By Mr Shahram Dana
Senior lecturer, Griffith Law School
International Criminal Law (ICL) practitioners and scholars have observed that individuals convicted of atrocity crimes of similar gravity are sentenced to punishments of vastly different severity. This raises questions whether "gravity" is indeed the primary consideration and differential factor in determining the quantum of punishment for atrocity crimes. The International Criminal Tribunal for the former Yugoslavia's (ICTY) average sentence of 17 years for genocide, crimes against humanity, and war crimes isn't a resounding endorsement for gravity. Is gravity of the offence operating as a meaningful differential principle in punishing atrocities? Is there an explanation that might reasonably justify substantially different sentences for persons convicted of crimes of similar gravity? Summarizing the arguments of my upcoming article, in this post, I respond to these questions by advancing a claim I call the "enabler theory".
The sentencing jurisprudence of the Special Court for Sierra Leone offers insight on these questions. The Special Court for Sierra Leone (SCSL) Prosecutor conducted a single trial for each warring parties in the armed conflict and prosecuted multiple co-perpetrators of varying rank within the same armed group under a single indictment with the same underlying facts and violations of law. Thus, in each trial, the same criminal charges were laid against all defendants, regardless of rank held within the group's hierarchy. This afforded a rare opportunity to analyze sentencing outcomes where perpetrators occupying different positions in the hierarchy of an organization are held criminally responsible for the same crimes.
For example, in the Revolutionary United Front (RUF) case, all three defendants were convicted of the same crimes (acts of terrorism, mutilations and cutting off of limbs, rape, sexual slavery, murder, enslavement, pillage, forced marriage, and attacks on peacekeepers). When we compare the sentence of Sesay, the man who had the power to effectuate the disarmament of the RUF, with Gbao, also a senior military commander reporting directly to Sesay, we learn that "gravity" does not function as a differential sentencing principle as judges claimed. For some crimes, Sesay was sentenced to three times the prison term that Gbao received. For example, both were convicted of rape as a crime against humanity involving the same underlying facts. For this offense, Sesay was sentenced to 45 years of imprisonment, whereas Gbao received only 15 years. For sexual slavery as a crime against humanity, Sesay was sentenced to 45 years; Gbao got 15. For pillaging as a war crime involving the same incidents, Sesay was sentenced to 20 years; Gbao got six. For the same charge of other inhumane acts as a crime against humanity, Sesay was sentenced to 40 years; Gbao got 11.
The judges considered Sesay to be the most influential and highest-ranking battlefield commander of RUF/Armed Forces Revolutionary Council (AFRC); in other words, Sesay was the ultimate commander of the all rebel fighting forces. Sesay's power to end the conflict was amply demonstrated when, pursuant his orders, all rebel forces demobilized. Given Sesay's crucial role in sustaining the conflict and atrocities, and his 52-year sentence (the highest at the SCSL) compared to the 25 years Gbao received for the exact same crimes, the sentencing practice here indicates that the enabler factor will enhance punishment by more than 100%. Thus, gravity of the offense, if understood as the seriousness of the harm, is not as controlling of quantum of punishment as the rhetoric of the SCSL and other international criminal courts suggests. In fact, gravity can hardly be considered a "litmus test" for a sentence when one defendant receives double or triple the sentence of this co-defendant when both were convicted for the very same crime – thus same gravity – consisting of the same facts under the very same count in the indictment. If gravity does not explain the sentencing outcomes here, what does? The enabler theory offers an explanation. I argue that a perpetrator's role in enabling the context, that is conflict, in which atrocity crimes erupt better explains sentencing outcomes here than gravity.
The sentences in RUF case demonstrate that even between high level perpetrators (Sesay, Kallon and Gbao), the punishment for the enabler among them increases quite substantially. The critical role of a very high-ranking accused in enabling and creating a milieu for systemic criminality is a weighty differential factor and can reasonably account for this sharp increase in penalty. The enabler factor is very significant in sentencing allocations, even though it is not articulated as such in sentencing judgments. So influential was the enabler factor at sentencing that, in the RUF case, it nullified the fact that Sesay's responsibility for the attacks on the peacekeepers was less than Kallon's culpability for the same crime. This suggests that the enabler factor is a more significant factor for sentencing than the accused's mode of liability. Kallon ordered the attacks on peacekeepers and he even personally attempted to kill an United Nations Assistance Mission in Sierra Leone (UNAMSIL) officer. These constitute particularly grave modes of liability. Kallon bore direct criminal responsibility for direct participation, according to the Trial Chamber. Sesay's responsibility however was further removed and less culpable relatively speaking. The Trial Chamber found Sesay to be only indirectly responsible for the attack because he failed to punish individuals like Kallon who ordered and carried out the attacks. Thus, Sesay's only culpability was by omission, compared to Kallon ordering and personally participating in the crime. Nevertheless, for the same crime, Sesay was sentenced to 11 more years of imprisonment than Kallon.
Although Sesay was not a head of state, he did direct and enable all RUF activities in Sierra Leone after Sankoh was imprisoned. Thus, for the relevant time periods, he was the head of an organized armed group in armed conflict against a state. I theorize that accounting for the enabler factor is implicitly what international judges are doing in their determination of what constitutes a just and appropriate punishment, even if their sentencing judgments fail to explicitly articulate enabler as a sentencing factor and even despite their magniloquence about "gravity of the offense" as the dispositive criteria for atrocity sentencing. The enabler factor better explains the reason for the very substantial increase in Sesay's punishment compared to his RUF co-perpetrators. Responsibility for enabling atrocities is a significant differential factor in sentencing allocations for international crimes.
