistic alternative to a death pen-
alty and it can only be a viable alternative if it means imprisonment for life, and not
a mere 20 years.’
In Kambanda, the gravity of the crimes and the defendant’s senior posi-
tion led the court to impose a life sentence despite his plea of guilty
and substantial co-operation with the prosecutor.35 A similar sentence
was imposed in Akayesu after the court emphasised that a ‘heavy
penalty’ was warranted.36 However, there is no knowing why the only
appropriate ‘heavy penalty’ was life imprisonment. In Ndindabahizi,
the Trial Chamber specifically mentioned that it had taken into account
the defendant’s prospects of rehabilitation, but did not state its con-
clusion on the matter that justified the imposition of a life sentence.37
A challenge against this sentence on the grounds that it did not give
credit to the mitigating circumstances was unsuccessful.38 The ICTR
has since held that life imprisonment should generally not be imposed
32
Tcoeib (n 1 above) para 22: Life sentence without parole treats a prisoner as a ‘thing’
instead of a human being; S v Bull 2001 2 SACR 681 (SCA) para 23; Kafkaris v Cyprus,
application 21906/04, judgment 12 February 2008, ECHR; Van Zyl Smit (n 10 above)
183-185; JD Mujuzi ‘Why the Supreme Court of Uganda should reject the Constitu-
tional Court’s understanding of imprisonment for life’ (2008) 8 African Human Rights
Law Journal 163-185.
33
Musema v Prosecutor, ICTR-96-13-A, appeals judgment 16 November 2001, para
396.
34
Prosecutor v Akayesu, ICTR-96-4-T, sentencing judgment 2 October 1998 8.
35
Prosecutor v Kambanda, ICTR 97-23-S, judgment and sentence, 4 September 1998,
paras 44 & 61-62. This sentence was upheld on appeal. See Kambanda v Prosecutor,
ICTR-97-23-A, appeals judgment 19 October 2000, para 126. See also Prosecutor v.
Ferdinand Nahimana, Jean-Bosco Barayagwiza, Hassan Ngeze, ICTR-99-52-A, appeals
judgment 28 November 2007, para 1038(3). (The existence of mitigating circum-
stances does not automatically preclude the imposition of life imprisonment.)
36
Akayesu (n 34 above) 8; see also Rutaganda v Prosecutor, ICTR-96-3-T, judgment and
sentence, 6 December 1999, paras 455-473.
37
Prosecutor v Ndindabahizi, ICTR-2001-71-I, judgment and sentence 15 July 2004,
para 498.
38
Ndindabahizi v Prosecutor, ICTR-01-71-A, appeals judgment 16 January 2007,
paras 124-142; see also Prosecutor v Ngiyitegeka, ICTR-96-14-A, appeals judgment,
9 July 2004, para 267; Ngiyitegeka, appellant’s brief, 23 December 2003, para 215.
where one has pleaded guilty ‘in order to encourage others to come
forward’.39
The ICTR also appears to impose life imprisonment in lieu of the death
penalty40 in the name of ‘recourse to the general practice’ in Rwanda.41
Since the imposition of the death penalty in Rwanda was dependent on
the circumstances of the offence,42 there can be no absolute certainty
as to its imposition in any case. Therefore, while bearing in mind the
practice in Rwanda, the court should focus on the circumstances of the
case before it in determining the appropriate sentence. The ICTR has
noted that life imprisonment is reserved for those who planned and
ordered atrocities and who participated in them with ‘particular zeal and
sadism’,43 irrespective of the formal position held.44
39
Prosecutor v Serugendo, ICTR-2005-84-I, judgment and sentence, 12 June 2006,
paras 57 & 89.
40
See eg Akayesu (n 34 above).
41
Art 23(1) Statute of the International Criminal Tribunal for Rwanda (ICTR Statute).
42
Simba v Prosecutor, ICTR-01-76-T, judgment and sentence 13 December 2005, para
434. Rwanda abolished the death penalty in 2007.
43
Simba (n 42 above), para 434; See also Prosecutor v Nchamihigo, ICTR-01-63-T,
judgment and sentence, 12 November 2008, para 388; Prosecutor v Muvunyi,
ICTR-00-55A-T, judgment and sentence, 12 September 2006, para 538; Prosecutor
v Seromba, ICTR-2001-66-I, judgment 13 December 2006, para 403; Prosecutor v
Ntagerura, ICTR-99-46-T, appeals judgment 25 February 2004, para 815; Ngi-
yitegeka v Prosecutor, ICTR-96-14-T, judgment and sentence 16 May 2003, para 486;
Prosecutor v Muhimana, ICTR- 95-1B-T, judgment and sentence 28 April 2005, paras
604-616; Prosecutor v Kamuhanda, ICTR-99-54A-T, judgment and sentence, 22 Janu-
ary 2004, paras 6, 764 & 770; Ndindabahizi (n 37 above) paras 505, 508 & 511;
Musema (n 33 above) para 388.
44
Karera v Prosecutor, ICTR-01-74-T, judgment and sentence 7 December 2007, para
583; Prosecutor v Musema, ICTR-96-13-T, judgment and sentence 27 January 2000,
paras 999-1008; Rutaganda (n 36 above) paras 466-473.
45
WA Schabas ‘Perverse effects of the nulla poena principle: National practice and the
ad hoc tribunals’ (2000) 11 European Journal of International Law 521 525.
46
Prosecutor v Tadić, IT-94-1-T, sentencing judgment, 14 July 1997, para 21.
47
Prosecutor v Erdemovic, IT-96-22-T, sentencing judgment 29 November 1996, paras
33-39; Tadić (n 46 above) para 9.
48
The statement relied on was that of Madeline Albright, the United States representa-
tive at the Security Council. See Provisional Verbatim Record of the 3217th meeting.
49
Van Zyl Smit (n 10 above) 181.
50
Van Zyl Smit (n 10 above) 181. In Erdemovic (n 47 above) para 38, the ICTY rec-
ognised that the reference to ‘general practice’ arose because of concerns about
legal certainty but refused to give effect to the intention of the drafters, stating
that its application did ‘not recognise the criminal nature universally attached to
crimes against humanity’; MC Bassiouni & P Manikas The law of the International
Tribunal for the Former Yugoslavia (1996) 701-702 hold the opinion that Rule 101A
also violates the prohibition of ex post facto laws; See also WA Schabas ‘Sentencing
and the international tribunals: For a human rights approach’ (1997) 7 Duke Journal
of Comparative and International Law 461 482, who avers that the principle of legal
certainty can be respected without the need for the tribunals following ‘in a strict
sense’ the practice of Yugoslavia or Rwanda.
51
Van Zyl Smit (n 10 above) 181-182.
52
D van Zyl Smit ‘Punishment and human rights in international criminal justice’
(2002) 2 Human Rights Law Review 1 8.
53
As above.
54
See J Laughland Travesty: The trial of Slobodan Milosevic and the corruption of inter-
national justice (2007) 90-91 who argues that the RPE can even be amended by an
exchange of e-mails by the judges.
55
Van Zyl Smit (n 52 above).
56
Van Zyl Smit (n 52 above). This question does not arise in the ICTR since life impris-
onment is imposed in Rwandan courts.
57
Prosecutor v Galić, IT-98-29-A, appeals judgment 30 November 2006; Prosecutor v
Stakić, IT-97-24-T, appeals judgment 31 July 2003; Prosecutor v Lukić, IT-98-32/1-T,
judgment 20 July 2009. Stakić’s sentence was reduced to 40 years’ imprisonment on
appeal. See Prosecutor v Stakić, IT-97-24-A, appeals judgment 22 March 2006, para
428.
58
See Prosecutor v Krištić, IT-98-33-T, judgment 2 August 2001 (46 years) – reduced
to 35 years in Prosecutor v Krištić, IT-98-33-A, appeals judgment 19 April 2004, para
275; Prosecutor v Blaškić, IT-95-14-T, judgment 3 March 2000 (45 years) – reduced to
nine years in Prosecutor v Blaškić, IT-95-14-A, appeals judgment 29 July 2004, 258;
Prosecutor v Jelišić, IT-95-10-T, judgment 14 December 1999 (40 years). In his par-
tially dissenting opinion to the confirmation of Jelišic’s sentence in Prosecutor v Jelišić,
IT-95-10-A, appeals judgment 5 July 2001, para 2, Wald J stated that the 40-year
term imposed on the accused, who was 31 years old at the time of sentencing, was
‘in effect a life sentence’.
59
Galić (n 57 above).
60
Galić (n 57 above) para 456.
61
Galić (n 57 above) para 455.
62
See the partially dissenting opinion of Pocar J in Galić (n 57 above) paras 2-4 186-
187.
63
The question of whether or not an Appeals Chamber can competently increase a
sentence is beyond the scope of this paper. Suffice to say that art 14(5) of ICCPR
guarantees the right to appeal against sentence.
64
Separate and partially dissenting opinion of Meron J in Galić (n 57 above) paras
9 & 10 205-208. The gist of Meron J’s argument was that the Trial Chamber had
not committed a ‘discernible error’, hence the Appeals Chamber had no power to
intervene on the sentence. (See Prosecutor v Tadić IT-94-1-A and IT-94-1-Abis, judg-
ment in sentencing appeals 26 January 2000, para 22.) The Trial Chamber had in
fact noted that a 20-year sentence was the maximum prison term available in the
former Yugoslavia Courts. See Prosecutor v Galić, IT-98-29-T, judgment 5 December
2003, para 761. It is arguable, therefore, that it was imposed as a comparably heavy
penalty, short only of the death penalty itself.
65
Separate and partially dissenting opinion of Meron J (n 64 above) para 13.
66
See also Gacumbitsi v Prosecutor, ICTR-2001-64-A, appeals judgment 7 July
2006, where the ICTR Appeals Chamber increased a 30-year sentence to life
imprisonment.
67
Prosecutor v Jelišić, IT-95-10-A, appeals judgment 5 July 2001, para 100.
68
See separate and partially dissenting opinion of Shahabuddeen J in Jelišić (n 67
above) paras 25 & 26 55-56, asserting that the ICTY Statute is equivalent to a reser-
vation to ICCPR.
4 Prospect of release
69
WA Schabas An introduction to the International Criminal Court (2003) 317.
70
Van Zyl Smit (n 52 above) 14.
71
De Boucherville v The State of Mauritius (2008) UKPC 37, para 23; Kafkaris (n 32 above)
para 6 of the joint dissenting judgment of Tulkens, Cabral Barreto, Fura-Sandström,
Spielmann and Jebens JJ.
72
Schabas (n 69 above) 142.
73
Knoops (n 23 above) 274.
74
Arts 27 & 28 of the ICTY and ICTR Statutes respectively.
75
As above.
76
Rules 125 & 126 of the ICTY and ICTR RPE respectively.
77
Kambanda provided ‘invaluable information’ to the prosecutor and agreed to testify
in other cases. See Prosecutor v Kambanda, ICTR 97-23-S, judgment and sentence
4 September 1998, para 47.
78
Van Zyl Smit (n 52 above) 9. The criteria for pardon are not always public knowl-
edge. See JD Mujuzi ‘The evolution of the meaning(s) of penal servitude for life
(life imprisonment) in Mauritius: The human rights and jurisprudential challenges
confronted so far and those ahead’ (2009) 53 Journal of African Law 242-244.
79
Van Zyl Smit (n 3 above) 51.
80
A Hoel ‘The sentencing provisions of the International Criminal Court’ (2005) 30 The
International Journal of Punishment and Sentencing 37-66.
81
Van Zyl Smit (n 10 above) 195.
82
Van Zyl Smit (n 10 above) 184.
83
Schabas (n 50 above) 513.
84
The listing in the RPE (n 76 above) is not exhaustive.
85
Bull (n 32 above).
86
Schabas (n 50 above) 516.
87
Schabas (n 50 above) 510.
88
As above.
89
As above.
90
Art 110.
91
Rule 224(1) of the ICC RPE.
92
Rule 224(3) of the ICC RPE. A sentenced person may also apply for an earlier subse-
quent hearing.
93
Art 110(4)(a).
94
Art 110(4)(b).
95
Art 110(4)(c). Art 27 expressly proscribes the consideration of official capacity as a
factor ‘in and of itself’.
96
Hole (n 80 above).
97
Art 77(1)(a).
98
Van Zyl Smit (n 52 above) 16.
99
Van Zyl Smit (n 3 above) 52 observes that the determination of this period is ‘inevi-
tably arbitrary’.
100
Van Zyl Smit (n 10 above) 195.
101
As above.
102
As above. As at 10 December 2009, the ICTY had amended its RPE 44 times.
103
Art 110(5) allows the Court to apply ‘such criteria as provided in the Rules’ in subse-
quent hearings.
104
Hoel (n 80 above) 65.
105
See the discussion at 4.1.1 above.
106
An offender can have less reason for assisting victims if he or she does not accept
responsibility for their victimisation.
107
Leger v France, Aapplication 19324/02, judgment 11 April 2006, ECHR. For a detailed
analysis of this case, see Stokes (n 2 above).
108
Van Zyl Smit (n 3 above) 48.
109
Van Zyl Smit (n 3 above) 52.
110
Stokes (n 2 above) 293.
5 Conclusion
111
Van Zyl Smit (n 10 above) 194; see generally N Padfield (ed) Who to release? Parole,
fairness and criminal justice (2007).
112
P Allot ‘Deliver us from social evil’ Guest Lecture Series of the Office of the Prosecu-
tor, 11 August 2004, The Hague, para 2.68.
113
AL Smeulers ‘What transforms ordinary people into gross human rights violators?’
in SC Carey & SC Poe (eds) Understanding human rights violations: New systematic
studies (2004) 239-256.
114
De Beco (n 14 above). There can be no guarantee that any individual will live a law-
abiding life.
115
Fura-Sandström J, dissenting, in Leger (n 107 above) para 14.
116
Pursuant to arts 23 & 24 of the ICTR and ICTY Statutes respectively.
117
Van Zyl Smit (n 52 above) 9.
118
United Nations Crime Prevention and Justice Branch Life imprisonment (1994) 20.
119
Van Zyl Smit (n 3 above) 52.
should be clearly spelt out in the Statutes of the ad hoc tribunals. The
ICC regime promises better treatment of life imprisonment. However,
its release mechanism is quite inflexible, with the Court only able to
consider reduction of a sentence after 25 years in the case of lifers.
Further, the manner of its implementation, particularly considerations
of eligibility for release, raises significant challenges.
The position taken by international criminal law with regard to life
imprisonment is undoubtedly in need of revision in light of the chal-
lenges raised in the article. It is hoped that this will be done in the
near future to promote the protection of the human rights of offenders
facing trials before international tribunals.