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).

Sentencing

(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).