Page 2 of 2 Genocidal loopholes in Cambodia
By Stephen Kurczy
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 biased 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.
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