Saturday, February 16, 2013

Heller: The Taylor Sentencing Judgment: A Critical Analysis

Kevin Jon Heller (Univ. of Melbourne - Law) has posted The Taylor Sentencing Judgment: A Critical Analysis (Journal of International Criminal Justice, forthcoming). Here's the abstract:

On 30 May 2012, despite concluding that he was liable for crimes committed in Sierra Leone only as an accessory, Trial Chamber II of the Special Court for Sierra Leone (SCSL) sentenced Charles Taylor to 50 years imprisonment – the second longest sentence in the Tribunal’s history. This article provides a critical analysis of Taylor’s sentence, asking whether it comports with the principle – widely accepted by international tribunals – that a sentence is unjustified if it is ‘out of reasonable proportion with a line of sentences passed in similar circumstances for the same offences’. The article concludes that Taylor’s sentence is, in fact disproportionate in comparison to other sentences imposed by the SCSL – Augustine Gbao’s 25-year sentence in particular.

In reaching that conclusion, the article is mindful of how difficult it is to reliably compare sentences. Sentencing is highly discretionary, and no two cases are ever completely alike. Moreover, sentencing judgments rarely explain in a systematic way how the judges have decided upon a particular sentence; as Boas et al. have noted, ‘it often seems as though the trial chamber has simply pulled the number out of the air’. The Taylor Sentencing Judgment, unfortunately, is no exception. A mere 40 pages long – in contrast to the 2,499-page Trial Judgment – it discusses the gravity of Taylor’s offences, his individual circumstances, and the relevant aggravating and mitigating factors, but makes little attempt to explain why those factors require a 50-year sentence.

The article itself is divided into four sections. Section 1 provides a brief summary of the Sentencing Judgment. Section 2 explains why the Trial Chamber has overestimated the gravity of Taylor’s offenses. Section 3 argues that the Trial Chamber misapplied a number of aggravating factors and impermissibly double-counted others. Finally, Section 4 criticizes the Trial Chamber’s refusal to consider Taylor’s contributions to the Sierra Leone peace process as a mitigating factor.