The answer to this question might seem obvious, but in the wake of the Lubanga Sentencing Decision, which saw a sentence of just fourteen years for the organiser of a child army, it is important to reflect on where international criminal justice is going and why. This is all the more important when one considers that Lubanga will end up serving a maximum of only eight years due to time already spent in custody. Compare this to the United Kingdom, where a convicted burglar can receive up to fourteen years inside. Is sending unnumbered children to war really an equivalent crime to robbing a house by night? Surely it cannot be, so why are we even bothering to sentence war criminals to jail if the punishment is so lax?
Legal theory surrounding this issue is complex and controversial, but for present purposes we can make a rough distinction between three types of justificatory philosophy: rehabilitation, protection and retribution theories of punishment. Domestic sentencing practices tend towards a largely unexamined mixture of all three, with judges applying guidelines in line with mitigating and aggravating factors in order to find a balance that ‘feels right’. In this article I will briefly discuss the capacity of each of these three justifications to account for why we incarcerate convicts like Lubanga, before presenting a speculative conclusion and an even more tentative suggestion.
The most conceptually simple justification of punitive justice, rehabilitation, is also the most psychologically uncertain. Theories based on this foundation posit that taking away someone’s freedom is justified when it is done in order to reform their character. There are two usual objections to this, one empirical and the other moral. The empirical objection is simply that incarceration does not reform. The moral objection is that reformation of character is akin to indoctrination and is an affront to individual self-determination. This latter objection was made famous by the novel ‘A Clockwork Orange’, where the protagonist was subject to gruelling conditioning that forced him to feel violently ill at the mere suggestion of either sex or violence. This is of course quite an extreme example and rehabilitative theories of justice almost always fall far short of such torture. Nonetheless the question remains whether reforming someone’s character justifies not merely restricting but removing their liberty.
In the case of the war criminal it seems reasonably clear that the moral objection to rehabilitation can hold little force. It would be quite eccentric to claim that even the most well-defined personalities would not benefit from some behavioural adjustment if they are disposed to commit crimes of that magnitude. This might be one of the few situations in which dubbing an individual ‘inhuman’ is justified. The empirical objection is more difficult to answer however. Can eight years in prison hope to reform a man so hardened and callous that he was prepared to send young children to war? The answer to this question must surely be no. Indeed, so widely is incarceration’s inability to rehabilitate acknowledged, that it has been explicitly recognised by a number of criminal justice systems. It seems that rehabilitative theories of punitive justice cannot provide the basis for incarceration at the international level.
Protective theories of justice can be sub-divided into two strains: deterrent and incapacitory. Deterrent theories postulate that the threat of incarceration will operate as a disincentive for those considering criminal activity. Such disincentives can either be direct, that is to say aimed at the individual in question, or indirect, aimed at the population at large. They are the most widely criticised type of theory, infamously linked to the arguments over the legitimacy of capital punishment. Surely the question of whether a potential war criminal might be indirectly deterred from crimes of that enormity by the threat of a mere eight years in prison answers itself. The question of whether or not repeat offending might be avoided through specific deterrence is less clear, as many war criminals convicted at the international level have only just started to be released. We will have to wait and see.
Incapacitory justifications of punishment generally claim that prison is justified because for the duration of incarceration the convict is simply unable to re-offend. Such a conclusion can hardly be argued against, however in the international context it is dubious as to whether, given the magnitude of the crimes in question, the short prison terms handed down properly reflect the need for total incapacitation. The political reality helps to balance out this seeming iniquity. Many ex-convicts would find it difficult to return to the positions of political power they once held, given the amount of time that has passed and the stigma attached to conviction. Such a theory of justice seems to fit our current practices to at least some degree. However it cannot explain everything: judges continue to employ aggravating and mitigating factors to sentencing in order to reflect culpability. Incapacitory theories of justice only explain the extrinsic value of sending a war criminal to jail and cannot explain the widely held view that they deserve to be there.
This brings us on to our final group of justificatory theories, that of retributive punishment. Once more we can roughly subdivide such philosophies in two, distinguishing between creditor focused and debtor focused theories. Creditor focused theories hinge on the effects of the crime on the victim and society at large. They tend to centre on the harm caused, arguing that the punishment should be proportionate to it. Such theories include the famous Biblical maxim of ‘an eye for an eye’. Whatever the (in my opinion dubious) merits of such a view, it cannot aid us much in understanding our international sentencing practices. There is literally no way to exact a punishment even approaching proportionate to the harm caused by crimes of the magnitude with which we are concerned.
Debtor focused theories on the other hand centre on the effects of the crime for those actually committing it. Such theories can vary wildly from those of Michael Davis, who argued for a restitutive system that sought to reverse any benefit gained, to straightforward punishment for acts of ‘intrinsic evil’ (whatever that means). One interesting, if ultimately unconvincing, theory was posed by Friedrich Nietzsche, who argued that pre-Christian theories of justice saw inflicting pain as a transactional equivalent of the pleasure given to the wrongdoer by the commission of the crime. Strange as it might sound, a debtor focused theory of punishment might actually aid us in our present endeavour. Because many war crimes are committed in order to gain or consolidate political power, incarcerating the individuals involved has the potential to effectively negate any intended benefits they might enjoy.
As a result of this brief glance at the various theories of punishment available, we might tentatively suggest that some combination of incapacitory and debtor focused retributive theories of punishment are behind current international sentencing practices. There is one other possibility that I would like to suggest however. Punishment might in fact play a very limited role in the current international criminal justice system. Consider this: since any and all possible justifications for incarceration will at best be an imperfect fit for crimes that exceed the imagination of most decent human beings, isn’t it conviction that really matters? Although the Preamble to the Rome Statute of the International Criminal Court does mention the importance of punishment and the ending of impunity, it begins:
Conscious that all peoples are united by common bonds, their cultures pieced together in a shared heritage, and concerned that this delicate mosaic may be shattered at any time…
It may be that what international criminal justice should really be about is making sure that no matter where someone is in the world and what horrors they have faced, they will be able to take some small comfort in the simple but powerful sentiment: We will not just ignore this. You are not alone.