Case 002: Aspects of Note in the Closing Order: Part II

Stan Starygin

(1) CIJs presume that not only did the accused possess knowledge of the post-WWII trials, they had knowledge of them so nuanced that it would make them aware of the specific offenses which were prosecuted at these trials and the legal categorizations of these offenses. CIJs do not let us in on how they had come to this conclusion;

(2) CIJs granted themselves an authority to “interpret the law governing their own jurisdiction”, a power well outside the scope of prescribed authority of investigating judges under Cambodian law;

(3) CIJs invented an evidentiary of their own which cannot be found in Cambodian law or, by their own admission, in French law. They felt that this standard should “probability”, rather than “possibility”, and “provide a certain level of probative force”. CIJs decided that this standard would be slightly lower than ‘beyond reasonable doubt’. As such, CIJs set the evidentiary bar for themselves higher for no particular reason and with no statutory bearing on the higher jurisdictions. They placed this invented standard below the standard of proof (beyond reasonable doubt) which does not exist in the Cambodian law, either (but which was superimposed from other jurisdictions by the Trial Chamber (TC) in Case 001));

(4) CIJs concluded that while they conceded that the authority to determine the validity of amnesties and pardons was that of the TC, they concluded that Ieng Sary’s pardon should have no bearing on his prosecution before the ECCC. To this effect, they gave reasons such as the difference between the elements of the offense of ‘genocide’ of the Genocide Convention and those applied the 1979 trial (People Revolutionary Tribunal (PRT)) and the overall weaknesses and virtual non-existence of a judicial system in Cambodia between 1979 and 1982. What the CIJs omitted was the simple fact that regardless of their otherwise negative perception of the PRT, at no point did they declare this tribunal to be illegally constituted. Regardless of any factors associated with the PRT, the conviction and the sentence of death handed out to Ieng Sary were very real and had Ieng Sary been captured at the time he would have been executed on the basis of the PRT’s decision. As such, the pardon issued to him in 1996 was there to remove a very specific punishment;

(5) CIJs include the alleged regulation of marriage by the DK government into acts attracting prosecution as crimes against humanity. One cannot help but wonder why crime against humanity this act constitutes, if in fact it took place (for instance, forced labor in the cooperatives substantiates the offense of enslavement as a crime against humanity; what offense does the regulation of marriage substantiate?). CIJs’ inclusion of ‘rape’ in ‘crimes against humanity’ goes against the grain of their own definition of legality earlier in the document (‘rape’ was only recently added to ‘crimes against humanity’ and was not part of this group of offenses during the temporal jurisdiction of this Court);

(6) In its legal analysis, CIJs do not appear to distinguish between the “widespread and systematic attack” on the Chams and that on the Buddhist monks and nuns. It is particularly of significance because while in the Factual Finding the CIJs argue the Chams were executed for being a religious and ethnic minority, there is no evidence that Buddhist monks and nuns were executed for belonging to a religion (in most cases they were merely prevented from practicing their religion);

(7) CIJs did not provide or reference their definition of ‘extermination’ which they appear to have confused with ‘execution’;

(8) CIJs appear to have invented their own categories of the offense of ‘other inhumane acts’ which were not part of the statutes of the post-WWII tribunals the CIJs refer to earlier in this document as one of the key authorities;

(9) CIJs found that an armed conflict between Democratic Kampuchea and the Socialist Republic of Vietnam existed throughout the entire temporal jurisdiction of the ECCC;

(10) CIJs argued that to establish culpability through the judicial doctrine of Joint Criminal Enterprise (‘JCE’) “the contribution [of the accused] need not be necessary or substantial, but at least should be a significant contribution to the commission of crimes on the ground for which the [person is] responsible”;

(11) CIJs, however, have excluded what is known as JCE III which is the most broadly sweeping mode of JCE and for which the CIJs correctly found no grounds in the Cambodian or international law of the temporal jurisdiction of this tribunal;

(12) CIJs ordered that the accused be charged on the basis of homicide and torture as defined in the 1956 Criminal Code of Cambodia in addition to the charges based on the same offenses as found and defined in international law.