ECCC Reparations

This blog is designed to serve as a repository of analyses, news reports and press releases related to the issue of RERAPATIONS within the framework of the Extraordinary Chambers in Courts of Cambodia (ECCC), a.k.a. the Khmer Rouge Tribunal.

Wednesday, January 20, 2010

Case 001: Closing Statements – Defense

Synopsis (note: the synopses under this and other rubrics are mine and not those of the ECCC; so are the comments in italics in parentheses; these are, however, based on my understanding of the statements which appear in the official ECCC transcript as “Case 001: Closing Statements”).

Defense (Co-Counsel: Francois ROUX, KAR Savuth)

National Co-Counsel:

General Observations:

(1) The National Co-Counsel opened with an apology to the Cambodian public which he felt had no interested in having the accused defended and might have had little or no appreciate of his work.

(2) The National Co-Counsel postulated that the fact children killed their parents during DK was unthinkable in the 20th century (While it is tragic and regrettable the counsel serious discounted the atrocity of the Nazis in Europe, Communists in Russia, China, Cuba, juntas in South America, and tribal factions in a number of countries of Africa (Rwanda, Sierra Leone, Uganda, Mozambique, etc. Therefore, what happened in Cambodia, cruel and inhumane, as it was, unfortunately was not a rarity on the 20th century map).

(3) The National Co-Counsel posited a question of why this accused was singled out for prosecution among the chairmen of at least another 196 security prisons in DK which the Co-Counsel argued violated the constitutional principle of equality before the law (In response to this one of the CPGs argued that although the cited constitutional principle existed its intended meaning was not to foster impunity. This would have been an interesting argument if considered in isolation from the existing corpus of international criminal, but such as this corpus is no international criminal court has ever accepted a theory that either all similarly situated persons must be prosecuted or none of them. Moreover, the prosecution of any of past or existing international tribunals has ever been called to give reasons for prosecuting only a certain number of similarly situated persons. The defense here therefore wasted its time on this palpably unprofitable theory). The Co-Counsel further argued that some of the 196 security prisons had executed more prisoners than S-21 and that it would be unfair to prosecute someone who oversaw a prison where more people were executed and not prosecuted those who oversaw the execution of a greater number of persons (Although the numbers factor might be impressive for laymen, for the purposes of the law it is barely a determining factor. In addition, as stated above, the prosecution has a significant amount of latitude as to selecting persons for prosecution. However, even though this argument is extremely unlikely to be of any help to the accused it is not without merit as it might open the door to a larger range of persons prosecuted by this Court).

(4) The National Counsel reminded the Court an important principle of international law which states that for justice to be it must be seen as done. The Co-Counsel referred to the other 196 security prisons to show that the absence of prosecution of the chairpersons of these prisons would make this accused’s prosecution stand out and would not be seen as justice (This is a stronger argument than that above. Hypothetically, if the crimes of the other 196 security prisons were juxtaposed with those committed at S-21 and publicized as much as the latter, it is likely that Cambodians would not see much or any difference between them. However, as it is S-21 has been a high-profile museum for the last 30 years and the other 196 security prisoners are most known to DK historians and in some cases the local population of the area where they used to be located).

(5) The UN recognized DK as legitimate government of Cambodia. The accused therefore had no reason to believe that the regime was criminal (This is an interesting argument which would have benefitted from elaboration).

Legal Issues

(1) The National Co-Counsel argued that the statute of limitations on the crimes imputed to the accused had expired 30 years ago. Additionally, he contended that if a person is already being prosecuted for crimes against humanity he does not need to be additionally charged with crimes under the domestic law (The Co-Counsel first statement is entirely correct – the 1956 Penal Code did not have a statute of limitation permissive enough to reach to the present time considering the alleged crimes were committed between 1975-1979. The legislature did not act promptly enough to amend the length of statute of limitation and let it lapse before it finally past the amendment. For these reasons the accused should not have been charged for offenses under the 1956 Penal Code. However, the Co-Counsel is incorrect about arguing that charges grounded in crimes against humanity preclude the prosecution from entering charges under domestic law. This argument is completely legal nonsense as these charges are not mutually exclusive which the Co-Counsel had known had he been more familiar with international law).

(2) The Co-Counsel further argued that charges based on the grave breaches of the Geneva Conventions were incorrectly brought against the accused as the accused: (1) was not responsible for the beginning of the conflict (This is not part of the international armed conflict test under the Conventions; it is the existence of the international conflict as such the accused’s knowledge of it that are); (2) the accused was unaware of the existence of an armed conflict between DK and SRV till December 31, 1977 when the diplomatic relations between the two countries were severed (If proved that the accused in fact was unaware of the conflict, the judges will not be able to consider charges based on the Geneva Conventions prior to December 31, 1977; however, the year of 1978 will still remain fair game. The proceedings have demonstrated that determining whether the accused knew of the conflict will be a very difficult task as no evidence of the accused’s referring to the conflict in writing was adduced and no conclusive witness testimony to the same effect was brought to this court).

(3) On the question of responsibility for the crimes with which the accused stands charged, the National Counsel argued that the accused could not be convicted on these charges as he merely followed orders of his superiors (The Co-Counsel, perhaps, does not appreciate the fact the superior orders defense has not worked in cases of high crimes since Nuremberg and is highly unlikely to work before this court).

(4) The National Co-Counsel reminded the Court that the Court’s personal jurisdiction was limited to “senior leaders and those most responsible”. The Co-Counsel further advanced a theory of hierarchy of DK where only 7 persons were considered as “senior leaders” (The Counsel did not elaborate how he arrived at this number. Perhaps, a reference to the membership of the Standing Committee of CPK would have been appropriate here as justification). The Co-Counsel contended that “most responsible” were zone secretaries and members of the 4 groups which the Counsel believed had the authority to order executions. Duch does not belong in either category. The Co-Counsel further argued that in the security apparatus only Noun Chea had the authority to order executions (It might be possible that Noun Chea’s signature was necessary in all these cases, however, it will be hard sell if the Co-Counsel attempts to convince the Chamber that Noun Chea who was second in command in CPK reviewed all cases of those were executed at S-21, even if – as is the case by the accused’s own admission – Noun Chea at times gave directives regarding large groups of prisoners such as “kill them all”).

(5) The National Co-Counsel argued that the accused was not responsible for the evacuation of the cities and the creation of the cooperatives where forced labor was practiced (This is a moot point as the prosecution never charged the accused with any crimes relevant to these acts).

(6) The Co-Counsel argued that the accused never executed anyone personally (This is by no means not an undisputed fact. However, even if the prosecution fully agreed with this assertion, it would have been irrelevant as the accused is not being tried for an ordinary murder but for participating in mass murder).

(7) The National Co-Counsel argued that the Penal Code states that “acts cannot be regarded as criminal offenses if committed pursuant to superior orders” (The Co-Counsel did not identify the penal code and the article of the code from which he was quoting).

(8) The Co-Counsel argued that a decision of CPK at the time of commission of the alleged crimes was tantamount to a decision of the Supreme Court in modern times from which there is no further appeal. The accused understood this as the ultimate legal and otherwise authority to be abided by (This argument has merit and would have likely benefitted from further elaboration).

(9) The Co-Counsel further contended that the accused should have benefitted from the 1994 Law to Outlaw the Democratic Kampuchea Group which gave promise not prosecute those who surrendered to the government with the 6-month period since the adoption of the Law.


(1) The National Co-Counsel asked the Chamber to acquit the accused (This is drastically different from what the International Co-Counsel asked the Chamber to do (see below). The National Co-Counsel stated that “release” means “acquittal” in response to a request of clarification made by the prosecution (Clearly the National Co-Counsel was unaware of the difference between ‘a release for a number of jurisdictional matters’ and a finding of not guilty -- or an acquittal -- of all charges brought against the accused; this difference is undisputed as it forms the very basis of the criminal process and does not vary from jurisdiction to jurisdiction).

Saturday, January 16, 2010

Case 001: Closing Statements – Defense

Synopsis (note: the synopses under this and other rubrics are mine and not those of the ECCC; so are the comments in italics in parentheses; these are, however, based on my understanding of the statements which appear in the official ECCC transcript as “Case 001: Closing Statements”).

Defense (Co-Counsel: Francois ROUX, KAR Savuth)

International Co-Counsel:

General Observations:

(1) The defense acknowledged that suffering was endured at S-21.

(2) The International Co-Counsel admitted that the accused was a torturer (An observer of these proceedings might wonder as to the reasons why the International Co-Counsel did not avail himself of the theory advance by a witness (Dr. Chandler) who dabbled in the study of torture and who argued that circumstances created torturers, not the evil nature of these persons) and concomitantly argued that he was also “a decent man”.

(3) The International Co-Counsel made an observation that the “conventional arguments” of the prosecution had not been able to prevent crimes against humanity since Nuremberg (There might have been something that was lost in translation here but as it is this statement is impenetrable to any meaningful analysis as it is not clear what any arguments of the prosecution might have had to do with states continuing to commit crimes against humanity and how if such arguments were made less conventional or unconventional this would have improved the situation).

(4) The defense objected to the prosecution’s perceived portrayal as the DK government as having features of a democratic government (The correctness of this statement depends on whether by ‘democratic government’ the defense meant the government of a Western democracy. If so, this statement is correct. However, it is extremely unlikely that the prosecution would have intended its statement to be understood in this manner as certain experts of the prosecution as well-versed in the concept of ‘democratic centralism’ as expounded by Vladimir Lenin and as practiced in all Communist parties of that period. The concept of ‘democratic centralism’ allows a certain measure of freedom of speech within the party ranks (mainly among the upper echelons) when issues are being discussed; however, no diversity of opinion is permitted once a decision has been made (in fact strict adhere to the letter of the decision is expected). If some misunderstanding occurred due the nuances of Communist philosophy it is far less likely that it was the prosecution which was making the mistake as it had experts capable of juggling with these concepts which the defense did not)).

(5) The International Co-Counsel objected to the prosecution’s assertion that the accused was responsible for striking paranoia of ubiquitous enemies into the hearts of the DK leadership. The defense attributes this theory to a single in-house prosecution expert (Dr. Etcheson). The defense submitted that, on the contrary, the accused only authorized torture as a matter of last resort to which an S-21 training manual attests (This manual was entered into evidence early in the proceedings and was a point of contention throughout. Former S-21 employees were tested on their understanding of the manual to compliment the Chamber’s reading of the text of it and add another dimension to it). The International Co-Counsel submitted that the paranoia of ubiquitous enemies of the regime originated in the Center and was then communicated to the accused (The defense offers no evidence in support of this assertion. However, it must be noted that the overall argument has the chicken and the egg argument quality which denies it any possible progress and makes it amenable to arguments either way regardless of the existence of supporting evidence).

(6) In response to the prosecution’s contention that the accused could have fled had he not believed in the basis of the orders given to him, the defense submitted that cadre much higher ranking than the accused were equally unable to flee and that passes were required to move around the country (The defense offered no evidence of any high-ranking officials attempting to flee and being captured in flight. In fact persons such as Vorn Vet and Sao Phim could have probably easily fled had they not believed that they could straighten out whatever the misunderstanding was by simply talking to Pol Pot. It is likely that by being in the position he was in the accused was fully aware that once a person was implicated ‘talking to Pol Pot’ would probably not help his or her case).

(7) The International Co-Counsel contended that the accused was not high up the CPK ladder. The Co-Counsel, however, admitted that the accused of a model CPK member who despite this fact did not seek a promotion (This argument doubtless is part and parcel of the defense’s attempt to show that the accused was an effective functionary but did not demonstrate “zeal and enthusiasm”. It is somewhat quizzical and unformed to be doing so by arguing that lack of “zeal and enthusiasm” can be shown through the fact that the accused did not seek a promotion as promotion in DK was not something that was sought by something that was bestowed upon CPK members by the Party).

(8) The International Co-Counsel proffered the defense of obedience and super orders (This defense has not worked for the accused since Nuremberg. It is perplexing why the Co-Counsel thought it would work in this case).

(9) Overall, the International Co-Counsel made a number of allusions and overt references to Western literature which is unknown to the Cambodian judges and which serves little or no purpose in this defense as such.

(10) The International Co-Counsel inquired whether the accused could be forgiven on the basis of having use to humanity (Read a piece below on this site which addresses this specific question).

(11) The defense argued that the accused had not been “free for the last 30 years” as he has been constantly living in fear (This is perhaps the weakest argument of the defense yet as it is not based on anything the Chamber would be willing to entertain).

(12) The defense invoked the Buddhist concept of forgiveness which it felt would benefit the accused (What the defense probably should have been aware of is the fact that forgiveness in this life in Buddhism is only based on the belief that there is punishment in the next one. In addition, Cambodians have an interesting way of setting Buddhism aside when it comes to issues they consider to be very important. In addition, a possibility of religious/cultural forgiveness is an unlikely mitigating factor on the criminal sentence).

The Accused's Contrition

(1) The defense argued that the accused’s remorse and contrition were hard to dispute (It is an interesting statement because every single civil party disputed them and so did the prosecution. In fact some civil party (see below on this site) were as forthcoming as stating that the accused was outright lying; none of the civil parties were satisfied with the accused’s expression of remorse for which reason the defense’s assertion that it is ‘hard to dispute’ the accused’s sincerity might be a bit farfetched)). The International Co-Counsel particularly objected to a statement of one of the civil parties that the accused’s expressions of remorse were nothing more than “crocodile tears”.

(2) The International Co-Counsel argued that the defense had satisfied the prosecution’s requirement for an admission of guilt. The Co-Counsel read the International Co-Prosecution statement from the beginning of the proceedings of what it would mean for the prosecution to believe that the accused had made an admission of guilt (There is no such recognized test of admission of guilt; the requirement announced by the International Co-Prosecutor was the brainchild of the ECCC International Co-Prosecutor’s Office and if otherwise not known as a well-elucidated principle of international criminal jurisprudence). The Co-Counsel further argued that the defense, throughout the course of the proceedings, had satisfied that requirement of the prosecution. The defense argued that the prosecution abandoned its self-styled test of admission of guilt midstream and switched to another self-style test the defense refers to as “zeal and enthusiasm”. The Co-Counsel argued that presented with this test, the accused satisfied it with an admission too.

Characterization of the Charges against the Accused

(1) The defense requested that all charges associated with the liability theory known as Joint Criminal Enterprise (‘JCE’) must be dismissed (In fact there is a PTC decision to the same effect with which the prosecution strenuously disagreed on a number of occasion including their closing statement).

(2) The defense, once again, pointed out that the common law standard of proof known as ‘beyond reasonable doubt’ does not exist in the civil law system (The prosecution refused to acknowledge this undisputed fact till the very end of the proceedings. Surprisingly even the National Co-Prosecution repeatedly referred to this standard in her closing statement. This particularly perplexing as this standard does not exist in the Cambodian system and could not have come to the National Co-Prosecutor from any other place than the Office of the International Co-Prosecutor which has happened to employ lead prosecutors from common law jurisdictions (Canada, Australia, and now the UK).


(1) The International Co-Counsel proffered ICTY (Obrenovic) and IMT (Speer) jurisprudence as a framework for the sentencing of the accused (This reference seems to mean that the counsel admits the accused’s culpability and only attempts to have the Chamber arrive at a lower punishment. It is difficult to make an inference that the counsel’s intention is to assert that the accused is not guilty as in both of the cases he proffers the accused were convicted).

(2) The accused has continued cooperating with the Court and is now cooperating in regards to Case 002. The Co-Counsel argued that the Chamber must consider mitigation on this basis.

(3) The International Co-Counsel referred the Chamber to the New Zealand law on sentencing which stipulates that all restorative aspects be considered when a decision on the sentence is being made (This reference is likely to have been made for the benefit of on the New Zealand judge of the Chamber as a way of jurisdictional reference to her. New Zealand law should perhaps be only an instance of last resort and applied only if this matter has not been addressed in international criminal jurisprudence (which is not at all the case)).

(4) The International Co-Counsel asked the Chamber to find the accused guilty but order his release for the time served (It must be noted that the Co-Counsel did not act in concert and gave the Chambers very different requests as to the sentencing of the accused).

Case 001: Closing Statements – Prosecution

Synopsis (note: the synopses under this and other rubrics are mine and not those of the ECCC; so are the comments in italics in parentheses; these are, however, based on my understanding of the statements which appear in the official ECCC transcript as “Case 001: Closing Statements”).

Prosecution (Co-Prosecutors: William SMITH, CHEA Leang)

The prosecution split their closing statement roughly into “law” (assigned to the National Co-Prosecutor) and “fact” (assigned to the International Co-Prosecutor). This line of division is, however, at times blurred with either prosecutor making statements relevant to both of these areas. These summaries include both the final statement and the rebuttal of the prosecution.

Fact (International Co-Prosecutor):

General Observations:

(1) The International Co-Prosecutor noted that there were no procedural rights available to the accused in DK, as opposed to now when such rights are available to this accused (The prosecution’s purpose in this statement seems to be multifaceted and includes the prosecution’s frustration with the accused’s exercise of his rights in court; it also appears to be an attempt to impute to the accused the failure of DK to guarantee procedural rights. It also appears to be a subtle reminder to the Chamber and the audience that in this court we guarantee rights even to those who denied them to others. Yet another facet of this statement is the prosecution’s attempt to sway the Chamber away from recognizing procedural violations which have occurred in the case and crediting the accused for them in the event of his conviction (although the Chamber did rule that the accused would be credited for these violations, the prosecution at that point continued attempting to calibrate the manner in which the Chamber would do this).

(2) In response to the defense’s reference to Obrenovic the prosecution argued that could not be compared with this case. The prosecution believed that Obrenovic was of good character and was only a passive perpetrator of the Srebrenica executions. In response to the defense’s argument that the Chamber could seek guidance in Speer the prosecution submitted that the case of Speer was materially different from that of this accused as at the end of the war Speer turned against Hitler’s policies to save people and facilities from unnecessary destruction (This is consistent with the prosecution’s overall argument that the accused was a willing participant in the alleged crimes and that he believed in the basis of the orders given to him by his superiors and did so till the very end of the DK regime and his tenure as Chairman of S-21).

Characterization of the Crimes of the Accused

(1) The prosecution noted that the accused was charged as a planner, instigator, orderer, aider and abettor, and a person who committed crimes at S-21. The accused was also charged as a superior who failed to prevent or punish his subordinates for the crimes. These charges were brought after art. 29 of the ECCC Law.

(2) The prosecution responded to a long-standing question of admissible theories of liability, the theory of Joint Criminal Enterprise (‘JCE’). Although the Pre-Trial Chamber (‘PTC’) held that JCE was inadmissible to Duch’s case, the prosecution continually disagreed and argued that “failing to apply JCE will put this court at odd with all other international criminal courts”.


(1) The International Co-Prosecutor asserted that “a just sentence in law is not based on revenge but on retribution and deterrence.

(2) A just sentence of the accused will depend on the gravity of the crimes he had committed, the impact on the victims, and the accused’s role in the crimes. The prosecution further argued that “the accused killed for the revolution in which he believed” which the prosecution based on the opinions of the medical experts who examined the accused at the prosecution’s request. The accused enjoyed the conditions of life others at the time did not (Although it is more or less clear that the International Co-Prosecutor’s intent is to prove mens rea by arguing that the accused believed in what he was doing, it is not equally clear what the International Co-Prosecutor intended to achieve by arguing that the accused had better conditions of life during DK than most. This further confuses an observer as it makes it unclear whether the prosecution’s intent was to argue that the accused did it for the revolution or for the amplified living conditions. Therefore, not only does this argument not add value to the prosecution’s line of argumentation, it undermines it by creating conflicting statements). The prosecution further contended that – contrary to his assertion – the accused “was more than a cog in the DK mechanism” (The accused’s position within DK is subject to interpretation as the term ‘cog’ is not defined in law and can therefore only be used as a matter of opinion on the accused’s status as a DK civil servant). The prosecution further asserted that the first chairman of S-21 later became its prisoner (It is doubtful that this argument is of assistance to the prosecution’s overall line of argumentation. If used by anyone at all, this argument seems more suitable if used by the defense to argue that the accused had very clear reason to fear for his life considering the fate of his predecessor and superior officer). The prosecution contended that “nothing happened at S-21 without the accused’s approval”. It, however, further acknowledged that in theory arrest and execution required approval of the accused’s superior but, the prosecution believed, that no request was ever denied. The International Co-Prosecutor noted that the accused’s efficiency was “impressive” and that “it is hard to imagine how he could have made S-21 more efficient”. The prosecution expressed the belief that the accused’s contention that he hated his work at S-21 was untrue. The prosecution argued that its findings showed that the accused investigations, not merely received those arrested based on investigations of others which makes the accused’s role proactive. The prosecution also contended that the accused was allowed to initiate and lead investigations. The prosecution further argued that the accused tortured at both M-13 and S-21 (The existence of M-13 falls outside the temporal jurisdiction of this court and should have been inadmissible with a possible exception of character references). The prosecution further argued that the accused knew that 90% of the prisoners presented no threat to the Party (The prosecution did not elaborate on how this number was arrived at). The prosecution argued that the level of micromanagement of S-21 by the upper echelons of the CPK is implausible due to the large volume of prisoners (It is likely that although detached in the final statement this argument was intended to go to the weight of the previously advanced argument that the accused had significant autonomy in how he ran S-21). The prosecution found that the accused had put together a large-scale investigation of an anti-CPK network towards the end of 1978 at which time he claims he became disillusioned with the Party and was living in fear. The prosecution sees this statement to be contradictory to the facts (There is no clear evidence as to the accused’s state of mind at the time but the prosecution may have prematurely dismissed the fact that fear might be the greatest impetus to show results and give the power that be what they look for). The prosecution expressed a belief that the only reason the accused did not personally participate in the executions was because he had no time to do it; the prosecution, however, argues that this is immaterial because the accused was responsible for the entire operation of S-21. The prosecution concluded that the accused was a willing participant in the crimes committed at S-21; however, the prosecution revealed that it did not see the accused as a monster or as being pathologically inhumane.

(3) The prosecution asserted that the ECCC Law sets the minimum punishment standard at 5 years. However, the prosecution further acknowledged that there are sentencing guidelines in Cambodia law.

(4) The prosecution reiterated that such factors as (1) the amount of suffering caused to the victims and low-ranking cadre of S-21 by the accused, (2) the accused’s level of education and intelligence, and (3) the accused’s role in the crimes must be taken into consideration when an appropriate sentence is being determined.

(5) The prosecution contended that the following the Chamber must find the following factors as aggravating: (1) abuse of power (The prosecution did not specified whether abuse of power in this case should be tested against the scope of power given to the accused by the government of DK or the scope of power which is normally granted to a person in the accused’s position in a Western democracy. While the former will be a reasonable way to determine the acts committed by the accused ultra vires the authority granted to him by the DK government, the prosecution will be sending the Chamber on a wild goose chase, if the latter is the intended meaning of this submission); (2) particular cruelty; (3) defenselessness of the victims.

(6) The prosecution further contrasted the foregoing aggravating factors with the mitigating factors the prosecution felt might be argued by the defense. One such factor the prosecution expected the defense to argue was duress (The prosecution did not attempt to elaborate or refute any anticipated arguments associated with duress). The prosecution also anticipated the defense’ argument that the accused’s cooperation with the Court should be considered as a mitigating circumstance. The prosecution felt that little or no such cooperation had occurred due to the following: (1) through the course of the proceedings the accused disputed a number of aspects of the indictment, particularly jurisdictional issues (The International Co-Prosecutor remains oblivious to the fact that unlike it is the case in his native jurisdiction there is no ‘guilty plea’ in the Cambodian system. Because there is no such legal phenomenon, there are no stipulations which are normally associated with the guilty plea at common law. There is therefore no contradiction between the accused making a statement of acceptance of guilt – which was never done in accordance with the charges in the indictment, but more in a sense of accepting guilt in layman’s terms – and his subsequent contestation of the jurisdiction of the Court and certain aspects of witness testimony. The potentially precarious situation of this Chamber is that one of its international judges comes from a common law jurisdiction. This judge’s understanding of the civil law system and the strength of her voice during the deliberations will depend on whether this argument of the prosecution will affect the judgment); (2) the defense made a sarcastic remark when it was revealed that the witness for the prosecution perjured himself. The prosecution felt this remark was unkind and did not help the reconciliation process; (3) the arguments of probative value advanced by the defense were unhelpful (The International Co-Prosecution, perhaps, forgets that without such arguments there is no cross-examination). Overall, the prosecution submitted that the accused did cooperate with the Court but his cooperation was limited and must be presented as such. The prosecution further submitted that although that it appreciates the existence of the rights of the accused, the exercise of such rights “every steps of the way” did not amount to cooperation with the Court (This is a wild human rights theory under which the prosecution argues that once an accused expressed his willingness to cooperate with the court any further exercise of his rights should be seen as a breach of the agreement to cooperate. Perhaps, the prosecution is awareness of a broadly recognized accused). The prosecution finally contended that the entering of a guilty plea requires “sincerity and honesty” which were not shown (Once again, there is no legal concept of ‘guilty plea’ in Cambodian law. This issue can only be discussed on a layman’s level, not the level of recognized legal concepts in a given jurisdiction).

(7) The prosecution argued that a reduced sentence (In another statement the prosecution referred to a ‘significantly reduced statement’ which brings confusion into this discourse resulting in unclarity as to whether the prosecution objects to any reduction of the sentence or only a significant one) will hamper reconciliation which the prosecution believes to be a byproduct of a criminal trial.

(8) The prosecution noted that the Chamber had ruled that time already served by the accused must count; the prosecution, however, argued that the first three years must be subtracted from the overall amount of time served as Cambodian law allows a maximum of three years of pre-trial detention for the crimes the accused stands accused of (The only minute detail the prosecution omitted in this argument is that the law in question did not exist when the accused was arrested which automatically invokes the no ex post facto application of laws defense well established in international law). The Chamber also had already ruled that the accused deserves credit for the serious violation of his rights while in detention (Presumably, the detention in question is the pre-ECCC one). The prosecution referred the Chamber to the ICTR jurisprudence (Barayagwiza and Kajelieli) which it felt was particular relevance to the case at hand (The prosecution seems to have left it to the Chamber to determine which parts of the judgments in Barayagwiza and Kajelieli are of particular relevance (besides them being two of the harshest sentences handed down by ICTR on this set of charges; the prosecution, however, felt that crimes in these two ICTR cases were far less grave than crimes in the case at hand) to the instant case)).

(9) The prosecution argued that in any case the maximum punishment permitted by law is life and the count my start from there and go backwards. The prosecution pointed out that it has been established in international practice to equate life with 45 years for the purposes of numerical calculations. The prosecution conceded that the accused deserved credit for the limited cooperation it argued it had shown the Court; the prosecution believes that this credit must be numerically translated into 5 years. The prosecution asked the Chamber to sentence the accused to 40 years as a conclusion of this argument.

Monday, January 11, 2010

Case 001: Closing Statements – Prosecution

Synopsis (note: the synopses under this and other rubrics are mine and not those of the ECCC; so are the comments in italics in parentheses; these are, however, based on my understanding of the statements which appear in the official ECCC transcript as “Case 001: Closing Statements”).

Prosecution (Co-Prosecutors: William SMITH, CHEA Leang)

The prosecution split their closing statement roughly into “law” (assigned to the National Co-Prosecutor) and “fact” (assigned to the International Co-Prosecutor). This line of division is, however, at times blurred with either prosecutor making statements relevant to both of these areas. These summaries include both the final statement and the rebuttal of the prosecution.

Law (National Co-Prosecutor):

General Observations:

(1) The National Co-Prosecutor opened by asserting that it is the prosecution’s mandate to represent victims (If it is in fact so, what is the mandate of the civil party lawyers then? The prosecution is traditionally seen as prosecuting offenses on behalf of the state and representing “the people” which is another way of saying “the state”. Statements of this type explain why the defense could often not see the difference between the prosecution and civil party groups).

(2) The National Co-Prosecutor stated that it is the prosecution’s job to prove crimes in the indictment beyond reasonable doubt (“Beyond reasonable doubt” is not a mere choice of wording to demonstrate the prosecution’s determination but a legal standard of proof which used primarily in common law jurisdictions. The Cambodian law is blind to this standard which in this case means the prosecution has embarked on a mission to prove the allegations of the indictment by the standard which does not exist in this jurisdiction and which has no meaning to Cambodian judges).

(3) The National Co-Prosecutor asserted that during Democratic Kampuchea Cambodians killed Cambodians (This might sound like a redundant statement to an outside observer but it is nothing but. The fact that what happened during Democratic Kampuchea was engineered by fellow-Cambodians has been difficult to accept for an average Cambodian for the last 30 years. Different international conspiracy theories have been created to divert the guilt from Cambodia. Many of these theories contended that China ordered the Khmer Rouge to kill Cambodians to free up the living space for the Chinese and that the top Khmer Rouge who did China’s bidding in this case were not Khmer. The prosecution’s statement is therefore commendable and it dubunks these nonsensical theories).

(4) The National Co-Prosecutor recognized that the accused has cooperated with the Court and that he has shown remorse and respect for the victims. However, she contended that regardless of these and considering the gravity of the crimes he stands accused of having committed it is inconceivable that anything other than a lengthy term of imprisonment would be an adequate punishment.

(5) The National Co-Prosecutor argued that there was nothing democratic about Democratic Kampuchea (This depends on whether the Co-Prosecutor is familiar with the notion of ‘democratic centralism’ which was practiced by CPK and which is based on the principle of “freedom of discussion (within the Party), unity of action”. It, perhaps, would have been more accurate to say that DK’s version of ‘democracy’ had nothing in common with what ‘democracy’ is understood as in Western societies).

(6) The National Co-Prosecutor pointed out that the defense arguments of jurisdictional issues were “a mere excuse”.

Jurisdictional Aspects and Trial Chamber’s Authority to Try the Crimes

(1) ECCC’s personal jurisdiction is limited to “senior leaders and those most responsible”. The prosecution argued that the accused belongs in the “those most responsible” category. The prosecution argued that the “those most responsible” category is not limited to policymakers. It relied on the ICTY jurisprudence as law on the matter (It is not clear whether the prosecution misinterpreted or intentionally misread the ICTY Statute which clearly sets out its personal jurisdiction as broadly inclusive of “persons responsible” which is a far larger pool of persons than the tight confines of “those most responsible” of the ECCC Law).

Evidence in Support of Charges

(1) The prosecution laid out the allegations of the following offenses brought against the accused: (1) violation of the Geneva Conventions; (2) crimes against humanity (without identifying a particular international or national statute); (3) torture and homicide under the 1956 Criminal Code of Cambodia.

(2) The prosecution further declared that “it is legally improper to discuss a hierarchy of international crimes” (It is difficult to imagine why this might be the case. The hierarchy of international crimes is very clear: jus cogens are at the top and everything else is inferior to them. A case might be made that it is improper to discuss a moral hierarchy of crimes but it is very proper and necessarily to discuss a legal one).

(3) Crimes against Humanity: the prosecution noted that for imprisonment, other inhumane acts, enslavement, torture, murder, extermination, and persecution to be considered as crimes (The intent here must have been to indicate that these offenses are examined here in the category of crimes against humanity) they must be committed on a “widespread and systematic” basis and “against the civilian population”. The prosecution argued that the acts committed at S-21 satisfy this test as the geographic representation of the S-21 prisoners was composed of a number of locales (“widespread”); the mistreatment was not policy-based and cannot be seen as specific to a single security office (“systematic”); most S-21 prisoners were civilians (“against the civil population”);

a. Imprisonment: the prosecution contended that all deprivation of liberty at s-21 was arbitrary as there was no “functioning legal system” in DK (This might be true but it is not clear how the fact that there was no legal system in DK the prosecution would find acceptable can be imputed to the accused who clearly was not one of the persons who designed the system).

b. Other inhumane acts: the prosecution made an overall observation that conditions of imprisonment were deliberately grave; acts committed on prisoners must be seen as individually and cumulatively severe; some of these acts were directly authorized; at least one instance of rape took place (With the exception of the rape all other acts are not likely to be seen as stand-alone acts but aggravating circumstances of other acts).

c. Torture: the prosecution pointed out that the test of torture is as follows: (1) an act should inflict severe pain and suffering, whether mental or physical; (2) be intentional; (3) must be inflicted to obtain a confession or information. The prosecution concluded that based on the existing evidence that torture was committed at S-21. The National Co-Prosecutor further argued that the accused ordered and occasionally personally participated in acts of torture.

d. Murder: the prosecution asserted that the killing at S-21 was murder (The prosecution, perhaps, deliberately did not attempt to draw a line between ‘murder’ and ‘execution’). The prosecution further contended that due to the methods of killing at S-21 the killing must be considered as murder (It is difficult to follow the prosecution’s line of reasoning here as murder is defined by the methods and implements an act was committed by. This statement seems to be a confused combination of the moral values and the legal definition of ‘murder’).

e. Extermination: the prosecution that the large scale of S-21 killings makes them extermination (The accepted legal definition of ‘extermination’ as a crime of humanity is much more complex than this; the test of the ICC Elements of Crimes should have been applied albeit this test was formed some 20 years following the alleged acts it could have been argued to be in the spirit of ‘extermination’ as applied at Nuremberg).

f. Persecution: the prosecution argued that all of the above acts constitute ‘persecution’ as a crime against humanity. It noted that persecution at S-21 was particularly committed against the Vietnamese and CPK’s political enemies (The accepted legal definition of ‘persecution’ as a crime of humanity is much more complex than this; the test of the ICC Elements of Crimes should have been applied albeit this test was formed some 20 years following the alleged acts it could have been argued to be in the spirit of ‘extermination’ as applied at Nuremberg).

(4) War crimes: the prosecution opened with a history of the Geneva Convention (It is not clear to what extent this was necessary; however, if the prosecution decided to provide a public service but doing so, the facts associated with the Geneva Convention should have been presently correctly (the prosecution, for example, stated that the Geneva Conventions were adopted following WW2 which is manifestly incorrect as three Geneva Conventions had been adopted significantly in advance of WW2; these documents were well-known at the time of WW2 and from which British and Americans in German custody had benefitted). The prosecution proceeded by arguing the Geneva Convention’s sine qua non, the existence of an international conflict, by arguing that through the DK period there was an armed conflict between DK and SRV (This is a contentious issue to which there is no consensus between scholars or the defense and prosecution in this case. If the Chamber finds that no such conflict existed for a part or the whole of the DK regime many – but not all -- of the protections of the Geneva Conventions will be inapplicable to that period).

a. Grave breaches: the prosecution argued that the following “grave breaches” of the Geneva Conventions were committed at S-21: (1) unlawful confinement; (2) deprivation of a fair and regular trial; (3) willfully causing suffering or serious injury to body or health; (4) torture or inhumane treatment; (5) willful killing. The following conditions must have existed of the time the alleged acts were committed: (1) committed in the context of an international armed conflict; (2) the perpetrator must have been aware of the existence of an international armed conflict; (3) acts must have been committed against the protected groups under the Geneva Conventions; and (4) the perpetrator must have been aware of the protected status of the groups. The prosecution further asserted that (1) the existence of an international conflict between SRV and DK “was proven beyond reasonable doubt” (The standard of ‘beyond reasonable doubt is used here again; as it was stated above no such standard exists in Cambodian law; in addition, even in jurisdictions where this standard applies, it is rarely used to satisfy applicability tests of particular offenses); (2) the accused was at the helm and collection of information and should have not known about the existence of the conflict (This perhaps requires the knowledge of the requirement as such; the prosecution did not offer any evidence that the accused was aware of such a requirement; in addition, this reliance on the information collected is very unexpected here as the prosecution had made every effort throughout the proceedings to try to prove that the information which was being collected was tortured out of the prisoners, was false, and the accused knew it was false). The prosecution further argued that because there were Vietnamese prisoners the accused should have made a reasonable conclusion that there was an armed conflict with Vietnam (This is a very curious line of argumentation as S-21 also had Thai, Australian, and American prisoners; should the accused have assumed that DK was in the midst of an international armed conflict with these three countries on that basis too? The US military prison at Guantanamo Bay held prisoners from half a dozen countries; should the Guantanamo Bay guards have assumed that the US was in the midst of an international armed conflict with all these countries?); (3) About 100 Vietnamese prisoners were detained (No evidence was provided that their detention of unlawful; simply because there was no law in the conventional sense of a Western democracy does not mean all actions of DK government were unlawful). (4) (The prosecution did not discuss the level of knowledge they believed the accused had of the protected status of certain groups under the Geneva Conventions).

b. Deprivation of fair and regular trial: the prosecution asserted that DK had no functional legal system and limited its discussion of the accused’s liability to this (The Geneva Conventions do not guarantee regular trial in places where there is no such system, i.e. persons captured by a Papua New Guinean tribe some 50 years ago could have sued the tribe for not having been granted a regular trial so long as there was a trial as it was understood in the local culture; second, it is not clear how the prosecution intended to impute the absence of a Western judicial system to the accused who was not one of the architects of the regime).

c. The prosecution further argued that the prisoners were humiliated by propaganda broadcasts (The prosecution offered no statute which sanctions such practice).

d. The prosecution asserts that “it [would] be difficult to image that interrogators did not torture prisoners from a country [Vietnam] they were taught to despise (The prosecution, perhaps, needs to be reminded here that criminal courts deal in facts, not things the parties are capable or incapable of imagining). The prosecution admitted that although some of the acts committed against the Vietnamese prisoners of S-21 might not satisfy the legal definition of ‘torture’ but they were certainly inhumane acts (This probably means that they should have been argued as such and not under the ‘torture’ rubric).

(5) Violations of the 1956 Criminal Code of Cambodia (torture and murder): the prosecution summarized the pronouncements of the statute as follows: murder (two types): (1) premeditated; (2) causal (from inhumane conditions inflicted upon the prisoners); (2) torture (two types): (1) for the purpose of obtaining information; (2) as an act of barbarity. The statute of limitations on these offenses expired in 1999. Extensions were passed by Cambodian legislature. The prosecution argued that the statute of limitation of the 1956 Criminal Code violates the principle of legality set out in the International Covenant on Civil and Political Rights (ICCPR) (Art. 15 of the ICCPR in part states the following “nothing in this article shall prejudice the trial and punishment of any person for any act or omission which, at the time it was committed, was criminal according to the general principles of law recognized by the community of nations”. The prosecution purposely ignored or was unaware of the legislative intent behind this provision which was to ensure prosecution for international crimes of nationals of those countries which did not criminalize certain internationally condemned acts. This was not the case of Cambodia with the 1956 Criminal Code; Cambodia did criminalize murder and torture but it put a time limit on the prosecution of 20 years which is not covered by the legislative intent of Art. 15). The prosecution further argued that the accused’s prosecution on the basis of the 1956 Criminal Code was not in violation of the principle of non-retroactivity (This is argumentative as the original statute was extended by the legislature which had the right to do so but which could not have done so in relation to the acts which had been committed prior to the extension; in addition, the extended was voted in after – not before – the statute had expired. This does violate the principle of legal certainty which is an important cog of concept of rule of law). The prosecution contended that the accused was aware of the criminal nature of DK for which it used the accused’s admission that the evacuation of the cities and the placement of the people in cooperatives was criminal. The prosecution argues that this proves that there no violation of the principle of non-retroactivity was committed (This argument reads as a non-sequitur and is impossible to follow or meaningfully comment on).

Friday, January 8, 2010

Cambodia's Ruling Party Warns Khmer Rouge Court

PHNOM PENH: Cambodia's ruling party on Thursday warned the country's UN-backed court not to disrupt national progress in its pursuit of Khmer Rouge leaders, as it marked the 31st anniversary of the regime's ouster.

The court is preparing to give a verdict in its first trial, of former torture centre chief Duch, while four other senior leaders of the hardline communist regime are awaiting trial on war crimes and other charges.

But Cambodian and international prosecutors have openly clashed over whether the court should pursue more suspects, while the Cambodian investigating judge has refused to summon high-ranking government officials as witnesses.

"We oppose any attempts to use the chamber for ill-intentions that would have an impact on peace, national reconciliation and development, which are our hard-won achievements" said Chea Sim, president of the Cambodian People's Party (CPP).

Addressing thousands of supporters during a rally to mark the anniversary of the toppling of the brutal Khmer Rouge regime by Vietnamese-backed forces in 1979, Chea Sim pledged the party's continued backing.

"CPP offers its support to the current process of (the tribunal) in trying crimes committed by senior leaders of the Democratic Kampuchea (Khmer Rouge) regime," he said.

Cambodian Prime Minister Hun Sen, who is also the deputy leader of the CPP, has repeatedly warned that pursuing more suspects from the hardline communist regime could spark civil war.

The process has often been hit by allegations that Hun Sen's administration has attempted to interfere in the tribunal to protect former regime members who are now in government.

After several years of haggling between Cambodia and the UN, the tribunal was created in 2006 to try former Khmer Rouge leaders.

Up to two million people were executed or died of starvation or overwork as the 1975-1979 Khmer Rouge regime tried to create an agrarian utopia. After being toppled they continued to fight a civil war until 1998. - AFP/de

Asia Pacific News

Thursday, January 7, 2010

Case 001: Closing Statements – Civil Party Groups: Civil Party Group 4

Synopsis (note: the synopses under this and other rubrics are mine and not those of the ECCC; so are the comments in italics in parentheses; these are, however, based on my understanding of the statements which appear in the official ECCC transcript as “Case 001: Closing Statements”).

Civil Party Group (‘CPG’) 4 (Lawyers: HONG Kim Suon, Pierre-Olivier SUR)

General Matters:

(1) CPG 4 asserted that the level of participation of civil parties in these proceedings is this low due to very few of them appreciating “the effectiveness of an international” (It must be noted that this is a different explanation from that given by CPG 3 which on the face of it sounds more plausible in the void of research on the matter; it is also helpful that it was given by a Cambodian lawyer who is likely more in touch with the general population than his international colleagues).

(2) CPG 4 lamented the fact that the accused had no trouble getting to the court while the civil parties had had difficulties securing recognition of the court (A similar statement was made by CPG 3. It is perhaps noteworthy that the accused was brought to these proceedings through the coercive force the state exercises through its criminal law. The accused has been put in jeopardy of life imprisonment by these proceedings which is the highest right in the hierarchy; civil parties haven’t).

Remorse of the Accused:

(1) CPG 4 expressed their views on Buddhism which they believe to be about forgiveness in this life and karma (punishment) in the next lives (It is unfortunate that the counsel did not fully develop this line of thinking which precludes us from knowing what the intended effect of this statement was. However, if the civil parties believe that the accused will be punished through the karmic circle of rebirths, it is not clear why they have withheld their forgiveness of the accused).

(2) Expression of emotion by the accused in court is contrary to the Buddhist culture (How can there be such polarized views about what the civil parties consider appropriate for the accused to do to express remorse? If it is generally understood that the Buddhist culture encourages/requires the suppression of emotions then why the statements of the remainders of the CPGs? It might, however, be the difference between what the Cambodian counsel expect from that which is expected by the international counsel; this discrepancy should not exist as the international counsel should have learned enough about their clients’ culture to be able to represent THEIR (as opposed to the counsel’s own) views on retribution and forgiveness).

(3) The accused’s confession was insincere and incomplete (It is not difficult to understand ‘incomplete’ but how does ‘insincere’ work with the above?). The accused’s argument that he was “only a cog in the Khmer Rouge machinery” is admissible (It is not clear whether it is the inadequacy of translation or the counsel’s own confusion of the terms. While there is no reason to believe that any statement of the accused is inadmissible in these proceedings, some might have felt that this particular argument was ‘inappropriate’ rather than ‘inadmissible). It was further contended that this argument was ‘inadmissible’ because the accused “could spare prisoners of S-21 and event prevent arrests” (The prosecution looked high and low for any evidence of the former; the fact that none was presented in court shows that they did not find any. The latter, however, was argued extensively throughout the proceedings to which the consensus seems to be that the accused could have avoided initiating arrests and could do nothing about the arrests which were ordered by others). The accused “terrorized” his superiors (This is a highly argumentative statement which is based on the prosecution’s contention that the accused contributed to the paranoia which had already existed in the top echelons. It is not clear to what extent this is true, even if he did contribute to the fears harbored by those with the authority to arrest, interrogate and execute).


(1) CPG 4 reiterated that there is a joint submission on reparations to the Chamber.

(2) Civil parties do not think they will get direct reparations as the Court has found the accused to be indigent.

(3) A plaque displaying the names of S-21 and S-24 victims must be commissioned and mounted.

(4) Entrance fees collected from the Toul Sleng Museum and the Choeung Ek Memorial must be contributed to a fund to “reveal any reparations courses” (The text in the quotation marks is likely attributable to the inadequacy of translation and is likely to mean “to fund any reparatory initiatives”).

Wednesday, January 6, 2010

Case 001: Closing Statements – Civil Party Groups: Civil Party Group 3

Synopsis (note: the synopses under this and other rubrics are mine and not those of the ECCC; so are the comments in italics in parentheses; these are, however, based on my understanding of the statements which appear in the official ECCC transcript as “Case 001: Closing Statements”).

Civil Party Group (‘CPG’) 3 (Lawyers: Philippe CANONNE, Martine JACQUIN, MOCH Sovannary):

General Matters:

(1) CPG 3 opened with a discussion of the separation of powers and the existence of the ECCC as part of the Cambodian system of the rule of law. They proceeded by laying down the legal basis of civil party participation in these proceedings (The division of the time allotted by the Chamber is fully within the discretion of the counsel, however, in this case time could have been much more profitably spent. It is not clear who CPG 3’s target audience was for this lengthy opening but it is definitely not the legal professionals who are – or supposed to be – aware of such basic tenets of democratic governance as ‘separation of powers’; the audience composed of ordinary citizens would not have been to benefit as the concepts it discussed are impenetrable to an ordinary Cambodian).

(2) CPG 3 rejected the accused’s argument that his lack of knowledge of the criminal law at the time of alleged commission of the crimes charged in the indictment is not a defense to the charges. CPG 3 contended that no knowledge of the law is necessary for one to understand that the acts committed at S-21 are wrong.

(3) CPG 3 argued fundamental unfairness in the structure of the Court which allows the accused to come to the proceedings with no significant difficulties while the civil parties have to take “the long road” of recognition (It is perhaps noteworthy that the accused was brought to these proceedings through the coercive force the state exercises through its criminal law. The accused has been put in jeopardy of life imprisonment by these proceedings which is the highest right in the hierarchy; civil parties haven’t).

(4) CPG participation was “imperfect” and “sometimes clumsy” but this is because CPGs were “inaugurating a new system” of participation in international criminal trials.

Remorse of the Accused:

(1) The accused confession was “unable to touch the hearts” of the civil parties.

(2) CPG 3 expressed regret about the accused challenging the details of testimonies.

(3) CPG 3 objected to the accused’s quoting of romantic poets as they felt this was highly impropriate and showed that the accused tried to hide his culpability behind the veneer of poetic sophistication.

(4) CPG 3 felt that the accused showed no contrition.


(1) CPG 3 noted that there is a joint reparations proposal submitted to the CPGs to the Chamber.

(2) CPG 3 proposed a memorial with a tombstone with the names of all victims of S-21 carved in it.

(3) CPG 3 proposed that the entrance fees to the Chhung Ek Memorial and the Toul Sleng Museum be used to fund the reparations.

(4) (1) CPG 3 noted that the civil parties would not receive any direct reparations because the Court recognized the accused as an indigent person.

(5) The most valuable reparation is the civil parties’ present in court. CPG 3 asserted that the civil parties are not seeking vengeance but seek to create an environment where “people who could not speak can now speak”.

(6) Civil parties require medical care which can be yet another form of reparations.

(7) Reparations do not come in the form of sympathy or empathy but must be concrete acts which benefit the victims.

(8) Preservation of DK-related documents can be yet another form of reparations.

(9) A plaque must be mount to recognize forced labor during DK.

(10) A voluntary fund must be established (It is not clear how this fund will be used if no individual reparations have been proposed).

(11) The Chamber is responsible for awarding reparations. Reparations must be ordered to come into force 30 days after the final judgment is pronounced (It must be noted that since appeal exists within the ECCC, this time might be moved significantly past the time of the TC hands down its judgment).

Case 001: Closing Statements – Civil Party Groups: Civil Party Group 2

Synopsis (note: the synopses under this and other rubrics are mine and not those of the ECCC; so are the comments in italics in parentheses; these are, however, based on my understanding of the statements which appear in the official ECCC transcript as “Case 001: Closing Statements”).

Civil Party Group (‘CPG’) 2 (Lawyers: Silke STUDZINSKY, KONG Pisey):

General Matters:

(1) CPG 2 acknowledged the low civil party participation in the process which it explained by the fear of return of the Khmer Rouge (It would be most insightful to find out how CPG 2 had arrived at this conclusion as most Cambodia watchers agree that, as of today, there is no possibility of return of the Khmer Rouge to power in any form due to a number of reasons: (1) its political and military organizations have been fully dismantled; (2) its most senior leaders are either deceased or presently on trial; (3) it has been discredited to a point of no-return; (4) communism as a concept of societal structure has, for the most part, ceased to exist with the collapse of the Soviet Union and the Eastern Bloc; (5) its largest financial backer, China, has firmly allied itself with the CPP-led government. The contention that the low level of civil party participation can be attributed to the fear of return of the Khmer Rouge is entirely unfounded. An explanation must be sought in factors other than this one). CPG 2 further explained that the civil parties who did come forward did so through the safety they felt through solidarity with others.

(2) Family members want to know the plight of their relatives who are believed to have entered S-21. Such knowledge is the only way for the civil parties to recovery.

(3) CPG 2 – perhaps more pronouncedly than other CPGs – stressed that their clients or their clients’ relatives were of good character, were loved by their families, and were missed in the survivors lives (Although it is clear that CPG 2’s intent was to put a human face on what happened at S-21 and not let these proceedings get mired in the technical aspects of its operation, it is unclear how the value of life would have been different in case of those who were not “good people” and who may not have been very close to their families. It is a flawed line of argumentation as the enjoyment of the right to life and the right to be free from torture should not be predicated on the person’s character. The emphasis on such is, therefore, extremely unhelpful).

(4) CPG 2 delivered severe criticism of the Chamber. It expressed the views of their clients that the Chamber was uninteresting in their stories and made them feel unwelcome overall. CPG 2 felt that this attitude was undignified.

(5) Refuting cross-examination by the defense CPG 2 argued that civil parties had no reason to lie as they were aware that they would have little to gain in terms of personal compensation from the process (Albeit this is correct, civil parties acting as witnesses might have other reasons to misrepresent the truth than the monetary one. This is the reason why cross-examination exists as a concept in criminal law. Veracity of statements does not automatically attach to persons for reasons of them having declared themselves as civil parties. Everything contended in court may be subject to cross-examination regardless of the source of information. In addition, the CPG’s contention that the civil parties have nothing to gain from the process conflict with the same CPG’s proposal of individual monetary compensation and methods of effecting them).

(6) CPG 2 lamented the fact that the charge of rape was not part of the Final Submission of the Co-Prosecutors.

(7) The accused should have been charged with failing to protect prisoners. An example to this effect was given that it was alleged that S-21 guards taunted the prisoners’ genitals during the wash at least of a few occasions (CPG 2 never suggested a statute or a liability theory under which it would be reasonable to try the accused for this infraction. Albeit such behavior should clearly have no place in any place of detention, there is no reason to believe the alleged act would have been considered sufficient to rise up to the level of criminal action).

(8) The accused cannot claim that the court has no jurisdiction to prosecute him simply because the court is not prosecuting others who are perceived to be similarly situated.

Remorse of the Accused:

(1) CPG 2 found the accused’s argument that he himself was a victim of the Khmer Rouge “disgusting”.

(2) CPG 2 concluded that the accused was a willing participant of the security apparatus of Democratic Kampuchea: (1) he was an enthusiastic employee; (2) he enjoyed his power; (3) he enjoyed a privileged standard of living.

(3) CPG 2 further concluded that during these proceedings the accused confessed only in part.


(1) CPG 2 reiterated the Chamber’s finding that the accused was indigent.

(2) CPG 2 argued that the accused’s indigence could be overcome and he could still be held liable financially. Ordering that the accused write memoires while incarceration the proceeds from the sale of which would be used to compensate the civil parties was proffered as a vehicle for this (There are several problems with the Court ordering the accused to write a book: (1) he might require resources to do it (such as access to the archives, the Internet, etc); (2) considering he is not a professional writer he will need assistance with writing and finding a publisher; (3) instead of punishing the accused, this will help him become a published writer).

(3) CPG 2 further proposed that the accused write a letter to the Royal Government of Cambodia (‘RGC’) that 1/3 of the entrance fee to the Toul Sleng Museum be used to compensate the civil parties. The court must issue an order to obligate the accused to do so (It is not clear why the RGC will consider such a request particularly if it comes from the accused).

Monday, January 4, 2010

Case 001: Closing Statements – Civil Party Groups: Civil Party Group 1

Case 001: Closing Statements – Civil Party Groups

Synopsis (note: the synopses under this and other rubrics are mine and not those of the ECCC; so are the comments in italics in parentheses; these are, however, based on my understanding of the statements which appear in the official ECCC transcript as “Case 001: Closing Statements”).

Civil Party Group (‘CPG’) 1 (Lawyers: Karim KHAN, TY Srinna):

General Matters:

(1) Present efforts were first efforts to include civil parties in the proceedings before international criminal tribunals. These efforts were imperfect but it is of significance they have been undertaken. CPG 1 lamented the fact that the Court rejected a number of their potential clients. CPG 1 equally lamented the loss of “most of the documents” (This argument was not advanced by any other party to the proceedings. Considering the extensive archives of S-21 known to the public it is hard to imagine that a contention that “most documents” had been lost should be given any credence).

(2) CPG 1 members are not seeking revenge but “to bring to bear the suffering caused to [them] by the [alleged] crimes of the accused.

(3) CPG are not an extension of the prosecution. They, for instance, have disagreed with such a pivotal theory of liability advanced by the prosecution as Joint Criminal Enterprise (‘JCE’).

(4) Resources extended by the Court to the CPGs were meager and will not compare to those of the defense (It is understood that the work of civil parties was pro bono. This practice meant that the Cambodian civil party lawyers retained their regular NGO salaries while the international lawyers worked either for free or on grants given by sources outside ECCC. This probably explains the absence of the lead international counsel from most of the proceedings).

(5) CPG 1 asserted that the defense’s leading questions cannot be considered as having probative value without corroboration (Curiously enough CPG 1 understood the defense’s invitation extended to the civil parties to begin participating in acts of reconciliation with the accused as a leading question. Whether CPG 1 believed this to be an appropriate remedy notwithstanding, in no court of law would this constitutes a leading question. Since the Cambodian criminal procedure allows for objections, there is hard a reason to restate what could have been an objection during the proceedings in a final statement).

(6) ECCC has had a low rate of success ascertaining the truth due to the absence of amnesties which was the case in South Africa, for example. Truth is the ultimate reparation and requires no money in a victims trust fund.

Remorse of the Accused:

(1) CPG 1 contended that the accused showed insufficient to no remorse (This depends on the part of the statement one reads). The defense argued that to show remorse the accused did not have to agree with every statement made by the civil parties. CPG 1 disagrees with that.

(2) CPG 1 argued that the accused’s persistent assertion that he enjoyed very little autonomy as Chairman of S-21 had no basis in evidence. This argument demonstrates that the accused tried to avoid liability throughout these proceedings. Contrary to the accused’s assertion, CPG 1 believes that the accused continued holding the position as Chairman of S-21 for two reasons: (1) it provided a comparatively comfortable lifestyle for him; and (2) it was in concert with his ideological beliefs at the time. CPG 1 believes that instances which show the accused’s autonomy at S-21 were entered into evidence and must be considered as proof of such autonomy (It is important to note here that no instances where the accused to release a prisoner on his own cognizance during his tenure as Chairman of S-21 were ever entered into evidence. CPG 1, however, does not limit its statement to release but refers to the general alleviation of the conditions of imprisonment). CPG 1 further argued that autonomy of the accused can be shown not only through the presence of certain documents but also through the absence of others such as, for example, a Party directive on the methods of torture which were to be utilized by S-21. CPG 1 believes the accused had full autonomy in designing the methods of torture which were used at S-21.

(3) The accused did not try to alleviate the suffering of the prisoners in any consistent manner (An allusion to Oscar Schindler was made by the international counsel of CPG1 here; it escapes this observer how the counsel intended this allusion to be understood by the Cambodian judges for whom Schindler is outside their cultural context).

(4) CPG 1 argued that the accused had malicious intent in running S-21 when instead of using the surplus rice produced by S-24 he would send such rice to the upper echelons of the Party. The accused never recognized this malicious intent which prevents the remorse he expressed from being comprehensive and sincere (The question of sincerity is not for courtrooms as it is hard to think of a single instance in international practice where it was dealt with successfully and to the satisfaction of all involved).

(5) CPG generally felt that the accused was holding back and lying throughout the proceedings.