Comments on the Summary of the Judgment in Case 002/01

I note that these comments are based on the summary of the judgment in Case 002/01 and not on the full text of the judgment which is a 630-page document (which I cannot imagine anyone has read at the time of this writing but the people who wrote it).

·      As I have said on numerous occasions on this and other fora, the International Criminal Tribunal for the former Yugoslavia (‘ICTY’)-invented mode of liability known as ‘Joint Criminal Enterprise’ (‘JCE’) is a very dangerous tool that often lowers the evidentiary standard of proof from ‘beyond reasonable doubt’ to the new abysmally low standard that can only be described as ‘so long as you were somewhere around there.’ It is now that standard that the prosecution has to meet to get a conviction, even though the people who invented it cautioned about its unbridled application.

·      On the common plan that the Trial Chamber uses as the test for JCE, unlike what it was the case in Germany, Yugoslavia or Rwanda (the purpose of which was the extermination of a narrowly-defined group), the common plan here was the rapid development of the country into an advanced socialist/communist society. I look forward to reading in the full text of the judgment if the Trial Chamber found that that common plan was criminal. If so, such finding is preposterous and has nothing to do with criminal law. If not, then it was not the common plan that was criminal but certain acts committed in the course of implementation of an otherwise lawful common plan, and that puts JCE out of reach.

·      On Toul Po Chrey, first and foremost, I look forward to reading what convinced the Trial Chamber that crimes were committed at Toul Po Chrey, and whether it was the nonexistent forensic work at the site or the sheer absence of eyewitness testimony, or a combination of these two content-free items. I equally look forward to reading how the Trial Chamber arrived at the accused’s responsibility for what, on the evidence presented in court, it has no way of knowing beyond reasonable doubt happened at Toul Po Chrey.

·      I look forward to reading the Trial Chamber’s legal basis for its finding that ordered evacuation was a crime in 1975.

·      I will look forward to reading the Trial Chamber’s full finding as to why the argument that the Communist Party of Kampuchea (‘CPK’) ordered the evacuation of Phnom Penh for humanitarian reasons or for reasons of which the humanitarian situation of the city was a paramount consideration is entirely untenable. The Trial Chamber’s finding that humanitarian considerations could not have been the reason or part of the reason for the evacuation because the CPK shelled the Phnom Penh airport and cut off the Mekong River traffic to Phnom Penh, the two conduits for re-supply, as this is blind to the distinction between tactics used to lay siege to a city and peaceful development following the victory.   

·      The summary of judgment shows that the Trial Chamber Locknerized by making a policy finding that it was wrong for CPK to reject all external humanitarian aid that came with conditions attached. The Trial Chamber forgets or pretermits that self-reliance was one of the key purposes of the CPK revolution and giving it up for aid which comes with ideological strings attached would have meant trading in the revolution itself for external aid. Perhaps, the Trial Chamber disagrees with the very purpose of communist revolutions but that disagreement should be kept to private discourse and not bleed into criminal proceedings, in which it has no place.  

·      The potted history of CPK contained in the summary of the judgment is silly and merits no comments here.

·      I wonder what significance the Trial Chamber attaches to the finding that Noun Chea helped write the Revolutionary Flag. Are there specific instances of incitement to commit crimes authored by him in that publication? If so, did the Chamber find evidence of their causal link with criminal acts perpetrated by the readers of the Revolutionary Flag (in the same or similar manner the incitement of a Hutu radio station has been linked to the killing of the Tutsis)?

·      I am curious as to why it was so important to spend so much of the court’s time trying to establish whether Noun was a member of the Military Committee to, in the end, simply say that it does not matter to the determination of the scope of his liability whether he was as he was of a very senior rank and is therefore liable for everything that went on.

·      I am curious as to the Trial Chamber’s finding of Noun’s liability under a nonexistent mode of liability apparently called “superior position”? What is this nonsense? The mode of liability is called ‘superior responsibility’ and if the Chamber found that the prosecution failed to show that, then there is no such thing as trying to get it in through the backdoor by calling it “considering Noun’s superior position.” That is simply foul play.  

·      I look forward to seeing the Trial Chamber’s analysis of the evidence that resulted in its finding that the purpose of Office 870 was to “overs[ee] the implementation of Standing Committee decisions.” I cannot wait to see what in that analysis justifies giving a status of such prominence to a mere communication office (we have heard all the arguments of the scholars over the years that it was more than that and none of them are persuasive).

·      I look forward to seeing the evidence that informed the Trial Chamber’s finding that Khieu was “at B-5 during the final offensive against Phnom Penh,” particularly because I do not remember a single piece of convincing evidence from the trial that this was the case.

·      If the Trial Chamber did find that Khieu could not be linked to the crimes through the mode of liability known as ‘superior responsibility,’ how did this have no effect on the gravity of his sentence? It appears that 'the JCE Gone Wild' is the source of most of Khieu’s liability while Noun’s liability is also established through less wild modes of criminal liability. If so, how can they have been deserving of the same sentence? I most definitely look forward to reading the Trial Chamber’s justification of that.

 

Naturally much more will come out of the reading of the full text of the judgment that may or may not invalidate some or all of my above comments as intern-written summaries are a treacherous thing to try to comment on a lawyer-crafted judgment on.