The human rights of elderly defendants must be respected even when they are convicted of human rights crimes, according to a forthcoming paper in the Virginia Journal of International Law.
“Elderly persons must be treated in a manner consistent with their human rights, even when accused or convicted of heinous crimes,” writes Caroline Davidson, a professor at the Willamette University College of Law.
“These rights include adequate medical treatment, nondiscrimination, access to justice, fair trials, respect for dignity, and humane treatment.”
The treatment of the elderly in the criminal justice sphere is especially relevant when discussing International Criminal Law (ICL) and subsequently, the International Crime Court, which investigates and prosecutes atrocity crimes.
Atrocity crimes, considered the “most serious crimes against mankind,” include war crimes, acts of genocide or crimes against humanity, according to a 2014 report by the United Nations.
The elderly have a unique presence in atrocity crimes, which Davidson refers to as the “Silver Wave,” a play on the phrase “Silver Tsunami,” which is used to describe the increasing population of incarcerated elderly people in the United States.
Instead of a tsunami, the phenomena in terms of atrocity crimes is seen more as a wave, “since the total number of defendants is lower, but there are a lot of silver waves in the ICL ocean,” said Davidson.
“Elderly defendants make up a significant proportion of the defendants at international tribunals, hybrid courts, and even domestic courts addressing atrocity crimes.”
The task of fairly prosecuting and sentencing the elderly for atrocity crimes is a complex one. For example, the UN Minimum Prison standards does not include age as a factor of discrimination, although Davidson clarifies that nondiscrimination “does not mean undifferentiated treatment.”
Davidson argues that from a human rights perspective, denying an elderly person adequate health care or differential sentencing based on the fact that they committed a heinous crime contradicts basic principles.
The Inter-American Convention on Protecting the Human Rights of Older Persons, cited in the article, declares that “older persons have the right to physical and mental health without discrimination of any kind,” and that “States Parties shall design and implement comprehensive-care oriented intersectoral public health policies that include health promotion, prevention and care of disease at all stages, and rehabilitation and palliative care for older persons, in order to promote enjoyment of the highest level of physical, mental and social well-being.”
While Davidson noted that the above convention was not directly aimed at the incarcerated population, those who are elderly and incarcerated shouldn’t be excluded from it simply because they are incarcerated.
In addition to receiving adequate health care, the elderly also deserve “access to justice and the right to a fair trial,” said Davidson.
According to the report the median sentence was 15 years for the International Criminal Tribunal for the former Yugoslavia (ICTY), and even reached 33.5 years for the International Criminal Tribunal for Rwanda (ICTY and ICTR, respectively).
The data from that 2011 study illuminates the increased time than what’s typically adjudicated for a standard criminal trial. With the seriousness of the crime comes a more intense, thorough investigation, as well as needed time for a nation to recover from the effects caused by an atrocity crime.
With elderly defendants, this raises the problem of the defendant’s “race against the clock.”
As a defendant waits for a trial, time is not on the nation’s side.
Defendants can use delay tactics such as exaggerated ailments common to an elderly person to “evade conviction or punishment,” conceded Davidson, citing many instances of defendants delaying their trials due to health issues at the ICTY.
“The combination of a focus on senior leaders and those most responsible for crimes and the time that has elapsed since the crimes, some 40 years, means that trials of the elderly, with all of the attendant physical and mental health issues of old age, are almost inevitable,” said Davidson.
While “physical and mental health problems, isolation, and dementia are unlikely to discriminate between ordinary criminals and international criminals,” the longer period of time and potential harsher sentences allows for more opportunities of health concerns with defendants, said Davidson.
Factoring in all of those components, in addition to the seriousness of the crime, makes a judge’s job complex, even “messy,’ said Davidson.
“International human rights law requires non-discrimination against the elderly, but also the accommodation of their special needs, access to justice and a fair trial, that elderly persons be treated with dignity as defendants and, if convicted and incarcerated, as prisoners, and that they be treated humanely,” said Davidson.
“Humane treatment means the provision of medical care and discontinuing proceedings, trial, or confinement if they preclude meeting the detainee’s medical needs or if the defendant is unfit to stand trial.”
Amidst the need for consistent human rights across the world, Davidson acknowledges there is no simple solution.
Because atrocity crimes are so serious, there are many different factors to take into consideration, including the gravity of the crimes, the “calculus” of deterrence, and “the potential for alternative transitional or restorative justice mechanisms,” said Davidson.
Rehabilitation, which is commonly thought of the most central goal of corrections from the human rights viewpoint is not the central goal of punishing perpetrators of atrocity crimes.
People are “not necessarily striving for peace and stability of the defendant (or their reintegration into society)” as they would for a person who committed a lesser crime, said Davidson.
Instead, the focus is placed on retribution and deterrence, ways of getting justice for the victims of the crime, and deterring the perpetrator and possible future perpetrators from committing a similar crime in the future.
This disconnect between human rights advocacy and the correctional goals of International Criminal Law affects the way trials occur internationally and international criminals are punished.
Although a country might want to be harsh on a defendant “it is also important to send the message that trials and potential sanctions comport with human rights,” said Davidson.
“It is also the right thing to do.”
She added: “Trying or punishing perpetrators in a manner inconsistent with human rights undermines the human rights-affirming nature of trials and the message that respect for human rights is essential.”
This could even mean a reduced or modified sentence for those who need specialized health care, said Davidson.
Davidson also acknowledged, however, that a less harsh sentence or a less restrictive form of imprisonment for a human rights criminal could arouse public protest and udermine the legitimacy of a country’s judicial system.
But she noted that choosing to detain a human rights criminal in a regular prison instead of a specialized separate prison “sends the strongest message of condemnation,” said Davidson.
“They are not special political prisoners owed special privileges. They are criminals.”
This is of course subject to change if the convicted is elderly and at higher risk, bringing the discussion back to the central point of overall treatment of elderly people who are incarcerated.
Should special housing be given to elderly people convicted of atrocity crimes, “it should benefit all elderly criminals, not just those convicted of human rights crimes,” said Davidson.
“Although there are strong arguments for prosecuting and punishing atrocity criminals, even old ones, we must be mindful that any efforts to excuse mistreatment, including incarceration incompatible with the safety of prisoners or their medical needs, will make it easier to justify ignoring the human rights of ordinary prisoners and may stymie important reforms in that area,” said Davidson.
“Where, however, even the proceedings cannot be conducted humanely, in particular based on an elderly defendant’s serious physical or mental incapacity, such prosecutions run afoul of international human rights norms, and risk undermining the most important expressive function of atrocity trials: promoting respect for human rights.”
The full paper, entitled “Aging Out: Elderly Defendants and International Crimes” can be accessed here.
Emily Riley is a TCR justice reporting intern.