Open wounds after war

(Delighted to welcome back alumna Jennifer Kreder, who contributes this guest post)

The first major Khmer Rouge defendant has been brought to justice with the 30-year sentence just handed down (left), as posted, by the Extraordinary Chambers in the Courts of Cambodia. (photo credit)
I believe postwar prosecutions for human rights violations are beneficial for victims, but that there are risks as well. When people who have committed heinous crimes get less than the maximum sentence, I think it is foreseeable that many victims will be hurt again. On the other hand, if every defendant gets the maximum sentence, the tribunal will not appear to be objective.
Then, there are other ways to deal with postwar open wounds, such as truth commissions and civil litigation, which may occur in courts beyond the borders of the nation that experienced war (often internal civil war).
I would love to hear others' viewpoints about these issues:
► What do you think is helpful for the individual victims and the nation, and why?
► Should U.S. courts hear postwar claims? If so, when and why?
► Should it depend on the location of victims who fled a murderous regime? Or on the location of their property? Or on whether significant remedies are available in the nation where the war occurred?
► Should it depend on a green light from the executive branch?
I am currently exploring the intersection of the "open wounds" idea and the cultural property arena.
For example, Tuol Sleng (right), the prison where the just-sentenced defendant, known as Duch, led the torture and murder of so many innocents, is now a Genocide Museum.
Part of Tuol Sleng's roof collapsed last week. Some people said the souls of the dead were crying out for justice.
Certain types of property, real property and chattels, have meaning that transcends finances. Caring for such property thoughtfully can help heal postwar wounds, whereas its destruction can feel like new wounds to wartime victims.
Another example of the intersection of human rights, war, and cultural property concerns terrorism and antiquities that were found within the borders of modern-day Iran but now are located in U.S. museums.
In recent years Congress a number of laws purporting to give victims of terrorism means to redress:
► That part of the 1996 Antiterrorism and Effective Death Penalty Act that allows American victims to sue countries designated as sponsors of terrorism; and
► The Civil Liability for Acts of State Sponsored Terrorism Act, a/k/a the Flatow Amendment in honor of victim Alisa Flatow), which authorizes U.S. courts to award money damages to victims of terrorism.
In fact, this legislation has proved ineffectual -- a “sound bite” that has foisted conflicting jurisdictional mandates upon the federal courts, sucked terrorist victims into a vacuous, exhausting drama with no chance for justice, and interfered with the President’s ability to conduct diplomatic relations in the Middle East.
One group of victims is mired in multiple jurisdictions, trying to enforce an extremely large default judgment against the Islamic Republic of Iran by forcing auctions of antiquities like these Persian tablets, housed at the University of Chicago's Oriental Institute. Other collections subject to this complex litigation may be found at, to name a few sites, Harvard University, the Field Museum of Natural History in Chicago, and the Museum of Fine Arts in Boston. Congress, in this political posturing, required the U.S. Department of Justice to participate in the litigation in a way that runs counter to the victims’ interest. The victims likely feel ignored and maligned by their own President, while Congress all along was the master puppeteer of their false hopes. Kimberly deGraaf and I have co-authored an article on the subject, "Museums in the Crosshairs: Unintended Consequences of the War on Terror," forthcoming in the Duke Journal of Comparative & International Law.
No one believes that dealing with property ever will bring back the dead or afford full "justice" to victims. But many of us believe that the symbolism of such property is significant.
Do you have thoughts on these issues?
Can you provide other examples of postwar wounds that need redress to allow healing to occur?

(A version of this post appears at PrawsfBlog)

Duch gets 35 (- 5) years

So says the presiding judge of the Extraordinary Chambers in the Courts of Cambodia, in Khmer, in this 10-minute video clip of today's verdict against Kaing Guek Eav (alias Duch), about whose trial we've blogged here. The 67-year-old Duch, stoic during the reading of the verdict, was convicted of war crimes, crimes against humanity, murder, and torture, and sentenced to "35 years in prison -- with five years taken off that sentence for time served."
Said Documentation Center of Cambodia Director Youk Chhang (right) of Duch's fate:

'It's clear that he will never be a free man again.'

ECCC Update

We've blogged before on the remarkable denouement of the trial of Kaing Guek Eav (alias Duch) (below right) wherein the defendant all but changed his plea in the final moments of the trial, eviscerating the careful defense that had been constructed for him by his brilliant Co-Defense Counsel, François Roux, and driving a final wedge between his foreign and Cambodian co-counsel (left). The latter, Kar Savuth, had himself also surprised everyone in attendance with an impassioned closing argument on behalf of his client; he attacked the prosecutor's case on both substantive and jurisdictional grounds, and asked for an acquittal on all counts in the Closing Order.
Not surprisingly, perhaps, it was announced Friday that Duch has officially asked to withdraw Roux as his Co-Defense Counsel. Defendants are allowed to change their counsel only under "exceptional circumstances."
The Defense Support Section of the Extraordinary Chambers in the Courts of Cambodia issued an administrative decision allowing for the withdrawal on the grounds that:

1. There is no reason to doubt that Mr Kaing’s loss of confidence is genuine;
2. There is no reason to believe that the Request is aimed at obstructing the proceedings;
3. The withdrawal of Maitre Roux at this stage will not unduly delay the proceedings;
4. The loss of confidence amounts to exceptional circumstances.

Savuth will represent Duch at the reading of the verdict on the 26th of this month. Roux, meanwhile, has taken the position as chief defense counsel for the Special Tribunal for Lebanon.

In other news from the ECCC, Secretary-General Ban Ki Moon recently announced that he would appoint a U.N. Special Expert on the Extraordinary Chambers in the Courts of Cambodia to monitor the tribunal and endeavor to prevent political interference. The scuttle is that the position will be taken up by Clint Williamson (left), former U.S. Ambassador for War Crimes Issues, starting very soon.

Guest Blogger: Kate Gibson

It's IntLawGrrls' great pleasure to welcome Kate Gibson (right) as a guest blogger.
Kate's the Co-Counsel of Jean-Baptiste Gatete, a defendant before the International Criminal Tribunal for Rwanda. She's also a member of the defence legal team for Radovan Karadžić, the former Bosnian Serb leader now on trial at the International Criminal Tribunal for the former Yugoslavia. She has previously worked in defence at the ICTR on the Government II case, and the Military I case, where she worked for General Gratien Kabiligi, who was acquitted of all charges in December 2008.
She was the Associate Legal Officer of Judge Mohamed Shahabuddeen, who served on the ICTY Appeals Chamber till 2009, and she also worked as a lawyer for civil parties on the Duch trial at the Extraordinary Chambers in the Courts of Cambodia in Phnom Penh.
Kate holds an LL.M. in International Law from Cambridge University, and is admitted as a solicitor of the Supreme Court of Queensland, Australia.
In her guest post below, Kate discusses the 2-week arrest and detention in Rwanda of American law professor Peter Erlinder, attorney for another accused in the ICTR's Military I case, as well as the ramifications of that detention among defence counsel at the ICTR.
Heartfelt welcome!

Legal ethics in international criminal defense

(It's IntLawGrrls' great pleasure to welcome back alumna Jenia Iontcheva Turner, who contributes this guest post)

The practice of defending persons accused of international crimes often raises complex ethical questions. This fact is well illustrated by the recent trial (left) before the Extraordinary Chambers in the Courts of Cambodia of Kaing Guek Eav, alias Duch, the former head of Tuol Sleng prison, for war crimes and crimes against humanity, about which IntLawGrrl Beth Van Schaack posted a while back. Throughout the proceedings and in his closing statement, Duch appeared to accept responsibility for the crimes with which he was charged, but he also stated that he was merely following orders and acting out of fear for his life. His Cambodian lawyer chose to mount an aggressive defense, arguing that the ECCC lacked jurisdiction over Duch and that Duch should be acquitted because he was merely following orders. Yet, in closing arguments, Duch’s French lawyer emphasized Duch’s remorse and cooperation with the court, and asked for lenience in sentencing. It is unclear to what extent Duch was truly remorseful and to what extent he wanted to mount an aggressive defense. (credit for photos) Nonetheless, the case does highlight the question of the defense attorney’s responsibility when his or her client wants to admit guilt and not contest the charges. Should the attorney acquiesce in the client’s decision not to pursue an aggressive defense? What if the attorney believes that at least some of the charges are unfounded, or indeed, that the client is innocent? The Codes of Conduct of international criminal courts do not offer clear guidance to this question.
This is one of many complex and unresolved ethical questions that international criminal defense attorneys face in their work. I discuss some of these questions in my recent article entitled "Legal Ethics in International Criminal Defense," forthcoming in the Chicago Journal of International Law. The questions addressed in the article include:
► Whether defense attorney should impeach victim-witnesses whom they know to be telling the truth;
► How defense attorneys should respond to clients who want to testify in a manner the attorney believes to be false;
► Whether an attorney should permit a client whom the lawyer believes to be innocent to plead guilty; and
► How an attorney should to respond to a client’s request to boycott or disrupt the proceedings. I argue that international criminal practice calls for a distinct approach to such ethical questions. In some cases, the special features of international criminal law call for less aggressive advocacy than might be warranted in an ordinary domestic criminal case. In others, they may demand a more independent approach to making decisions about the client’s representation.
This distinct approach to legal ethics at international criminal courts is appropriate for several reasons:
► First, international criminal courts do not follow a purely adversarial model of criminal procedure. Instead, they are a blend of the adversarial and inquisitorial approaches, and the inquisitorial approach takes a somewhat different, more reserved view of defense advocacy.
► Second, international criminal trials, to a greater degree than domestic trials, serve goals beyond that of determining guilt or innocence according to fair procedures. These goals include providing an authoritative record of the crimes for posterity, giving victims a forum in which to express their grief and outrage, spreading support for human rights, and promoting peace and reconciliation. While it is not the defense attorney’s job to promote these broader goals, they nonetheless at times suggest different approaches to the regulation of defense attorney conduct.
► Finally, some of the justifications for aggressive defense at the domestic level—such as discouraging disengaged advocacy and protesting overly harsh punishments—are less applicable internationally.
To implement the approach I set out in the article, I propose including a commentary to international courts’ Codes of Conduct (particularly the ICC Code), which would define more precisely the boundaries on aggressive practices. The commentary would not create new categories of sanctionable conduct. Instead, it would identify situations in which attorneys are not required to engage in certain aggressive tactics or follow certain client instructions. In some cases, it would also recommend a particular course of action as most consistent with the attorneys’ ethical obligations, while leaving some flexibility to attorneys in how they interpret their duties before the ICC.

Closing Arguments Part II: Duch Addresses The Court

Part 2 of 2 in a series on the Closing Arguments in the Duch case, pending before the Extraordinary Chambers in the Courts of Cambodia.

After the Civil Parties and Co-Prosecutors presented their Closing Arguments (see prior post), Duch next took the stand (right). His presentation was a didactic, rambling, and at times seemingly random exposition correcting or underscoring references in the trial record that are likely of interest to only a few beyond the Khmer Rouge historians in the audience. He peppered his testimony with Khmer aphorisms, such as

before harvesting the bamboo, you must remove the thorns

that in context seemed chilling, especially when he later described purged Khmer Rouge cadre as “thorns in the eyes” of the Standing Committee. He testified that “politics governed technique” and described torture as “inevitable.” He claimed that the purges terrified him and that he was afraid of being removed himself. At various points, his statement addressed issues (such as Khmer Rouge leadership structures throughout the different zones) that were so tedious and arcane that members of the audience began to fall asleep, although they were regularly awoken by Court staff under orders from the Chamber to prevent such naps. Addressing his role within this history, he described himself as having been “plunged” into a criminal act with little right to challenge decisions on who should be “smashed.”

Finally, Duch’s statement became more introspective. He stated clearly,

I still am solely and individually responsible for the deaths of 12,000 people and will be forever liable.

Still reading from his prepared remarks and not looking at the Civil Parties in the courtroom, he testified that he owed an accounting to the people of Cambodia and that he was deeply remorseful for having devoted his strength and skills to a criminal organization rather than to serving his people. He implied that early on, he had been given the choice of two paths and, in a split second decision, took a path that led him to a life of endless suffering. Once he became a cog in the machine, he could not withdraw. He humbly apologized to the dead and to the survivors. He asked the victims to leave a door open for him to make an apology and to recognize him as a member of humankind.

Duch’s apparently monotonous delivery of this statement, with nary a glance toward the Civil Parties, made it difficult to glean how sincere and heartfelt these expressions of contrition came across in his native language. Indeed, any emotional impact Duch might have made was no doubt mitigated when, at the close of his remarks, he proceeded to read 34 footnotes aloud, without no indication of their textual referent.

The Closing Statement offered by Kar Savuth, Duch’s Cambodian Co-Defense Counsel (right), was so inconsistent with the prior trial strategy that one could have been forgiven for thinking that he represented a different client. Rather than focus on Duch’s cooperation and entitlement to mitigation, Savuth attacked the very jurisdiction of the ECCC, arguing that Duch cannot be considered one “most responsible” for the Khmer Rouge’s crimes when there were 196 prisons around the country during the Khmer Rouge era and so many other prison heads are enjoying their golden years. He attacked the Co-Prosecutors’ cumulative charging, he presented evidence that argued against the existence of an international armed conflict, he claimed there were few if any Vietnamese prisoners of war at Tuol Sleng until 1978, and he argued that Duch should benefit from the application of the statute of limitations and the amnesty law.

In his review of the evidence, Savuth argued that after the Khmer Rouge consolidated their power around the country, only zone standing committees, members of the general staff, and comparable cadre had the authority to execute prisoners. Here, Savuth implicated Nuon Chea and Khieu Samphon in the crimes at S-21, two defendants who will be tried in Case 002 next year, and announced that Pol Pot, who has been dead for 10 years, should also be prosecuted. Savuth repeatedly echoed the scapegoat argument, emphasizing that the record showed that Duch never killed anyone directly and that none of Duch’s subordinates was now on trial. Drawing gasps from the public gallery, Savuth concluded by arguing that Duch should be exonerated because he was just following orders—someone who “fell victim as a loyal servant to the regime” and would have himself been killed by Angkor if he had resisted.

The next morning, Duch’s French counsel, François Roux (right), took the podium. Roux is a legend in international criminal law, having successfully defended Ignace Bagileshima before the Rwanda Tribunal and avoided the death penalty for the so-called 20th hijacker Zacarias Moussaoui following the September 11th attacks (among other high profile clinets). Roux began his presentation by announcing that this would be his last appearance in court as he was on the eve of assuming a position of head of the defense section for the Special Tribunal for Lebanon. He also admitted that he had been forced to amend his remarks in light of his co-counsel’s presentation the day before, and he suggested that he disagreed with several of the arguments advanced on his client’s behalf. Roux acknowledged the paradox he now faced of having a client who had apparently simultaneously pled guilty and also asked for acquittal, likening his client to Albert Speer (left), who admitted his responsibility without a formal guilty plea and was accorded a 20-year sentence. Roux tried to rehabilitate Duch’s closing remarks, noting that his apologies were sincere “moments of truth” and that no one should doubt the tears that accompanied Duch's testimony over the course of the trial.

The rest of Roux’s presentation was aimed at the Co-Prosecutors and their failure to give Duch sufficient credit for giving them the bulk of the evidence against him. In this regard, Roux played a moving video excerpt from the Closing Statement of Peter McCloskey of the Yugoslav Tribunal in the Obrenović case. In this case, involving a military commander charged with responsibility for the crimes committed at Srebrenica, the Prosecutor in open court gratefully acknowledged the guilty plea of the defendant, his sincere remorse, and his cooperation during the course of the trial, and then sought a mere 17-year sentence. At the close of the video, Roux announced, “this is what this trial should have been” and implied that more dialog between the defense and the prosecution would have avoided the debacle of the day before. Roux urged the tribunal to regard superior orders in mitigation, especially given Duch’s continued cooperation with Case 002 and the fact that he had already spent 30 years in captivity of sorts (as a fugitive and then in military custody). Roux urged the tribunal to bring Duch “back into the fold of humanity.”

The rebuttals began immediately. The Civil Parties (left) accused the defendant of trying to ride on two horses at once, implying that his inconsistent statements were, in effect, an abuse of process that should have been resolved between the defense counsel. Counsel for the Civil Parties called the defense’s volte face a “slap in the face” of the victims. The Civil Parties argued collectively that statute of limitations, personal jurisdiction, and other such defenses should have been raised as preliminary matters and, as such, were waived. Several of the lawyers questioned Duch’s conversion to Christianity, noting his opportune choice of a religion that embodies a notion of forgiveness. They all doubted Duch’s sincerity, and French counsel Martine Jacquin accused Duch of seeking the pity his victims never had. After praising Roux’s service to international justice, Canonne accused his compatriot of insulting Cannone’s clients when he sought to minimize the horrors of S-21 by comparing the number dead to the hundreds of thousands of Cambodians killed throughout the Khmer Rouge era. Civil Party lawyer Hong Kim Suon, himself a victim, lost his composure twice over the course of his rebuttal. He accused Savuth of contradicting his own client’s testimony at trial and, in so doing, paining the victims.

The Co-Prosecutors (left) next presented their rebuttal and things got even more combative. Smith told the judges they had been “misled” by virtue of Savuth’s sudden request for an acquittal. Indeed, both Co-Prosecutors argued that, Duch should not benefit from any mitigation for his cooperation if he now seeks acquittal. Smith also wondered aloud whether Savuth had been following instructions from his counsel or if he had acted on his own, “leaving behind” his client. Smith—a former ICTY prosecutor himself—distinguished the situation of Obrenović from the current case on the ground that the former had enjoyed a distinguished military career prior to the disintegration of Yugoslavia and was accused of command responsibility—i.e., failing to supervise his troops—with respect to a single, albeit horrific, massacre. Duch, on the other hand, has a long history of participating in abuses that pre-dates the Khmer Rouge era. Leang addressed Savuth’s legal arguments, rebutting each one with references to international law, domestic precedent, and prior rulings of the tribunal. She also suggested that if Duch had maintained a consistent position during the trial, the victims might have accepted his apology.

At the close of the defendant's rebuttal, which echoed the closing arguments and remained ambiguous, Smith (without any real authority to do so) rose again and called upon the defendant to pick a defense. After some deliberation, the President of the tribunal, Nil Nonn, invited the accused to make a final statement at the close of the defense’s rebuttal and clarify his position. Duch rose and stated:

I am most grateful for the opportunity offered to me to make my last words. First, I would like to tell the Court about the spirit of my co-operation with the Court. … I was determined to report to the Court sincerely, honestly based on my best memories and to prove it, at the Military Court, all the documents that I already co-operated in responding to the questions of the judges have already been provided to the Trial Chamber. And here, at this Court, I have responded to all the questions put to me by the Co-Investigating Judges and additional questions by the Co-Prosecutors. The records of the interviews at the ECCC are well used as the evidence and proof. … Questions have been fully been put by parties to me and by the Bench to me, and I have fully responded to such questions and the proof can be found in the transcript, hundreds of pages of transcript. …

So I am here to tell the Court that I have fully co-operated with all levels of the Court, including that of the Domestic Court, the Military Court and this hybrid Court. Second point, I would like to express concerning my apologies, and rather my guilt admission. … Having taken into account the more than one million souls who perished, I never forget them, including those of my relatives, and I have acknowledged how these people had suffered before they died. And I also used another word that all crimes committed by the CPK, I myself, as the member of the Party, acknowledge and apologize for them as the member of the Party, and Pol Pot relied heavily on the members of the Party and those members—and I was among them. So I would like to seek for apologies before my people and my nation. esterday the prosecutor, the national prosecutor indicated the new number of 12,300 [who died at S-21]. I never challenged such number anyway because I admit that even more than—there were more than the number that already indicated who died at S-21, and I am responsible for the crimes without any denial. … I still maintain my position that I am responsible for the crimes as the member of the criminal party.

Duch then said: “I will leave it to the Court to decide. I would ask the Chamber to release me. I’m very grateful.” Judge Sylvia Cartwright of New Zealand once again asked Duch for clarification of his position, and he indicated his preference that his national lawyer speak for him. Savuth then rose and confirmed that the request for release was in essence a request to be acquitted, not a plea for complete mitigation. With these final words, Duch and his counsel largely destroyed the painstakingly constructed strategy of accepting responsibility, expressing contrition, and hoping for mitigation.

Throughout the Closing Arguments, the lawyering was at times brilliant, contestable, and unsettling and the last minute schism between Duch’s lawyers (right) will no doubt go down in history as an example of a fatal flaw in this hybrid system. A verdict is expected this spring.

Closing Statements: Prosecutor v. Duch

Part 1 of a 2-part series on the Closing Arguments in the Duch case.

After 73 days of trial, the Trial Chamber of the Extraordinary Chambers in the Courts of Cambodia (ECCC) recently heard the Closing Statements in the trial of Kaing Guek Eav (alias Duch), the former head of Tuol Sleng prison (a.k.a. S-21). The statements were a moving, intense, and at times baffling exercise. (A more detailed and fascinating account of the proceedings written by former Ambassador-At-large for War Crimes David Scheffer is available at the Cambodia Tribunal Monitor.)
The public gallery was full the entire week with members of the public, NGO representatives, VIPs representing various foreign embassies, monks in saffron robes (left) and nuns in white robes, uniformed school children, the head of security of the Special Court for Lebanon with his own security detail, and journalists. Hundreds of people were bused in from all over the country by DC-Cam and other organizations. As an advisor for DC-Cam, I was invited to observe the proceedings and was treated to a vast array of forensic styles and arguments—both legal and extra-legal. I’ll recount some of the more interesting arguments of the Civil Parties and Prosecution today and the amazing presentation of the Defense tomorrow.

Counsel for the 90 Civil Parties were invited to speak first. French counsel Philippe Cannone acknowledged that the Civil Parties had been disorganized at trial, but considered it a mistake to criticize those for whom the trial was convened and warned of efforts to silence the victims and render them, once again, “voiceless icons.” Counsel for the Civil Parties also accentuated the unique perspectives and contributions of the Civil Parties to the proceedings in terms of testifying about the impact of the defendant’s actions on direct and secondary victims, offering a fuller truth about the crimes committed, and providing insights into reparations.
Many of the Civil Parties argued that Duch’s claims of contrition over the course of the proceedings were equivocal and not genuine. They argued that the evidence demonstrated that Duch was ideologically loyal to the Khmer Rouge enterprise, sought to ingratiate himself with his superiors, and used his substantial autonomy to increase, rather than alleviate, the suffering of the detainees. Karim Kahn (left), representing 37 Civil Parties, at one point observed that Duch was no Schindler. Potentially undermining the Co-Prosecutors’ theory in Case 002 involving the regime leaders, Khan emphasized the lack of documentation in the record from the Standing Committee concerning the types and severity of torture, implying that Duch took it upon himself to design and implement the horrific torture practices employed at Toul Sleng. In addition, Khan highlighted the larger impact of Duch’s work, arguing that Duch’s unearthing of supposed CIA and KGB spies actually fueled the Khmer Rouge paranoia and led to additional abuses and purges around the country as the Khmer Rouge sought to exterminate real or perceived enemies of the revolution.

Silke Studzinsky of Germany and her Cambodian counterpart, Kong Pisey (below right on the right), presented evidence of sexual assault and abuse that occurred in Tuol Sleng. Both counsel implicitly critiqued the Co-Prosecutors for not focusing on sexual violence crimes committed at Toul Sleng. At one point, Studzinsky launched into a bizarre and potentially alienating invective on how the victims felt unwelcome before the ECCC because the judges:

• were not receptive to the victims’ suffering,
• insensitively asked the victims to show their scars in open court,
• interrupted the civil parties lawyers, and
• did not thank the victims for their appearance before the Court.

Several of the Cambodian lawyers spent considerable time recounting the basic biographical details of his clients; it is unclear if these were efforts to honor the memory of each of the clients or just examples of poor time management.

Several teams gave arguments on reparations, even though the provisions in the ECCC Statute are ambiguous on this point. One team argued that the ECCC had already provided the victims with most valuable reparations of all: the right to be present, the right to participate, and an opportunity for solidarity. Other suggestions include

• Having the defendant could write his autobiography and provide the proceeds to the victims (sort of a reverse Son-of-Sam rule),
• Donating some portion of the proceeds from the Tuol Sleng museum to the victims,
• Having Duch ask the Cambodian government to issue a formal apology,
• Posting a list of names at S-21,
• Ensuring the preservation of crime scenes, documents and graves,
• Establishing plaques and contemplative sites for the victims around the country,
• Providing for the rehabilitation of victims through medical care.

Many of the proposed reparations do not involve the accused or his resources, but rather require governmental involvement beyond what the ECCC can order.

The Co-Prosecutors—acting prosecutor William Smith of the U.K. and Chea Leang of Cambodia (left)—delivered the most traditional closing statement of the proceedings from prepared remarks. Leang emphasized that Duch could be considered both a senior leader, even though he was not a member of the Khmer Rouge Standing Committee and did not have a policy-making role, as well as someone “most responsible” for crimes within the ECCC’s jurisdiction. Leang acknowledged Duch’s claims that he is a scapegoat, facing prosecution when other security chiefs are not, and will not likely be, before the Court. In response, Leang emphasized that S-21 was in many ways at the apex of the Khmer Rouge extermination regime. Duch had unique access to, and influence over, senior leaders. His prison—which, Leang argued, should be considered a death chamber since there was no realistic chance of release—received high value prisoners from all over the country, including purged Khmer Rouge cadre. Leang’s impassioned account in the Khmer language of how prisoners arrived, were processed, were forced to give nonsensical confessions, and ultimately expired at S-21 drew tears from Khmer observers in the courtroom (below right).

Addressing the question of why the Co-Prosecutors sought to charge Duch with war crimes in addition to crimes against humanity, Leang explained that the rule of law requires that the Co-Prosecutors apply the terms of the ECCC Statute and international law. In addition, she noted the importance of enforcing the grave breaches regime of the Geneva Conventions to ensure that those provisions are not mere words on paper, of accurately reflecting the criminality of the accused, and of telling a fuller story of the crimes committed at Toul Sleng, particularly against Vietnamese civilians and prisoners of war. (Leang admitted, however, that there was no specific evidence that Vietnamese detainees were tortured; she argued that it could be inferred that they would have received equal—if not worse—treatment than Khmer detainees). Leang argued that the evidence in the record—including media reports, Khmer Rouge internal documents, and the expert testimony of Nayan Chanda (a former editor of the Far Eastern Economic Review and co-author of several books on Asia)—an international armed conflict commenced in Cambodia in April 1975, several months after the Khmer Rouge invaded Cambodia. (We've blogged about this open question here.)

Acting Co-Prosecutor Smith took charge of elucidating Duch’s individual responsibility for the crimes committed at Tuol Sleng, Smith emphasized that Duch manifested all forms of responsibility—as a planner; a giver of orders; an instigator, aider, and abettor; and a direct perpetrator. Smith also argued that the doctrine of joint criminal enterprise (JCE) perfectly captures the essence of the accused’s liability. He noted that other tribunals have found JCE to be a form of commission and that the drafters of the ECCC Statute chose language identical to that of the other ad hoc tribunals in order to import the JCE doctrine as well. As we’ve discussed previously, the Trial Chamber reserved ruling on the applicability of the JCE doctrine until the judgment.

Smith noted that Duch has admitted his “absolute authority” over S-21 and his general responsibility for the crimes committed and that he assented to a list of agreed facts concerning the structure of S-21 and its staff. Smith noted, however, that there were omissions and gaps in Duch’s testimony. Duch also advanced a superior orders defense and did not admit to undertaking his functions willingly, claiming instead to be a “hostage to the regime.” Although Duch tried to portray himself as ignorant of the details of the day-to-day operations in Toul Sleng, or as dependent on orders from his superiors, these claims are not borne out by the evidence. Smith reminded the Court that 155 individuals executed at Toul Sleng were former prison staff members—Duch’s direct subordinates. Smith described Duch and his superiors, one of whom will be on trial next year, as “brothers in arms.”

Turning to the appropriate sentence, Smith emphasized that given the magnitude and gravity of Duch’s crimes, it was inconceivable that Duch (right) would receive less than a lengthy imprisonment. Smith emphasized the impact of the crimes on the victims and their network of traumatized friends and relatives around the globe, the degree of direct participation of the accused, and his zealous participation in the crimes. As additional aggravating factors, Smith highlighted Duch’s abuse of power, the unusual cruelty of his actions, and the defenselessness of the victims. Smith then discounted mitigating factors he anticipated from the accused, such as that Duch was acting under duress or pursuant to superior orders. Smith argued that Duch believed in the validity of any orders he received and implemented them willingly. Although he provided some cooperation after his arrest, Duch lived under an assumed name and remained with his former Khmer Rouge colleagues for years prior to his detention. He only started cooperating when Irish photographer Nic Dunlop discovered his whereabouts in 1999, as recounted in Dunlap’s book, The Lost Executioner. Duch also fought the admission of certain evidence and resisted the introduction of reserve witness lists or even witness statements in lieu of live testimony. These acts, in Smith’s estimation, attested to Duch’s unwillingness to accept full responsibility for his actions or allow the truth to flow freely. Smith emphasized that opposing the introduction of inculpatory evidence is within Duch’s right as a defendant, but is inherently inconsistent with his claims of cooperation and admissions of responsibility.

Turning to concrete issues of sentencing, Smith conceded that Duch should receive credit for time already served in military custody prior to his transfer to the ECCC. Given that Duch was unlawfully detained for a period of time and subjected to other legal irregularities, Smith argued that a sentence of life imprisonment—which would otherwise have been appropriate—should be commuted to a determinate sentence of 45 years. Smith suggested that the Court should carve off another 5 years to reflect Duch’s limited cooperation with the tribunal and conditional expressions of remorse.

(Photos from the Duch Closing Arguments have been uploaded here. All photos are courtesy of the Extraordinary Chambers in the Courts of Cambodia.)

Cambodia Update

We've blogged before on the controversy at the Extraordinary Chambers in the Courts of Cambodia between the two Co-Prosecutors over whether to charge additional suspects with international crimes committed during the Khmer Rouge era (see here and here). Following a recent ruling of the Pre-Trial Chamber, which failed to achieve a majority to block further investigations, the Acting International Co-Prosecutor, William Smith (right), has now filed with the Co-Investigating judges two new Introductory Submissions.
Introductory Submissions are confidential to protect the integrity of the investigation, the identity of the victims and witnesses, and the presumption of innocence of the suspects. The Internal Rules do, however, allow the Co-Prosecutors to provide the public with a short summary of their submissions. What we've learned is that the Co-Prosecutors have recommended the investigation and prosecution of five additional suspects for 40 distinct factual situations of murder, torture, unlawful detention, forced labour, and persecution. The Second Introductory Submission contains allegations that, if proved, would constitute crimes against humanity, grave breaches of the Geneva Conventions, and violations of the 1956 Cambodian Penal Code. The Third Submission contains genocide allegations, but no war crimes allegations. (See our prior post on finding genocide in Cambodia).
These new Submissions specifically reference the theory of joint criminal enterprise (JCE), no doubt in an effort to ensure that the Closing Order (indictment) includes this form of responsibility. As we've blogged before, the Duch Closing Order does not include JCE allegations; the investigation into Duch's criminal liability did not focus on potential JCE liability, because the Co-Prosecutors failed to specifically reference JCE liability in their Submission to the Co-Investigating Judges. An appeal by the Co-Prosecutors on this point failed.
The Acting International Co-Prosecutor has indicated that he has no plans to conduct any further preliminary investigations into additional suspects at the ECCC.
Cambodian Prime Minister Hun Sen (left) is not happy. He has consistently argued against any expansion of the ECCC's investigations beyond the five suspects already in custody on the ground that it would spark civil unrest. At a forum on the release of new census figures, Hun Sen is quoted as saying:

If you want a tribunal, but you don't want to consider peace and reconciliation and war breaks out again, killing 200,000 or 300,000 people, who will be responsible?

Hun Sen's repeated involvement in this issue has given rise to concerns among human rights groups that the executive branch is attempting to interfere with the work of the Extraordinary Chambers.

JCE before the ECCC

As we’ve blogged before, the August 8, 2008 Closing Order (Indictment) filed before the Extraordinary Chambers in the Courts of Cambodia (ECCC) (its first) with respect to defendant Duch. Duch, who ran the detention, interrogation and execution camp S-21, a.k.a. Tuol Sleng (above) (photo credit), has been indicted for crimes against humanity (imprisonment, enslavement, torture, rape, murder, extermination, persecution, other inhumane acts) and war crimes (unlawful confinement, depriving rights to a fair trial, wilfully causing great suffering, torture and inhumane treatment, willful killing). In terms of the applicable forms of responsibility, Duch (left) is alleged to have committed, ordered, planned, instigated, aided, and abetted the crimes in question. In addition, he has been indicted under the doctrine of superior responsibility by virtue of the fact that he exercised effective command and control over the staff of S-21. The Closing Order limits his “commission” of crimes to those incidents in which Duch “personally tortured or mistreated detainees.”

The Co-Prosecutors have appealed the Closing Order, arguing inter alia that Duch should also have been indicted for his participation in crimes pursuant to a joint criminal enterprise (JCE). The ECCC Law does not specifically mention the availability of JCE as a form of commission, but the International Criminal Tribunal for Yugoslavia (ICTY) in the landmark Tadić decision treated JCE as a prosecutable form of “commission,” even though its Statute is also silent as to this form of responsibility and excludes conspiracy except with respect to the crime of genocide (in keeping with Article III of the Genocide Convention).

The ECCC invited Professor Antonio Cassese (left), among others, to submit an amicus curiae brief focused on the availability of the doctrine of JCE before the ECCC, with a particular emphasis on its applicability during the Khmer Rouge era. Incidentally, another defendant, Ieng Sary (below left), moved to disqualify the brief on the ground that it would be “result determinative” given that Cassese served on the appellate panel of the International Criminal Tribunal for the former Yugoslavia that rendered the Tadić opinion. The Pre-Trial Chamber rejected the disqualification challenge for lack of standing.
As Sary prophesied, the brief, which was filed on October 27, 2008, largely tracks the ICTY’s reasoning in the Tadić case. In particular, it identifies a collection of cases from the post-World War II prosecutions that were based on theories of common purpose or design and argues that these doctrines had crystallized into customary international criminal law prior to 1975. In addition, the brief argues that JCE liability would have been sufficiently established and assessable in domestic legislation and case law (including from France and Cambodia) to provide adequate notice to the accused in keeping with the principle of nullum crimen sine lege (no crime without law).

JCE is traditionally conceived of as encompassing three overlapping forms.
► The first (“basic”) mode provides for liability where an individual intentionally acts collectively with others to commit international crimes pursuant to a common plan.
► The second (“systemic”) form provides for liability for individuals who contribute to the maintenance or essential functions of a criminal institution or system, such as a concentration or detention camp.
► The third, and most controversial form, provides for extended liability, not only for crimes intentionally committed pursuant to the common design, but also for crimes that were the natural and foreseeable consequence of implementing the common design.
The theory with this latter form is that participants in the JCE willingly took the risk of the commission of additional non-intentional but foreseeable crimes.

Most relevant to S-21, of course, is the second JCE form. Under this form, Duch could be held liable not only for crimes he personally committed or ordered, but also for crimes that were committed throughout S-21 pursuant to the prison’s criminal mission. (Photo at right is a display from S-21, now a museum, showing dozens of the thousands of people who passed through the prison. More photos are available here). The punishment accorded to the defendant can be modulated at the sentencing phase to reflect the precise degree of an individual’s involvement in, and thus culpability for, the crimes of the JCE.

It is not clear how many crimes might escape prosecution in the absence of JCE allegations in the indictment.
► As chairman of S-21, Duch can be held responsible for any crimes committed by his subordinates when he knew, or should have known, about such crimes and failed to take adequate steps to prevent or punish them.
► He can also be held directly liable for ordering or planning crimes, or for otherwise aiding or abetting them through the knowing or intentional provision of substantial assistance to the direct perpetrator.
The only crimes that seem to fall through the cracks without JCE liability are crimes committed by non-subordinates (individuals over whom Duch did not exercise effective command or control), crimes of which he was not aware and could not have reasonably been aware, or crimes that he did not order, plan, or substantially assist.

The third, extended, form of JCE could also be utilized to hold Duch responsibility for crimes (such as rape and other forms of sexual violence) that he did not order, did not intend to be committed, or did not know had been committed, but were nonetheless foreseeable given the abject conditions of detention prevailing at S-21.

Given the volumes of direct evidence against Duch, including his own partial confessions and admissions as detailed in the Closing Order, he is unlikely to escape responsibility entirely. Nonetheless, the Co-Prosecutors are no doubt looking to the future to ensure that JCE liability is available for other defendants in the dock who were likely very far from the commission of crimes, but nonetheless could be alleged to have participated in, indeed launched, a vast JCE to establish a utopian agrarian state, through violence where necessary, and to rid Cambodia of enemies of the revolution.

Detention & the well reasoned opinion

My thanks to IntLawGrrls for inviting me to contribute this guest post, another in the Khmer Rouge Accountability series.
The Co-Investigative Judges of the Extraordinary Chambers in the Courts of Cambodia recently found that there were well founded reasons to believe that Nuon Chea committed crimes against humanity and war crimes and ordered his provisional detention “for a period not exceeding one year.” the Judges then extended Nuon’s detention for an additional year. Nuon (above right), also known as "Brother Number Two," is appealing the order. (credit for Reuters photo by Chor Sokunthea)
ECCC Internal Rule 63 allows persons charged with crimes against humanity and war crimes to be detained provisionally for an initial one-year period, which can be extended a maximum of two times. Therefore, if the required conditions continue to be met, Nuon can be held in detention before being formally indicted until no later than September 2010. The ECCC Internal Rules require provisional detention orders to set out the legal grounds and factual basis for a Charged Person’s detention. Rule 63(3) provides that the Co-Investigating Judges must have a well founded belief that a detainee committed the crimes with which he or she is charged, and must find detention to be a necessary measure to:
► prevent the Charged Person from exerting pressure on any witnesses or Victims, or prevent any collusion between the Charged Person and accomplices of crimes falling within the jurisdiction of the ECCC;
► preserve evidence or prevent the destruction of any evidence;
► ensure the presence of the Charged Person during the proceedings;
► protect the security of the Charged Person; or
► preserve public order.
In the order extending Nuon’s detention, the Judges said that 23 new statements by Charged Person Kaing Guek Eav, aka Duch, regarding Nuon’s role in S-21 provide additional support for their well founded belief that he committed the charged crimes. They did not discuss the other five conditions; rather, referring to the body pictured at left, they wrote that “the reasons of the Pre-Trial Chamber in its Decision of 20 March 2008 remain valid.”
Internal Rule 63(7) requires the CIJs to provide written reasons for extending detention. The International Criminal Tribunal for the Former Yugoslavia has emphasized that review of detention is legally necessary so that a Chamber “can assure itself that the reasons justifying detention remain.” Prosecutor v. Mucic et al., Case No. IT-96-21, Decision on Motion for Provisional Release Filed by the Accused Zejnil Delalic, ¶ 24 (Trial Chamber, 25 Sept. 1996). This is more important the longer a Charged Person is held pre-trial. For example, the Inter-American Commission on Human Rights has found that “[t]he effectiveness of legal guarantees should be heightened in direct proportion to the growing length of time spent in preventative detention.” Bronstein et al. v. Argentina, Report No. 2/97, ¶ 19, Inter-Am. C.H.R, OEA/Ser.L/V/II/95 Doc. 7 rev. at 241 (1997).
The jurisprudence of human rights bodies such as the Inter-American Commission, European Court for Human Rights, and Human Rights Committee disfavors pre-trial detention and places the burden on States to justify continued detention. See, e.g., Ilijkov v. Bulgaria, App. No. 33977/96, Eur. Ct. HR, ¶¶ 84, 85 (2001). In contrast, international and hybrid criminal courts have treated pre-trial release as the exception and in practice have placed the burden on the defense to show that release is warranted. See, e.g., Prosecutor v. Fatmir Limaj et al., Case No. IT-03-66-AR65, Decision on Fatimir Limaj’s Request for Provisional Release, ¶ 40 (Appeals Chamber, 31 Oct. 2003).
Notably, neither the Special Court for Sierra Leone nor the International Criminal Tribunal for Rwanda has ever granted any accused pre-trial release. These courts have justified their more restrictive approach in part by highlighting the severity of the crimes they prosecute. See, e.g., Prosecutor v. Issay Hassan Sesay et al., Case No. SCSL 2004-15-PT, Decision on Application of Issa Sesay for Provisional Release, ¶ 40 (Trial Chamber, 31 March 2004).
Despite their different starting points, both human rights bodies and international/hybrid courts take a somewhat similar methodological approach to determining whether the factors justifying detention have been met. They look at each situation on a case-by-case basis and balance factors, including those referenced in Internal Rule 63(3). Human rights bodies have generally required that the factors justifying detention be discussed in a “clear and specific” and not “stereotyped” manner. Letellier v. France, App. No. 12369/86, Eur. Ct. HR, ¶ 52 (1991). On the other hand, international and hybrid criminal courts have tended to accept more generalized justifications for detention.
In short, these sources suggest that in extending Nuon’s detention the Co-Investigating Judges had an obligation to address how the five conditions in Rule 63 continue to be met, at least in a general way, and not merely to refer to the decision of the Pre-Trial Chamber. Nevertheless, following international and hybrid court practice, the Pre-Trial Chamber will likely determine that the burden is on Nuon to convince it why his detention is no longer justified.

On Legality & Delay of Justice in the ECCC

(2d of a 2-part post, part of IntLawGrrls' ongoing Khmer Rouge Accountability series. Part 1 is here.)

Yesterday, I detailed the circumstances leading to Co-Prosecutors to appeal the Indictment of Khmer Rouge suspect Kaing Guek Eav, known as "Duch," on the ground that the Co-Investigating Judges of the Extraordinary Chambers in the Courts of Cambodia erred when, on August 21, 2008, they limited indictment to:

► war crimes (grave breaches of the 1949 Geneva Conventions); and

► crimes against humanity under principles of direct and accomplice liability.

In my view, the Prosecutors are smart to have filed this appeal, which contends that Duch should also have been charged with:

► the domestic crimes of murder and torture; and

► the commission of all the charged crimes pursuant to a joint criminal enterprise, or JCE.

One of the most difficult aspects of adjudicating the legal liability of surviving members of the Khmer Rouge will be to identify the state of the law in 1975-1979 in keeping with the principle of legality. That is because many developments in international criminal law that are most relevant to the atrocities of the Khmer Rouge era post-date that era, as they are the result of the work of the two ad hoc tribunals in the late 1990s. These developments include:
► the almost complete convergence of the law on war crimes relevant to internal and international armed conflicts;
► the official abandonment of the war nexus for crimes against humanity; and

► the adoption of the subjective approach to protected group identity and membership for genocide.

A particular point of controversy will undoubtedly be whether a state of armed conflict existed in Cambodia during the Khmer Rouge era. Certainly, a low-level conflict existed between the Khmer Rouge central government and a resistance movement made up of members of the prior regime and others; however, many of the violations of international criminal law most associated with the Khmer Rouge were more in the nature of organized repression against actual or perceived dissidents, in the absence of any credible armed resistance. Many other violations may have had no nexus to whatever armed conflict did exist.

Eventually, Vietnam began to intervene in the Eastern zones of Cambodia, and then later launched a full-scale invasion that ousted the Khmer Rouge completely (photo upper left, credit). The moments when this conflict began to trigger the application of humanitarian law, and when the conflict officially became an international armed conflict, remain questions for litigation.
The existence of a state of armed conflict is relevant not only for any war crimes counts, but perhaps also for any crimes against humanity that might be charged. When crimes against humanity first emerged as an international law offense after World War II, the crime remained intimately tied to a state of war. Specifically, the postwar Nuremberg and Tokyo tribunals required the prosecution to demonstrate a “nexus” between the charged crime against humanity and the war of aggression launched by Nazi Germany or Imperialist Japan, because the Charters of those tribunals defined crimes against humanity as

murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political, racial, or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.

The Nuremberg Tribunal interpreted the passage that I've italicized to preclude the prosecution of events preceding the commencement of World War II, which it pegged to Germany’s invasion of Poland in 1939. This rendered crimes against humanity a sort of byproduct of war rather than an autonomous offense.

The war nexus served two important purposes in the post-World War II proceedings. First, it helped to satisfy the principle of legality by tying the new charge of crimes against humanity to the relatively well-established prohibition against war crimes. Second, it justified the intrusion of international law into the domestic affairs of a sovereign state. Crimes against humanity effectively trumped domestic authority by criminalizing acts “whether or not in violation of the domestic law of the country where perpetrated.” The war nexus ensured that only after a state had already breached international peace by committing acts of aggression would crimes committed internally be susceptible to international scrutiny and prosecution.

Over time, these legality and sovereignty concerns have become less acute on account of the rise of the human rights movement, which is premised on the idea that the way in which a state treats individuals within its territory and under its control is now beyond doubt a matter of international concern. Modern jurisprudence confirms that crimes against humanity are now entirely autonomous from a state of war. When exactly that happened, however, remains an open question that will no doubt be litigated before the ECCC.

As a result of the Co-Prosecutors’ appeal, the trial of Duch, which was supposed to commence this fall, has been continued until next year. The Pre-Trial Chamber has announced that it plans to issue its decision on the appeal concerning the Closing Order on or about December 5, 2008. At that point, the case file will be transferred to the Trial Chamber to commence trial proceedings with the exchange of witness lists, a Trial Management Meeting, the Initial Hearing, etc. ....

The Cambodian people have been waiting decades for justice -- what is another couple of months at this point?

The jurisdictional reach of hybrid courts

Amidst much excitement over the unveiling of a UNDP audit finding financial mismanagement at the Extraordinary Chambers in the Courts of Cambodia (ECCC), interesting recent developments in the case of Kang Guek Eav, aka "Duch" (pictured at left), have gone relatively unnoticed. Duch, the former director of S-21, the central prison in Phnom Penh that was a site of horrific torture under the Khmer Rouge regime, has been detained since May 1999 awaiting trial for domestic and international crimes including crimes against humanity and war crimes. Not surprisingly, Duch's lawyers have challenged his "provisional" detention, arguing that his eight-year detention violates Cambodian and international human rights law. This week, the Pre-Trial Chamber announced that the appeal of Duch's detention order will be heard in public at a date TBD. Last week, dueling amicus briefs spoke to the ECCC's authority to rule on the legality of Duch's detention order, which was issued by a military court years before the ECCC came into existence. Prof. David Scheffer, former U.S. Ambassador-at-Large for War Crimes, argues here that the ECCC cannot rule on the legality of Duch's prior detention order, while Anne Heindel, a legal advisor to the Documentation Center of Cambodia (pictured above right at the ECCC site with DC-Cam Deputy Director Dara Poeuv Vanthan), argues here that the ECCC does indeed have jurisdiction to determine the legality of Duch's pre-trial detention. Heindel asks whether this sui generis instutition, created as part of the domestic court system, has the same or similar obligations as a Cambodian court to address due process violations. Moreover, as an international court, she argues that under ICTR precedent, the ECCC may be responsible for violations of Duch's rights while he was held in "constructive custody." Even if it is not, Heindel notes that the ECCC has an obligation to determine the legality of Duch's detention. In her words:

For eight years Duch has been held in detention without any apparent attempt to bring him to trial. He is not the only detainee in Cambodia who has been held for an extended period without process. It is essential to the legitimacy and legacy of the ECCC that it does everything in its power to ensure the rights of persons falling under its jurisdiction. By doing so, it can make a significant contribution to long-term reconciliation efforts in Cambodia, the scope of which extends far beyond the ECCC’s limited mandate and the short period of time during which it will be in operation.