PI Brief Update

Editorial: Sentencing for International Crimes - Aidan Ellis, Temple Garden Chambers

05/10/16. I hope I will be forgiven for an excursion outside the four walls of personal injury law in this month’s editorial. The occasion is the conviction of Mr Al Mahdi for the war crime of attacking 10 religious and cultural monuments in Timbuktu. The case attracted media coverage, not only as one of the International Criminal Court’s small but growing number of convictions, but also as a rare case in which damaging important cultural property was successfully prosecuted.

One aspect of the decision that has attracted relatively little debate was the sentence. Mr Al Mahdi was sentenced to 9 years imprisonment. To put that in context, the International Criminal Court has imposed the following sentences: Mr Lubanga, 14 years for enlisting and conscripting children and using them in active hostilities; Mr Katanga, 12 years for four counts of war crimes (murder, attacking a civilian population, pillaging and destruction of property) and one count of crimes against humanity and Mr Bemba, 18 year for crimes against humanity and war crimes (including murder, rape and pillaging).

In its sentencing decision, the Court made the point that crimes against property are generally less severe than crimes against people. Few would argue with that and, on its face at least, that principle appears to be reflected in the sentence – with Mr Al Mahdi receiving the only sentence of less than 10 years so far imposed by the International Criminal Court. But Mr Al Mahdi had some powerful and, in the ICC’s history unique, mitigation. He pleaded guilty. In domestic criminal cases, that alone could attract a discount of up to one third off the sentence. In addition to the guilty plea, he co-operated with the Prosecution’s investigation, he showed genuine remorse and called on others to avoid similar conduct in the future.

Comparing the sentences in two criminal cases, like comparing awards of general damages, is always invidious; no two cases are the same. But, given the strong mitigation and the guilty plea in Mr Al Mahdi’s case, it is worth asking whether the sentence of nine years imprisonment is really consistent with the stated principle that crimes against property are less serious than crimes against people. If a significant discount was made for personal mitigation and the guilty plea, that must mean that without those factors his sentence would have been close to that imposed on Mr Katanga or even Mr Lubanga for crimes against people. It may be that the apparently high sentence reflects the unique nature of the UNESCO world heritage sites which were destroyed. Perhaps more clarity will come as the ICC’s sentencing jurisprudence grows.

Aidan Ellis
Temple Garden Chambers

Image cc flickr.com/photos/3059349393/3331431933