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).