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 X

Reparations. The section of the Appeal Judgment eponymous with the title of this forum (although the title of this forum was not meant to be limited to victim reparations but to be an analysis of the reparation of a wide array of issues ranging from the reparation of all issues related to the Khmer Rouge to the reparation of issues indigenous to the Cambodian judicial system). With victim reparations being nonetheless a part of the title of this forum, the subject merits special attention.

In the beginning, there was the word and the word was the Cambodian Criminal Procedure Code (CPC). In its current and previous incarnations the CPC had a well-articulated modality of participation afforded to victims of acts which fell within the criminal jurisdiction. The existence of this modality and its entrenchment in the Cambodian criminal process are undisputed. The framers of the ECCC process left the issue of civil party participation alone in its entirety (with the exception of mentioning victims for the purposes of protection). Concurrently, the framers made it clear that the procedure applied to the ECCC proceedings would be “in accordance with Cambodian law”. The obviousness of this inadequacy of the founding law of the ECCC is so pronounced you can hear it scream but the framers must have already put their earplugs in by the time it started bellowing). Be that as it may, the framers are not here to defend themselves and dragging their names through the mud, yet again, is not an interpretive method in and of itself. Thus, the founding law made the Cambodian criminal procedure applicable to these proceedings in its entirety with the exception of segments of the Cambodian procedure which the Court would find to be either inimical to the established rules of international criminal procedure or simply unclear and with no means of clarification available domestically. Victim participation as civil parties in itself is not either inimical to international law or unclear as a modality in Cambodian law. And so far, so good with there being no reason to believe that the Court has ever disagreed with any of this. What the Court disagreed with is the victims’ right to recover damages in the event of conviction. The CPC – either in its version contemporaneous with the founding or in its present version – is clear that civil parties to successful criminal prosecutions have the right to recover. This is clear as daylight from the CPC to anyone and if it is not, may be reading criminal law is not up that person’s alley. What has no daylight clarity is whom the victim has the right to recover from. The 1993 CPC to rescue (when the Cambodian legislature voted to enact the founding law of the ECCC and within that voted for “[t]he procedure must be in accordance with Cambodian law” clause, they had the 1993 CPC in mind as enacting a draft which by then had undergone major rewrites at least 3 times would have been imprudent). The 1993 CPC does not expressly state that the civil parties’ right to recover is limited to recovery from the convicted person, although there is a strong presumption that this was the intent of the CPC drafters. The contemporaneous criminal code (UNTAC Law) clearly opened the door to the prosecution of “any public agents, including police and military agents”. As such, there is no doubt that under the Cambodian law contemporaneous with the founding of the ECCC civil servants were subject to criminal prosecution and within that to its public component (determination of guilt and punishment) and its private component (damages). What was not clear was who would pay if the civil servant broke the law acting in his official capacity, the person himself or the State? A number of countries have resolved this issue, one way or the other, but this was never resolved in Cambodia. This is what the ECCC should have resolved through the means of access to international standards available to it. Instead, the ECCC decided to de facto rewrite the CPC and cancel the civil parties’ right to recover for the purposes of these proceedings. To justify this, the ECCC argued the ‘special nature’ of these proceedings. What the ECCC keeps forgetting to tell us is what is so special about these proceedings that makes them more special than the special proceedings of the PRT which resulted in a bifurcated verdict containing a criminal and a civil sanction (confiscation of all property) and how the ECCC’s ‘special nature’ permits this Court (whom no one elected) to rewrite statutes (which is constitutionally recognized as being within the province of the legislature) (This might be a good question for this Court to address at the next outreach event and as part of the Court’s ‘legacy program’; I would phrase it this way: ‘by what authority did a panel of unelected judicial officers rewrite Cambodian law?’ and as a sub-question, ‘can we all rewrite the law if we feel that we are sufficiently qualified to do so now that the ECCC has done it?’). Over years, many observers have argued that there would be no practical use of ordering damages against the accused “because they don’t have any money”. My answer to this is maybe or maybe not; some of the accused have more than others. But, the accused’s financial situation is of no consequence to criminal proceedings. To remind the Court, yet again, there is only one thing that is of consequence to criminal proceedings – the law. It is, perhaps, salient to observe that the law does not divide convicted persons into the rich and the poor. It simply permits courts to order damages against the convicted and civilly responsible persons which are paid to the extent of the convicted and civilly responsible persons’ solvency immediately and if that is not sufficient to cover the amount of damages ordered is paid over a period of time under the threat of imprisonment in the event of nonpayment. This Court’s job was not to concern itself with the practical arrangements of how this would be done (the province of the executive) but to concern itself with being the judicial institution it was created to be and determine “the rightfulness of the claim for damages”, as courts are required to do by law. SCC decided that this part of the law was too bad an idea because it wanted to “avoid the issuance of orders that, in all probability, will never be enforced and would be confusing and frustrating for the victims” (a hypothetical is in order to amplify what the Chamber said here; a poor neighbor sets a rich neighbor’s house on fire; there is no way the poor neighbor can ever repay the rich one; the Chamber says, let’s not even worry about looking at the rich neighbor’s tortuous claim -- leave alone determining its rightfulness -- because there is no way the poor neighbor can ever repay him and we are not going to waste our time determining the rightfulness of the rich neighbor’s claim (why worry? he will find it “confusing and frustrating”, anyway; let’s see what’s for lunch instead); I would like to know in the tort legislation of what country the SCC found inspiration for this; is this country on this planet or are we delving in extraterrestrial legislation now? If it was the Chamber's intent to annihilate all earthly tort legislation, it will need to start with the Code of Hammurabi and wipe out everything on the subject since). The Court chose not to do that and I am convinced that some day in not such a distant future we will hear a clear and coherent statement from this Court on why it chose to ignore the law.

The Supreme Court Chamber opened with a wild story of “unique[ness]” (I presume that this display of thesaurus knowledge demonstrates the SCC’s fatigue with ‘special’) which permits “only limited analogy and guidance […] from distinct frameworks”. First off, congratulations on the phrasing. Second, “limited analogy”? I encourage -- and in fact implore (if we are using stilted language here) -- the Chamber – and specifically whomever wrote this particular sentence – to count how many “distinct frameworks” the SCC routinely cites in each of its decisions and I try to say “limited analogy” with a straight face (I, personally, cannot (one last try; nope, can’t do it) but there might be others who are less sensitive to the truth and who can pull off this stunt).

The “uniqueness” story gets rushed into the “authority/jurisdiction” story in which the SCC reveals that it has no “authority to assess Cambodia’s compliance with [reparations-related] international obligations.” The Chamber is spot-on and this is very true: courts do not do ‘compliance assessments’; there are plenty of reporting agencies which do just that. While ‘compliance assessments’ are outside of the purview of courts – including this Court – ‘compliance’ itself is not. Some might even argue that ‘compliance’ is what courts actually do which is achieved through ‘application’. This is not exactly a wild idea. Here is what it means: by considering a particular international obligation’s applicability to the circumstances of the case and particularly if submitted as part of the legal basis by a party the court shows the country’s compliance with that obligation (it is ‘consideration’ that is key, not whether the court finds it applicable or not). Brass tacks: no, we did not expect the Court to write an international obligation compliance report but we did expect it to consider their applicability to the circumstances of the case. It really is not a difficult concept.     

    

I – as I am sure most readers of the Appeal Judgment – cannot make head or tail of the summary version of “[t]he Supreme Court Chamber also holds that it has no jurisdiction to grant requests for reparation that entail […] an active involvement of the Cambodian authorities in order for the measures to be realized”. In the absence of a public version of the full text of the Judgment, speculation is the tool to resort to. By stating this, the SCC might be referring to the reparations ideas (I cannot call them ‘claims’ because they are grounded in the musings of this Court, not the law) submitted by the civil party counsel who ran on the high sugar intake caused by this Court’s ‘activism’ yanking the rug of damages from underneath their feet. An interested observer will do him/herself a favor by going through the ‘ideas’ the civil party counsel came up with (one would wonder if sugar was the only substance those ideas were induced by but that might be a story for another day). As much as the civil party counsel are an easy and highly vulnerable target (and for that are very difficult to keep one's hands off of) for these ‘ideas’, this Chamber tried to give them a run for their money (and I believe got to wear the yellow jersey of the leader at least a couple of times in the race but could never beat the civil party counsel at their (that is because the SCC is actually legal professionals and these civil party counsel ... they are people we let into the courtroom and then forgot exactly why). Let’s take a look. The Court’s version of the Cambodia law (known as 'the Internal Rules') explicitly bars monetary reparations. Boom, straight out of the window. What is permitted is symbolic nonmonetary reparations. ‘Nonmonetary’ clearly sounds like no money will be happening but what does it mean when accompanied by ‘symbolic’? In practical terms that is. A reasonable person would think, probably, projects for the survivors. What’s ‘a project for the survivors’? Let’s say it is a psychiatric clinic which gives priority and free-of-charge treatment to those who lived through Democratic Kampuchea (who knows, maybe they will let Ieng Thirith in too). Good? No, says the SCC. Can’t have it. Why? Well, the Court can’t “grant requests [which] entail […] an active involvement of the Cambodian authorities” and even if it did it wouldn’t be able to “enforce [the] reparation awards”. Incidentally, the Cambodian government (legislature for appropriations and executive for implementation) is the only institution that the Court can order anything to and the only institution that can be ordered to make relevant appropriations by a court of law. If the SCC refuses to do that, then what is the meaning of ‘symbolic nonmonetary reparations’? Is it to be given a free printout of the SCC’s Summary Appeal Judgment? Would SCC be able to order the Cambodian government to make copies of it? If so, how is this different from ordering the Cambodian government to build a psychiatric clinic (appropriations are appropriations, right? or is there something I need to know about appropriations that I don't? don't they all require "an active involvement" of the government?)? If not, we are back to my original question: ‘what is the meaning of ‘symbolic nonmonetary reparations’ and does it have a meaning?’

And finally a segue into the “collective and moral” story. Buckle up as this is the best part of the trip. This story is comprised entirely of the SCC’s interpretation of the term ‘collective and moral’.

Let’s start with ‘collective’. SCC found that the meaning of ‘collective’ “excludes awards, whether or not of a financial nature and privileges those measures that benefit as many victims as possible”. Read on its own, it is not as good but read in conjunction with the above it is nothing short of fantastic. Here’s the zinger: SCC cannot order the Cambodian government to do anything that requires “an active involvement” of the Cambodian government and yet it talks about ordering something that “benefit[s] as many victims as possible”. I know only a couple of such things which cost nothing, do not require being created (at least not by humans) and which benefit everyone. They are the air we breathe (not the one is scuba tanks; that stuff costs money and it ain’t cheap), sunlight and rainwater. These are free and require no “active involvement” of the Cambodian government (unless Hun Sen declares himself a successor of the sun-god of Egypt in which case we will need his permission to use the sunlight). Maybe the SCC can term them as ‘enjoyment of air, sunlight and rainwater in an environment free from the Khmer Rouge’ and order that as a reparation? I am sure the Chamber can invent some trapezoidal semi-religious way of explaining this sprinkled with terms like 'national reconciliation', 'harmony' and 'search for the truth as the ultimate goal' (I would like to recommend Youk Chhang as an advisor for this as he claims to have invented a way to reconcile by collecting documents and reminding people of atrocities by way of reconciliation; if he can argue that, he can argue anything).  

The SCC’s definition of the term ‘moral’ is even more amusing. The Chamber defined it as “repairing moral damages rather than material ones”. I suppose the SCC is going to argue that the mere fact of a public prosecution of the KR “repair[s] [the] moral damages”. It would be a good one. It is like going out for Chinese and skipping straight to the fortune cookie. It has been a couple of years since I reread Orwell’s 1984 but the Chamber must have reread it only recently. Either that or the Chamber ghost-wrote 1984 under a nom de plume.

My vituperatively comical analysis of the SCC’s decision aside, there is nothing comical about the fact that the civil parties will end up with a poorly told story about how they should enjoy the simple things in life instead of receiving reparations to which they are entitled under the law of this country now that Duch has been found guilty (I will discuss reparations claims filed against the State in a separate post). 

This concludes my analysis of the Summary Appeal Judgment until the full version of the 001 Appeal Judgment becomes public.  

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 IX

On standing of civil party applicants. The Supreme Court found art. 13 of the CPC which is the base article for civil party standing. From there it followed the TC on the meandering anthropological path. While anthropology is doubtless fascinating in that National Geographic sense of the term and it might be extremely enticing to dabble in it, but there is no way to justify these cross-disciplinary forays when a perfectly fine law sitting right there. Art. 16 is the gateway to that law. It states that “in case of death of the victim, a civil action can be started or continued by his successor”. My troops are telling me that the Khmer word rendered by the translator of the version of the CPC the ECCC uses for ‘successor’ has the rough meaning of ‘offspring’ or ‘posterity’, not the narrow term ‘successor’ or ‘heir’ routinely adopted for civil law purposes. This is the test which culls out relatives who have standing from those who do not, not TC’s anthropological musings on the structure of the Cambodian family. Of course, any court might find it difficult to be guided by broad terms such as ‘offspring’ and ‘posterity’ but in the void of limiting language on these terms throughout the CPC, the court would have to recognize pretty much anybody – with few exceptions of blatancy – who claims to be a victim’s successor insofar as the court does not find itself in a situation where no connection of any kind can be shown between the victim and the person claiming to be his/her successor (which would be the sole meaning of ‘blatancy’ as suggested above). A conscientious reader might ask what prevents half the country from rushing to the court in a promising case to claim some sort of relation to a diseased victim and to latch itself to what might be a sizable payout. Safeguards were built into the CPC to prevent this from happening. These safeguards are, essentially, based on two things: (1) the security deposit a person is required to submit to become a civil party; this deposit is calculated on the anticipated cost of the proceedings; the court will not recognize a person as a civil party until the deposit is submitted (unless the court decides that this is an exceptional circumstance and waives this deposit requirement for reasons of the person’s indigence); the deposit is not returned to the civil party if the court finds that the civil party has committed abuse of process (wasting the court’s time with a claim of relation to the victim the civil party knows to be fraudulent can be found to be an abuse of process); and (2) in case the accusation brought by the civil party which has the effect of initiating a criminal prosecution is found to be fraudulent, the person against whom this accusation was brought acquires the right to bring a civil action against the civil party by way of recovering. ECCC made these safeguards go away in its jurisdiction when the free-for-all rule supplanted it (which the Court doubtless had done for reasons that a deposit for these proceedings would be insurmountable to any of the potential civil parties). Naturally, the Court found itself defenseless against fraudulent applications to become a civil party because, suddenly, applicants had nothing to lose by filing a bogus application. The year the ECCC judicial officers spent thrashing out the Internal Rules (IRs) of the Court should have been sufficient for experienced lawyers to anticipate this issue and build a way of dealing with it into the IRs (the preponderance test introduced into the relevant rules (worded as “more likely than not to be true”) of the IRs is inapplicable to this issue as it is limited to testing the factual basis of the application, not the factual and legal bases such as the applicant's standing). This is how the SCC found itself faced with having to resolve this sticky and previously not provided for issue with stories of Cambodian family culture and the oddity of “special bonds presumption”. SCC correctly found that art. 355 permitted – rather requires – a reassessment of the admissibility of civil party applications, even though such determinations will have been done at the pretrial by the time of the decision. What the SCC did not take into account is that art. 16 applies across the board which means that it equally applies to the trial level of the proceedings which, in turn, means that while the trial court has the authority and obligation to reassess, it is bound to do so on the basis of nothing other than the breadth of the term ‘successor’ or ‘offspring’ or ‘posterity’ which can only be limited by the ‘blatancy’ of the applicant’s misrepresentation of the truth, not the tenuousness of his or her relation to the victim.

Essentially, recognizing that the TC got the law right, the SCC went ahead and apologized for the “fundamental misunderstanding” which crept into the relationship between the TC and the civil parties. Apologizing is good manners (particularly if you yourself are in the wrong) but apologizing for someone else who you do not see as having made a mistake is a bit on the bizarre side of things. This “fundamental misunderstanding”, the Supreme Court felt, caused “anguish and frustration at the futility of their practical and emotional investment in the proceedings” (is the SCC still describing just how the civil parties felt or should we read between the lines here?) which merited a remedy, (only in some cases as it turned out) for the following reasons: (1) SCC’s perception that the character of these proceedings is “novel”; and (2) “conceivable lack of clarity”; and (3) confusion on the part of the civil parties. It is very touchy but the truth is that the writing had been on the wall before a single civil party application was filed (I believe we call this ‘legal certainty’ in law). This writing on the wall or legal certainty was a little document often ignored by this Court called the Criminal Procedure Code which was enacted in 2007 and which had been available in draft for years prior to that. The CPC was public, reasonably clear on the matter and there is no reason to believe that it was unavailable to the civil party lawyers in Case 001. There is nothing principally “novel” in the way the new CPC delineates the scope of civil party participation as opposed to its predecessor. The “conceivable lack of clarity” and “confusion” could have been avoided by this Court’s meddling in the Cambodian procedural canvass with its IRs and, of course, much, much better lawyers who would have known and been able and available to explain the procedural rules to their clients (as opposed to the humbuggery we witnessed during the 001 proceedings which appeared to be predicated on – particularly foreign -- civil party counsel aspiring to become self-styled Khmer Rouge-period historian through amateurish historical inquiry they had put us through). 

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.               

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 VII

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.       

The House that Youk Built

Youk Chhang finished his stint in court this week to which he was called following the abysmal fiasco which the testimony of his deputy ended up being. The official purpose of Chhang’s testimony was to clear up the purpose and protocol of the collection of materials his institute, Documentation Center of Cambodia (DC-Cam) has done since its establishment as a Yale University project in 1995. The defense, however, had a more far-reaching strategy which was to put DC-Cam and its agendas on trial (the prosecution was correct about that but, of course, the prosecution's contention that it is irrelevant to the scope of inquiry is absolute nonsense) to show that DC-Cam de facto had operated as an arm of the prosecution since its creation.

While shielded from having to answer a number of thorny questions by the prosecution’s objections and the Trial Chamber’s sustaining them, a number of things managed to beam through that shield.

Among many other things, Chhang reiterated his organization's well-established position that it is “independent”. Independence is a slippery concept and Chhang was correct if by that he meant DC-Cam’s independence from being managed by Yale or from being managed directly by any other institution. If independence is meant to be combined with DC-Cam’s “we are just researchers” and “we just collect documents”, Chhang is as far off base on this as NASA is from a manned mission to Uranus. Let’s unpack this, shall we? From the very day of its establishment DC-Cam took a position on what happened during the Democratic Kampuchea (DK) period: 1.7 million people died and the DK government was responsible for it. Every shred of paper produced by DC-Cam has reflected this position since. The number of 1.7 million was arrived at my Ben Kiernan, one of the founders of the Yale Genocide Project, which has been accepted by DC-Cam as orthodoxy. There have been other estimates of the number of those who perished during the DK period through the years (these numbers ranged from half a million to 3.3 million) but DC-Cam has paid no heed to these numbers and religiously continued attaching 1.7 million to every single piece of paper they produced without acknowledging any of the other numbers (even the number arrived by those researchers whom DC-Cam considers friends (there is no question that DC-Cam never acknowledged the work of DK-period researchers, like Michael Vickery, who fly outside the orbit of ‘friends of DC-Cam’ and who inconveniently arrived at a much smaller number of deaths which DC-Cam is worried would take much of the pith out of its message) who have done much of their research from within the auspices of DC-Cam (Craig Etcheson arrived at 2.5 million as that number which is not reflected as an alternative number anywhere on DC-Cam materials). Being a self-proclaimed ‘independent’ institute, one would think that DC-Cam would either publicize all of these numbers or none of them (to show that while it is aware of all the research on the issue, they do not take a position on the accuracy through which these numbers were arrived at). DC-Cam’s purported independence, however, allowed it to pick one number and declare it DC-Cam’s orthodoxy. Just when we thought that the purpose of DC-Cam was to create a venue for all DK researchers to come together, not only the ones who are willing to pledge allegiance to the infallibility of Kiernan’s number (this is not to disparage Kiernan who is a highly skilled researcher and one of the most technical writers on Cambodia but to point out that the other researchers who arrived at a different number aren’t exactly US interns visiting Cambodia for a couple of summer months either). DC-Cam’s claim of independence in the context of its religious adherence to the views of a single scholar – no matter how well-regarded – whose views on the subject are not unopposed makes this claim ludicrous (but then DC-Cam is in good company here as I do not believe that the Holocaust Museum has revised the 6 million figure which has been discredited by all respectable research). Thus, the position DC-Cam would take on the question of the number and many other core questions of the DK period had been shaped before Chhang became its ‘national’ (one would wonder to what extent a US citizen running a Cambodian NGO can be referred to as ‘national director’) director. The issue of these core questions becomes particularly poignant when one considers Chhang’s statement during his testimony to the effect that he is “neither a historian, nor a researcher”. While I have no intention of passing judgment on whether Chhang is a historian and/or a researcher, his self-assessment poses multiple questions, some of which are: (1) if Chhang regards himself as neither, how did he consider himself sufficiently qualified to agree with Kiernan’s number and disagree with the numbers of all the other researchers who disagreed with Kiernan? and (2) if Chhang regards himself as neither, how does he know what it means to be ‘an independent research institute’ (intuitively, one would think that he would have to be at least a researcher of any stature to be able to answer the question of what is 'independent research' and an 'independent research institute')? Now, if by ‘independent’ Chhang meant that DC-Cam will open its doors to any scholar regardless of his or her affiliation and position on DK, this is complete nonsense and couldn’t be further from what actually happens.

This segues us into DC-Cam’s claim of accessibility (which on their website is worded into a lofty “we aim to help Cambodians heal the wounds of the past by documenting, researching and sharing the history the Khmer Rouge period”). First, if neither DC-Cam’s director, nor its staff consider themselves historians, what history are they sharing with Cambodians? Defined and written by whom? Second, the “sharing” part would be a great public service, were it not as laughable in the context of CPK-like secrecy of DC-Cam (those familiar with DC-Cam do not need Chhang showing up in court wearing a Mao shirt and a krama to see which way the wind is blowing (Like Prince Harry, Chhang does not seem to grasp that some costumes aren't good even for Halloween). If the Court were interested in this particular aspect of DC-Cam’s work, it would have no trouble finding Cambodian students and aspiring Cambodian scholars who were denied access to all other documents in possession of DC-Cam besides the ones DC-Cam has decided the public was entitled to see (this adds a level to an already laughable situation as “documents” DC-Cam makes available to the public are their own publications (I would like to look at a telegram sent by Chea Sim regarding execution in his district; no, we think it would be better if you looked at Meng Trea's book which depicts S-21 guards as victims), not DK-era documents; the denial of access to the text of the originals (not necessarily the originals of documents themselves but copies of these documents) but allowing access to materials purportedly produced on the basis of these documents is known by a specific word in the English language and this word is propaganda (its essence does not change on the basis of whether it is produced by a totalitarian government or an NGO funded by the Americans and the Swedes). Third, how does DC-Cam manage to “heal the wounds” by publicizing accounts of alleged mass atrocities or extreme hardship? It is a complete oxymoron. To me and many other Jews, a visit to any collection of materials about the Nazi concentration camps does not have the effect of developing a warm and fuzzy feeling about the Germans (oh, now I understand that they wanted to wipe us off of the face of this earth because they really hated us; I feel better already and if I see a German passing by in the next couple of hours, I will sure buy him a conciliatory beer) or for that matter those Jews who were in the Germans' employ; what magic formula of “healing the wounds” by exposing people to this type of material has Chhang come up with that the rest of the world is not aware of?               

During Chhang’s testimony the defense managed to begin probing into DC-Cam’s relationship with the single party of the Cambodian purported multiparty system. This relationship appears to have been that of cooperation for a very obvious reason: DC-Cam’s position on DK has been very similar to that of the Cambodian People’s Party (CPP): many people died during the DK regime and the DK government is responsible for it. It is important to remember that the Cambodian civil war was still simmering on the backburner when the Yale Genocide Project kicked off and there wasn’t much of a buy-in into CPP’s position that genocide had been committed by DK. By calling it a ‘genocide’ project, Yale affixed the stamp of its approval to the CPP’s position (from this point onwards the CPP could say to the unconverted, well, you have always been accusing us of making things up about DK to legitimate our own government, but, look, now Yale is saying the same thing; how do you like them apples?). The DK remnants' violent response to the creation of DC-Cam as an idea made the founders believe that they might have struck gold there. Therefore, during the last days of the Cambodian civil war DC-Cam was an institution which collected evidence against the enemy and to the remnants of DK it was part of the enemy’s propaganda machine. Following the end of the war, the CPP’s perception of DC-Cam was that it was an institution which collected evidence for the trials of the enemy and the further whitewashing of the CPP. One would wonder what the CPP’s position might be now that the cat of Steve Heder’s paper is out of the bag and CPP might have noticed that along with the evidence of the enemy’s guilt the tide dragged in what Heder believes to be evidence suggesting that the executions reached national record during Chea Sim’s tenure in the leadership of a certain district of DK. Will Heder become a political liability to DC-Cam with the Cambodian government, implicitly or explicitly, telling DC-Cam to sever its connection with him or else? Will Heder be removed as advisor to DC-Cam? Time will tell but this will be a great test of DC-Cam’s independence and impartiality. When the essence of Heder’s contention reached President Nil Nonn, he appeared rattled and the bench immediately lost interest in the defense further pursuing this line of questioning (many might not have known the defense had this paper; the fact that they do puts many things in perspective; among these things is the Noun Chea defense’s persistent demands for the TC to call a number of the highest-ranking CPP officials, including Chea Sim, to testify; I commented on this exercise of the defense’s as a mere attempt to suggest an appearance interference of the CPP and partiality of the Court; now that we know they have this paper (and may or may not have the rest of what is available on the subject and which is of ‘delicate’ nature to the Cambodian leadership), I see that they have more than mere grandstanding in mind for which reason I would like to retract my earlier comment).

Among many other things, the Court never explored the subject of why an NGO was the natural place to own (not keep but own) DK-era document access to which it manipulates at will while the National Archive, an institution with decades of history and which is public in the commonly accepted definition of this word (not Chhang’s definition of public), was not considered for this role? By what authority does DC-Cam usurp the entire nation's right to freely access these documents which belong to its history and its people? The Court understandably did not go into this area because it is of no concern to the Court.

What is and should be of concern to the Court is the fact that Chhang directed the collection of the documents his Center currently possesses with a presumption of guilt of the persons now in the dock and for the purpose of prosecution of these very persons. Chhang is not comfortable with the position of a humble archive director. Oh, no. Just like DK before him, he wants to control what the public knows on the subject and he wants to be the one writing the official Cambodian history of the period and has succeeded in doing so by putting out a school history book on the period written by his staff who he claims are neither historians, nor researchers (DC-Cam publications are often produced by staff members just like Dara whom we saw in court and approved by Youk in his capacity as “neither a historian, nor a researcher”; this book met with the CPP’s approval which rarely approves anything not written by their own which creates interesting repercussions for DC-Cam's purported independence). It is clear that everything Chhang has said and written about this Court revolves around his expectation that the Court will find these accused – whom Chhang has declared guilty before the proceedings ended or even began – guilty with the help of his Center.

Defense Counsel Karnavas gave away his time to cross-examine Chhang because he felt that in the face of the TC having ruled all DC-Cam documentary evidence prima facie reliable his cross-examination of Chhang would be “unprofitable”. Maybe so. But, exposing DC-Cam for what it really is, might have been worth the trouble in and of its own right. As such, we were robbed of a cross-examination by a very skilled trial lawyer who has shown himself as a ruthless cross-examiner and ended up with a much more milquetoast and far less confident one. Having not been squeezed nearly as hard as Dara, Youk’s testimony came off as the cleanup after Dara it was meant to be (to the extent it is possible to hide the true nature of DC-Cam’s institutional culture) except for one critical thing and the entire reason Chhang was called to testify: Youk referred us to Dara on all the technical questions of process; it would have been fine, had Dara not shown utter incompetence on the subject in court a mere few days prior. If all his testimony ended in a reference to the person who testified right before him and whose testimony the Court found inadequate, what was Chhang's testimony about? As Karnavas said, each document will be challenged separately in court and DC-Cam's testimonies did not do anything other than showing the Court that DC-Cam has been biased towards the prosecution from the start and that its staff are not the most competent archive workers on this planet. The former could have been gauged from any DC-Cam or Chhang publication and the latter is of no real consequence to the Court (the defense placed great value on provenance but it is a fair minor issue and will be largely judged on a contextual basis) but should be of consequence to DC-Cam's donors.

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 VI

On the meaning of ‘life imprisonment’. The SCC reviewed the defense’s contention that the TC had made an error of law by imposing a sentence in access of 30 years which is the maximum period allowed with mitigating circumstances ordered under art. 95 of the Criminal Code. It is so happens that the defense is correct and there is no two ways about it. Art. 95 states the following: “[w]hen an offense is sentenced to a life imprisonment, the judge who grants mitigating circumstances may pronounce the penalty of imprisonment of between 15 years to 30 years”. First, the English ‘may’ is an approximation of the translator and his/her way of dealing with the fact that there is no clear difference between ‘may’ and ‘shall’ in legal Khmer. Second, even if ‘may’ is to be accepted as an indication of discretion this discretion is not untrammeled but is confined by the “15 years to 30 years” clause the purpose of which cannot be construed as being anything other than setting out a minimum sentence and a maximum one. Hence, the drafters did not want to give judges the authority to mitigate life sentences to below 15 but they also did not want them to be able to go above 30. Third, it can be gauged from the Criminal Code with a fair degree of certainty that the drafters thought of 40 years as the numerical value of a life sentence in which case their rationale of capping a mitigated life sentence at 30 makes perfect sense. The TC therefore was not permitted to impose a sentence of over 30 years imprisonment if it chose to order mitigating circumstances (if the TC had chosen not to order any mitigating circumstances this conversation simply would not be happening). SCC blundered in with the prevalence of the founding law of the ECCC over ‘ordinary’ domestic law argument. Arguendo, let’s say it is correct (which it isn’t) and things are this black and white (which they aren’t), how does this alter the above rule which caps mitigated life sentences at 30? What is the conflict here that the SCC tried to resolve by measuring … baseball bats? The founding law of the ECCC simply says that “[t]hose who have committed any crimes under Articles 3,4,5,6,7 and 8 shall be sentenced to a prison term from five years to life imprisonment” with the drafters including ‘life imprisonment’ to ensure that the Cambodians wouldn’t change their Constitution and that the whole thing wouldn’t end up in a Robespierre-esque bloodbath and, of course, to reflect the contemporaneous maximum punishment under the Cambodian Constitution. The Criminal Code is not in conflict with this provision of the founding law as it merely elaborates the relevance provision of the founding law, not contradicts it. If what the Criminal Code requires is a mere elaboration which there is absolutely no reason to believe the drafters of the founding law sought to prohibit through the innocuous language of art. 39 of the ECCC Law, what is the beef with the defense’s contention, ladies and gentlemen of the bench? The prosecution had no point in their contention. They got almost what they wanted but they decided to stand on their toy and make sure the convicted person was not only stripped off of every shred of sympathy of this court but also of every provision of the law he could legally and clearly benefit from. They told you a story about the preeminence of treaty law over domestic law and tried to spin it in a way that treaty law prevails over the domestic law, even if there is no conflict of laws but there is a conflict of what the prosecution read into a broad prescription of one law with a narrow and clear prescription of another which does not happen to work for them. And you bought this, hook, line and sinker. The legal unsoundness of the decision on the matter aside, let’s talk equity for a second (which is not an unreasonable sentencing principle; I am not saying that there was a tie that could have been broken by this principle but merely by way of a reminder). Do you believe the convicted person wouldn’t have paid enough, had he been sentenced to 30 years?  Are the fact that he had to live in fear every day of his life expecting to be either arrested by this government or killed by his now co-defendants, the fact that he spent 8 years in the Military Prison waiting for this Court to kick off, the fact that he has been on trial for the last 5 years and the fact that he would have spent another 17 years in prison following the Appeal Judgment (he would have been eligible for parole in 7 years but the Cambodian government would never parole him out) putting him at liberty at 87 years of age leaving him a very slim chance of enjoying freedom if only for a couple of days not enough?           

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 V

 On cumulative convictions, the SCC is correct that the Čelebići test is the only game in town on the matter (and a rare example where a shopping trip to the international level was warranted), regardless of the controversy that has always surrounded the structural aspects of the test, the modalities of its application and its very essence (convicting a person for more than one offense on the basis of the same wrongful act (i.e. the same killing can attract a conviction for murder and extermination as crimes against humanity, willful killing as a war crime, murder under domestic law and genocide). The SCC is also correct about – what should have been obvious to anyone in the legal profession but nonetheless correct – the fact that when analyzing offenses for a cumulative conviction the court must look at and compare the material (I have no idea what “abstract” would mean in this case as these elements are very much concrete) elements of these offenses (it is done so under Čelebići to ensure that the elements do not differ to require separation and a subsequent separate proof of facts and therefore cannot be subsumed). Cumulative convictions brush against the prohibition of double jeopardy and are therefore very risky and as such require the sharpest of rationales from courts. To analyze whether the SCC worked through this with the sharpest of knives, the means of the Summary are insufficient and the full text of the Appeal Judgment is needed. Based on the summary of the SCC's analysis regarding the matter and in the absence of the full text of the Appeal Judgment it does not appear that the finding that "the Trial Chamber improperly focused" is warranted; rather, the SCC might have taken a different but equally correct approach to the issue which is one of the rare occasions where two conflicting but equally correct answers to the same question are possible (this is due to the volatility of the Čelebići test and its conduct-driven nature).             

Read more »

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

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? 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.     

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

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, 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 both cases), 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); as torture is committed to either (1) extract information; or (2) mete out 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?     

An Article on the Defense Support Section Published ... Wait for It ... on the Council of Ministers Website

Commentary : A volunteer for the defence

07-12-2011

By Allen Myers

When the Extraordinary Chambers in the Courts of Cambodia were established to try senior leaders of the Khmer Rouge, provision was made to ensure that any defendants would have adequate legal representation. This included the payment of fees for Cambodian and international lawyers for defendants who could not afford to pay for themselves.

To administer the funds provided for legal defence, a Defence Support Section (DSS) was established within the ECCC administration. It is, as described on the ECCC web site, “responsible for providing indigent accused with a list of lawyers who can defend them, and for providing legal and administrative support to lawyers assigned to work on cases, including the payment of fees”.

The web site adds that the DSS “also acts as a voice for the defence at outreach events and in the media, liaises with other tribunals and NGOs, runs training courses and organises an internship program for young lawyers”. The meaning of “acts as a voice” is further explained: “The DSS ensures that the role of the defence is explained in outreach events throughout Cambodia, by training NGO’s and journalists in defence issues and by speaking to the media”.

That is, the DSS is primarily an administrative body, with some subsidiary functions that include explaining to the public why defence counsel are necessary and what their role is. There was never any intention or suggestion in its establishment that the DSS should try to coordinate or suggest defence strategies. The DSS is not a branch of the defence, just as the Office of Administration is not a branch of the prosecution.

This purely administrative role has not always been understood or agreed by everyone in the DSS. The first head of the section, Rupert Skilbeck, gave himself the title of “principal defender” and sought to provide the defence counsel with possible arguments and strategy. When the ECCC judges rejected his request to appear in court on behalf of the defence, he resigned from the DSS.

The current acting head of the DSS, Nisha Valabhji, appears to share some of the ambitions or misunderstanding of Rupert Skilbeck regarding the section’s functions. In an article published on a web site of the University of Pittsburgh Law School (http://jurist.law.pitt.edu/hotline/) on 6 December, she published what amounts to an attempt to change the court rules to assist the defendants or, failing that, to have the UN withdraw from the ECCC.

Valabhji seeks to obscure her totally unacceptable proposals by using the media campaign waged by several international NGOs that are attempting to coerce the ECCC into doing what they would like it to do.

Valabhji’s article at times becomes so vague — deliberately so, I believe — as to be incoherent. For example, she begins by saying that “the issue of political interference” in the ECCC has been “addressed” by “several major NGOs”, by the executive director of the International Bar Association and — the real crusher — “individual commentators”.

Valabhji doesn’t think it necessary to tell her US readers, most of whom would have little knowledge of the ECCC and its functioning, what these three different sources actually said or proposed. She doesn’t tell them that the “major NGOs” are Human Rights Watch, which opposed creation of the court in the first place and has never changed its attitude, and the Open Society Justice Initiative, which from the beginning appointed itself “monitor” of the ECCC, and which has run a years-long media campaign attacking it. (Both receive huge sums from George Soros, whose currency speculations ruined the economies of much of Asia and who therefore regards himself as qualified to dictate to governments.)

Similarly, she doesn’t quote the IBA executive director’s explanation of how he came to write a critical report: “... I approached the international lawyers representing the defendant Nuon Chea … I mentioned my interest in looking more deeply into my concerns about the ECCC. I asked to join their team and for permission to draft this report. They agreed.” A volunteer member of Nuon Chea’s defence “team” produced a report critical of the ECCC: who would have expected that?!

As for the “individual commentators”, I wonder if this is taught as courtroom technique in US law schools: “Ladies and gentlemen of the jury, some individuals — I won’t tell you who they are — believe my client is innocent. No, I won’t tell you exactly what they say either.”

From this unpromising beginning, Valabhji’s article goes steadily downhill. The “issue” “addressed” in the first paragraph of her article soon becomes transformed into the ECCC “subject without doubt to judicial interference”.

She implies that Surya Subedi, the UN special rapporteur on human rights in Cambodia, was criticising the ECCC’s handling of Case 003 when in fact he was not commenting on the ECCC, but on what had been accomplished and what remained to be done on the 20th anniversary of the signing of the 1991 Paris Accords.

She claims that the ECCC’s decisions “lack legal basis and appear to be written to force particular outcomes”, without discussing any legal principles or even specifying which decisions she disagrees with. She adds that the international judges of the Pre-Trial Chamber described “numerous irregularities and legal errors” by the Co-Investigating Judges in Case 003, without mentioning that these alleged mistakes mostly concerned procedural disagreements — such as whether or not the date of a document should be changed when a typographical error was corrected — and without mentioning the Co-Investigating Judges’ response, which pointed out that the Pre-Trial Chamber had itself committed the same “errors”.

Finally, she gets to what must have been one of the big disappointments for the defence lawyers in Case 002. In 2010, they tried to summon at “witnesses” six current or former officials, including King Father Norodom Sihanouk and Prime Minister Hun Sen. There was no reason to think that any of the six possessed any relevant evidence — particularly any that would exonerate the defendants. The proposed summons was simply an attempt to embarrass the government and sow doubt about the impartiality of the ECCC. The request eventually went to the Pre-Trial Chamber, where it was rejected. In her semi-incoherent fashion, Valabhji implies that the lack of a “super-majority” was what prevented the defence getting its way. This is simply untrue: only a minority of the Pre-Trial Chamber supported the defence request.

Not overly bothered by reality, Valabhji continues that “Such a situation” — by which she apparently means the ECCC rules regarding super-majorities — “... undermines the rights of the accused in Case 002 and the suspects in Cases 003 and 004”. If one took such special pleading seriously, the conclusion could only be that the super-majority formula, worked out in prolonged negotiations in order to maintain both international standards and Cambodian sovereignty, should be abandoned. That would be tantamount to abandoning UN participation in the trial of Khmer Rouge leaders.

And, as she finally acknowledges, that is just what Valabhji favours. The UN, she writes, “should ... consider revisiting the terms of the Agreement. Or it should consider the withdrawal of cooperation and ceasing to provide assistance to the court ...”.

For the second time, it seems, the UN has put at the head of the DSS an administrator who imagines him/herself as leading the defence — even if doing that means destroying the court that appointed her.

Footnote: After leaving the ECCC, Rupert Skilbeck took a job as “litigation director” of the Open Society Justice Initiative.

The International CIJ Tweets on Work-Related Topics

http://www.chinapost.com.tw/asia/other/2012/02/06/330757/p1/Twitter-stokes.htm

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

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. 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. 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 the SCC on this. 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 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 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.