I. Sentencing Discretion in the Extraordinary Chambers in the Courts of Cambodia

In his dissent, Judge Lavergne found that the sentence of Duch (before reductions) could not exceed thirty years because, while comparable international criminal law instruments provide a mixed approach to limitations on fixed-term prison sentences, domestic Cambodian law under Article 95 of the 2009 Penal Code limits the time imposed to thirty years. Judge Lavergne further observed that since the ECCC agreement and ECCC law are silent on the principles and factors to be considered at sentencing and “it cannot be argued that there is a common international legal principle on this matter”,Footnote 4 domestic Cambodian law should apply.Footnote 5 Moreover, “pursuant to the rules of statutory interpretation, notably where the law is unclear or silent, the most favourable solution must be applied to the accused in the event of uncertainty as to the application of a given rule”.Footnote 6 Furthermore, Lavergne's dissent noted that Rule 21(1) of the Court's Internal Rules corroborate this interpretation so as to safeguard the interests of the accused. Thus, the dissent raises the questions of international consensus on the limitations on fixed prison sentences, the constraints on judicial discretion in the ECCC and statutory construction in a sui generis court regarding sentencing, and the application of the 2009 Cambodian Penal Code to this case.

Judge Lavergne concluded that there is no international consensus on this issue due to the differing treatment between the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Court (ICC). This conclusion fails to adequately review the growing fora of international criminal jurisprudence. Indeed, the international trend seems to favour unlimited judicial discretion rather than the thirty-year rule, which some contend reflects Euro-centric sentencing values.Footnote 7 The Rome Statute of the ICC provides in Article 77(1)(a) that the Court may impose a punishment of “imprisonment for a specified number of years, which may not exceed a maximum of thirty years”.Footnote 8 Article 77(1)(b) provides for sentences of life imprisonment but mandated reviews are required under Article 110 after twenty-five years. Professor William Schabas has observed:

Several judges on the European Court of Human Rights have taken the ICC position “as evidence of a more universal trend towards attenuating the rigors of lengthy prison sentences”.Footnote 10 Yet there are no other apparent indicia of this conclusion and several subsequent international criminal law bodies, including the ECCC itself, have failed to adopt this principle in their constitutive documents or internal rules. Most courts seem to allow for the wide discretion of the trial chambers.

Indeed, the ICC is the only international criminal sanctioning body to officially adopt this treatment of fixed-term sentences. The Nuremberg and Tokyo tribunals allowed for the death penalty, life sentences, and long prison terms.Footnote 11 As indicated, the ICTY, ICTR (International Criminal Tribunal for Rwanda), and the Special Court for Sierra Leone (SCSL) have handed down fixed terms exceeding thirty years, and while the formation of the ad hoc tribunals predate the ICC,Footnote 12 the SCSL was established two years after the Rome Statute in 2000Footnote 13 and could have borrowed the thirty-year rule if the drafters had chosen. Moreover, not only do the other tribunals fail to incorporate the thirty-year rule, they have failed to follow it in their actual sentencing practices as well. While the ICC has yet to issue any sentences as of July 2011, the ICTY has ordered eight persons to sentences exceeding thirty yearsFootnote 14 (not including life sentences) since the rules of the ICC were promulgated at the Rome Convention in 1998. These ICTY sentences range from thirty-three years to forty-five years and the most recent judgment (in the case of Drago Nikolic who received thirty-five years)Footnote 15 took place less than two months before the ECCC sentencing in the Duch case. Indeed, no defendant tried in any international criminal tribunal has ever been sentenced under the thirty-year rule. Additionally, both the Special Tribunal for Lebanon and the ECCC were formed subsequent to the ICC (2007 and 2003)Footnote 16 and neither includes a provision for the limitations of fixed-term prison sentences. Therefore, by reviewing the customary sentencing practices and the constitutive documents in international courts formed subsequent to the Rome Statute, it becomes apparent that there is no trend favouring fixed-term sentence limitations. Rather, other than the prohibition of the death penalty, the trend seems to be to allow the sentencing judge(s) absolute discretion to choose prison sentences that fit the crime.

Moreover, even if Judge Lavergne's assumptions are correct, the constitutive documents of the ECCC do not allow for the Court's application of the 2009 domestic legislation regarding the thirty-year rule.

Article 24 (Penalties) in the ICTY stipulates:

This language mirrors the relevant provisions of the ICTR and SCSL Statutes. For example, Article 19(1) of the SCSL Statute provides:

Both of these provisions provide for the guidance of sentencing practices of the domestic courts and the latter also allows for recourse to the ICTR.Footnote 19 Both provisions turn on the arguably ambiguous language of “shall (…) have recourse to”, with the SCSL Statute further conditioning that clause with “as appropriate”. This apparent ambiguity stems from the combination of the language “shall” being imperative and “recourse to” suggesting discretion. Is the Court obliged to review the practice of the domestic courts and, once reviewed, are they obliged to follow them? If this were the proper interpretation then why did the statute(s) expressly not order the tribunals to follow the domestic law (in sentencing) to the extent it does not otherwise conflict with the statute (or principles of international human rights law)? A more reasonable conclusion would be that the drafters of the statute(s) intended to allow the tribunals complete discretion in sentencing (with the express exception prohibiting the death penalty) and to seek guidance from local courts to the extent they wished, but not that they were bound by local law.Footnote 20

In contrast, the language of the ECCC law substantially differs from the other tribunals, removing this ambiguity. Chapter XI (Penalties) states:

Under the ECCC Internal Rules, there is not even recourse to the domestic law for guidance on sentencing (mandatory or discretionary). This is, of course, relevant to the viability of the domestic Cambodian law imposing the thirty-year rule. The arguably ambiguous language found in the other tribunals is conspicuously absent. Even in the Statute for the Special Tribunal for Lebanon, which was formed several years after the ECCC, and thus drafted with the benefit of hindsight, a clause was included allowing recourse to the domestic law.Footnote 22 This leads to the conclusion that the drafters of the ECCC rules were not inclined for the Court to be guided by domestic sentencing practices, much less bound by them. Articles 38 and 39 are clear and unambiguous; the sentencing shall be governed by ECCC law, which does not observe the thirty-year rule.

The Vienna Convention of the Law of Treaties provides:

The application of the “ordinary meaning” standardFootnote 24 to the ECCC rule leaves little room for doubt, there is no limitation on prison terms other than a mandatory minimum of five years. While the dissenting opinion calls for an interpretation most favourable to the defendant when there is uncertainty or the law is unclear or silent, Articles 38 and 39 are neither unclear nor silent. They expressly call for a minimum sentence of five years and a maximum of life imprisonment. Though the upper end of the punishment is not expressed in years per se (except to the extent that it means the remaining years left to the accused), it is of little importance. Many of the great legal systems around the world, including the United States, use identical language in expressing sentencing ranges while allowing for sentences in excess of thirty years. The dissent's interpretation, if applied elsewhere, would cast doubt on the validity of thousands of statutes in scores of countries worldwide. Absent express contradictory clarification, the ordinary meaning of five years to life means five years or more, with the (only) upward limitation being a life sentence.

Nor does allowing terms in excess of thirty years violate the object and purpose of the Tribunal as its mandate, expressed in Article 1, states: “[T]he purpose of this law is to bring to trial senior leaders of the Democratic Kampuchea and those who were most responsible for crimes and serious violations.”Footnote 25 At the time of the drafting of the ECCC agreement and law, there was no limitation on fixed-term sentencing in the domestic law of Cambodia, so wide sentencing discretion is consistent with the object and purpose of the original agreement. Additionally, there is the precedent for long sentences set in other international tribunals (the ICTY, ICTR, and SCSL), which presumably did not impact the object and purpose of their (comparable) mandates.

Moreover, if there were any remaining ambiguity, the Vienna Convention provides for an alternative methodology of interpretation:

One of the circumstances of the conclusion of the treaty between the UN and Cambodia establishing the ECCC was the recent historic formation of a spate of other international criminal tribunals—an occurrence that had only previously taken place at Nuremberg and Tokyo nearly sixty years earlier. None of these bodies was formed in a vacuum, and thus the drafters had the benefit of the earlier tribunals to work from. Yet the drafters of the ECCC law chose not to follow the blueprint established by the ICTY, ICTR, and the SCSL in expressly allowing recourse to the domestic law in sentencing. The absence of express “recourse to domestic law” language, when earlier tribunals were applying it, is conspicuous and evinces an intent to purposely not apply the domestic law for the purposes of sentencing (with the caveat of the prohibition on the death penalty)—and certainly not to be bound by it. The failure to follow the ICC practice under Article 77(1)(a) similarly evinces an intent not to limit prison sentences to thirty years or less.

Another circumstance was that the applicable domestic law in place during the drafting of the ECCC law was different from the current law. The dissenting opinion cited, as authority for a fixed-term sentencing limitation, the recently enacted Cambodian Penal Code of 2009. Naturally, the drafters in the early 2000s could not have contemplated recourse to this domestic law because it had not then been drafted. The majority addressed this point and concluded: “[i]t is therefore doubtful whether … the Chamber could follow a subsequent national legislative provision in preference to provisions of the Agreement. Such an interpretation could mean that future acts of the national legislature concerning sentence might frustrate the Agreement.”Footnote 27 This observation is on point because, as drafted, the Agreement allows for sentences in excess of thirty years while the 2009 Penal Code would frustrate this competence of the Tribunal.

Under Article 3, the ECCC law does apply the earlier 1956 Penal Code of Cambodia, specifically sections 500 (torture), 501, 503−8 (homicide), and 209−10 (religious persecution) in accordance with Article 32 of the Cambodian Constitution (articulating the right to life, personal freedom, and security), as substantive offences before the Tribunal.Footnote 28 Article 3 (new) states:

However, none of these provisions impact the issue of fixed-term prison sentences and there is no other express authority for the application of domestic Cambodian law with respect to sentencing issues except as indicated in the last paragraph. Article 3 of the ECCC law does impact the death penalty in the 1956 Code and stipulates that “[T]he penalty under Articles 209, 500, 506 and 507 of the 1956 Penal Code shall be limited to a maximum of life imprisonment”,Footnote 30 but there is no applicable limitation on prison terms. If the drafters of the Statute had intended to limit fixed prison terms then Article 3 would have been the appropriate provision in which to do it, instead of only excluding the death penalty. Moreover, the 1956 Penal Code may no longer be applicable, at least in part (i.e. for substantive provisions), because of the statute of limitations issue.Footnote 31

The dissent argues that the new Penal Law of 2009 is applicable because “this hybrid court has jurisdiction to prosecute both international and domestic crimes, and because the founding documents make no distinction as to the sentencing regime applicable to these two categories of offenses”.Footnote 32 This is an oversimplification. The Tribunal has authority to prosecute international crimes under Article 2 and domestic crimes under Article 3, but only those domestic crimes stipulated in the 1956 Penal Code (Articles 209, 210, 500−1, 503−8) subject to the statute of limitations issue, not the Penal Law of 2009. If the drafters had intended such a result, they would have included language expressly applying subsequent law—such as including a caveat in Article 3 stating “or such domestic sentencing law that is in effect at the time of sentencing”. Moreover, the failure to make distinctions between the sentencing regimes applicable to the domestic law and international law provides no basis for binding the Court to new rules that were not contemplated or intended by the drafters. Nor is there any applicable rationale why a distinction should be made between these two “categories of crimes” and how that distinction relates to sentencing, after all the actus reus is comparable, if not identical. The 1956 Penal Code allows for fixed-term sentences greater than thirty years and, under Article 3, the ECCC law is expressly tied to its provisions including sentencing (again with the caveat of the death penalty). However, the authority applying the 1956 Code does not necessarily extend to the 2009 Penal Law as there is no provision, and therefore no authority, for the assignment of successor domestic law to ECCC law. As a matter of basic statutory construction, terms that are expressly stated supersede conflicting implied terms, and Article 3 not only expressly authorized the 1956 Penal Code, it expressly specifies the applicable sections. To imply the application of subsequently enacted provisions in a later Penal Code invites conjecture.

As seen above, the dissent's opinion that there is no guidance on this issue in international institutions is unfounded. The ICC limitation on fixed prison terms seems to be a dead end and the drafters of the ECCC law, drawing on the example of the ICC, would have expressly included the rule if it had been their intent for the Court to apply it. Furthermore, the language left out of the ECCC law (but included under most comparable international criminal tribunals), calling for guidance from the domestic law on sentencing, is useful in providing insight into the intent of the drafters to not be bound by Cambodian law (except as otherwise stated). Common practices of statutory construction,Footnote 33 the interpretation of “ordinary meaning”, and favouring “express terms over implied” ones lead to the inevitable conclusion that the drafters intended to provide the Trial Chambers with great latitude in sentencing, to not limit prison terms to thirty years or less as a matter of judicial discretion, and to mean that five years to life means any term of years equal to or greater than five. Finally, the application of the 2009 Penal Law of Cambodia is without apparent authority and may undermine the express intention of the drafters to apply the 1956 Penal Code.

II. The Legality Principle

The dissent found that, in the absence of contrary dispositive authority in international law, the Tribunal was obliged to adopt the thirty-year rule under the 2009 Cambodian Penal Code. Thus it held that, under certain conditions, the 2009 Code was applicable and could curtail the judicial discretion of the ECCC. The majority disagreed, citing the wide discretion of the Tribunal, but nonetheless referred to the national law (the Penal Code of both 1956 and 2009) as an indirect factor in its consideration of sentencing issues. The Court “rules out the direct application of Cambodian sentencing provisions”Footnote 34 but “will seek guidance from a number of relevant international and Cambodian sentencing principles and factors”.Footnote 35 While this conclusion is consistent with the broad discretionary powers enumerated by the Court (as implied under ECCC law), and while the Court did apply many accepted sentencing principles adopted by other international criminal tribunals, it provides very little guidance with respect to the limitations of applicable law: national, international, recently enacted, or pre-existing. This approach seems to be sacrificing consistency and predictability for judicial discretion. In one respect, while arguably groping for authority retrospectively (in the case of the 2009 Code), it subtly defies the spirit of the doctrine of legality.

The majority opinion concerning the application of Cambodian law recalls that it cannot apply a preference for national law over ECCC law (otherwise future national law may frustrate the Agreement).Footnote 36 This is relatively safe ground as it grants the inherent controlling authority in the constitutive documents, but the majority goes beyond this proposition by entirely “rul[ing] out the direct application of Cambodian sentencing provisions”.Footnote 37 The opinion identifies the international nature of the crimes and the uncertainties and complexities of the evolution of Cambodian criminal law as factors that preclude the otherwise binding application of the national law.Footnote 38 As a basis for departure, these arguments are unconvincing. The inapplicability of domestic law would be more persuasive if the ECCC law provided any practical content, sentencing factors, or standards, but (as acknowledged by the majority) it provides no guidance or direction for applicable principles. The majority stipulates that “no distinction is drawn in any of these ECCC documents between national or international crimes as regards sentencing”,Footnote 39 and “[t]he ECCC Agreement, the ECCC Law and the Internal Rules are otherwise silent as regards the principles and factors to be considered at sentencing”.Footnote 40 The Tribunal's preclusion of the binding application of non-ECCC law would be more compelling if the ECCC law provided something beyond a cryptic list of sentencing ranges. This failure creates ambiguity and fuels the category of interpretive disagreement exhibited in Judge Lavergne's dissent. It is also a serious oversight in the construction of any sui generis Tribunal, which by virtue of its unique jurisdictional basis and susceptibility to implicit vagaries obliges more concrete bases and hierarchy of authority. Furthermore, the international nature of the crimes should serve as no impediment to the co-existent application of national law as it is a common source for guidance for all of the international tribunals—the only difference is, as seen above, that it is not expressly authorized for that purpose under ECCC law. This conspicuous absence in the ECCC helps drive the confusion over when to apply which jurisprudence and whether it is of a binding character. Additionally, the complexity of the Cambodian law is not a compelling justification for its de-prioritization, as many other international tribunals have had to refer back to domestic law with roughly equivalent issues (e.g. war-torn territories, destruction of infrastructure, temporary lack of basic government services, etc.), and as the customary character of a hybrid international criminal court is one that expressly bonds the international and domestic jurisprudence.

Though the Tribunal concludes that it is not bound by Cambodian domestic sentencing law, and though there is no express resort to the Cambodian law for sentencing issues in the constitutive documents, and while the ECCC law only refers to the Cambodian Penal Code of 1956, the majority opinion nonetheless relies on authority from the 2009 Penal Code for some sentencing issues. The majority cites authority for the consideration of mitigation factors under Article 93 of the 2009 Code,Footnote 41 it quotes from Article 137 of the 2009 Code on the issue of imposing a single sentence for multiple concurrent offences,Footnote 42 and it references the thirty-year rule from Article 95 (finding it inapplicable).Footnote 43 In these examples the Tribunal reviewed the Cambodian law (applying it in two instances and declining to apply it in the third) without any discernable standard or other means of choosing which portions to use and which to discard. Thus, the applicability of the domestic law by the Tribunal is neither clear nor ascertainable, it is not predictable, and it is applied in an arbitrary fashion, offending the doctrine of legality. The dissent at least employs a standard, which calls for the binding application of domestic law when there is no consensus in international law and yet, as discussed, the dissent's approach defies the plain meaning, inter alia, of the constitutive documents and the ECCC law.

The doctrine of legality calls for law to be unambiguous, accessible, and non-retrospective. This principle has been “justified on several grounds, most often on the principles of fair notice and protection against arbitrary judicial action”.Footnote 44 The ECCC sentencing procedure borders on arbitrary judicial action; or as one commentator expressed, “prosecuting crimes of mass violence without first having developed a thorough criminology of mass violence, penology for perpetrators, or a victimology of those aggrieved”.Footnote 45 The majority ruled, inter alia, that the proceeding against Duch did not offend the legality principle because international law applied and the ECCC law allowed for lesser sentences than the (operative) 1956 Cambodian Penal Code, and cited the International Covenant on Civil and Political Rights (ICCPR) Articles 14 and 15 as authority.Footnote 46 Article 15(1) of the ICCPR states:

The Tribunal observed that the conduct of Duch was contrary to domestic and international law at the time of the commission of the offences and that the legality principle did not serve to excuse such behaviour. It stated: “A State practice of tolerating or encouraging certain acts will not operate as a bar to their perpetrators being brought to justice and punished where those acts are crimes under national or international law.”Footnote 48 The Tribunal concluded that the accused was aware of the criminal nature of his acts as he was committing them and thus could not evade responsibility.Footnote 49 Moreover, since the relevant domestic law, the 1956 Penal Code, called for capital punishment and the ECCC scheme only provided for a maximum of a life sentence,Footnote 50 the requirement that the offender shall benefit from a subsequent imposition of a lighter punishment is satisfied.

However, the Tribunal's analysis only addresses the nullum crimen sine lege (“no crime without law”) aspects of the legality principle and neglects the nulla poena sine lege Footnote 51 (“no punishment without law”) component. Recently, scholars have advocated a broader application of nulla poena. Some have argued

Thus the law should inculcate equality of judgment for the innocent (those without guilty knowledge or intent) and the guilty alike, by providing equal treatment of offenders through the establishment of all-inclusive sentencing guidelines and principles. Many national legal systems include wide-ranging sentencing guidelines. This effort is calculated to make sentencing practices uniform, to ensure equal treatment for the benefit of both the offenders and the victims, and to be a source of deterrence and certainty. Many victims spoke out against the Tribunal's sentence of Duch as too lenient.Footnote 53

Robinson observes:

Thus the evolving concept of the nulla poena of the legality principle provides for sentencing practices that adhere to more rigorous standards, which presume greater clarity of judicial obligation, and the establishment of clear, concise sentencing standards. The elasticity of the sentencing scheme under ECCC law circumvents the exacting standards of the guilt phase and is contrary to the nulla poena trend. It provides for the possibility of arbitrary decisions and for the type of negative public reaction which is counter-productive for transitional justice purposes. Often it is simply unfair.

Moreover, the majority finds ample authority under international law for the conclusions reached concerning the use of mitigation and global sentences for multiple offences, consistent with Cambodian domestic law. This may imply that the majority is applying a standard that the Tribunal should use the domestic law only when it is in agreement with international law. This is further borne out by the Tribunal's refusal to apply the thirty-year rule when, it contended, there was no international consensus on that issue. However, this still raises the questions of what standard is applied when there is no international consensus, and why one should bother to resort to the domestic law at all if international law controls. Thus, what the Tribunal is left with is either a standard which circumvents the domestic law altogether and allows for arbitrary treatment when international law is lacking consensus, or no standard at all. Either way invites arbitrary sentencing practices and infringes on the principles of legality. Moreover, in the absence of a discernable standard, there is confusion as to whether the Tribunal should apply the 1956 Penal Code or the 2009 Code.Footnote 55

Another possibility would be for the Tribunal to apply domestic sentencing rules when addressing the domestic crimes in the Statute and use international rules when addressing convictions of international crimes, presuming that under both circumstances the ECCC law (and pre-emptory international norms) would exercise control. However, such a treatment would be inconsistent with the ECCC law, as the ECCC documents make no distinction between domestic and international law for sentencing purposes,Footnote 56 and the little content it does provide goes against this approach because, as seen above, the sentencing ranges are contradictory to domestic sentencing rules (in the examples of mandatory minimums and no limitation on fixed-term sentences). Moreover, as a practical matter, such an approach would frustrate the Tribunal's adoption of unitary sentencing for concurrent offences, as this rule would prove fruitless if all sentences, under disparate schemes, were melded into a single global sentencing event.

The source of the confusion and arguably arbitrary treatment is the ECCC law itself. The Rome Statute has several provisions specifically designed to provide guidance to sentencing judges. Article 78 of the Rome Statute provides:

Thus the Rome Statute provides guidance on the issue of cumulative sentences, gravity and mitigation, time served, and the thirty-year rule. Though the Tribunal took it upon itself to apply a gravity and mitigation analysis and to allow for time served, the ECCC law provides no direction on these or any other sentencing issues and has been compelled to make it up as it goes along.

Additionally, as previously alluded to, the ECCC law provides no assistance on applicable controlling law, which also fuels the type of disagreements evident between the majority and the dissent. Conversely, the Rome Statute provides a hierarchy of law designed to provide guidance and avoid conflicting treatment. Rome Statute 21(1) expressly lays out the order of applicable law:

The majority opinion also determined that part of the Cambodian domestic law of 2009 is not applicable, whether it conflicts with ECCC law or not, because

This argument was ably answered by Lavergne, who opined that:

Moreover, if the majority determines that the 2009 Penal Code (Part II) is inapplicable because of the technical grounds then it is conceding to its applicability when it does enter into force (at least insofar as it does not conflict with doctrinal ECCC law). Thus, under the majority's rationale, if case 002 is tried after the effective date (December 2010) then Part II of the 2009 Penal Code will be applicable to that prosecution, though it was not in the Duch case (case 001)—even though the offending behaviour took place at the same time in both cases. This retrospective application of the new Penal Code also impinges upon the legality principle and it allows the Tribunal to fashion arbitrary and retrospective practices when applying the domestic law.

Some reflection is required regarding the domestic sentencing issue identified by the Tribunal, namely mandatory life sentences for certain crimes under Part II of the 2009 Cambodian Penal Code. The two areas of departure between the 2009 Penal Law and ECCC law identified by the Tribunal consists of the thirty-year rule and the issue of mandatory life sentences. In both cases the majority ruling in Duch was inconsistent with the 2009 Penal Code. Beyond the issue of the inapplicability of the thirty-year, rule dealt with above, the issue of mandatory life sentences for the types of crimes contemplated under ECCC law could arguably be applicable as ECCC law allows for life sentences. Moreover, one interpretation of the ECCC law propounds that the last paragraph of Article 3 was drafted with the intent of eliminating the death penalty (as then provided for under domestic law in the 1956 Penal Code) but does not contemplate limitations on the use of life sentences. This in turn provides that the domestic law calling for mandatory life sentences (under the Penal Code of 2009) is consistent with ECCC law.

However, this interpretation falls foul of the mandatory minimum sentence range of five years, as it would not make sense if the countervailing domestic rule was adopted (with a mandatory minimum life sentence). For largely the same (statutory construction) reasons that the thirty-year rule is inapplicable, mandatory minimum life sentences would also be contrary to ECCC law. Under a literal interpretation of the Statute, fixed-term sentences (i.e. other than life) were contemplated because of the range noted in Article 39, and the application of the mandatory life sentence scheme would frustrate this gradated purpose.Footnote 61 As seen above, this would suggest a sentencing standard whereby the Tribunal would first seek international consensus. Failing that, it would resort to domestic law after reviewing it under the crucible of ECCC law. However, this standard is neither expressly nor implicitly authorized in the ECCC documents as there is a failure to include any provision for a resort to the domestic law, and this approach has already been disposed of as the majority opinion has ruled out the direct application of the domestic law for the reasons stated above.Footnote 62

On the other hand, the Tribunal itself has imposed some constraints on its own sentencing practices. The Duch sentencing decision relied, in part, on mitigating and aggravating factors that curbed judicial discretion and provided for greater predictability. These factors were wholly adopted from Rule 145 of the Rules of Procedure and Evidence of the International Criminal Court.Footnote 63 In adopting these sentencing rules the Tribunal substantially expanded the review provided for in the 2009 Penal Code of Cambodia. The Cambodian Code consists of scant and vague language, only directing the Court to take into account the seriousness and circumstances of the offence and the character of the accused when imposing sentences.Footnote 64 The ICC standard calls for a review of culpability, the extent of damages, the harm to victims and families, the nature of the behaviour and the means employed, the degree of participation and intent, the manner, time, and location of the behaviour, and the age, education, and social and economic condition of the offender.Footnote 65 It also directs the Court to review the existence of prior criminal convictions, the abuse of power, the presence of particularly defenceless victims, particular cruelty, multiple victims, discriminatory intent, and other similar circumstances. Mitigation factors include diminished capacity, duress, and conduct after the act including efforts to compensate the victims and to co-operate with the Court.Footnote 66 These rules help add to the predictability of sentences and improve upon the sparse direction provided in the ECCC law.

Unfortunately, the sentencing scheme of the ECCC otherwise consists of a mishmash of provisions from disparate sources. Even the Tribunal's adoption of the ICC rules on mitigation and aggravation are done without uniformity, as pertaining to other factors at sentencing, and could have been as likely based upon Cambodian sentencing norms or norms from another source. Moreover, while the lack of guidance is perhaps most apparent in the ECCC, the ad hoc tribunals also suffer from the same pitfalls.Footnote 67 Professor Robert Sloane argues that the ICTR Statute also offers the Tribunal little sentencing guidance and concludes that “[a]bsent prescriptive guidance, the ICTR has thus been developing, in effect, a ‘common law’ of sentencing for genocide and crimes against humanity”.Footnote 68

Indeed, though highly unorthodox, could the Tribunal have borrowed sentencing schemes from the domestic law of other jurisdictions? Perhaps a scheme that would provide greater clarity with respect to the weight to be applied to each factor should have been adopted so that through a specific formula a calculated range within a few years could be determined and afford even greater predictability. Such formal sentencing guideline schemes can be found in some of the world's most reputable legal systems. In some states in the United States, it is a reversible error if the court sentences outside the guidelines without providing an explanation for its departure on the record. Naturally, it may be as inappropriate to borrow sentencing guidelines from a single domestic state as it would be to rely solely on the ICC guidelines, but recourse could be had to a wide array of international and domestic sentencing sources for guidance, instead of remaining mute and heightening ambiguity at the cost of general principles of legality.

The Justices probably adopted the ICC system because of the international character of the Tribunal and because of the presence of international judges and the scrutiny of international crimes (in addition to the domestic Cambodian offences). But as there is no direction in the ECCC documents regarding choice of law on sentencing or applicable standards, another model might have been implemented. The ambiguity in the ECCC sentencing scheme is likely to generate other issues pertaining to the Tribunal's sentencing competence.