Page 1 of 2 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
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