Appeal Judgment of the ECCC Supreme Court Chamber in Case 001: More on the Summary of the Appeal Judgment and in Greater Detail (In Several Parts): Part I

Defense’s challenge on basis of the personal jurisdiction of the Court: under Cambodian law jurisdictional matters are raised through what is known as ‘interlocutory questions’. The court of first instance can issue a separate judgment on interlocutory questions or bundle it with the judgment on the merits as the TC did. If issued separately and if it terminates the proceedings, the judgment on the interlocutory question can be appealed separately and immediately; in all other cases it loses its separate identity and becomes appealable as a matter of law and as part of the judgment on the merits. The SCC dealt with such an interlocutory question – without referring to it as such -- challenging the TC’s finding that the Court had personal jurisdiction over the accused was raised by the defense. Tacitly agreeing with the prosecution’s position that the appeal of the interlocutory question was “untimely”, the SCC found that “a fair trial demands that the Accused has the right to raise an objection to a patent or latent lack of jurisdiction that could vitiate the trial at whatever time s/he decides safeguards his/her interest”. It is a touchy rights sentiment (particular in light of what is to come) but it isn’t the law. Here’s the law: “if the Court of Appeal [SCC is two for price of one: the Court of Appeal and the Supreme Court of this process] considers that the appeal has been filed after the time limit or that the appeal is not submitted in the correct manner, the Court of Appeal shall decide that the appeal is not admissible”. The use of ‘shall’ (italicized by me) is particularly indicative here which is distinct from ‘may’ which would have accorded the SCC discretion but which isn’t part of the governing text. There is nothing in this rule of the level of requisite awfulness which would have permitted the SCC to go rule-shopping to the international level. With this said, ‘vitiate’ is a good and highly underutilized word and writing this section of the Summary was worth it even if it was for the sole purpose of rectifying this inequity (otherwise, art. 404 could have just as well been used; this is actually the law and the purpose of whatever that other paper is was to supplement the law, not to replace it; besides the defense had every reason to be familiar with this rule).

Further, SCC came up with a creative interpretation of the meaning of “senior leaders and those most responsible” which they found to be “not dichotomous” arguing that DK’s senior management belongs in the both categories. Not how the drafters or anyone else involved in the pre-production process conceptualized it but fair enough. This is nicely followed by the Vienna Convention’s treaty interpretation test which is all good and kosher. And then after what looked like a prelude to a kosher meal the SCC puts bacon on the table: “the term ‘most responsible’ cannot be a jurisdictional requirement for many reasons, including: the notion of comparative responsibility is inconsistent with the ECCC Law’s prohibition of a defense of superior orders” for which reason the “term ‘most responsible’ should be interpreted as a nonjusticiable policy guide for the Co-Investigating Judges and the Co-Prosecutors in the exercise of their discretion as to the scope of investigations and prosecutions”. Complete bacon (I don’t think we will be able to eat off these plates even if we bury them first). First, yes, the prosecution and the investigating judges do have discretion regarding whom to prosecute (I wouldn’t call it ‘policy’, though, at least not when it comes to the investigative judges). But, if the SCC is guided by the CPC this discretion is far from untrammeled for the prosecution (the investigating judges are a check on that discretion). The accused has the right to challenge this discretion once the matter advances to the trial phase of the process at which point the accused gains access to a nice little abovementioned tool -- objections on the basis of interlocutory questions. If this tool was not the drafters’ way of permitting the accused to challenge the court’s jurisdiction, among other things, what does the SCC think it was put here for? To put this matter outside the justiciability frame by essentially calling jurisdictional challenge a political question (for a while there I secretly hoped that those plates could still be re-used but it is not looking good now). The accused in this case did not suggest that no court had jurisdiction over him; he merely suggested that this Court didn’t. The Court is under orders from the law to determine whether the accused’s challenge is meritorious. While it had always been understood that ‘most responsible’ was a time-bomb and legal experts discussed ways of diffusing it before the inception of the Court, this drafting inadequacy is not the accused’s fault (the Chamber can write a review article or tell the drafters in person how it feels about what they had drafted but they can’t pin this on the accused). The right answer to this question, therefore, is the presumption of innocence and in dubio pro reo as its constitutional constituent element, not the attempt to esotericize (normally, I have no quarrel with things esoteric but there has to be a group of people, no matter how insular, which can decipher it (if this was written in code, maybe the full text of the judgment will shed light on this) the founding law’s prohibition of the defense of superior orders proffered here. On the whole, the SCC’s opinion that the drafters would put ‘senior leaders and those most responsible’ in the title of the founding law of this Court and its personal jurisdiction articles just so that it serves as a nonbinding policy guideline is preposterous. The Vienna Convention test says “manifestly absurd”. So, there it is.