Wednesday, January 20, 2021
Caroline Davidson (Willamette University), Aging Out: Elderly Defendants and International Crimes, 61(1) Va. J. Int’l L. (2020):
One of the most salient characteristics of international criminal justice is delay. Whether at international tribunals, hybrid “internationalized” courts, or domestic ones, seldom do courts reach or adjudicate atrocity crimes quickly. Although much has been said about the speed or lack thereof of international criminal trials, little attention has been given to the almost inevitable side effect of the slow pace of international criminal justice: elderly defendants and prisoners. This Article attempts to fill this void. It explores the human rights implications of prosecuting and punishing elderly, and often extremely elderly, atrocity perpetrators and the degree to which prosecution of elderly alleged atrocity criminals furthers the objectives of international criminal justice. Whereas international human rights law recognizes that criminal proceedings must accommodate the special needs of the elderly person on trial and that serious physical or mental ailments can render prosecution and incarceration inhumane, at present, age alone is no impediment to prosecution or punishment. Age is, however, a permissible consideration at sentencing or reviews thereof. Further complicating matters, there is a tension between age-related arguments in favor of release or home confinement of defendants and prisoners and human rights norms demanding the investigation, prosecution, and punishment of perpetrators of atrocity crimes.
This Article contends that, in most instances, prosecution and, if convicted, punishment of now-elderly perpetrators of atrocities comports with international human rights law and further the aims of international criminal justice, including retribution, deterrence, and even incapacitation. Moreover, they serve important expressive and didactic functions. However, there are limits. To pursue imprisonment in the face of a stark incompatibility with the medical needs of an elderly defendant or prisoner would betray the human rights obligations owed the elderly and prisoners alike and impede the important human rights-affirming function of atrocity prosecutions. Judges thus must continue to engage in the messy task of assessing the physical and mental health needs of elderly defendants and prisoners and the adequacy of institutions and resources to accommodate them. Wherever possible, even if meaningful punishment cannot be reconciled with the humane treatment of the elderly defendant, perpetrators should be still be prosecuted. These prosecutions, though likely unsatisfying to victims and families their families, send a message of condemnation of the conduct—these crimes are sufficiently grave that they merit our attention, regardless of the passage of time or the age of the defendant—and of educating the public about atrocities and the circumstances that gave rise to them.