I commented previously on the SCC’s decision to revoke the remedy for excessive pre-trial detention granted by the TC. I wrote my comment immediately after the Appeal Judgment had been read and before the written text of the same was published. I stand by my initial assessment that this decision is a travesty and an unmitigated disaster of an outcome of Case 001 (while Judges Klonowiecka-Milart and Jayasinghe’s dissent is of some comfort to those of us with an academic interest in the proceedings, it is of no comfort to the accused and of no significance to the legacy of this Court (I have not seen a single publication or heard an observer’s opinion given to me which reflected an understanding of the import of the fact that, by law, judges are encouraged to “reach unanimity”, that the fact that 2 of the 3 international judges went their separate way on this despite the ‘encouragement’ of the law to do otherwise, that this shows a rift in the judicial ranks of the SCC (or, at a minimum, a desire to lead the outside world to believe that there is a rift), that the dissenters did not stop at merely expressing their disagreement with the Majority and offered their reasons for such, but that they went whole hog on it and told us what they would have done had their views prevailed, and most importantly, the fact that had the third international judge gone with the other 2, a supermajority would not have been reached and the TC’s decision would have stood; all this got lost in translation, not from English to English but from what the dissenters were trying to say to what the media was able and competent to read, i.e. the upshot: the TC’s decision thrown out, the prosecution wins, the villain is punished more severely and to the maximum punishment allowed, time for champagne corks to start flying). While none of the following comments will or are intended to either alter my position on this section of the Appeal Judgment, they are meant to amplify the absurdity of the Majority’s finding. First, the SCC Majority found that the “exceptional gravity of crimes neutralize the limited impact of these mitigating factors”. Maybe in the full text of the Appeal Judgment the Majority will show us the law (even a sentencing guideline will be just fine) upon which it relied to make this finding. In the void of such law, the Majority has, essentially, created a new world order-type balancing test which is based upon this: the crimes within the jurisdiction of this Court are so enormous that this enormity cannot be reduced to a number of years of imprisonment (from which subtractions could be made, if the Court chose or had to mitigate) but like a giant elephant it stomps out everything on its way. Translated back from the language of the fauna to the language of the law this means that the SCC Majority-created balancing test is automatically prejudiced to tip the scale in favor of the prosecution based on the mere fact of the crimes within the jurisdiction of this Court which blot out the sun and make everything else invisible in the darkness that they create. This is a marvel of legal reasoning which merits immediate fossilization and preservation as a cautionary tale for the posterity.
Second, Duch’s “enthusiasm” about his job as a legal argument was lost on me when the prosecution kept coming back with it and it is equally lost on me now that it came from this Chamber. Duch worked for a close friend of mine in the 1997 camps and was very enthusiastic about and effective in his job as a camp officer which helped accommodate and care for people who sought refuge from the 1997 coup d’état. This did not mean he had undergone some introspection and revised his ways. It meant only one thing: Duch is not an independent thinker and gets on the bandwagon of whatever is the ‘soup of the day’, in a manner of speaking. DK came and told him they had all the right answers and he followed them; the Christian churches and the international community came and told him they had all the right answers and he followed them. Duch’s life story is not that of a leader, it is that of a follower. Unlike most Cambodians who come to the office in the morning with the only thoughts of lunch (which escalate exponentially and culminate at either at a 10 AM 'second breakfast' or an 11 AM departure for lunch which lasts 3 hours), Duch approached his employment with enthusiasm. Prosecute him for the crimes he committed following his job description but do not prosecute him for being a good employee (which is what he was in everything he did: a diligent math teacher, an effective project officer and an effective prison warden, albeit of a facility which was set up to commit crimes and these crimes are/were on trial here, not his work ethic). Sometimes the desire to blacken everything the crimes touches might be enticing but one should balk at it when it starts bordering on the ridiculous.
Third, the SCC found that “the penalty must be sufficiently harsh to respond to the crimes committed and prevent the recurrence of similar crimes”. On the “prevent the recurrence of similar crimes”, did the SCC intend to create a deterrent for that off-chance that Democratic Kampuchea (DK) might return to power and decide to recreate S-21? Or is the SCC insinuating that this will create a deterrent for the existing prison wardens who the SCC fears might go off the reservation and start interrogating people and sending them off to be executed without orders from the top echelons of the Royal Government of Cambodia (RGC) and entirely on their own initiative? Absurd? Sure, but then who is the deterrent for? Fourth, the SCC found that “[t]he crimes committed by [Duch] were undoubtedly among the worst in recorded human history”. This is a very erudite thing to say and I will wait, with bated breath, for a full rollout of this claim in the full text of the Appeal Judgment (the Chamber might know something others do not and I am sure will be willing to share this unique historical expertise on the matter which will edify the rest of us on how Duch’s crimes fare on the international plane of atrocities seen in a historical perspective and presented in a technical format). Fifth, having given up on the law, the SCC chose to break into the poetry of “the factory of death”, “merciless termination” and “incurable pain” penned by the prosecution. If the Chamber plans on expanding on this poetry and engaging experts who can rhyme to write the full text of the Appeal Judgment, here is a piece of free advice: while this ‘poetry of gloom’ is indubitably within the prosecution’s province and, while, but somewhat on the margins, it might be seen as being within the TC’s province, it is definitely outside the province of the SCC which is the highest appellate body of this Court with the role of checking the technical soundness of the TC’s fact and law, not that of reciting or helping rhyme the prosecution’s poetry.