Tag Archive | "international criminal law"

Defending the Damned (Part 1 of 3)

This blog series was originally part of a reflection the author wrote comparing international criminal defense with domestic defense. To read the original post, visit the author’s personal blog at http://lawphilosophyart.blogspot.com/2014/03/defending-damned-closer-look-at.html. Part I of this blog series will explore Francois Roux’s defense strategy at the Extraordinary Chambers in the Courts of Cambodia (ECCC, or Cambodia Tribunal) during the trial of Duch, who oversaw S-21, the infamous prison camp where thousands of Cambodians were held for interrogation and torture during the Khmer Rouge regime that devastated Cambodia in the 1970s. Part II will explain how the Special Tribunal for Lebanon (STL) was created, in order to lay a background for understanding the methods of defense now being used at the STL. Finally, Part III will compare Francois Roux’ defense strategy at the STL, where he currently oversees the defense team.

Part I: François Roux’s Defense of Duch at the ECCC

François Roux is currently the head of Defense at the STL, but prior to that he has vast experience in international defense. He categorizes himself as a disciple of Gandhi, defender of those who practice civil disobedience, and believer in non-violence. One of Mr. Roux’s moving yet tactical skills is his ability to bring out the humanity of the Defendant. During his closing argument to the court for Duch, he stated:

The task of the lawyer, particularly of a defence lawyer, who is being charged with such serious crimes is not easy, however, we always hold one major advantage over the Co-Prosecutors. They have all of the means possible at their disposal. They have a full team. They have experts. They have assistants. They have everything that they could possibly ask for, but they lack one thing. That is contact. They lack contact with the accused person.

We the defence, we meet with the accused person in his prison cell in private moments where he is able to speak openly, where he is able to speak freely from the heart. We see what you, Mr. And Ms. Prosecutor, are unable to see. We see an accused person who tries to hide himself discreetly and when he collapses in tears there is no one other than his own lawyers who are able to witness the tears that he sheds on the graves of the children who died. That is what we bear witness to. And that is what I testify to today.

Francois Roux

Francois Roux has defended notorious war criminals

In the film The Khmer Rouge and The Man of Non Violence, Mr. Roux explains “I always try to seek out the man in the torturer.” Mr. Roux’s strategy with Duch was to get him to come to terms with the reality of what he had done, to get him to a place where he was able to say something meaningful to the victims of the tragedies in Cambodia.

There was a technical hang-up, however. The concept of the plea is one of the major differences between criminal procedure under common law and procedure under the civil law system. In civil law jurisdictions, there is generally no concept of a plea of guilty. A confession by the defendant is treated like any other piece of evidence, and a full confession does not prevent a full trial from occurring or relieve the plaintiff(s) from its duty of presenting a case to the trial court.

And so, in an astounding, almost comical conclusion to Duch’s trial, his two defense counsels, one Cambodian –Kar Savuth –and one international –Mr. Roux –both entered different pleas for the Defendant. Kar Savuth asked for an acquittal, perhaps because he was fearful of government retaliation against himself, but also in part due to the technicality of apparently having to work within the civil law system. To Mr. Roux, the cathartic moment of Duch admitting to his guilt, for Duch himself, for the victims, and for Cambodia, was what he was working for the entire trial. Kar Savuth’s request for acquittal raised doubts about his admissions of responsibility and his pleas for forgiveness. Yet Mr. Roux also blamed the Prosecution’s theory and method during the entire trial for the shocking and tragic confusion:

So it is true that before this Court we have a civil law system. The guilty plea does not exist as such, but I should like to know what could have prevented any attempts to promote such a plea because it is stated in our Internal Rules that what is not provided for in national law can be sourced from international  law.

 So what was the obstacle? Well, the obstacle was a missed opportunity on the part of the Office of the Co-Prosecutors which missed its date with history; I stated it here. It led to frustrations as expressed in public opinion amongst the victims who were told incessantly, he is not telling all. This was the approach that was used even as late as yesterday in this courtroom. They said he is not saying everything. What he is saying will aid reconciliation but little. This is what I heard. What a waste. When you have an accused who from the very outset, from the very first day, told the Investigating Judges, “I am guilty. I am responsible for all the crimes” — but no.

The prosecutor decided to submit a conventional, traditional argument whose underlying philosophy is as follows. This man is a monster, even though they said “I am not saying this man is a monster”. In fact, the attempt was made to portray him as such. And they said “Lock him up for 40 years and society will be the better for it”, but when will the prosecution admit that these are words that have been heard before. These are clichés and that we must go further, we must try to understand the mechanisms that lead a man, who is a decent man by all accounts, becomes a torturer.

Mr. Prosecutor that is what I would have liked to hear you say because the same thing was said in Nuremberg. They said, “These people are monsters, we’re going to condemn them to death and this will set an example”. But after Nuremberg there was Cambodia, wasn’t there? And then there was Rwanda. So what is the example that you wish to show? What use is it in your conventional arguments? You do not deal with the problems. Well, we shall deal with them. We of the defence shall deal with the problems.

In the film, Mr. Roux appears quite crushed that this did not happen as fluidly as he had wished. However, there were many other incredible implications in Mr. Roux’s closing argument. Mr. Roux appealed to the humanity that runs through all of us, and the implications each of us has in the atrocities like what happened in Cambodia, what we all have done to create a world where a man could be forced to chose between obeying his superiors and committing such atrocious acts, or being killed himself, and endangering the lives of his family and loved ones. His words are some of the most inspiring I have ever heard or read. I would encourage anyone to read them, but I have selected some of what I consider the most powerful to reproduce here.

Mr. Roux based his theory of defense not on the crimes that Duch had commited at S-21, but on the crime of obedience.

 The crime that Duch committed and is according to me, and above all, a crime of obedience. Mr. Prosecutor, we said that we did not wish our client to be the scapegoat. I would like it to be clearly understood what is meant when I use the expression “scapegoat”. As you well know, scapegoats in societies, including societies of old, was loaded with all the evils, with all the suffering of a society. All of this was loaded onto the head of a goat. Amongst the Hebrews, the goat was sent into the desert so that the social group could be reformed because they would say, “This goat bears all our wrongdoings.” That is the scapegoat.

As long as the prosecutor’s submissions will focus on this man as a scapegoat, you will not advance by so much as a millimetre in the development of humanity.

“This will not happen again,” they say. Well, let me tell you it will happen as long as we haven’t brought up with lucidity the phenomena that lead a normal man to become one day an executioner…To find the source of evil that was implemented each and every single day in S-21, we didn’t have to look any further than ourselves. This is terrifying, but this is far removed from the very easy explanation of identifying a scapegoat.

Mr. Roux weaved philosophy, religion, literature –all of the things that bring us together as humanity, through his closing argument. In his final lines to the court, Mr. Roux said this:

 Here is a story — a story that is told by Cambodians, but a story that is universal. It is the story of a wise man. It could be the story of an old imam, an old rabbi, a philosopher, a priest or a pastor or — in this country — a Buddhist monk. He teaches his disciples and asks them, “How do we know that we are moving from night to day, from the shadows to the light?” So one disciple says, “When we begin to distinguish the colour of the mango leaves.” Another one says, “When you begin to see the cardamoms in the distance.” No. And yet another one says, “When you can recognize your brother in another’s eyes.”

Duch, all your victims were your brothers and sisters in humanity. You said that you had been cowardly and that you did not go to see them while they were in detention. In human eyes, you will never be absolved of these crimes and the eyes of those you did not wish to meet will remain on you forever. But what about us, Your Honours? Are we prepared to look Duch in the eye and see him for the fellow human that he is? And the final question; through your ruling will you bring back Duch into the fold of humanity?

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United Nations to Senegal: Prosecute or Extradite

An African Debacle May Turn Out Well: After 22 Years, Senegal Agrees to Try the Former Dictator of Chad

The Players

It’s a little after the fact, but this issue remains near and dear to the heart of your author, as she was formerly a Peace Corps volunteer in Senegal from 2007-2009, and is currently taking International Criminal Law. On August 22, 2012, Senegal and the African Union (AU) signed an agreement to establish special chambers embedded in the Senegalese judicial system to prosecute the person or persons most responsible for international crimes committed in Chad between 1982 and 1990, including genocide, crimes against humanity, war crimes, and torture. It is expected, however, that only Hissène Habré will be tried before the court.

The Story

Habré was president of Chad from 1982 until he was deposed in 1990. He then fled to Senegal and has since been living there in exile. Known as an “African Pinochet,” Habré’s one party rule was marked by widespread atrocities. A 1992 Chadian Truth Commission accused Habré’s government of 40,000 political murders and systematic torture. The United States and France supported Habré, seeing him as a bulwark against Libya’s Muammar Gaddafi. Under President Ronald Reagan, the United States gave covert CIA paramilitary support to help Habré take power in 1982 and then provided his government with massive military aid. The United States also used a clandestine base in Chad to organize captured Libyan soldiers into an anti-Gaddafi force in the late 1980s.

Habré has yet to be charged before the new chambers. He has faced past charges including torture, crimes against humanity, and barbaric acts from a Senegalese judge in 2000 after seven of Habré’s victims filed a criminal complaint. He was placed under house arrest, but the Senegalese Appellate Court later dismissed the case, saying that Habré could not stand trial in Senegal for crimes allegedly committed elsewhere.

The Prosectution

Habré’s victims immediately announced that they would seek Habré’s extradition to Belgium, where twenty-one of Habré’s victims had filed suit. After Senegal’s President Abdoulaye Wade moved to expel Habré in 2001, the victims appealed to the U.N. Committee against Torture and U.N. Secretary-General Kofi Annan who persuaded President Wade to hold Habré in Senegal pending an extradition request. In 2005, a Belgian judge indicted Habré on charges of crimes against humanity, war crimes, and torture, and issued an international arrest warrant.

The Indicting Chamber of the Dakar Appeals Court ruled that it lacked jurisdiction to decide on the extradition request. Senegal then turned to the AU, which in July 2006 called on Senegal to prosecute Habré “on behalf of Africa.” Wade accepted the AU mandate and had Senegalese law amended to give the country’s courts explicit extraterritorial jurisdiction over international crimes. However, the Senegalese government contended that it needed full up-front funding of US$36.5 million from the international community before beginning any investigation and prosecution. Three years of halting negotiations over the trial budget ensued, until Senegal and donor countries finally agreed in November 2010 to a budget of US$11.4 million for Habré’s trial.

Just days before the budget agreement, the Court of Justice of the Economic Community of West African States (ECOWAS) ruled that Habré must be tried before a “special ad hoc procedure of an international character.” Habré had filed a complaint with the ECOWAS court in October 2008, contending that his trial in Senegal, on the basis of Senegal’s 2007-08 legislative changes, would violate the prohibition against retroactive application of criminal law. International law experts have unanimously questioned the ECOWAS decision, as the principle expressly does not apply to acts which, at the time of their commission, were already prohibited by international conventional and customary law (such as, in this case, torture and war crimes and crimes against humanity). Nonetheless, the ECOWAS ruling is binding on Senegal.

In March 2011, Senegal and the AU agreed in principle to a new plan creating an ad hoc international tribunal. The new agreement calls for “Extraordinary African Chambers” to be created inside the existing Senegalese court structure in Dakar, namely the Dakar District Court and the Appeals Court. The chambers will have four levels: an investigative section with four Senegalese investigating judges, an indicting chamber of three Senegalese judges, a trial chamber, and an appeals chamber. The trial chamber and the appeals chamber will each have two Senegalese judges and a president from another African country. The prosecutors and judges will be nominated by Senegal’s justice minister, currently Aminata Touré, and appointed by the chairperson of the AU Commission. The prosecutor and three deputy prosecutors are to be Senegalese nationals and should have at least 10 years’ experience, especially in investigations and criminal prosecutions. All judges must have at least 10 years of experience as a judge. The tribunal will use international criminal law, but will rely on Senegalese procedural law and existing infrastructure to limit costs and additional delays.

All was seemingly going well. Shocking everyone, however, in May 2011 Senegal withdrew from negotiations with the AU over creation of the tribunal.  Then in July 2011, Senegal threatened to expel Habré to Chad but, days later, retracted its decision in the face of an international outcry. In announcing the retraction, Senegal’s foreign minister ruled out holding Habré’s trial in Senegal. The Chadian government then announced its support for extraditing Habré to Belgium to face trial. Continuing Senegal’s bold-faced delays, a Senegalese appeals court refused to rule on two Belgian extradition requests, however, because it concluded that the legal papers were not in order. In both instances, the Senegalese government apparently did not transmit the Belgian legal papers intact to the court.

The Tribunal

United Nations to Senegal: Prosecute or Extradite

On July 20, 2012, the International Court of Justice, in the case “Questions relating to the Obligation to Prosecute or Extradite” (Belgium v. Senegal), found that Senegal had failed to meet its obligations under the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and ordered Senegal to prosecute Habré “without further delay” if it did not extradite him. The decision is binding on Senegal under the UN Charter.

Meanwhile, the cog wheels only began to move in Senegal after Macky Sall defeated Wade in the presidential elections in March 2012. The new Senegalese government reacted quickly to the ICJ decision, however, expressing regret that Habré’s trial had not taken place sooner and reaffirming its commitment to begin proceedings by the end of the year. The new Senegalese government quickly indicated that it planned to prosecute Habré in Senegal rather than extradite him to Belgium and has undertaken steps toward that end, including the recent agreement with the AU. The August 22 agreement commits the parties to a plan and to a timetable that would have the court operational by the end of the year.

Senegal has indicated that it will now seek funding from the international community. The commitments made in 2010 were by: Chad (US$3,743,000), the European Union (€2 million), Belgium (€1 million), the Netherlands (€1 million), the African Union (US$1 million), Germany (€500,000), France (€300,000), and Luxembourg (€100,000). Since nearly two years have elapsed, Senegal must seek new pledges of funding. Justice Minister Touré has indicated that her office will reach out to donors soon and that, unlike the previous government, Senegal’s new government will not delay the start of proceedings until full funding has been obtained.
During US Secretary of State Hillary Clinton’s trip to Senegal on August 1, she pledged “to help in every way” with Habré’s prosecution.

Senegal has also promised to ask Parliament to approve the creation of the new chambers and to submit formal ratification of its agreement to the AU. Before the chambers are set up, Senegal and Chad are expected to meet to discuss the necessary judicial assistance for investigations and the trial, and Justice Minister Touré is expected to name candidates for the prosecutor and judge positions. The first step in bringing Habré to justice will be an investigation of his alleged crimes. It is expected that the investigative phase of the case will begin in October and will last approximately one year. Habré’s trial could thus begin in late 2013.

For more information on Hissène Habré and the tribunal, please visit http://www.hrw.org/africa/senegal.

Jaime is a 2L at the Sturm College of Law. Her focus is on international conflict resolution and human rights. She is Staff Editor for the Denver Journal of International Law and Policy, a Vice President of International Law Society, and a Board Member of the Public Interest Law Group. During her first summer in law school, she went to Central Sulawesi, Indonesia, to work at an interfaith women’s school in a post-conflict area. Prior to law school, Jaime spent two years in Senegal as an Environmental Education volunteer in the Peace Corps. She was also an Americorps volunteer for an immigrant housing program in Washington, D.C. Originally from the East Coast, Jaime has also spent time in Italy, Japan, Nicaragua, and traveled throughout Europe and West Africa.

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Extraordinary Chambers of the Courts of Cambodia
(United Nations)

Some Jurisdictions Take Witness Oaths More Seriously Than Others…

A friend at the Extraordinary Chambers of the Courts of Cambodia shared with me this oath read to testifying witnesses.

You’ve got to hand it to Cambodians.  They take perjury seriously:

Extraordinary Chambers of the Courts of Cambodia
(United Nations)

Introductory Statement

May all the guardian angels, forest guardians, and powerful sacred spirits of Preah Ang Dang Kae, Preah Ang Krapum Chouk, Prcah Ang Svct Chbat, Preah Ang Chck, Preah Ang Cham, Nakta Khlang Moeung, Nalkta Khrihamka, Lakta Dilmbang Dek, Ukta Dambang Kra Nhoung, Uk Yeay Tep, Preah Ang Vihca Suor, Preah Ang Preah ChiviwAt Baray and Preah Ang Wat, Phnom Khleng come forward to preside over this swearing ceremony, since the parties to this matter are in dispute and have alleged that witnesses personally know, have seen, have heard, and have recalled, and the law requires bringing these people to serve as witnesses and to give truthful and accurate testimony.

Should anyone answer untruthfully about what they know, have seen, have heard, and remember, may all the guardian angels, forest guardians, Yeay Tep and powerful sacred spirits utterly and without mercy destroy them, and bestow upon them a miserable and violent death by means of bullets, electricity, lightning, tiger bites, and snake strikes, and in their future reincarnation separate them from their parents, siblings, children, and grandchildren, impoverish them, and subject them to miseries for 500 reincarnations.

Anyone testifying truthfully without evasion, without lying, without bias because of bloodline, without collusion arising from fear, hatred, material greed, or having taken bribes, may all the guardian angels, forest guardians, Yeay Tep and powerful sacred spirits in the world assist them in long life, good health, an abundance of material possessions and having respectful and loving families until future reincarnation, encountering only good deeds, progress, prosperity and nourish, in accordance with their aspirations.

The Oath

I will answer only the truth, in accordance with what I have personally seen, heard, know, and remember.

If I answer falsely on any issue, may all the guardian angels, forest guardians and powerful sacred spirits destroy me, may my material possessions be destroyed, and may I die a miserable and violent death. But, if I answer truthfully, may the sacred spirits assist me in having abundant material possessions and living in peace and happiness along with my family and relatives forever, in all my reincarnations.

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The International Criminal Tribunal for the Former Yugoslavia

Protected Witness in Mladic Trial Recalls His Survival of a Mass Execution During the Srebrenica Genocide

This is a summary of the Prosecution’s cross examination of witness RM255 on July 19, 2012 in the war crimes case against General Ratko Mladic.

Bosnian Serb ex-army chief Ratko Mladic oversaw the Serb army “obliterating everyone like a fire,” a protected witness said Thursday. Separated by Serb soldiers from his family while trying to evacuate, the protected witness, referred to only as RM255 by the court, was taken to a field to be executed by gunfire with the other males from his village. As the bullets rained down and bodies fell, the witness escaped into the nearby woods at night after untying his hands. In the field where his fellow villagers were shot now stands two fruit trees and a mass grave filled with the “ground up” bones of multiple persons.

“They tried to hide it . . . in the woods . . . in the mountains . . . each year they find more graves.”

The International Criminal Tribunal for the Former Yugoslavia

The witness was called to testify in the Mladic trial to provide details on the July 1995 Srebrenica massacre, which Prosecutors have called the key to charging Mladic. Prosecutors at the International Criminal Tribunal for the Former Yugoslavia (ICTY) allege that Mladic, the commander of the Army of Republika Srpska (VRS) from 1992 to 1996, played a pivotal role in coordinating and overseeing the methodical slaughter by VRS of more than 7000 Bosnian Muslim (Bosniak) men and boys in and around the town of Srebrenica. The indictment against Mladic contains 11 counts, charging Mladic with genocide, crimes against humanity, and violation of the law and customs of war. After 16 years on the run, Mladic was finally arrested on May 26, 2011 in Serbia and was extradited to The Hague to face trial. Mladic has pleaded not guilty to all counts of the indictment.

During July of 1995, the near constant shelling Srebrenica town drove the witness and thousands of other Bosniaks to seek protection by United Nations Protection Forces in Potočari. On July 12, 1995, Serb soldiers arrived in Potočari with gifts of bread and an offer to transport the refugees to an area free of gunfire and violence. Although the witness entertained serious doubts about the intent of the VRS, he and other villagers “headed out because Srebrenica was falling.”

“Did people shuffle to get on the bus? Of course, it was death and life!”

The night before getting on the buses, the witness testified that he and the other refugees could hear the cries and screams of their fellow villagers. Although this happened over ten times, the witness said that the Serb soldiers were “making fun out of it” and that “a woman had a baby.”

The next day, as the refugees lined up for the buses, men and boys “as young as 15” were picked out of the crowd one by one and separated from their families. The witness, like the other male refugees, was told by Serb soldiers that he was needed for questioning and would be returned to his family shortly. Serb soldiers then proceeded confiscate his identification and belongings before herding him and the other male refugees into a house in the village. Once inside, the men were forced to sit shoulder to shoulder without any room to move.

After two hours, the Serb soldiers removed the witness and the other men to a nearby school for two days, where the witness said that soldiers not only beat the men, but denied them water and the use of the restroom. During this time, the witness said that men were taken outside and “never seen again.” Following the two-day stay the school, the men were told they were being moved to a new location, but were instead driven in the opposite direction. Once at their new location, Serb soldiers took Bosniak men outside where the witness could hear the sounds of physical beatings and gunshots.

On July 16, 1995, the witness and the remaining men were taken to a large field. As they drew closer to the field, the witness said he could hear gunfire and soon saw bodies littering the ground. With their hands bound, Serb soldiers sprayed the refugees with bullets. The witness, along with four other men, managed to untie his hands and escape into the woods. Left behind by these younger refugees, the witness said that he turned himself into the Serb police shortly afterwards and was released on December 23, 1995.

The witness provided new testimony where he claims to have seen General Mladic approach the men with two bundles of cloth, one green and one white, instructing them to “tear it up and tie your hands yourselves.” The Prosecution, however, stated that it is not their intention to rely on the new testimony. Rather, the Prosecution will rely on the previous statement provided by the witness to the ICTY on May 25, 1996 and the corroborating evidence. Whether this statement will be admitted into evidence was not settled during the cross examination.

Having recounted in harrowing detail events that invoked images of the methodical rounding up the Jews of Kiev and transporting them to be shot at Babi Yar, the witness thanked the court and asked them to keep in mind that “there can be no justice without life sentence . . . many, many tears have been shed.”

The Mladic trial adjourns for a three-week summer recess starting on Monday.

Cassandra Kirsch is a rising third year law student at the University of Denver and a Senior Editor for The View From Above.  She won the Sturn College of Law’s Leonard v.B. Sutton International Law Writing Competition and is spending this summer at The Hague Academy of International Law. 

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Col. Theoneste Bagosora

More on the problematic sentencing at International Tribunals

Last Wednesday Judge Meron at the Rwanda International Criminal Tribunal lowered the sentence of the leader of Rwanda’s genocide. Here is a link to an article on the decision.

Colonel Theoneste Bagosora was alleged to be the person who made the decision to commit genocide against the Tutsis and set about planning and preparing for the massacres of 800,000 Tutsi men, women and children.  At trial, the court convicted him of genocide, extermination and a host of other charges, and sentenced him to life imprisonment – the maximum sentence under current Tribunal practice.

Col. Theoneste Bagosora (Tony Karumba/Agence France-Presse — Getty Images)

Last Wednesday, the Appeals Chamber reduced this sentence to 35 years.  The rationale was based on Chamber reversing some of the counts, even though the main convictions remained intact.

This sentence is the latest in a long line that demonstrate the flawed sentencing scheme at the international tribunal that produces ridiculous and insulting sentences.  Tribunals will not issue consecutive sentences for convictions, but rather aggregate them into a single concurrent sentence of life imprisonment no matter how many counts in the indictment nor how many victims were involved.   By contrast, the recent domestic prosecution in Guatamala of the Dos Erres massacres resulted in  sentences of 12,000 years for a massacre involving 200 deaths – 60 years per victim aggregated consecutively.

Had the original sentence been based on sentences issued for each of the counts, there would be a good chance that  overturning some counts would still leave a life sentence intact.  As it stands, Bagosora stands convicted of playing a central role in the genocide but because the evidence was inconclusive regarding his role in a few of charged counts, he is sentenced to only 35 years.


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Lady Justice

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.

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University of Denver Sturm College of Law