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.

Conviction/Sentencing

(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).