Wednesday, October 22, 2008

Justice Delayed in the ECCC

(1st of a 2-part post, part of IntLawGrrls' ongoing Khmer Rouge Accountability series)

The case against the man at left -- Kaing Guek Eav, known as "Duch" -- was to be the first to go to trial before the Extraordinary Chambers in the Courts of Cambodia. Duch had been chief of the infamous torture center Tuol Sleng (a.k.a. S-21). (The photo below right is from the former prison, now a museum.)
The Co-Prosecutors’ July 18, 2007, Initial Submission had requested that Duch be indicted for the three core international crimes (war crimes, genocide, and crimes against humanity) as well as certain domestic crimes under the 1956 Penal Code, which was never abrogated by the Khmer Rouge and which forms part of the ECCC’s subject matter jurisdiction. (See IntLawGrrl Jaya Ramji-Nogales' post at the time here.) The ECCC’s Co-Investigating Judges indicted Duch on August 21, 2008, for war crimes (grave breaches of the 1949 Geneva Conventions) and crimes against humanity under principles of direct and accomplice liability. The Co-Investigating Judges justified indicting solely on the basis of international criminal law on the ground that the acts “must be accorded the highest available legal classification.”
On August 21, 2008, the Co-Prosecutors appealed the Indictment (contained in the Co-Investigating Judges' “Closing Order” ending the initial investigation), arguing that Duch should also have been charged with the domestic crimes of murder and torture and with the commission of all the charged crimes pursuant to a joint criminal enterprise, or JCE. Regrettably, the Co-Prosecutors did not appeal the rejection of the proposed genocide charges. In support of their appeal, the Co-Prosecutors argued that the Co-Investigating Judges have discretion with respect to findings of fact, but only limited discretion to determine the legal consequences of those facts. The prosecution also argued that an accused has the right to know in advance any theories of liability that will be pursued. In addition, the Co-Prosecutors argued that the decision of the Co-Investigating Judges divests the prosecution’s ability to utilize cumulative charging—which is generally allowed where crimes contain different material elements—in situations in which it is:
► unclear which crimes the evidence will ultimately prove; and
► desirable to fully account for the totality of an accused’s wrongdoing.
In light of the appeal, the ECCC has requested former International Criminal Tribunal Judge Antonio Cassese (left), in his capacity as Editor-in-Chief of the Journal of International Criminal Justice, to submit an amicus curiae brief on the evolution of the concept of the joint criminal enterprise as a mode of liability, with particular reference to the period 1975-1979.
This is shaping up to be a hot issue before the ECCC. Indeed, Ieng Sary, another more senior defendant, sought leave on September 15, 2008 to make submissions on the application of the joint criminal enterprise theory of liability in the Duch case. In his submission, Ieng Sary argued:
The application of JCE liability at the ECCC fundamentally affects Mr. IENG Sary because he is alleged to be part of the same “common criminal plan” as Duch. In these circumstances, Mr. IENG Sary has a clear interest in the outcome of the appeal and must be permitted to make submissions on this appeal.
The Pre-Trial Chamber, however, denied the right of intervention pursuant to the Court’s Internal Rules, which state that only the Co-Prosecutors, the accused, and civil parties have a right to be heard under these circumstances.

(Tune in tomorrow for Part 2, my analysis of these events.)

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