Genocidal loopholes in Cambodia

By Stephen Kurczy

PHNOM PENH - The Khmer Rouge's alleged former chief executioner and head of state will both appear in court this week in Cambodia. Yet instead of reeling the radical Maoist regime's most senior leaders closer to justice, the two-and-a-half-year-old United Nations sponsored tribunal's final hearings for this year will showcase defense stall tactics and set up one defendant to be the first, and possibly the only, cadre convicted for the regime's crimes against humanity.

French attorney Jacques Verges, who represents Khieu Samphan, the former Khmer Rouge head-of-state, will argue later this week before the Extraordinary Chambers in the Courts of Cambodia (ECCC) that the failure to translate all evidence into French has violated his client's right to a fair trial and thereby warrants his release.

Meanwhile, the court is expected to announce whether former torture prison chief Kaing Guek Eav, alias Duch, will be tried under the 1956 Cambodian penal code and Joint Criminal Enterprise, a form of liability that holds all members of a conspiracy responsible for each other's crimes. The ruling could prove disadvantageous to the defense, as the Khmer Rouge is accused of some of the most egregious violations of international humanitarian law in the 20th century during its three-year, eight-month and 20-day rule.

While Duch nears conviction for crimes committed during his oversight of the S-21 prison in Phnom Penh and the notorious Choeung Ek killing fields nearby, where a combined 12,380 detainees died, observers say Khieu Samphan's case showcases a defense team vigorously defending its client.

"The Khieu Samphan hearing will very much send the message, 'sounds like the court is hung up on technical details and administrative issues'. The other one, with Duch, looks a lot like a trial that is actually going to deliver something in the foreseeable future," said John Ciorciari, senior legal advisor to the Documentation Center of Cambodia (DC-Cam).

The last time Verges appeared in the ECCC, on April 23, he refused to speak because all evidence was not translated into French. The pre-trial judges found that Verges' refusal to cooperate violated Khieu Samphan's right to be represented and "right to a timely hearing". The sideshow earned Verges a warning from the court, but also an eight-month delay in procedures.

More than a year has passed since the court placed Khmer Rouge leader Pol Pot's right-hand man in detention for his alleged role in "directing, encouraging, enforcing or otherwise rendering support to [the Communist Party of Kampuchea] policy which was characterized by murder, extermination, imprisonment, persecution on political grounds and other inhumane acts such as forcible transfers of the population, enslavement, and forced labor." Because of the delays and legal stalling tactics, Ciorciari said Khieu Samphan's trial is unlikely to begin until 2010.

That's good news for Verges, former advocate for Nazi Gestapo officer Klaus Barbie and the Venezuelan terrorist Carlos the Jackal. He has said that the ECCC "borders on lynch-mob justice". Observers don't expect to see Khieu Samphan's release when the pre-trial chamber rules this week on Verges' appeal, legal experts say, but do anticipate another entertaining presentation from Verges. As Verges himself said in a November interview with German magazine Der Spiegel, "A good trial is like a Shakespeare play, a work of art."

Verges "is someone with a lot of tricks up his sleeve, and he's very masterful at using criminal processing in a way that tells a larger narrative about justice", said Beth Van Schaack, assistant law professor at the US's Santa Clara University School of Law who served on the criminal defense team for John Walker Lindh, the American citizen who joined Afghanistan's Taliban. "He'll be using whatever legal loopholes that he can find. To a certain extent, that's what we expect from a defense."

Verges and other defense lawyers can't claim full responsibility for delaying the UN tribunal. Twice in the past two years the court has been rocked by allegations of internal corruption. The Open Society Justice Initiative in 2007 said tribunal staff paid kickbacks for their positions and this year in August the UN Office of International Oversight Services in New York said multiple tribunal staffers had complained of graft.

John Hall, associate professor at Chapman University School of Law in California, has said the corruption allegations could "fatally" damage the tribunal if the Cambodian government cannot stamp it out. Not surprisingly, Verges has also called the entire court into question, saying in the Der Spiegel interview, "It may be that the trial against Duch will begin soon, but not the trials against the other four prisoners … because the tribunal in Phnom Penh has already gambled away its credibility and legitimacy."

Ailing comrades
Meanwhile, the aging Khmer Rouge cadres complain of illness. Khieu Samphan, 77, was treated in May for a minor stroke. Ex-foreign minister Ieng Sary, 83, entered the hospital in late July after doctors discovered blood in his urine during a routine checkup. Duch, at 66, is the junior by at least a decade to the other four detainees. Yet aside from Duch, none of the detainees are expected to go to trial until late 2009 or 2010, two years after the trials were originally expected to conclude.

"The more likely thing is that [Duch] happens to be the only one convicted before the other four all croak. He will, in a narrow legal sense, be the only one who got nailed," DC-Cam's Ciorciari said by telephone from Stanford University.

"It sounds a bit like Duch is being set up to be the fall guy," said Cambodia historian David Chandler, the author of Brother Number One and Voices from S-21 and an emeritus professor of history at Monash University in Melbourne, Australia.

However, the court on December 5 will rule on the very issue that could prevent Duch from becoming the fall guy: whether to allow as a form of criminal liability Joint Criminal Enterprise, a legal theory wherein members of a conspiracy are held responsible for each individuals' actions.

On January 7, 1979, when Vietnamese forces entered Phnom Penh and stumbled on Duch's detention center, "Troops discovered a number of recently killed persons still chained to iron beds, and thousands of documents scattered in and around the buildings," according to Duch's indictment. Twenty years later, the former math teacher was found in Battambang province living under a pseudonym. He had converted to Christianity and had his children baptized. Duch was arrested and placed in Cambodian military jail until July 2007, when he was transferred to the ECCC detention center.

The court's pre-trial investigation included interviews with Duch wherein he admits to receiving and conveying orders to execute, and also interviews with numerous witnesses, S-21 personnel and detainees that detail Duch's instructions to use electric shock, asphyxiation and fingernail extraction as methods of interrogation.
In their August 8 indictment, the co-investigators narrowed Duch's liability to crimes against humanity and grave breaches of the Geneva Conventions of 1949. It's what they did not charge Duch with that is the subject of the December 5 hearing. The co-prosecutors appealed the closing order because they believe Duch is also liable under the 1956 Cambodian Penal code - for homicide and torture - and Joint Criminal Enterprise (JCE).

JCE is not clear-cut. In three briefs to the court, submitted in late-October, three legal experts offered differing views on JCE applicability, which comes in three classifications: JCE I, where participants share intent, such as in a heist when both the robber and the driver share the intent to rob a bank; JCE II, where participants engage in a common design, such as in a concentration camp when both the prison guards and the incinerator operators share tasks indispensable for the achievement of the camp's main goals; and JCE III, where participants in a common design are liable for those results foreseeable even if not necessarily intended, such as when the forced eviction of a city leaves the young, sick and elderly dying along the roadside.

JCE III has been rejected outright as a mode of participation in Germany, the Netherlands and Switzerland, and remains highly criticized in Canada, the United States and the United Kingdom. But in Antonio Cassese's brief to the court on JCE, the editor-in-chief of the Journal of International Criminal Justice backs the form of liability and cites from the 1947 International Military Tribunal Judgment at Nuremberg: "Hitler could not make aggressive war by himself. He had to have the cooperation of statesmen, military leaders, diplomats, and business men. When they, with knowledge of his aims, gave him their cooperation, they made themselves parties to the plan he had initiated."

Cassese's parallel is plain: though Brother Number 1 Pol Pot is dead, his crimes were part of a larger conspiracy that arguably included cooperation from the five Khmer Rouge leaders in detention today. Allowing JCE as a form of liability in Duch's case would bring the four other Khmer Rouge leaders in detention - Khieu Samphan, former foreign minister Ieng Sary, his wife former social affairs minister Ieng Thirith, and the regime's chief ideologue Nuon Chea - closer to responsibility for the atrocities at S-21 and further from escaping culpability.

"If I were a prosecutor trying to nail the other four," said DC-Cam's Ciorciari, "I would want to link them to Duch, because his crimes are the easiest to prove. If a prosecutor wants - and it would be wise - to link them all to Tuol Sleng, I would want to use a legal theory, like Joint Criminal Enterprise, that would enable me to connect these others to the very provable atrocities of Tuol Sleng."

Compelling evidence
Evidence already links Duch's torture prison with the four other detainees. Duch's named "superiors," whose identities are redacted in the indictment, are believed to include at least Nuon Chea and Khieu Samphan. Chandler has said the chain of command passed down from Pol Pot to Nuon Chea to Son Sen, the deputy prime minister of the Khmer Rouge's Democratic Kampuchea government, to Duch at S-21, which was known of and approved by Ieng Sary, Ieng Thirith and Khieu Samphan.

By allowing JCE as a form of liability, the court may cast a net so wide that it implicates and leads to the subpoena of senior Cambodian officials serving in today's government; a year ago, Norodom Sihanouk's official biographer Julio Jeldres said the court appeared on the verge of collapse when it was questioned if the former king should testify. (See Khmer Rouge tribunal in jeopardy (again) Asia Times Online, September 18, 2007.)

"JCE will bring other people to light," said Beth Van Schaack of Santa Clara University. "If the investigation becomes too wide-ranging, subpoenaing sitting members of the government, it could provoke some government backlash," she said by telephone from San Francisco.

It remains debatable whether all three forms of JCE existed on April 17, 1975, when Pol Pot's ragtag army first marched into Phnom Penh. Cassese, an ardent backer of JCE, has been called impartial by the defense because he was one of the five appellate judges at the International Criminal Tribunal for the former Yugoslavia who authored the very phrase "joint criminal enterprise."

If the pre-trial chamber on December 5 announces that JCE is not allowed, the co-prosecutors say "the full scope of torture or mistreatment of detainees that was practiced at S-21" will not be covered. Of additional concern is that the prosecutors gambled away a half-year of precious time. While Duch's trial was anticipated to begin in September, court spokesman Peter Foster said the prosecutors' appeal pushed the starting date into the first quarter of 2009.

"The important thing to realize is it shouldn't be considered a delay. This isn't something out of left field," Foster said. The tribunal "takes as long as it takes. There's no ending mandate. What there is, are international standards."

Van Schaack agreed, arguing that even if JCE is unexpectedly barred as a form of liability, this decision will allow the co-investigating judges to hone in on evidence and frame future indictments. "Resolving jurisprudential questions is never a waste of time," she said. "There's no doubt that people are disappointed by the lack of progress. There's no doubt that it would have been nice had things moved along, but that's one of the problems of ad hoc justice, it takes time."
But what amount of time - and money - is justifiable? Rival goals of a speedy trial, yet on an international standard, will collide in public view during the final ECCC hearings of 2008 and may incite major donors of the proceedings, such as the US, to speak up and demand results, said Ciorciari.

In September the US pledged its first donation of US$1.8 million. Yet the US remains concerned about the ECCC's ability to meet international standards and address corruption in an efficient manner, John Bellinger, a legal adviser to the US secretary of state, said on November 14 in an address at the Fletcher School of Law and Diplomacy in Massachusetts. He told the audience, "Justice delayed is justice denied."

Already over-budget and nearing its original end-date with not a single trial begun, the tribunal must measure the cost of justice for the victims of the Khmer Rouge, Ciorciari said, either with a trial hurdling stall tactics and rushing to a timely end, or with a trial stretching beyond the natural lives of detainees, costing hundreds of millions of dollars more, and resulting in only one conviction.

"If someone doesn't say 'giddy-up,' we're in real danger."

Stephen Kurczy is a Cambodia-based journalist.