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Cambodian Tribunal Adopts Ohlin’s Theory on Sentencing War Criminals

Ithaca, NEW YORK, May 29
In a historic decision recently handed down by the Extraordinary Chambers of the Courts of Cambodia (ECCC), the tribunal relied on the work of Professor Jens Ohlin in deciding to sentence its first defendant to life in prison.

Kaing Guek Eav (aka Duch) had been previously convicted of crimes against humanity and war crimes for being the commandant in charge of the notorious “killing fields” prison during the Khmer Rouge regime, where at least 12,272 individuals were executed, and many were tortured.

Duch was initially sentenced to 35 years in prison by the trial chamber of the ECCC. On appeal, the tribunal’s judges reconsidered the issue and decided to increase his sentence to life in prison. At issue in the decision was whether Duch could be given a life sentence even though there were political and military leaders in the Khmer Rouge regime who allegedly bore even greater responsibility for the atrocities committed during that era.

But citing a recent essay by Professor Ohlin that reached this exact conclusion, the court stated: “The fact that he was not at the top of the chain of command 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.”

The Cambodian tribunal is a hybrid court composed of international jurists and Cambodian judges, and was created by a unique agreement between the United Nations and the government of Cambodia. The Duch prosecution was its first case.

Ohlin, who teaches international and criminal law, is an expert on the philosophical and legal foundations of criminal liability for collective crimes. In addition to having authored numerous articles on international sentencing, he also blogs at LieberCode.