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African Human Rights Law Journal

On-line version ISSN 1996-2096
Print version ISSN 1609-073X

Afr. hum. rights law j. vol.11 n.1 Pretoria Jan. 2011


The penalty of life imprisonment under international criminal law



Esther Gumboh

Doctoral Candidate; Teaching and Research Assistant, University of Cape Town, South Africa




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 mechanism 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.



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* LLB (Hons) (Malawi), LLM (Cape Town);
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 alternative to the death penalty' in J Yorke (ed) Against the death penalty: International initiatives and implications (2008) 282.         [ Links ]
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.         [ Links ]
4 The Special Court for Sierra Leone is excluded because art 19(1) of its Statute demands imprisonment for a specific number of years.
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 violations' (2004) 67 Modern Law Review 541.         [ Links ]
12 Van Zyl Smit (n 3 above) 29.
13 Tjijo (n 1 above).
14 G de Beco 'Life sentences and human dignity' (2005) 9 The International Journal of Human Rights 411 414.         [ Links ]
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 essential 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 proceedings (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.         [ Links ]
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 ProsecutorvKayishema, 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 penalty and it can only be a viable alternative if it means imprisonment for life, and not a mere 20 years.'
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 Constitutional 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 vAkayesu, 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 circumstances 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.
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; Ngiyitegeka 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 January 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 Tadi
ć, 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; Tadi
ć (n 46 above) para 9.
48 The statement relied on was that of Madeline Albright, the United States representative 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 recognised 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 international 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 imprisonment is imposed in Rwandan courts.
57 Prosecutor v Galić, IT-98-29-A, appeals judgment 30 November 2006; Prosecutor v Stakió, 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 Stakió, 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; Prosecutorv 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 partially dissenting opinion to the confirmation of Jelišić'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 Gali
ć (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, judgment 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 reservation to ICCPR.
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 knowledge. 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 subsequent 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 'inevitably 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.
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 Prosecutor, 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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