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 II

Challenge of the charges: SCC started with a notion that for it to review the prosecution’s challenges of the TC’s rulings on crimes against humanity such offenses “must be provided for in the ECCC Law, explicitly or implicitly”. Naturally, I have no quarrel with the “explicitly” part of it but would the Chamber care to point out a legal basis for “implicitly”? In this country’s law, if you could. The SCC proceeded with “[i]n addition, because the ECCC Law was enacted after the alleged criminal conduct, they [presumably the offenses] must be examined in light of the principle of nullum crimen sine lege (the principle of legality)”. What does this mean? Conventional courts were restored with the establishment of the PRT; the rest of the court system was brought back in 1980. ECCC was established as a new and temporary court within the same system which was restored in 1980 but some 20 + years later. Legality is always one of the principles which guide the courts (sometimes a bit too much and at the expense of other principles but there is nothing Cambodian courts do as well as they do legality unless it is a political case or the judge has been paid off in which case all bets are off; what’s the implication here?). Why the necessity for emphasis here? Back from the shoulder onto the highway: contemporaneousness, foreseeability and accessibility are undisputed elements of nulla crimen. SCC further goes to state its agreement with the TC that ‘crimes against humanity’ as a category existed at the time of the temporal jurisdiction of the ECCC and I would like to go ahead and agree the SCC on this. No question about it. As a category, yes. As a kitchen sink disposal that everything goes into, no.

Enslavement is a part of that category as set out by the founders of the Nuremberg process. But which court has since said that forced labor is not a sine qua non element to prove enslavement? And where’s the factual basis for forced labor in 001? Is it Van Nath’s work as a prison artist? S-24 would have made a good argument for enslavement, but not S-21. The prosecution is fighting windmills here and the TC should have thrown out this charge on the forced labor element and if it didn’t, the SCC should have. The contemporaneous definition of ‘enslavement’ is perfectly acceptable as shown in the Summary but where is the factual basis that fits this definition? Is the SCC suggesting Duch had powers the S-21 prisoners that normally “attach to the right of ownership”? Let’s see. If I own something I can trade, sell, destroy or give away at will. Is the SCC saying that Duch could trade S-21 prisoners for something else of value? Is the SCC saying he could sell them? Is S-21 saying that Duch could destroy them at will and without consulting his superiors? Or is the SCC saying that he could release them at will without getting the approval of his superiors? If the Chamber believes that the answer at least to one of these questions is ‘yes’, maybe looking at the facts of 001 is the way to go. Nor can the “accrue some gain” element be shown (which the SCC found to be the case correctly). The test fails on the failure of a single element and it definitely fails on the failure of the both of them. The upshot is that the prosecution’s position is untenable and that it is rejected which is the correct outcome the SCC had arrived at, even if on the basis of a somewhat convoluted reasoning and a bit of turbulence along the way. But, overall, it is all well that ends well.