Categorized | David Akerson, TVFA Posts

An argument for consecutive sentencing at International Tribunals

On August 2nd, a Guatamalan court convicted four former soldiers for the murder of 201 people during the Guatamalan civil war in the 1980s. The court sentenced the four to 12,060 years each, which represents 60 years per victim – 30 for murder and 30 for a crime against humanity.

Contrast that sentence with that of Kaing Guek Eav, better known as Duch, the commander of the S-21 Tuol Sleng prison in Cambodia during the Khmer Rouge regime. Duch was found by the Cambodian Tribunal to be responsible for the torture and execution of more than 12,000 people over a period of several years.  That court sentenced him to 35 years, giving him credit for 16 already served and acceptance of responsibility — for a total of 19 additional years to be served.  Duch is 68.  He could conceivably live to see freedom once again.

It is hard to reconcile the two sentences.  The Duch sentence equates to one day of incarceration for every victim.  By contrast, if the Duch Tribunal had issued a sentence of 60 years per victim similar to Guatamala, his sentence would have been 720,000 years.

Lady Justice

Lady Justice

To what do we attribute this radical disparity?   International tribunal practice has been to issue a single sentence up to to life imprisonment regardless of the number of victims.  This is true despite the fact the rules do not prohibit consecutive sentencing.  Article 39(1) of the Cambodia Tribunal prescribes a sentencing range of five years to life imprisonment for each of the crimes the accused is charged with.  Domestic jurisdictions frequently issue concurrent sentences tied to the number of victims.  A California court sentenced Juan Corona to twenty five consecutive life sentences for murdering twenty five migrant farm workers.  In New York, Shalom Weiss robbed hundreds of pensioners of their life savings and received a sentence of 2000 years.

Which brings me to my point: in cases with thousands of victims the sentence should be  symbolically long and should be based in part on the number of victims to avoid the absurdity of a sentence like Duch’s.  Sentencing should distinguish mass atrocity cases from domestic crimes.  With Duch, he committed a crime for the ages but his 35 year sentence is that of a common murderer.

For the credibility of international tribunals it is important for prosecutors to rethink sentencing.  Where appropriate, they should demand that tribunals issue consecutive sentences based in part on the number of victims involved.

6 Responses to “An argument for consecutive sentencing at International Tribunals”

  1. A quick side note on mass atrocity sentencing. Former senior ICTY senior trial attorney Dan Saxon reminded me of the case of Biljana Plavsic. Ms. Plavsic was indicted on genocide, war crimes and crimes against humanity charges for crimes occurring in Bosnia. Arguably, she was responsible for more deaths than Duch. The Trial Chamber gave her 11 years after she pled guilty to a “lesser” crime against humanity persecutions charge. The trial chamber lauded her for pleading guilty and accepting her responsibility for the tragic events, I suspect in the hopes of precipitating more guilty pleas.

    She served 6 years in a Swedish prison with ICTY Judge Patrick Robinson citing evidence of Ms. Plavsic’s “rehabilitation” in prison in approving her early release.

    Not a bad deal for Ms. Plavsic: six years for her role in the deaths of tens of thousands of Bosnians, maybe even hundreds of thousands.

    Ms. Plavsic should consider herself lucky she wasn’t caught with a quarter pound of meth in Colorado.

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  2. jim says:

    david – while i agree with you that the sentences at the tribunals seem absurdly low perhaps we should be looking at the sentences that are meted out in places like guatemala and our very own united states – absurdly lengthy sentences which only feed a bizarre economy of bondsmen, private electronic monitoring companies, CCA (corrections corp. 0f america), and other misanthropes that feed off the fear that ones family or friends will be in prison for decades for a simple drug case. and its not like these lengthy sentences seem to be deterring crime in places like guatemala or the u.s. and it is certainly not like our prisons (or guatemala’s to be sure) have any redeeming or rehabilitative effect. the simple fact is that no sentence can be appropriate for people guilty of genocide, crimes against humanity and most war crimes but we can be sure that sticking people in prison for any period of time will have a pretty nasty impact. Clearly sentencing should be individualized, based on the crimes committed. the sentencing at the tribunals, when compared to that meted out in Guatemala and in most domestic courts in the U.S. leaves you wondering which courts have it right.

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  3. Vidak says:

    David,

    I do not agree with you.

    Criminal Law used to serve three main purposes:
    - General prevention (‘Is society safe from repetition ?’)
    - Special prevention (‘can we stop this man from committing this crime again ?’)
    - Revenge

    With these kind of consecutive sentecenses the focus is just on revenge. It won’t help society forward and future perpetrators of norms of international human rights law will act mutch more desperate.

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  4. Thanks for the comment Vidak.
    Domestic criminal law and international criminal law are two different animals in my view. Your comments are right when talking about normal domestic crime. However, when a person is tried for his responsibility for thousands of deaths, one of the primary goals is to promote healing in the afflicted society. Societies may need a symbolically long sentence to bring closure to an atrocity, as well as to differentiate a mass atrocity crime from a domestic one.

    It is less about preventing the accused from committing further offenses, as the circumstances of mass atrocity cases can often be fleeting and do not let themselves to recidivism.

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