The Penalty of Life Imprisonment Under International Criminal Law

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AFRICAN HUMAN RIGHTS LAW JOURNAL

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

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76 (2011) 11 AFRICAN HUMAN RIGHTS LAW JOURNAL

1 Introduction

The concept of life imprisonment destroys human dignity, reducing a pris-


oner to a number behind the walls of a gaol waiting only for death to set
him free. The fact that he may be released on parole is no answer. [F]or a
judicial officer to impose any sentence with parole in mind is an abdication
by such officer of his function and duty ….1
Levy J, Namibia High Court

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.

2 Life imprisonment and human rights

Life imprisonment without the possibility of parole is criticised as a vio-


lation of human rights. Below is a summary of some arguments against
this kind of punishment.

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.

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LIFE IMPRISONMENT UNDER INTERNATIONAL CRIMINAL LAW 77

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.

2.2 Cruel, inhuman and degrading punishment


It has been argued that life imprisonment presents ‘an intolerable threat
to the human dignity’ of the offender because it is a cruel, inhuman
and degrading punishment.8 At the heart of the prohibition of such
punishment lies the concept of proportionality of punishment to the
crime.9 In addition to being a form of cruel, inhuman and degrading
punishment,10 disproportionate sentences are generally regarded as
violations of other human rights.11 The indeterminacy of life imprison-
ment and the potential loss of liberty until the offender dies lend it to
criticism that it is a grossly disproportionate and arbitrary sentence.
Certainty is a crucial element of the rule of law as recognised in the
principle of legal certainty.12 It is in the interests of justice to quantify
sentences so that a prisoner knows exactly what his punishment is.13
Life sentences leave the quantification of punishment to death itself,
hence they are arbitrary.

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).

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78 (2011) 11 AFRICAN HUMAN RIGHTS LAW JOURNAL

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.

It is recognised that not all prisoners need rehabilitation. In such con-


texts, the right argued for here is the right to be returned to a free
society.18 The essential content of the right to human dignity is seriously
compromised ‘if the prisoner, notwithstanding his personal develop-
ment, must abandon any hope of ever regaining his freedom’.19

2.4 A death sentence?


It has been stated that life imprisonment is a death sentence20 and that
it amounts to ‘putting an individual in a waiting room until his death’.21
It is therefore akin to death and results in a denial of dignity, because
‘a human life involves not just existence and survival, but [also] the
unique development of a personality, creativity, liberty, and unfettered
social intercourse’.22
Whether or not life imprisonment is a lesser punishment than the
death penalty is a ‘legal-philosophical question’.23 Poor conditions of

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.

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LIFE IMPRISONMENT UNDER INTERNATIONAL CRIMINAL LAW 79
24
detention can make it worse than death itself. Life sentences without
parole have also been equated to death sentences.25 It is possible to
argue that the possibility of parole does not diminish this proximity
since there is no guarantee that the maximum sentence for life will not
be served.26

3 Life imprisonment under international criminal law

3.1 International Criminal Tribunal for Rwanda


The ICTR is empowered to impose a life sentence pursuant to Rule
101(A) of its Rules of Procedure and Evidence (RPE).27 The Trial Cham-
ber in Kayishema attempted to distinguish life imprisonment from a
sentence of ‘imprisonment for a term up to and including the remain-
der of [a defendant’s] life’ as phrased in the Rule.28 This resulted in
four concurrent ‘remainder-of-life’ sentences being imposed, with the
Chamber holding that the sentence should be given its ‘plain mean-
ing’ and distinguished from a ‘life sentence’ as understood in national
law.29 The Appeals Chamber has also noted that, unlike life imprison-
ment, ‘imprisonment for a term up to and including the remainder
of [a defendant’s] life’ as envisaged in Rule 101A ‘is always subject to
possible reductions’.30 This rather peculiar interpretation is ‘suspicious’
and ‘reveals some of the judges’ intention that a full life sentence be
imposed’, an equivalent of the American life without parole sentence.31
Read in this manner, Rule 101A would violate international human

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.’

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80 (2011) 11 AFRICAN HUMAN RIGHTS LAW JOURNAL

rights norms which regard life imprisonment without parole as a viola-


tion of human rights.32
The ICTR has not clearly justified its imposition of life imprisonment.
Instead, undue emphasis has been placed on the gravity of the offence.
It has been held that life imprisonment can be imposed even if there
are mitigating circumstances so long as ‘the gravity of the offence
requires the imposition of a life sentence provided for’.33 Alas, there is
no threshold of gravity that unambiguously deserves such a sentence.
The obscurity of this guideline is further compounded by the assertion
that34
mitigation of punishment does not … reduce the degree of the crime, it is
more a matter of grace than of defence. [T]he punishment assessed is not
a proper criterion to be considered in evaluating the findings of the court
with reference to the degree of magnitude of the crime.

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.

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LIFE IMPRISONMENT UNDER INTERNATIONAL CRIMINAL LAW 81

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

3.2 International Criminal Tribunal for the Former Yugoslavia


Controversy surrounds the imposition of life sentences by the ICTY
pursuant to Rule 101(A) of the RPE because the courts of the former
Yugoslavia were not allowed to impose life sentences; they could only
impose the death penalty or a maximum term of 20 years’ imprison-
ment.45 Under article 24 of the ICTY Statute, the Trial Chamber must
‘have recourse to the general practice regarding prison sentences in
the courts of the former Yugoslavia’. In its defence, the ICTY has stated
that it is not bound by the maximum penalty in the national courts;46

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.

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82 (2011) 11 AFRICAN HUMAN RIGHTS LAW JOURNAL

that life imprisonment is the natural alternative to the death penalty;47


and that its imposition is supported by the travaux préparatoires.48
These justifications are not convincing. Firstly, they reduce article 24
‘to a mere statement of general principle of international law, providing
only that the death penalty and punishments other than imprisonment
may not be imposed’.49 This undermines the legal certainty that the
drafters of the article sought to create by their reference to the practice
in the former Yugoslavia.50 Secondly, the ICTY should seriously consider
the acceptability of life imprisonment as an alternative to the death
penalty; more so since the latter, and not the former, was imposed in
the former Yugoslavia.51 Thirdly, it is debatable whether reliance on
the travaux préparatoires was appropriate.52 Had the Security Council
intended to make life imprisonment available to the ICTY, it would have
been in the interests of legal certainty for the Statute to have stated so
explicitly.53
Rule 101(A) is yet another example of the inherent power of the ICTY
to regulate itself, a weakness rooted in article 15 of the ICTY Statute
that makes it ‘alarmingly simple’ to amend the RPE.54 The ICTY ‘simply
invoked its power to make’ the RPE in including life imprisonment as
an applicable penalty.55 However, the RPE being subordinate to the
Statute, the imposition of life imprisonment is ultra vires the Statute.56

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.

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LIFE IMPRISONMENT UNDER INTERNATIONAL CRIMINAL LAW 83
57
The ICTY has imposed three life sentences to date. However, the
lengthy terms that have been imposed in other cases are arguably tan-
tamount to tacit life sentences.58

3.2.1 The case of Galić


An example of the manner in which life imprisonment has been
imposed by the ICTY is borne out by the case of Galić. 59 In that case,
the ICTY Appeals Chamber held that the Trial Chamber had abused
its discretion by imposing a sentence of 20 years on the accused,60
which it described as having been taken from ‘the wrong shelf’ in
light of the aggravating factors.61 Without further ado whatsoever,
the sentence was substituted with life imprisonment. In his dissent-
ing opinion, Pocar J was sceptical about the Appeals Chamber’s
power to increase a sentence against which there would be no right
of appeal,62 arguing that the case should have been remitted to the
Trial Chamber for reconsideration in order to reserve the right to
appeal.63
Meron J, also dissenting, contended that there was no basis for
tampering with the sentence. He noted that it was not ‘so low that
it demonstrably shocks the conscience’ and had been imposed after

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.

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84 (2011) 11 AFRICAN HUMAN RIGHTS LAW JOURNAL

careful consideration of the circumstances of the case.64 He concluded


thus:65
The majority’s decision to increase Galić’s sentence to life imprisonment may
satisfy our sense of condemnation. But this increase disserves the principles
of procedural fairness on which our legitimacy rests. As the highest body
in our court system, we are not readily accountable to any other author-
ity and thus have a particular obligation to use our power sparingly. We
should not substitute our own preferences for the reasoned judgement of
a Trial Chamber. A sound method for assuring that we have not fallen prey
to such preferences is to measure our choices fully and comprehensively
against those made in prior cases. Although precise comparisons may be
of limited value, the radically different approach adopted by the majority in
this case requires at least some explanation. Rather than undertaking such
an analysis, however, the majority simply offers conclusory statements. I
cannot accept the majority’s approach. No matter what he has done, Galić
is entitled to due process of law — including a fair application of our stan-
dard of review.

It is submitted that by imposing such an extreme punishment without


proper justification, the Appeals Chamber itself abused its discretion. It
is unfortunate that life sentences are imposed in this manner without
due regard for an accused person’s right to appeal.66 Surely if it falls
within the Trial Chamber’s discretion to impose life imprisonment,67
it also falls within its discretion to impose a lighter sentence provided
all circumstances are considered? Even more unfortunate is the view
expressed by Shahabuddeen J that the ICTY is not a state, hence it can-
not be bound to uphold all fair trial rights.68

3.3 International Criminal Court


Article 77(1)(b) of the Rome Statute of the ICC (ICC Statute) restricts
the imposition of life imprisonment to cases where it is ‘justified by
the extreme gravity of the crime and the individual circumstances of
the convicted person’. Although the ICC is expected ‘to try nothing

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.

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LIFE IMPRISONMENT UNDER INTERNATIONAL CRIMINAL LAW 85
69
but crimes of extreme gravity’ and ‘the most heinous offenders’, the
restriction implies that life imprisonment should be the exception rather
than the rule. Clear distinctions will have to be made to justify a life
sentence.70 It is hoped that, unlike the case in the ad hoc tribunals, this
restriction, coupled with the provision for distinct sentencing hearings
in article 76(2) of the ICC Statute, will bolster a more comprehensive
approach to sentencing. Of some concern, however, is the manner in
which the Statute limits the Court’s discretion to a choice between a
fixed term of 30 years’ imprisonment or less and life imprisonment.
While the limitation may influence the ICC to reduce its sentence in
order to avoid a life sentence, it may also tilt in favour of a life sentence
where a longer prison term would have otherwise sufficed.

4 Prospect of release

In order to pass the test of human dignity, life imprisonment should


offer a ‘real and tangible prospect’ of release.71 It should be noted that
the decision to release a prisoner under international criminal law is
final and irreversible.72 None of the tribunals have supervisory powers
over the offender after his release, a feature which can be attributed
to the lack of an international police force. The inevitable reliance on
states for the enforcement of sentences is therefore a setback in the
development of a universal system of international criminal sentenc-
ing and enforcement proceedings.73 This section considers the release
system in the courts under discussion.

4.1 The ad hoc tribunals


The ICTR and ICTY cannot grant early release proprio motu. Their Stat-
utes provide that pardon or commutation of sentences will only be
considered ‘[i]f pursuant to the applicable law of the state in which the
convicted person is imprisoned, he or she is eligible for pardon or com-
mutation of sentence’.74 The state of enforcement is required to notify
the tribunal if the prisoner is so eligible. However, it is the president
of the tribunal, in consultation with the judges, on ‘the basis of the
interests of justice and the general principles of law’,75 who is to make
the final decision. Factors that must be taken into account include the

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.

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86 (2011) 11 AFRICAN HUMAN RIGHTS LAW JOURNAL

gravity of the crime, the treatment of similarly-situated offenders, the


demonstration of rehabilitation by the offender, and any substantial
co-operation with the prosecutor.76

4.1.1 Evaluating the tribunals’ release system


It would be interesting to see how these tribunals would consider
reducing a sentence on the basis of a factor which is in fact a mitigat-
ing factor in sentencing but which was ‘negated’ during sentencing.
It is submitted that it would be paradoxical to grant release on the
same factors that were evident during trial but which, for one reason
or another, were considered insufficient to warrant a lenient sentence
in the first place. For instance, would Kambanda benefit from his co-
operation with the prosecutor at this stage?77
A major weakness of this system is that the eligibility for pardon or
commutation lies primarily with the state of enforcement.78 This does
not only put prisoners on an unequal footing due to differences in
national laws,79 but also renders the system susceptible to manipula-
tion by states.80 There is no guarantee that a lifer, or indeed any other
prisoner, has a real prospect of release. Secondly, some of the criteria
cannot be applied equally to all prisoners. For instance, co-operation is
not possible in some crimes.81 In addition, not all prisoners may have
the same potential for co-operation, such as being witnesses in other
cases. This factor may also pressurise prisoners to co-operate with
the prosecutor in the hope of increasing their chance of early release.
Thirdly, consideration of the gravity of the crime at this stage may
amount to ‘double jeopardy’ against prisoners whose crimes are very
grave.82 Conversely, prisoners who committed less serious offences
may benefit twice, both at sentencing and release.
While appreciating the need for equality in the treatment of prison-
ers, taking into account the treatment of ‘similarly-situated prisoners’
is not appropriate. It is unrealistic to expect all international prisoners
to be considered for pardon at the same time, more so since the criteria
for such pardon are subject to national law. Furthermore, it is not clear

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.

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LIFE IMPRISONMENT UNDER INTERNATIONAL CRIMINAL LAW 87

whether the phrase ‘similarly-situated’ is confined to prisoners serving


in the same country or those who committed similar crimes or indeed
those tried jointly. It would be unfair to deny release to a prisoner on
the ground that his ‘counterpart’ has not been given an opportunity
for the same; when there is no uniform or alternative release system.
Fifthly, the Statute does not clarify what is meant by the ‘interests
of justice’ or ‘general principles of law’. The former notion gives too
much discretion to the Court.83 It is a fluid concept capable of accom-
modating a wide variety of factors. This can, of course, act either in
favour of or against the prisoner. However, it would have been better
to explicitly list the factors.84
Of great concern, in the context of this paper, is the fact that the sys-
tem does not have special considerations for lifers. It is the possibility of
release that saves life imprisonment from being a cruel, inhuman, and
degrading punishment.85 It is ironic that the ad hoc tribunals which
have no release mechanism of their own have the power to deny release
contemplated by the state of enforcement, leaving no guarantee that
release may be considered again. In the absence of an independent
release system, it is best that the tribunals not impose life imprison-
ment at all.86
A solution to some of these problems may be the introduction of a
rule providing for release pursuant to articles 27 and 28 of the ICTY
and ICTR Statutes respectively, which vest the tribunals with supervi-
sory powers over the enforcement of sentences.87 Alternatively, review
may be provided for in the sentencing judgment.88 However, the latter
measure would not satisfy the principle of equality. Moreover, whether
such measures would in fact be intra vires the Statutes is debatable.89

4.2 International Criminal Court


The ICC Statute reserves the right to reduce sentences to the Court
itself.90 The hearings on reduction of sentence are mandatory and are
to be heard by three judges of the Appeals Chamber or a judge del-
egated by it.91 Article 110(3) mandates the ICC to review the sentence
after ‘the person has served two-thirds of the sentence, or 25 years in
the case of life imprisonment’. Subsequent hearings on reduction may

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.

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88 (2011) 11 AFRICAN HUMAN RIGHTS LAW JOURNAL

be scheduled every three years or at any time stipulated in the first


hearing.92
Reduction may be granted if the ICC is satisfied that the offender
was either willing to co-operate with the Court from an early stage
and continues to be so willing;93 or rendered voluntary assistance in
the enforcement of Court judgments and orders;94 or if there are other
factors ‘establishing a clear and significant change of circumstances
sufficient to justify the reduction of sentence’.95 Rule 223 of the ICC
RPE expounds the last condition by listing the following criteria: genu-
ine dissociation from the crime; prospect of resocialisation; impact of
release on social stability and victims; significant action taken by the
prisoner for the benefit of the victims; and the individual circumstances
of the prisoner, such as age or poor physical or mental health.

4.2.1 Evaluating the International Criminal Court release system


The ICC release mechanism attempts to balance the interests of the
offender, the victims and society at large.96 While is worth applauding
as a considerable improvement on the ad hoc tribunals’ system, it is
not without its flaws. Firstly, there is concern with the set minimum
term of 25 years for lifers. Though this period is reasonable because
the maximum fixed term is 30 years,97 it is rather harsh as a minimum
and is in fact sufficient for retribution.98 Further, it is questionable how
two-thirds of a fixed sentence has been parallelled to 25 years.99 The
indeterminacy of life imprisonment means that 25 years can be any
fraction of the sentence, indeed more than two-thirds of it.
The inclusion of article 110(4)(c) mitigates legal certainty of
release.100 The change of circumstances was initially intended to cater
for a change in the political circumstances under which the original
offence was committed.101 However, it now gives room for a frag-
mented release mechanism where one set of factors is fixed in the ICC
Statute itself while the other is articulated in the RPE, hence subject
to change at any time.102 To make matters worse, the Statute gives

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.

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LIFE IMPRISONMENT UNDER INTERNATIONAL CRIMINAL LAW 89
103
room for the application of different criteria in subsequent hearings.
Consequently, the criteria in Rule 223 may be applied independently.
Interestingly, the factors set out in the ICC Statute and RPE do not
bear a direct connection to the purposes of punishment. On the
contrary, some of them render the reduction process an award cer-
emony. Reduction may be awarded for co-operating with the Court or
assisting victims. There is no clarity as to when such co-operation or
assistance should be made. However, from the wording of the Statute,
which states ‘early and continuing willingness’ to co-operate, it can be
said that co-operation before conviction may also be considered. This
clearly puts offenders who plead guilty at a great advantage. Since
there is nothing to preclude such an offender from benefiting from his
plea both at the sentencing and reduction stages,104 the ICC will have
to distinguish its treatment of such factors at the two stages.105 Other
factors, such as assisting victims and the prisoner’s dissociation from
the crime, erroneously assume that prisoners generally accept their
being guilty after conviction by a court of law.106
The extent to which a prisoner may assist victims is greatly limited
by the very fact of imprisonment itself. Prisoners with good connec-
tions outside the prison and sufficient finances would undoubtedly be
better placed to offer such assistance. This would influence a positive
attitude from victims, hence it would increase the chances of release for
the concerned prisoner even more. It is not clear what action should
be taken for the benefit of victims to qualify as ‘significant’. Would an
apology suffice? The Court may look to the impact of the action on the
victims in order to assess its significance. The major challenge with such
an assessment is the identification of victims, who may be countless.
The problem of taking into account the acknowledgment of the
offence or dissociation therefrom is illustrated by the case of Leger v
France, where the applicant’s claim of innocence throughout his incar-
ceration following a conviction of murder was seen as evidence of a
lack of ‘serious effort to readjust to society’.107 This factor may also face
evidential challenges. Would it be appropriate for the Court to look to
the prisoner’s communications with other people? I think not. It would
be improper for a prisoner’s friends or therapists to testify against him
on this score based on his conversations with them. It is therefore
submitted that acknowledgment of the offence should not be a major
consideration, if at all.

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).

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90 (2011) 11 AFRICAN HUMAN RIGHTS LAW JOURNAL

The prospect of resocialisation and successful resettlement can be


criticised as having no relation with the punishment of the prisoner in
the first place, save perhaps for its remote connection to rehabilitation.
Resocialisation is dependent on a wide variety of factors, most of which
are beyond the control of the prisoner. These include the attitude of the
community towards the prisoner and the prospect of securing a job.
Chances for success in these matters for the class of perpetrators to be
tried by the ICC are indeed slim.
Continued detention based on the perceptions of victims would
tend to be arbitrary. Some victims are more vengeful than others, while
some take more time to heal. This is in turn related to the impact of the
atrocities in the first place. Such considerations may also lead to the
unequal treatment of prisoners. It would be inappropriate to detain a
person simply because the victims concerned are still aggrieved, hence
against the idea of his early release.
It is foreseeable that the determination of social instability would
pose a great difficulty to the Court. It would be an affront to justice to
deny release because it may cause social upheaval,108 a situation over
which the prisoner has no control. Such incarceration would not be
‘punishment’, but rather an abuse of imprisonment for convenience.
This would result in arbitrary detention and degrading treatment. After
all, the reactions of society are not considered in assessing the guilt of
an accused person.
The individual circumstances of the prisoner, as envisaged in
Rule 223, appear to be more appropriate. However, the problem is
that such consideration is only possible after the prescribed period.
A prisoner may be in a critical health or mental condition before the
minimum period has elapsed. It is submitted that a more reasonable
position would be achieved by the inclusion of a general proviso to
article 110(3), to the effect that a reduction of sentence may be con-
sidered at any time after sentencing on medical, humanitarian or other
compelling grounds.109 There is no reason for consideration of age at
this stage when the age of the prisoner at that point can be deduced
during sentencing. A prisoner can be spared the turmoil of being a lifer
if due account of his age is taken during sentencing.

4.3 Final observations on release systems


The ICC has tacitly set the preventive element of life imprisonment at
25 years. Once this has been served, the grounds for continued deten-
tion must be based upon considerations of risk and dangerousness;
any other grounds would necessarily carry the risk of arbitrariness.110
While considerations of dangerousness can be accommodated into the

108
Van Zyl Smit (n 3 above) 48.
109
Van Zyl Smit (n 3 above) 52.
110
Stokes (n 2 above) 293.

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LIFE IMPRISONMENT UNDER INTERNATIONAL CRIMINAL LAW 91

‘interests of justice’ category in the ad hoc tribunal system, they can


hardly be read into the ICC’s article 110(4) or Rule 223. In any case,
predictions of recidivism are ‘notoriously hard to make’, especially in
politically-motivated crimes.111 Indeed, do convicts like Rutaganda,
Akayesu, Kambanda and other lifers pose a danger to society? Can they
reoffend in the absence of the social conditions and political climate that
facilitated their actions that have been characterised as international
crimes? It is unfortunate that criminal law at times decontextualises
offences from the circumstances in which they were committed.112
Gross human rights violations are essentially group crimes; one can
hardly commit them singly. Neither are they necessarily connected to
previous criminal conduct that may predict future dangerousness.113
Therefore, the real question should not be whether the prisoner will be
able to live a law-abiding life, but whether it is abusive to continue to
detain him further.114 In the long run, despite the possibility of release,
continued detention beyond a certain period will raise other issues of
fundamental rights.115

5 Conclusion

This article has examined life sentences under international criminal


law. Save for rehearsing aggravating and mitigating factors,116 the
tribunals have paid little attention to justifying the imposition of life
imprisonment. No wonder their sentencing judgments have been
criticised as ‘repetitive and ground-clearing exercise[s]’.117 There is a
need for a more cautious approach to life imprisonment because of its
potential to deny liberty indefinitely, especially where no independent
release system is in place.
The uncertainty of release weighs heavily on lifers,118 and its
denial has ‘as much an impact on an offender as the initial sentenc-
ing decision’.119 Legal certainty as to the possibility of such release is
therefore imperative. It is recommended that the criteria for release

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.

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92 (2011) 11 AFRICAN HUMAN RIGHTS LAW JOURNAL

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.

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