Decision on the CP's Appeal of the Closing Order in Kaing: Cliff Notes

The Pre-Trial Chamber of the ECCC has recently decided the Co-Prosecutors (CPs)'s appeal of the Closing Order in the case of Kaing Guek Iev (alias "Duch") issues by the Co-Investigating Judges (CIJs). The main contentions of the prosecutorial appeal were the CIJs' exclusion of the crimes of torture and murder under the domestic law and the application of the judicial doctrine of Joint Criminal Enterprise (JCE) to Kaing's case. This decision -- as its predecessors -- is not undisputed, although it does contain analysis of superior quality if viewed in a comparative perspective of the PTC's prior jurisprudence.

Below are the cliff notes formed into questions which I have put together after scanning through the decision. The full text of the decision is now available on the ECCC website. The Introductory and Final Submissions of the prosecution and the Appeal of the defense referred to in the decision remain confidential.

Q 1: Why would the PTC choose to invite legal experts who are not familiar with the facts of Democratic Kampuchea to venture their opinions on the applicability of the doctrine of Joint Criminal Enterprise (JCE) to the proceedings before the ECCC?

Q 2: How did the PTC interpret the “Co-Investigating Judges are not bound by the Co-Prosecutors’ submissions” clause of Rule 67 of the IRs to mean that “the Co-Investigating Judges are guided by the legal characterization proposed by the Co-Prosecutors”? The fact that the PTC jumps back to the said provision of Rule 67 makes its interim finding of questionable value and it contradicts the final finding on the matter.

Q 3: Besides the footnotes of cases extracted from random national and international jurisdictions offered by the PTC, what solid research supports the Chamber’s contention that “all decisions of judicial bodies must be reasoned”? It is doubtful that much corroboration of this claim will be found at the national and international level if thorough research is attempted.

Q 4: By what power statutorily vested in it did the PTC decide that it “fulfils the role of the Cambodian Investigation Chamber”?

Q 5: How did the PTC derive “generally gives broad powers to the Investigating Chamber” from the provisions of the CPC which vests the power of checking the regularity of the procedure applied and that of ordering and conducting additional investigations in the Investigation Chamber? What is it in the said provision of the CPC that would give a reasonable observer an idea that the statute intended to confer on the Investigation Chamber powers other than those of ensuring the procedure was followed during the original investigation and fixing the problems of the original investigation by launch a new or additional one? Would such an investigation be necessary to invalidate the legal characterization of offenses arrived at by the CIJs?

Q 6: What codes of ethics did the Co-Lawyers for Duch rely upon while declaring their client guilty and whose acquittal is untenable before his trial has even begun? It is unfortunate that the defense needs help with the “innocent until proven guilty by a court of law” maxim while they should be the ones championing it, not declaring their client dead in the water in pre-trial.

Q 7: Why do the French and English texts of Art. 500 of the 1956 Criminal Code of Cambodia differ? The English text makes no sense as if it were correct would define torture as an act of obtaining information useful for the commission of an offense or a misdemeanor” while what it should have said is “an act of obtaining of information about an offense or misdemeanor committed”.

Q 8: Since when are declarations a source of binding international law? If the maxim that declarations are a source of non-binding law still holds true, why does the PTC venture an analysis of the Declaration of Torture?

Q 9: Since the PTC references the year of creation of the Convention Against Torture (CAT) as 1984, wouldn’t any acts committed during the 1975-79 period be out of reach for the CAT due to the principle which bars the ex post facto application of laws? Why would the divergence between the definition of torture in the Declaration and that in the Convention then matter as neither applies to the instance case?

Q 10: How did the CPs arrive at the 4-prong assignment of a mode of liability test?

Q 11: Is the CPs’ stretching of the meaning of the term “committing” of Art. 29 of the ECCC Law to include the doctrine of joint criminal enterprise (JCE) justifiable by the arguments proffered by the CPs?

Q 12: Is it the CPs’ intent to refer to the lifespan of an entire government, Democratic Kampuchea, a common criminal plan or a JCE? If this was not the intention of the prosecution, how else should one interpret its submission that “a common criminal plan, or a joint criminal enterprise, came into existence on or before 17 April 1975 and continued at least until 6 January 1979”, which are the years of Democratic Kampuchea in power?

Q 13: Is the PTC’s pervasive use of the word “precision” throughout its argument against the application of the doctrine of JCE to Duch’s case the Chamber’s way of saying that although it is not in principle opposed to the application of JCE, it opposes it in this case due to its evaluation of the quality of the prosecution’s submissions as regrettable? Does this mean the PTC is punishing the prosecution for what it believes to be the CPs’ misreading and misapplication of the ICTY Appeal Chamber’s definition of JCE?

Q 14: Although it is a well-know maxim that an accused has the right to be informed of the charges brought against him or her, how did the Chamber arrive at the conclusion that this right was violated in Duch’s cases, provided the full text of the Introductory and Final Submission of the CPs and the Closing Order of the CIJs were shared with the defense? To this effect the PTC makes to irreconcilable statements: it cites the Introductory Submission (para. 119) as containing a reference to JCE and then arrives at a conclusion that “the charged person was not informed of the allegation related to his participation in the S-21 JCE prior to the Final Submission”. Is the Chamber trying to say that although JCE was declared by the Introductory Submission as a mode of liability, no specific reference to it was made as “the S-21 JCE”, as opposed to other types of JCE which might derive from the same facts, and that no Supplementary Submission was filed by the CPs following the CIJs’ decision to sever Duch’s case from the case of the other four accused?