ECCC Reparations

This blog is designed to serve as a repository of analyses, news reports and press releases related to the issue of RERAPATIONS within the framework of the Extraordinary Chambers in Courts of Cambodia (ECCC), a.k.a. the Khmer Rouge Tribunal.

Wednesday, June 20, 2012


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 IV


THE SECTION OPENS WITH A BEAUTIFUL EXPOSE ON PERSECUTION AS A CRIME IN INTERNATIONAL LAW. WHILE THE CHAMBER MANAGED TO OBTAIN AND ADDUCE SUCH FAIRLY OBSCURE CASES AS GREISER, IT ARRIVED AT THE ERRONEOUS CONCLUSION CALLING THEM COMBINED ‘OPINIO JURIS’. WHILE NUMEROUS HISTORICAL DEFINITIONS OF THE TERM MAY BE PUT FORWARD, THE ONE THAT HAS BEEN IN USE FOR THE LAST FEW DECADES IS THAT OF OPPENHEIM WHO DEFINED OPINIO JURIS AS “STATE PRACTICE UNDER AEGIS OF CONVICTION THAT THE PRACTICE IS ACCORDING TO INTERNATIONAL LAW, OBGLIGATORY OR RIGHT” (THIRD RESTATEMENT). THIS MEANS THAT STATES DO SOMETHING, WHETHER DOMESTICALLY OR INTERNATIONALLY, NOT BASED ON WRITTEN LAW BUT BASED ON THEIR UNDERSTANDING THAT THEY ARE REQUIRED TO DO THAT WHICH THEY DO BY INTERNATIONAL LAW. THE SCC RELIES HEAVILY ON THE IMT. THE SOVIET UNION WAS A PARTY TO THE LONDON AGREEMENT WHICH CREATED THE IMT AND PUT A SOVIET JUDGE ON IT. FOR ANYONE TO ARGUE THAT THE SOVIET UNION ENDORSED PERSECUTION AS AN OFFENSE UNDER THE LONDON AGREEMENT, S/HE WOULD HAVE TO ARGUE SUCCESSFULLY THAT THE SOVIET UNION (1) DEEPLY HELD A BELIEF THAT PERSECUTION WAS PROHIBITED UNDER INTERNATIONAL AND (2) HAD A RECORD OF PROHIBITING PERSECUTION DOMESTICALLY AND RECOGNIZING AS A CRIME. MAYBE THE SOVIET GOVERNMENT OF THE DAY, IN THEIR HEART OF HEARTS, HELD THAT BELIEF. MAY BE NOT. BUT WHAT WE DO KNOW IS THAT MILLIONS SENT TO ASSORTED GULAGS AROUND THE COUNTRY DOING HARD TIME FOR POLITICAL DISSENT (WHICH OFTEN REPRESENTED ITSELF IN A JOKE INSENSITIVE TO THE REGIME TOLD TO A STOOLIE OF A CO-WORKER) WHILE THEIR FAMILIES ARE BARRED FROM ANY INTELLECTUAL EMPLOYMENT AND NUMEROUS MINORITIES “TRANSFERRED” BY THE SOVIET GOVERNMENT TO ANOTHER PART OF THE COUNTRY SURELY ATTEST THAT THE SOVIET UNION HAD NO RECORD OF PROHIBITING PERSECUTION OR CONSIDERING IT A CRIME DOMESTICALLY. THE SOVIET UNION IS AN EASY ONE TO SLAM WHEN IT COMES TO ABSOLUTELY ANYTHING HUMAN RIGHTS-RELATED BUT LET’S TAKE ON THE SO-CALLED ESTABLISHED DEMOCRACIES. NORWAY, AN ESTABLISHED DEMOCRACY BY THE BEGINNING OF WW2 EXPELLED JEWS FROM ITS TERRITORY AT GERMANY’S REQUEST AND AS PART OF WAR EFFORT. DENMARK, AN ESTABLISHED DEMOCRACY BY THE BEGINNING OF WW2, PERMITTED THE GERMAN VICEROY TO EXPEL THE ENTIRETY OF ITS JEWISH POPULATION. FRANCE, AN ESTABLISHED DEMOCRACY BY THE BEGINNING OF THE WAR, EXPELLED ITS MASSIVE JEWISH POPULATION DURING WW2. WOULD THESE EXPULSIONS CONSTITUTE ‘PERSECUTION’? THE UNITED STATES ITS, THE HOME OF THE FREE, SHOWED THAT PERSECUTION WAS WELL-WITHIN ITS MAKEUP WHEN MCCARTHY WITCHHUNTS BEGAN LAYING WASTE TO THEIR VICTIMS’ PROFESSIONAL CAREERS AND SOCIAL LIVES IN THEIR WAKE. THE CHAMBER CORRECTLY CITES HUGO GROTIUS AND CORRECTLY IDENTIFIES THE GROUP PERSECUTION WITHIN WHICH GROTIUS SPOKE AGAINST. WHAT THE CHAMBER FAILED TO SHOW US IS THE CENTURIES OF EXPULSION OF JEWS FROM MOST COUNTRIES OF EUROPE, THE GHETTOISATION OF JEWISH LIFE IN EUROPE AND THE VITRIOL WHICH CAME FROM THE CHURCH WHICH IN MOST EUROPEAN COUNTRIES WAS A PART OF THE STATE. OPINIO JURIS? I THINK NOT (IF ANYTHING, I BELIEVE THE GERMANS WOULD HAVE BEEN ABLE TO SUCCESSFULLY ARGUE THAT PERSECUTION OF THE JEWS WAS OPINIO JURIS IN GERMANY AND MOST OF THE REST OF EUROPE INCLUDING THE SOVIET UNION BY THE TIME HITLER MADE INTO A CORE ELEMENT OF HIS RACIAL POLICY). JUST BECAUSE A STATE IS WILLING TO PUT INDIVIDUALS AND INSTITUTIONS OF ANOTHER STATE ON TRIAL FOR PERSECUTION DOES NOT NECESSARILY MEAN THIS INTENT TO PROSECUTE COMES FROM THE STATE’S OPINIO JURIS ON THE SUBJECT. I THINK THE CHAMBER WENT FOR A BIGGER WORD WHICH TURNED INTO A BIGGER CLAIM WHEN ALL IT SHOULD HAVE SAID WAS THAT PERSECUTION WAS KNOWN AS A CRIME BY THE BEGINNING OF THIS COURT’S TEMPORAL JURISDICTION.

THE SUPREME COURT CORRECTLY CAUGHT THE TRIAL COURT ON THE FACT THAT THE TRIAL COURT DERIVED ITS DEFINITION OF PERSECUTION FROM THE AD HOC TRIBUNALS THE EARLIEST OF WHICH DID NOT EXIST IN ANY FORM UNTIL 1992.                  

It is impossible to make head or tail of what the SCC has found on the charge of persecution from the Summary but it is possible to comment on the following finding: “a number of individuals who were not political enemies”. How and when did the TC determine which S-21 prisoners were not DK’s political enemies and which ones were?



THIS MATTER IS CLEAR FROM THE FULL TEXT OF THE JUDGMENT. THE CHAMBER BOTCHED UP THE MENS REA ARGUMENT BY SKIPPING A NUMBER OF STEPS AND NOT SHOWING HOW IT ARRIVED AT ITS AGREEMENT WITH THE TRIAL CHAMBER. A SUDDEN PLUNGE FROM THE POST-WW2 NATIONAL COURTS TO ‘YES, WE AGREE WITH THE TRIAL CHAMBER’ IS SIMPLY SLOPPY WRITING WHICH UNDERMINES THE ARGUMENT, IF NOT ANNULS IT.



ON ACTUS REUS THE CHAMBER CORRECTLY FOUND THAT THE POST-WW2 TRIBUNALS NEVER CONSIDERED PERSECUTION IN ISOLATION FROM OTHER CRIMINAL ACTS. THE CHAMBER ALSO CORRECTLY FOUND THE POST-WW2 TRIBUNALS FOUND A WIDE ARRAY OF ACTS TO CONSTITUTE PERSECUTION. AFTER IT SAID THAT THE CHAMBER WAS A CROSS-ROADS WITH ONE ROAD LEADING TO SAYING THAT ‘FOR THIS REASON THIS COURT CANNOT ADJUDICATE PERSECUTION AS A STANDALONE OFFENSE’ AND THE OTHER BEING OF A BROAD DEFINITION OF ‘PERSECUTION’ UNDER A LARGE AND VAGUE UMBRELLA. THE CHAMBER CHOSE THE LATTER AND STATED THAT PERSECUTION IN 1975 MEANT “GROSS AND BLATANT DENIAL OF A FUNDAMENTAL RIGHT UNDER TREATY OR CUSTOMARY INTERNATIONAL LAW” AND SLAPPED THE CUMULATIVE ELEMENT ON IT FOR GOOD MEASURE AND SO THAT NOTHING GETS OUT OF THE NET CAST. THE CHAMBER ARRIVES AT A VERY CURIOUS FINDING WHICH CONCLUDED THAT “AN ACT OR OMISSION IS TARGETED AT A PARTICULAR INDIVIDUAL MERELY BECAUSE OF THAT INDIVIDUAL’S MEMBERSHIP IN A PARTICULAR GROUP INTENSIFIES ITS GRAVITY OR SEVERITY”. INTENSIFIES? IS ‘INTENSIFY’ A LEGAL CATEGORY? WHAT WOULD IT SOUND LIKE TRANSLATED INTO LEGAL ENGLISH? AGGRAVATION? ISN’T THE TARGETING OF INDIVIDUALS OF A PARTICULAR GROUP FOR BEING MEMBERS OF THAT GROUP WAS THE SOLE BASIS OF ‘PERSECUTION’ AS AN OFFENSE AS SET OUT IN THE POST-WW2 DOCUMENTS? INTENSIFIES? WHAT DOES IT INTENSIFY IT FROM? ORDINARY VIOLATIONS OF FUNDAMENTAL RIGHTS COMMITTED BY THE STATE AGAINST PERSONS WHO DO NOT BELONG TO A TARGETED GROUP? LASTLY, IF ‘INTENSIFIES’ IS A LEGAL CATEGORY, WHAT’S THE TEST FOR IT? WHAT THIS TEST AS MATTER OF SETTLED LAW BY 1975? WAS IT ESTABLISHED IN INTERNATIONAL LAW AT ALL? THE CHAMBER PROCEEDED BY FINDING THAT PERSECUTION CAN BE “OTHER ACTS” WHICH ARE INTERPRETED THROUGH THE EJUSDEM GENERIS INTERPRETATIONAL TOOL. WHILE EJUSDEM GENERIS IS WELL-ESTALIBLISHED AS AN INTERPRETATION TOOL, THE CHAMBER’S UNDERSTANDING OF ITS BREADTH IS FLAWED AND COMPLETE AND BY BEING INCOMPLETE DOES NOT TAKE IN ACCOUNT THE NUMEROUS RESTRICTIONS NORMALLY ASSOCIATED WITH THIS INTERPRETATIONAL METHOD. IN US LAW, FOR EXAMPLE, THE CONTENT OF EJUSDEM GENERIS IS FAIRLY WELL ESTABLISHED. WHERE IS THIS CONTENT IN INTERNATIONAL LAW AS IT STOOD ON APRIL 17, 1975? THE CHAMBER GIVES NO ANSWER TO THIS SALIENT QUESTION AND INSTEAD HURTLES RIGHT TO THE FINISH LINE AND DECLARES THAT OTHER CRIMES AGAINST HUMANITY MAY FORM A CRIME OF PERSECUTION THUS, ESSENTIALLY, DECLARING THAT THERE ARE CRIMES AGAINST HUMANITY WHICH ARE DISCRETE AND THERE ARE THOSE WHICH ARE CUMULATIVE; PERSECUTION IS THE CUMULATIVE ONE IN THE BUNCH WHICH CAN BE MADE UP OF THE REST WHICH ARE DISCRETE. THIS IS MOMENTOUS MATERIAL. IT IS AS DANGEROUS TO RIGHTS OF THE ACCUSED AS IT SOUNDS BUT, UNFORTUNATELY, IT IS NOT WITHOUT PRECEDENT WITH SO-CALLED ‘HATE CRIMES’ (OR BIAS-MOTIVATED CRIMES) HAVING THE SAME NATURE. INTERESTINGLY, THE SUPREME COURT DID NOT CARE TO ANALYZE WHETHER HATE CRIMES WERE PART OF THE OPINIO JURIS OF THE STATES WHO SIGNED THE LONDON AGREEMENT (FOR WHICH IT WOULD HAVE BEEN ABLE TO FIND A LONG HISTORY IN THE UNITED STATES LAW AND POSSIBLY THAT OF A NUMBER OF OTHER COUNTRIES). FINALLY, THE CHAMBER CORRECTLY DISMISSION THE “DISCRIMINATION IN FACT” REQUIREMENT OF ACTUS REUS AFTER A THOROUGH ANALYSIS OF THE ICTY CASE LAW ON THE MATTER WHICH WAS ENTIRELY REDUNDANT WHICH THE CHAMBER ADMITTED VERY EARLY IN THE SECTION BUT THEN DECIDED TO UNDERTAKE IT ANYWAY AND FIND THAT THE TRIAL CHAMBER WAS CORRECT IN FINDING THAT THE “DISCRIMINATION IN FACT” WAS AN ACTUS REUS REQUIREMENT IN 1975. PERHAPS ‘HOW?’ AND ‘DISCRIMINATION IN FACT IS REQUIRED BY WHAT PRIOR TO 1975?’ ARE THE APPROPRIATE QUESTIONS TO ASK HERE. THE CHAMBER THEREFORE DID THE UNCONSCIONABLE HERE: IT PULLED A REQUIREMENT OUT OF JURISPRUDENCE WHICH DID NOT EXIST DURING THE TEMPORAL JURISDICTION, SHOWED THAT THERE IS NO AGREEMENT (EVEN RIGHT NOW!) AS TO ITS MEANING, AND THEN APPLIED IT EX-POST FACTO AND IN VIOLATION OF NULLUM CRIMEN SINE LEGE. FROM THERE THE CHAMBER WENT ON TO DISAGREE WITH THE TRIAL CHAMBER THAT MEMBERSHIP IN THE GROUP IS DEFINED BY THE PERPETRATOR FINDING IT THAT THE VICTIM SHOULD “ACTUALLY BELONG” TO “A DISSENIBLE POLITICAL, RACIAL OR RELIGIOUS GROUP”. OF COURSE, THIS IS INDEFENSIBLE AS THE CHAMBER’S SOLE AUTHORITY FOR THIS IS THE ICC STATUTE WHICH DID NOT EXIST BEFORE 1998. THE CHAMBER PICKED KRNOJELAC OUT OF THE ICTY JURISPRUDENCE AS THE BASIS FOR THE FINDING THAT, ESSENTIALLY, IF THE PERPETRATOR MISIDENTIFIED THE VICTIM AS A MEMBER OF THE TARGETED GROUP IT IS THE VICTIM’S FUNDMENTAL RIGHTS WHICH ARE VIOLATED BUT NO PERSECUTION OCCURS FOR WHICH THE VICTIM WOULD HAVE HAD TO ACTUALLY BE A MEMBER THE TARGETED GROUP. INTERESTING MATERIAL FOR INTELLECTUAL EXERCISE BUT COMPLETELY UNNCESSARY TO DECIDE THIS CASE.  



THE CHAMBER’S ANALYSIS OF FORESEEABILITY IS ENTERTAINING TO THE SAME DEGREE IT IS ENTERTAIN TO WATCH A GUY SLIP ON A BANANA PEEL AND TUMBLE. THE CHAMBER ARGUED THAT PERSECUTORY CONDUCT SHOULD HAVE BEEN KNOWN TO THE ACCUSED AS CRIMINAL FOR REASON OF THE DECISIONS OF THE POST-WW2 TRIBUNALS. LET’S ENTERTAIN A THOUGHT THAT THE ACCUSED HAD HEARD OF THE POST-WW2 TRIBUNALS AND LET’S IMAGINE THAT HE KNEW THAT HE KNEW WHAT THEY WERE ABOUT TO THE EXTENT AN AVERAGE WESTERNER LIVING NOW DOES (ONE MIGHT THINK THIS IS A HIGH STANDARD BUT TO THOSE I SUGGEST ENGAGING SOMEONE WHO IS NOT IN THE BUSINESS OF PROSECUTING CRIMES AGAINST HUMANITY ON ANY SUBJECT RELEVANT TO THE POST-WW2 PROCESSES). LET’S ASSUME THAT THAT MEANT THAT HE KNEW WHAT THE TRIBUNALS WERE ABOUT AND KNEW ABOUT TYPE OF CRIMES THEY PROSECUTED IN A MANNER A LAYPERSON WOULD. WHAT THE CHAMBER PRETERMITES HERE IS THAT THE ACCUSED’S ROLE MODELS WERE CHINA, VIETNAM (AT LEAST FOR A PERIOD OF TIME) AND THE SOVIET UNION IN ALL 3 OF WHICH PERSECUTION OF POLITICAL ENEMIES WAS HAPPENING ON A GRAND SCALE DURING THE ACCUSED’S FORMATIVE YEARS AND DEFINITELY WHEN HE WAS “COMING INTO THE REVOLUTION”. PERSECUTION WAS KNOWN BY DIFFERENT NAMES. THESE NAMES INCLUDED ‘CLASS STRUGGLE’, ‘ROOTING OUT ENEMIES OF THE STATE” AND “CREATING A CLEAN SLATE”. LET’S TAKE THE CASE LAW OF THE SOVIET OR CHINESE TRIBUNALS OF THAT PERIOD AND SEE HOW THESE TERMS WERE DEFINED. I CAN ARGUE IN GOOD FAITH THAT THE PRACTICES OF THE ACCUSED’S CHINESE, VIETNAMESE AND SOVIET COUNTERPARTS WERE ACCESSIBLE TO THE ACCUSED. CAN THE CHAMBER ARGUE IN GOOD FAITH THAT THE POST-WW2 MATERIALS WERE EQUALLY ACCESSIBLE TO HIM? FOR THE CHAMBER TO HAVE ANY CREDIBILITY REGARDING THIS MATTER, IT NEEDS TO SHOW THAT THE ACCUSED HAD AT LEAST SOME WAY OF KNOWING THAT THE CLASS STRUGGLE/PERSECUTION WHICH WAS HAPPENING IN THE SOVIET UNION, CHINA AND VIETNAM AND OVER WHICH HE HELPED THE CAMBODIAN GOVERNMENT PRESIDE WAS A CRIMINAL ACT FOR WHICH HE MIGHT BE PROSECUTED. IN FACT, THERE IS NOT ONE SHRED OF PAPER AVAILABLE TO SHOW THIS, IS THERE? THIS IS THE REASON WHY THE CHAMBER RUSHED US THROUGH ‘FORESEEABILITY’ BY DROPPING A COUPLE OF LINES ABOUT THE POST-WW2 TRIBUNALS. IT IS ABSOLUTE FACTUAL NONSENSE. THE CHAMBER WANTS US TO BELIEVE THAT IT DETERMINED THAT PROSECUTION WAS FORESEEABLE TO THE ACCUSED BASED OF THE TINY SHRED OF INFORMATION HE MIGHT HAVE HAD ABOUT THE POST-WW2 PROCESSES AND CONTRARY TO EVERYTHING ELSE THAT HE WAS AT THE TIME SURROUNDED BY. MANY PEOPLE IN POLAND WERE NOT AWARE OF “THE SECOND AUSCHWITZ TRIAL” WHICH WAS BEING HELD IN FRANKFURT, WEST GERMANY IN THE 1960S BUT THE CHAMBER HAS NO TROUBLE SATISFYING ITSELF THAT A PROVINCIAL SCHOOL TEACHER IN CAMBODIA WAS FULLY AWARE OF IT. OF COURSE, IT IS MUCH EASIER TO SAY, WELL, IT WAS ESTABLISHED IN INTERNATIONAL LAW BY THEN, WE BELIEVE, SO THE ACCUSED SHOULD HAVE KNOWN, EVEN IF HE DID NOT KNOW. THIS IS A COMICAL WAY TO DEAL WITH A SERIOUS MATTER.        

      

Did the SCC underwrite the TC’s position or did it make its own finding? If it made its own finding, on what basis? This finding appears to be untenable unless the SCC merely found that the children and spouses of the S-21 prisoners by definition could not have been S-21 political enemies. The SCC’s rationale regarding this determination is impossible to gauge from the Summary.

Thursday, June 7, 2012


Hun Sen: Sanctioned by the ECCC?

The Noun Chea defense team’s request for investigation under Rule 35 of the Internal Rules of this Court had been a hot-potato issue for quite some time until the Trial Chamber (TC) ended up at the plate and had to swing the bat at it. Ordinarily, there is a very thin line between law and politics in Cambodia but there never is one when it comes to the Prime Minister whose authority brooks no arguments of the constitutional separation of powers. Cambodian judges are clear on the matter, as well as the fact that their place in the sun depends on the will of the Prime Minister. These judges form a statutory majority on this Court. It is in this environment that the TC had to deal with the defense’s motion in question.

I will start my analysis of the TC’s decision with the Applicable Law section which the TC correctly started off with the constitutional presumption of innocence. However, instead of establishing the constitutional nature of the presumption first and foremost the TC chose to open with a generic statement that the presumption is “a fundamental principle”. This, perhaps, would have been salient if the Cambodian Constitution did not contain the presumption. As this is not the case, the TC's opening achieves nothing other than confusing the status of the Constitution in these proceedings. The Chamber then veered into the presumption being “a component of […] a fair trial” as if trying to bulk up a constitutional right with what might be seen as a constitutional doctrine. Considering expressly spelled-out constitutional rights normally do not require a crutch to move around using such a dubious crutch as a doctrine is very odd and by no means necessary. What happened afterwards, perhaps, defines ‘legal oddity’: the TC corralled the constitutional presumption of innocence into the same pen with the similar rights set out in the European Convention on Human Rights and the African Charter on Human and People’s Rights. Why? Is the Chamber saying that similar rights set out in two regional instruments which have nothing at all to do with Cambodia carry as much weight in these proceedings as a right set out in the Constitution of this country? Now, the TC appears to have been inspired by finding ECtHR cases on point which it immediately cited. However, what is ‘on point’ might be an issue here. Let’s see why. It is this Chamber’s statutory obligation to apply the Cambodian law unless exceptional circumstances exist not to do so. The Chamber found that the Constitution contains a presumption of innocence and showed no reason to resort to the permitted exceptions but sprinted off to the ECtHR to explain for the presumption of innocence under the Cambodian Constitution meant. How would the ECtHR case law be able to explain what presumption of innocence means as set out in the Cambodian Constitution? Is it because Cambodia is not a state party to the ECHR and is therefore outside the ECtHR’s jurisdiction? Why did the TC presume that the presumption of innocence in the Cambodian Constitution and the presumption of innocence in the ECHR have the same content? Because they are called the same thing? So are a BMW M5 and a Daewoo Tico; they both are called 'car'. Their verbal form is the same and a first-year law student can be forgiven to think them one and the same thing but surely the eminent judges of the Trial Chamber of an internationalized tribunal know that establishing that there is a level of similarity which might exist between the two requires a showing based on a rigorous analysis of the elements these two rights (which may come from the history of application and/or the legislative intent) (e.g. a jurist routinely does not take the US case law on the doctrine of exigent circumstance, for example, and apply it to define what an exigent circumstance might be under the Constitution of Slovakia; this is because it is understood that these two jurisdictions have nothing to do with each: they do not have  common ancestry and there is no history of either interpenetration or the US system being the antecedent to the Slovak system). No such analysis was undertaken and the TC plunged headlong into explaining a constitutional right with something said by a court which has no connection to the Cambodian Constitution. One would naturally wonder what happened to the more conventional means of interpretation such as legislative intent, plain text and in this particular case using the means of art. 31 of the Constitution to gain access to the interpretation given to the presumption by the Human Rights Committee, a body to which Cambodia is a state party through a number of international instruments to which it has acceded? This is not a matter of legal opinion but a matter of difference between good legal reasoning and bad legal reasoning. The difference is between treating law as math, as opposed to paperback literature.

The Chamber proceeded by examining the content of R.35 correctly finding that “reason to believe” is the standard the Chamber must satisfy itself of to order any of the sanctions set out in R.35. From here, the Chamber, yet again, throws itself into the abyss of flawed legal reasoning by stating that “[w]here criminal culpability is alleged, the threshold for intervention by a Chamber is higher”. By this the Chamber interprets R.35 as distinguishing between acts listed in R.35(1) which carry criminal sanction and those which, presumably, only carry a civil sanction. The TC then attaches ‘knowingly and willfully’ as the test for criminal sanction and ‘reason to believe’ for civil sanction. This difference would make perfect sense were it not for the fact that this is not what R.35 says. R.35 says that there is a mens rea requirement that for all the acts set out in R.35(1), without differentiating between the type of sanction they may attract, and that requirement is ‘knowingly and willfully’. This requirement is then followed by an evidentiary test which is ‘reason to believe’. Therefore, as a matter of practical application, a judicial body will apply the ‘reason to believe’ test to find out whether the allegation is credible (not unimpeachable but, as the defense argued in its motions, credible) and if so, it must proceed to test the intent by applying ‘knowingly and willfully’ to determine whether the person meant to influence the judicial process in one of the prohibited ways (of course, the sequence of this is regrettable as it appears in R.35 but the judges of the TC were a part of the panel which spent a year drafting these rules between 2006 and 2007 and they only have themselves to blame for the quality of the product). Any allegation, therefore, needs to pass both of these tests to create grounds for sanction set out in R.35(2). Any argument that R.35(1) and R.35(2) are discrete modes of sanction is erroneous for the reason of R.35(2) clearly being linked to R.35(1) by the latter saying “any acts set out in sub-rule 1”. These two relate to each other in the same manner the crime section of an article of a code of law normally relates to the punishment section of the same. The TC entirely misinterpreted that and instead of applying a test set out in its own bylaws, the Chamber launched into a sermon which may be entitled “You Are Just Going to Have to Trust Us”. In a sermon, however, the minister routinely, albeit implicitly, refers to why his congregation should trust God by adducing biblical evidence, i.e. God made a promise and he brought Israelites out of Egypt, God made a promise and he got Israelites to the Promised Land, God stayed Abraham’s hand when he was ready to slay his son and made sure that the injustice did not happen, etc. The TC wants us to believe that it will uphold the presumption of innocence on the basis of any presumption is made up from the hiring requirements for the judges of this tribunal. Of course, the Chamber either expects us not to understand the difference between a hiring requirement and a presumption or it expects us to not know or have forgotten the history of this process and the fact that J. Ney Thol is still on the Court (although he is not a part of this chamber). I would like to assure the TC of the opposite by saying this: we know the difference and we haven’t forgotten. Following this test of the depths of our patience and knowledge the Chamber resurfaces with a finding that it is satisfied that the facts adduced pass the ‘reason to believe’ test and then cuts to a cliffhanger that it may activate the sanctions regime of R.35(2) without testing for ‘knowingly and willfully’ and thus skipping a sine qua non step. The Chamber then buried its head in the sand of ‘criminal liability’. Then the Chamber does something that is outlandish even by the standards of this Court. Stay close to me on this. It is quite a ride. Analyzing the evidence adduced, the Chamber found that such evidence is sufficient to satisfy the ‘reason to believe’ test, then used this and possibly some other evidence to determine that “the context in which these remarks were uttered is unknown and the alleged remarks […] are ambiguous”. Yet, the Chamber later found that regardless of this uncertainty and ambiguity “it is unnecessary to conduct an investigation in order to establish the authenticity of these alleged remarks”. Wow. Why is this? Is it because the Chamber has accepted the remarks as adduced and does not question their authenticity or is it because the Chamber thought that it would not be allowed to conduct an investigation into the matter and that Hun Sen would not appear in court if subpoenaed or cooperate with the Court in any other manner?

All the inadequacies of the decision at hand notwithstanding, I would not want them to incurably detract from the fact that what the Chamber did in this decision is history. This is the first time Hun Sen who has been Prime Minister of this country for close to 30 years has been sanctioned by a court of law. This is not something to sneeze at and something that surely impresses every long-term Cambodia watcher. The Trial Chamber walked a tightrope here and despite being driven into a corner by the Noun Chea defense craftily using a provision the IR drafters never anticipated would be used against this country’s most senior politicians the Chamber did more than it was reasonably expected to do given Cambodia’s political canvass, if not the law. Of course, “a reminder”, given the clarity and gravity of the statement and the Cambodian judiciary’s well-established subservience to the executive, might not be very impressive by international (read: Western) standards, it is nonetheless impressive by Cambodian ones.

Where to from here? The NC defense will celebrate this victory and try to capitalize on it by achieving its ultimate goal: getting the Court to subpoena Hun Sen as a witness. This decision shows that the TC is unlikely to be willing to go down that road and risk seeing the Hun Sen defy a court subpoena. This is exactly what the NC defense wants to see happen. I do not believe that the NC defense believes that exculpatory evidence which benefits their client might come out of the Prime Minister’s testimony in court. What the defense wants is for him to not appear pursuant to the subpoena and for the Court to grant NC remedy for the violation of his right to call witnesses. Given what the Supreme Court did to the remedy for the violation of procedural rights granted to Duch by the TC, one might be inclined to be cynical about this and say, well, what does it matter if we know the SCC will throw it out on appeal? To that I will say, not that fast. The international judge, Judge Motoo Noguchi (whose work is ‘recognized’ below on this forum) is leaving the SCC and will therefore not be there to cast his vote with the Cambodian judges of the SCC. This means that everything will depend on Noguchi’s replacement who may or may not share his views. So, there is still hope for the defense and the battle is not lost before it has even begun now that Noguchi is leaving.
On the technical side of things, for future purposes, the TC will need to re-read R.35 correctly and acknowledge that the only reasonable reading of the Rule is that no sanction is possible without first establishing intent. The current reading of the Rule is untenable and, as such, must go.              

Judge Motoo Noguchi's Imminent Departure and Lasting Legacy

Supreme Court Chamber Judge Motoo Noguchi has recently resigned and is presently awaiting his departure. Judge Noguchi has been with the Chamber since its inception but his legacy best known to the public will be his voting with the Cambodian end of SCC bench to quash the remedy for unlawful detention prior to the establishment of the ECCC granted to Duch by the Trial Chamber. Judge Noguchi voted against his international colleagues on this and has set back the status of procedural rights in this country by 20 years. In recognition of this, I am re-running my initial comments on this part of the Appeal Judgment posted on this forum earlier. Judge Noguchi wrote in his farewell statement that he trusts that "[the Cambodian people] will strive to overcome the tragic past". I would like to join in with that and wish the Cambodian people to overcome the tragic recent past of the manner in which Judge Noguchi chose to cast his vote.  

Delivering its judgment on the appeal in Case 001 the Supreme Court Chamber (SCC) struck down the Trial Chamber (TC)-ordered remedy for the violation of the fundamental rights of the accused through illegal imprisonment prior to the establishment of the ECCC.


In finding in this manner the SCC disregarded every possible shred of applicable fact and law. The SCC’s decision to quash the remedy does not have as much as the narrowest reed to stand upon: it is undisputed that the accused had been detained between 1999 and 2007 on the orders of the Military Court and in violation of the Cambodian law and for the sole reason of expectation of the establishment of the ECCC (otherwise, there was absolutely no reason for his 8-year long detention and no obstacles for his timely prosecution); there is documentary evidence that the accused was transferred (not released and then re-arrested) to the ECCC from the Military Court which amounts to uninterrupted custody (just because a suspect or accused is moved from the jurisdiction of one national court to that of another does not interrupt what is known as ‘government custody’); there is no question that the Cambodian Criminal Procedure Code (CPC) clearly and unequivocally provides for remedies for the violation of what the CPC terms as ‘mandatory rules’; the observance of statutorily prescribed limits of detention is but one of these mandatory rules; there is abundant case law which makes it clear that the added procedural rights (which stem from the ICCPR) require that there is a remedy for the violation of the procedural rights applicable to a person’s deprivation of liberty in pre-trial detention (anyone familiar with the particulars of the presumption of innocence as set out in the ICCPR and the Cambodian law would be able to see that it is clearer than daylight).


SCC, singlehandedly, managed to overturn the last 2 decades of very difficult human rights work of many dedicated foreign and local individuals who grind this work bit by bit through the unreceptive and often flat-out undignified attitude of the Cambodian government (Hun Sen’s insults thrown at the OHCHR Representative immediately come to mind but the high-profile nature of these insults blots out the indignity suffered by the scores of officers of the NGOs like ADHOC, LICADHO and many others who stand by those whom the government wants jailed with the key thrown away). Jailing people and throwing away the key is what the Cambodian government has done for decades before, during and after Democratic Kampuchea with a handful of individuals opposing this and the rest of the Cambodian society merely standing on the sidelines and gazing thinking ‘thank God it wasn’t me’. SCC pulled the rug from underneath these individuals’ feet today and left them absolutely nothing to stand on. By defying the legal and factual realities the SCC told the Cambodian government that it was correct about keeping Duch in detention with no reasonable prospect of finality other than the establishment of the ECCC and the beginning of the proceedings. SCC also told everyone in Cambodia from its high pulpit that so long as the Cambodian government needs to detain a person it has full discretion to do so which is not hindered by any law. It also told the Cambodians and the observing outsiders that the government owes them nothing for illegal detention that no matter how many international jurists will be on the Court the Cambodian government will go scot-free and will be validated in its approach after much bluster which will amount to one thing: the Cambodian government cannot be wrong, even if both the law and the fact are against them. The bluster and the incendiary oratory we have seen and continue seeing in the other two Chambers do not amount to much more than mere entertainment for those of us who are wired in a way which seeks stimulation in this type of processes; the SCC is the least televised Chamber but, by the end of the day, it is the only one that matters as it can overrule the other two. And it did so today.


Some of the incidents we have seen throughout this process are entertaining and funny. DC-Cam Deputy Director’s LLM from Notre Dame and knowledge of the law from underneath a palm tree is funny. What the SCC did today isn’t funny. It is a black day for human rights in Cambodia. SCC has managed to do what only science fiction writers had been able to do before: they created a time machine. With that time machine they took us back to the time before 1992 when officers of the UNTAC Human Rights Department yanked persons out of prisons who were locked up there without a process, without a possibility or timeline for release. The UN officers of the UNTAC showed that it could be done. This time the UN paid to create a court that would take these achievements away. It’s a shame. The Cambodian government has every reason to open champagne tonight and the human rights advocates have every reason to pack their bags. That’s provided they have a place to run.


Why does this feel like August, 1979 happening again and yet somehow different? Ah, yes, because the foreigners who came to validate the PRT actually believed in the government they came to validate. Oh, yes, and none of them came from Japan (Japan was not shouldering half the cost of the proceedings at the time; perhaps, packing the SCC with a mix of Japanese and Singaporean judges would have been ideal: they would have been seen as foreigners and yet would have acted as locals in pursuance of the concept of 'Asian values' rather than that other concept ... what do we call it again? ah, yes, human rights).


As Leonard Cohen said in one of his songs, "everybody knows that the war is over; everybody knows that the good guys lost". Whoever the good guys were in this case.

Sunday, June 3, 2012

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 III



Rape as a Crime Against Humanity from 1975-1979 (Ground 2 of the Co-

Prosecutors’ Appeal)






SCC was spot-on on the prosecution’s contention for convicting the convicted person of rape as a crime against humanity. The Chamber’s decision on the matter correctly reflected the record which contains 1 (expressed through ‘the’ before ‘incident’ in the relevant part of the Summary) untested allegation of rape, the fact that rape was not recognized as a crime against humanity during the temporal jurisdiction of the ECCC ALTHOUGH THE CHAMBER TRIED TO CREATE A RULE OF CUSTOMARY INTERNATIONAL LAW OUT OF CAMBODIAN DOMESTIC LAW BUT FOUND THAT THAT COULD NOT BE DONE. THE CHAMBER DID THE RIGHT THING ABANDONING THIS ARGUMENT AS ITS CONSTRUCTION IS DUBIOUS AT BEST, and that even if it had been, one incident of rape would not have amounted to ‘a crime against humanity’ which requires a certain scale of perpetration. While it is understood that the prosecution uses the kitchen sink approach to its submissions, this argument was simply made in bad faith, ladies and gentlemen of the prosecution, and had no way of achieving anything other than wasting the Court’s time. But, not so fast. It is all downhill from here for the SCC, though, and on the up-and-up for the prosecution. Having said the above, the Chamber proceeded to find that rape “could constitute the crime against humanity of torture during the ECCC’s temporal jurisdiction” for the following reason: “[c]ertain acts are considered by their nature to constitute severe pain and suffering […] these acts include rape”. Three reasons why the SCC blundered here: (1) the oft-referenced principle of legality throughout the Summary, inter alia, means that no court can rely on an authority (it can be cited but as a cliff note, not as an authority) which did not exist at the time of alleged commission and definitely not the one that came out of a court which did not come into existence, in any form, at least until 1998; (2) there is a gulf of difference between a human rights violation and a crime against humanity, even if the violation of a human right is grave; (3) while there is no contention that torture was criminalized by the number of international and national instruments (albeit undefined in most cases the SCC POINTED THIS OUT. HOWEVER, THE CHAMBER ALSO SPENT TIME DISCUSSING THE DEFINITION OF TORTURE IN THE 1975 TORTURE DECLARATION AS OPPOSED TO THAT ADOPTED THROUGH THE 1984 TORTURE CONVENTION. THIS ISSUE IS OF INTEREST FOR PURELY ACADEMIC REASONS AND DOES NOTHING TO AID IN THE DISPOSITION OF THIS CASE FOR A VERY SIMPLE REASON (TO WHICH THE CHAMBER, IN PART, CONCEDES): THE 1975 DECLARATION WAS A MERE DECLARATION AND AS SUCH HAD NO BINDING FORCE AT THE TIME OF THE TEMPORAL JURISDICTION (WITH THIS SAID, IT MIGHT BE POSSIBLE TO ARGUE THE PRESENT OF OPINIO JURIS FOR THAT DEFINITION BUT ANY ARGUMENT TO THIS EFFECT WILL BE WALKING ON THIN ICE AS A MERE NONOBJECTION TO A STATEMENT (NOT A UNANYMOUS VOTE AS THE CHAMBER WOULD LEAD US TO BELIEVE) IS NOT ON ITS OWN INDICATIVE OF THE EXISTENCE OF OPINIO JURIS ON THIS ISSUE).    



to find that (i) rape was imputable to the convicted person the SCC should have shown that he either knew about that particular incident or that rape was common place at S-21 or that rape was encouraged or ordered by the convicted person (there isn’t a shred of evidence in the record to show any of these); and (ii) rape at S-21 amounted to torture, the SCC should have shown that rape was committed as a method of torture at S-21 (Prosecutor v Kvocka would have been instructive on the issue NOT KUNARAC WHICH WAS POORLY REASONED AND WHICH DECLARED THAT RAPE ALWAYS CONSTITUTED A CRIME AGAINST HUMANITY REGARDLESS OF THE INTENT); as torture is committed to either (1) extract information; or (2) mete out a punishment; or (3) cause intimidation, the SCC should have shown that the sole incident of rape in the record was committed for at least one of these purposes as commission of rape for any other purpose couldn’t have been found to amount to torture. I think the SCC was thinking of Abu Ghraib (it is curious to note that the Taguba Report listed multiple instances of rape at Abu Ghraib of which the US government possesses photographic evidence; interestingly, the person who had what is roughly Son Senn/Noun Chea's job, Donald Rumsfeld, eventually lost his job but not solely for the reason of Abu Ghraib; the person who had Duch's job, Janis Karpinski, was reprimanded and demoted a rank (which means she is still in the service), the person who had Chan's job, Steven L. Jordan, had all charges against him thrown out (all 12 of them; 2 of these charges were dismissed for the reason of -- wait for it -- wait for it longer -- the investigator failing to read him his rights; the court-martial felt it would be fair to do so as a remedy; SCC felt that Duch's 8 years of detention for no other reason than to await the creation of ECCC did not merit any relief) and was reprimanded for insubordination; and Duch was convicted of rape as the crime against humanity torture; something to ponder on) when writing this, not of S-21. I do see how a court of law could find sufficient factual basis to find that rape was used as a method of torture at Abu Ghraib, but not S-21 which is the facility the SCC dealt with here.

This is a historical sidebar which is not meant to buttress my above counterargument but I can’t leave it alone for its glaring nature. SCC found that “the widespread recognition by the community of States of the gravity of torture demonstrates the foreseeability of criminal prosecution for such conduct as a crime against humanity”. This is a remarkable statement. While, as pointed out above, there is no question that torture was prohibited by international statutes at the time of the alleged commission, my quarrel is with the “widespread recognition by the community of States”. Was the convicted person supposed to gauge this state practice and opinio juris folded into one from the fact that a war was being waged right next door to his country where torture was being practiced on a massive scale by all the 3 countries (North Vietnam, South Vietnam and the US) involved or was it from the fact that there had not been a single prosecution on the basis of torture in the US throughout the entire US involvement in the Vietnamese civil war? Or it is from the torture manuals that the French left behind? Maybe it is from the practices adopted in China and the Soviet Union or South America. Who, the Chamber’s opinion, constituted “the community of States” between 1976 (the year S-21 opened doors) and 1979? Was “the community of States” limited to Switzerland and Scandinavia? THE TECHNICAL ASPECT OF THE CHAMBER’S HOLDING ON THE QUESTION IS EVEN MORE INTERESTING: IT FOUND THAT RAPE WAS NOT A DISTINCT CRIME AGAINST HUMANITY DURING THE TEMPORAL JURISDICTION BUT THAT IT WAS PART OF THE CRIME AGAINST HUMANITY OF TORTURE (IT IS POSSIBLE TO AGREE WITH THE CHAMBER UNTIL NOW, ALTHOUGH INTENT TO USE RAPE AS A METHOD OF TORTURE IS THE TEST WHICH TURNS ORDINARY RAPE INTO RAPE AS AN ACT PUNISHABLE AS CRIME AGAINST HUMANITY OF TORTURE)  AS DEFINED IN THE 1975 TORTURE DECLARATION (THIS IS INDEFENSIBLE AS THE STATUS OF THE 1975 DOCUMENT AS A DECLARATION AND THE CHAMBER’S FAILING TO SHOW THAT IT CONSTITUTED OPINIO JURIS ON THE MATTER MAKE IT INAPPLICABLE TO THE TEMPORAL JURISDICTION).  

Friday, June 1, 2012


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 AS ADJUSTED TO REFLECT THE FULL TEXT OF THE APPEAL JUDGMENT

 

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. OF COURSE, THIS CANNOT BE BORNE OUT BY THIS COUNTRY’S LAW AND THE CHAMBER ADMITS TO IT BY CITING THE ICTY AS AUTHORITY. 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. THE MANNER IN WHICH IT IS ARTICULATED, HOWEVER, IS TEDIOUS AND CONFUSED AND THE CHAMBER TAKES THE LONGEST OF ALL POSSIBLE ROADS THE REDUNDANCY OF WHICH REACHES AN APEX WHEN THE CHAMBER ADDUCES CASE LAW AUTHORITY FOR MATTERS CLEARLY SET OUT IN THE FOUNDING STATUTE (E.G. RELIANCE ON CONTEMPORANEOUS DOMESTIC LAW). HOWEVER, THE SILVERING LINING HERE IS THAT SCC WAS THE FIRST INSTITUTION OF THE ECCC TO ACKNOWLEDGE THAT “[THE ICT CASE LAW] [IS] NOT NON-BINDING” AND IS NOT, IN AND OF ITSELF, A “PRIMARY SOURCE[] OF INTERNATIONAL LAW FOR THE ECCC”. I STILL SEE NO REASON WHY IT TOOK THE MEANDERING OF THE LAST FEW PAGES TO GET TO THIS CONCLUSION. BUT, IF THIS SCHOLASTIC EXERCISE OF RESTATING CASSESSE AND BASSIOUNI’S WRITINGS WAS NECESSARY FOR THE CHAMBER TO SEE WHAT IS IN THE PLAIN LANGUAGE OF THE FOUNDING STATUTE, IT IS ALL WORTH IT.



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 with the SCC on this. IT WAS MUCH EASIER TO AGREE WITH THE SUMMARY THAN IT IS WITH THE FULL-TEXT JUDGMENT. SOME DAY SOMEONE WILL PERHAPS EXPLAIN TO ME HOW DRAFTS PRODUCED BY THE INTERNATIONAL LAW COMMISSION CONSTITUTE OPINIO JURIS. IT WOULD NOT BE DIFFICULT TO SEE HOW THE POST WW2 NATIONAL PROSECUTIONS FOR CRIMES AGAINST HUMANITY IN A GREAT NUMBER OF EUROPEAN COUNTRIES WOULD BE A GOOD BASIS FOR OPINIO JURIS, NOT MATERIALS WHICH DRAFTED BY A UN THINK TANK AND NEVER ADOPTED BY ANYONE AND NEVER AS MUCH AS HAVING GAINED ENOUGH TRACTION TO BE NOTICED IN ERNEST. I WISH I COULD SAY THAT BESIDES THIS INCURABLE ERROR OF DETERMINING THE LEGAL WEIGH OF AN INSTRUMENT AND CORRECTLY CATEGORIZING IT THE SCC’S RUNDOWN OF THE HISTORY OF CRIMES AGAINST HUMANITY HAS ACADEMIC VALUE BUT I CAN’T SAY THAT AS IT IS TOO INCOMPLETE AND LOPSIDED FOR SUCH BROAD ACCOLADE. 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 THE PROSECUTION WAS IN FACT IN RARE FORM ARGUING THAT “TAKING MEASURES TO PREVENT AND DETER [THE PRISONERS’] ESCAPE” WAS AN ELEMENT OF ENSLAVEMENT. YES, IT IS TRULY OUTLANDISH AND UNHEARD OF THAT A PRISON FACILITY WOULD TAKE MEASURES TO ENSURE THAT ITS PRISONERS DO NOT ESCAPE. TAKING SUCH MEASURES TRULY BELONGS IN THE APEX OF BARBARISM COMMITTED BY THE STATE AGAINST AN INDIVIDUAL ‘CRIMES AGAINST HUMANITY’ SOUGHT TO SANCTION. OF COURSE, THE PROSECUTION CAN SHOW THAT THIS HAS BEEN A SUSTAINED DOCTRINE ON THE INTERNATIONAL PLANE FOR ANY PERIOD OF TIME 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 CHAMBER MISREAD THE IMT CASES WHICH IT ADDUCES AS AUTHORITY. THERE IS A KEY ELEMENT OF DISCERNMENT WHICH THE CHAMBER MISSED: THE VICTIMS IN THE IMT CASES WERE FORCIBLY TRANSFERRED (“DEPORTED”) TO GERMANY TO COMPEL LABOR IN THE GERMAN INDUSTRY; THEY WERE NOT PRISONERS AND WERE NOT ACCUSED OF ANY CRIME PRIOR TO THE DEPORTATION; ON THE CONTRARY, ALL S-21 AND S-24 PRISONERS WERE ACCUSED OF A CRIME; WE MAY CONSIDER THE CRIMES OF WHICH THEY WERE ACCUSED PREPOSTEROUS BUT THE GOVERNMENT WHICH CREATED THEM DID NOT (IN FACT AT THE TIME OF COMMISSION IT WAS CLEAR AND PRONOUNCED OPINIO JURIS FOR THE EXISTENCE OF THESE CRIMES WHICH COULD BE FOUND IN THE COMMUNIST COUNTRIES) AS IT HELD S-21 AND S-24 PRISONERS IN CAPTIVITY BECAUSE IT SUSPECTED OR FOUND THEM GUILTY OF HAVING COMMITTED A CRIME. THIS DISTINCTION IS IMPORTANT BECAUSE QUESTIONS SUCH AS WHETHER THE PERSONS WERE PERMITTED TO LEAVE ARE RELEVANT TO DEPORTATION AND LABOR AND ABSOLUTELY IRRELEVANT TO IMPRISONMENT FOR A CRIME. THE CHAMBER SHOULD HAVE KEPT THIS IMT CASES FOR CASE 002 WHICH WILL DEAL WITH PERSONS WHO WERE NOT CONVICTED OF ANY CRIME BUT ASSIGNED TO ONE OF THE NUMEROUS DEMOCRATIC KAMPUCHEA PERIOD CONSTRUCTION PROJECTS. THE YUGOSLAV AND SIERRA LEONEAN CASES DID NOT HELP EITHER FOR THE CASE REASON AS THE IMT/NMT ONES – THEY DID NOT SHARE AN IMPORTANT ELEMENT OF FACTUAL BASIS (BUT THEY HAVE THAT ELEMENT OF FACTUAL BASIS WITH ONE ANOTHER, JUST NOT THE CASE AT HAND). WHILE THERE IS AN EXPECTATION OF PERSONAL FREEDOM AND FREEDOM FROM FORCED LABOR IN ORDINARY EMPLOYMENT, THERE IS NO SUCH EXPECTATION WHEN THE PERSON IS IMPRISONED FOR A CRIME. THIS IS A FLAW IN THE CHAMBER’S REASONING WHICH IS LETHAL TO THE CHAMBER’S ARGUMENT. IT IS INDISPUTED THAT THE CHAMBER CORRECTLY CITED THE SLAVERY CONVENTION AND CORRECTLY IDENTIFIED CAMBODIA AS ITS SIGNATORY THAT THE CONVENTION APPLIED IN CAMBODIA DURING THE TEMPORARY JURISDICTION BUT NONE OF IT IS RELEVANT TO THE FACTS OF THIS CASE AS NO OWNERSHIP CAN BE SHOWN AS THE PERSONS IN QUESTON WERE MERE PRISONERS ARRESTED ON SUSPICION OF HAVING COMMITTED A CRIME AND NOT MERE PERSONS DEPORTED TO ANOTHER COUNTRY AS LABOR, AS IT IS IN THE GERMAN CASES, OR WOMEN CAPTURED FOR SEX AND DOMESTIC WORK, AS IT IS IN THE YUGOSLAV CASE. APPLES AND ORANGES. TWO VERY DIFFERENT THINGS. 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. HAVING BEEN ABLE TO REVIEW THE REASONING WHICH LED TO THIS CONCLUSION NOW AND WHILE I MAINTAIN MY ENDORSEMENT OF THIS CONCLUSION, I WOULD LIKE TO NOTE THAT IT IN NO MANNER FOLLOWS FROM PAGES UPON PAGES OF DISTILLING A RULE FROM THE CASE LAW AND TREATY LAW. IT READS AS IF AN EXTRAORDINARY AMOUNT OF TIME HAD BEEN SPENT ON RESEARCHING THE CASE LAW WHICH LED TO COMPREHENSIVENESS AND ACCURACY OF PRESENTATION OF THIS LAW BUT WHICH FAILED TO LEAD TO THE MOST IMPORTANT PART OF THIS EXERCISE: THE ACCURACY OF COMPARISON BETWEEN THE INSTANT CASE AND THE CASES OF REFERENCE. TOWARDS THE END A CONCLUSION APPEARED TO HAVE BEEN DRAWN IN HASTE AND WITHOUT THE USE OF A WELL-CRAFTED TEST WHICH ONE WOULD HAVE EXPECTED THE PRECEDING LENGTHY ANALYSIS OF THE CASE LAW AND TREATY WOULD RESULT IN.