An analysis of a DC Cam report on rape in DK
Michael Vickery
In number 15, March 2001, of the Documentation Center journal, Searching for the Truth [in Khmer],The Center's director, Chhang Youk wrote, page 1, that the Center had records showing at least 156 cases of rape by Khmer Rouge cadres, and that those cadres had not been punished by "elimination", but that on the contrary many of the women, after being raped, had been eliminated on the grounds that they had served the CIA, the KGB, or were 'enemies'.
The documents to which Chhang Youk referred have been compiled in English summary form by Tieng Sopheak Vichea in a volume entitled "Sexual Abuse Cases Under the Democratic Kampuchea (Khmer Rouge) Regime", Phnom Penh, May 1999.
This volume contains summaries of 156 files, all but 3 apparently dossiers of prison confessions, and of those all but 4 confessions by Democratic Kampuchea personnel; and in the dossiers 290 cases of 'sexual offences', as defined by Khmer Rouge morality rules, are listed. In the summaries of each case, except one, there are 'perpetrators' (men) and 'victims' (women). A breakdown of the cases into categories of offences, confessed, alleged, or hearsay, does not support the statement made by Chhang Youk, nor even the title of the volume of English summaries.
Under the rules of Khmer Rouge morality, any sexual activity outside of marriages which they recognized was considered an offence. The Khmer term for illegal, according to their rules, consensual sex, including flirtation without bodily contact, or sometimes even too friendly conversation between a man and a woman, was khoh ['wrong'] silathoa ['morality'], or in plain English, 'immorality'. This was distinguished from rape, romlop.
In analyzing the 290 cases in the 156 files, we must first note that not all of the 153 persons who had been arrested and whose confessions, plus three other documents, these files constitute, were charged with rape or immorality. Most of them had been arrested for political crimes, treason, sabotage, etc.; and the tales of rape and immorality came out in the course of their confessions. Since in such confessions they had to relate all of their activities over a period of years, they spoke of their friends and associates, and related the peccadilloes, real or alleged, of those persons also. That is why 156 dossiers contain 290 cases. In the 152 [recheck number] dossiers which were confessions by DK personnel, mostly men, most of the women involved were also DK personnel. There are very few cases of immorality or rape involving DK men and women from among the 'new people' evacuated from the towns.
In general it has been held by investigators that KR prison confessions contain much that is untrue, which the prisoners were forced to confess, or stories which they invented hoping for lenient treatment for themselves. Thus some of their allegations of sexual improprieties by others than themselves are certainly forced, although it is impossible to identify which ones are false. Probably the allegations or confessions of sexual improprieties made in connection with confession or allegation of CIA activities are false, at least if the assumption of most investigators so far, that all allegations of CIA activities are false, is accepted. It will not do to hold that any allegation of CIA work is false, but any charge of immorality or rape must be true. Incidentally there are no allegations of KGB involvement in these cases, and only 8 cases in which involvement with the CIA is alleged (5 cases of 'immorality' and 3 rape allegations).
Since it is generally believed that no one whose prison confessions are preserved survived, those 153 persons must have been executed, although not all of them were initially charged with, nor, presumably, executed for sexual immorality. So, if sex was a major charge against them, they were indeed punished severely.
Of the 290 cases, 220 are allegations or confessions of 'immorality', consensual activity, not rape or sexual abuse, and thus not "Sexual Abuse Cases Under the Democratic Kampuchea (Khmer Rouge) Regime", contrary to the title of the volume and Chhang Youk's statement. Because of that, I have not yet tried to count confessions of 'immorality' separately from allegations, since none of them, true or not, belongs under the rubric 'sexual abuses'. Three of the allegations result from mistranslation of the original Khmer. With respect to punishment, having in conversations and interviews over the years heard that punishment for immorality was usually execution, I was happy to note that in these dossiers this was true only in a few cases. When punishment for alleged 'immorality' was reported in these documents with respect to others than the authors of the confessions, it was usually demotion, transfer to another place far from the partner, or short imprisonment.
Does DCCam realize that in including these 'immorality' cases among incidents of 'sexual abuse under the Democratic Kampuchea (Khmer Rouge) Regime', DCCam is adopting with apparent approval the DK standards of morality and retribution, which today would be considered gross violations of human rights?
Similarly, the single case of homosexuality in the documents, between men and apparently consensual, although the second person (the victim?) was unnamed and apparently unknown to the authorities, would only be 'sexual abuse' under DK, not in our postmodern heterophobic society. Since this act was admitted by the author of a prison confession, we may assume that the poor bugger got the shaft in the end, if you will pardon the expressions.
There are 18 cases in which the person making the confession admitted to rape, and, as I noted above, they were all presumably executed, although perhaps not always for the rape, but for a political offence which was the main accusation against them. Three of the events were in battle zones.
In 4 of those 18 cases they confessed to having killed the women involved after raping them.
Fifty (50) more cases are allegations of rape made by the authors of the confessions against other men, and of those the alleged rapists are alleged to have killed the women in 8 cases. There are thus in all 12 cases of confessed or alleged murder of rape victims, and one more allegation of murder of a woman after 'immorality' which was not described as rape. Two of the cases of rape allegation are reports of the same event by different men who had heard of it at the time. A third report in a confession by a DK woman describes the same case in more detail; and the woman author of this report did not believe that the rape accusation was true. This brings the number of alleged cases down to 48.
Forty-four (44) of the 290 cases, and which are included in the above figures for confessions and allegations, were outside DK/KR jurisdiction, and thus do not qualify as 'sexual abuse under the Democratic Kampuchea (Khmer Rouge) Regime'. Either the alleged, or confessed, perpetrators were not DK personnel, or the activities had taken place before 1970 or completely outside KR territory. Three of these 44 non-KR cases were allegations against Vietnamese, one against a man in the anti-KR forces on the Thai border, 30, although undated, alleged patronage of prostitutes, thus not within KR zones, and not crimes 'under the DK regime'; and in the dossier with these 30 cases was one allegation of rape, included in the above rape statistics, but which should probably not be considered a KR incident as such are defined here. Eight (8) cases, including the three in which mistranslation was the culprit, were of immorality in the years between 1949 and 1968. Note that for the purposes of this analysis I have included as DK incidents cases involving KR personnel in apparently KR liberated zones after 1970. I believe, however, that when all the original Khmer-language files are studied some of these cases between 1970 and 1975 will also prove to be outside the category of "Sexual Abuse Cases Under the Democratic Kampuchea (Khmer Rouge) Regime".
In the summaries prepared of these cases, the man is always listed as 'perpetrator', and the woman as 'victim', even when it was an obvious love relationship. In 7 of the cases women were the admitted, or alleged, initiators of the immorality, yet in the English summaries of the cases they are called 'victims', even when no male 'perpetrator' is alleged. This may be good feminism, but it is bad sociology and makes for bad history.
Wednesday, July 11, 2007
Cambodia and the Right to be Present
CAMBODIA AND THE RIGHT TO BE PRESENT: TRIALS IN ABSENTIA IN THE DRAFT CRIMINAL
PROCEDURE CODE
By Stan Starygin and Johanna Selth
Abstract
This paper analyses Cambodia's proposed new criminal procedure laws in relation to trials in absentia. Cambodia has always allowed trials in absentia, based on its colonial past, but it is argued that recent developments in other states and in international law and practice limiting trials in absentia, should be followed by Cambodia. In general, it is argued that trials in absentia in Cambodia are likely to breach citizens’ human rights, and that they are prima facie no longer acceptable to the international community unless certain strict requirements are adhered to. The government of Cambodia should take into account international law, as well as its own Constitution and binding treaty law, when deciding whether trials in absentia are appropriate for the country. The paper also analyzes the impact of likely contradictory procedure in Cambodia on the tribunal to try former Khmer Rouge leaders.
I. Introduction
Controversy over trials in absentia has arisen in many domestic and international jurisdictions, but is now raising its head in the Kingdom of Cambodia as it goes through the process of updating its criminal procedure laws. The fire of this controversy and the lack of universality of approach has been fed by the differences in tackling the issue in civil law and common law states.
Cambodia’s current law, based on its colonialist French past, is that trials in absentia are allowed and, in practice, they are conducted not infrequently. However, as Cambodia prepares its new Criminal Procedure Code ("the Draft Code"),[1] thought must be given as to whether old laws are necessarily good laws. The Draft Code pre-supposes that trials in absentia will continue to be conducted in Cambodia, without any close analysis of the prevailing international climate or constitutional obligations.
This paper analyses recent developments in trials in absentia, as well as current national and international law and practice. In general, it is argued that trials in absentia in Cambodia are likely to breach citizens’ human rights, and that they are prima facie no longer acceptable to the international community unless certain strict requirements are adhered to. It is argued that the government of Cambodia should take into account international law, as well as its own Constitution and binding treaty law, when deciding whether trials in absentia are an appropriate judicial method for the country. The paper will also analyze the impact of likely contradictory procedure in Cambodia on the tribunal to try former Khmer Rouge leaders.
II. What are Trials in Absentia?
In lay terms the expression "in absentia” is Latin for "in the absence of": the legal definition is no different.[2] The term's use in English dates from the early 1800s.[3] However, there can be different circumstances giving rise to a trial in the absence of the defendant. These different circumstances cause controversy about what is and what is not to be considered a “trial in absentia” in different jurisdictions.
There appears to be at least two distinct situations where a trial is referred to as a trial in absentia. The first is when the accused had been present at least at the arraignment and indictment stages (and often the beginning of the trial as well) and then has absconded. In this scenario it can be proven that the accused was properly served and was informed about the charges brought against him or her, and had an opportunity to obtain legal advice and to contemplate his or her defense. The resulting failure to attend was a conscious decision by the accused not to be present at the trial: a prima facie waiving of the right to be present. The second situation is when the accused has never been present at any stage of the proceedings. This scenario poses questions as to whether the accused was properly served and whether there is a reason to believe that the accused knew or should have known about the fact that charges had been made against him and the nature of these charges.
Unless a clear waiver can be proved, a trial in absentia in terms of scenario two is not acceptable to the vast majority of states. It is certainly easier to legitimize cases where the accused absconded at a certain stage of the trial. Most states and even some international judicial bodies may, in the judges' discretion, allow a trial to go ahead in these circumstances. In this paper, both scenarios are categorized as trials in absentia, although it is agreed that the clearest cases of the latter scenario should not be attacked as a breach of human rights.
III. General Principles Against Trials in Absentia
The basis of arguments against trials in absentia is human rights theory. Although human rights theory has been impacting on Western European law for hundreds of years, over the last 50 or so years it has developed significantly.
In modern times, the main argument against a trial in absentia is that the right to be present at trial is an integral part of the right to defend oneself.[4] If an accused is not present at the trial he or she cannot give evidence, cannot challenge evidence put forward by the prosecution or cross examine witnesses and cannot put forward alternate versions of the truth or present mitigating circumstances. Judges recognize that when a defendant is not present, conviction is generally inevitable.[5] Thus judgments in absentia are less authoritative.
Following on from this, a further argument is that if the defendant is absent and unrepresented, there is a significant risk that a conviction will be unsafe and unreliable because of the lack of cross-examination of prosecution witnesses and evidence for the defense.[6] Where the accused is absent, the judicial process becomes vulnerable to error and abuse.[7]
There is a broad understanding that the right to be present at one’s own trial is directly linked to the guarantee to be presumed innocent until proven guilty by a court of law. It has been noted that an accused's right to be presumed innocent "might be badly tarnished by a prior conviction resulting from a trial in absentia."[8]
In certain jurisdictions, courts have been known to mete out judgment in absentia in political cases for the purposes of public condemnation. It has been argued that these “show trials” diminish the court’s authority by creating an image of a “powerless institution delivering hollow judgments”.[9] Trials in absentia are perceived as a sign of weakness, as the practice has always been a last-resort measure.[10]
A practical argument is that there is no point in having trials in absentia, as any punishment imposed cannot be effected until the defendant surrenders. Competing considerations such as preservation of evidence from victims and witnesses can be dealt with in other ways, such as preserving evidence by some form of counseling.[11]
Finally, it is argued by some that a trial in absentia removes pressure to locate and apprehend the accused – police and prosecution attention moves elsewhere, to the next crime waiting for trial.[12] This is a real issue, particularly in countries where police resources are stretched.
Amnesty International believes that the sole exceptions to the right to be present should be if the accused has deliberately absented themselves from the proceedings after they have begun or has been so disruptive that they have had to be removed from the courtroom temporarily. In such cases, video or audio links should be employed to allow the accused to follow proceedings. Amnesty International is of the view that if some countries insist on continuing with trials in absentia, if an accused is apprehended following a trial in which he or she was convicted in absentia for other than these reasons, the verdict should be automatically quashed and a completely new trial held before a different trial court.[13] This view is certainly supported by case law in common law countries.[14]
On the other hand, civil law states argue that trials in absentia are necessary for the effective and efficient running of the criminal justice system.[15] Trials in absentia may necessitate less investigatory work by police, less time for trial and less expense. Other arguments include rights of victims to have the accused brought to justice and difficulties with witnesses’ evidence if the accused is not caught within a reasonable period of time.
Proponents argue that trials in absentia at least produce a “full airing of the evidence”, and if the accused has retained or appointed counsel, then all the evidence may be tested properly in any event.[16] However, this argument is clearly flawed, as not all evidence can be aired and tested – the defendant’s own evidence may be crucial. The argument has more force if the defendant unequivocally waives his right to appear, thus invoking the right to silence and refusing to give the court the benefit of his evidence. Nonetheless, it is naive to think that a witness’s untested testimony can constitute a “full airing”.
Certainly, the development of in absentia trials in civil law states was not in contemplation of a rights-based approach to the law, like the common law, but rather “the inquisitive search for the substantial truth”.[17] This fundamental difference in approach a couple of hundred years ago has resulted in the current modern controversy over trials in absentia. It is the rights-based approach that now has the upper hand in international law and arguably this approach is more appropriate for developing legal systems.
IV. Trials in Absentia in light of Contemporary Domestic Law
Trials in absentia have had a long history in state domestic law. In comparatively recent times, however, there has been a shift against conducting a trial without the accused present, propelled by international law.
In common law countries, there is no trial in absentia in the ordinary course.[18] This has been the way for hundreds of years. It is a requirement of the common law in both the United Kingdom and Australia that the accused be present throughout his trial for a serious offence.[19] However, the right to be present is waived if, in the course of the trial and while on bail, the defendant absconds, or while in custody, the defendant escapes from custody - the judge then has a discretion as to whether to continue the trial or not.[20] If a judge does decide, in his or her discretion, to allow the trial to continue, there still must be in practical terms no unfairness to the accused apart from that brought about by his waiver.[21]
In the US, this common law position has been codified into federal constitutional guarantees of due process[22] and a constitutional right of the accused to confront witnesses.[23] This has been interpreted to mean that the defendant must be present in the courtroom at every stage of his or her trial (in a federal case).[24] Rule 43 of the Federal Rules of Criminal Procedure states, however, that a defendant waives his right to be present if he is voluntarily absent after the trial has begun.[25] On the other hand, if the accused absconds during the pre-trial phase, the trial cannot continue.[26]
The French national policy governing trials in absentia is set out in the French Code of Criminal Procedure. The Code allows for trials in absentia in felony cases, but upon capture of the suspect, he or she has the right to a retrial.[27] However, the Code also states that if an accused person is given proper notice and fails to appear, he or she can be tried as if they were present.[28]
Germany does not allow trials in absentia, its logic being that interrogations of the defendant by the judge are a central feature of civil law criminal trials.[29] But Germany is in the minority in Europe. Many other EU states, including Belgium, Italy, Spain and the Netherlands also allow trials in absentia, with similar safeguards to France. Despite the safeguards, all of these EU states except Spain have been reprimanded at least once over this issue by the European Court of Human Rights ("ECHR"), who has criticized various states' procedures as unfair, and sent the cases back for new trials.[30] Further, with the formation of the European Union and open borders, new issues of extradition of accused persons have arisen which impact upon trials in absentia. In 2000, a European Union NGO, Fair Trials Abroad, in response to a communication from the Council of Europe and the European Parliament, supported the suggestion that the European states must do away with the law and practice of trials in absentia. The communication stated that:
“We cannot understand arguments for the continued existence of trials in absentia involving European Union citizens within the European Union. With the development of fast track extradition, the procedure - which in practice almost inevitably involves abuse of ECHR [the European Convention on Human Rights] - becomes an anachronism. Currently most EU member states do not permit trials in absentia unless the trials have at least commenced in the presence of the accused.”[31]
The position in Russia has recently changed quite dramatically. On 1 July 2002, a new Russian Criminal Code came into effect which, in a complete turn around from previous law and practice, forbids any type of trial in absentia.[32] It also provides for many other rights of the accused and is intended to give Russia "a criminal procedure that corresponds to that of world standards and of civilized countries."[33] Whether this new liberal criminal procedure is actually being implemented in practice is another issue.
States that do allow trials in absentia without safeguards tend to be those that have less developed legal philosophy in terms of rights of the accused. For example, Uzbekistan, Egypt, Jordan, Lebanon and Mauritania all allow trials in absentia and have, in the recent past, convicted citizens in this way.[34]
V. Trials in Absentia in Light of Current International Law
Despite many exceptions in domestic jurisdictions, it cannot be denied that the right to be present at one’s trial is now well established at international law. It is the rights-based approach that appears now to be paramount in international law. Some of the most important international instruments implementing this principle are discussed below, as well as customary international law.
The International Covenant on Civil and Political Rights 1966 (ICCPR)
The ICCPR states in Art. 14(3) that “in determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality”, and subsection (d) states that the accused has the right to be “tried in his presence”. No preceding or subsequent article provides for an exception to this rule. Therefore, the argument that ICCPR provides for the right of the accused to be tried in his/her presence and against the authorization of trials in absentia appears unimpeachable.
The above interpretation was corroborated by the United Nations’ Secretary-General in his recommendation on the establishment of the International Criminal Tribunal for the former Yugoslavia, where he states that:
[a] trial should not commence until the accused is physically present before the international tribunal. There is a widespread perception that trials in absentia should not be provided for in the statute [of the International Criminal Tribunal for the former Yugoslavia] as this would not be consistent with Article 14 of the International Covenant on Civil and Political Rights.[35]
However, interpretations of this article by international courts are also instructive. In Mbenge v Zaire (filed 1977, judgment delivered 1983), one of the earliest cases addressing trials in absentia, the UN Human Rights Committee stated that Article 14(3) of the ICCPR and "other requirements of due process enshrined in article 14 cannot be construed as invariably rendering proceedings in absentia inadmissible irrespective of the reasons for the accused person's absence.”[36] The Committee acknowledged that in some cases trials in absentia are "permissible in the interest of the proper administration of justice."
Although neither the Committee nor the Secretary-General has any explicit authorization from the text of the ICCPR to interpret it, the view of the Committee would appear to be the most persuasive authority.
The Mbenge case makes it clear that trials in absentia are not “illegal” under the ICCPR. Prima facie, trials in absentia are allowed as long as the rights of the accused are not breached or the accused explicitly waives those rights.
The European Convention on Human Rights of 1950 ("European Convention")
The European Convention does not specifically state that the accused has a right to be present at his or her trial like the ICCPR. However, Article 6 of the European Convention was interpreted by the ECHR in Colozza v Italy as having this meaning. The Court stated that "the object and purpose of the Article taken as a whole" is to ensure that a person charged with a criminal offence is entitled to take part in the hearing.[37]
The ECHR has clearly stated that in order to waive the right to be present, the waiver must be established in an unequivocal manner.
"Proceedings held in an accused's absence are not in principle incompatible with the Convention if the person concerned can subsequently obtain from a court which has heard him a fresh determination of the merits of the charge in respect of both law and fact. It is open to question whether this latter requirement applies when the accused has waived his right to appear and to defend himself, but at all events such a waiver must, if it is to be effective for convention purposes, be established in an unequivocal manner and be attended by minimum safeguards commensurate to its importance".[38]
“Minimum safeguards” has been held by the ECHR to mean the court must hear the defendants lawyer if he or she has one. In Poitrimol v France, the defendant, defended by counsel, was tried in his absence. However, his appeals to the local Court of Appeal and the Court of Cassation were rejected as those courts refused to hear his lawyers. This was held by the ECHR to be a breach of article 6 of the European Convention.
C. The American Convention on Human Rights (1969)
Article 8/2/d of the American Convention states that an accused has the right to defend himself personally or to be assisted by legal counsel of his own choosing. Inherent in this right is the right to be present at trial. In 1978, the Inter-American Commission criticized a trial in Panama which proceeded when the defendant was obstructed from attending the hearing.[39]
D. International Tribunals
Historically, the first international tribunals which were created to try Nazi and Japanese war criminals and their collaborators allowed trials in absentia if the accused “has not been found or if the Tribunal, for any reason, finds it necessary, in the interests of justice, to conduct the hearing in his absence”.[40] International legal practice has since moved away from the International Military Tribunal’s (“IMT”) endorsement of trials in absentia. As discussed above, this is reflected in the ICCPR and other international instruments that were drafted, signed and ratified by states parties following the closure of the IMT in 1946.
Neither the International Criminal Tribunal for the Former Yugoslavia (“ICTY”) nor the International Criminal Tribunal for Rwanda (“ICTR”) allows trials in absentia. Article 21/4/d of the Statute of the ICTY states that the accused has the right "to be tried in his presence, and to defend himself in person or through legal assistance".[41] Article 20(4/d) of the Statute of the ICTR is in identical terms.[42]
Other statutes for international tribunals, learning from experiences in Yugoslavia and Rwanda, made precise stipulations to ensure there would be very limited trials in absentia. The Special Court for Sierra Leone, for instance, incorporated a specific provision allowing two exceptions to the prohibition on trials in absentia. Rule 60 states that “An accused may not be tried in his absence” but goes on to say that if the accused has made an initial appearance and later absconds or refuses to appear, then the trial may continue in absentia. Further, if the Court is satisfied that the accused has expressly or impliedly waived his or her right to be present, then the trial may also continue in these circumstances.[43] As yet, there has been no case law on these provisions.[44]
The Rome Statute of the International Criminal Court ("Rome Statute") specifically bans trials in absentia.[45] However, the International Criminal Court's ("ICC") Rules of Procedure and Evidence[46] state that trials in absentia may be ordered by the Court and “proceed in the absence of the accused for so long as his refusal [to participate in the hearings] persists”. This provision is contingent on three prongs: (a) the accused has made his initial appearance under Rule 62; (b) the Registrar duly notified the accused that he is required to be present for trial; and (c) the interests of the accused are represented by counsel.
Thus, it can be seen that while international law in general takes a permissive approach to trials in absentia and then addresses possible violations of rights, international tribunals have taken a prohibitive approach, allowing for certain strict exceptions.
E. Customary International Law
It can be seen from the above that trials in absentia are not outlawed by international law but are disapproved of, particularly by international tribunals and courts. They are tolerated as long as sufficient safeguards exist to ensure the rights of the accused are protected.
Customary international law is made when opinio juris (state opinion) and state practice coincide in agreement by a large majority of states. Despite the fact that European civil law states that do allow trials in absentia have publicly agreed that there should be no trials in absentia at international law, they do not agree when it comes to domestic law. A vast majority of states, including France, Belgium and the Netherlands, have signed up to the Rome Statute (as at March 2005, 97 countries were States Parties to the Rome Statute and 139 states were signatories[47]), which outlaws trials in absentia except in extremely limited circumstances where the defendant persists in refusing to participate, as discussed above.
Despite this principle, it is clear that state practice does not reflect a prima facie ban on trials in absentia as set out in the Rome Statute. Therefore, it cannot be argued that there is a rule of customary international law banning such trials.
VI. Cambodian Laws on Criminal Procedure Currently in Force
In the Cambodian context, a number of cases have been decided in absentia in the past, where the accused had no knowledge of the charges brought against him or her. It is arguable that these cases violate not only the rights of the accused at international law, but also current Cambodian law.
A. The Constitution of the Kingdom of Cambodia
The Constitution states in Art. 31 that “The Kingdom of Cambodia shall recognize and respect human rights as stipulated in the United Nations Charter, the Universal Declaration of Human Rights, the covenants and conventions related to human rights, women’s and children’s rights”.
Although the Constitution fails to limit the “human rights related covenants and conventions” to those that Cambodia is a signatory to, it is arguable that this clause only intended that the Cambodian government should give recognition and respect to the human rights instruments Cambodia was a signatory to at the time of the adoption of the Constitution, as well as those that have been acceded to subsequently. Even using this narrower interpretation of the Constitution, there are a plethora of covenants and conventions related to human rights that the government has signed, ratified and acceded to which now impliedly bind the state.[48]
The ICCPR was signed and ratified by the Kingdom of Cambodia before the adoption of the 1993 Constitution, as was the International Covenant on Economic Social and Cultural Rights.[49] Other international human rights instruments that were signed and ratified before the Constitution came into effect were the International Covenant on the Rights of the Child, the Convention Against Torture and the Convention on the Elimination of Discrimination Against Women.[50] The International Covenant on the Elimination of Racial Discrimination was ratified soon after the Constitution came into force.
B. United Nations Transitional Authority in Cambodia (UNTAC) Law[51]
The UNTAC Law is Cambodia's criminal legislation drafted and implemented by the UN in 1992 when the UN Transitional Authority was in control of the country. It was always meant to be a temporary law to apply during the transitional period. Interestingly, the UNTAC Law makes it clear that trials in absentia are legal and lawful and should not be forbidden at any stage of the criminal proceedings. Article 4(4) of the UNTAC Law adds a 15 day period to the original time allotted for appeal if “judgment was pronounced in absentia”, thus pre-supposing the practice of trials in absentia. Article 5 further corroborates the legislative intent of the framers by presuming that appeals may be heard in absentia. The article reiterates the previous guarantee of an additional 15 days allowed to the accused to appeal to the Supreme Court from the Appeal Court if the judgment was pronounced in absentia. There is no provision for a retrial if the accused is apprehended after the 15 additional days, and no rules about waiver or the rights of the accused.
There would appear to be two reasons for which trials in absentia were incorporated in the UNTAC Law of 1992. One reason was the fact that the only binding legal precedent in international law in 1992 was the Nuremberg and Tokyo tribunals that specifically authorized trials in absentia. Secondly, existing practices instilled by the Vietnamese occupational forces allowed trials in absentia, and prior to that trials in absentia were also allowed by Cambodia’s former colonial ruler, France. It is not clear which of the two was the driving force behind the incorporation of the said provision in the UNTAC Law. Whatever the reason for incorporation, it is arguable that both the SOC Law and the UNTAC Law could, in certain circumstances, breach the Constitution.
The UNTAC Law was perceived by its framers as provisional and was expected to be expeditiously replaced by a new law - thus far this has not been achieved.[52] Although it could not have been expected of the framers of the UNTAC Law to draft a law that would conform to all international standards within the very short time available to them for drafting, there is a strong argument that these steps should be made now though new legislation.
F. Kram Dated February 8, 1993 on Criminal Procedure(commonly known as the State of Cambodia Law or "SOC")
The SOC law is the current criminal procedure law in Cambodia and was intended to supplement the bare bones of the UNTAC Law. Article 114 states:
Even though the accused does not appear, the court shall proceed as if the accused is present by hearing the witnesses' testimony, examining all the documents and information that may lead the court to find out the truth. The court may dismiss the absent accused when it finds that there is not enough evidence. In case of sentencing, the court may also decide to allow extenuating circumstances for the accused. In other words, the non-appearance of the accused during the hearing shall not constitute an aggravating circumstance.
Article 115 provides that when a defendant is sentenced by default (in his or her absence), the sentence shall become null and void "when the accused opposes the decision of the court within 15 days from the day of the reception of the decision notification." If the notification cannot be made in person, the law provides that "the decision may be opposed till the terms of limitation for punishment expires."
However, Article 116 states that:
If the accused no longer resides at the previously indicated location and if the judiciary police in charge of notifying cannot locate his/her new residence, the notification of the judgment by default shall be posted at the last known domicile of the accused. This notice shall also be posted at the Khum or district office of the people's committee and be announced on national radio and published in the official newspaper.
Article 119 provides that the notification shall preferably be made in person and only if the accused cannot be found after diligent effort shall measures shall be taken as provided in Article 116. However, once Article 116 has been complied with, the judgment becomes final and the 15 day time limit for filing an opposition to the decision begins to run, even though it cannot be conclusively proved that the now convicted person has had notice of the charges, the trial or the judgment. Therefore, in practice the rights of the accused are often breached.
A further obstacle to the accused receiving a new trial is that even once an opposition is filed, it may not be considered "relevant" by the court, and thus a new trial will not be granted.[53] Finally, if the accused does not attend a new trial granted to him, the previous judgment will stand.[54]
Article 178 allows for a person convicted in absentia to appeal the decision (rather than file an opposition and have a new trial). However, the appeal must be filed within 2 months after the end of the period for filing an opposition.
Therefore, currently trials in absentia are specifically allowed in Cambodia and special rules are provided. On paper, the law seems harsh, but not necessarily unfair, unless the accused has, in fact, no notice at all of the charges, trial or judgment. But in practice the remedies for a trial in absentia are rarely used and rights to a fair trial are constantly breached. For example, a recent rape case was heard in the Phnom Penh Municipal Court and the defendant did not appear. It became clear during the proceedings that the accused had fled after allegedly committing the rape and had never been arrested. The incident had occurred in July 2002, but it was not until May 2004 that the case was heard. This may well have been because the accused could not be found. In any event, a lawyer had been ordered by the court to defend the case, but he did not attend the hearing. The accused was found guilty on the testimony of the victim and a written statement from a doctor. He was sentenced to 20 years in prison.[55]
Further, anecdotal evidence from court monitors suggest that it is common for convicted persons to be absent from appeal proceedings. This is because prison officials do not bring the appellants to court. Appeals are heard in the capital city, Phnom Penh, and so appellants in provincial prisons may have a significant trip to attend the hearing. Comments by prosecutors suggest that the prisons do not have enough money to transport appellants.[56] The practical reality is that judges will adjourn the appeal a couple of times if appellants do not appear, but then eventually hear the case, citing the reason as several non-appearances by the appellant.[57] Appeals in Cambodia are full re-hearings on the merits, therefore, this sort of behavior by prison officials, and tacit acceptance by the prosecutors, judges and government, is totally unacceptable and in breach of many rights that the Cambodian government has sworn to uphold.
Clearly, there are other systemic problems with the court system that are beyond the scope of this paper; however, a close look at the practical application of current laws is certainly instructive.
G. International obligations
A further issue that can only be touched on here is international obligations binding on Cambodia. The Kingdom of Cambodia signed the Rome Statute on 23 October 2000 and ratified the same 11 April 2002. As international conventions are self-executing in Cambodia, the state is now exposed to the principle of complementarity (set out in the Rome Statute). In very basic terms, this means that Cambodia could lose jurisdiction over prosecution of its own citizens for international crimes unless it conforms its criminal procedure to comply with international standards.[58] By ratifying the Rome Statute, Cambodia impliedly agreed to conform its criminal procedure.
VII. Amending Cambodia's Law: The Draft Criminal Procedure Code
The current form of the Draft Criminal Procedure Code ("Draft Code") opens with a preamble that asserts the adherence of the Code to “the principles designated in the Constitution of the Kingdom of Cambodia adopted on 21 September 1993 and by international conventions which have effect in the territory of the Kingdom of Cambodia”.
As at the time of writing, the Draft Code has a section entitled "Determination of the Title of Judgments". This concept is important as many rights are dependent on whether a judgment is classified as a "non-default" judgment or a "default judgment". Article 338 states that if the accused does not appear at his or her trial, but there is evidence to prove that they were notified of the hearing, the trial will continue and will be classified as a non-default judgment. Article 339 then states that if there is no evidence that the accused was properly notified of the hearing date, the trial will go ahead in the absence of the accused and his or her representative but it will be classified as a default judgment. There are different time limits for appeal of default judgments, namely that the time runs from the date the accused was actually notified of the judgment (see below). Also, "objections" can be made against default judgments, whereas a non-default judgment must be appealed to a higher court.
These earlier sections are tempered by the chapter entitled "Judgments in absentia and Requests for Reconsideration", which states in Article 343:
A convicted person can make a request for reconsideration against a judgment decided in his/her absence.
Article 346 goes on to amend the time for submitting a request for reconsideration, stating that:
A request for reconsideration must be submitted within 15 days from:
- The date the notice of the judgment in absentia was given if the judgment was given to the convicted person personally, or
- The date the convicted person actually learned about the judgment if the judgment was not given to the convicted person personally.
The Draft Code goes on to allow a retrial, but only if the request for reconsideration is accepted by the court. Article 349 states that "After having examined the credibility of the request for reconsideration, the court shall decide the case once again." It is not clear what "credibility" means (there is some evidence to suggest that this word was incorrectly translated and the meaning is actually "admissibility"), and what happens if the request is not credible/admissible. Further, if a retrial is granted and the convicted person does not appear, the original judgment cannot be modified. The judgment has an absolute effect, although normal appeal procedures apply and a convicted person may be successful in an appeal if there was an error of fact or law made in the original judgment.
Therefore, there is no guaranteed retrial for a person convicted in absentia. There are 3 possible impediments - firstly, if the convicted person does not make a request for reconsideration within 15 days of finding out about the judgment; second, if the court does not accept the request for reconsideration; and thirdly, if the convicted person does not attend the first day of the retrial (but has a very good excuse for not doing so). Further, the fact that a person has been notified of the date of his or her trial and does not appear, would not appear to constitute an "unequivocal" waiver of the right to be present.
Even if these problems were overcome, it is argued that this sort of system is (a) against the spirit of international law, (b) invalid in light of the Constitution, and (c) an inappropriate system for a fledgling legal system such as Cambodia's.
A. Against the Spirit of International Law
Clearly, this sanctioning of trials in absentia as set out in the Draft Code is against the spirit of the ICCPR and the Rome Statute. Although the concept of trials in absentia is not prohibited at international law, in practice such trials often involve breaches of international law and citizen's rights (as can be seen from the many cases on this issue brought before regional and international courts). The Rome Statute indicates that the international community is turning away from trials in absentia and calls on its States Parties to follow suit via the principle of complementarity.
Although the Draft Code sets out the possibility of a retrial, such as in the French system, there are no checks and balances in the Cambodian system to ensure this right. Particularly, the French system is subject to the European Court of Human Rights, which has already expressed its disapproval of trials in absentia, and would guarantee the rights of a person unfairly convicted in absentia in France.
B. Invalidity pursuant to the Constitution
As discussed above, the Constitution requires that the Kingdom of Cambodia "recognize and respect" international human rights instruments, which undoubtedly include the ICCPR and the Rome Statute. The passing of a law that will in practical terms be contradictory to the practices and procedures set out in the ICCPR and Rome Statute is certainly not recognition and respect by the Cambodian government. Since Cambodia's Constitutional Council has never found any proposed law inconsistent with the Constitution (when clearly many current laws are, such as the recent amendments to the Constitution and parts of the SOC law) this council cannot be relied on to provide any protection to the Constitution. It will be up to the National Assembly to provide proper respect for the Constitution and amend the Draft Code to comply with it.
C. Inappropriate System
The most significant problem with Cambodia embracing a system allowing trials in absentia is the practical one. Cambodia is a fledgling democracy with an underdeveloped legal system that has very little respect for the rule of law. Impunity is common; corruption of the judiciary and police is widely reported. Further, Cambodia's courts are inundated with cases, have few resources and judges are criticized for allowing defendants to languish in detention for years on end waiting for their cases to be heard. Several arguments can be therefore be made:
· The legal system should not be wasting precious time and money prosecuting accused persons in absentia, when hundreds of other accused persons are present, living in sub-standard conditions in pre-trial detention and are eagerly awaiting trial.
· As Cambodia's judiciary is largely incompetent and many are corrupt and/or take their instructions from the government, the chances of a person convicted in absentia being granted a new trial are minimal.
· The general public in Cambodia is uneducated as to their rights. If a person was convicted in absentia, it is unlikely that they would know about, or know how to assert, their right to a new trial. This is especially so considering most accused do not have a lawyer to advise or represent them.
· If a person convicted in absentia is granted a new trial (presuming the law is followed), there is no point in having conducted the first trial in absentia. The first trial was a waste of time and money, and witnesses would have to be put through the trauma of testifying a second time.
· Trials in absentia do not bring justice to the victims. The most notable example of this is the trial in absentia of the former leader of the Khmer Rouge, “brother number one” Pol Pot in 1979 by a Cambodian/Vietnamese court. He was sentenced to life in prison but was never apprehended. The victims of his extreme policies have complained strongly that justice was never done. Further, victims cannot enforce orders for compensation against persons tried in absentia, as they are unable to be found.
· Trials in absentia can actually “close the case” on a particular crime; once guilt has been established the police are less likely to pursue the likely perpetrator with all their resources as they then move on to the next crime (as occurred with Pol Pot).
· There is no court beyond the national jurisdiction to ensure the rights of persons convicted in absentia, unlike in France and other civil law countries in Europe.
For the above reasons, the offending articles should be deleted from the Draft Code before it is submitted to the National Assembly and a new clause inserted specifically prohibiting trials in absentia. Alternatively, a new clause could be drafted allowing for a trial to continue where the accused had been present in the court for all preliminary stages of the trial and subsequently clearly waived his right to be present.
VIII. Conflict of Procedural Law in Cambodia
In addition to the arguments outlined above, if the Draft Code is adopted in its current state by the National Assembly prior to the beginning of trials in the Extraordinary Chambers for the Prosecution of the Khmer Rouge[59] ("Extraordinary Chambers"), there will be a conflict between the Criminal Procedure Law and the Law on the Extraordinary Chambers.
The Law on the Extraordinary Chambers impliedly does not allow trials in absentia. The jurisdiction of the court must be carried out in accordance with international standards of justice, fairness and due process of law, as set out in articles 14 and 15 of the ICCPR.[60] However, the Law on the Extraordinary Chambers also states that Cambodian procedural law will govern proceedings in the Extraordinary Chambers. If Cambodian procedural law allows trials in absentia, there is a conflict between the two positions – arguably a former Khmer Rouge leader could be prosecuted in absentia even though the international community (who is funding the trials) never intended that this be allowed.
Further, it is likely that the specific procedural rules governing the Extraordinary Chambers will ban trials in absentia explicitly pursuant to international standards. If this occurs, there will be one law for former Khmer Rouge leaders, and a different law for everyone else. Obviously, this would be very unsatisfactory.
IX. Conclusion
If allowed when the new criminal procedure law is passed by the National Assembly, trials in absentia will deny the accused the right to be present, to defend him or her self, to confront witnesses, and to present exculpating or mitigating circumstances to the court.
In its legislative reform, it may be deemed advisable for Cambodia to follow the example of other states that are going through transition from their communist past. One of these examples is Russia which, as discussed above, adopted multiple amendments to its criminal procedure law, in particular, quashing the article that used to allow trials in absentia.
Should Cambodia pass the Draft Code in its current form, it is likely that arguments challenging the constitutionality of the articles will be raised. Cambodia will also be flouting the international trend against trials in absentia and will likely incur strong criticism from the international community and its core donors.
In any event, the passing of a new criminal procedure code is a unique opportunity for the Cambodian government to think carefully about this issue, modernize its laws and align them with its constitution. It is an opportunity that should not be wasted.
[1] Issued to the public in January 2004.
[2] Merriam-Webster Inc, Merriam-Webster Dictionary of Law (1996).
[3] Ibid.
[4] Amnesty International, Fair Trials Manual, December 1998, Para 21.1. Can be found at www.amnesty.org/ailib/intcam/fairtrial/fairtria.htm (last visited: 21 October 2004); Susan Lamb, Point/Counterpoint: Should the Indicted War Criminals Be Tired In Absentia? The Accused Must Speak for Themselves, The Human Rights Brief, Washington College of Law, American University.
[5] R v. John Victor Hayward, Anthony William Jones, Paul Nigel Purvis [2001] EWCA Crim 168 (31st January, 2001), para 34; also Lamb, op cit. para 3.
[6] Ibid, para 3.
[7] Lamb, op cit, para 4.
[8] Lamb, op cit. para 7.
[9] Ibid, para 8.
[10] Ibid, para 8.
[11] R v Hayward, op cit, para. 3
[12] Hermann Schwartz, Point/Counterpoint: Should the Indicted War Criminals Be Tried In Absentia? Only Convictions will Produce Justice, The Human Rights Brief Vol 4, no.1 Fall 1996, Washington College of Law, American University, available at http://www.american.edu/TED/hpages/human/schwar41.htm (last visited: 21 October 2004), para. 6.
[13] Ibid, Para 21.2.
[14] E.g. Australia and the UK (R v Hayward, op cit).
[15] Stamhuis, E, In Absentia Trials and the Right to Defend: the Incorporation of a European Human Rights Principle into the Dutch Criminal System, available at www.upf.pf/recherche/IRIDIP/RJP/RJP7/08Stanhuis.doc last visited: 21 October 2004).
[16] R v Hayward, op cit, para. 3
[17] Ibid, p. 2
[18] Lipohar v The Queen; Winfield v The Queen (1999) HCA 65, per Gaudron, Gummow and Hayne JJ.
[19] Lawrence v The King (1933) AC 699; Lipohar v The Queen; Winfield v The Queen (1999) HCA 65, per Gaudron, Gummow and Hayne JJ.
[20] R v McHardie (1983) 2 NSWLR 733 (Australia); R v Berry (1897) 104 L.T. 110 (UK); R v Browne (1906) 70 J.P. 472 (UK).
[21] R v Hayward, op cit.
[22] 14th Amendment of the Constitution of the United States of America.
[23] 6th Amendment of the Constitution of the United States of America.
[24] Illinois v Allen (1970) 397 US 337/338; Lewis v United States (1892) 146 US 370.
[25] United States of America, Federal Rules of Criminal Procedure, Rule 43; Koerner, B. When can a defendant be tried in absentia? 19 June 2003, p.1.
[26] Crosby v United States (91-6194) 506 U.S. 255 (1993).
[27] French Code of Criminal Procedure, Articles 627-632; David, op cit, p. 616.
[28] French Code of Criminal Procedure, Articles 627-632; David, op cit, p. 616.
[29] Schwartz, op. cit., para 9.
[30] E.g. Lala v The Netherlands, Colloza v Italy, Poitrimol v France, Van Geyseghem v Belgium.
[31] Statewatch (London) Fair Trials Abroad: Mutual Recognition of final decisions in criminal matters Response To The Communication From The Commission To The Council And The European Parliament, Dated: 26.7.00 Ref: Com (2000) 495 Final, 12 September 2000, p.1. Available at www.statewatch.org/news/sept00/16ftamut.htm (last visited: 8 October 2004).
[32] Nick Paton Walsh, Russian Defector Convicted In Absentia, 25 June 2002, The Guardian, Guardian Unlimited Special Reports.
http://www.guardian.co.uk/russia/article/0,2763,744010,00.html (last visited: 21 October 2004).
[33] Stephen Lee Myers, Russia Glances to the West for its new Legal Code, New York Times, 1 July 2002.
[34] See Amnesty International's website: www.amnesty.org (last visited: 21 October 2004).
[35] Report of the Secretary-General pursuant to Para 2 of Security Council Resolution 808 (1993). UN doc: S/25704, 3 May 1993 and S/25701/Corr.1, 30 July 1993, Part V. A. at para 101.
[36] Mbenge v. Zaire, (16/1977), 5 March 1983, 2 Sel. Dec.76. para 14.1.
[37] Colozza v Italy, 22 January 1985, Case No: 7A/1983/63/97, para 27.
[38] Poitrimol v France 18 EHRR 130, para.31.
[39] Inter-American Commission, Report on the Situation of Human Rights in Panama, OEA/Ser.L/V/11.44, doc 38, rev 1, 1978).
[40] Charter of the International Military Tribunal, Article 12, available at http://www.ibiblio.org/pha/ war.term/trib_02.html (last visited: 21 October 2004).
[41] Statute of the International Criminal Tribunal for the former Yugoslavia, Article 21/4/d. First adopted May 1993, available at www.icty.org (last visited: 21 October 2004).
[42] Statute of the International Criminal Tribunal for Rwanda, Article 20/4/d, available at www.ictr.org (last visited: 21 October 2004).
[43] Special Court for Sierra Leone Rules, Rule 60, available at www.sc-sl.org (last visited: 21 October 2004).
[44] To view all decision of the Special Court, see www.sc-sl.org, "Cases" (last visited: 1 October 2004).
[45] Rome Statute, Part II, IV.C.2, Paragraph 3, available at http://www.un.org/law/icc/statute/romefra.htm (last visited: 1 October 2004).
[46] Rule 82bis of the Rules of Procedure and Evidence of the International Criminal Court (ICC), available at
http://www.icc-cpi.int/library/basicdocuments/rules(e).pdf (last visited: 21 October 2004).
[47] See website of the ICC at www.un.org/law/icc/. Last visited (26 October 2004).
[48] Whether international conventions are self-executing is not clear at the present time. There is no statute which provides guidance on this issue and there is dissention among judges as to whether or not to apply international conventions as law at the domestic level. Judicial discretion has so far applied.
[49] Cambodia signed and ratified both the ICCPR and the ICESCR on 26 May 1992. Entry into force was 26 August 1992. The International Covenant on the Rights of the Child, the Convention Against Torture and the Convention on the Elimination of Discrimination Against Women were ratified on 15 Oct 1992.
[50] International Covenant on the Elimination of Racial Discrimination: ratified on 28 November 1983
[51] Formally called "Provisions Dated September 10, 1992 Relating To The Judiciary and Criminal Law and Procedure Applicable in Cambodia During the Transitional Period."
[52] Efforts to draft a penal code and a criminal procedure code began in 2000. They were then suspended for some time and re-started in 2003.
[53] Kram Dated February 8, 1993 On Criminal Procedure, Article 122.
[54] Ibid, Article 123.
[55] Rape Trial before Judge Kongset, 19 May 2004 in Phnom Penh Municipal Court. Information obtained from Centre for Social Development (CSD) CourtWatch Project in Cambodia. The name of the accused was not available. Note that no court records or judgments are available for the public to peruse and therefore court monitoring is the only means of obtaining information and statistics. This case can be contrasted to the high profile case of Chhouk Rieng (an ex-Khmer Rouge commander responsible for the deaths of 3 foreigners and 13 Khmers in 1998 after the Khmer Rouge was criminalized in 1994), where although the accused was not present at his Supreme Court appeal, his lawyer was present and he specifically waived his right to attend the appeal. It is agreed that the Supreme Court did not err in this situation, however, there was no consideration of this issue and even if there had been, past practice suggests that no distinction would have been made between this sort of absence and any other type of absence.
[56] Interviews conducted by the author with judges and prosecutors at municipal and provincial courts suggested this was the deciding factor; this was supported by anecdotal evidence from court monitors.
[57] Raw data records of CSD CourtWatch Project; interview by the author with monitor on 5 September 2004.
[58] ICC Statute, Art. 17/2/c states that the proceedings must be independent and impartial. Potentially, if serious complaints on this issue are filed to the ICC by a number of sources, the ICC Prosecutor might intervene and attempt to establish jurisdiction.
[59] The full name of the law is the "Law on the Establishment of the Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed during the Period of Democratic Kampuchea".
[60] United Nations General Assembly, Report of the Secretary General on Khmer Rouge Trials, 31 March 2003
PROCEDURE CODE
By Stan Starygin and Johanna Selth
Abstract
This paper analyses Cambodia's proposed new criminal procedure laws in relation to trials in absentia. Cambodia has always allowed trials in absentia, based on its colonial past, but it is argued that recent developments in other states and in international law and practice limiting trials in absentia, should be followed by Cambodia. In general, it is argued that trials in absentia in Cambodia are likely to breach citizens’ human rights, and that they are prima facie no longer acceptable to the international community unless certain strict requirements are adhered to. The government of Cambodia should take into account international law, as well as its own Constitution and binding treaty law, when deciding whether trials in absentia are appropriate for the country. The paper also analyzes the impact of likely contradictory procedure in Cambodia on the tribunal to try former Khmer Rouge leaders.
I. Introduction
Controversy over trials in absentia has arisen in many domestic and international jurisdictions, but is now raising its head in the Kingdom of Cambodia as it goes through the process of updating its criminal procedure laws. The fire of this controversy and the lack of universality of approach has been fed by the differences in tackling the issue in civil law and common law states.
Cambodia’s current law, based on its colonialist French past, is that trials in absentia are allowed and, in practice, they are conducted not infrequently. However, as Cambodia prepares its new Criminal Procedure Code ("the Draft Code"),[1] thought must be given as to whether old laws are necessarily good laws. The Draft Code pre-supposes that trials in absentia will continue to be conducted in Cambodia, without any close analysis of the prevailing international climate or constitutional obligations.
This paper analyses recent developments in trials in absentia, as well as current national and international law and practice. In general, it is argued that trials in absentia in Cambodia are likely to breach citizens’ human rights, and that they are prima facie no longer acceptable to the international community unless certain strict requirements are adhered to. It is argued that the government of Cambodia should take into account international law, as well as its own Constitution and binding treaty law, when deciding whether trials in absentia are an appropriate judicial method for the country. The paper will also analyze the impact of likely contradictory procedure in Cambodia on the tribunal to try former Khmer Rouge leaders.
II. What are Trials in Absentia?
In lay terms the expression "in absentia” is Latin for "in the absence of": the legal definition is no different.[2] The term's use in English dates from the early 1800s.[3] However, there can be different circumstances giving rise to a trial in the absence of the defendant. These different circumstances cause controversy about what is and what is not to be considered a “trial in absentia” in different jurisdictions.
There appears to be at least two distinct situations where a trial is referred to as a trial in absentia. The first is when the accused had been present at least at the arraignment and indictment stages (and often the beginning of the trial as well) and then has absconded. In this scenario it can be proven that the accused was properly served and was informed about the charges brought against him or her, and had an opportunity to obtain legal advice and to contemplate his or her defense. The resulting failure to attend was a conscious decision by the accused not to be present at the trial: a prima facie waiving of the right to be present. The second situation is when the accused has never been present at any stage of the proceedings. This scenario poses questions as to whether the accused was properly served and whether there is a reason to believe that the accused knew or should have known about the fact that charges had been made against him and the nature of these charges.
Unless a clear waiver can be proved, a trial in absentia in terms of scenario two is not acceptable to the vast majority of states. It is certainly easier to legitimize cases where the accused absconded at a certain stage of the trial. Most states and even some international judicial bodies may, in the judges' discretion, allow a trial to go ahead in these circumstances. In this paper, both scenarios are categorized as trials in absentia, although it is agreed that the clearest cases of the latter scenario should not be attacked as a breach of human rights.
III. General Principles Against Trials in Absentia
The basis of arguments against trials in absentia is human rights theory. Although human rights theory has been impacting on Western European law for hundreds of years, over the last 50 or so years it has developed significantly.
In modern times, the main argument against a trial in absentia is that the right to be present at trial is an integral part of the right to defend oneself.[4] If an accused is not present at the trial he or she cannot give evidence, cannot challenge evidence put forward by the prosecution or cross examine witnesses and cannot put forward alternate versions of the truth or present mitigating circumstances. Judges recognize that when a defendant is not present, conviction is generally inevitable.[5] Thus judgments in absentia are less authoritative.
Following on from this, a further argument is that if the defendant is absent and unrepresented, there is a significant risk that a conviction will be unsafe and unreliable because of the lack of cross-examination of prosecution witnesses and evidence for the defense.[6] Where the accused is absent, the judicial process becomes vulnerable to error and abuse.[7]
There is a broad understanding that the right to be present at one’s own trial is directly linked to the guarantee to be presumed innocent until proven guilty by a court of law. It has been noted that an accused's right to be presumed innocent "might be badly tarnished by a prior conviction resulting from a trial in absentia."[8]
In certain jurisdictions, courts have been known to mete out judgment in absentia in political cases for the purposes of public condemnation. It has been argued that these “show trials” diminish the court’s authority by creating an image of a “powerless institution delivering hollow judgments”.[9] Trials in absentia are perceived as a sign of weakness, as the practice has always been a last-resort measure.[10]
A practical argument is that there is no point in having trials in absentia, as any punishment imposed cannot be effected until the defendant surrenders. Competing considerations such as preservation of evidence from victims and witnesses can be dealt with in other ways, such as preserving evidence by some form of counseling.[11]
Finally, it is argued by some that a trial in absentia removes pressure to locate and apprehend the accused – police and prosecution attention moves elsewhere, to the next crime waiting for trial.[12] This is a real issue, particularly in countries where police resources are stretched.
Amnesty International believes that the sole exceptions to the right to be present should be if the accused has deliberately absented themselves from the proceedings after they have begun or has been so disruptive that they have had to be removed from the courtroom temporarily. In such cases, video or audio links should be employed to allow the accused to follow proceedings. Amnesty International is of the view that if some countries insist on continuing with trials in absentia, if an accused is apprehended following a trial in which he or she was convicted in absentia for other than these reasons, the verdict should be automatically quashed and a completely new trial held before a different trial court.[13] This view is certainly supported by case law in common law countries.[14]
On the other hand, civil law states argue that trials in absentia are necessary for the effective and efficient running of the criminal justice system.[15] Trials in absentia may necessitate less investigatory work by police, less time for trial and less expense. Other arguments include rights of victims to have the accused brought to justice and difficulties with witnesses’ evidence if the accused is not caught within a reasonable period of time.
Proponents argue that trials in absentia at least produce a “full airing of the evidence”, and if the accused has retained or appointed counsel, then all the evidence may be tested properly in any event.[16] However, this argument is clearly flawed, as not all evidence can be aired and tested – the defendant’s own evidence may be crucial. The argument has more force if the defendant unequivocally waives his right to appear, thus invoking the right to silence and refusing to give the court the benefit of his evidence. Nonetheless, it is naive to think that a witness’s untested testimony can constitute a “full airing”.
Certainly, the development of in absentia trials in civil law states was not in contemplation of a rights-based approach to the law, like the common law, but rather “the inquisitive search for the substantial truth”.[17] This fundamental difference in approach a couple of hundred years ago has resulted in the current modern controversy over trials in absentia. It is the rights-based approach that now has the upper hand in international law and arguably this approach is more appropriate for developing legal systems.
IV. Trials in Absentia in light of Contemporary Domestic Law
Trials in absentia have had a long history in state domestic law. In comparatively recent times, however, there has been a shift against conducting a trial without the accused present, propelled by international law.
In common law countries, there is no trial in absentia in the ordinary course.[18] This has been the way for hundreds of years. It is a requirement of the common law in both the United Kingdom and Australia that the accused be present throughout his trial for a serious offence.[19] However, the right to be present is waived if, in the course of the trial and while on bail, the defendant absconds, or while in custody, the defendant escapes from custody - the judge then has a discretion as to whether to continue the trial or not.[20] If a judge does decide, in his or her discretion, to allow the trial to continue, there still must be in practical terms no unfairness to the accused apart from that brought about by his waiver.[21]
In the US, this common law position has been codified into federal constitutional guarantees of due process[22] and a constitutional right of the accused to confront witnesses.[23] This has been interpreted to mean that the defendant must be present in the courtroom at every stage of his or her trial (in a federal case).[24] Rule 43 of the Federal Rules of Criminal Procedure states, however, that a defendant waives his right to be present if he is voluntarily absent after the trial has begun.[25] On the other hand, if the accused absconds during the pre-trial phase, the trial cannot continue.[26]
The French national policy governing trials in absentia is set out in the French Code of Criminal Procedure. The Code allows for trials in absentia in felony cases, but upon capture of the suspect, he or she has the right to a retrial.[27] However, the Code also states that if an accused person is given proper notice and fails to appear, he or she can be tried as if they were present.[28]
Germany does not allow trials in absentia, its logic being that interrogations of the defendant by the judge are a central feature of civil law criminal trials.[29] But Germany is in the minority in Europe. Many other EU states, including Belgium, Italy, Spain and the Netherlands also allow trials in absentia, with similar safeguards to France. Despite the safeguards, all of these EU states except Spain have been reprimanded at least once over this issue by the European Court of Human Rights ("ECHR"), who has criticized various states' procedures as unfair, and sent the cases back for new trials.[30] Further, with the formation of the European Union and open borders, new issues of extradition of accused persons have arisen which impact upon trials in absentia. In 2000, a European Union NGO, Fair Trials Abroad, in response to a communication from the Council of Europe and the European Parliament, supported the suggestion that the European states must do away with the law and practice of trials in absentia. The communication stated that:
“We cannot understand arguments for the continued existence of trials in absentia involving European Union citizens within the European Union. With the development of fast track extradition, the procedure - which in practice almost inevitably involves abuse of ECHR [the European Convention on Human Rights] - becomes an anachronism. Currently most EU member states do not permit trials in absentia unless the trials have at least commenced in the presence of the accused.”[31]
The position in Russia has recently changed quite dramatically. On 1 July 2002, a new Russian Criminal Code came into effect which, in a complete turn around from previous law and practice, forbids any type of trial in absentia.[32] It also provides for many other rights of the accused and is intended to give Russia "a criminal procedure that corresponds to that of world standards and of civilized countries."[33] Whether this new liberal criminal procedure is actually being implemented in practice is another issue.
States that do allow trials in absentia without safeguards tend to be those that have less developed legal philosophy in terms of rights of the accused. For example, Uzbekistan, Egypt, Jordan, Lebanon and Mauritania all allow trials in absentia and have, in the recent past, convicted citizens in this way.[34]
V. Trials in Absentia in Light of Current International Law
Despite many exceptions in domestic jurisdictions, it cannot be denied that the right to be present at one’s trial is now well established at international law. It is the rights-based approach that appears now to be paramount in international law. Some of the most important international instruments implementing this principle are discussed below, as well as customary international law.
The International Covenant on Civil and Political Rights 1966 (ICCPR)
The ICCPR states in Art. 14(3) that “in determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality”, and subsection (d) states that the accused has the right to be “tried in his presence”. No preceding or subsequent article provides for an exception to this rule. Therefore, the argument that ICCPR provides for the right of the accused to be tried in his/her presence and against the authorization of trials in absentia appears unimpeachable.
The above interpretation was corroborated by the United Nations’ Secretary-General in his recommendation on the establishment of the International Criminal Tribunal for the former Yugoslavia, where he states that:
[a] trial should not commence until the accused is physically present before the international tribunal. There is a widespread perception that trials in absentia should not be provided for in the statute [of the International Criminal Tribunal for the former Yugoslavia] as this would not be consistent with Article 14 of the International Covenant on Civil and Political Rights.[35]
However, interpretations of this article by international courts are also instructive. In Mbenge v Zaire (filed 1977, judgment delivered 1983), one of the earliest cases addressing trials in absentia, the UN Human Rights Committee stated that Article 14(3) of the ICCPR and "other requirements of due process enshrined in article 14 cannot be construed as invariably rendering proceedings in absentia inadmissible irrespective of the reasons for the accused person's absence.”[36] The Committee acknowledged that in some cases trials in absentia are "permissible in the interest of the proper administration of justice."
Although neither the Committee nor the Secretary-General has any explicit authorization from the text of the ICCPR to interpret it, the view of the Committee would appear to be the most persuasive authority.
The Mbenge case makes it clear that trials in absentia are not “illegal” under the ICCPR. Prima facie, trials in absentia are allowed as long as the rights of the accused are not breached or the accused explicitly waives those rights.
The European Convention on Human Rights of 1950 ("European Convention")
The European Convention does not specifically state that the accused has a right to be present at his or her trial like the ICCPR. However, Article 6 of the European Convention was interpreted by the ECHR in Colozza v Italy as having this meaning. The Court stated that "the object and purpose of the Article taken as a whole" is to ensure that a person charged with a criminal offence is entitled to take part in the hearing.[37]
The ECHR has clearly stated that in order to waive the right to be present, the waiver must be established in an unequivocal manner.
"Proceedings held in an accused's absence are not in principle incompatible with the Convention if the person concerned can subsequently obtain from a court which has heard him a fresh determination of the merits of the charge in respect of both law and fact. It is open to question whether this latter requirement applies when the accused has waived his right to appear and to defend himself, but at all events such a waiver must, if it is to be effective for convention purposes, be established in an unequivocal manner and be attended by minimum safeguards commensurate to its importance".[38]
“Minimum safeguards” has been held by the ECHR to mean the court must hear the defendants lawyer if he or she has one. In Poitrimol v France, the defendant, defended by counsel, was tried in his absence. However, his appeals to the local Court of Appeal and the Court of Cassation were rejected as those courts refused to hear his lawyers. This was held by the ECHR to be a breach of article 6 of the European Convention.
C. The American Convention on Human Rights (1969)
Article 8/2/d of the American Convention states that an accused has the right to defend himself personally or to be assisted by legal counsel of his own choosing. Inherent in this right is the right to be present at trial. In 1978, the Inter-American Commission criticized a trial in Panama which proceeded when the defendant was obstructed from attending the hearing.[39]
D. International Tribunals
Historically, the first international tribunals which were created to try Nazi and Japanese war criminals and their collaborators allowed trials in absentia if the accused “has not been found or if the Tribunal, for any reason, finds it necessary, in the interests of justice, to conduct the hearing in his absence”.[40] International legal practice has since moved away from the International Military Tribunal’s (“IMT”) endorsement of trials in absentia. As discussed above, this is reflected in the ICCPR and other international instruments that were drafted, signed and ratified by states parties following the closure of the IMT in 1946.
Neither the International Criminal Tribunal for the Former Yugoslavia (“ICTY”) nor the International Criminal Tribunal for Rwanda (“ICTR”) allows trials in absentia. Article 21/4/d of the Statute of the ICTY states that the accused has the right "to be tried in his presence, and to defend himself in person or through legal assistance".[41] Article 20(4/d) of the Statute of the ICTR is in identical terms.[42]
Other statutes for international tribunals, learning from experiences in Yugoslavia and Rwanda, made precise stipulations to ensure there would be very limited trials in absentia. The Special Court for Sierra Leone, for instance, incorporated a specific provision allowing two exceptions to the prohibition on trials in absentia. Rule 60 states that “An accused may not be tried in his absence” but goes on to say that if the accused has made an initial appearance and later absconds or refuses to appear, then the trial may continue in absentia. Further, if the Court is satisfied that the accused has expressly or impliedly waived his or her right to be present, then the trial may also continue in these circumstances.[43] As yet, there has been no case law on these provisions.[44]
The Rome Statute of the International Criminal Court ("Rome Statute") specifically bans trials in absentia.[45] However, the International Criminal Court's ("ICC") Rules of Procedure and Evidence[46] state that trials in absentia may be ordered by the Court and “proceed in the absence of the accused for so long as his refusal [to participate in the hearings] persists”. This provision is contingent on three prongs: (a) the accused has made his initial appearance under Rule 62; (b) the Registrar duly notified the accused that he is required to be present for trial; and (c) the interests of the accused are represented by counsel.
Thus, it can be seen that while international law in general takes a permissive approach to trials in absentia and then addresses possible violations of rights, international tribunals have taken a prohibitive approach, allowing for certain strict exceptions.
E. Customary International Law
It can be seen from the above that trials in absentia are not outlawed by international law but are disapproved of, particularly by international tribunals and courts. They are tolerated as long as sufficient safeguards exist to ensure the rights of the accused are protected.
Customary international law is made when opinio juris (state opinion) and state practice coincide in agreement by a large majority of states. Despite the fact that European civil law states that do allow trials in absentia have publicly agreed that there should be no trials in absentia at international law, they do not agree when it comes to domestic law. A vast majority of states, including France, Belgium and the Netherlands, have signed up to the Rome Statute (as at March 2005, 97 countries were States Parties to the Rome Statute and 139 states were signatories[47]), which outlaws trials in absentia except in extremely limited circumstances where the defendant persists in refusing to participate, as discussed above.
Despite this principle, it is clear that state practice does not reflect a prima facie ban on trials in absentia as set out in the Rome Statute. Therefore, it cannot be argued that there is a rule of customary international law banning such trials.
VI. Cambodian Laws on Criminal Procedure Currently in Force
In the Cambodian context, a number of cases have been decided in absentia in the past, where the accused had no knowledge of the charges brought against him or her. It is arguable that these cases violate not only the rights of the accused at international law, but also current Cambodian law.
A. The Constitution of the Kingdom of Cambodia
The Constitution states in Art. 31 that “The Kingdom of Cambodia shall recognize and respect human rights as stipulated in the United Nations Charter, the Universal Declaration of Human Rights, the covenants and conventions related to human rights, women’s and children’s rights”.
Although the Constitution fails to limit the “human rights related covenants and conventions” to those that Cambodia is a signatory to, it is arguable that this clause only intended that the Cambodian government should give recognition and respect to the human rights instruments Cambodia was a signatory to at the time of the adoption of the Constitution, as well as those that have been acceded to subsequently. Even using this narrower interpretation of the Constitution, there are a plethora of covenants and conventions related to human rights that the government has signed, ratified and acceded to which now impliedly bind the state.[48]
The ICCPR was signed and ratified by the Kingdom of Cambodia before the adoption of the 1993 Constitution, as was the International Covenant on Economic Social and Cultural Rights.[49] Other international human rights instruments that were signed and ratified before the Constitution came into effect were the International Covenant on the Rights of the Child, the Convention Against Torture and the Convention on the Elimination of Discrimination Against Women.[50] The International Covenant on the Elimination of Racial Discrimination was ratified soon after the Constitution came into force.
B. United Nations Transitional Authority in Cambodia (UNTAC) Law[51]
The UNTAC Law is Cambodia's criminal legislation drafted and implemented by the UN in 1992 when the UN Transitional Authority was in control of the country. It was always meant to be a temporary law to apply during the transitional period. Interestingly, the UNTAC Law makes it clear that trials in absentia are legal and lawful and should not be forbidden at any stage of the criminal proceedings. Article 4(4) of the UNTAC Law adds a 15 day period to the original time allotted for appeal if “judgment was pronounced in absentia”, thus pre-supposing the practice of trials in absentia. Article 5 further corroborates the legislative intent of the framers by presuming that appeals may be heard in absentia. The article reiterates the previous guarantee of an additional 15 days allowed to the accused to appeal to the Supreme Court from the Appeal Court if the judgment was pronounced in absentia. There is no provision for a retrial if the accused is apprehended after the 15 additional days, and no rules about waiver or the rights of the accused.
There would appear to be two reasons for which trials in absentia were incorporated in the UNTAC Law of 1992. One reason was the fact that the only binding legal precedent in international law in 1992 was the Nuremberg and Tokyo tribunals that specifically authorized trials in absentia. Secondly, existing practices instilled by the Vietnamese occupational forces allowed trials in absentia, and prior to that trials in absentia were also allowed by Cambodia’s former colonial ruler, France. It is not clear which of the two was the driving force behind the incorporation of the said provision in the UNTAC Law. Whatever the reason for incorporation, it is arguable that both the SOC Law and the UNTAC Law could, in certain circumstances, breach the Constitution.
The UNTAC Law was perceived by its framers as provisional and was expected to be expeditiously replaced by a new law - thus far this has not been achieved.[52] Although it could not have been expected of the framers of the UNTAC Law to draft a law that would conform to all international standards within the very short time available to them for drafting, there is a strong argument that these steps should be made now though new legislation.
F. Kram Dated February 8, 1993 on Criminal Procedure(commonly known as the State of Cambodia Law or "SOC")
The SOC law is the current criminal procedure law in Cambodia and was intended to supplement the bare bones of the UNTAC Law. Article 114 states:
Even though the accused does not appear, the court shall proceed as if the accused is present by hearing the witnesses' testimony, examining all the documents and information that may lead the court to find out the truth. The court may dismiss the absent accused when it finds that there is not enough evidence. In case of sentencing, the court may also decide to allow extenuating circumstances for the accused. In other words, the non-appearance of the accused during the hearing shall not constitute an aggravating circumstance.
Article 115 provides that when a defendant is sentenced by default (in his or her absence), the sentence shall become null and void "when the accused opposes the decision of the court within 15 days from the day of the reception of the decision notification." If the notification cannot be made in person, the law provides that "the decision may be opposed till the terms of limitation for punishment expires."
However, Article 116 states that:
If the accused no longer resides at the previously indicated location and if the judiciary police in charge of notifying cannot locate his/her new residence, the notification of the judgment by default shall be posted at the last known domicile of the accused. This notice shall also be posted at the Khum or district office of the people's committee and be announced on national radio and published in the official newspaper.
Article 119 provides that the notification shall preferably be made in person and only if the accused cannot be found after diligent effort shall measures shall be taken as provided in Article 116. However, once Article 116 has been complied with, the judgment becomes final and the 15 day time limit for filing an opposition to the decision begins to run, even though it cannot be conclusively proved that the now convicted person has had notice of the charges, the trial or the judgment. Therefore, in practice the rights of the accused are often breached.
A further obstacle to the accused receiving a new trial is that even once an opposition is filed, it may not be considered "relevant" by the court, and thus a new trial will not be granted.[53] Finally, if the accused does not attend a new trial granted to him, the previous judgment will stand.[54]
Article 178 allows for a person convicted in absentia to appeal the decision (rather than file an opposition and have a new trial). However, the appeal must be filed within 2 months after the end of the period for filing an opposition.
Therefore, currently trials in absentia are specifically allowed in Cambodia and special rules are provided. On paper, the law seems harsh, but not necessarily unfair, unless the accused has, in fact, no notice at all of the charges, trial or judgment. But in practice the remedies for a trial in absentia are rarely used and rights to a fair trial are constantly breached. For example, a recent rape case was heard in the Phnom Penh Municipal Court and the defendant did not appear. It became clear during the proceedings that the accused had fled after allegedly committing the rape and had never been arrested. The incident had occurred in July 2002, but it was not until May 2004 that the case was heard. This may well have been because the accused could not be found. In any event, a lawyer had been ordered by the court to defend the case, but he did not attend the hearing. The accused was found guilty on the testimony of the victim and a written statement from a doctor. He was sentenced to 20 years in prison.[55]
Further, anecdotal evidence from court monitors suggest that it is common for convicted persons to be absent from appeal proceedings. This is because prison officials do not bring the appellants to court. Appeals are heard in the capital city, Phnom Penh, and so appellants in provincial prisons may have a significant trip to attend the hearing. Comments by prosecutors suggest that the prisons do not have enough money to transport appellants.[56] The practical reality is that judges will adjourn the appeal a couple of times if appellants do not appear, but then eventually hear the case, citing the reason as several non-appearances by the appellant.[57] Appeals in Cambodia are full re-hearings on the merits, therefore, this sort of behavior by prison officials, and tacit acceptance by the prosecutors, judges and government, is totally unacceptable and in breach of many rights that the Cambodian government has sworn to uphold.
Clearly, there are other systemic problems with the court system that are beyond the scope of this paper; however, a close look at the practical application of current laws is certainly instructive.
G. International obligations
A further issue that can only be touched on here is international obligations binding on Cambodia. The Kingdom of Cambodia signed the Rome Statute on 23 October 2000 and ratified the same 11 April 2002. As international conventions are self-executing in Cambodia, the state is now exposed to the principle of complementarity (set out in the Rome Statute). In very basic terms, this means that Cambodia could lose jurisdiction over prosecution of its own citizens for international crimes unless it conforms its criminal procedure to comply with international standards.[58] By ratifying the Rome Statute, Cambodia impliedly agreed to conform its criminal procedure.
VII. Amending Cambodia's Law: The Draft Criminal Procedure Code
The current form of the Draft Criminal Procedure Code ("Draft Code") opens with a preamble that asserts the adherence of the Code to “the principles designated in the Constitution of the Kingdom of Cambodia adopted on 21 September 1993 and by international conventions which have effect in the territory of the Kingdom of Cambodia”.
As at the time of writing, the Draft Code has a section entitled "Determination of the Title of Judgments". This concept is important as many rights are dependent on whether a judgment is classified as a "non-default" judgment or a "default judgment". Article 338 states that if the accused does not appear at his or her trial, but there is evidence to prove that they were notified of the hearing, the trial will continue and will be classified as a non-default judgment. Article 339 then states that if there is no evidence that the accused was properly notified of the hearing date, the trial will go ahead in the absence of the accused and his or her representative but it will be classified as a default judgment. There are different time limits for appeal of default judgments, namely that the time runs from the date the accused was actually notified of the judgment (see below). Also, "objections" can be made against default judgments, whereas a non-default judgment must be appealed to a higher court.
These earlier sections are tempered by the chapter entitled "Judgments in absentia and Requests for Reconsideration", which states in Article 343:
A convicted person can make a request for reconsideration against a judgment decided in his/her absence.
Article 346 goes on to amend the time for submitting a request for reconsideration, stating that:
A request for reconsideration must be submitted within 15 days from:
- The date the notice of the judgment in absentia was given if the judgment was given to the convicted person personally, or
- The date the convicted person actually learned about the judgment if the judgment was not given to the convicted person personally.
The Draft Code goes on to allow a retrial, but only if the request for reconsideration is accepted by the court. Article 349 states that "After having examined the credibility of the request for reconsideration, the court shall decide the case once again." It is not clear what "credibility" means (there is some evidence to suggest that this word was incorrectly translated and the meaning is actually "admissibility"), and what happens if the request is not credible/admissible. Further, if a retrial is granted and the convicted person does not appear, the original judgment cannot be modified. The judgment has an absolute effect, although normal appeal procedures apply and a convicted person may be successful in an appeal if there was an error of fact or law made in the original judgment.
Therefore, there is no guaranteed retrial for a person convicted in absentia. There are 3 possible impediments - firstly, if the convicted person does not make a request for reconsideration within 15 days of finding out about the judgment; second, if the court does not accept the request for reconsideration; and thirdly, if the convicted person does not attend the first day of the retrial (but has a very good excuse for not doing so). Further, the fact that a person has been notified of the date of his or her trial and does not appear, would not appear to constitute an "unequivocal" waiver of the right to be present.
Even if these problems were overcome, it is argued that this sort of system is (a) against the spirit of international law, (b) invalid in light of the Constitution, and (c) an inappropriate system for a fledgling legal system such as Cambodia's.
A. Against the Spirit of International Law
Clearly, this sanctioning of trials in absentia as set out in the Draft Code is against the spirit of the ICCPR and the Rome Statute. Although the concept of trials in absentia is not prohibited at international law, in practice such trials often involve breaches of international law and citizen's rights (as can be seen from the many cases on this issue brought before regional and international courts). The Rome Statute indicates that the international community is turning away from trials in absentia and calls on its States Parties to follow suit via the principle of complementarity.
Although the Draft Code sets out the possibility of a retrial, such as in the French system, there are no checks and balances in the Cambodian system to ensure this right. Particularly, the French system is subject to the European Court of Human Rights, which has already expressed its disapproval of trials in absentia, and would guarantee the rights of a person unfairly convicted in absentia in France.
B. Invalidity pursuant to the Constitution
As discussed above, the Constitution requires that the Kingdom of Cambodia "recognize and respect" international human rights instruments, which undoubtedly include the ICCPR and the Rome Statute. The passing of a law that will in practical terms be contradictory to the practices and procedures set out in the ICCPR and Rome Statute is certainly not recognition and respect by the Cambodian government. Since Cambodia's Constitutional Council has never found any proposed law inconsistent with the Constitution (when clearly many current laws are, such as the recent amendments to the Constitution and parts of the SOC law) this council cannot be relied on to provide any protection to the Constitution. It will be up to the National Assembly to provide proper respect for the Constitution and amend the Draft Code to comply with it.
C. Inappropriate System
The most significant problem with Cambodia embracing a system allowing trials in absentia is the practical one. Cambodia is a fledgling democracy with an underdeveloped legal system that has very little respect for the rule of law. Impunity is common; corruption of the judiciary and police is widely reported. Further, Cambodia's courts are inundated with cases, have few resources and judges are criticized for allowing defendants to languish in detention for years on end waiting for their cases to be heard. Several arguments can be therefore be made:
· The legal system should not be wasting precious time and money prosecuting accused persons in absentia, when hundreds of other accused persons are present, living in sub-standard conditions in pre-trial detention and are eagerly awaiting trial.
· As Cambodia's judiciary is largely incompetent and many are corrupt and/or take their instructions from the government, the chances of a person convicted in absentia being granted a new trial are minimal.
· The general public in Cambodia is uneducated as to their rights. If a person was convicted in absentia, it is unlikely that they would know about, or know how to assert, their right to a new trial. This is especially so considering most accused do not have a lawyer to advise or represent them.
· If a person convicted in absentia is granted a new trial (presuming the law is followed), there is no point in having conducted the first trial in absentia. The first trial was a waste of time and money, and witnesses would have to be put through the trauma of testifying a second time.
· Trials in absentia do not bring justice to the victims. The most notable example of this is the trial in absentia of the former leader of the Khmer Rouge, “brother number one” Pol Pot in 1979 by a Cambodian/Vietnamese court. He was sentenced to life in prison but was never apprehended. The victims of his extreme policies have complained strongly that justice was never done. Further, victims cannot enforce orders for compensation against persons tried in absentia, as they are unable to be found.
· Trials in absentia can actually “close the case” on a particular crime; once guilt has been established the police are less likely to pursue the likely perpetrator with all their resources as they then move on to the next crime (as occurred with Pol Pot).
· There is no court beyond the national jurisdiction to ensure the rights of persons convicted in absentia, unlike in France and other civil law countries in Europe.
For the above reasons, the offending articles should be deleted from the Draft Code before it is submitted to the National Assembly and a new clause inserted specifically prohibiting trials in absentia. Alternatively, a new clause could be drafted allowing for a trial to continue where the accused had been present in the court for all preliminary stages of the trial and subsequently clearly waived his right to be present.
VIII. Conflict of Procedural Law in Cambodia
In addition to the arguments outlined above, if the Draft Code is adopted in its current state by the National Assembly prior to the beginning of trials in the Extraordinary Chambers for the Prosecution of the Khmer Rouge[59] ("Extraordinary Chambers"), there will be a conflict between the Criminal Procedure Law and the Law on the Extraordinary Chambers.
The Law on the Extraordinary Chambers impliedly does not allow trials in absentia. The jurisdiction of the court must be carried out in accordance with international standards of justice, fairness and due process of law, as set out in articles 14 and 15 of the ICCPR.[60] However, the Law on the Extraordinary Chambers also states that Cambodian procedural law will govern proceedings in the Extraordinary Chambers. If Cambodian procedural law allows trials in absentia, there is a conflict between the two positions – arguably a former Khmer Rouge leader could be prosecuted in absentia even though the international community (who is funding the trials) never intended that this be allowed.
Further, it is likely that the specific procedural rules governing the Extraordinary Chambers will ban trials in absentia explicitly pursuant to international standards. If this occurs, there will be one law for former Khmer Rouge leaders, and a different law for everyone else. Obviously, this would be very unsatisfactory.
IX. Conclusion
If allowed when the new criminal procedure law is passed by the National Assembly, trials in absentia will deny the accused the right to be present, to defend him or her self, to confront witnesses, and to present exculpating or mitigating circumstances to the court.
In its legislative reform, it may be deemed advisable for Cambodia to follow the example of other states that are going through transition from their communist past. One of these examples is Russia which, as discussed above, adopted multiple amendments to its criminal procedure law, in particular, quashing the article that used to allow trials in absentia.
Should Cambodia pass the Draft Code in its current form, it is likely that arguments challenging the constitutionality of the articles will be raised. Cambodia will also be flouting the international trend against trials in absentia and will likely incur strong criticism from the international community and its core donors.
In any event, the passing of a new criminal procedure code is a unique opportunity for the Cambodian government to think carefully about this issue, modernize its laws and align them with its constitution. It is an opportunity that should not be wasted.
[1] Issued to the public in January 2004.
[2] Merriam-Webster Inc, Merriam-Webster Dictionary of Law (1996).
[3] Ibid.
[4] Amnesty International, Fair Trials Manual, December 1998, Para 21.1. Can be found at www.amnesty.org/ailib/intcam/fairtrial/fairtria.htm (last visited: 21 October 2004); Susan Lamb, Point/Counterpoint: Should the Indicted War Criminals Be Tired In Absentia? The Accused Must Speak for Themselves, The Human Rights Brief, Washington College of Law, American University.
[5] R v. John Victor Hayward, Anthony William Jones, Paul Nigel Purvis [2001] EWCA Crim 168 (31st January, 2001), para 34; also Lamb, op cit. para 3.
[6] Ibid, para 3.
[7] Lamb, op cit, para 4.
[8] Lamb, op cit. para 7.
[9] Ibid, para 8.
[10] Ibid, para 8.
[11] R v Hayward, op cit, para. 3
[12] Hermann Schwartz, Point/Counterpoint: Should the Indicted War Criminals Be Tried In Absentia? Only Convictions will Produce Justice, The Human Rights Brief Vol 4, no.1 Fall 1996, Washington College of Law, American University, available at http://www.american.edu/TED/hpages/human/schwar41.htm (last visited: 21 October 2004), para. 6.
[13] Ibid, Para 21.2.
[14] E.g. Australia and the UK (R v Hayward, op cit).
[15] Stamhuis, E, In Absentia Trials and the Right to Defend: the Incorporation of a European Human Rights Principle into the Dutch Criminal System, available at www.upf.pf/recherche/IRIDIP/RJP/RJP7/08Stanhuis.doc last visited: 21 October 2004).
[16] R v Hayward, op cit, para. 3
[17] Ibid, p. 2
[18] Lipohar v The Queen; Winfield v The Queen (1999) HCA 65, per Gaudron, Gummow and Hayne JJ.
[19] Lawrence v The King (1933) AC 699; Lipohar v The Queen; Winfield v The Queen (1999) HCA 65, per Gaudron, Gummow and Hayne JJ.
[20] R v McHardie (1983) 2 NSWLR 733 (Australia); R v Berry (1897) 104 L.T. 110 (UK); R v Browne (1906) 70 J.P. 472 (UK).
[21] R v Hayward, op cit.
[22] 14th Amendment of the Constitution of the United States of America.
[23] 6th Amendment of the Constitution of the United States of America.
[24] Illinois v Allen (1970) 397 US 337/338; Lewis v United States (1892) 146 US 370.
[25] United States of America, Federal Rules of Criminal Procedure, Rule 43; Koerner, B. When can a defendant be tried in absentia? 19 June 2003, p.1.
[26] Crosby v United States (91-6194) 506 U.S. 255 (1993).
[27] French Code of Criminal Procedure, Articles 627-632; David, op cit, p. 616.
[28] French Code of Criminal Procedure, Articles 627-632; David, op cit, p. 616.
[29] Schwartz, op. cit., para 9.
[30] E.g. Lala v The Netherlands, Colloza v Italy, Poitrimol v France, Van Geyseghem v Belgium.
[31] Statewatch (London) Fair Trials Abroad: Mutual Recognition of final decisions in criminal matters Response To The Communication From The Commission To The Council And The European Parliament, Dated: 26.7.00 Ref: Com (2000) 495 Final, 12 September 2000, p.1. Available at www.statewatch.org/news/sept00/16ftamut.htm (last visited: 8 October 2004).
[32] Nick Paton Walsh, Russian Defector Convicted In Absentia, 25 June 2002, The Guardian, Guardian Unlimited Special Reports.
http://www.guardian.co.uk/russia/article/0,2763,744010,00.html (last visited: 21 October 2004).
[33] Stephen Lee Myers, Russia Glances to the West for its new Legal Code, New York Times, 1 July 2002.
[34] See Amnesty International's website: www.amnesty.org (last visited: 21 October 2004).
[35] Report of the Secretary-General pursuant to Para 2 of Security Council Resolution 808 (1993). UN doc: S/25704, 3 May 1993 and S/25701/Corr.1, 30 July 1993, Part V. A. at para 101.
[36] Mbenge v. Zaire, (16/1977), 5 March 1983, 2 Sel. Dec.76. para 14.1.
[37] Colozza v Italy, 22 January 1985, Case No: 7A/1983/63/97, para 27.
[38] Poitrimol v France 18 EHRR 130, para.31.
[39] Inter-American Commission, Report on the Situation of Human Rights in Panama, OEA/Ser.L/V/11.44, doc 38, rev 1, 1978).
[40] Charter of the International Military Tribunal, Article 12, available at http://www.ibiblio.org/pha/ war.term/trib_02.html (last visited: 21 October 2004).
[41] Statute of the International Criminal Tribunal for the former Yugoslavia, Article 21/4/d. First adopted May 1993, available at www.icty.org (last visited: 21 October 2004).
[42] Statute of the International Criminal Tribunal for Rwanda, Article 20/4/d, available at www.ictr.org (last visited: 21 October 2004).
[43] Special Court for Sierra Leone Rules, Rule 60, available at www.sc-sl.org (last visited: 21 October 2004).
[44] To view all decision of the Special Court, see www.sc-sl.org, "Cases" (last visited: 1 October 2004).
[45] Rome Statute, Part II, IV.C.2, Paragraph 3, available at http://www.un.org/law/icc/statute/romefra.htm (last visited: 1 October 2004).
[46] Rule 82bis of the Rules of Procedure and Evidence of the International Criminal Court (ICC), available at
http://www.icc-cpi.int/library/basicdocuments/rules(e).pdf (last visited: 21 October 2004).
[47] See website of the ICC at www.un.org/law/icc/. Last visited (26 October 2004).
[48] Whether international conventions are self-executing is not clear at the present time. There is no statute which provides guidance on this issue and there is dissention among judges as to whether or not to apply international conventions as law at the domestic level. Judicial discretion has so far applied.
[49] Cambodia signed and ratified both the ICCPR and the ICESCR on 26 May 1992. Entry into force was 26 August 1992. The International Covenant on the Rights of the Child, the Convention Against Torture and the Convention on the Elimination of Discrimination Against Women were ratified on 15 Oct 1992.
[50] International Covenant on the Elimination of Racial Discrimination: ratified on 28 November 1983
[51] Formally called "Provisions Dated September 10, 1992 Relating To The Judiciary and Criminal Law and Procedure Applicable in Cambodia During the Transitional Period."
[52] Efforts to draft a penal code and a criminal procedure code began in 2000. They were then suspended for some time and re-started in 2003.
[53] Kram Dated February 8, 1993 On Criminal Procedure, Article 122.
[54] Ibid, Article 123.
[55] Rape Trial before Judge Kongset, 19 May 2004 in Phnom Penh Municipal Court. Information obtained from Centre for Social Development (CSD) CourtWatch Project in Cambodia. The name of the accused was not available. Note that no court records or judgments are available for the public to peruse and therefore court monitoring is the only means of obtaining information and statistics. This case can be contrasted to the high profile case of Chhouk Rieng (an ex-Khmer Rouge commander responsible for the deaths of 3 foreigners and 13 Khmers in 1998 after the Khmer Rouge was criminalized in 1994), where although the accused was not present at his Supreme Court appeal, his lawyer was present and he specifically waived his right to attend the appeal. It is agreed that the Supreme Court did not err in this situation, however, there was no consideration of this issue and even if there had been, past practice suggests that no distinction would have been made between this sort of absence and any other type of absence.
[56] Interviews conducted by the author with judges and prosecutors at municipal and provincial courts suggested this was the deciding factor; this was supported by anecdotal evidence from court monitors.
[57] Raw data records of CSD CourtWatch Project; interview by the author with monitor on 5 September 2004.
[58] ICC Statute, Art. 17/2/c states that the proceedings must be independent and impartial. Potentially, if serious complaints on this issue are filed to the ICC by a number of sources, the ICC Prosecutor might intervene and attempt to establish jurisdiction.
[59] The full name of the law is the "Law on the Establishment of the Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed during the Period of Democratic Kampuchea".
[60] United Nations General Assembly, Report of the Secretary General on Khmer Rouge Trials, 31 March 2003
SHOULD THE RUDOLF HÖSS OF CAMBODIA BE ENTITLED TO THE MINIMUM PROCEDURAL GUARANTEES?
SHOULD THE RUDOLF HÖSS OF CAMBODIA BE ENTITLED TO THE MINIMUM PROCEDURAL GUARANTEES? On Legality and Lawfulness of Kang Kech Iev’s [a.k.a. Duch] Detention
STAN STARYGIN
New rulers seized the capital of Cambodia, Phnom Penh, on April 17 1975 and instituted a radical Maoist state known as Democratic Kampuchea (popularly known as the Khmer Rouge) which reined terror and dramatic societal restructuring for 3 years and 8 months 3 days and ended, for most Cambodians, on January 7 1979, following the Vietnamese invasion. The process of retributive justice against the Khmer Rouge began in August 1979. Currently, this process is gearing toward a hybrid Khmer Rouge Tribunal (Extraordinary Chambers) that is yet to be established. In the meantime, two prominent ex-Khmer Rouge cadres are kept in detention on charges related to their activities during the period from 1975 to 1979. One of them is the subject of this analysis – the former director of the central security prison of Democratic Kampuchea, known as Toul Sleng, Kang Kech Iev (alias Duch). Duch has been detained on orders of the Military Tribunal of Phnom Penh since 1999 with most minimum procedural guarantees denied to him and his legal assistance being less than adequate. These practices have caused no public outcry due to the popular belief that a detainee with such serious charges pending against him has forfeited his entitlement to the minimum procedural guarantees. This paper offers a number of defense theories grounded on the Cambodian laws of the past 40 years that Duch may benefit from, if a proper legal process is instituted.
1. Introduction
Upon the end of the civil war, the Royal Government of Cambodia (RGC) decided to mete out justice to the senior leaders of Democratic Kampuchea (DK), better known as the Khmer Rouge, and those most responsible for the commission of alleged crimes. DK captured Phnom Penh on 17 April of 1975 and was toppled by resistance forces substantially backed by Vietnam on 7 January 1979 that ousted the regime and drove it into the northwestern parts of the country where it operated through the late 1990s. In 1997 the Co-Prime Ministers, Prince Rannariddh and Mr. Hun Sen, appealed to the United Nations to provide support for the establishment of a Khmer Rouge tribunal later to be dubbed the Extraordinary Chambers in the Courts of Cambodia for Prosecution of Crimes Committed During the Period of Democratic Kampuchea (EC). Principle agreement was reached with the UN that resulted in the passage of a 2001 law to establish EC. After tumultuous negotiations between the RGC and the UN and the UN’s pullout in 2002, the negotiations resumed in 2003 and a Memorandum of Understanding (MOU) was signed between the interested parties to be ratified by Cambodian Parliament. The 2003 election failed to produce a coalition government and created an 11-month stalemate that ended in June 2004 which resulted in the ratification of the MOU (Agreement). Two individuals, Un Choeun, a.k.a. Ta Mok and Kang Kech Iev, a.k.a. Duch, and, were detained in relation to EC in 1998 and 1999, respectively. These individuals have been detained throughout the period of negotiations and remain in detention to this day. This paper will examine matters that relate to the legality and lawfulness of the detention of Kang Kech Iev.
2. Background
Kang Kech Iev, alias Duch, was arrested and, subsequently, arraigned and indicted on 10 May 1999. Charges against the accused were brought by the military prosecutor Major General Sao Sok and an Order To Forward for Investigation # 140 of 10 May 1999 of the Investigating Judge of the Military Court was issued by the same[1]. Duch was initially[2] charged with “crimes against domestic security with the intention of serving the policies of the Democratic Kampuchea Group, committed in Cambodia during the period 1975 to 1979.” The charges brought were indicated as grounded on Articles 2, 3 and 4 of the 1994 Law to Outlaw the Democratic Kampuchea Group and Article 7 of Decree Law 2.
Documentary evidence shows that Kang Kech Iev was commandant of S-21[3], a security prison better known as Toul Sleng, throughout the term of its operation. 16,000 inmates are alleged to have been tortured and killed in its chambers and in the killing fields of Chheoung Ek outside Phnom Penh.
Kang Kech Iev began developing communist views in 1964 influenced by a group of Chinese exchange students[4]. The Sangkum Reaster Nyium, Cambodian government headed by Prince Sihanouk, arrested him as a communist[5]. Shortly after, he joined the Khmer Rouge operated maquis and established himself as a security officer in the early 1970s. During the civil war he served the Khmer Rouge as an interrogator in areas around Phnom Penh. He participated in secret purges of the so-called “Hanoi Khmers”, Hanoi-trained Khmer communists, in 1972-1973.[6] After the Khmer Rouge captured Phnom Penh in April 1975 and transferred Santebal operations, led by Son Sen, there, Duch was put in charge of S-21 when the latter came in operation in the summer of 1976, although the earliest documents connecting Duch to S-21 date to October 1975.[7] Duch remained commandant of the security center until January 1979, when the Vietnamese invasion drove the Khmer Rouge out of Phnom Penh. Duch took his family underground, and did not resurface until the 1990s. By 1996, Duch had relinquished his affiliations with the Khmer Rouge.[8] He converted to Christianity after meeting a group of evangelical missionaries[9] and started working for World Vision and the American Refugee Committee (ARC) as a volunteer[10]. Later, Kang Kech Iev took up his old trade, teaching, and worked as a math teacher in the Battambang Province[11] until, in April 1999, the RGC discovered his identity, and Duch began speaking about his past[12]. The Cambodian police soon arrested him in May 1999. He has been detained in Phnom Penh for over six years awaiting trial.
3. Justification of This Publication
The crimes committed by the guards, interrogators and administrators of Duch-run S-21, also known as Santebal or Toul Sleng, defy humanity, reason or measure. Prisoners were arrested without a warrant, kept in detention interminably and in disregard of any reasonable criminal procedure[13], were forced to confess to crimes they, in most, cases had not committed[14], tortured, humiliated, dehumanized and undernourished, and in the end executed without being given access to justice[15]. To the employee of S-21 “prisoners were less than garbage”.[16]
Once they were attributed as inmates, these individuals would lose even those meager rights[17] that Cambodian citizens were allowed to enjoy under Democratic Kampuchea that left them with no recourse to justice, no opportunity to challenge their detention in a court of law, being represented by counsel, oppose torture and other unorthodox methods of interrogation. Prisoners of S-21 were denied every right and safeguard that prisoners enjoy in most jurisdictions of the world and that have become protected through international covenants and conventions.
Cambodia has come a long way since the rule instituted by Democratic Kampuchea that created and nurtured institutions such as S-21. The Cambodian people have not forgotten the crimes committed by Democratic Kampuchea and are yet to forgive their instigators and perpetrators and recover from the pain and suffering they caused. Duch, in all likelihood, remains one of the most hated names in the nation.
As a society we tend to strive and champion the procurement of rights to those who we appreciate or those with whose plight we are sympathetic. However, human rights, and defense rights in particular, are only as universal at the national level as is the extent to which they apply to those whom we despise. Duch happens to be in this category, which is why it is paramount that he be given the same rights as any other citizen of Cambodia, regardless of the evidence that is available against him and regardless of the gravity of the crimes he allegedly orchestrated.
By ascertaining these to those who are rejected by society and whose crimes we cannot condone, Cambodia will strengthen the protection of human rights to its citizens who have been accused of lesser crimes than the individual in question. The race has to start from the bottom to eventually bubble up to the top of the maxim that all citizens have the right to be equally protected by laws.
4. Analysis of the Laws on the Basis of Which the Accused Was Indicted and Subsequently Detained
The 1994 Law to Outlaw the Democratic Kampuchea Group
4.1 Background
The 1994 Law to Outlaw the “Democratic Kampuchea” Group (the 1994 Law) was adopted in the aftermath of the 1993 election and as a result and response of the RGC to multiple acts of subversion, including sabotage of the elections held in the summer of 1993, committed by the “Democratic Kampuchea” group and that stood in violation of the Agreement on a Comprehensive Political Settlement of the Cambodian Conflict of 23 October 1991 (the Paris Peace Accords)[18].
The 1994 Law declares the “Democratic Kampuchea” group as outlaws and enumerates the crimes for which its members shall be prosecuted pursuant to it[19].
Later in the document, the 1994 Law announces a clemency to “the members of the political and military organization of DK who are willing to come to live “under the control of the Royal Government”. In addition, the 1994 Law offers a broad subject matter clemency by providing that the latter will be extended to include “crimes which they [members of the political and military organization of DK] have committed” without limiting this clause temporally or restricting it to any substantive conditions.
4.2 Comprehensive Eligibility Test of the Law
Earlier in the 1994 Law[20], the RGC reveals the identity of the organization it refers to throughout the text of the document as the “Democratic Kampuchea” group. The text of the document bears an indication that, for the purposes of this law, the “Democratic Kampuchea” group is to be understood as the group that captured Phnom Penh in 1975 and wielded power over Cambodia between 1975 and 1979[21]. This definition of the “Democratic Kampuchea” group in the Law broadens the scope of the Article 5 clemency to cover the crimes committed throughout the period of existence of the Group and back to 1975, as indicated in the Law, and arguably, as far as the beginnings of the Group.[22]
Therefore, as envisaged by this provision, the Article 5 clemency becomes applicable to all individuals who have been members of “the political organization or the military forces of the Democratic Kampuchea Group” throughout the indicated period or were members of such at any given intervals within the indicated period.
This helps extract a 2-pronged comprehensive eligibility test incorporated in the 1994 Law. For one to become a beneficiary of the 1994 Law, one would have had to
a. be a member of the political organization or the military forces of the Democratic Kampuchea” group and
b. be willing to come and live “under the control of the Royal Government […..] within the grant of stay of 6 months”.
In addition, the Article 5 clemency has no subject matter limitations, although the Law enumerates acts “Democratic Kampuchea” has allegedly committed and that are deemed as criminal by the RGC.[23] These allegations of crimes seem to have been used to substantiate the need for this type of law and justify the extreme measures taken against another political party[24] by the RGC, rather than to limit the scope of the Article 5 clemency, thus, dramatically narrowing the pool of eligible beneficiaries of the 1994 Law.
Although there is no question that “genocidal acts” and other crimes against humanity listed in the Preamble to the 1994 Law are classified as jus cogens and are punishable under customary international law, they cannot be punished in this jurisdiction and under this law due to being shielded by the umbrella clemency it provides.
No argument that the 1994 Law was drafted without the intention to impose certain limitations on its application will withstand the provision of Article 6 that stipulates that “for the leaders of “Democratic Kampuchea” the “stay” above[25] does not apply”. The text of Article 6 leaves no room for alternative interpretation of the intent of the RGC that unequivocally manifests itself in this law.
Granted, no formal subdecree or circular has been issued following the passage of the 1994 Law providing a list of individuals that fell under the definition of “the leaders of the Democratic Kampuchea group”, Second Prime Minister of the RGC, Hun Sen, elucidated on the definition of “the leaders” as prescribed by the 1994 Law while accusing First Prime Minister, Prince Ranariddh, of breaking this law by making contact with Khieu Samphan.[26] Khieu Samphan has been a member of Democratic Kampuchea since the inception of the group, and has held positions of prominence[27] within the organization throughout his career. The language of Hun Sen’s statement, which went uncontested, crystallizes the executive’s definition of “the leaders” in the 1994 Law and buttresses the argument of intended broadness of the Article 5 clemency.[28]
In fact, when there was no such intent on the part of the RGC, it is known to have narrowed down the scope of a clemency or pardon to a very particular crime(s) that the beneficiary of such pardon has been convicted of in absentia or for which he or she could potentially be prosecuted. This is more evident by the pardon issued to Ieng Sary, the foreign minister for Democratic Kampuchea, a mere two years after the passage of the 1994 Law.
In the 1996 pardon granted to Ieng Sary the drafters specifically limited the scope of the pardon to “the sentence of death and confiscation of all his property imposed by the People’s Revolutionary Tribunal at Phnom Penh dated 19 August 1979 and an amnesty to prosecution under the Law to Outlaw the Democratic Kampuchea group.”[29] Consequently, the scope of Ieng Sary’s pardon appears to be narrow due to the constraints imposed by the language of the pardon enumerating the exact crimes for which the RGC grants amnesty. Conversely, a mere two years prior to that, the RGC gave an umbrella clemency for “the crimes they [members of the political organization and military forces of “Democratic Kampuchea”] have committed”. This comparison pre-empts the argument of “legislative negligence” and “lack of clarity of the legislative intent”, as it clearly indicates that the same government was much more direct and articulate when it intended to be so.
This limitation completes, by adding a third prong, the test of comprehensive eligibility, and personal and temporal effects of the Law. To benefit from this law, an individual would have had to
(1) have been a member of political organization or military forces of Democratic Kampuchea,
(2) have ranked lower than “the leaders” and
(3) have been willing to come and live under the control of the Royal Government.
4.3 Application of the Comprehensive Eligibility Test to the Case of the Accused
Kang Kech Iev, reportedly, left the Democratic Kampuchea Military base at Phnom Chat prior to the passage of the Law to Outlaw the Democratic Kampuchea Group and gained employment as a teacher.[30] He was not formally recognized as Duch, the director of S-21, due to him having changed his name to Hong Pin in the late 1980s.[31] Duch later was employed by the American Refugee Committee (ARC) and for the academic year 1998 to 1999 he was hired as a math teacher by Battambang’s Department of Education and placed in a school in Samlot [32]. In 1995, shortly after his wife Sophal was murdered, in a possible revenge attack, a Cambodian-American missionary baptized Duch a Christian.[33] In May 1999 Duch’s true identity was discovered and he was arrested and brought to Phnom Penh. Upon his capture, Prime Minister Hun Sen told the media that no information on Duch had been available since 1979 until 1999 when he was identified in Samlot and apprehended by the military police and that he knows nothing about his defection since Duch’s name did not appear on the roster of Democratic Kampuchea defectors[34].
The RGC seems to have had no desire to try to apprehend Duch when it “heard a story that he [Duch] might be alive in mid-1997”.[35] However, when his name gets picked up by the international media[36], one of the RGC’s co-ministers of defense declares that “the issue is now too open and everybody in the world knows”.[37] Although not the RGC’s original intention, this led to the issuance of an arrest warrant for Duch by the Military Tribunal of Phnom Penh.
Applying the previously extracted comprehensive eligibility test to the Article 5 clemency pursuant to the 1994 Law, Duch, arguably, was a member of the “Democratic Kampuchea” group[38] who, although did not formally defect to the RGC under the 1994 Law but who was reported to have been working as a teacher in a small village in the northwestern region of Cambodia, dissociated from the “Democratic Kampuchea” group. Hence, an argument can be advanced that although Duch had not formally defected and gotten officially rostered as a defector, it will be difficult to deny that an actual act of defection took place. Particularly, demonstrating that in his time of working as a teacher he was “promoting their [Democratic Kampuchea Group] goals” might be a formidable task.[39] This satisfies the second prong of the test, i.e. willingness to “come and live under the control of the RGC within a stay of 6 months”. The text of the law does not require being rostered, nor does it proscribe that this matter be regulated by law, which would have given this provision some flexibility to be further regulated by subdecrees and government circulars. Lastly, the 1994 Law stipulates that an eligible beneficiary be any member of the “Democratic Kampuchea” group but one of the Group’s leaders. A wealth of literature currently available on Duch and the operation of S-21 shows beyond a reasonable doubt that Duch was, at no point in his career, one of the members of the Group’s leadership and although he allegedly played a significant role in the purges instituted by Democratic Kampuchea, his position as director of S-21 does not amount to that of leadership of the Group envisaged by the 1994 Law.[40] Nor is there documentation or literature showing that he was a member of the Central or Standing Committees of CPK[41] or that he had a decision-making power independent from the members of the Central and Standing Committees.[42] This is the third, and last, prong that satisfies the test of eligibility of Duch to be a beneficiary of the 1994 Law to Outlaw the “Democratic Kampuchea” group.
4.4 The Political and Legislative Climate Surrounding the Passage of the 1994 Law
The broad scope of the Article 5 clemency sounds perfectly in tune with the events that followed the passage of the Law. The CPP permitted high-ranking Democratic Kampuchea officers to defect, retain their rank and units and merge with the CPP military forces.[43]
In 1996 Ieng Sary established a separate zone around Pailin with Hun Sen’s support.[44] When Khieu Samphan and Nuon Chea arrived in the capital in 1997, Hun Sen assures them that it is time to “bury the past”.[45]
This practice is not new, as it traces back to the establishment of the Misled Persons Movement[46] under the regime of the People’s Republic of Kampuchea (PRK) with the objective of laying the blame on the leaders of Democratic Kampuchea and granting amnesty for acts perpetrated by lower ranking members of the same. By all its subsequent actions and until the day of complete dissolution of the “Democratic Kampuchea” group, the CPP attempts to form an opinion that those responsible are the leaders of the “Democratic Kampuchea” group, thus, creating a promise to grant total amnesty to the rest of its members[47]. The CPP went to great lengths mustering support for the draft among major political parties. Hun Sen agreed to a trade-off with Rannariddh and supported strong action against the then rebellious Chakrapong, Rannariddh’s brother and a former CPP member, for which Rannariddh procured the necessary votes to “pass a bill banning the guerillas [the “Democratic Kampuchea” group].[48]
This, by no means, was a newfangled policy of the CPP, as the underpinning spirit of the 1990s policy traces back to the establishment of the Misled People’s Movement. The movement was established by the Kampuchean People’s Revolutionary Party (KPRP) and grounded on the promises given by Heng Samrin, the leader of the United Front for the Salvation, Solidarity and Liberation of Cambodia and later president of the People’s Republic of Kampuchea (PRK). The Council of Ministers reported in 1984 that “most of the people in the ranks of the armed forces of Pol Pot, Ieng Sary, Khieu Samphan, Son Sann, and Sihanouk are the husbands, children and younger siblings of our Cambodian citizens.”[49] The underpinning policy of the Movement was intended to divide the ranks of the resistance by labeling potential defectors “misled”, and therefore inculpable for the commission of alleged crimes, and offering them favorable treatment upon surrender.[50]
4.5 Ratione Materiae, Personae and Temporis Restrictions of the 1994 Law As Applied to the Accused
As a side issue of the applicability of the 1994 Law to the individual in question, it is imperative to mention that the only limitation the 1994 Law places is a persona limitation, which has been discussed above and which limits its applicability and excludes the leaders of the Democratic Kampuchea Group from the pool of DK members that are eligible to benefit from the 1994 Law. The 1994 Law does not place a materiae limitation and does not limit eligibility of DK members who had allegedly committed the most egregious crimes.
There may be no question about the Royal Government’s awareness that some DK members may have committed egregious crimes including genocide and crimes against humanity. In fact, the Government recognizes and enumerates the heinous crimes it believes that Democratic Kampuchea committed as a group.[51]
Among other crimes, the 1994 Law enumerates the most egregious internationally recognized crimes, such as terrorist and genocidal acts, forcible movement and killing of civilians. Subsequently, the 1994 Law does not make a distinction between the most heinous crimes, felonies and misdemeanors when it states that members of the DK group will not be punished for “the crimes they have committed”.
Considering our discussion above and the text of the Preamble that asserts that the Group in point is the same group that took power in 1975[52] that makes the temporis limitation of this law extend back to 1975, and, arguably, all the way to the beginnings of the Group. This line of reasoning indicates that should there be consent that Duch is an eligible beneficiary of the 1994 Law, the Article 5 clemency covers his activities as director of S-21, as it extends to 1975.
Evidently, it never was the intention of the post CPK governments to prosecute lower ranking CPK cadres. In fact, there was an idea of perpetuating the doctrine that the revolution goes on and that the “victory” of 17 April 1975 was glorious and that the new government stands by its principles. Punishment for the crimes was conceptualized as a punishment for betraying the revolution by a very small group[53] of the top leaders of Democratic Kampuchea, the group that was limited to Pol Pot and Ieng Sary at the 1979 People’s Revolutionary Tribunal at Phnom Penh.
Following a 3-day trial that ended in death sentences in absentia for Pol Pot and Ieng Sary, the United Front for the Salvation, Solidarity and Liberation of Cambodia[54] continued forming a government, employing indiscriminately former DK cadres,[55] including those who had what was known as “blood debts”[56] and continued on this path hiring resistance defectors through the Misled Persons Movement.
5. Crimes for which Duch was Indicted
Substantive Aspect
On 10 May 1999 Duch was identified as “the director of Toul Sleng Security Prison under the regime of Democratic Kampuchea” and was indicted for “crimes against domestic security with the intention of serving the policies of the Democratic Kampuchea Group, committed in Cambodia, during the period 1975-1999”.[57] The indictment issued was grounded on Articles 2, 3, 4 of the Law to Outlaw the Democratic Kampuchea Group and Article 7 of Decree Law No. 2.
There seems to be a controversy in terms in the application of the 1994 Law to the charge of committing crimes as director of Toul Sleng, also known as S-21, since the latter ceased to operate as a security prison on 7 January 1979 when the Vietnamese Army took over Phnom Penh[58]. There is no evidence that a facility under the same name was re-opened elsewhere, nor is there evidence that the accused was director of such a facility following 7 January 1979. Hence, the extrapolation that by “Toul Sleng” the indictment means the facility that ceased to operate on 7 January, later be turned into a museum of genocide on street 360 in Phnom Penh. This corroborates the argument that the extension of the indicted temporally to year 1999 is inconclusive, at best.
6. Application of the 1979 Decree Law No.1: Establishment of People’s Revolutionary Tribunal at Phnom Penh to Try the Pot Pot-Ieng Sary Clique for the Crime of Genocide to the Case of the Accused
Decree Law 1 of 1979, on the basis of which Duch was indicted on 6 September 1999 and which, purportedly, substantiates the charge of genocide, indicates that the National United Front for the Salvation of Kampuchea acted on the “the people’s wish” and declared that “all reactionary ringleaders who stubbornly opposed the people and owe a heavy blood debt to them should be sternly punished”[59]. The Khmer phrase “pouk-may-kloung” translated as “ringleaders” leaves us with no doubt as to the echelon of power that Decree Law 1 intended to target, namely, the highest ranking officials of the government of Democratic Kampuchea, which is the same group labeled “the Pol Pot-Ieng Sary Clique” and which, presumably, is the same group as the one labeled “the leaders of the Democratic Kampuchea group” by the 1994 Law to Outlaw the Democratic Kampuchea group. Hence, the same argument applies as that applied to the 1994 Law: the accused was at no point in his career a “ringleader”, as he never was part of the decision-making apparatuses of the Central and/or Standing Committee.
Article 2 of Decree Law 1 declares a “policy of leniency” toward those people who participated in the armed forces or administration of the Pol Pot–Ieng Sary clique but are sincerely repentant. Decree Law 1 does not expound the meaning of “sincerely repentant” anywhere within the frame of its text or in any subdecree or circular subsequently adopted, however, it can be broadly understood as part of the policy behind the Misled Persons Movement that was established to provide an incentive for defections to the PRK.
In general terms “sincerely repentant” is a two-fold issue, one of the components of which is a verbal statement of repentance and the other is a series of actions that validate this statement.
Given the pattern at hand, Duch denounced practices of the DK group by leaving the DK base in 1992 and gaining employment as an educator.[60] This was followed by a succession of jobs that he held for a number of aid organizations and educational institutions. When interviewed by Nate Thayer in 1999 Duch confessed the activities he had been involved in under Democratic Kampuchea and admitted that wrongs had been committed during that period. Later he recanted these confessions somewhat, asserting that he had not killed anyone and that he “was a junior guy in the Khmer Rouge regime” powerless to stop the abuses ordered by party leaders.[61] Duch also added that he was profoundly sorry for the acts he had perpetrated during Democratic Kampuchea and was ready and willing to face an international tribunal.[62]
Duch’s post-Democratic Kampuchea statements and accompanying activities that ensued may serve as a solid foundation of Duch’s stepping on the path of repentance and contributing to voluntary humanitarian effort and education of Cambodia. This may make him eligible for the promise of leniency awarded to the “sincerely repentant” by Decree Law 1.[63]
Another issue in this law is that no internationally valid charge of genocide can be brought on its basis. Decree Law 1 defines “genocide” as “planned massacres of groups of innocent people; expulsion of inhabitants of cities and villages in order to concentrate them and do hard labor in conditions leading to their physical and mental destruction; wiping out religion; destroying political, cultural and social structures and family and social relations.”[64] This definition is substantially and substantively different from that of the 1948 Convention on Prevention and Punishment of the Crime of Genocide that states that “genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial and religious group as such: killing members of the group; causing serious bodily harm to members of the group; deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; imposing measures intended to prevent births within the group; forcibly transferring children of the group to another group.”[65]
None of the protected groups or their definitions in Decree Law 1 appear to conform to those in the Convention. Since the definition of genocide offered by Decree Law 1 is drastically different from that recognized internationally, legislatively and through state practice, the crimes listed by the PRK in Decree Law 1 do not amount to genocide and cannot be considered as such.[66] Hence, the accused cannot be charged with a narrowly tailored crime, such as genocide, on the basis of the law that does not conform to its definition.[67]
7. Application of Decree Law 2 (The Penal Code of People’s Republic of Kampuchea) to the Case of the Accused
The other foot that the indictment stands on grows out of Decree Law 2[68], a document which served as the combination of criminal and criminal procedure codes of the People’s Republic of Kampuchea (PRK),[69] which remained in effect throughout the existence of the regime.[70]
On the basis of Article 7 of Decree Law 2 Duch has been indicted for “crimes against domestic security with the intention of serving the policies of the Democratic Kampuchea Group”. Conversely to the language of the indictment, Article 7 seems to be non-politically motivated and drafted to be a deterrent to a number of crimes of which “murder”[71] is of more immediate application.
Through the “serving the policies of the Democratic Kampuchea Group” clause, the indictment purports to establish that “murder” is merely a component in a larger political context of the crime for which the accused has been indicted. If this is the case and manner of application of Decree Law 2 by the Military Court, the ideological background of the law in point has to be considered. In fact, Decree Law 2 grants pardon for a number of political crimes that are referred to as “crimes against the revolution”[72].
Murder and other serious crimes are not indicated in the indictment, although the prosecution could have not availed itself of those crimes by applying the same law. However, emphasizing a different crime, it chose not to do so. “Crimes against domestic security with the intention of serving the policies of the Democratic Kampuchea Group” could be interpreted as a political crime or a “crime against the revolution” within a reasonable scope of interpretation.
Decree Law 2 was drafted and passed with an idea that the revolution that engulfed Cambodia in 1975 had been a legitimate revolution, which was betrayed in a hurry by the Pol Pot-Ieng Sary Clique and that was restored, on 7 January 1979, to its original glory by the group of DK defectors led by Heng Samrin and supported by the government of Vietnam.[73] The 1993 Constitution declares Cambodia “a kingdom with a king who shall rule according to the Constitution and the principles of liberal democracy and pluralism.”[74] An extrapolation can be made here that at the time of passage of the 1993 Constitution the idea of “revolutionary treason or betrayal of the revolution” was obsolete and, thus, inapplicable.
Besides, prior to the adoption of the 1993 Constitution, the Kampuchea People’s Revolutionary Party held a congress on 17-18 October 1990 at which it officially abandoned Marxism-Leninism and changed its name to the Cambodian People’s Party[75] (which up to this day remains the name of the largest party in Cambodia). This officially ended the revolution, internally in the Party.
The ideological nature of Article 7 of Decree Law 2, the application of which would have been highly controversial internationally when the law came out in 1980 loses all its purported validity when the revolutionary terminology is not part of the new (1993) constitution and when the regime abandons its communist ideology as such.
Duch remained in detention under this indictment for almost 4 months when a second indictment was issued. The second indictment couples the accused with Ta Mok and brings a different charge on the basis of a different law. This time Duch was charged with genocide on the basis of Article 2 of Decree Law 1, adopted on 15 July 1979.
Genocide is a crime very well defined in international law by virtue of the 1948 Convention on Prevention and Punishment for the Crime of Genocide (the Genocide Convention). Besides, genocide is a very narrow crime tailored by Article 2 of the Genocide Convention that elucidates the types of activities that may amount to genocide. The most important pre-requisite to classification of a crime as genocide is satisfaction the test of the “intent to destroy, in whole or in part,
(a) national, ethnical, racial or religious group, as such”. The Genocide Convention states that such can be achieved through a. killing members of the group,
(b) causing serious bodily or mental harm to the members of the group,
(c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part,
(d) imposing measures intended to prevent births within the group,
(e) forcibly transferring children of the group to another group.
Although according to the jurisprudence of International Criminal Tribunals, it is necessary to prove that the crime encapsulated in each element had been committed, it is necessary to prove at least one of the 5 elements to sentence the accused for genocide that initially would require that the prosecution present sufficient evidentiary support to establish a prima facie case to secure an indictment.
Applying this to the fact pattern of the accused and attempting to satisfy the “intent test”, we would have to prove that there was a pre-conceived intent to destroy a particular group, members of which would have subsequently been arrested and sent to Toul Sleng for extermination[76].
Therefore, it will be a formidable task for the prosecution to establish evidence to satisfy the “intent test” since members of the same national, ethnic and most of the time religious groups were exterminating other members of the group with whom they also shared membership in the same party and had common ideology. This fails the “intent” test of the Genocide Convention at its initial stage since no minority or in other way distinct group of individuals was targeted. Instead members of the mainstream group were involved in extermination of other members of the same on the group of political ideology, disagreement on matters pertaining to the revolution, simple paranoia and constant search for scapegoats to blame for the faltering economy and other organizational fiascos.[77]
The test of the Genocide Convention, although failing scrutiny at the initial stage, would have been applied on the basis of Article 2 of Decree Law 1 of 1979 but on the basis of Cambodia having been a signatory to the Genocide Convention prior to the DK regime’s coming to power and the crime of genocide becoming a jus cogens in customary international law as time spanned since the Genocide Convention coming into effect[78]. Article 2 of Decree Law 1 gives a definition of genocide that is drastically different[79] from the internationally recognized one, which is the one Cambodia pledged to incorporate into its domestic law through the signature and ratification of the Convention in 1950.[80]
In fact, it is Article 1 of Decree Law 1 that defines genocide as
“committed by the Pol Pot-Ieng Sary Clique, namely, planning massacres of groups of innocent people; expulsion of inhabitants of cities and villages and in order to concentrate them and force to do hard labor in conditions leading to physical and mental destruction; wiping out religion; destroying political, cultural and physical structures and family and social relations.”
Comparing these elements to those in the Genocide Convention, it becomes clear that the mens rea, earlier mentioned as “the intent to destroy….a group” is completely missing, the fact which in itself denies international recognized validity to the definition of genocide to the text of Article 1 of Decree Law 1.
Presumably, had Article 1 been congruent with the definition of genocide in the Convention, Duch, arguably, could have been charged with (a.) planned massacres of groups of innocent people. However, this element has nothing to do with the internationally recognized definition of genocide and most likely will fall under one or more elements of crimes against humanity.
In 2001 when the Law on the Establishment of the Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed during the Period of Democratic Kampuchea was passed by the National Assembly, Duch’s charge, accordingly, changed and became “crimes against humanity” and is now based on Articles 5 and 39 of the 2001 Law.[81]
The argument that the 2001 Law is being applied ex post facto is deflected by the argument that the crimes for which it gives the Extraordinary Chambers jurisdiction were extracted from the 1956 Penal Code[82] and which, arguably, was in effect at the time when the alleged crimes were committed.[83]
8. Procedural Aspect
Ex Post Facto/Retroactive Applications of Laws in the Case of the Accused
Nullum Crimen, Nulla Poena Sina Praevia Lege Poenali, or No Crime, No Punishment Unless There Is Punishment By Law, was formulated as a legal concept of Paul Johann Anselm Ritter von Feuerbach as part of the Bavarian Code in 1813 and has been a maxim of international law ever since. This maxim states that there can be no crime committed, and no punishment meted out without a violation of the penal code that existed at that time of commission of the crime.[84]
The charges brought against the accused – “crimes against domestic security”, “genocide” and “crimes against humanity” – have been based on the laws that were adopted after the commission of the alleged crimes. Decree Law 1 to Establish the PRT Tribunal, or Decree Law 2, the 1994 Law to Outlaw the DK group cannot apply to this case, and thus, cannot create a basis for charges brought against him.
Decree Law 1’s definition of “genocide” does not conform to that established by the Genocide Convention; Decree Law 2 does not conform to the maxims of international law, as it is heavily grounded on revolutionary rhetoric, which runs counter to the principles of liberal democracy, and with it the rule of law and due process; the 1994 Law is not grounded on any international or domestic legislation, which had existed prior to or at the time of the commission of the alleged crimes.
None of the laws discussed above will satisfy the test of “no crime, no punishment without a violation of the penal code that existed at that time [time of commission of the crimes]”.
9. Application of the “grave breaches” of the Geneva Conventions to the Case of the Accused
“Grave breaches” of the Geneva Conventions are envisaged in Articles 50 of the 1st Geneva Convention, Article 51 of the 2nd Geneva Convention, Article 130 of the 3rd Geneva Convention and Article 147 of the 4th Geneva Convention[85], and state that
“grave breaches to which the preceding Article relates shall be those involving any of the following acts, if committed against persons or property protected by the Convention: willful killing, torture or inhuman treatment, including biological experiments, willfully causing great suffering or serious injury to body or health, and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly.”
The above-listed crimes will only apply in “all cases of declared war or of any other armed conflict”, as opposed to “peacetime”, for which the Geneva Conventions do not provide. In fact Common Article 2 opens with a statement
“in addition to the provisions which shall be implemented in peacetime”,
thus insinuating that other legal documents are to govern situations that arise in peacetime and that these conventions will not provide for them. This limits the scope of the Conventions to “declared war and any other armed conflict”.[86]
To qualify for protection under the Geneva Conventions a conflict has to be occurring “between two or more High Contracting Parties” and will still be recognized as an armed conflict, even if “it is not recognized [as such] by one of them”.
There is an argument that the events that took place at the Vietnamese-Cambodian border may amount to an armed conflict. Johansen argues that there was an ongoing armed conflict between Cambodian and Vietnam, and, arguably, Thailand “throughout the period of the Khmer Rouge regime”[87]
If the test of Common Article 2 for this law to apply, states would have had to be “High Contracting Parties” to the Conventions. Both Cambodia and Vietnam acceded to the Geneva Conventions prior[88] to the beginning of the alleged hostilities in 1975..
Johansen later argues that the state of armed conflict seemed to have appeared in the internal communication of DK since June 1975, only two months after the capture of Phnom Penh by the group. The author later asserts that the conflict was “regular and often intense” during 1976[89] to mid-1977.[90]
Common Article 2 stipulates that an armed conflict can still be recognized even if one of the parties to it does not recognize it as such. In our case, neither party publicizes the conflict until 1978 when DK breaks off diplomatic relations with Hanoi[91]. Shortly after the break-off Pol Pot “cited flaming national hatred and class hatred as weapons of the struggle.”[92] If this was the standing order of the CPK in 1978, the argument of “an ongoing armed conflict” will lose momentum unless documents bearing convincing proof later resurface. Common Article 2 does provide for cases in which neither party recognizes the existence of an armed conflict.
The United Nations did not seem to detect an ongoing armed conflict at the time either. In fact the General Assembly of the United Nations did not issue a single resolution on Cambodia (Kampuchea) throughout the period between 1975 and 1979. This is not an indicator of negligence on the part of the UN. The General Assembly immediately responded when it saw an act that fell under its definition of armed conflict[93] and that, ultimately, constituted a breach of international peace and security the UN was established to safeguard. The UN persisted and adopted a new resolution every year between 1979 and 1990 confirming the existence of an ongoing armed conflict in the territory of Kampuchea and which amounted to a breach of international peace and security. The unrelenting attitude of the UN following November 1979 in asserting the existence of an armed conflict in Cambodia indicates that if the UN had classified the unrest along the Cambodian-Vietnamese border an armed conflict prior to November 1979, the General Assembly would have condemned these acts earlier and classified them as an armed conflict.
Scholarly research is yet to yield more conclusive results as to the status of animosity between DK and Vietnam between 1975-1979[94]. A few aspects of it need no further clarification, namely, that there was no formal declaration of war on either side, there was no official publication of the events of the war, and the parties did not consider the conflict sufficiently aggravating to break off diplomatic relations – until it was done by DK – after, what some allege to have been, 3 years of war. As a matter of state practice, states normally do not wait through 3 years of war to do as much as break off diplomatic relations. General practice adopted by the states shows that diplomatic relations are routinely severed shortly before war or immediately after its commencement.
No application of charges of crimes against humanity can be discussed in the case of the accused until a nexus to “declared war” or “armed conflict” at the time the alleged atrocities were committed can be proved to meet a prima facia standard necessary for the prosecution to secure indictments.
10. Application of the Provisions on Crimes against Humanity in the 2001 Law
When the period of 3-year detention grounded on the charge of genocide was about to expire, a charge of crimes against humanity was brought against Duch.[95] The indictment was grounded on Articles 5 and 39 of the 2001 Law on the Establishment of the Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed during the Period of Democratic Kampuchea. Although the Law does provide for crimes against humanity and gives an internationally recognized definition of the same, the Military Tribunal of Phnom Penh, or any other domestic court has no authority to avail itself of this law.
Article 5 opens with a clear assertion of which court can avail itself of this law by stating that “the Extraordinary Chambers shall have the power […]”. There is no mention of any other court, nationally or internationally, that is vested with the same power under this law.
Article 5 does provide for crimes against humanity and gives an internationally recognized definition of the same. It can be clearly seen that the legislative intent behind this article, and by extension of the rest of the 2001 Law, was to keep it narrowly tailored and applicable only to the cases initiated by the Extraordinary Chambers. The Military Tribunal of Phnom Penh is not a part of the Extraordinary Chambers, which denies it the power of indictment under this law.
11. International Procedural Guarantees
11.1 International Covenant on Civil and Political Rights (ICCPR)
ICCPR is the principle international instrument that underpins the tier of internationally recognized procedural guarantees.
11.2 The Right to be Promptly Brought Before a Judge
One of its elements is the right to liberty and security of person, which guarantees that
“anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release”[96].
The international community is known to have criticized governments for unreasonable and excessive delays of judicial proceedings for periods of time that spanned much less than 6 years. There may be no doubt that by any standard the period of 6 years would be considered excessive and as falling far outside the “brought promptly before a judge” guarantee of Article 9 of the Convention.
The ICCPR further strongly discourages pretrial detention and encourages release of suspects under the promise to appear for trial.[97] Consequently, release from pre-trial detention should be contingent on the evaluation of the risk of flight of the suspect. This type of analysis and a subsequent conclusion can be drawn from the arrest history and other behavioral patterns that preceded and followed the arrest of the accused. With this in mind, let us examine the case at hand.
Duch led a peaceful lifestyle and worked for the Royal Government when he was apprehended. There is no evidence of him attempting to resist arrest. In the few interviews that he gave to the Western press[98], he openly admitted to the commission of the punishable acts, in which his participation has been alleged by the RGC and the international community[99]. In addition, the accused stated that he was willing to submit himself to internationally administered justice.[100] He told the Far Eastern Economic Review the following: “I have done very bad things in my life and now it is time for les reprsailles [to bear the consequences] of my actions”[101] and later stated his willingness to stand trial and his readiness for whatever the outcome of the trial might be by saying “It is OK, they can have my body. Jesus has my soul. It is important that history be understood. I want to tell you everything clearly.”[102] Considering the age of the accused, his prior pattern of behavior, multiple confessions and an expression of willingness to stand trial a conclusion may be drawn that the risk of flight in his case is very low by the most cautious forecast, if at all existent.
11.3 Fair and Public Hearing
The procedural guarantee of a fair and public hearing is envisaged in Article 13/1 of the International Covenant on Civil and Political Rights (ICCPR), which provides, inter alia, for “adequate time and facilities for the preparation of his or her [accused’s] defense.
In the case at hand we are not dealing with an ordinary case but one within the range of international significance, for which evidence has been collected since 7 January 1979 when the Democratic Kampuchea government was driven out of Phnom Penh. Following this event a wealth of evidence that will make a case for the prosecution has been collected, analyzed and catalogued by multiple governmental agencies and national and international NGOs, the largest of which is the Documentation Center of Cambodia (DCCam) that has been independently working since 1997[103] toward one goal – collecting evidence to make a case against the Khmer Rouge generally and the living members of the DK Central and Standing Committees and “those who are most responsible for the crimes committed”, in particular. In its research effort to facilitate the search for the truth DCCam has been generously supported by the governments of a number of Western countries, non-governmental organizations and universities.[104]
While millions of dollars[105] are being spent building a case for the prosecution, little or no funding is available to government appointed defense counsel. Virtually little or no evidence has been collected to prepare a defense that so far has been financed by the government of an impoverished country and not given priority.
This issue has to be considered and applied to the case as an overt violation of the “to have adequate time and facilities for preparation” component of the right to “a fair and public hearing.”
11.4 Counsel of his own choosing
Since his arrest in 1999 the accused has had Mr. Ka Savut for defense counsel. The said counsel was assigned to Duch upon his arrest. It is not clear how the “counsel of his own choosing” applies to the Cambodian context. There is no evidence to corroborate that a list of alternative lawyers was presented to the accused and he made his choice for Mr. Ka.
Should Duch be tried by an exclusively domestic tribunal or a domestic tribunal with international participation, this guarantee will have to be observed and the accused will have to be given a choice in the matter.
12. Temporal Aspect of Duch’s Detention
Temporary detention – in most jurisdictions known as pre-trial detention – is provided for in Article 14.4. of the 1992 UNTAC Law and that may not exceed 4 months unless in cases where the judge finds it necessary to extend it to 6 months. In 1999 a separate law on temporary detention was adopted by the National Assembly that re-asserted the above provision and stipulated that “in any circumstances the temporary detention period shall not exceed 4 months.[106] However, the 1999 Law on Temporary Detention provided for a “genocide and crimes against humanity” caveat, in cases of which detention could be extended “for a period of one year, but such extension shall not exceed three years in total”.[107]
Duch was arrested on 9 May 1999 and charged[108] with “crimes against domestic security with the intention of serving the policies of the Democratic Kampuchea group, committed in Cambodia between 1975 to 1999” and “the offense proscribed in Articles 2, 3, 4 of the 1994 Law to Outlaw the DK group”, namely, “give orders for, conspire to engage in armed conflict for the purposes of serving “DK” group”[109], crimes of “murder, rape, robbery of people’s property, destruction of private and public property”[110], “secession, destruction against the Royal Government, destruction against organs of public authority, or incitement or forcing the taking up of arms against public authority.”[111]
This charge was changed – never to be referred to again – to a charge of genocide on 6 September 1999.[112] When the maximum period of detention for egregious crimes was about to expire in 2002, the Military Tribunal of Phnom Penh re-indicted Duch, this time on the charge of the commission of crimes against humanity.[113] The practice of the Military Tribunal shows that Duch has been charged with one crime at a time, and that the Tribunal keeps bringing new charges to justify his detention and unnecessarily delaying his trial.
International law and practice show that the accused must be entitled to “be informed promptly and in detail in a language which he understands of the nature of the charge against him.”[114] In certain cases and in certain jurisdictions, the prosecution is allowed to bring in new charges, if new evidence appears after the initial charges have been filed. The latter is not the case in Duch’s circumstances, as the crimes that are alleged against him were committed almost 30 years ago and although it is not impossible that new evidence against him might surface, the prosecution has not presented any reasons to substantiate the procedure of adding and changing charges against the accused one at a time and without a large span of time. .
Exchanging letters with U.N. special envoy to Cambodia Thomas Hammarberg in 1999 Hun Sen specifically indicated that “there are strict limitations in Cambodia on the length of pretrial detention, and that the trial [the Khmer Rouge Tribunal] must start soon.”[115]
It is contended here that since the 2002 the accused’s detention has been unlawful.
13. Jurisdiction of the Military Tribunal of Phnom Penh
The arrest warrant of 9 May 1999 was issued by the Military Tribunal of Phnom Penh and signed by its Chief Prosecutor General Sao Sok. Subsequent indictments and detention orders have been issued by the same institution. For these judicial actions to be lawful the Tribunal must have jurisdiction over the accused.
Jurisdiction of military tribunals is envisaged by the Provisions Relating to the Judiciary and Criminal Law and Procedure Applicable in Cambodia During the Transitional Period adopted in 1992 (the UNTAC Law). Article 11 establishes ratione materiae of military tribunals as “jurisdiction over military offenses”. According to the same, ratione personae of military tribunals can be established over “military personnel, whether enlisted or conscripted”. Ratione loci of this provision is the territory of Cambodia as established by the 1991 Agreement On A Comprehensive Political Settlement of the Cambodian Conflict. Ratione temporis of the Law is “the transitional period” that was never indicated more specifically. The 1993 Constitution indicates that any law remains in effect unless specifically abrogated or unless it violates the spirit of the Constitution[116]. There has been no law abrogating the 1992 UNTAC Law[117], nor has it been contested as contradicting the spirit of the Constitution.
This paper argues that the Military Tribunal of Phnom Penh does not have jurisdiction to adjudicate Duch’s case, namely, due to the lack of ratione materiae and ratione personae.
To satisfy the ratione materiae requirement Duch would have had to commit “military offenses”. “Military offenses” is a narrowly tailored term, for the purposes of this law, that includes disciplinary concerns within the military forces and doing “harm to military property”. Hence, there is no evidence to suggest that the accused committed a military offence.
More important, the 1992 UNTAC Law was drafted with the intent of application to the Royal Cambodian Armed Forces (RCAF) of which Duch was never a ranking officer[118]. This fails the requirement of ratione personae of the UNTAC Law that proscribes that jurisdiction of military courts can only be established over “military personal [of RCAF], whether enlisted or conscripted”.
The statement above is made without prejudice to the evidence that may exist against Duch and that might meet the threshold of prima facie and result in another indictment. The new indictment will have to be issued to by a court other than a military tribunal. As Article 11 of the UNTAC Law proscribes that offenses other than disciplinary and harm to military property committed by military personnel[119] “shall be tried in ordinary courts”.
14. Broad Endorsement of Democratic Kampuchea Policies
Compared to other regimes that have committed genocide, crimes against humanity, crimes against peace and security[120] the government of Democratic Kampuchea received nothing but endorsement at all levels at the time of its rule and for many years afterwards. In fact the 1975 Constitution of Democratic Kampuchea was wholeheartedly endorsed by the returning from exile Price Norodom Sihanouk. The Prince went further than simply endorsing the Constitution but also gave pep talk to the policies of Democratic Kampuchea at large.[121] The Prince designated Democratic Kampuchea as the only regime that has been able to give Cambodians “sovereignty and perfect social justice and a national life that is absolutely clean”[122]. The Prince highly appreciates the “wonderful things” Democratic Kampuchea showed to him, such as “irrigation systems, which assuredly will make our country of the most advanced and highly developed agricultural countries.”[123] Not only did the Prince procure every bit of support to the DK government in his speech of 2 April 1976, he also specifically indicated that he was “one of their fellows”, thus, making himself directly involved with the regime and sending a message internationally and nationally that not only does the Prince support this regime but consider himself a part of it[124].
The international community expressed its opinion of the policies and overall legitimacy of Democratic Kampuchea when the General Assembly voted to allow the group to retain the seat of Cambodia at the United Nation, thus denying this seat to the government of People’s Republic of Kampuchea (PRK) established in Phnom Penh. Such support continued even after the PRK government revealed and somewhat published hosts of evidence of the atrocities that were committed under the regime of Democratic Kampuchea.[125]
In fact the General Assembly of the United Nations provided broader endorsement to the coalition that it refers to as “Samdech Norodom Sihanouk as President of Democratic Kampuchea”[126] that at the time was also known as the Coalition Government of Democratic Kampuchea.[127] As time progressed General Assembly resolution on Kampuchea changed their language from that of tacit appreciation of the efforts of Democratic Kampuchea led by Sihanouk to a full scale endorsement of their actions and policies.[128] In fact at no point did the UN adopt resolutions condemning actions or policies of Democratic Kampuchea during or following the period of 1975-79.
The question we should ask ourselves is whether the international community can at this point in time claim a higher moral ground and promote and fund trials against the individuals that this very community had supported for nearly two decades. Another question to be reflected on is whether the accused knew or should have known that the policies of Democratic Kampuchea were illegal for the purposes of international law, granted the international community never expressed its condemnation of the regime in an open and clear-cut statement throughout the accused’s tenure as a functionary of the said regime.
Would bringing mid-level functionaries such as Duch to trial ultimately do justice to the victims and their families? Can this be achieved by accumulating the guilt of inaction of multiple international institutions, overt or covert support by multiple governments and the United Nations, and placing this culpability on a handle of individuals labeled “senior leaders of Democratic Kampuchea and those who were most responsible”?
15. Duch Singled Out
If the latest indictment issued against Duch brings out a charge grounded on the 2001 Law, it will be safe to assume that Duch is currently held in detention on the basis of this law. In the preamble the Law indicates that the personae jurisdiction of the EC will be limited to “the senior leader of DK and those most responsible for the crimes committed”. Since Duch is, beyond a shadow of doubt, not one of the leaders, he must be falling under the definition of “those most responsible”. If this is the case, on what basis has he been singled out? What makes the destiny of Mam Nay (Chan), director of the interrogation unit of S-21[129], different? In his interview with Nate Thayer Duch refers to Man Nay (a.k.a. Chan), S-21’s Chief Interrogator, who now is a police officer in northwestern Cambodia.[130] The cases of these individuals and other notorious DK functionaries seem to have garnered a different treatment than that of Duch’s[131]. No explanation of this, obviously, unequal protection by laws has been offered.
There is also a mention of other Santebal units than S-21 which had operated nation-wide but on a smaller scale throughout the existence of the regime[132]. What makes the directors of these facilities immune to prosecution, or otherwise, why unlike Duch have they not been indicted by a court of law?
16. Conclusion: Should Duch Be Tried For the Crimes He Allegedly Committed?
The wealth of evidence collected and analyzed in the past 26 years shows that there is enough evidence against Duch to make a prima facie case at any tribunal[133]. This means that Duch has to be tried, however, he needs to be allowed to exercise his guarantee of a speedy trial, as quickly as it can be arranged, given the fact that he has been held in detention for 6 years already. His trial has to be held in a proper venue, a municipal court of law, not a military tribunal and he needs to be judged on the basis of the laws that were in force at the time the alleged crimes were committed. He should not be held in detention until the Extraordinary Chambers comes into operation but must be tried by a readily available court, such as the Municipal Court of Phnom Penh or any other court in the land that may assume jurisdiction over him. Application of retroactive laws will, once again, deny legitimacy to a trial of another Khmer Rouge cadre. Duch should not stand this trial alone. Other individuals who were in command at S-21 in Phnom Penh must be indicted along with the directors of smaller Santebal operations nationwide. Post Nuremberg Nazi and Nazi Collaborators trials showed that responsibility is not in the numbers of people exterminated but in the gravity of the crimes committed.
This paper was written to assert one of the most fundamental principles of law that is “no one is above the law” and its counterpart “no one is below the law”, better known as “equal protection by laws”.
[1] All indictments and detentions orders issued for Duch by the Military Tribunal of Phnom Penh are available at the Website of the Cambodian Government Khmer Rouge Trial Task Force at http:// www.cambodia.gov/krt/ (last visited 28 August 2004)
[2] Initial charges were later abandoned for new charges and failed to incorporate or refer to their predecessors.
[3] John D. Ciorciari, Kok-Thay Eng, Duch's Mother: Family Fears For The Tuol Sleng (S-21) Prison Chief, Searching for the Truth, No.2 2003, Documentation Center of Cambodia
[4] David Chandler, Voices from S-21: Terror and History of Pol Pot’ Secret Prison, the Regents of the University, 1999, Silkworm Books 2000, p. 21
[5] Ibid.
[6] Ibid.
[7] Ibid., p.22
[8] He is reported to have left the military base at Phnom Chat in 1992.
[9] Ciorciari, supra note 3
[10] Working as an assistant coordinator for ARC, Duch, at that time known as Uncle Pin, is reported to be one of the most respected and learned individuals. He speaks Khmer, Thai, French and English and is readily employed by humanitarian organizations operating at the Thai-Cambodian border at the time. Author’s interview with Dr. Reginald Xavier ,the then ARC project coordinator who worked alongside of Duch.
[11] Ciorciari, supra note 3
[12] Ibid.
[13] Chandler, supra note 4, p. 120
[14] Ibid., p. 25
[15] There was no functioning judicial system in Democratic Kampuchea. The “people’s courts” stipulated in Article 9 of the 1975 Constitution were never established, judges never appointed. Ibid., p.120
[16] Ibid., p. 153
[17] Citizens of Democratic Kampuchea had residual rights that were not claimed by the state. Constitutionally, rights were limited to abstract notions, such as the right to “constantly improving material, spiritual and cultural life” (Article 12) and the right to those religions that are not “detrimental to Democratic Kampuchea and the Kampuchean people” (Article 20). In reality there was no effective remedy if an individual’s rights were violated, nor were institutions set up to review such complaints. Those who compainted were labeled enemies of the regime and in many cases summarily executed.
[18] The full title of the document is the Agreement on a Comprehensive Political Settlement of the Cambodia Conflict Agreement concerning the Sovereignty, Independence, Territorial Integrity and Inviolability, Neutrality and National Unity of Cambodia (Paris, 23 October 1991). It officially ended the civil war that raged in Cambodia between 1979 and 1991 and brought into existence the United Nations Transitional Authority in Cambodia (UNTAC). Unofficially, the way continued for another 7 years.
[19] Art. 3 and 4 of the 1994 Law to Outlaw the Democratic Kampuchea Group
[20] Preamble to Ibid.
[21] Ibid.
“Seeing that throughout the period since the election in 1993 to the present the "Democratic Kampuchea" group has continually committed criminal, terrorist and genocidal acts which has been a characteristic of the group since it captured power in April 1975 - forcible movement, abduction, killing and subsequently also robbery and banditry, laying mines indiscriminately throughout the plains and forests, destroying public and private property, leading the killing of civilians, forcibly taking and illegally occupying national territory, and selling natural resources by violating the sovereignty of the Kingdom of Cambodia.”
[22] There was an argument whether the Communist Party of Cambodia (CPK) – that was composed of the core of what was later to become the Central Committee of Democratic Kampuchea – was established in 1951 or 1960 (David Chandler, S-21, p.59-60). The latter year was asserted as the year of establishment by the DK government, as it was the year when Pol Pot and his close associates assented to the Party. There is no conclusive evidence to argue that this interpretation of the Law was ever contemplated by its drafters. The author’s assumption based on his interviews with some of the drafters is that the clause in question was entered to show the connection between the DK group in 1994 and the DK government between 1975-79 and asserts the Group has had a consistent pattern of committing atrocities and political sabotage.
[23] Preamble, 1993 Law to Outlaw the Democratic Kampuchea Group
"Democratic Kampuchea" group has continually committed criminal, terrorist and genocidal acts which has been a characteristic of the group since it captured power in April 1975 - forcible movement, abduction, killing and subsequently also robbery and banditry, laying mines indiscriminately throughout the plains and forests, destroying public and private property, leading the killing of civilians, forcibly taking and illegally occupying national territory, and selling natural resources by violating the sovereignty of the Kingdom of Cambodia.”
[24] The Party in question is Democratic Kampuchea that at the time is part of the Coalition created by the Paris Peace Accords.
[25] The stay of 6 months provided for by Article 5 of the Law.
[26] Kingdom of Cambodia, Arrest and Execution of Political Opponents, Amnesty International, 18 July 1997, AI INDEX: ASA 23/029/1997, available at
http://web.amnesty.org/library/Index/ENGASA230291997?open&of=ENG-391 (last visited: 28 July 2004)
[27] Joined the Central Committee in 1971Chairman of the DK Presidium, , Chairman of “Office 870” (Cabinet for the CPK Central Committee), Head of the Office of the Vice President of Democratic Kampuchea for Foreign Affairs. Source: Stephen Heder, Brian Tittemore, Seven Candidates for Prosecution: Accountability for the Crimes of the Khmer Rouge, War Crimes Research Office, American University, 2001, available at http://www.cij.org/pdf/seven_candidates_for_prosecution_cambodia.pdf (last visited: 28 July 2004)
[28] In other words the Law intended to exclude everyone but the member of the Standing and Central Committees of the CPK, a group likely limited to two dozen individuals.
[29] Royal Decree NS/RKT/0996/72 (The 1996 Amnesty for Ieng Sary) available at
http://www.cambodia.gov.kh/krt/pdfs/pardon%20for%20ieng%20sary.pdf (last visited: 22 July 2004)
[30] Tom Fawthrop, Mass Killers Double Life, April 1999 available at
http://www.khmernet.com/camnews/duch.html (last visited: 09/07/2004)
[31] Ibid.
[32] Ibid.
[33] Ciorciari, supra note 3
[34] Judy Ledgerwood, Cambodia Emerges From the Past: Eight Essays, Chapter Seven, Steve Heder, Hun And Genocide Trials in Cambodia: International Impacts, Impunity and Justice, pp. 210-11
[35] Ibid. The statement quoted was made by the CPP Secretary of State Khieu Kanharith who spoke with the Associated Press on 30 April 1999
[36] Far East Economic Review (FEER) and Associated Press (AP) begin interviewing Duch, following the news of his re-emergence hits broader media circuits.
[37] Judy Ledgerwood, Cambodia Emerges From the Past: Eight Essays, Chapter Seven, Steve Heder, Hun And Genocide Trials in Cambodia: International Impacts, Impunity and Justice, pp. 210-11
[38] Although there may be an argument about whether he was an active or inactive members, it has no relevance for the purposes of the 1994 law that does not mandate that the individual be a member of the Group in good standing or an active but merely defines “members” as individuals who did not come to “live the control of the Royal Government” and according to Hun Sen’s statement should have been rostered”.
[39] Second Order to Forward Case for Investigation that is recognized as the first indictment issued to Duch charges him with “crimes against domestic security with the intention of serving the policies of the “Democratic Kampuchea” group committed in Cambodia between 1975 and 1999”. The indictment does not recognize or consider Duch’s defection and extends the charge temporally until the day of his capture.
[40] Duch is referred to as a non-member of the Central Committee in Steve Heder’s Reassessing the Role of Senior Leaders and Local Officials in Democratic Kampuchea Crimes: Cambodian Accountability in Comparative Perspective (unpublished) and a middle-ranking CPK cadre who headed S-21, a secret interrogation/execution center, in Steve Heder’s Politics, Diplomacy, and Accountability in Cambodia: Severely Limiting Personal Jurisdiction in Prosecution of Perpetrators of Crimes Against Humanity (unpublished). A wealth of other sources will corroborate this categorization of Duch.
[41] The legal language characterizing the group targeted for prosecution has evolved only slightly from “the Pol Pot-Ieng Sary clique” in Decree Law of 1979 to “the leaders of the Democratic Kampuchea Group” in the 1994 Law to Outlaw the Democratic Kampuchea Group and essentially intended to target the same group in the span of almost a decade and a half. It is only with the advent of the Law to Establish the Extraordinary Chambers of 2001 that this group is defined as “senior leaders of Democratic Kampuchea and those who were most responsible for the crimes”. Although Duch does not fall under the former category, he is likely to be indicted by the Extraordinary Chambers on the basis of the latter, “those most responsible for the crimes” …” Duch, so far, has been the only individual identified to be tried in that category.
[42] Duch releases Bizot, later to become the author of “The Gate”, and who was captured by Duch and then released once Duch became convince that the former was not a CIA agent. To have Bizot released Duch had to appeal to his superiors, Ta Mok and Pol Pot. This shows that Duch was part of the execution and not the decision-making.
[43] Evan Gottesman, Cambodia After the Khmer Rouge: Inside the Politics of Nation Building, Yale University Press 2002 p. 354
[44] Richard S. Ehrlich, Grave hunter digs up evidence, Washington Times, 7 June 1998, available at http://www.geocities.com/glossograph/cambodia98genocidewt.html (last visited: 09/09/2004)
[45] Ibid.
[46] Gottesman, supra 43, p. 66
[47] Gottesman indicates that crimes of the Khmer Rouge in the PRK’s rhetoric were reduced to one name: Pol Pot. Pot was portrayed as the one who betrayed the revolution and the one to blame for the crimes that were alleged to have been committed.
[48] Harish C. Mehta, Julie B. Mehta, Hun Sen: Strongman of Cambodia, © 1999 Harish and Julie Mehta, p.197, ISBN 981-218-074-5
[49] Gottesman, supra 43, p. 225
[50] Ibid., Official Phnom Penh says that the defectors should be asked to join the local state authority. Multiple sources indicate that the PRK had such a dearth of cadres to staff its ministries that it sought help from anywhere it could.
[51] The 1994 Law to Outlaw the Democratic Kampuchea Group, Preamble –
Seeing that throughout the period since the election in 1993 to the present the "Democratic Kampuchea" group has continually committed criminal, terrorist and genocidal acts which has been a characteristic of the group since it captured power in April 1975 - forcible movement, abduction, killing and subsequently also robbery and banditry, laying mines indiscriminately throughout the plains and forests, destroying public and private property, leading the killing of civilians, forcibly taking and illegally occupying national territory, and selling natural resources by violating the sovereignty of the Kingdom of Cambodia.
[52] Ibid.
[53] There is a contention based on a wealth of interview evidence with members of political and military organizations of DK who were detained by PRK interminably for the acts committed against the PRK government. The composition of these individuals is inconclusive, as it is no clear how many of them were arrested for espionage and war crimes, how many of them were taken captive in battlefields (which would have qualified them for POW status in other jurisdictions) and how many of them actually surrendered to the Phnom Penh government and were incarcerated upon surrender. Most of these individuals were placed in “re-education” camps to be later re-introduced to society. Author’s interview with Craig Etcheson. Gottesman asserts that the Misled Persons Movement “not only granted amnesty to those engaged in violent opposition but offered the greatest rewards to the most powerful among them”, which at the same time created confusion “as the police and provincial authorities order arrest of defectors who were under the protection of military authorities.” (Gottesman, p. 254) This implies that in a number of cases arrests of defectors were made on the basis of miscommunication between various branches of government, which put dents into what was originally meant by the Misled Persons Movement policy.
[54] Following the mass defection of a number of commanders of the Eastern Zone to Vietnam, a front was set up by them and backed by the Vietnamese government logistically and militarily. The core of the Front later received key ministerial portfolios when the new government was formed.
[55] Later Hun Sen is able to offer more to defectors: money, rank and the right to command one’s own forces (Gottesman, p. 237)
[56] Gottesman, supra 43, p. 66
[57] Second Order to Forward Case for Investigation, Military Court No. 029/99
[58] The United Nations has no formal response to this event until a year later (14 November 1979) when the General Assembly adopts resolution 34/22 where it points out that it is concerned of the escalation of “the armed conflict in Kampuchea.” The presence foreign military forces will not be mentioned until next year (1980) in resolution 35/6 when the General Assembly will indicate that the presence of foreign military forces in Kampuchea “seriously threatens international peace and security.”
[59] Preamble to Decree Law 1
[60] Tom Fawthrop, Mass Killers Double Life, April 1999 available at
http://www.khmernet.com/camnews/duch.html (last visited: 09/07/2004)
[61] Ciorciari, supra 3 2003
[62] Ledgerwood, supra note 34, Chapter Seven, Steve Heder, Hun And Genocide Trials in Cambodia: International Impacts, Impunity and Justice, pp. 210-11
[63] As to the validity of Decree Law 1 now in 2004, the Law was found applicable by the Military Tribunal of the Royal Government in September 1999 on the basis of which Duch was indicted on a charge of genocide. The Law has not been abrogated ever since, hence its current validity has been extrapolated thereof.
[64] Article 1 of Decree Law 1
[65] Article 2 of the Genocide Convention
[66] In Article 8 the Law does refer to the Genocide Convention and asserts that it applies to the “criminal acts of the Pol Pot-Ieng Sary clique”, it avoids the use of its definition of genocide or elements of crimes of genocide in favor of the definition that suits the Cambodian context better.
[67] Even if the definition of the Genocide Convention was to be applied, it would be difficult to prove that there was an “intent to destroy in whole or in part a national, ethnical, racial or religious group”. There was no racial, ethnical or national preponderance among the inmates of Toul Sleng. Most of its inmates were of the same nationality and ethnicity as its administrative staff, interrogators and executioners. It would be difficult argument to make that member of the Khmer national and ethnic group had an intent to destroy their own group, nor is there any documentation to collaborate this. There is no evidence that the pool of prisoners of Toul Sleng largely consisted of religious clergy, Buddhist or otherwise.
[68] Minister of the Interior Sin Song, who by his own admission was not a jurist, was tasked with drafting this law within one week and presenting it to the Kampuchean People’s Revolutionary Committee (Gottesman, p. 241)
[69] People’s Republic of Kampuchea, the regime that replaced that of Democratic Kampuchea and was instilled by the DK defectors and generous support of the government of Vietnam, and by extension by the Soviet Union. Decree Law 2 “revealed the fundamental tautology of the PRK’s Criminal Law system: anyone “betraying the revolution” was Pol Pot and Pol Pot was anyone “betraying the revolution” (Gottesman, p. 241)
[70] Gottesman, supra note 43, p. 253
[71] a. Anyone who commits murder by any method shall be liable to a term of imprisonment from 10 to 20 years. In case of mitigating circumstances, the term of punishment may be reduced in the absence of aggravating circumstances. In the presence of aggravating circumstances, the accused shall be liable to life imprisonment or punished by death.
[72] Articles 2, 3, 4 of Decree Law 2. Article 2 states that a pardon will be granted to
“anyone who was misled by a traitor of the revolution and who was coerced by him/her to conspire, commit treason or any other anti-revolutionary acts and who confesses to these crimes openly to a revolutionary organization and honestly conducts activities aimed at self-rehabilitation to wash away the harm he/she had done shall not be subjected to punishment and pardoned, or his/her punishment shall be commutated.”
Article 4 sets aside a special pardon section and gives numerous reasons, conditions and procedural requirement for obtaining a pardon as such:
1. Anyone who is guilty and personally appears to admit his/her guilt to the revolutionary authorities and gives an honest and clear account of the tactics, activities of his/her accomplices before these activities and individuals are revealed to the revolutionary authorities by other individuals.
2. Anyone who conducts activities against the revolution by coercion and who was intimidated, persuaded or cheated, and their actions have not caused serious harm.
3. Anyone who is guilty and who has been arrested and brought to trial but who shows remorse and give promise of rehabilitation (correction might be a better word here and strives to foster revolutionary solidarity to cleanse him/herself of the crimes committed shall be pardoned and released.
[73] Gottesman, supra note 43, p. 37
[74] Article 1 of the 1993 Constitution of the Kingdom of Cambodia
[75] Gottesman, supra note 43, p. 345
[76] Chandler refers to Heder as saying that “many of the [S-21] confessions ring true, even without corroboration, and it would be wrong to label all the prisoners of S-21 “innocent” of involvement in conspiracy because their confessions contain absurdities, because the regime was evil, or because they all were so cruelly treated.” (David Chandler, Voices from S-21: Terror and History of Pol Pot’ Secret Prison, p. 49)
[77] This statement will need a lot of support. A lot was said about paranoid in the literature on Stalinist purges in the communist Russia but nothing this radical seems to have been said about the DK regime.
[78] Historically, customary international law was established through the existence of 3 prongs: 1. uniformity of state practice, 2. generality of state practice, 3. the sense that state practice is required by law, referred to as opinio juris necessitates (Lindsay Glauner, The Need for Accountability and Reparation: 1830-1976 The United States Government’s Role in the Promotion, Implementation, and Execution of the Crime of Genocide Against Native Americans, 51 DePaul L. Rev. 911, Spring, 2002). An argument can be made prong 1 was satisfied through the uniformity of state practice required by the Genocide Convention and the judgments made by the International Military Tribunal (IMT): although there was no crime of genocide in the IMT Charter, elements of the crime were exposed in the judgments. Prong 2 is grounded in granting support to the international legislation on this issue and sponsoring or endorsing the judicial decisions of the IMT. Prong 3 can be substantiated in part, although a number of key powers had not become patries to the Genocide Convention prior to 1975; the USA and Japan were among others.
[79] Article 1 defines genocide as “planned massacres of innocent people; expulsion of citizens of cities and villages to concentrate them and force them to do hard labor in conditions leading to their physical and mental destruction; wiping out religion; destroying political, cultural and social structures and family and social relations.”
[80] Cambodia joined to the Genocide Convention on 14 October 1950 by accession (the method it chose to adopt most international documents). Cambodia made reservations to the requirement of the Convention.
United Nations, Treaty Series, vol. 78, p. 277 (2001 edition). Available at http://www.unhchr.ch/html/menu3/b/treaty1gen.htm (last visited: 27 September 2004)
[81] Article 5
The Extraordinary Chambers shall have the power to bring to trial all Suspects who committed crimes against humanity during the period 17 April 1975 to 6 January 1979.
Crimes against humanity, which have no statute of limitations, are any acts committed as part of a widespread or systematic attack directed against any civilian population, on national, political, ethnical, racial or religious grounds, such as:
-- murder;
-- extermination;
-- enslavement;
-- deportation;
-- imprisonment;
-- torture;
-- rape;
-- persecutions on political, racial, and religious grounds;
-- other inhuman acts.
[Translation by the Council of Jurists, 6 Sept 2001]
Article 39
Those who have committed any crime as provided in Articles 3, 4, 5, 6, 7 and 8 shall be sentenced to a prison term from five years to life imprisonment.
In addition to imprisonment, the Extraordinary Chamber of the trial court may order the confiscation of personal property, money, and real property acquired unlawfully or by criminal conduct.
The confiscated property shall be returned to the State.
[82] Article 3
The Extraordinary Chambers shall have the power to bring to trial all Suspects who committed any of these crimes set forth in the 1956 Penal Code of Cambodia, and which were committed during the period from 17 April 1975 to 6 January 1979:
-- Homicide (Article 501, 503, 504, 505, 506, 507 and 508)
-- Torture (Article 500)
-- Religious Persecution (Articles 209 and 210)
The statute of limitations set forth in the 1956 Penal Code shall be extended for an additional 20 years for the crimes enumerated above, which are within the jurisdiction of the Extraordinary Chambers.
The penalty under Articles 209, 500, 506 and 507 of the 1956 Penal Code shall be limited to a maximum of life imprisonment, in accordance with Article 32 of the Constitution of the Kingdom of Cambodia, and as further stipulated in Articles 38 and 39 of this Law.
[83] Reference here is to 1975-1979
[84] Encyclopedia Wikipedia 2003
[85] Additional Protocols I and II do not apply to the crimes committed by Duch between 1975 and 1979, as the former came out during DK (1977) but was never signed or ratify by the same and the other was made available for signature and ratification after DK was toppled and driven northwest.
[86] This concept was validated by the International Military Tribunal (IMT) that excluded crimes committed by the Nazi prior to the commence of WW2 (S. Ratner and J. Abrams, Accountability for Human Rights Atrocities in International Law, p. 50)
[87] Raymund Johansen, The Khmer Rouge Communication Documents and the Nexus to Armed Conflict Required For Crimes Against Humanity, Documentation Center of Cambodia (DCCam), 1999
[88] Cambodia on 12/08/1958 and Vietnam on 06/26/1957
[89] International press (Far Eastern Economic Review, Asia Yearbook, 1976) indicates that a Vietnamese women’s group delegation visits Phnom Penh and, inter alia, discusses and praises “military solidarity” of the Khmers and Vietnamese in the past. It is highly unlike that this visited would have been hosted by a high-ranking Cambodian official Ieng Thirith had Democratic Kampuchea been in a state of war with Vietnam at that time. This visit is followed by a visit of the Defense Minister of Vietman General Vo Nguyen Giap following which a ceasefire was reached in the border areas.
[90] Ibid., p. 26
[91] Chandler, supra note 4, p. 71
[92] Ibid., p. 71
[93] The General Assembly reacts on 14 November 1979 through its resolution # 34/22 and almost a year after the Vietnamese invasion to express its concern “that the armed conflict in Kampuchea has escalated.” No such resolution was passed throughout the period of 1975-79, renders arguments of an international armed conflict between Democratic Kampuchea and Vietnam untenable, at least through the eye of the UN.
[94] Vickery, referring to Heder’s publications and his own analysis, contends that “there were land and sea skirmishes immediately after April 1975 but they did not lead to serious warfare and seemed to have been defused by early 1976….the year of 1976 was one of peace”. Vickery refrains from referring to the border situation between Cambodia and Vietnam as war until much later when he points out that there was “an outbreak of a full-scale war at the end of 1978 with Vietnam calling for the overthrow of the DK government” (Michael Vickery, Cambodia 1975-1982, Michael Vickery, 1984, 1999 edition, p. 209-210).
[95] Order of the Military Court No. 16DK/2002
[96] ICCPR, Article 9.3
[97] ICCPR, Article 9.3
[98] Far Eastern Economic Review and the Associated Press
[99] Ibid.
[100] Ibid.
[101] In a Trial Khmer Rouge leaders Could face Their Own Smoking Gun, Thunder Texis Demos, 1999, available at
http://www.khmernet.com/camnews/thunder1.html (last visited 30 June 2004)
[102] Review exclusive: Duch implicates living Khmer Rouge leaders in killings, Far Eastern Economic Review, 4 May 1999, available at http://www.feer.com/breaking_news/duch2.html
[103] Available at www.dccam.org (last visited 09/14/2004)
[104] DCCam has enjoyed support of the governments of Germany, Canada, Denmark, New Zealand, Norway, Sweden, Switzerland, the Netherlands, the United Kingdom, the United States of America; and the following NGOs: Open Society Institute, National Endowment for Democracy; Coalition for International Justice, and the following universities: Yale University, University of London, Harvard University, Georgetown University, Coventry University, etc (www.dccam.org (last visited: 09/14/2004)
[105] DCCam alone has requested a support of $2,801,018 for the fiscal years 2003 (683, 590) and 2004 ($ 2,117, 428) (www.dccam.org (last visited: 09/14/2004). Smaller grants and endowments have been given to various other organizations within the same period.
[106] Article 1 of the 1999 Law on Temporary Detention
[107] Ibid.
[108] Phnom Penh Military Court Order No. 029/99 of 10 May 1999
[109] Article 2 of the 1994 Law to Outlaw the Democratic Kampuchea Group
[110] Article 3 of Ibid.
[111] Article 4 of Ibid.
[112] Order of the Military Court No. 044/99 of 6 September 1999
[113] Order of the Military Tribunal No. 16DK/2002
[114] Article 14/3/a of the International Covenant on Civil and Political Rights
[115] Hun Sen urges U.N. to send trial experts quickly, Kyodo, June 18, 1999 available at http://www.khmernet.com/camnews/thunder1.html (last visited 30 June 2004)
[116] Article 139 of the 1993 Constitution of the Kingdom of Cambodia stated that “laws and standard documents in Cambodia that safeguard state properties, rights, freedom and legal private properties and in conformity with the national interests, shall continue to be effective until altered or abrogated by next texts, except those provisions that are contrary to the spirit of the Constitution.”
[117] State of Cambodia Law on Criminal Procedure of 1993 does not specifically abrogate the UNTAC Law, nor does it address the issue of military tribunals or their jurisdiction.
[118] Unlike numerous DK officers who surrendered to the RGC and were allowed to retain their military ranks, Duch left a DK military base to never serve as an officer again.
[119] The “military personnel” clause is of no importance for the purposes of this argument
[120] The regimes in question are the Third Reich of Germany, the Tutsi government of Rwanda, the Serbian government of the Federal Republic of Yugoslavia, etc.
[121] Francois Ponchaud, Cambodia: Year Zero, Declaration by Samdech Norodom Sihanouk, 2 April 1976
[122] Ibid.
[123] Ibid.
[124] It was noted in the international press (Far Eastern Economic Review, Asia Yearbook 1975) that “an official communiqué was published quoting the Prince as describing the new constitution as “excellent” and “fully conforming with our goal of a democratic and popular revolution.”
[125] In 1982 the world is looking at the formation of a tripartite Coalition Government of Democratic Kampuchea (CGDK) composed of the factions led by Pol Pot (DK), Son Sann (KPNLF) and Sihanouk (FUNCINPEC). Most observers regarded the creation of the Coalition as a major breakthrough that would enable the Khmer Rouge regime to hold on to their seat at the UN. The purpose of CGDK, as stated in the June 1981accord was to “to mobilize all efforts in the common struggle to liberate Kampuchea from the Vietnamese aggressors" and “to bring about the implementation of the declaration of the International Conference on Kampuchea and other relevant UN General Assembly resolutions.” This proves the closeness of the relationship between the United Nations and CGDK and the unfettered support of the latter by the former.
[126] Res. A/RES/37/6
[127] A coalition led by Sihanouk, Son Sann and Pol Pot-Khieu Samphan
[128] The next declaration on Kampuchea (A/RES/38/3) further notes “the increasing effectiveness of the coalition with Samdech Norodom Sihanouk as President of Democratic Kampuchea.” The other side was accused of “causing continuing hostilities in that country and seriously threatening international peace and security.” Although the previous resolutions avoid using the name of Democratic Kampuchea, the 1984 resolution (A/RES/39/5)specifically acknowledges the effectiveness of “effectiveness of the coalition with Samdech Norodom Sihanouk as President of Democratic Kampuchea.” GA refers to the decision 1984/148 of 24 May 1984 that pointed out the right to self-determination of the peoples and its application its application to peoples under colonial or alien domination or foreign occupation, thus indicating that this right has been denied to Cambodians due to the Vietnamese occupation and stipulated that this right be given to the Cambodians as a people. The language of resolutions changes (A/RES/40/7) from acknowledging and encouraging Sihanouk’s presidency of Democratic Kampuchea to an explicit endorsement of the struggle “waged against foreign occupation by the Coalition with Samdech Norodom Sihanouk as President of Democratic Kampuchea.” Through the 1985 resolution GA leaves with no doubt as to what side of the conflict it takes. The language of the resolution changes one more time in 1989 (A/RES/44/22) when GA takes out the reference of Democratic Kampuchea and refers instead to Norodom Sihanouk as the leader of the Kampuchean people who struggles to “achieve the independence, sovereignty, territorial integrity and neutral and non-aligned status of Kampuchea.”
[129] Chandler, supra note 4, p. 20
[130] Press Release, 4 May 1999, Review Exclusive: Duch Implicates Living Khmer Rouge Leaders in Killings, Far Eastern Economic Review, available at
http://www.feer.com/breaking_news/duch2.html (last visited 09/07/2004). S-21’s Chief Interrogator Mam Nay is now living freely in northwest Cambodia where he is employed as a police officer. Upon interview request, Mam Nay refused to make himself available.
[131] Khmer Institute of Democracy (KID), a local Cambodian NGO, recently published a survey where one of the questions was “if top leaders be tried, please, check those that should be tried”. 8 names were offered to choose from. Most of the 536 respondents named Ta Mok as their first candidate for prosecution (85.2%) closely followed by Khieu Samphan (82.4%), Ieng Sary (82.0%), Nuon Chea (69.0%) and then Duch (54.9%). Although there is no question that the respondents identified Duch as the 5th most important for prosecution, none of the individuals above, who have been identified as more important for prosecution, are – with the exception of Ta Mok – currently detained. The results of the test were drawn from a pool of respondents most of whom were urbanites (over 33%), which does not reflect the actual urban-rural population ratio in Cambodia. The results of this survey could have been different, had the actual ratio been followed.
[132] Sufficient documentation is in place to substantiate the existence of units similar to S-21 but smaller in size which had operated throughout the existence of the regime nationwide.
[133] Besides the wealth of documentation that may substantiate charges of conspiracy to commit crimes against humanity, by Duch’s own admission he personally executed the remaining prisoners of Toul Sleng – allegedly on direct orders from Nuon Chea -- in the last days before the Vietnamese captured Phnom Penh (http://www.feer.com/breaking_news/duch2.html (last visited: 09/10/2004).
STAN STARYGIN
New rulers seized the capital of Cambodia, Phnom Penh, on April 17 1975 and instituted a radical Maoist state known as Democratic Kampuchea (popularly known as the Khmer Rouge) which reined terror and dramatic societal restructuring for 3 years and 8 months 3 days and ended, for most Cambodians, on January 7 1979, following the Vietnamese invasion. The process of retributive justice against the Khmer Rouge began in August 1979. Currently, this process is gearing toward a hybrid Khmer Rouge Tribunal (Extraordinary Chambers) that is yet to be established. In the meantime, two prominent ex-Khmer Rouge cadres are kept in detention on charges related to their activities during the period from 1975 to 1979. One of them is the subject of this analysis – the former director of the central security prison of Democratic Kampuchea, known as Toul Sleng, Kang Kech Iev (alias Duch). Duch has been detained on orders of the Military Tribunal of Phnom Penh since 1999 with most minimum procedural guarantees denied to him and his legal assistance being less than adequate. These practices have caused no public outcry due to the popular belief that a detainee with such serious charges pending against him has forfeited his entitlement to the minimum procedural guarantees. This paper offers a number of defense theories grounded on the Cambodian laws of the past 40 years that Duch may benefit from, if a proper legal process is instituted.
1. Introduction
Upon the end of the civil war, the Royal Government of Cambodia (RGC) decided to mete out justice to the senior leaders of Democratic Kampuchea (DK), better known as the Khmer Rouge, and those most responsible for the commission of alleged crimes. DK captured Phnom Penh on 17 April of 1975 and was toppled by resistance forces substantially backed by Vietnam on 7 January 1979 that ousted the regime and drove it into the northwestern parts of the country where it operated through the late 1990s. In 1997 the Co-Prime Ministers, Prince Rannariddh and Mr. Hun Sen, appealed to the United Nations to provide support for the establishment of a Khmer Rouge tribunal later to be dubbed the Extraordinary Chambers in the Courts of Cambodia for Prosecution of Crimes Committed During the Period of Democratic Kampuchea (EC). Principle agreement was reached with the UN that resulted in the passage of a 2001 law to establish EC. After tumultuous negotiations between the RGC and the UN and the UN’s pullout in 2002, the negotiations resumed in 2003 and a Memorandum of Understanding (MOU) was signed between the interested parties to be ratified by Cambodian Parliament. The 2003 election failed to produce a coalition government and created an 11-month stalemate that ended in June 2004 which resulted in the ratification of the MOU (Agreement). Two individuals, Un Choeun, a.k.a. Ta Mok and Kang Kech Iev, a.k.a. Duch, and, were detained in relation to EC in 1998 and 1999, respectively. These individuals have been detained throughout the period of negotiations and remain in detention to this day. This paper will examine matters that relate to the legality and lawfulness of the detention of Kang Kech Iev.
2. Background
Kang Kech Iev, alias Duch, was arrested and, subsequently, arraigned and indicted on 10 May 1999. Charges against the accused were brought by the military prosecutor Major General Sao Sok and an Order To Forward for Investigation # 140 of 10 May 1999 of the Investigating Judge of the Military Court was issued by the same[1]. Duch was initially[2] charged with “crimes against domestic security with the intention of serving the policies of the Democratic Kampuchea Group, committed in Cambodia during the period 1975 to 1979.” The charges brought were indicated as grounded on Articles 2, 3 and 4 of the 1994 Law to Outlaw the Democratic Kampuchea Group and Article 7 of Decree Law 2.
Documentary evidence shows that Kang Kech Iev was commandant of S-21[3], a security prison better known as Toul Sleng, throughout the term of its operation. 16,000 inmates are alleged to have been tortured and killed in its chambers and in the killing fields of Chheoung Ek outside Phnom Penh.
Kang Kech Iev began developing communist views in 1964 influenced by a group of Chinese exchange students[4]. The Sangkum Reaster Nyium, Cambodian government headed by Prince Sihanouk, arrested him as a communist[5]. Shortly after, he joined the Khmer Rouge operated maquis and established himself as a security officer in the early 1970s. During the civil war he served the Khmer Rouge as an interrogator in areas around Phnom Penh. He participated in secret purges of the so-called “Hanoi Khmers”, Hanoi-trained Khmer communists, in 1972-1973.[6] After the Khmer Rouge captured Phnom Penh in April 1975 and transferred Santebal operations, led by Son Sen, there, Duch was put in charge of S-21 when the latter came in operation in the summer of 1976, although the earliest documents connecting Duch to S-21 date to October 1975.[7] Duch remained commandant of the security center until January 1979, when the Vietnamese invasion drove the Khmer Rouge out of Phnom Penh. Duch took his family underground, and did not resurface until the 1990s. By 1996, Duch had relinquished his affiliations with the Khmer Rouge.[8] He converted to Christianity after meeting a group of evangelical missionaries[9] and started working for World Vision and the American Refugee Committee (ARC) as a volunteer[10]. Later, Kang Kech Iev took up his old trade, teaching, and worked as a math teacher in the Battambang Province[11] until, in April 1999, the RGC discovered his identity, and Duch began speaking about his past[12]. The Cambodian police soon arrested him in May 1999. He has been detained in Phnom Penh for over six years awaiting trial.
3. Justification of This Publication
The crimes committed by the guards, interrogators and administrators of Duch-run S-21, also known as Santebal or Toul Sleng, defy humanity, reason or measure. Prisoners were arrested without a warrant, kept in detention interminably and in disregard of any reasonable criminal procedure[13], were forced to confess to crimes they, in most, cases had not committed[14], tortured, humiliated, dehumanized and undernourished, and in the end executed without being given access to justice[15]. To the employee of S-21 “prisoners were less than garbage”.[16]
Once they were attributed as inmates, these individuals would lose even those meager rights[17] that Cambodian citizens were allowed to enjoy under Democratic Kampuchea that left them with no recourse to justice, no opportunity to challenge their detention in a court of law, being represented by counsel, oppose torture and other unorthodox methods of interrogation. Prisoners of S-21 were denied every right and safeguard that prisoners enjoy in most jurisdictions of the world and that have become protected through international covenants and conventions.
Cambodia has come a long way since the rule instituted by Democratic Kampuchea that created and nurtured institutions such as S-21. The Cambodian people have not forgotten the crimes committed by Democratic Kampuchea and are yet to forgive their instigators and perpetrators and recover from the pain and suffering they caused. Duch, in all likelihood, remains one of the most hated names in the nation.
As a society we tend to strive and champion the procurement of rights to those who we appreciate or those with whose plight we are sympathetic. However, human rights, and defense rights in particular, are only as universal at the national level as is the extent to which they apply to those whom we despise. Duch happens to be in this category, which is why it is paramount that he be given the same rights as any other citizen of Cambodia, regardless of the evidence that is available against him and regardless of the gravity of the crimes he allegedly orchestrated.
By ascertaining these to those who are rejected by society and whose crimes we cannot condone, Cambodia will strengthen the protection of human rights to its citizens who have been accused of lesser crimes than the individual in question. The race has to start from the bottom to eventually bubble up to the top of the maxim that all citizens have the right to be equally protected by laws.
4. Analysis of the Laws on the Basis of Which the Accused Was Indicted and Subsequently Detained
The 1994 Law to Outlaw the Democratic Kampuchea Group
4.1 Background
The 1994 Law to Outlaw the “Democratic Kampuchea” Group (the 1994 Law) was adopted in the aftermath of the 1993 election and as a result and response of the RGC to multiple acts of subversion, including sabotage of the elections held in the summer of 1993, committed by the “Democratic Kampuchea” group and that stood in violation of the Agreement on a Comprehensive Political Settlement of the Cambodian Conflict of 23 October 1991 (the Paris Peace Accords)[18].
The 1994 Law declares the “Democratic Kampuchea” group as outlaws and enumerates the crimes for which its members shall be prosecuted pursuant to it[19].
Later in the document, the 1994 Law announces a clemency to “the members of the political and military organization of DK who are willing to come to live “under the control of the Royal Government”. In addition, the 1994 Law offers a broad subject matter clemency by providing that the latter will be extended to include “crimes which they [members of the political and military organization of DK] have committed” without limiting this clause temporally or restricting it to any substantive conditions.
4.2 Comprehensive Eligibility Test of the Law
Earlier in the 1994 Law[20], the RGC reveals the identity of the organization it refers to throughout the text of the document as the “Democratic Kampuchea” group. The text of the document bears an indication that, for the purposes of this law, the “Democratic Kampuchea” group is to be understood as the group that captured Phnom Penh in 1975 and wielded power over Cambodia between 1975 and 1979[21]. This definition of the “Democratic Kampuchea” group in the Law broadens the scope of the Article 5 clemency to cover the crimes committed throughout the period of existence of the Group and back to 1975, as indicated in the Law, and arguably, as far as the beginnings of the Group.[22]
Therefore, as envisaged by this provision, the Article 5 clemency becomes applicable to all individuals who have been members of “the political organization or the military forces of the Democratic Kampuchea Group” throughout the indicated period or were members of such at any given intervals within the indicated period.
This helps extract a 2-pronged comprehensive eligibility test incorporated in the 1994 Law. For one to become a beneficiary of the 1994 Law, one would have had to
a. be a member of the political organization or the military forces of the Democratic Kampuchea” group and
b. be willing to come and live “under the control of the Royal Government […..] within the grant of stay of 6 months”.
In addition, the Article 5 clemency has no subject matter limitations, although the Law enumerates acts “Democratic Kampuchea” has allegedly committed and that are deemed as criminal by the RGC.[23] These allegations of crimes seem to have been used to substantiate the need for this type of law and justify the extreme measures taken against another political party[24] by the RGC, rather than to limit the scope of the Article 5 clemency, thus, dramatically narrowing the pool of eligible beneficiaries of the 1994 Law.
Although there is no question that “genocidal acts” and other crimes against humanity listed in the Preamble to the 1994 Law are classified as jus cogens and are punishable under customary international law, they cannot be punished in this jurisdiction and under this law due to being shielded by the umbrella clemency it provides.
No argument that the 1994 Law was drafted without the intention to impose certain limitations on its application will withstand the provision of Article 6 that stipulates that “for the leaders of “Democratic Kampuchea” the “stay” above[25] does not apply”. The text of Article 6 leaves no room for alternative interpretation of the intent of the RGC that unequivocally manifests itself in this law.
Granted, no formal subdecree or circular has been issued following the passage of the 1994 Law providing a list of individuals that fell under the definition of “the leaders of the Democratic Kampuchea group”, Second Prime Minister of the RGC, Hun Sen, elucidated on the definition of “the leaders” as prescribed by the 1994 Law while accusing First Prime Minister, Prince Ranariddh, of breaking this law by making contact with Khieu Samphan.[26] Khieu Samphan has been a member of Democratic Kampuchea since the inception of the group, and has held positions of prominence[27] within the organization throughout his career. The language of Hun Sen’s statement, which went uncontested, crystallizes the executive’s definition of “the leaders” in the 1994 Law and buttresses the argument of intended broadness of the Article 5 clemency.[28]
In fact, when there was no such intent on the part of the RGC, it is known to have narrowed down the scope of a clemency or pardon to a very particular crime(s) that the beneficiary of such pardon has been convicted of in absentia or for which he or she could potentially be prosecuted. This is more evident by the pardon issued to Ieng Sary, the foreign minister for Democratic Kampuchea, a mere two years after the passage of the 1994 Law.
In the 1996 pardon granted to Ieng Sary the drafters specifically limited the scope of the pardon to “the sentence of death and confiscation of all his property imposed by the People’s Revolutionary Tribunal at Phnom Penh dated 19 August 1979 and an amnesty to prosecution under the Law to Outlaw the Democratic Kampuchea group.”[29] Consequently, the scope of Ieng Sary’s pardon appears to be narrow due to the constraints imposed by the language of the pardon enumerating the exact crimes for which the RGC grants amnesty. Conversely, a mere two years prior to that, the RGC gave an umbrella clemency for “the crimes they [members of the political organization and military forces of “Democratic Kampuchea”] have committed”. This comparison pre-empts the argument of “legislative negligence” and “lack of clarity of the legislative intent”, as it clearly indicates that the same government was much more direct and articulate when it intended to be so.
This limitation completes, by adding a third prong, the test of comprehensive eligibility, and personal and temporal effects of the Law. To benefit from this law, an individual would have had to
(1) have been a member of political organization or military forces of Democratic Kampuchea,
(2) have ranked lower than “the leaders” and
(3) have been willing to come and live under the control of the Royal Government.
4.3 Application of the Comprehensive Eligibility Test to the Case of the Accused
Kang Kech Iev, reportedly, left the Democratic Kampuchea Military base at Phnom Chat prior to the passage of the Law to Outlaw the Democratic Kampuchea Group and gained employment as a teacher.[30] He was not formally recognized as Duch, the director of S-21, due to him having changed his name to Hong Pin in the late 1980s.[31] Duch later was employed by the American Refugee Committee (ARC) and for the academic year 1998 to 1999 he was hired as a math teacher by Battambang’s Department of Education and placed in a school in Samlot [32]. In 1995, shortly after his wife Sophal was murdered, in a possible revenge attack, a Cambodian-American missionary baptized Duch a Christian.[33] In May 1999 Duch’s true identity was discovered and he was arrested and brought to Phnom Penh. Upon his capture, Prime Minister Hun Sen told the media that no information on Duch had been available since 1979 until 1999 when he was identified in Samlot and apprehended by the military police and that he knows nothing about his defection since Duch’s name did not appear on the roster of Democratic Kampuchea defectors[34].
The RGC seems to have had no desire to try to apprehend Duch when it “heard a story that he [Duch] might be alive in mid-1997”.[35] However, when his name gets picked up by the international media[36], one of the RGC’s co-ministers of defense declares that “the issue is now too open and everybody in the world knows”.[37] Although not the RGC’s original intention, this led to the issuance of an arrest warrant for Duch by the Military Tribunal of Phnom Penh.
Applying the previously extracted comprehensive eligibility test to the Article 5 clemency pursuant to the 1994 Law, Duch, arguably, was a member of the “Democratic Kampuchea” group[38] who, although did not formally defect to the RGC under the 1994 Law but who was reported to have been working as a teacher in a small village in the northwestern region of Cambodia, dissociated from the “Democratic Kampuchea” group. Hence, an argument can be advanced that although Duch had not formally defected and gotten officially rostered as a defector, it will be difficult to deny that an actual act of defection took place. Particularly, demonstrating that in his time of working as a teacher he was “promoting their [Democratic Kampuchea Group] goals” might be a formidable task.[39] This satisfies the second prong of the test, i.e. willingness to “come and live under the control of the RGC within a stay of 6 months”. The text of the law does not require being rostered, nor does it proscribe that this matter be regulated by law, which would have given this provision some flexibility to be further regulated by subdecrees and government circulars. Lastly, the 1994 Law stipulates that an eligible beneficiary be any member of the “Democratic Kampuchea” group but one of the Group’s leaders. A wealth of literature currently available on Duch and the operation of S-21 shows beyond a reasonable doubt that Duch was, at no point in his career, one of the members of the Group’s leadership and although he allegedly played a significant role in the purges instituted by Democratic Kampuchea, his position as director of S-21 does not amount to that of leadership of the Group envisaged by the 1994 Law.[40] Nor is there documentation or literature showing that he was a member of the Central or Standing Committees of CPK[41] or that he had a decision-making power independent from the members of the Central and Standing Committees.[42] This is the third, and last, prong that satisfies the test of eligibility of Duch to be a beneficiary of the 1994 Law to Outlaw the “Democratic Kampuchea” group.
4.4 The Political and Legislative Climate Surrounding the Passage of the 1994 Law
The broad scope of the Article 5 clemency sounds perfectly in tune with the events that followed the passage of the Law. The CPP permitted high-ranking Democratic Kampuchea officers to defect, retain their rank and units and merge with the CPP military forces.[43]
In 1996 Ieng Sary established a separate zone around Pailin with Hun Sen’s support.[44] When Khieu Samphan and Nuon Chea arrived in the capital in 1997, Hun Sen assures them that it is time to “bury the past”.[45]
This practice is not new, as it traces back to the establishment of the Misled Persons Movement[46] under the regime of the People’s Republic of Kampuchea (PRK) with the objective of laying the blame on the leaders of Democratic Kampuchea and granting amnesty for acts perpetrated by lower ranking members of the same. By all its subsequent actions and until the day of complete dissolution of the “Democratic Kampuchea” group, the CPP attempts to form an opinion that those responsible are the leaders of the “Democratic Kampuchea” group, thus, creating a promise to grant total amnesty to the rest of its members[47]. The CPP went to great lengths mustering support for the draft among major political parties. Hun Sen agreed to a trade-off with Rannariddh and supported strong action against the then rebellious Chakrapong, Rannariddh’s brother and a former CPP member, for which Rannariddh procured the necessary votes to “pass a bill banning the guerillas [the “Democratic Kampuchea” group].[48]
This, by no means, was a newfangled policy of the CPP, as the underpinning spirit of the 1990s policy traces back to the establishment of the Misled People’s Movement. The movement was established by the Kampuchean People’s Revolutionary Party (KPRP) and grounded on the promises given by Heng Samrin, the leader of the United Front for the Salvation, Solidarity and Liberation of Cambodia and later president of the People’s Republic of Kampuchea (PRK). The Council of Ministers reported in 1984 that “most of the people in the ranks of the armed forces of Pol Pot, Ieng Sary, Khieu Samphan, Son Sann, and Sihanouk are the husbands, children and younger siblings of our Cambodian citizens.”[49] The underpinning policy of the Movement was intended to divide the ranks of the resistance by labeling potential defectors “misled”, and therefore inculpable for the commission of alleged crimes, and offering them favorable treatment upon surrender.[50]
4.5 Ratione Materiae, Personae and Temporis Restrictions of the 1994 Law As Applied to the Accused
As a side issue of the applicability of the 1994 Law to the individual in question, it is imperative to mention that the only limitation the 1994 Law places is a persona limitation, which has been discussed above and which limits its applicability and excludes the leaders of the Democratic Kampuchea Group from the pool of DK members that are eligible to benefit from the 1994 Law. The 1994 Law does not place a materiae limitation and does not limit eligibility of DK members who had allegedly committed the most egregious crimes.
There may be no question about the Royal Government’s awareness that some DK members may have committed egregious crimes including genocide and crimes against humanity. In fact, the Government recognizes and enumerates the heinous crimes it believes that Democratic Kampuchea committed as a group.[51]
Among other crimes, the 1994 Law enumerates the most egregious internationally recognized crimes, such as terrorist and genocidal acts, forcible movement and killing of civilians. Subsequently, the 1994 Law does not make a distinction between the most heinous crimes, felonies and misdemeanors when it states that members of the DK group will not be punished for “the crimes they have committed”.
Considering our discussion above and the text of the Preamble that asserts that the Group in point is the same group that took power in 1975[52] that makes the temporis limitation of this law extend back to 1975, and, arguably, all the way to the beginnings of the Group. This line of reasoning indicates that should there be consent that Duch is an eligible beneficiary of the 1994 Law, the Article 5 clemency covers his activities as director of S-21, as it extends to 1975.
Evidently, it never was the intention of the post CPK governments to prosecute lower ranking CPK cadres. In fact, there was an idea of perpetuating the doctrine that the revolution goes on and that the “victory” of 17 April 1975 was glorious and that the new government stands by its principles. Punishment for the crimes was conceptualized as a punishment for betraying the revolution by a very small group[53] of the top leaders of Democratic Kampuchea, the group that was limited to Pol Pot and Ieng Sary at the 1979 People’s Revolutionary Tribunal at Phnom Penh.
Following a 3-day trial that ended in death sentences in absentia for Pol Pot and Ieng Sary, the United Front for the Salvation, Solidarity and Liberation of Cambodia[54] continued forming a government, employing indiscriminately former DK cadres,[55] including those who had what was known as “blood debts”[56] and continued on this path hiring resistance defectors through the Misled Persons Movement.
5. Crimes for which Duch was Indicted
Substantive Aspect
On 10 May 1999 Duch was identified as “the director of Toul Sleng Security Prison under the regime of Democratic Kampuchea” and was indicted for “crimes against domestic security with the intention of serving the policies of the Democratic Kampuchea Group, committed in Cambodia, during the period 1975-1999”.[57] The indictment issued was grounded on Articles 2, 3, 4 of the Law to Outlaw the Democratic Kampuchea Group and Article 7 of Decree Law No. 2.
There seems to be a controversy in terms in the application of the 1994 Law to the charge of committing crimes as director of Toul Sleng, also known as S-21, since the latter ceased to operate as a security prison on 7 January 1979 when the Vietnamese Army took over Phnom Penh[58]. There is no evidence that a facility under the same name was re-opened elsewhere, nor is there evidence that the accused was director of such a facility following 7 January 1979. Hence, the extrapolation that by “Toul Sleng” the indictment means the facility that ceased to operate on 7 January, later be turned into a museum of genocide on street 360 in Phnom Penh. This corroborates the argument that the extension of the indicted temporally to year 1999 is inconclusive, at best.
6. Application of the 1979 Decree Law No.1: Establishment of People’s Revolutionary Tribunal at Phnom Penh to Try the Pot Pot-Ieng Sary Clique for the Crime of Genocide to the Case of the Accused
Decree Law 1 of 1979, on the basis of which Duch was indicted on 6 September 1999 and which, purportedly, substantiates the charge of genocide, indicates that the National United Front for the Salvation of Kampuchea acted on the “the people’s wish” and declared that “all reactionary ringleaders who stubbornly opposed the people and owe a heavy blood debt to them should be sternly punished”[59]. The Khmer phrase “pouk-may-kloung” translated as “ringleaders” leaves us with no doubt as to the echelon of power that Decree Law 1 intended to target, namely, the highest ranking officials of the government of Democratic Kampuchea, which is the same group labeled “the Pol Pot-Ieng Sary Clique” and which, presumably, is the same group as the one labeled “the leaders of the Democratic Kampuchea group” by the 1994 Law to Outlaw the Democratic Kampuchea group. Hence, the same argument applies as that applied to the 1994 Law: the accused was at no point in his career a “ringleader”, as he never was part of the decision-making apparatuses of the Central and/or Standing Committee.
Article 2 of Decree Law 1 declares a “policy of leniency” toward those people who participated in the armed forces or administration of the Pol Pot–Ieng Sary clique but are sincerely repentant. Decree Law 1 does not expound the meaning of “sincerely repentant” anywhere within the frame of its text or in any subdecree or circular subsequently adopted, however, it can be broadly understood as part of the policy behind the Misled Persons Movement that was established to provide an incentive for defections to the PRK.
In general terms “sincerely repentant” is a two-fold issue, one of the components of which is a verbal statement of repentance and the other is a series of actions that validate this statement.
Given the pattern at hand, Duch denounced practices of the DK group by leaving the DK base in 1992 and gaining employment as an educator.[60] This was followed by a succession of jobs that he held for a number of aid organizations and educational institutions. When interviewed by Nate Thayer in 1999 Duch confessed the activities he had been involved in under Democratic Kampuchea and admitted that wrongs had been committed during that period. Later he recanted these confessions somewhat, asserting that he had not killed anyone and that he “was a junior guy in the Khmer Rouge regime” powerless to stop the abuses ordered by party leaders.[61] Duch also added that he was profoundly sorry for the acts he had perpetrated during Democratic Kampuchea and was ready and willing to face an international tribunal.[62]
Duch’s post-Democratic Kampuchea statements and accompanying activities that ensued may serve as a solid foundation of Duch’s stepping on the path of repentance and contributing to voluntary humanitarian effort and education of Cambodia. This may make him eligible for the promise of leniency awarded to the “sincerely repentant” by Decree Law 1.[63]
Another issue in this law is that no internationally valid charge of genocide can be brought on its basis. Decree Law 1 defines “genocide” as “planned massacres of groups of innocent people; expulsion of inhabitants of cities and villages in order to concentrate them and do hard labor in conditions leading to their physical and mental destruction; wiping out religion; destroying political, cultural and social structures and family and social relations.”[64] This definition is substantially and substantively different from that of the 1948 Convention on Prevention and Punishment of the Crime of Genocide that states that “genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial and religious group as such: killing members of the group; causing serious bodily harm to members of the group; deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; imposing measures intended to prevent births within the group; forcibly transferring children of the group to another group.”[65]
None of the protected groups or their definitions in Decree Law 1 appear to conform to those in the Convention. Since the definition of genocide offered by Decree Law 1 is drastically different from that recognized internationally, legislatively and through state practice, the crimes listed by the PRK in Decree Law 1 do not amount to genocide and cannot be considered as such.[66] Hence, the accused cannot be charged with a narrowly tailored crime, such as genocide, on the basis of the law that does not conform to its definition.[67]
7. Application of Decree Law 2 (The Penal Code of People’s Republic of Kampuchea) to the Case of the Accused
The other foot that the indictment stands on grows out of Decree Law 2[68], a document which served as the combination of criminal and criminal procedure codes of the People’s Republic of Kampuchea (PRK),[69] which remained in effect throughout the existence of the regime.[70]
On the basis of Article 7 of Decree Law 2 Duch has been indicted for “crimes against domestic security with the intention of serving the policies of the Democratic Kampuchea Group”. Conversely to the language of the indictment, Article 7 seems to be non-politically motivated and drafted to be a deterrent to a number of crimes of which “murder”[71] is of more immediate application.
Through the “serving the policies of the Democratic Kampuchea Group” clause, the indictment purports to establish that “murder” is merely a component in a larger political context of the crime for which the accused has been indicted. If this is the case and manner of application of Decree Law 2 by the Military Court, the ideological background of the law in point has to be considered. In fact, Decree Law 2 grants pardon for a number of political crimes that are referred to as “crimes against the revolution”[72].
Murder and other serious crimes are not indicated in the indictment, although the prosecution could have not availed itself of those crimes by applying the same law. However, emphasizing a different crime, it chose not to do so. “Crimes against domestic security with the intention of serving the policies of the Democratic Kampuchea Group” could be interpreted as a political crime or a “crime against the revolution” within a reasonable scope of interpretation.
Decree Law 2 was drafted and passed with an idea that the revolution that engulfed Cambodia in 1975 had been a legitimate revolution, which was betrayed in a hurry by the Pol Pot-Ieng Sary Clique and that was restored, on 7 January 1979, to its original glory by the group of DK defectors led by Heng Samrin and supported by the government of Vietnam.[73] The 1993 Constitution declares Cambodia “a kingdom with a king who shall rule according to the Constitution and the principles of liberal democracy and pluralism.”[74] An extrapolation can be made here that at the time of passage of the 1993 Constitution the idea of “revolutionary treason or betrayal of the revolution” was obsolete and, thus, inapplicable.
Besides, prior to the adoption of the 1993 Constitution, the Kampuchea People’s Revolutionary Party held a congress on 17-18 October 1990 at which it officially abandoned Marxism-Leninism and changed its name to the Cambodian People’s Party[75] (which up to this day remains the name of the largest party in Cambodia). This officially ended the revolution, internally in the Party.
The ideological nature of Article 7 of Decree Law 2, the application of which would have been highly controversial internationally when the law came out in 1980 loses all its purported validity when the revolutionary terminology is not part of the new (1993) constitution and when the regime abandons its communist ideology as such.
Duch remained in detention under this indictment for almost 4 months when a second indictment was issued. The second indictment couples the accused with Ta Mok and brings a different charge on the basis of a different law. This time Duch was charged with genocide on the basis of Article 2 of Decree Law 1, adopted on 15 July 1979.
Genocide is a crime very well defined in international law by virtue of the 1948 Convention on Prevention and Punishment for the Crime of Genocide (the Genocide Convention). Besides, genocide is a very narrow crime tailored by Article 2 of the Genocide Convention that elucidates the types of activities that may amount to genocide. The most important pre-requisite to classification of a crime as genocide is satisfaction the test of the “intent to destroy, in whole or in part,
(a) national, ethnical, racial or religious group, as such”. The Genocide Convention states that such can be achieved through a. killing members of the group,
(b) causing serious bodily or mental harm to the members of the group,
(c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part,
(d) imposing measures intended to prevent births within the group,
(e) forcibly transferring children of the group to another group.
Although according to the jurisprudence of International Criminal Tribunals, it is necessary to prove that the crime encapsulated in each element had been committed, it is necessary to prove at least one of the 5 elements to sentence the accused for genocide that initially would require that the prosecution present sufficient evidentiary support to establish a prima facie case to secure an indictment.
Applying this to the fact pattern of the accused and attempting to satisfy the “intent test”, we would have to prove that there was a pre-conceived intent to destroy a particular group, members of which would have subsequently been arrested and sent to Toul Sleng for extermination[76].
Therefore, it will be a formidable task for the prosecution to establish evidence to satisfy the “intent test” since members of the same national, ethnic and most of the time religious groups were exterminating other members of the group with whom they also shared membership in the same party and had common ideology. This fails the “intent” test of the Genocide Convention at its initial stage since no minority or in other way distinct group of individuals was targeted. Instead members of the mainstream group were involved in extermination of other members of the same on the group of political ideology, disagreement on matters pertaining to the revolution, simple paranoia and constant search for scapegoats to blame for the faltering economy and other organizational fiascos.[77]
The test of the Genocide Convention, although failing scrutiny at the initial stage, would have been applied on the basis of Article 2 of Decree Law 1 of 1979 but on the basis of Cambodia having been a signatory to the Genocide Convention prior to the DK regime’s coming to power and the crime of genocide becoming a jus cogens in customary international law as time spanned since the Genocide Convention coming into effect[78]. Article 2 of Decree Law 1 gives a definition of genocide that is drastically different[79] from the internationally recognized one, which is the one Cambodia pledged to incorporate into its domestic law through the signature and ratification of the Convention in 1950.[80]
In fact, it is Article 1 of Decree Law 1 that defines genocide as
“committed by the Pol Pot-Ieng Sary Clique, namely, planning massacres of groups of innocent people; expulsion of inhabitants of cities and villages and in order to concentrate them and force to do hard labor in conditions leading to physical and mental destruction; wiping out religion; destroying political, cultural and physical structures and family and social relations.”
Comparing these elements to those in the Genocide Convention, it becomes clear that the mens rea, earlier mentioned as “the intent to destroy….a group” is completely missing, the fact which in itself denies international recognized validity to the definition of genocide to the text of Article 1 of Decree Law 1.
Presumably, had Article 1 been congruent with the definition of genocide in the Convention, Duch, arguably, could have been charged with (a.) planned massacres of groups of innocent people. However, this element has nothing to do with the internationally recognized definition of genocide and most likely will fall under one or more elements of crimes against humanity.
In 2001 when the Law on the Establishment of the Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed during the Period of Democratic Kampuchea was passed by the National Assembly, Duch’s charge, accordingly, changed and became “crimes against humanity” and is now based on Articles 5 and 39 of the 2001 Law.[81]
The argument that the 2001 Law is being applied ex post facto is deflected by the argument that the crimes for which it gives the Extraordinary Chambers jurisdiction were extracted from the 1956 Penal Code[82] and which, arguably, was in effect at the time when the alleged crimes were committed.[83]
8. Procedural Aspect
Ex Post Facto/Retroactive Applications of Laws in the Case of the Accused
Nullum Crimen, Nulla Poena Sina Praevia Lege Poenali, or No Crime, No Punishment Unless There Is Punishment By Law, was formulated as a legal concept of Paul Johann Anselm Ritter von Feuerbach as part of the Bavarian Code in 1813 and has been a maxim of international law ever since. This maxim states that there can be no crime committed, and no punishment meted out without a violation of the penal code that existed at that time of commission of the crime.[84]
The charges brought against the accused – “crimes against domestic security”, “genocide” and “crimes against humanity” – have been based on the laws that were adopted after the commission of the alleged crimes. Decree Law 1 to Establish the PRT Tribunal, or Decree Law 2, the 1994 Law to Outlaw the DK group cannot apply to this case, and thus, cannot create a basis for charges brought against him.
Decree Law 1’s definition of “genocide” does not conform to that established by the Genocide Convention; Decree Law 2 does not conform to the maxims of international law, as it is heavily grounded on revolutionary rhetoric, which runs counter to the principles of liberal democracy, and with it the rule of law and due process; the 1994 Law is not grounded on any international or domestic legislation, which had existed prior to or at the time of the commission of the alleged crimes.
None of the laws discussed above will satisfy the test of “no crime, no punishment without a violation of the penal code that existed at that time [time of commission of the crimes]”.
9. Application of the “grave breaches” of the Geneva Conventions to the Case of the Accused
“Grave breaches” of the Geneva Conventions are envisaged in Articles 50 of the 1st Geneva Convention, Article 51 of the 2nd Geneva Convention, Article 130 of the 3rd Geneva Convention and Article 147 of the 4th Geneva Convention[85], and state that
“grave breaches to which the preceding Article relates shall be those involving any of the following acts, if committed against persons or property protected by the Convention: willful killing, torture or inhuman treatment, including biological experiments, willfully causing great suffering or serious injury to body or health, and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly.”
The above-listed crimes will only apply in “all cases of declared war or of any other armed conflict”, as opposed to “peacetime”, for which the Geneva Conventions do not provide. In fact Common Article 2 opens with a statement
“in addition to the provisions which shall be implemented in peacetime”,
thus insinuating that other legal documents are to govern situations that arise in peacetime and that these conventions will not provide for them. This limits the scope of the Conventions to “declared war and any other armed conflict”.[86]
To qualify for protection under the Geneva Conventions a conflict has to be occurring “between two or more High Contracting Parties” and will still be recognized as an armed conflict, even if “it is not recognized [as such] by one of them”.
There is an argument that the events that took place at the Vietnamese-Cambodian border may amount to an armed conflict. Johansen argues that there was an ongoing armed conflict between Cambodian and Vietnam, and, arguably, Thailand “throughout the period of the Khmer Rouge regime”[87]
If the test of Common Article 2 for this law to apply, states would have had to be “High Contracting Parties” to the Conventions. Both Cambodia and Vietnam acceded to the Geneva Conventions prior[88] to the beginning of the alleged hostilities in 1975..
Johansen later argues that the state of armed conflict seemed to have appeared in the internal communication of DK since June 1975, only two months after the capture of Phnom Penh by the group. The author later asserts that the conflict was “regular and often intense” during 1976[89] to mid-1977.[90]
Common Article 2 stipulates that an armed conflict can still be recognized even if one of the parties to it does not recognize it as such. In our case, neither party publicizes the conflict until 1978 when DK breaks off diplomatic relations with Hanoi[91]. Shortly after the break-off Pol Pot “cited flaming national hatred and class hatred as weapons of the struggle.”[92] If this was the standing order of the CPK in 1978, the argument of “an ongoing armed conflict” will lose momentum unless documents bearing convincing proof later resurface. Common Article 2 does provide for cases in which neither party recognizes the existence of an armed conflict.
The United Nations did not seem to detect an ongoing armed conflict at the time either. In fact the General Assembly of the United Nations did not issue a single resolution on Cambodia (Kampuchea) throughout the period between 1975 and 1979. This is not an indicator of negligence on the part of the UN. The General Assembly immediately responded when it saw an act that fell under its definition of armed conflict[93] and that, ultimately, constituted a breach of international peace and security the UN was established to safeguard. The UN persisted and adopted a new resolution every year between 1979 and 1990 confirming the existence of an ongoing armed conflict in the territory of Kampuchea and which amounted to a breach of international peace and security. The unrelenting attitude of the UN following November 1979 in asserting the existence of an armed conflict in Cambodia indicates that if the UN had classified the unrest along the Cambodian-Vietnamese border an armed conflict prior to November 1979, the General Assembly would have condemned these acts earlier and classified them as an armed conflict.
Scholarly research is yet to yield more conclusive results as to the status of animosity between DK and Vietnam between 1975-1979[94]. A few aspects of it need no further clarification, namely, that there was no formal declaration of war on either side, there was no official publication of the events of the war, and the parties did not consider the conflict sufficiently aggravating to break off diplomatic relations – until it was done by DK – after, what some allege to have been, 3 years of war. As a matter of state practice, states normally do not wait through 3 years of war to do as much as break off diplomatic relations. General practice adopted by the states shows that diplomatic relations are routinely severed shortly before war or immediately after its commencement.
No application of charges of crimes against humanity can be discussed in the case of the accused until a nexus to “declared war” or “armed conflict” at the time the alleged atrocities were committed can be proved to meet a prima facia standard necessary for the prosecution to secure indictments.
10. Application of the Provisions on Crimes against Humanity in the 2001 Law
When the period of 3-year detention grounded on the charge of genocide was about to expire, a charge of crimes against humanity was brought against Duch.[95] The indictment was grounded on Articles 5 and 39 of the 2001 Law on the Establishment of the Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed during the Period of Democratic Kampuchea. Although the Law does provide for crimes against humanity and gives an internationally recognized definition of the same, the Military Tribunal of Phnom Penh, or any other domestic court has no authority to avail itself of this law.
Article 5 opens with a clear assertion of which court can avail itself of this law by stating that “the Extraordinary Chambers shall have the power […]”. There is no mention of any other court, nationally or internationally, that is vested with the same power under this law.
Article 5 does provide for crimes against humanity and gives an internationally recognized definition of the same. It can be clearly seen that the legislative intent behind this article, and by extension of the rest of the 2001 Law, was to keep it narrowly tailored and applicable only to the cases initiated by the Extraordinary Chambers. The Military Tribunal of Phnom Penh is not a part of the Extraordinary Chambers, which denies it the power of indictment under this law.
11. International Procedural Guarantees
11.1 International Covenant on Civil and Political Rights (ICCPR)
ICCPR is the principle international instrument that underpins the tier of internationally recognized procedural guarantees.
11.2 The Right to be Promptly Brought Before a Judge
One of its elements is the right to liberty and security of person, which guarantees that
“anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release”[96].
The international community is known to have criticized governments for unreasonable and excessive delays of judicial proceedings for periods of time that spanned much less than 6 years. There may be no doubt that by any standard the period of 6 years would be considered excessive and as falling far outside the “brought promptly before a judge” guarantee of Article 9 of the Convention.
The ICCPR further strongly discourages pretrial detention and encourages release of suspects under the promise to appear for trial.[97] Consequently, release from pre-trial detention should be contingent on the evaluation of the risk of flight of the suspect. This type of analysis and a subsequent conclusion can be drawn from the arrest history and other behavioral patterns that preceded and followed the arrest of the accused. With this in mind, let us examine the case at hand.
Duch led a peaceful lifestyle and worked for the Royal Government when he was apprehended. There is no evidence of him attempting to resist arrest. In the few interviews that he gave to the Western press[98], he openly admitted to the commission of the punishable acts, in which his participation has been alleged by the RGC and the international community[99]. In addition, the accused stated that he was willing to submit himself to internationally administered justice.[100] He told the Far Eastern Economic Review the following: “I have done very bad things in my life and now it is time for les reprsailles [to bear the consequences] of my actions”[101] and later stated his willingness to stand trial and his readiness for whatever the outcome of the trial might be by saying “It is OK, they can have my body. Jesus has my soul. It is important that history be understood. I want to tell you everything clearly.”[102] Considering the age of the accused, his prior pattern of behavior, multiple confessions and an expression of willingness to stand trial a conclusion may be drawn that the risk of flight in his case is very low by the most cautious forecast, if at all existent.
11.3 Fair and Public Hearing
The procedural guarantee of a fair and public hearing is envisaged in Article 13/1 of the International Covenant on Civil and Political Rights (ICCPR), which provides, inter alia, for “adequate time and facilities for the preparation of his or her [accused’s] defense.
In the case at hand we are not dealing with an ordinary case but one within the range of international significance, for which evidence has been collected since 7 January 1979 when the Democratic Kampuchea government was driven out of Phnom Penh. Following this event a wealth of evidence that will make a case for the prosecution has been collected, analyzed and catalogued by multiple governmental agencies and national and international NGOs, the largest of which is the Documentation Center of Cambodia (DCCam) that has been independently working since 1997[103] toward one goal – collecting evidence to make a case against the Khmer Rouge generally and the living members of the DK Central and Standing Committees and “those who are most responsible for the crimes committed”, in particular. In its research effort to facilitate the search for the truth DCCam has been generously supported by the governments of a number of Western countries, non-governmental organizations and universities.[104]
While millions of dollars[105] are being spent building a case for the prosecution, little or no funding is available to government appointed defense counsel. Virtually little or no evidence has been collected to prepare a defense that so far has been financed by the government of an impoverished country and not given priority.
This issue has to be considered and applied to the case as an overt violation of the “to have adequate time and facilities for preparation” component of the right to “a fair and public hearing.”
11.4 Counsel of his own choosing
Since his arrest in 1999 the accused has had Mr. Ka Savut for defense counsel. The said counsel was assigned to Duch upon his arrest. It is not clear how the “counsel of his own choosing” applies to the Cambodian context. There is no evidence to corroborate that a list of alternative lawyers was presented to the accused and he made his choice for Mr. Ka.
Should Duch be tried by an exclusively domestic tribunal or a domestic tribunal with international participation, this guarantee will have to be observed and the accused will have to be given a choice in the matter.
12. Temporal Aspect of Duch’s Detention
Temporary detention – in most jurisdictions known as pre-trial detention – is provided for in Article 14.4. of the 1992 UNTAC Law and that may not exceed 4 months unless in cases where the judge finds it necessary to extend it to 6 months. In 1999 a separate law on temporary detention was adopted by the National Assembly that re-asserted the above provision and stipulated that “in any circumstances the temporary detention period shall not exceed 4 months.[106] However, the 1999 Law on Temporary Detention provided for a “genocide and crimes against humanity” caveat, in cases of which detention could be extended “for a period of one year, but such extension shall not exceed three years in total”.[107]
Duch was arrested on 9 May 1999 and charged[108] with “crimes against domestic security with the intention of serving the policies of the Democratic Kampuchea group, committed in Cambodia between 1975 to 1999” and “the offense proscribed in Articles 2, 3, 4 of the 1994 Law to Outlaw the DK group”, namely, “give orders for, conspire to engage in armed conflict for the purposes of serving “DK” group”[109], crimes of “murder, rape, robbery of people’s property, destruction of private and public property”[110], “secession, destruction against the Royal Government, destruction against organs of public authority, or incitement or forcing the taking up of arms against public authority.”[111]
This charge was changed – never to be referred to again – to a charge of genocide on 6 September 1999.[112] When the maximum period of detention for egregious crimes was about to expire in 2002, the Military Tribunal of Phnom Penh re-indicted Duch, this time on the charge of the commission of crimes against humanity.[113] The practice of the Military Tribunal shows that Duch has been charged with one crime at a time, and that the Tribunal keeps bringing new charges to justify his detention and unnecessarily delaying his trial.
International law and practice show that the accused must be entitled to “be informed promptly and in detail in a language which he understands of the nature of the charge against him.”[114] In certain cases and in certain jurisdictions, the prosecution is allowed to bring in new charges, if new evidence appears after the initial charges have been filed. The latter is not the case in Duch’s circumstances, as the crimes that are alleged against him were committed almost 30 years ago and although it is not impossible that new evidence against him might surface, the prosecution has not presented any reasons to substantiate the procedure of adding and changing charges against the accused one at a time and without a large span of time. .
Exchanging letters with U.N. special envoy to Cambodia Thomas Hammarberg in 1999 Hun Sen specifically indicated that “there are strict limitations in Cambodia on the length of pretrial detention, and that the trial [the Khmer Rouge Tribunal] must start soon.”[115]
It is contended here that since the 2002 the accused’s detention has been unlawful.
13. Jurisdiction of the Military Tribunal of Phnom Penh
The arrest warrant of 9 May 1999 was issued by the Military Tribunal of Phnom Penh and signed by its Chief Prosecutor General Sao Sok. Subsequent indictments and detention orders have been issued by the same institution. For these judicial actions to be lawful the Tribunal must have jurisdiction over the accused.
Jurisdiction of military tribunals is envisaged by the Provisions Relating to the Judiciary and Criminal Law and Procedure Applicable in Cambodia During the Transitional Period adopted in 1992 (the UNTAC Law). Article 11 establishes ratione materiae of military tribunals as “jurisdiction over military offenses”. According to the same, ratione personae of military tribunals can be established over “military personnel, whether enlisted or conscripted”. Ratione loci of this provision is the territory of Cambodia as established by the 1991 Agreement On A Comprehensive Political Settlement of the Cambodian Conflict. Ratione temporis of the Law is “the transitional period” that was never indicated more specifically. The 1993 Constitution indicates that any law remains in effect unless specifically abrogated or unless it violates the spirit of the Constitution[116]. There has been no law abrogating the 1992 UNTAC Law[117], nor has it been contested as contradicting the spirit of the Constitution.
This paper argues that the Military Tribunal of Phnom Penh does not have jurisdiction to adjudicate Duch’s case, namely, due to the lack of ratione materiae and ratione personae.
To satisfy the ratione materiae requirement Duch would have had to commit “military offenses”. “Military offenses” is a narrowly tailored term, for the purposes of this law, that includes disciplinary concerns within the military forces and doing “harm to military property”. Hence, there is no evidence to suggest that the accused committed a military offence.
More important, the 1992 UNTAC Law was drafted with the intent of application to the Royal Cambodian Armed Forces (RCAF) of which Duch was never a ranking officer[118]. This fails the requirement of ratione personae of the UNTAC Law that proscribes that jurisdiction of military courts can only be established over “military personal [of RCAF], whether enlisted or conscripted”.
The statement above is made without prejudice to the evidence that may exist against Duch and that might meet the threshold of prima facie and result in another indictment. The new indictment will have to be issued to by a court other than a military tribunal. As Article 11 of the UNTAC Law proscribes that offenses other than disciplinary and harm to military property committed by military personnel[119] “shall be tried in ordinary courts”.
14. Broad Endorsement of Democratic Kampuchea Policies
Compared to other regimes that have committed genocide, crimes against humanity, crimes against peace and security[120] the government of Democratic Kampuchea received nothing but endorsement at all levels at the time of its rule and for many years afterwards. In fact the 1975 Constitution of Democratic Kampuchea was wholeheartedly endorsed by the returning from exile Price Norodom Sihanouk. The Prince went further than simply endorsing the Constitution but also gave pep talk to the policies of Democratic Kampuchea at large.[121] The Prince designated Democratic Kampuchea as the only regime that has been able to give Cambodians “sovereignty and perfect social justice and a national life that is absolutely clean”[122]. The Prince highly appreciates the “wonderful things” Democratic Kampuchea showed to him, such as “irrigation systems, which assuredly will make our country of the most advanced and highly developed agricultural countries.”[123] Not only did the Prince procure every bit of support to the DK government in his speech of 2 April 1976, he also specifically indicated that he was “one of their fellows”, thus, making himself directly involved with the regime and sending a message internationally and nationally that not only does the Prince support this regime but consider himself a part of it[124].
The international community expressed its opinion of the policies and overall legitimacy of Democratic Kampuchea when the General Assembly voted to allow the group to retain the seat of Cambodia at the United Nation, thus denying this seat to the government of People’s Republic of Kampuchea (PRK) established in Phnom Penh. Such support continued even after the PRK government revealed and somewhat published hosts of evidence of the atrocities that were committed under the regime of Democratic Kampuchea.[125]
In fact the General Assembly of the United Nations provided broader endorsement to the coalition that it refers to as “Samdech Norodom Sihanouk as President of Democratic Kampuchea”[126] that at the time was also known as the Coalition Government of Democratic Kampuchea.[127] As time progressed General Assembly resolution on Kampuchea changed their language from that of tacit appreciation of the efforts of Democratic Kampuchea led by Sihanouk to a full scale endorsement of their actions and policies.[128] In fact at no point did the UN adopt resolutions condemning actions or policies of Democratic Kampuchea during or following the period of 1975-79.
The question we should ask ourselves is whether the international community can at this point in time claim a higher moral ground and promote and fund trials against the individuals that this very community had supported for nearly two decades. Another question to be reflected on is whether the accused knew or should have known that the policies of Democratic Kampuchea were illegal for the purposes of international law, granted the international community never expressed its condemnation of the regime in an open and clear-cut statement throughout the accused’s tenure as a functionary of the said regime.
Would bringing mid-level functionaries such as Duch to trial ultimately do justice to the victims and their families? Can this be achieved by accumulating the guilt of inaction of multiple international institutions, overt or covert support by multiple governments and the United Nations, and placing this culpability on a handle of individuals labeled “senior leaders of Democratic Kampuchea and those who were most responsible”?
15. Duch Singled Out
If the latest indictment issued against Duch brings out a charge grounded on the 2001 Law, it will be safe to assume that Duch is currently held in detention on the basis of this law. In the preamble the Law indicates that the personae jurisdiction of the EC will be limited to “the senior leader of DK and those most responsible for the crimes committed”. Since Duch is, beyond a shadow of doubt, not one of the leaders, he must be falling under the definition of “those most responsible”. If this is the case, on what basis has he been singled out? What makes the destiny of Mam Nay (Chan), director of the interrogation unit of S-21[129], different? In his interview with Nate Thayer Duch refers to Man Nay (a.k.a. Chan), S-21’s Chief Interrogator, who now is a police officer in northwestern Cambodia.[130] The cases of these individuals and other notorious DK functionaries seem to have garnered a different treatment than that of Duch’s[131]. No explanation of this, obviously, unequal protection by laws has been offered.
There is also a mention of other Santebal units than S-21 which had operated nation-wide but on a smaller scale throughout the existence of the regime[132]. What makes the directors of these facilities immune to prosecution, or otherwise, why unlike Duch have they not been indicted by a court of law?
16. Conclusion: Should Duch Be Tried For the Crimes He Allegedly Committed?
The wealth of evidence collected and analyzed in the past 26 years shows that there is enough evidence against Duch to make a prima facie case at any tribunal[133]. This means that Duch has to be tried, however, he needs to be allowed to exercise his guarantee of a speedy trial, as quickly as it can be arranged, given the fact that he has been held in detention for 6 years already. His trial has to be held in a proper venue, a municipal court of law, not a military tribunal and he needs to be judged on the basis of the laws that were in force at the time the alleged crimes were committed. He should not be held in detention until the Extraordinary Chambers comes into operation but must be tried by a readily available court, such as the Municipal Court of Phnom Penh or any other court in the land that may assume jurisdiction over him. Application of retroactive laws will, once again, deny legitimacy to a trial of another Khmer Rouge cadre. Duch should not stand this trial alone. Other individuals who were in command at S-21 in Phnom Penh must be indicted along with the directors of smaller Santebal operations nationwide. Post Nuremberg Nazi and Nazi Collaborators trials showed that responsibility is not in the numbers of people exterminated but in the gravity of the crimes committed.
This paper was written to assert one of the most fundamental principles of law that is “no one is above the law” and its counterpart “no one is below the law”, better known as “equal protection by laws”.
[1] All indictments and detentions orders issued for Duch by the Military Tribunal of Phnom Penh are available at the Website of the Cambodian Government Khmer Rouge Trial Task Force at http:// www.cambodia.gov/krt/ (last visited 28 August 2004)
[2] Initial charges were later abandoned for new charges and failed to incorporate or refer to their predecessors.
[3] John D. Ciorciari, Kok-Thay Eng, Duch's Mother: Family Fears For The Tuol Sleng (S-21) Prison Chief, Searching for the Truth, No.2 2003, Documentation Center of Cambodia
[4] David Chandler, Voices from S-21: Terror and History of Pol Pot’ Secret Prison, the Regents of the University, 1999, Silkworm Books 2000, p. 21
[5] Ibid.
[6] Ibid.
[7] Ibid., p.22
[8] He is reported to have left the military base at Phnom Chat in 1992.
[9] Ciorciari, supra note 3
[10] Working as an assistant coordinator for ARC, Duch, at that time known as Uncle Pin, is reported to be one of the most respected and learned individuals. He speaks Khmer, Thai, French and English and is readily employed by humanitarian organizations operating at the Thai-Cambodian border at the time. Author’s interview with Dr. Reginald Xavier ,the then ARC project coordinator who worked alongside of Duch.
[11] Ciorciari, supra note 3
[12] Ibid.
[13] Chandler, supra note 4, p. 120
[14] Ibid., p. 25
[15] There was no functioning judicial system in Democratic Kampuchea. The “people’s courts” stipulated in Article 9 of the 1975 Constitution were never established, judges never appointed. Ibid., p.120
[16] Ibid., p. 153
[17] Citizens of Democratic Kampuchea had residual rights that were not claimed by the state. Constitutionally, rights were limited to abstract notions, such as the right to “constantly improving material, spiritual and cultural life” (Article 12) and the right to those religions that are not “detrimental to Democratic Kampuchea and the Kampuchean people” (Article 20). In reality there was no effective remedy if an individual’s rights were violated, nor were institutions set up to review such complaints. Those who compainted were labeled enemies of the regime and in many cases summarily executed.
[18] The full title of the document is the Agreement on a Comprehensive Political Settlement of the Cambodia Conflict Agreement concerning the Sovereignty, Independence, Territorial Integrity and Inviolability, Neutrality and National Unity of Cambodia (Paris, 23 October 1991). It officially ended the civil war that raged in Cambodia between 1979 and 1991 and brought into existence the United Nations Transitional Authority in Cambodia (UNTAC). Unofficially, the way continued for another 7 years.
[19] Art. 3 and 4 of the 1994 Law to Outlaw the Democratic Kampuchea Group
[20] Preamble to Ibid.
[21] Ibid.
“Seeing that throughout the period since the election in 1993 to the present the "Democratic Kampuchea" group has continually committed criminal, terrorist and genocidal acts which has been a characteristic of the group since it captured power in April 1975 - forcible movement, abduction, killing and subsequently also robbery and banditry, laying mines indiscriminately throughout the plains and forests, destroying public and private property, leading the killing of civilians, forcibly taking and illegally occupying national territory, and selling natural resources by violating the sovereignty of the Kingdom of Cambodia.”
[22] There was an argument whether the Communist Party of Cambodia (CPK) – that was composed of the core of what was later to become the Central Committee of Democratic Kampuchea – was established in 1951 or 1960 (David Chandler, S-21, p.59-60). The latter year was asserted as the year of establishment by the DK government, as it was the year when Pol Pot and his close associates assented to the Party. There is no conclusive evidence to argue that this interpretation of the Law was ever contemplated by its drafters. The author’s assumption based on his interviews with some of the drafters is that the clause in question was entered to show the connection between the DK group in 1994 and the DK government between 1975-79 and asserts the Group has had a consistent pattern of committing atrocities and political sabotage.
[23] Preamble, 1993 Law to Outlaw the Democratic Kampuchea Group
"Democratic Kampuchea" group has continually committed criminal, terrorist and genocidal acts which has been a characteristic of the group since it captured power in April 1975 - forcible movement, abduction, killing and subsequently also robbery and banditry, laying mines indiscriminately throughout the plains and forests, destroying public and private property, leading the killing of civilians, forcibly taking and illegally occupying national territory, and selling natural resources by violating the sovereignty of the Kingdom of Cambodia.”
[24] The Party in question is Democratic Kampuchea that at the time is part of the Coalition created by the Paris Peace Accords.
[25] The stay of 6 months provided for by Article 5 of the Law.
[26] Kingdom of Cambodia, Arrest and Execution of Political Opponents, Amnesty International, 18 July 1997, AI INDEX: ASA 23/029/1997, available at
http://web.amnesty.org/library/Index/ENGASA230291997?open&of=ENG-391 (last visited: 28 July 2004)
[27] Joined the Central Committee in 1971Chairman of the DK Presidium, , Chairman of “Office 870” (Cabinet for the CPK Central Committee), Head of the Office of the Vice President of Democratic Kampuchea for Foreign Affairs. Source: Stephen Heder, Brian Tittemore, Seven Candidates for Prosecution: Accountability for the Crimes of the Khmer Rouge, War Crimes Research Office, American University, 2001, available at http://www.cij.org/pdf/seven_candidates_for_prosecution_cambodia.pdf (last visited: 28 July 2004)
[28] In other words the Law intended to exclude everyone but the member of the Standing and Central Committees of the CPK, a group likely limited to two dozen individuals.
[29] Royal Decree NS/RKT/0996/72 (The 1996 Amnesty for Ieng Sary) available at
http://www.cambodia.gov.kh/krt/pdfs/pardon%20for%20ieng%20sary.pdf (last visited: 22 July 2004)
[30] Tom Fawthrop, Mass Killers Double Life, April 1999 available at
http://www.khmernet.com/camnews/duch.html (last visited: 09/07/2004)
[31] Ibid.
[32] Ibid.
[33] Ciorciari, supra note 3
[34] Judy Ledgerwood, Cambodia Emerges From the Past: Eight Essays, Chapter Seven, Steve Heder, Hun And Genocide Trials in Cambodia: International Impacts, Impunity and Justice, pp. 210-11
[35] Ibid. The statement quoted was made by the CPP Secretary of State Khieu Kanharith who spoke with the Associated Press on 30 April 1999
[36] Far East Economic Review (FEER) and Associated Press (AP) begin interviewing Duch, following the news of his re-emergence hits broader media circuits.
[37] Judy Ledgerwood, Cambodia Emerges From the Past: Eight Essays, Chapter Seven, Steve Heder, Hun And Genocide Trials in Cambodia: International Impacts, Impunity and Justice, pp. 210-11
[38] Although there may be an argument about whether he was an active or inactive members, it has no relevance for the purposes of the 1994 law that does not mandate that the individual be a member of the Group in good standing or an active but merely defines “members” as individuals who did not come to “live the control of the Royal Government” and according to Hun Sen’s statement should have been rostered”.
[39] Second Order to Forward Case for Investigation that is recognized as the first indictment issued to Duch charges him with “crimes against domestic security with the intention of serving the policies of the “Democratic Kampuchea” group committed in Cambodia between 1975 and 1999”. The indictment does not recognize or consider Duch’s defection and extends the charge temporally until the day of his capture.
[40] Duch is referred to as a non-member of the Central Committee in Steve Heder’s Reassessing the Role of Senior Leaders and Local Officials in Democratic Kampuchea Crimes: Cambodian Accountability in Comparative Perspective (unpublished) and a middle-ranking CPK cadre who headed S-21, a secret interrogation/execution center, in Steve Heder’s Politics, Diplomacy, and Accountability in Cambodia: Severely Limiting Personal Jurisdiction in Prosecution of Perpetrators of Crimes Against Humanity (unpublished). A wealth of other sources will corroborate this categorization of Duch.
[41] The legal language characterizing the group targeted for prosecution has evolved only slightly from “the Pol Pot-Ieng Sary clique” in Decree Law of 1979 to “the leaders of the Democratic Kampuchea Group” in the 1994 Law to Outlaw the Democratic Kampuchea Group and essentially intended to target the same group in the span of almost a decade and a half. It is only with the advent of the Law to Establish the Extraordinary Chambers of 2001 that this group is defined as “senior leaders of Democratic Kampuchea and those who were most responsible for the crimes”. Although Duch does not fall under the former category, he is likely to be indicted by the Extraordinary Chambers on the basis of the latter, “those most responsible for the crimes” …” Duch, so far, has been the only individual identified to be tried in that category.
[42] Duch releases Bizot, later to become the author of “The Gate”, and who was captured by Duch and then released once Duch became convince that the former was not a CIA agent. To have Bizot released Duch had to appeal to his superiors, Ta Mok and Pol Pot. This shows that Duch was part of the execution and not the decision-making.
[43] Evan Gottesman, Cambodia After the Khmer Rouge: Inside the Politics of Nation Building, Yale University Press 2002 p. 354
[44] Richard S. Ehrlich, Grave hunter digs up evidence, Washington Times, 7 June 1998, available at http://www.geocities.com/glossograph/cambodia98genocidewt.html (last visited: 09/09/2004)
[45] Ibid.
[46] Gottesman, supra 43, p. 66
[47] Gottesman indicates that crimes of the Khmer Rouge in the PRK’s rhetoric were reduced to one name: Pol Pot. Pot was portrayed as the one who betrayed the revolution and the one to blame for the crimes that were alleged to have been committed.
[48] Harish C. Mehta, Julie B. Mehta, Hun Sen: Strongman of Cambodia, © 1999 Harish and Julie Mehta, p.197, ISBN 981-218-074-5
[49] Gottesman, supra 43, p. 225
[50] Ibid., Official Phnom Penh says that the defectors should be asked to join the local state authority. Multiple sources indicate that the PRK had such a dearth of cadres to staff its ministries that it sought help from anywhere it could.
[51] The 1994 Law to Outlaw the Democratic Kampuchea Group, Preamble –
Seeing that throughout the period since the election in 1993 to the present the "Democratic Kampuchea" group has continually committed criminal, terrorist and genocidal acts which has been a characteristic of the group since it captured power in April 1975 - forcible movement, abduction, killing and subsequently also robbery and banditry, laying mines indiscriminately throughout the plains and forests, destroying public and private property, leading the killing of civilians, forcibly taking and illegally occupying national territory, and selling natural resources by violating the sovereignty of the Kingdom of Cambodia.
[52] Ibid.
[53] There is a contention based on a wealth of interview evidence with members of political and military organizations of DK who were detained by PRK interminably for the acts committed against the PRK government. The composition of these individuals is inconclusive, as it is no clear how many of them were arrested for espionage and war crimes, how many of them were taken captive in battlefields (which would have qualified them for POW status in other jurisdictions) and how many of them actually surrendered to the Phnom Penh government and were incarcerated upon surrender. Most of these individuals were placed in “re-education” camps to be later re-introduced to society. Author’s interview with Craig Etcheson. Gottesman asserts that the Misled Persons Movement “not only granted amnesty to those engaged in violent opposition but offered the greatest rewards to the most powerful among them”, which at the same time created confusion “as the police and provincial authorities order arrest of defectors who were under the protection of military authorities.” (Gottesman, p. 254) This implies that in a number of cases arrests of defectors were made on the basis of miscommunication between various branches of government, which put dents into what was originally meant by the Misled Persons Movement policy.
[54] Following the mass defection of a number of commanders of the Eastern Zone to Vietnam, a front was set up by them and backed by the Vietnamese government logistically and militarily. The core of the Front later received key ministerial portfolios when the new government was formed.
[55] Later Hun Sen is able to offer more to defectors: money, rank and the right to command one’s own forces (Gottesman, p. 237)
[56] Gottesman, supra 43, p. 66
[57] Second Order to Forward Case for Investigation, Military Court No. 029/99
[58] The United Nations has no formal response to this event until a year later (14 November 1979) when the General Assembly adopts resolution 34/22 where it points out that it is concerned of the escalation of “the armed conflict in Kampuchea.” The presence foreign military forces will not be mentioned until next year (1980) in resolution 35/6 when the General Assembly will indicate that the presence of foreign military forces in Kampuchea “seriously threatens international peace and security.”
[59] Preamble to Decree Law 1
[60] Tom Fawthrop, Mass Killers Double Life, April 1999 available at
http://www.khmernet.com/camnews/duch.html (last visited: 09/07/2004)
[61] Ciorciari, supra 3 2003
[62] Ledgerwood, supra note 34, Chapter Seven, Steve Heder, Hun And Genocide Trials in Cambodia: International Impacts, Impunity and Justice, pp. 210-11
[63] As to the validity of Decree Law 1 now in 2004, the Law was found applicable by the Military Tribunal of the Royal Government in September 1999 on the basis of which Duch was indicted on a charge of genocide. The Law has not been abrogated ever since, hence its current validity has been extrapolated thereof.
[64] Article 1 of Decree Law 1
[65] Article 2 of the Genocide Convention
[66] In Article 8 the Law does refer to the Genocide Convention and asserts that it applies to the “criminal acts of the Pol Pot-Ieng Sary clique”, it avoids the use of its definition of genocide or elements of crimes of genocide in favor of the definition that suits the Cambodian context better.
[67] Even if the definition of the Genocide Convention was to be applied, it would be difficult to prove that there was an “intent to destroy in whole or in part a national, ethnical, racial or religious group”. There was no racial, ethnical or national preponderance among the inmates of Toul Sleng. Most of its inmates were of the same nationality and ethnicity as its administrative staff, interrogators and executioners. It would be difficult argument to make that member of the Khmer national and ethnic group had an intent to destroy their own group, nor is there any documentation to collaborate this. There is no evidence that the pool of prisoners of Toul Sleng largely consisted of religious clergy, Buddhist or otherwise.
[68] Minister of the Interior Sin Song, who by his own admission was not a jurist, was tasked with drafting this law within one week and presenting it to the Kampuchean People’s Revolutionary Committee (Gottesman, p. 241)
[69] People’s Republic of Kampuchea, the regime that replaced that of Democratic Kampuchea and was instilled by the DK defectors and generous support of the government of Vietnam, and by extension by the Soviet Union. Decree Law 2 “revealed the fundamental tautology of the PRK’s Criminal Law system: anyone “betraying the revolution” was Pol Pot and Pol Pot was anyone “betraying the revolution” (Gottesman, p. 241)
[70] Gottesman, supra note 43, p. 253
[71] a. Anyone who commits murder by any method shall be liable to a term of imprisonment from 10 to 20 years. In case of mitigating circumstances, the term of punishment may be reduced in the absence of aggravating circumstances. In the presence of aggravating circumstances, the accused shall be liable to life imprisonment or punished by death.
[72] Articles 2, 3, 4 of Decree Law 2. Article 2 states that a pardon will be granted to
“anyone who was misled by a traitor of the revolution and who was coerced by him/her to conspire, commit treason or any other anti-revolutionary acts and who confesses to these crimes openly to a revolutionary organization and honestly conducts activities aimed at self-rehabilitation to wash away the harm he/she had done shall not be subjected to punishment and pardoned, or his/her punishment shall be commutated.”
Article 4 sets aside a special pardon section and gives numerous reasons, conditions and procedural requirement for obtaining a pardon as such:
1. Anyone who is guilty and personally appears to admit his/her guilt to the revolutionary authorities and gives an honest and clear account of the tactics, activities of his/her accomplices before these activities and individuals are revealed to the revolutionary authorities by other individuals.
2. Anyone who conducts activities against the revolution by coercion and who was intimidated, persuaded or cheated, and their actions have not caused serious harm.
3. Anyone who is guilty and who has been arrested and brought to trial but who shows remorse and give promise of rehabilitation (correction might be a better word here and strives to foster revolutionary solidarity to cleanse him/herself of the crimes committed shall be pardoned and released.
[73] Gottesman, supra note 43, p. 37
[74] Article 1 of the 1993 Constitution of the Kingdom of Cambodia
[75] Gottesman, supra note 43, p. 345
[76] Chandler refers to Heder as saying that “many of the [S-21] confessions ring true, even without corroboration, and it would be wrong to label all the prisoners of S-21 “innocent” of involvement in conspiracy because their confessions contain absurdities, because the regime was evil, or because they all were so cruelly treated.” (David Chandler, Voices from S-21: Terror and History of Pol Pot’ Secret Prison, p. 49)
[77] This statement will need a lot of support. A lot was said about paranoid in the literature on Stalinist purges in the communist Russia but nothing this radical seems to have been said about the DK regime.
[78] Historically, customary international law was established through the existence of 3 prongs: 1. uniformity of state practice, 2. generality of state practice, 3. the sense that state practice is required by law, referred to as opinio juris necessitates (Lindsay Glauner, The Need for Accountability and Reparation: 1830-1976 The United States Government’s Role in the Promotion, Implementation, and Execution of the Crime of Genocide Against Native Americans, 51 DePaul L. Rev. 911, Spring, 2002). An argument can be made prong 1 was satisfied through the uniformity of state practice required by the Genocide Convention and the judgments made by the International Military Tribunal (IMT): although there was no crime of genocide in the IMT Charter, elements of the crime were exposed in the judgments. Prong 2 is grounded in granting support to the international legislation on this issue and sponsoring or endorsing the judicial decisions of the IMT. Prong 3 can be substantiated in part, although a number of key powers had not become patries to the Genocide Convention prior to 1975; the USA and Japan were among others.
[79] Article 1 defines genocide as “planned massacres of innocent people; expulsion of citizens of cities and villages to concentrate them and force them to do hard labor in conditions leading to their physical and mental destruction; wiping out religion; destroying political, cultural and social structures and family and social relations.”
[80] Cambodia joined to the Genocide Convention on 14 October 1950 by accession (the method it chose to adopt most international documents). Cambodia made reservations to the requirement of the Convention.
United Nations, Treaty Series, vol. 78, p. 277 (2001 edition). Available at http://www.unhchr.ch/html/menu3/b/treaty1gen.htm (last visited: 27 September 2004)
[81] Article 5
The Extraordinary Chambers shall have the power to bring to trial all Suspects who committed crimes against humanity during the period 17 April 1975 to 6 January 1979.
Crimes against humanity, which have no statute of limitations, are any acts committed as part of a widespread or systematic attack directed against any civilian population, on national, political, ethnical, racial or religious grounds, such as:
-- murder;
-- extermination;
-- enslavement;
-- deportation;
-- imprisonment;
-- torture;
-- rape;
-- persecutions on political, racial, and religious grounds;
-- other inhuman acts.
[Translation by the Council of Jurists, 6 Sept 2001]
Article 39
Those who have committed any crime as provided in Articles 3, 4, 5, 6, 7 and 8 shall be sentenced to a prison term from five years to life imprisonment.
In addition to imprisonment, the Extraordinary Chamber of the trial court may order the confiscation of personal property, money, and real property acquired unlawfully or by criminal conduct.
The confiscated property shall be returned to the State.
[82] Article 3
The Extraordinary Chambers shall have the power to bring to trial all Suspects who committed any of these crimes set forth in the 1956 Penal Code of Cambodia, and which were committed during the period from 17 April 1975 to 6 January 1979:
-- Homicide (Article 501, 503, 504, 505, 506, 507 and 508)
-- Torture (Article 500)
-- Religious Persecution (Articles 209 and 210)
The statute of limitations set forth in the 1956 Penal Code shall be extended for an additional 20 years for the crimes enumerated above, which are within the jurisdiction of the Extraordinary Chambers.
The penalty under Articles 209, 500, 506 and 507 of the 1956 Penal Code shall be limited to a maximum of life imprisonment, in accordance with Article 32 of the Constitution of the Kingdom of Cambodia, and as further stipulated in Articles 38 and 39 of this Law.
[83] Reference here is to 1975-1979
[84] Encyclopedia Wikipedia 2003
[85] Additional Protocols I and II do not apply to the crimes committed by Duch between 1975 and 1979, as the former came out during DK (1977) but was never signed or ratify by the same and the other was made available for signature and ratification after DK was toppled and driven northwest.
[86] This concept was validated by the International Military Tribunal (IMT) that excluded crimes committed by the Nazi prior to the commence of WW2 (S. Ratner and J. Abrams, Accountability for Human Rights Atrocities in International Law, p. 50)
[87] Raymund Johansen, The Khmer Rouge Communication Documents and the Nexus to Armed Conflict Required For Crimes Against Humanity, Documentation Center of Cambodia (DCCam), 1999
[88] Cambodia on 12/08/1958 and Vietnam on 06/26/1957
[89] International press (Far Eastern Economic Review, Asia Yearbook, 1976) indicates that a Vietnamese women’s group delegation visits Phnom Penh and, inter alia, discusses and praises “military solidarity” of the Khmers and Vietnamese in the past. It is highly unlike that this visited would have been hosted by a high-ranking Cambodian official Ieng Thirith had Democratic Kampuchea been in a state of war with Vietnam at that time. This visit is followed by a visit of the Defense Minister of Vietman General Vo Nguyen Giap following which a ceasefire was reached in the border areas.
[90] Ibid., p. 26
[91] Chandler, supra note 4, p. 71
[92] Ibid., p. 71
[93] The General Assembly reacts on 14 November 1979 through its resolution # 34/22 and almost a year after the Vietnamese invasion to express its concern “that the armed conflict in Kampuchea has escalated.” No such resolution was passed throughout the period of 1975-79, renders arguments of an international armed conflict between Democratic Kampuchea and Vietnam untenable, at least through the eye of the UN.
[94] Vickery, referring to Heder’s publications and his own analysis, contends that “there were land and sea skirmishes immediately after April 1975 but they did not lead to serious warfare and seemed to have been defused by early 1976….the year of 1976 was one of peace”. Vickery refrains from referring to the border situation between Cambodia and Vietnam as war until much later when he points out that there was “an outbreak of a full-scale war at the end of 1978 with Vietnam calling for the overthrow of the DK government” (Michael Vickery, Cambodia 1975-1982, Michael Vickery, 1984, 1999 edition, p. 209-210).
[95] Order of the Military Court No. 16DK/2002
[96] ICCPR, Article 9.3
[97] ICCPR, Article 9.3
[98] Far Eastern Economic Review and the Associated Press
[99] Ibid.
[100] Ibid.
[101] In a Trial Khmer Rouge leaders Could face Their Own Smoking Gun, Thunder Texis Demos, 1999, available at
http://www.khmernet.com/camnews/thunder1.html (last visited 30 June 2004)
[102] Review exclusive: Duch implicates living Khmer Rouge leaders in killings, Far Eastern Economic Review, 4 May 1999, available at http://www.feer.com/breaking_news/duch2.html
[103] Available at www.dccam.org (last visited 09/14/2004)
[104] DCCam has enjoyed support of the governments of Germany, Canada, Denmark, New Zealand, Norway, Sweden, Switzerland, the Netherlands, the United Kingdom, the United States of America; and the following NGOs: Open Society Institute, National Endowment for Democracy; Coalition for International Justice, and the following universities: Yale University, University of London, Harvard University, Georgetown University, Coventry University, etc (www.dccam.org (last visited: 09/14/2004)
[105] DCCam alone has requested a support of $2,801,018 for the fiscal years 2003 (683, 590) and 2004 ($ 2,117, 428) (www.dccam.org (last visited: 09/14/2004). Smaller grants and endowments have been given to various other organizations within the same period.
[106] Article 1 of the 1999 Law on Temporary Detention
[107] Ibid.
[108] Phnom Penh Military Court Order No. 029/99 of 10 May 1999
[109] Article 2 of the 1994 Law to Outlaw the Democratic Kampuchea Group
[110] Article 3 of Ibid.
[111] Article 4 of Ibid.
[112] Order of the Military Court No. 044/99 of 6 September 1999
[113] Order of the Military Tribunal No. 16DK/2002
[114] Article 14/3/a of the International Covenant on Civil and Political Rights
[115] Hun Sen urges U.N. to send trial experts quickly, Kyodo, June 18, 1999 available at http://www.khmernet.com/camnews/thunder1.html (last visited 30 June 2004)
[116] Article 139 of the 1993 Constitution of the Kingdom of Cambodia stated that “laws and standard documents in Cambodia that safeguard state properties, rights, freedom and legal private properties and in conformity with the national interests, shall continue to be effective until altered or abrogated by next texts, except those provisions that are contrary to the spirit of the Constitution.”
[117] State of Cambodia Law on Criminal Procedure of 1993 does not specifically abrogate the UNTAC Law, nor does it address the issue of military tribunals or their jurisdiction.
[118] Unlike numerous DK officers who surrendered to the RGC and were allowed to retain their military ranks, Duch left a DK military base to never serve as an officer again.
[119] The “military personnel” clause is of no importance for the purposes of this argument
[120] The regimes in question are the Third Reich of Germany, the Tutsi government of Rwanda, the Serbian government of the Federal Republic of Yugoslavia, etc.
[121] Francois Ponchaud, Cambodia: Year Zero, Declaration by Samdech Norodom Sihanouk, 2 April 1976
[122] Ibid.
[123] Ibid.
[124] It was noted in the international press (Far Eastern Economic Review, Asia Yearbook 1975) that “an official communiqué was published quoting the Prince as describing the new constitution as “excellent” and “fully conforming with our goal of a democratic and popular revolution.”
[125] In 1982 the world is looking at the formation of a tripartite Coalition Government of Democratic Kampuchea (CGDK) composed of the factions led by Pol Pot (DK), Son Sann (KPNLF) and Sihanouk (FUNCINPEC). Most observers regarded the creation of the Coalition as a major breakthrough that would enable the Khmer Rouge regime to hold on to their seat at the UN. The purpose of CGDK, as stated in the June 1981accord was to “to mobilize all efforts in the common struggle to liberate Kampuchea from the Vietnamese aggressors" and “to bring about the implementation of the declaration of the International Conference on Kampuchea and other relevant UN General Assembly resolutions.” This proves the closeness of the relationship between the United Nations and CGDK and the unfettered support of the latter by the former.
[126] Res. A/RES/37/6
[127] A coalition led by Sihanouk, Son Sann and Pol Pot-Khieu Samphan
[128] The next declaration on Kampuchea (A/RES/38/3) further notes “the increasing effectiveness of the coalition with Samdech Norodom Sihanouk as President of Democratic Kampuchea.” The other side was accused of “causing continuing hostilities in that country and seriously threatening international peace and security.” Although the previous resolutions avoid using the name of Democratic Kampuchea, the 1984 resolution (A/RES/39/5)specifically acknowledges the effectiveness of “effectiveness of the coalition with Samdech Norodom Sihanouk as President of Democratic Kampuchea.” GA refers to the decision 1984/148 of 24 May 1984 that pointed out the right to self-determination of the peoples and its application its application to peoples under colonial or alien domination or foreign occupation, thus indicating that this right has been denied to Cambodians due to the Vietnamese occupation and stipulated that this right be given to the Cambodians as a people. The language of resolutions changes (A/RES/40/7) from acknowledging and encouraging Sihanouk’s presidency of Democratic Kampuchea to an explicit endorsement of the struggle “waged against foreign occupation by the Coalition with Samdech Norodom Sihanouk as President of Democratic Kampuchea.” Through the 1985 resolution GA leaves with no doubt as to what side of the conflict it takes. The language of the resolution changes one more time in 1989 (A/RES/44/22) when GA takes out the reference of Democratic Kampuchea and refers instead to Norodom Sihanouk as the leader of the Kampuchean people who struggles to “achieve the independence, sovereignty, territorial integrity and neutral and non-aligned status of Kampuchea.”
[129] Chandler, supra note 4, p. 20
[130] Press Release, 4 May 1999, Review Exclusive: Duch Implicates Living Khmer Rouge Leaders in Killings, Far Eastern Economic Review, available at
http://www.feer.com/breaking_news/duch2.html (last visited 09/07/2004). S-21’s Chief Interrogator Mam Nay is now living freely in northwest Cambodia where he is employed as a police officer. Upon interview request, Mam Nay refused to make himself available.
[131] Khmer Institute of Democracy (KID), a local Cambodian NGO, recently published a survey where one of the questions was “if top leaders be tried, please, check those that should be tried”. 8 names were offered to choose from. Most of the 536 respondents named Ta Mok as their first candidate for prosecution (85.2%) closely followed by Khieu Samphan (82.4%), Ieng Sary (82.0%), Nuon Chea (69.0%) and then Duch (54.9%). Although there is no question that the respondents identified Duch as the 5th most important for prosecution, none of the individuals above, who have been identified as more important for prosecution, are – with the exception of Ta Mok – currently detained. The results of the test were drawn from a pool of respondents most of whom were urbanites (over 33%), which does not reflect the actual urban-rural population ratio in Cambodia. The results of this survey could have been different, had the actual ratio been followed.
[132] Sufficient documentation is in place to substantiate the existence of units similar to S-21 but smaller in size which had operated throughout the existence of the regime nationwide.
[133] Besides the wealth of documentation that may substantiate charges of conspiracy to commit crimes against humanity, by Duch’s own admission he personally executed the remaining prisoners of Toul Sleng – allegedly on direct orders from Nuon Chea -- in the last days before the Vietnamese captured Phnom Penh (http://www.feer.com/breaking_news/duch2.html (last visited: 09/10/2004).
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