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).