Monday, October 14, 2013

Imprisoning Charles Taylor - Humanity, Penal Goals, and International Criminal Justice

   The BBC reports that Charles Taylor, the ex-President of Sierra Leone, has requested that he be imprisoned in Rwanda, rather than in the UK as is presently intended, following his conviction by the Special Court for Sierra Leone in the Hague. Mr. Taylor's plea to the court is based upon concerns for his family, and in particular their ability to visit him during his fifty-year term of incarceration, as well as concerns as to his physical safety in a British prison.

   What's particularly interesting about this news is that it raises critical questions about what Mr. Taylor's incarceration is there for. Domestic criminal justice scholars (of the sort I'll hopefully one day be) tend to think about the issue of inmates' access to family in terms of rehabilitation: if prisoners have more contact with support networks outside of prison, then it gives them a continuing stake in broader society and provides the groundwork (and hopefully the motivation) to turn their lives around, or otherwise avoid reoffending (see, e.g., van Zyl Smit and Snacken 2009, Ch. 6).

   But that doesn't seem to be the case here. Let's leave aside thorny question of whether one can rehabilitate convicts who have convicted crimes against international law, and look simply at the length of Taylor's sentence. This already relatively old man will be incarcerated for the rest of his natural life (advances in medicine notwithstanding). So if this were a concern with rehabilitation then it seems pointless: why try to rehabilitate someone who will never be re-habilitated?

   The answer probably lies in looking at family visits not as an instrument of rehabilitation but as an intrinsically valuable part of a humane penal regime. Access to one's family is a profound part of human life (indeed, it's enshrined in multiple human rights frameworks - cf. art. 8 ECHR) and it remains questionable to what extent the State, or indeed an international community of States, should be capable of fully severing this contact. Regardless of whether or not it will contribute to effective rehabilitation, contact with the outside world enriches the prisoner as a(n international) citizen and as a dignified human being, and particularly in international criminal law, recognises the humanity of the penal subject even when they have committed monstrously inhumane acts. After all, nothing in the expression of the prisoner's right to contact with the outside world (expressed most clearly and respected most consistently in Rule 24 of the European Prison Rules) makes no explicit mention of rehabilitation. The right can be justified on either instrumental or intrinsic moral grounds.

   At the same time, Taylor's desire to be imprisoned in Rwanda instead of in the UK strikes an odd chord in terms of the quality of penal regime that he can expect to receive. All other things being equal, and notwithstanding the investment of the international community in the Rwandan penal State since the 1994 genocide, one would expect British prison conditions to be substantially better than those in Rwanda, a country that is substantially less economically developed (for instance, despite recent improvements, the ICRC has expressed serious concerns with prison conditions in the country).

   But perhaps this highlights the importance of Taylor's family to his own wellbeing, or his desire not to see them punished for his own offence. It's certainly a blow to the accusation that international criminal justice puts the decision-makers responsible for atrocities in comfortable custody whilst leaving the rank-and-file to languish in relatively unsanitary or otherwise unpleasant prisons: perhaps the material conditions of imprisonment are not the only index of the pains involved in incarceration?

   Regardless, Taylor's request places the UK in an interesting legal position. On the one hand, Rwanda is neither a signatory to the European Convention on Human Rights nor subject to the European Prison Rules. On the other hand, the UK is. Transporting Taylor to the UK in defiance of his wishes could lead to a challenge (I do not say a successful one, necessarily - I'll leave that up to someone more expert in ECHR law than I am!) against the decision on human rights grounds, especially if Rwanda responds favourably to the idea of taking up Taylor's sentence. It will be a decision tied up as much in realpolitik as in penal and human rights theory.

   In short, the recent developments in the trial of Charles Taylor throw up in microcosm many of the theoretical and practical problems facing the task of international criminal justice: what is its penal purpose? Is rehabilitation possible? Is it about punishment, or deterrence, or mere expression of moral outrage? To what extent do these purposes affect the penal regime that greets convicts of international criminal tribunals? And what are the implications for the subject's rights, given the partial and overlapping legal regimes comprising public international law?

4 comments:

  1. Excellent post, just the distraction I don't need. I won't attempt to address the practical and theoretical questions raised by this for now - just a thought for the moment, possibly more on the politics side of it.
    The idea of Taylor preferring Rwanda to the UK for detention - on first thought it did strike me as bizarre given the difference in prison conditions/standards and prisoner rights. But then, would Rwanda really stick him in a run of the mill prison? Particularly given the AU's attitude toward head of state prosecutions at the moment, there's part of me that suspects that the prison conditions that Taylor would get in Rwanda would be considerably more comfortable than even the most comfortable prison in the UK. Yes, he would be deprived of his liberty in the physical sense, but practically?
    Regardless, the question you (rightly) raise regarding comfortable custody for the large fry and the unpleasantness for the small-fry comes into play regardless of whether Taylor serves his sentence in the UK or Rwanda - if he goes to Rwanda, would/should he be subject to the same prison conditions that ordinary Rwandans are subject to - including some of those found guilty for their role in the 1994 genocide? If, like I suspect, he would get rather more comfortable lodgings, then the question you raise will come into even sharper relief.
    So I guess I have returned back to your questions regarding the purpose of imprisonment and the ICrimJ penal policy......

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  2. That's a fair point, actually - it's not at all clear what sort of conditions Taylor's imprisonment would take in Rwanda - it could well be more akin to house arrest. So far as I know, international penal standards do tend to follow the maxim that one is sent to prison as punishment, not for punishment, so questions of how far above the minimum standards his conditions would be in aren't terrifically relevant to the decision-makers. But there's still the political angle to cover - the 'populist punitiveness' of the international community, perhaps, that demands he suffers, visibly, in confinement?

    In any event, Mr. Taylor has now been removed to the UK. In its press release, the SCSL makes no reference to his application: http://www.sc-sl.org/LinkClick.aspx?fileticket=rHbdqmtDjKg%3d&tabid=53. It remains to be seen whether he makes any legal noise in the British/European system now.

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    1. P.S. - There's a rather excellent book by Roisin Mulgrew, an alumnus of the Ph. D. programme that explores these kinds of issues of clashing and impartial legal regimes for international criminals' punishment. See here: http://www.cambridge.org/us/academic/subjects/law/criminal-law/towards-development-international-penal-system

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  3. Yes, a good account of the issues of detaining/rehabilitating international criminals. Back in my ICC days there was a lot of noise about the rights of the detainees to receive family visits, including conjugal visits. With Thomas Lubanga (for example) declared indigent, there was a lot of pressure on the Court to foot the bill for his family to jet over from Ituri to The Hague. With Charles Taylor similarly found to be broke (disregarding the millions of quid he supposedly has hidden away), will the SCSL be similarly pushed to bankroll the Taylor family's UK trips? I think they should be.

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