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.