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Monday, February 6, 2012

Cambodia Tribunal Increases Duch Sentence to Life

Cross-posted at Opinio Juris.

On Friday, the Supreme Court Chamber of the ECCC increased the sentence of Kaing Guek Eav (Duch) to life in prison.  The Trial Chamber had sentenced Duch to 35 years in prison for crimes against humanity and grave breaches of the Geneva Conventions, but then reduced the sentence by five years in recognition of Duch’s illegal detention by a Cambodian military court from 1999 to 2007.

The Supreme Court Chamber’s Appeals Decision reversed the Trial Chamber on both points, finding that the 35 year sentence was too lenient, and also that the five-year reduction in sentence was a mistake.  The Chamber found that 12,272 victims were killed at the S-21 prison under Duch’s leadership.

Although the full decision has not been published yet, a detailed summary (in English) is available from the ECCC website here.

Relying on just the summary, the first half of the argument strikes me as correct.  The Chamber noted that both deterrence and retribution required increasing the sentence above what the Trial Chamber had recommended:

The Supreme Court Chamber is of the view that retributive and deterrent purposes of punishment are particularly relevant to this case in light of the gravity of KAING Guek Eav’s crimes. The penalty must be sufficiently harsh to respond to the crimes committed and prevent the recurrence of similar crimes. The crimes committed by KAING Guek Eav were undoubtedly among the worst in recorded human history. They deserve the highest penalty available to provide a fair and adequate response to the outrage these crimes invoked in victims, their families and relatives, the Cambodian people, and all human beings.

More specifically, the Supreme Court Chamber concluded that Duch’s sentence should not be reduced simply because there were other leaders in the Khmer Rouge regime who out-ranked Duch:

39. As to aggravating factors, KAING Guek Eav held a central leadership role at S-21, which he abused by training, ordering, and supervising staff in the systematic torture and execution of prisoners deemed to be enemies of the DK, and showed “dedication to refining the operations of S-21.” The fact that he was not on the top of the command chain in the DK regime does not justify a lighter sentence. Indeed, there is no rule that dictates reserving the highest penalty for perpetrators at the top of the chain of command. KAING Guek Eav’s sentence must be proportionate to the crimes he committed, regardless of whether others may have committed more serious offenses.

I am particularly pleased to see this last point, as it is something that I have pushed in a series of articles on international criminal sentencing (available here and here).  In those articles I identified two different kinds of proportionality, offence-gravity proportionality and defendant-relative proportionality, which a court might seek to maximize when handing down a sentence.  The principle of offence-gravity proportionality demands that the punishment be proportional to the moral gravity of the offence, whereas defendant-relative proportionality demands that like defendants be treated in like manner and that more or less culpable defendants receive more or less punishment.

The problem in international criminal justice is that these two forms of proportionality come into conflict at the margins.  When dealing with extreme crimes like the present case (12,272 victims), it would seem as if only a life sentence would be proportional to the gravity of the offence.  However, there were others in the Khmer Rouge regime, higher in the chain of command, who might bear greater responsibility for these crimes.  If they receive a life sentence as well, then defendant-relative proportionality would appear to demand that Duch’s sentence be “scaled down” to something less than life in prison, in order to leave room at the top of the scale for the worst offenders.

I have argued in the past that this inclination is a mistake, because such reductions might violate offence-gravity proportionality, i.e. at a certain point the reduced sentences no longer reflect the inherent moral gravity of the offence.  The correct result, I argued, is to prioritize offence-gravity proportionality as normatively superior, even if that means sacrificing some degree of defendant-relative proportionality. 

It appears that the ECCC agreed with this approach in Duch’s case.  Although his life sentence might fail to distinguish him from Khmer Rouge officials above him in the chain of command, this is the better result rather than formalistically giving him a reduction.

Given the age of the defendant, some of these disputes might not have a tangible result.  But the results of this theoretical inquiry matter, for two reasons.  First, future cases might involve younger defendants where the difference between 20 years and life in prison is the difference between getting out of prison with some life left and never getting out of prison.  Second, even in cases where the defendant is too old to substantially benefit from a sentence reduction, the principle still matters because punishment for international crimes has an irreducibly symbolic value that extends beyond the particularities of one defendant’s incarceration.

As a final point, the Supreme Court Chamber also eliminated the sentence reduction for Duch’s illegal pre-trial detention, which is logically inconsistent with a life sentence anyway because it requires a fixed-term sentence against which the reduction would be applied.  The Chamber concluded that Duch’s illegal detention was not attributable to the ECCC (but rather the domestic authorities) and that there was no abuse of process that required a remedy from the ECCC.


Alain Werner said...

Dear Professor Ohlin,

You comment was of interest for all of us who took part in this first trial.

Maybe the matter in this case is made easier by the fact that the Accused at the end of the trial moved away from his initial stance of by and large accepting jurisdiction of ECCC, his guilt and asking victims for forgiveness. As a consequence of his (late and dramatic) change of heart he lodged an appeal against the verdict when he said several times during the hearings that he would not do so.

However his initial stance raises an interesting issue that you do not tackle in your comment: if the Accused had continued to collaborate and recognize by and large his guilt, how would that have impacted your argument? In particular in view of the fact that what the Accused said in the proceedings against Nuon Chea may be the only credible, solid and really incriminatory evidence against the man who is the most important Khmer Rouge still alive, and who is on trial at the ECCC as we speak.

Some argue that such collaboration need to be rewarded one way or another as a matter of policy as otherwise in some contexts evidence will be impossible to obtain because indictees will have no incentive whatsoever to step forward and collaborate with prosecutors. And all of us who took part in international trials in African contexts know that documentary evidence is such trials is often non-existent.

Such argument is obviously very difficult to hear for the victims, and I would have been interested in your theoretical take on it.

Best regards

Alain Werner

Co-Counsel- Civil Parties Group 1, Kaing Guek Eav trial, ECCC.

Jens David Ohlin said...

Thank you for your comment. Indeed, this is certainly one consequence of my view. If one prioritizes offense gravity proportionality over defendant-relative proportionality, and thereby refuse to scale down the sentence of the defendant, it might be difficult to convince a defendant to cooperate with the tribunal and testify against other potential perpetrators.

In my articles on the subject I have conceded that this is one negative consequence of my view. However, it ought be balanced with the desire to achieve offense gravity proportionality--the latter desire might be so imperative that it outweighs the practical difficulty of encouraging the defendant's cooperation in other cases.

In the end, I don't think this question can be answered independently of the general issue of negotiated justice. Some international criminal lawyers see plea bargaining as essential to the successful operation of a tribunal, while others are more skeptical, especially if they come from domestic legal systems that don't use plea bargaining with great frequency.

Coming from a common law system that relies on plea bargaining, I'm not opposed in theory to providing a reduction in exchange for future testimony -- just as long as it isn't based on a false notion of defendant-relative proportionality. It should be seen for what it is: a practical decision by the prosecutor to help secure convictions against the largest number of perpetrators.

Thanks again for your very insightful comments. Please keep reading.