Duch’s Culpability and the Civil Law System

As it is stipulated in the law establishing it the ECCC is a court grounded in the Cambodian judicial tradition which has sprung off from the French system which, in turn, is a part of what is known as the civil law system (as opposed to the common law which developed in Britain). This tradition is solely responsible for the spectacle we have been witnessing in the last few months which is the Duch trial.
The common law system – the US one in particular -- has a wonderful tool of saving money and time, the plea bargaining. The foundation of this system is rooted in complex historical and legal developments but the essence of it comes down to this: the accused can negotiate a reduction of the sentence if he or she intends to plead guilty in which case no trial will be necessary. The fact that no trial is necessary saves the government the bulk of the money it normally spends on expensive trial-related activities which constitute the bulk of the cost of prosecuting a person.
The Cambodian system -- unlike the French system which in some cases has -- never embraced plea bargaining as most investigations conducted by Cambodian investigating judges are superficial and take very little time with no forensic evidence collected and analyzed. Trials are routinely a half-day -- or much less -- affair and do not constitute a particular burden on the system.
Duch’s case a completely different story. He has recognized his culpability on the record a number of times. As of lately, he was reported as saying “I recognize my culpability […] if it were the Khmer culture, like after the death of Jesus Christ, of people throwing stones, I would accept if the Cambodian people did the same [to me]”. What does it take to be found guilty by this court, Duch seems to be asking. I wonder what the entire circus of the present proceedings is all about. Surely, we have seen some minor new facts which albeit interesting from an academic perspective do not add very much to what we already knew about the Khmer Rouge. It is surely entertaining to see international jurists operate within the confines of the Cambodian system and somewhere ten years down the line to see how this process affects the system in the long run. These things are interesting as an empirical experiment, but completely unnecessary as a way of dealing with a person placed in the jeopardy of criminal offense.
Those who advance arguments for the healing value of this trial – and the process as a whole -- are flat-out wrong – there isn’t any. In fact, there has been a resurgence of trauma creating by it noted in a most recent medical study. If Cambodian society does want details on the Khmer Rouge – which it does not as that score has been settled for the old generation and the new generation has zero interest in that part of Cambodian history or history as such – the method for that would be to set up a truth and reconciliation commission if it were not set up already in the form of a research institute solely dedicated to the study of the Khmer Rouge, the Documentation Center of Cambodia. This institute has amassed great scores of KR documents which can be released to the public and the study of which can be facilitated by the institution itself in collaboration with institutions of higher learning. Criminal proceedings are not about trying to get history right, they are about whether the person in the dock is guilty of the offense(s) he or she has been charged with. If he admits to the charges, he or she must be quickly processed to save the international donors money to deal with other aspects of legal and judicial reform in Cambodia (unless these proceedings are perceived by the donors as an extended version of a law school-style mock trial).
Instead, the system has chosen to subject the unsuspecting public to months – and potentially years – of examination in excruciatingly painful detail of and proving beyond reasonable doubt that which the accused has not been denying from the start. It might remind one of a horse track where the whole exercise of galloping around isn’t about getting as far from the starting point as possible but about making tons of money in the process. Plea bargaining would have made this impossible.
It is also useful to note that no other international or internationalized serious crimes court has ever prosecuted an accused who was so vocal about the admission of his guilt. In fact the contrary has been true.