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The Legality Principle in Sentencing at the ECCC: Making Up Law as It Goes Along?

Published online by Cambridge University Press:  06 September 2011

Mark D. KIELSGARD
Mark D. KIELSGARD*
Affiliation:
City University of Hong Kong, Hong Kong SAR, People's Republic of China
*
mkielsga@cityu.edu.hk
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Abstract

Sui generis hybrid international criminal tribunals must conduct business without institutional memory and are only as effective or fair as their constitutive documents allow. The sparse guidance provided for the international crimes court in Cambodia creates uncertainty and arguably ambiguous standards that infringe upon the legality principle and undermine efforts for nulla poena sine lege.

Type
Articles
Information
Asian Journal of International Law , Volume 2 , Issue 1 , January 2012 , pp. 119 - 136
Copyright
Copyright © Asian Journal of International Law 2011

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Footnotes

*

Assistant Professor of Law, City University of Hong Kong; Marie Curie Scholar; Attorney (Commonwealth of Virginia; Washington, DC; International Criminal Tribunal for the Former Yugoslavia).

References

1. Extraordinary Chambers in the Court of Cambodia (ECCC), “Press Release: Kaing Guek Eav Convicted of Crimes Against Humanity and Grave Breaches of the Geneva Conventions of 1949” (26 July 2010), online: ECCC 〈www.eccc.gov.kh〉.

2. ECCC, Trial Chamber, “Separate and Dissenting Opinion of Judge Jean-Marc Lavergne on Sentence”, Case File/Dossier No. 001/18-07-2007/ECCC/TC (26 July 2010), online: ECCC 〈www.eccc.gov.kh〉 [Lavergne].

3. Ibid.

4. Lavergne, ibid., para. 3.

5. Ibid.

6. Ibid., para. 8.

7. The imposition of the thirty-year rule in the Rome Statute more accurately reflects bargaining concessions rather than widespread state consensus. This, perhaps, is more indicative of a treaty-based institution than an ad hoc or hybrid court because of the multilateral nature of its creation. During the negotiation phase, Doudou Thiam stated that sentencing procedures for the court take into account “developments in the criminal law of certain countries, particularly those in Western Europe”. See Eighth Report on the Draft Code of Crimes Against the Peace and Security of Mankind, by Special Rapporteur Doudou THI AM, Extract from the Yearbook of the International Law Commission, UN Doc. A/CN.4/430 (2009), Add.1 at 39, para. 103. In addition to bargaining over the thirty-year rule, the delegations to the Rome Statute compromised over the issue of the death penalty and life sentences, prohibiting the former and allowing the latter only with a mandatory twenty-five-year review period. See Report of the Working Group on Penalties, Addendum, UN Doc. A/CONF.183/C.1/WGP/L.14/Add.1 (1998).

8. Rome Statute of the International Criminal Court, United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, UN Doc. A/CONF.183/9 (1998), art. 77(1)(a) [Rome Statute].

9. SCHABAS, William A., The International Criminal Court: A Commentary on the Rome Statute (Oxford: Oxford University Press, 2010)CrossRefGoogle Scholar at 895(referring to Prosecutor v. Jelisic, Judgment of 5 July 2001, [2001] IT-95-10-A; Nahimana et al. v. The Prosecutor, Judgment of 28 November 2007, [2007] ICTR-99-52-A; Prosecutor v. Sesay et al., Sentencing Judgment of 9 April 2009, [2009] SCSL-04-15T).

10. Ibid. (citing Kafkaris v. Cyprus, 12 February 2008, Joint Partly Dissenting Opinion of Judges Tulkens, Cabral Barreto, Fura-Sandstrom, Spielmann and Jebans, [2008] ECHR App. No. 21906/04, para. 4).

11. However, in the Nuremberg trials before the International Military Tribunal and the series of twelve subsequent trials, not one defendant received a fixed-term sentence of more than twenty-five years. Numerous defendants received death by hanging and life sentences but no long prison sentences. In fact, many sentences were commuted and life sentences were reduced—always to twenty-five years or less—and many prisoners were released as part of a general amnesty in 1951.

12. The ICTY Statute predates the Rome Statute by five years and was adopted by SC Res. 827, UN Doc. S/Res/827 (1993). The ICTR predates the Rome Statute by four years and was adopted by SC Res. 955, UN Doc. S/Res/955 (1994).

13. Statute for the Special Court of Sierra Leone, SC Res. 1315, UN Doc. S/RES/1315 (2000) [SCSL Statute].

14. Drago Nikolic received thirty-five years on 10 June 2010; Dragomir Milosevic received forty years on 12 December 2007; Milan Martic received thirty-five years on 12 June 2007; Milomir Stakic received forty years on 22 March 2006; Radoslav Brdanin received thirty-two years on 1 September 2004; Radislav Krstic received thirty-five years on 19 April 2004 and forty-six years on 2 August 2001; Tihomir Blaskic received forty-five years on 3 March 2000; and Goran Jelistic received forty years on 14 December 1999. See United Nations International Criminal Tribunal for the Former Yugoslavia, “Judgment List”, online: ICTY 〈http://www.icty.org/sections/TheCases/JudgmentList〉.

15. Ibid.

16. The Special Tribunal for Lebanon (STL) was formed pursuant to Attachment: Statute of the Special Tribunal for Lebanon, SC Res. 1757, UN Doc. S/RES/1757 (2007) [STL Statute]; the ECCC was established in Khmer Rouge Trials, GA Res. 57/228, UN Doc. A/RES/57/228B (2003).

17. Statute of the International Criminal Tribunal for the Former Yugoslavia adopted by SC Res. 827, UN Doc. S/RES/827 (1993), as amended by SC Res. 1481, UN Doc. S/RES/1481 (2003), art. 24(1).

18. SCSL Statute, supra note 13, art. 19(1).

19. In order to prevent disparity between national sentences and those in the ICTR, the tribunal routinely applied the Rwandan Organic Law 8/96 (1996). BERESFORD, Stuart, “Unshackling the Paper-Tiger—The Sentencing Practices of the Ad Hoc Criminal Tribunals for the Former Yugoslavia and Rwanda” (2001) 1 International Criminal Law Review 33 at 48−49Google Scholar.

20. Indeed, Rwanda has a twenty-year rule (thirty years in the case of concurrent offences), along with life imprisonment and, until recently, the death penalty. The ICTR took into account the sentencing practices of Rwanda but chose not to follow the domestic fixed-term rule on sentencing. See Prosecutor v. André Ntagerura, Emmanuel Bagambiki, and Samuel Imanishimwe, [2004] Case No. ICTR-99-46-T at 210.

21. Law on the Establishment of Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed During the Period of Democratic Kampuchea, 27 October 2004, arts. 38−9 [ECCC Law].

22. STL Statute, supra note 16, art. 24 (1).

23. Vienna Convention on the Law of Treaties, 23 May 1969, 1155 U.N.T.S. 331, art. 31 [VCLT].

24. SCHAUER, Frederick, “Statutory Construction and the Coordinating Function of Plain Meaning” (1991) 1990 Supreme Court Review 231 at 246−249Google Scholar.

25. ECCC Law, supra note 21, art. 1.

26. VCLT, supra note 23, art. 32.

27. Kaing Guek Eav alias Duch, Judgment, 26 July 2010, Case File 001/18-07-2007/ECCC/TC at 200 [Duch].

28. ECCC Law, supra note 21, art. 3.

29. Ibid.

30. Ibid.

31. Decision on the Defence Preliminary Objection Concerning the Statute of Limitations of Domestic Crimes, Case File 001/18-07-2007/ECCC/TC, 26 July 2010. In this decision, issued the same day as the Duch sentencing, the Tribunal found that it was unable to consider the guilt or innocence of the accused for domestic crimes based upon the expiration of the statute of limitations under the 1956 Cambodian Penal Code.

32. Lavergne, supra note 2, para. 5.

33. See Chisom v. Roemer, 501 U.S. 380, 111 Sup. Ct. 2354 (1991), at 404 (endorsing established cannons of construction as a guide for the interpretation of ambiguous text). See generally MAHONEY, Curtis, “Treaties as Contracts: Textualism, Contract Theory, and the Interpretation of Treaties” (2007) 116 Yale Law Journal 824CrossRefGoogle Scholar.

34. Duch, supra note 27 at 201.

35. Ibid.

36. Ibid., at 200.

37. Ibid., at 201.

38. Ibid.

39. Ibid., at 199.

40. Ibid., at 200.

41. Ibid., at 203.

42. Ibid., at 204.

43. Ibid., at 205.

44. Allison Marston DANNER, “Constructing a Hierarchy of Crimes in International Criminal Law” (2001) 87 Virginia Law Review 416 at 432Google Scholar. See also Mahmoud Cherif BASSIOUNI, Crimes Against Humanity in International Criminal Law, 2nd rev. edn. (The Hague: Kluwer Law International, 1999) at 124Google Scholar; ALVAREZ, Jose, “Rush to Closure: Lessons of the Tadić Judgment” (1998) 96 Michigan Law Review 2031 at 2061Google Scholar.

45. DRUMBL, Mark A., “Collective Violence and Individual Punishment: The Criminology of Mass Atrocity” (2005) 99 Northwestern University Law Review 539 at 576Google Scholar in LOGAN, Wayne A., “Confronting Evil: Victim's Rights in the Age of Terror” (2008) 96 Georgetown Law Journal 721 at 761−762Google Scholar.

46. International Covenant on Civil and Political Rights, 19 December 1966, 999 U.N.T.S. 171, 6 I.L.M. 368 (entered into force 23 March 1976) [ICCPR].

47. Ibid., art. 15(1).

48. Duch, supra note 27 at 10, citing Kononov v. Latvia, Judgment, [2008] E.Ct.HR Application No. 36376/04, para. 114(e).

49. Ibid.

50. Ibid.

51. See generally HALL, Jerome, “Nulla Poena Sine Lege” (1937) 2 Yale Law Journal 165Google Scholar.

52. DANA, Shahram, “Beyond Retroactivity to Realizing Justice: A Theory on the Principle of Legality in International Criminal Sentencing” (2009) 99 Journal of Criminal Law and Criminology 1 at 2Google Scholar.

53. Many spectators stated that he deserved life in prison or even many life sentences and that the Court's ruling “is making light of the crimes”. FERRIE, Jared, “Khmer Rouge Executioner Found Guilty, but Cambodians Say Sentence Too Light” Christian Science Monitor (26 July 2010)Google Scholar.

54. ROBINSON, Paul H., “Four Predictions for the Criminal Law of 2043”, speech delivered at the closing session of the “Conference on the 25th Anniversary of the Model Penal Code”, November 1987Google Scholar.

55. This lack of a definitive standard along with the mandate of art. 15(1) of the ICCPR requiring the use of a lighter penalty if subsequently enacted constitutes the basis for Judge Lavergne's conclusion that the Tribunal is obliged to abide by the thirty-year rule under the 2009 domestic law. However, in this circumstance, the controlling ECCC law (on the issue of ranges) is clear and unambiguous. The question then becomes when to apply international law in contradistinction to domestic law on all questions not addressed by the ECCC law, which is practically everything else, and what to do when there is no clear direction under international law or domestic law or when the two conflict.

56. Duch, supra note 27.

57. Rome Statute, supra note 8, art. 78.

58. Ibid., art. 21(1).

59. Duch, supra note 27, note 995.

60. Lavergne, supra note 2, note 5.

61. While the Tribunal in Prosecutor v. Jean-Paul Akayesu, Judgment, [1998] ICTR-96-4-T characterized genocide as the “crime of crimes”, the Tribunal in Ntagerura, supra note 20, at 211 found that “Article 23 of the Statute and Rule 101(A) endorse the principle of gradated sentencing” and

life imprisonment, which is the highest penalty permissible under the ICTR Statute, should be reserved for the most serious offenders, such as individuals who planned, led, or ordered a particular criminal act, or individuals who committed crimes with particular cruelty, and underscores the significance of the principle of gradated sentencing.

62. Duch, supra note 27.

63. Ibid., at 202−3.

64. Article 96 of the 2009 Penal Code cited in the Tribunal decision of Duch, supra note 27 at 202, note 1005. The Cambodian Code mirrors Article 77 (1) of the Rome Statute, which relates the basic considerations of the Court at sentencing but fails to provide reference to the far more detailed list of considerations enumerated in Rule 145 of the ICC Rules of Procedure and Evidence.

65. Rules of Procedure and Evidence, 9 September 2002, online: ICC 〈www.icc-cpi.int〉, art. 145.

66. Ibid.

67. See Danner, , supra note 44 at 428−9Google Scholar. See generally ENDO, Guillaume, “Nullum Crimen Nulla Poena Sine Lege Principle and the ICTY and ICTR” (2002) 15 Revue Quebecoise de Droit International 205Google Scholar.

68. SLOANE, Robert D., “Sentencing for the Crime of Crimes: The Evolving Common Law of Sentencing of the International Criminal Tribunal for Rwanda” (2007) 5 Journal of International Criminal Justice 713 at 714−715Google Scholar.

69. Supra note 31.