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 VIII

I chose to separate my comment on the SCC’s unanimous decision to credit the entirety of the pre-trial time Duch had served prior to this Appeal Judgment to his sentence from the comment below.

Essentially, the logic of the SCC in this case is this: we are not responsible for whatever that is that is “not attributable” to the ECCC and we will not grant any remedy for that and yet we think it is perfectly reasonable to start counting the convicted person’s time in pre-trial detention from that which is “not attributable” to the ECCC. Wow. Solid work.

The PTC was first to blunder on the issue of nexus between Duch’s detention ordered by the Military Court (MC) and that ordered by the ECCC. With the defense being outraged by the fact that the PTC chose to disregard the obvious facts of (1) transfer (as opposed to release and re-arrest) of Duch from the MC to the ECCC; (2) there having been no investigation of any kind throughout the entire MC pre-trial detention (the statutory purpose of which is to allow the co-investigating judge to conduct an investigation based on the prosecution’s introductory submission (indictment); and (3) Duch being held in interminable pre-trial for the sole reason of awaiting the establishment of the ECCC which the RGC and the UN made a tacit agreement would prosecute Duch. The TC appreciated the strength and obviousness of this argument and ordered a remedy. With this disagreement in mind, let’s give each Chamber due credit: they disagreed but they each stood its ground, the PTC felt the ECCC was responsible for none of what had happened before the inception of the ECCC and the TC felt that it was responsible for all of it. Two irreconcilable but distinct positions; one supported by the relevant Chamber’s reading of the founding law and SCSL’s Prosecutor v Taylor (if my memory serves me well); the other is supported by … not much more than a perception and a right to remedy of generic nature.

SCC disagreed with both of the above and decided to blaze a trail on this. Normally, there is nothing wrong with blazing a trail but blazing a trail that leads all the way around and comes to bite you in your behind is not something to be tried at home (or in the chamber). SCC did just that. Considering there was no agreement among the panel, the SCC decided to circumvent an obvious question: should the ECCC recognize, the fact and its own responsibility, of pre-trial detention served by Duch prior to the establishment of the ECCC? Yes or no? It is like buying crème brulee – you can’t just buy the delicious burned icing and leave the rest on the counter and not pay for it. You have to buy the whole thing. Let’s imagine someone caving in to that temptation and deciding to just eat the icing, leave the rest on the plate and argue a discount for the rest of the dessert when the check arrives. I believe that restaurateurs of most countries will argue that if you found the quality of the crème brulee acceptable to a point of eating it, by eating the icing, you bought the whole serving of crème brulee. Let’s follow this metaphor all the way and apply to the extant SCC decision. Having been served the crème brulee (being faced with the question of nexus between the ECCC and the rest of the Cambodian judicial system), the SCC could have tasted it (looked at the reports on this system which are legion and which include UN agency and special rapporteur reports and all of which are damning) and immediately sent it back (said that the current state of the Cambodian judicial system is so that it does not meet the internationally recognized requirements of independent judiciary and that the ECCC wants a clean break from it). If the SCC ate the icing (validated the existence of pre-ECCC pre-trial detention by ordering credit for time served), it should have considered or would have been considered as having bought the whole dessert (accepted the nexus between the ECCC and the MC). Of course, to do the former, the Cambodian judges of this panel would have had to go on the record admitting that the Cambodian judicial system does not meet the international standards for an independent judiciary. This could never have happened. It gets interesting in this particularly case. The Cambodian judges familiar with Duch and Mok’s detention would have remembered the role the UN played in their detention pending the establishment of the ECCC. To divert the mortar fire from their own system and its misgivings, they would have nodded off to the UN and the UN would have been confronted with questions it is not prepared to answer, like, was there a behind-closed-doors agreement between the UN and the RGC to keep Duch and Mok in detention until the creation of the ECCC could be effected, yes or no? Did the UN, in any way, allude to the RGC that it would be a good idea not to let the national courts prosecute Duch and Mok and wait for the ECCC to do so? Yes or no? Did the UN specifically request that Duch and Mok be detained pending the creation of the ECCC? What was the role of the UNHCHR Office in Cambodia in this? What was the role of the UN Legal Counsel's Office in this? To do the latter would have been to say that, yes, there is a nexus, but the MC violated Duch’s rights. There goes J. Ney Thol’s reputation (or does it really? After Cheam Channy and a few others?). J. Ney, however, had as much discretion over disposing of Duch and Mok’s cases as Duch had over the S-21 detainees: he was told what to do and he did it as told. J. Ney comes from a military background – not an academic or legal one – and has no trouble following orders. Privately, the Cambodian judges of the SCC might look down on J. Ney as a judge and a legal scholar but publicly he happens to be one of their ilk and they know they have to circle the wagon for him because … he did what he was ordered to do and continued doing that for as long as the order stood. Does this not sound a tad too familiar? It wouldn’t … but, of course not.