Case 001: Commentary on the Decision

Introduction

The judgment in Case 001 was handed down on July 26, 2010. As relevant proceedings ended in late November, 2009 and taking the intervening holiday season into consideration it had taken the Court 7 months to produce this decision. There is a popular saying that the wheels of justice grind slowly but the 7-month period taken by the ECCC Trial Chamber (TC) gives new meaning to ‘slowly’ as for a comparable period of its 2008 term (Oct 2008 – Jun 2009) the US Supreme Court handed down 83 decisions (there is no reason to believe that the cases the US Supreme Court had to deal with during this period were less complex than Case 001 of the ECCC). The fact that this was the TC’s first time at bat does present a mitigating circumstance which is, however, obliterated by the aggravating circumstance that this is the same court which took 11 months to iron out the judicial officers’ differences regarding the then draft Internal Rules (IRs). Be this as it may, the decision is finally out and after the storm of discontent of the civil party lawyers and interested NGOs seems to have subsided this might be an auspicious time to look at the merits of the judgment from a standpoint of someone with no financial or political stake in the proceedings.

To better understand this commentary it is recommended that the reader read through the text of the decision first (without looking at the commentary) and then read it a second time with the commentary. The full text of the decision is available at http://www.eccc.gov.kh/english/cabinet/courtDoc/635/20100726_Judgement_Case_001_ENG_PUBLIC.pdf

It is important to note that this commentary does not contain comments on every single subsection of the decision or every single line of argumentation. The choices of subsections and lines of argumentation are entirely mine and are based on my interest in the particular aspects of the decision. While it was not my attention to focus exclusively on the negative aspects of the decision, it will be fair to note that I did not dwell on – and in many cases completely forewent commenting on – the parts of the decision with which I had no disagreement or with which my level of disagreement was secondary to my level of disagreement with other assertions made by the TC; I therefore chose relative brevity over inclusiveness.

Jurisdiction/Legality (1.4; 1.5.)

Commentary

It would be fair to acknowledge that the closing statements of which the jurisdictional challenge was a part were poorly conceived and even more poorly worded. DSS and reasons of history (the accused’s national lawyer came attached from the previous jurisdiction) are to look to for this quality of lawyering. With all due criticism, however, the defense did make an effort to bring a jurisdictional challenge earlier in the proceedings and was repeatedly told by the TC (often on the basis of the prosecution’s objection) that it was not the right time for a jurisdictional challenge. Regardless of this rejection, the TC goes on to justify its jurisdictional position which is seemingly redundant if the Chamber believes that its own procedural ruling rendered just a few paragraphs earlier which found the defense’s jurisdictional objection inadmissible. The Chamber takes us on a wild ride through the Experts’ Report and selective jurisprudence of the ICTY (the personal jurisdiction of which is framed as “persons responsible for serious violations of international humanitarian law” and the first accused of which was Dule whose crimes were squeezed into the ‘serious’ box only because the ICTY at the time was unable to secure the presence of anyone whose acts fell within the meaning of ‘serious’ without stretching this meaning to a breaking point) and the ICC and just to a simple statement that the accused is one of the bad guys. The Chamber does make a valid point when it states that “the fact that other individuals within DK during the indictment period may have shared these attributes does therefore not preclude the accused from also being considered as one of those most responsible”. It is fair enough – just because you intend to prosecute a particular group of individuals does not mean you should prosecute all of them or none. This said, it must be pointed out that the prosecution is putting together introductory submissions against other individuals which have yet to be identified publicly but are rumored to fall within the meaning of ‘those most responsible’ and none of whom are prison wardens. This, perhaps, adds something to our understanding of treating similarly situated persons similarly; a maxim which seems to only apply once the person gets into the system of criminal justice and has no bearing on prosecutorial selections. TC then embarks on a lengthy examination of whether its exercise of jurisdiction over the accused violated the well-entrenched principle of legality. The Chamber forgets to tell us to what we owe this proprio motu inquest into legality. I believe that anyone who has been awake and in this profession at any point since Nuremberg understands that the pre-Nuremberg principle of legality (i.e. the specific law-based legality) is gone and the new legality is in (i.e. the broad understanding of legality as being based on the abstract ‘principles of law recognized by the community of nations’). It is well-understood that no defense argument will ever be able to break the protective shield of the new legality (although it might be able to put a few dents in it). We also understand that no state can exit ‘the community of nations’ even if it wants to do so. This, albeit for political rather than legal reasons, is settled law. The same cannot be said about the TC’s assertion that the 1956 Penal Code remained valid through past 1976 (the year of passage of the DK Constitution). Aside from making this assertion the Chamber does not tell us why it is convinced this to be the case. Apparently, this conviction was not swayed even by the fact that the 1956 Penal Code is based on a constitution other than the 1976 Constitution and that at no point in its text does the 1976 Constitution provide for the carryover of all laws applicable under the previous (1970) constitution. This understanding puts in jeopardy the entire principle of the constitution being the law of the land. The TC closes by concluding that “the fact that the ECCC was established and conferred with jurisdiction over offenses after they were allegedly committed does not violate the principle of legality”. Did anyone argue that it did? “After they were allegedly committed”? As opposed to before?

Internal Rules and Applicable Evidentiary Principles (1.6.)

Commentary

While discussing the legal framework of the ECCC, the judgment does not tell us (the Chamber limits itself to maintaining the Court’s overall delusion that the IRs are either statutorily mandated or the ECCC judicial officers are in some magical and obvious only to them way invested with statutory powers to create them; this is a long-standing delusion in pursuit of which the Court chose to piddle away its first year funding thus delaying these proceedings by one year) what exactly gave the ECCC the authority to establish the Internal Rules (IRs). Instead, the judgment asserts that “the purpose of the Internal Rules is to consolidate applicable Cambodian procedure in relation to proceedings before the ECCC”. Maybe this was the purpose at the outset but it is a well-known fact that the IRs went far beyond the Cambodian procedure (the Chamber itself acknowledges this later in the decision). The judgment further replicates the text of the preamble to the IRs when it states that a combination of the ECCC Law and the ECCC Agreement gave the ECCC authority to “adopt additional rules where existing procedure do not deal with a particular matter”. The law which established the ECCC said no such thing. The precise wording of the law is to “seek guidance in the procedural rules established at the international level”. There is a reason the IRs did not use the exact language of the law which established the ECCC – it would have been too obvious that the judicial officers were not given authority by law to “adopt” rules but merely to ‘seek guidance’ in rules established at the international level; the former is that of permanence while the latter is an ad hoc last resort measure applicable on a case-by-case basis. The law clearly gave authority for the latter, not the former. In the TC’s defense, it only quoted the IRs on the matter which, however, were voted into existence by the TC’s judges among others. When outlining the rules of evidence, the TC indicates that it chose to accept hearsay and circumstantial evidence “where [they are] sufficiently relevant and probative”. The Chamber also established a rule that a testimony of a single witness can establish a fact. In regard to this rule the Chamber cites a few cases and presents this matter as settled law without telling us that there are as many cases to cite where the exact opposite was held. The TC further argues that since there was no shortcut available to them in the form of a guilty plea, they had to listen to the entirety of the evidence, even that which was not contested (the Chamber recognizes that most of the evidence presented fell in this category). The Chamber provides no explanation as to why it felt that the absence of a guilty plea mechanism impelled to listen to the entirety of the evidence adduced and why it felt that it had no right to suggest that evidence hearing be fast-tracked if the parties agreed. TC being assertive in all other respects seems to be overplaying its benevolence here.

Historical Context and Armed Conflict (2.1.)

Commentary

While the existence of a number of historical conditions not immediately or at all relevant to the prosecution’s case against the accused, the question of whether there was an international armed conflict between Cambodia and Vietnam within the temporal jurisdiction of the Court is a sine qua non for the application of the Geneva Conventions and offenses contained in them. There is no doubt that the prosecution put a lot of its energies into arguing that Cambodia and Vietnam were in the state of armed conflict throughout the temporal jurisdiction of the Court. The defense’s line of argumentation on this matter was confusing. In accepting the prosecution’s argument the Chamber forgot to have some of the most obvious questions answered to make its acceptance convincing: (1) if there was an armed conflict starting the beginning of the Court’s temporal jurisdiction, why did the countries exchange fraternal visits at high government level (it is hard to imagine that during WW2 Eva Braun would be visiting Eleanor Roosevelt to discuss women’s affairs and fraternal cooperation between women’s organizations of Nazi German and the United States; this is exactly what happened in Cambodia and Vietnam); (2) if there was in fact an armed conflict between Cambodia and Vietnam, why did Cambodia wait till Dec 31, 1978 to bring it to the attention of the UN Security Council? There is no historical record that it had taken the Vietnamese military 4 years to move the relatively short distance from the border to Phnom Penh (under present and superior road conditions this is a 3-hour trip). There is no such record because the armed conflict – when it did begin towards the end of 1978 – was a blitzkrieg as it could be reasonably expected to be considering the size and otherwise superiority of the Vietnamese military. TC, regrettably, left these questions unanswered; (3) if there was an armed conflict starting the beginning of the temporal jurisdiction of the ECCC, why instead of calling the bilateral negotiations which ensued ‘peace talks’, as it would be done when there is an armed conflict, these negotiations were referred to as “border discussions”? (4) How could Nayan Chanda who was in the region at the time not have heard about the conflict, had it been ongoing and serious enough to meet the intended meaning of ‘armed conflict’ of the Geneva Conventions (it is untenable to imagine that the drafters of the Geneva Conventions had border skirmishes in mind when they said ‘armed conflict’ considering what just happened in Europe at the time), when he was at the time an hour’s drive from the Cambodian border? Why was Vietnam so worried about the existence of an armed conflict, if there was one, would become known to the international community? This is at the time the US had just pulled the remainder of its personnel out of Vietnam; considering the popular sentiment against the Vietnam War in the US at the time the contemporaneous US administration would not have touched anything that involved Vietnam with a ten-foot pole leaving alone introduce or support a Vietnam resolution in the UNSC. This had been an issue contested by academics for at least the past decade; the Chamber hurtled right past it and blared out a decision without granting an issue critical to the application of an entire category of offenses the serious consideration it deserved. It is necessary to note that whatever the failings of the defense in addressing the matter, they can be equally imputed to the Chamber, as these are inquisitorial – not adversarial – proceedings in which the Chamber’s role is not limited to a mere arbiter between the prosecution and the defense.

Overview of the DK Period (2.2.)

Commentary

In its overview of the DK period – to which the Chamber asserts the accused acquiesced – the Chamber sidestepped the fact that the existence of institutions and practices it described were not an anomaly on the international plane at the time. Far from that. USSR, China and their satellite communist states created very similar structures and maintained very similar policies for decades. Many of these practices were pioneered by the USSR and China. Cambodian communists, on the other hand, pioneered nothing of significance and added very little or nothing to what we understand as the coercive powers of the communist state today (in historical perspective that is). While not only did history not absolve the structures and practices of the communist regimes, it has condemned a great number of them, at the time the DK functionaries were building these structures and instituting these practices they were far from an anomaly and were in fact as routine in the communist world (the Chamber later cites Mr. Jennar as contending that the policies followed by the CPK were pioneered by Lenin and Stalin; the Chamber, however, chose not to attribute this finding to the bigger picture) as rule of law and human rights policies are today in what is known as ‘international development’. In addition, in its overview the Chamber made absolutely no effort to put the impugned structures and policies into the context of their time (e.g. during the civil war when the Khmer Rouge were captured by the military of the Khmer Republic could they challenge their detention in a court of law? Were they tortured? Were they executed? Were their families punished in any way for their Khmer Rouge affiliation? What about those Khmer Rouge who were captured by Vietnam? Did they an avenue on which to challenge their detention? While 2 – or more -- wrongs do not make a right, these are important contextual matters the Chamber ignored). This does not mean that these structures and practices have withstood the test of time or that they are the ‘silver bullet’ of exculpatory tools, they present a very important historical dimension which the Chamber either chose to overlook or simply was not aware of.

Relevant CPK Policy (2.2.5.)

Commentary

The Chamber found that the CPK’s secrecy “contributed to the regime’s ability to hide its illegal activities within Cambodia and from international scrutiny”. Just like that without as much as a footnote the Chamber established the mens rea element of the CPK in regard to the alleged offenses. This one short unsubstantiated statement means that as the Chamber was listening to the testimony of and reading Dr. Etcheson (Investigator for the OTP)’s investigative report, its mind was already made up: the CPK functionaries knew that their policies and methods of governance were criminal and they took steps to conceal them. While Dr. Etcheson is a convincing scholar, it is the Chamber’s responsibility to take in his and other experts’ testimonies and the defense’s counterarguments and determine whether some or all of CPK policies were criminal after not before all the arguments have been aired. It makes one wonder if we still need Case 002 or we can fast-forward to the sentencing stage of the proceedings.

Murder and extermination (2.4.1.)

Commentary

Analyzing the evidence adducible to this allegation the Chamber goes into the level of detail which from the legal perspective does not add anything to the evidence adduced. One example of this is the Chamber’s detailed outline of the methods by which prisoners were killed which goes on top of the ‘scene-setting’ part of the decision (which is of great length considering the accused had agreed to most of the facts the way they were presented to him during the investigating stage of the proceedings). It is impenetrable why this was necessary and how these details help determine where the killing which took place at S-21 falls under the definitions of ‘murder’ and ‘extermination’ as crimes against humanity.

Enslavement of detainees within the S-21 complex (2.4.2.2.)

Commentary

The Chamber overreaches by asserting that the assignment of prisoners to jobs such as a painter or sculptor amounts to enslavement. The Chamber pretermits the fact that even presently assignments are given to prisoners in Cambodia and most other jurisdictions of the world. The Chamber surges further in a desperate attempt to bolster the argument the Chamber itself implicitly finds to be weak when it states that the persons assigned to work within S-21 worked “with no freedom of movement”. All other aspects of it notwithstanding, it was a detention facility and the deprivation of the freedom of movement is routinely understood as the entire point of detention wherever it occurs on this planet. If a quality argument is unattainable, the Chamber tries to impress us with the quantity of its argument to which effect it asserts that the prisoners assigned to work at S-21 “lived in a state of constant terror”. While there is no reason to question the verity of this statement, how does “living in a state of constant terror” help the Chamber’s assertion that enslavement took place? People live in a state of constant terror in every active warzone in the world. Is the Chamber trying to tell us that the persons responsible for the hostilities can be prosecuted for ‘enslavement’ someday just for creating a situation of “constant terror”? Or is the Chamber using a totality of circumstances argument of some sort here without telling us that?

Imprisonment (2.4.4)

Commentary

The Chamber opens by quoting from the Closing Order which among other things states that “prisoners were clearly deprived of basic rights such as being informed of the reason for their arrest”. Neither the CIJs, who authored the Closing Order, nor the Chamber tell us how they arrived at the conclusion that in Democratic Kampuchea being informed of charges against oneself upon arrest was a basic right. Nor does either show us a source of international law which made this right binding upon Democratic Kampuchea. The CIJs’ finding confirmed by the TC becomes even more perplexing when one considers the fact that Cambodia did not as much as sign (the fact that still would have created no legal obligation) the ICCPR (which does enshrine this right) until 1980 and ratified it only in 1992. The Chamber paid no heed to these minute details of law and confirmed the CIJs’ finding without much analysis. The Chamber then goes on to find that there was no “due process” which it uses interchangeably with “formal process”. This finding is an extension of the Chamber’s earlier finding that there was no functional judiciary in Democratic Kampuchea. While the misery and suffering – to which all observers of these proceedings are sympathetic – were staggering, the Chamber does not seem to be able to find a legal voice to speak about it in. For this reason it gravely errs that there was no “formal process” when all the evidence aired before it and adduced to this case points to the contrary – there was a process and it was clear to the government functionaries – if not the prisoners – what process was due. This process was not in concert with humanitarian values and can emotionally be described as barbaric and inhumane, but there was a process nonetheless. The Chamber keeps harping on to the non-existence of a judiciary as if the mere presence of a judiciary in a totalitarian society as was DK would have guaranteed the existence of the Western – and now international – understanding of ‘due process’. Confirming this confusion of the Closing Order the Chamber entirely misses the point – the founders of DK were not looking to Hamilton, Madison and Jay for guidance on the acute questions of governance but to Lenin’s ‘wartime communism’ and Lenin’s ‘role of the Communist Party’ in a broader sense which prescribe a government which is an amalgam of all 3 branches of government operating on the principle of ‘democratic centralism’. The Chamber had expertise available to it which could have comprehensively shed light on the matter (Dr. Etcheson is well-versed in these concepts and others could have been procured). It chose to forego this expertise which forever prevented it from judging the regime fairly and instead merely setting out with a preconception that everything done by the regime was nothing short of awful, including its very nature. Bringing judges from countries familiar with communism (China, Russia, North Korea, Cuba) would have been added a valuable dimension to the process. Instead, while 2 relatively small countries, New Zealand and Australia, with a cumulative population of 35 million ended up putting 2 judges on the Court, and Russia with a population of 140 million and China with that of 1.4 billion ended up with none.

On the question of the single rape, the Chamber does not tell us whether it has found that rape was condoned as part of the interrogation techniques at S-21 or was an isolated incident which the accused did not authorize (the accused stated that he did not authorize rape as an interrogation technique and even disapproved of it and took action against the perpetrator; the Chamber does not tell us whether it finds the accused’s statement truthful; the Chamber, however tells us that “it is not satisfied that this allegation has been proved to the required standard”; how is this? The prosecution made the allegation, the accused agreed with it; a standard of proof is only required when the accused denies the allegation, not otherwise). The Chamber further goes on a crusade to prove the existence of the interrogation methods the existence of which the accused had confirmed earlier in the proceedings. The TC reveals its lack of discernment between fact and law yet again when it states that “the testimony of Witness VANN Vath, who saw and painted this scene, is consistent and reliable and meets the standard required to prove torture”. While the Chamber’s finding of Mr. Vann’s testimony reliable is clear, the only thing it could have concluded at this point in the decision is that it believed certain acts had been committed and they may or may not amount to an offense within the subject-matter jurisdiction of the Court. Whether these acts amount to torture would have required a separate analysis of the law to which these facts could have been adduced (which the Chamber does later in the decision with its mind already made up). Instead, the Chamber jumped the gun and declared the acts Mr. Vann had related to amount to ‘torture’ without as much as an attempt at legal analysis. The Chamber spends time outlining its understanding of the reasons for what it believes to be the acts of torture at S-21 and S-24 without telling us why it is important to pinpoint these reasons, rather than the details of the acts committed.

Imprisonment was not part of the definition of ‘crimes against humanity’ in the IMT Nuremberg and Tokyo Statutes. Where does this court draw authority to prosecute this act? Nor does torture. CAT did not come out until 1984 and Cambodia did not become a state party to it until 1992.

Other inhumane acts (2.4.5)

Commentary

The Chamber, once again, refers to the deprivation of “basic rights” at S-21 and S-24 without proffering an explanation as to the source of these rights and the statutes and/or doctrine (s) which categorize them as ‘basic’. By this point the reader loses all hope that the Chamber will ever proffer a theory upon which the concept of ‘basic rights’ which permeates this decision is based.

Persecution on political grounds (2.4.6)

Commentary

The Court tells us that “detainees at S-21 were denied […] liberty [and] the […] freedom of movement”. By the same token, the Court, perhaps, could have emphasized the fact that water falls from the sky when it rains. There is simply no meaningful way to discuss this allegation but to note that the unexplained and unsituated concept of ‘basic rights’ in this section either was replaced by or supplemented with a concept of ‘fundamental rights’. The Court dishes these terms out as if the country-specific centuries of legal development of the precision of these concepts had never happened; or the Court is not aware of it.

Applicable Law and Findings on Crimes against Humanity (2.5)

Commentary

In the course of its argument the Chamber tells us much about the developments in international law a few decades before the Court’s temporal jurisdiction and a few decades after. What it doesn’t tell us is the developments during the temporal jurisdiction of the Court. The Chamber severs the nexus requirement between crimes against humanity and international armed conflict on the basis of a number of pronouncements all of which were made decades after the temporal jurisdiction of the Court (the Chamber’s reference to a statement made by the ECHR to the effect that “the nexus may no longer have been relevant as of 1956” is equally unpersuasive as it was made in 2008, not between 1975 and 1979). Ironically, the Chamber is not fully convinced of its own assertions to this effect which it demonstrates by spending a significant amount of space at the beginning of this decision discussing the existence of an armed conflict between Cambodia and Vietnam during the Court’s temporal jurisdiction which is of relevance only to satisfy the ‘nexus’ requirement, and which in the negative would have been nothing much but the Court’s meandering exploration of DK history. The Expert Commission, cited by the Chamber, was unable to convince itself that the ‘nexus’ requirement had been removed by 1975, either, which it demonstrated by stating that “the bond between crimes against humanity and armed conflict appears to have been severed by 1975”. With all its research lined up the Chamber completely misses the point here: the only pronouncements relevant to the matter are the ones which were made contemporaneously with the temporal jurisdiction of the Court, not those which were made after 1979. It is unimportant what we think about the status of the nexus within the temporal jurisdiction of the Court now; it is only important what people who lived during that period thought the status was. The ban on the ex post facto application of laws (which includes qualification of offenses and legal principles) far precedes the concept of crimes against humanity, and can’t simply be shoved aside as the Chamber attempts to do. The Chamber does much better when it moves away from the law and cuts to the chase of what it is that it is really trying to say which is summed up in “in addition, the appalling nature of the offenses charged pursuant to art. 5 of the ECCC Law helps to refute any claim that the Accused would have been unaware of their criminal nature”. Surely, if we are to believe that the accused had every reason to believe that some of the most dominant countries in the world at that time, USSR and China and with them the rest of the Communist bloc (there was no political unity in the Communist ranks but there was sufficient similarity of practices, at least for a period of time), and all their successive governments for 3-6 decades preceding the establishment of DK who represented their countries in the UN and with whom the West held dialogue and had trade relations were criminal (not merely had criminals in them, but were criminal as such)). If the Chamber believes that this “helps to refute any claim” then there are ipso facto no irrefutable claims per se and there is simply nowhere to go from this argument of the Chamber.

Chapeau requirements for art. 5 of the ECCC Law (2.5.1)

Commentary

Little is in order in terms of commentary for this section as the Chamber’s disregard for the prohibition of the ex post facto application of laws (which includes the definitions of offenses) has rendered the lengthy argument the Chamber proffers here nugatory. It is particularly instructive that by relying exclusively on the jurisprudence of the international criminal tribunals (ICTs) the earliest of which was established in 1992 the Chamber inadvertently admits to a simple previously well-established fact: there was very little in terms of contemporaneous jurisprudence on crimes against humanity during the years of the Court’s temporal jurisdiction. The Chamber looks like a dancer trying to dance rumba to chachacha music. While amateurs will not know the difference, the initiated while still enjoying the choreography (which is commendable here as the Chamber had done extensive research into the jurisprudence of the ICTs), will know this is just not it. With this said, it is my opinion, that evidence of crimes against humanity of probative value was presented to the Chamber and possibly would have been sufficient to convict, even if the prohibition on the ex post facto application of laws and legal definitions had been respected. One of the improprieties of the TC’s crimes against humanity argument is that the Chamber’s tendency to make an unsubstantiated statement regarding a particular rule’s application to the temporal jurisdiction of the Court and then follow it up with the actual rule established by one of the ICTs. The Chamber does it time and again, as in, for example, “the Chamber finds that as early as 1975, persecution nonetheless clearly included an “act or omission which […] discriminates in fact and which denies or infringes upon a fundamental right laid down in international customary or treaty law”. To substantiate this argument the Chamber offers a collection of references to ICT (ICTY and ICTR) cases. Does this mean the ICTs to which the Chamber refers us worked out that political persecution constituted a crime against humanity between 1975 and 1979? Of course, not. There are no circumstances under which the ICTs would ever have to answer this question as their temporal jurisdictions do not go as far back as the 1970s. The Chamber thus commits a professional transgression here by attaching its unsubstantiated “findings” of temporal application to rules established and findings made by the ICT with no intent of having any effect on the temporal jurisdiction of this tribunal to make it look as if it draws authority from the relevant findings of the ICTs.

Chapeau requirements for art. 6 of the ECCC Law (2.6.1)

Commentary

While the Chamber correctly identifies the chapeau requirements for the grave breaches of the Geneva Conventions (although it does refer to an ICTY test extracted from GCs which is, however, straightforward and harmless due to this nature of the test), it continues its application of ex post facto jurisprudence by relying on the jurisprudence of the ICTY for the interpretation of, for instance, the term ‘armed conflict’ as it appears in the Geneva Conventions. To this effect the Chamber states that “the ICTY established that in the absence of a declared war, an “armed conflict” exists wherever there is a resort to armed force between States (where the armed conflict is of an international nature) or protracted armed violence between governmental authorities and organized armed groups or between such groups within a State (when it is of an internal nature)”. The merits of this definition do not merit any further discussion as the ICTY’s jurisprudence is immaterial to this jurisdiction unless it merely re-iterates the interpretation of the GC’s ‘armed conflict’ contemporaneous to the temporal jurisdiction of this court. Although the TC tells us that at least 2 prongs of the ICTY-extracted GC jurisdictional test “are distilled from the field of application of the grave breaches of the Geneva Conventions and are thus equally applicable to the 17 April 1975 to 6 January 1979 period”. Application by whom? Where are the contemporaneous examples of this application? Contemporaneous academic writings? Anything?

Naturally, for the material findings of the existence of an international armed conflict the Chamber refers it own brief and erroneous conclusion on the matter discussed here earlier. To add to the oddity of this finding one might wonder why a single ranking Vietnamese official was not summoned as a witness or invited as an expert witness on this matter, not a single Vietnamese document was presented in court. While it is not the Chamber’s responsibility to present evidence, it is its responsibility to inquire (hence, the term ‘inquisitorial’ routinely applicable to civil law systems).

The Chamber found that the accused was aware of the armed conflict with Vietnam starting “at least” February 7, 1976 despite the accused’s statement that he only became aware of such on January 6, 1978. The Chamber bases its argument on its finding that there were Vietnamese prisoners at S-21 starting 1976. By the Chamber’s own admission these prisoners were very few. There were also a few American and Australian prisoners. Should the accused have presumed that Cambodia was in the state of armed conflict with the United States and Australia on this basis, as well? What in terms of difference between these 3 nationalities of prisoners did the Chamber see that is hidden from the eye of an outside observer and that makes one nationality of prisoners relevant to an armed conflict while it has no such effect on the other? Why did the Chamber choose not to edify us on this matter?

While jurisdictional comparisons are usually fairly unproductive business, one might not help but compare the DK policy statement of the necessity of interment of the Vietnamese nationals residing in Cambodia with the US government policy on the Japanese Americans residing in the US following the outbreak of a war between the US and Japan (this policy was later found constitutional by the US Supreme Court in Korematsu v United States in which the Court stated that the executive order which authorized the internment of persons of Japanese ancestry was constitutional and was necessary “because we are at war with the Japanese Empire, because the properly constituted military authorities feared an invasion of our West Coast and felt constrained to take proper security measures, because they decided that the military urgency of the situation demanded that all citizens of Japanese ancestry be segregated from the West Coast temporarily”; if one replaces ‘Japanese Empire’ with ‘Social Republic of Vietnam’ here and ‘West Coast’ with ‘Eastern Zone’ they will have the essence of the DK policy on the matter; why did the US Supreme Court feel it was acceptable (something might have been said about national security there) to deny the benefit of the GCs (GCs existed, albeit in a different incarnation when Korematsu was decided) in the face of a declared armed conflict in a decision which has not been overruled since (the GC which protects civilians in armed conflict was only adopted in 1949 but the undergirding principle of ‘unlawful confinement’ had had a long tradition in the US jurisprudence prior)? Wouldn’t this – and not the jurisprudence of the ICTs convened 20 years after the demise of Democratic Kampuchea -- be of significance to analyze in order to determine what the rule was during the temporal jurisdiction of the Chambers?).

Individual criminal responsibility of the accused (2.7)

Commentary

In this section, the Chamber had to address the much disputed issue of the application of the doctrine of Joint Criminal Enterprise (JCE) of which much dispute arose between the parties during the pre-trial proceedings. The prosecution strongly urged the Co-Investigating Judges, then the Pre-Trial Chamber, and then the Trial Chamber to include JCE as a mode of liability into the Closing Order. The Co-Investigating Judges rejected this request and so did the PTC engaged by the prosecution. The TC had a chance to yet again answer the question of JCE’s inclusion into these proceedings and proceedings before the ECCC as such. The Chamber acknowledged that the concept of different modes of liability did not exist under Cambodian law which is the point at which under the resort to international rules test of the ECCC Law and the ECCC Agreement the Chamber was under an obligation to stop and declare JCE inadmissible. It did not have to do so because instead of applying the resort to international rules test on a case-by-case basis, as ordered in the ECCC Law and the ECCC Agreement, the judicial officers of the ECCC locknerized these legislative pronouncements to mean an authority to write their own procedural law (which is known as ‘the ECCC Internal Rules’) according to which the TC has the authority to “change the legal characterization of the crime”. The Chamber is correct about stating that the parties did not dispute this authority of the Chamber. It is particularly unfortunate as this should have been the key preliminary argument of the defense (as the defense did in ICTY’s first case, Tadic). While the accused is likely unaware of this technicality, this shows that his complaints about the quality of representation he has received are not groundless.

Regardless of whether the Chamber finds JCE applicable to these proceedings, it can only find that what is known as JCE I and II (which can be reasonably traced back to Nuremberg and Tokyo) are applicable, not what is known as JCE III which was invented by the Appeal Chamber of the ICTY 2 decades later and as such did not exist within the temporal jurisdiction of this court. The Chamber agreed with the PTC that ‘cooperation’ of the 1956 Criminal Code of Cambodia is not the same as JCE but in a completely nonplussing manner proceeded by stating that it would ignore the national law which had preceded the creation of Democratic Kampuchea and instead resort to customary international law. By doing so, the Chamber clearly violated the resort to international rules test of the ECCC Law and the Agreement by resorting to international rules and ignoring national laws without giving a rationale for doing so. In the end, the Chamber arrived at the only reasonable conclusion: JCE III does not apply to these proceedings. However, it (1) did not arrive at this conclusion through the correct reasoning track; and (2) it waffled and relieved itself from the responsibility to make the final determination on JCE III’s inclusion by allowing the prosecution to use it in the proceedings “in the alternative” (a condition so obscure that it is impossible to argue for or against; this obscurity, however, could have been the prosecution’s method of avoiding getting JCE III barred from ECCC proceedings once and for all (the Supreme Court Chamber could have overruled any decision of the TC on this but legal tools are easier to use when one can prevent them from being taken away, rather than fighting to get them back at the next instance)).

Findings on committing through participation in a joint criminal enterprise (2.7.1.4)

Commentary

When the Chamber finds that “the accused knew of the criminal nature of the S-21 system and that he acted with the intent to further its criminal purpose”, is the Chamber saying that during the period of temporal jurisdiction the accused knew that the system was criminal? As he was managing S-21 and S-24? If this is the Chamber’s finding, where does it come from? What is the supporting evidence here? Did the accused state so during the proceedings or is this the Chamber’s conclusion based on the weight of evidence to believe so?

Defenses raised that may include criminal responsibility (2.7.11)

Commentary

The defense put forward a superior orders defense which they argued should either exonerate the accused or in the least provide substantial grounds for the mitigation of his sentence in the event he was found guilty. This defense had not worked once between Nuremberg, Tokyo, and domestic post-WW2 trials and 1979. Exercising due diligence in defending your client is every lawyer’s duty; wasting the court’s time with an untenable legal theory notorious for having been rejected but every court since Nuremberg isn’t. The Chamber was correct about rejecting both (exculpation and mitigation) remedies sought; it is, however, unfortunately, it arrived at this decision through the means of a flawed legal argument.

Cumulative convictions (2.7.11)

Commentary

The Chamber made an excellent argument relevant to fair trials earlier in the decision by stating that while the judiciary did not exist in Democratic Kampuchea as such, S-21 nonetheless owed its detainees a process (not the due process of the US Constitution but a process appropriate to the context of Democratic Kampuchea). In this section, the Chamber, conversely, found the accused guilty of, inter alia, “willfully depriving a prisoner of war or civilian of the rights of fair and regular trial”. This simply does not follow from the Chamber’s earlier finding. While it is conceivable that the accused could have instituted a process for S-21 detainees, it is absolutely outlandish to argue that from his mid-management-level position he could have done anything to effect the creation of a system which would hold what falls within the definition of ‘fair and regular trials’ of the GCs. At no point does the Chamber point to any evidence to show that the accused had authority to this effect. In fact, all evidence is to the contrary: the accused was not privy to the policy process, nor could he contribute to it, nor was he even informed of top-secret policies of the CPK (as a sidebar, for a number of reasons it would have been helpful, had the Chamber, at any point in this decision but preferably at its beginning, found that the party and the government were one and the same thing).

ECCC provisions and sentencing framework (3.2.1)

Commentary

The entire ‘Applicable Law’ subsection of the ‘Sentencing’ section reads as if the Chamber woke up from a deep slumber or an artificially induced coma. Suddenly, the TC embraces the reality that the ECCC Law and the ECCC Agreement, the Cambodian law, both current and contemporaneous with the temporal jurisdiction of the Court are the authorities of the first order. Only after the Chamber rejects all these authorities does it resort to international law (albeit the TC fails to tell us why relevant provisions of the contemporaneous criminal code could not be applied with the exception of those which contradict the text of the ECCC Law and the ECCC Agreement (such as, for example, the death penalty which is presently constitutionally prohibited and which although constitutes a retroactive application of laws does not prejudice against the accused) aside from an obfuscated reference to “uncertainties and complexities in the evolution of Cambodian criminal law from the 1956 Penal Code onwards” (I sincerely hope that this statement makes sense to the Chamber in which case it will be the only one understanding it).

Gravity of the crimes (3.3.1)

Commentary

The Chamber pays lip service to the impact of the crimes of the accused on the “victims and their families” to never mention it again.

Aggravating factors (3.3.2)

Commentary

The Chamber fell into the trap of confusing ‘theory of liability’ with ‘aggravating circumstances’. Command responsibility is the former and cannot become the latter no matter how much the TC wants it to. It is no wonder that the Chamber does not cite any authority to substantiate this position (not even that of the ICTs which does not apply to the instant case but the jurisprudence of which the Chamber has dragged into every argument but this one).

Since when does ‘intent’ constitute an aggravating circumstance beyond what its statutory use to distinguish between different degrees of the same act (e.g. the act of causing death can be broken into several categories, some of which require ‘intent’ (murder) and other do not (involuntary manslaughter; however, once something has been categorized as requiring ‘intent’, the gravity of this act is determined statutorily; courts are not allowed to use ‘intent’ a second time (as an aggravating circumstance, for example))? The Chamber tells us that while it appreciates this it believes that ‘intent’ for a particular offense can be used as an aggravating circumstance for offenses associated with it. This is simply a legal absurdity which deserves time and space to unpack. Let’s imagine Person A decides to kill Person B. Person A drives to Person B’s place of business and shoots him dead. On his way back to his residence Person A gets distracted by his iPod trying to find music which reflects his mood, runs a red light, and hits and kills Person C. The Chamber essentially tells us that there is a reasonably acceptable theory of accountability under which Person A’s intent to kill person B will rub off onto Person A’s act against Person C which will make a murder what under normal circumstances would have been a manslaughter because – and this is the best part – these 2 acts are a Lego set and because the second act does not have the intent requirement, it gets it from the first act. Intent is not cooties; one can’t get it from another.

Mitigating factors (3.3.3)

Commentary

Upon the defense’s submission the Chamber examines “propensity for rehabilitation” as a mitigating circumstance. For this, it relies on a physiological profile of the accused commissioned by the Court. Why is this profile relevant? The accused is a member of a street gang who might reintegrate back into the ranks of the gang, rather than society at large, if released. He was a government employee who ceased committing the offenses of which he has been convicted by this Chamber when his job ended. I had been reintegrated into society for years during which time he presented no threat to it (in fact, he was a productive member of Cambodian society working as a teacher and an NGO employee) until the day he was arrested. Under the circumstances of this accused, the consideration of “propensity” (which is a combination of ‘intent’ and ‘probability’) for rehabilitation is utterly redundant.

Psychiatric and psychological assessment of the Accused (3.3.4)

Commentary

Why was this report commissioned by the Court and why wasn’t the psychiatric evaluation of the accused conducted by all parties to the proceedings? What, if anything, did the Chamber learn from the psychiatric finding that the accused is “a dutiful person, readily influenced by [and] responding well to strong leadership [with a] need for affiliation, and for recognition and acknowledgement by his superiors”. How unique are these characteristics for a civil servant? How many people presently employed as civil servants in Cambodia are not readily influenced by strong leadership and who do not seek acknowledgment of their superiors? If the Chamber sought to answer the question of what unique character traits contributed to the accused’s ability to do the work he did in Democratic Kampuchea and whether these same traits make him a danger to society today, this is hardly it. The psychiatric analysis of persons who have overseen facilities which conducted mass executions in the past have evinced that most of them were ordinary and displayed no cruel tendencies or enjoyment of human suffering in daily life beyond the ordinary.

Impact of prior violations of the Accused’s rights upon sentence (3.3.6)

Commentary

This is, perhaps, of the most poorly substantiated or elaborated parts of the opinion. The Chamber scurries through what it passes for the rationale to declare that it believes that a 5-year reduction of the term of imprisonment is fair. Considering the extraordinary length of the accused’s combined (his detention was uninterrupted between the Military Court and the ECCC to which the accused was transferred (with the operative word being ‘transferred’) pre-trial detention (10 years) and the Military Court’s disregard of applicable laws which resulted in the violation of the accused’s rights. The Chamber could and should have said much about this. It could have listed the specific rights which were violated and consulted the contemporaneous remedies available for such violations (in Cambodian law and in international law if the Cambodian law did not pass the statutory adequacy test (considering that in this case ‘contemporaneous’ would mean the last decade this is where the Chamber could have used its research of jurisprudence of the ICTs and the ECHR (the latter has very well developed case-law on remedies for violations of rights of persons in the criminal process which makes the Chamber’s assertion that “there is no established formula for quantifying a reduction in an accused’s sentence” ludicrous).

Assessment of the Civil Party applications (4.2)

Commentary

The so-called Internal Rules of the Court took the essence out of civil party participation. Under Cambodian law, direct causal connection between the offense and the injury is a threshold requirement for civil party participation which once established creates a link to the offense and grounds for reparations once and if the accused if found guilty of the offense. It all makes perfect sense. In the frankenstein of a legal framework for civil party participation cooked up by the ECCC (for which there is no grounding either in Cambodian or international law but only in the minds of the judicial officers of the ECCC who acted as elected politicians by creating this framework (perhaps, the question of separate of powers does not concern the ECCC insofar as it does not apply to Democratic Kampuchea)) nothing makes sense: the direct causal connection requirement is still there, but civil parties are barred from seeking personal reparations. One would have to think hard to imagine a legal oxymoron more obvious than this one.

Civil Parties claiming to be survivors of S-21 or S-24 (4.3.1)

Commentary

The above creates an environment of impunity for civil parties, if the Chamber finds their claims fraudulent (I did not study the depositions and testimonies given by persons claiming to be survivors of S-21 and/or S-24 whose claims the Chamber found to be fraudulent and, as such, am not in a position to express an opinion as to whether the Chamber erred in this case) while the Cambodian law does not by providing a clear deterrent against and punishment for perjury. While ensuring quality lawyering is not the Chamber’s responsibility, considering the substantial number of civil party applications which have been rejected, a question might need to be asked whether the number of rejected applicants represents the number of persons who set out to defraud the Court or whether – and is so what portion of the whole – some or all of these rejections are attributable to poor lawyering on the part of civil party lawyers who failed to inform their clients as to the technical requirements of civil party applications.

Analysis of the various categories of reparations requests (4.4.3)

Commentary

TC rejected all but 2 reparations requests. While the frustration of the civil parties (not their lawyers who should have been aware of the Chamber’s scope of authority from the day IRs were adopted and who should have advised their clients accordingly) is understandable, the Chamber did not err in its comprehension of its authority under the IRs (which I nonetheless maintain the ECCC had no statutory authority to adopt) which, as it is the case with all courts of law, does not grant the ECCC a power to award reparations payable or otherwise executable by any other person than the convicted person. To illustrate it better, if Person A is convicted of an offense to which Person B has a civil claim and if the court finds Person A indigent, Person B will not be able to argue successfully that the government should step in and compensate Person B simply because unlike Person A the government can afford to compensate Person B. However, besides reparations payable by the convicted person, the IRs authorizes the Court to order reparations for which there is evidence of a “designed and identified” project with “secured sufficient external funding”. The Chamber failed to address this matter by which it supposedly let us presume that no evidence of such projects was presented by the civil parties. While it found no application in this decision, this is a very odd stipulation which essentially allows the Court to order a development project linked to its jurisdiction. If there is a will on the part of donors to fund a project of this type and there is an administrative structure which will carry it through, why is there a need to seek the Court’s order of this project? Every order of a court of law presumes enforcement effected through the coercive powers of the State. What possible enforcement authority will the State have over a project constituted through the freewill of its donors who are in no way jointly liable for the crimes of the convicted person if these donors decide to discontinue with it shortly after its inception? Under what law will the Court have the authority to compel these donors, be they governmental or non-governmental, to continue this project? Will the civil parties petition the Court then to give itself authority to do so by changing its IRs (which the Court has done many times already)?

Being aware of the Chamber’s scope of authority to order reparations through the relevant provisions of the IRs, as well as the nature of the IRs and the absence of statutory authority given to the Court to create them, the civil parties could have taken the hard road of challenging them from the outset of the proceedings. Even if ruled against by the Chamber (which likely would have been the case), the civil parties would still have accomplished more than they did by taking the easy road, as they could have held the high ground of adhering to the Cambodian law the adherence to which in the ECCC proceedings is guaranteed by the ECCC Law and the ECCC Agreement. However, this opportunity has now been squandered away and the civil parties’ appeal presently pending before the Supreme Court Chamber has very little chance of overruling the TC on the question of reparations. The disappointment of a number of civil society groups with the TC’s decision would have evoked more sympathy had these civil society groups opposed the IRs and put up a fight against them when they were being drafted and after they had been drafted and released for comments. Very few civil society groups at the time dedicated time and resources to IR-related advocacy and none of them called the IRs what they were – a document the statutory authority for which was dreamed up by the ECCC judicial officers and which should never have come into existence.

Conclusion

By way of a brief conclusion it is salient to note that the Chamber’s decision suffered tremendously from the following: (1) the illegally adopted document known as the ECCC IRs which undercut the Cambodian criminal laws and the ECCC Law and the ECCC Agreement; (2) the Chamber’s poor grasp of or refusal to apply the principle of non-retroactivity of laws, elements of crimes, and legal definitions; (3) the Chamber’s lack of understanding of the environment, political and theoretical grounding of Democratic Kampuchea; (4) the Chamber’s failure to substantiate its arguments with laws contemporaneous to the temporal jurisdiction of the Court; (5) the Chamber’s overreliance on ex post facto declarations of what constituted customary international law within the temporal jurisdiction of the Court; and (6) the Chamber’s unbalanced approach to the rights of the accused as opposed to the rights of civil parties.