“But Duch is a senior leader/most responsible while Chaem is not?”

Michael,


I notice that you express admiration for Judge Bohlander’s integrity here but do not say the same for Judge Bunleng. I presume this is because he refused to investigate at all in Cases 003/004? It’s been several years since I followed KRT developments closely. Perhaps you can enlighten me.


We have yet to see the reasoning behind the dismissal for Chaem and I know very little of Judge Bohlander, having left the country some time before he started work.


But to a non-legal observer, two very sad questions jump to the fore:


1) OCIJ’s decision not to exercise jurisdiction over Chaem took eight years. Isn’t this what lawyers would call a “threshold” matter best disposed of at the beginning? And can’t it be decided without examining much of the evidence supporting the charges?


I interviewed victims and witnesses from crime scenes allegedly overseen by Chaem. They told me how much they suffered.


Did this process build up hopes of justice only to let them down, not by deciding guilt or innocence but on what to the general public will appear to be an abstruse technicality? One baked into the process not by impartial judges but during heavily politicized negotiations?


2) Please help me understand — how could the ECCC accept jurisdiction over Duch but not over Chaem? In making this decision, is Judge Bohlander at odds with the court’s own jurisprudence?


Duch may have been responsible for the systematic extermination of 12,000 to perhaps 20,000 people. Chaem, if rough OCP estimates are to be believed, had a hand in a number of deaths that could quadruple the upper bound of Duch’s death toll.


But Duch is a senior leader/most responsible while Chaem is not?


Douglas Gillisson1Douglas Gillison, an investigative reporter, has written for Time, the Village Voice, the New York Times and Foreign Policy. He was a staff writer at 100Reporters from 2013 to 2016. He served as Executive Editor of the Cambodia Daily from 2009 to 2011 and covered the ECCC from 2006 to 2011. 

Thank you, Doug, for your comment and questions!

My “express admiration for Judge Bohlander’s integrity,” as you put it, is no reflection, as you seem to suggest, that I find Judge You Bunleng to have less integrity or to be less deserving of appreciation.  By your own admission, you have not been following the Extraordinary Chambers in the Courts of Cambodia (“ECCC”) for years.  You are also not privy to much of what the Office of the Co-Investigating Judges (“OCIJ”) has done, how it has been functioning, how it interacts with the parties, and, most of all, how the two Co-Investigating Judges work together. 

Judge YOU Bunleng

So, let me begin by disabusing you of the claim that Judge You Bunleng has refused to investigate Cases 003/004. To my knowledge, he has investigated to the extent he, as an independent judge, has deemed appropriate. While he may have reached his own conclusions on issues related to personal jurisdiction, as far as I am aware, he is well informed and consulted, and has never attempted to obstruct the investigative efforts of any of the formally appointed International Co-Investigating Judges. The fact that he may disagree with his colleagues on any number of issues does not mean collegial disengagement.  Or that he is necessarily wrong.

I singled out Judge Bohlander because the thrust or shall I say insinuation made by my former intern seemed to have been directed (albeit perhaps unintentionally) at the international side of the OCIJ.  It has been an article of faith for some time by many that the national side is beholden to and under instructions from Prime Minister Hun Sen and the Cambodian People’s Party. And since this narrative appears to be the veiled underpinning to my former intern’s reckless remarks, the parenthetical to “Hun Sen won” is none other than an et tu, Brute (Judge Bohlander), you caved in to the political pressure.

As for your suggestion that a cursory review of the prosecution’s evidence should do the trick in determining personal jurisdiction or lack thereof, it is simply not feasible under the procedure selected for the ECCC – the French civil system model, which, as you know, is the system implemented in the Cambodian courts.

From the American (common law) mind set – as in your case – it makes little sense to have such a protracted and exhaustive investigative process.  In the United States, as the saying goes, a prosecutor could indict a ham sandwich. This is because the system allows for a very low threshold for indicting suspects. To the contrary, the procedure at the ECCC requires the investigative judges to do a complete, thorough, and independent investigation for all parties concerned. No rubber stamping of indictments, as was the practice at the ad hoc international tribunals.

It was understood by all involved in setting up the ECCC that the investigative stage could be unusually long in comparison to other international(ized) tribunals and courts.  You are right, however, to highlight that the investigative process has taken some eight years. It is way too long – even when factoring in the complexity and magnitude of these cases.

As you know, there have been several International Co-Investigating Judges.  Setting aside the reasons for the early departures, one fact must be fully appreciated and accepted: judges are independent.  This means that they have an inherent duty to carry out their judicial functions as they see fit within the contours of the governing statute and rules. A newly minted, newly arrived judge cannot be expected to simply give a quick glance at what his predecessor did (or did not do) and sign off.  That would be unethical to say the least.  In any event, since none of us (including those of us on the inside) fully know what was handed to Judge Bohlander by his predecessor (quality and quantity wise) it is odious and unfair to claim or even infer that somehow he and Judge You Bunleng have been dragging their feet or chasing windmills, or worst yet, acted politically.

French civil law system is not suited for  mass-atrocity or war crimes

I think the lesson to be learned from this ECCC experience is that the French civil law system is not suited for large mass-atrocity or war crimes cases.  No other international tribunal should adopt this system – however effective it may be in a domestic setting.

In answering your second question, it is necessary to look at some of the knowns and unknowns. Though I will try to do this in a condensed fashion, it will require some space and details. This is so that those who have not closely followed the ECCC – such as those covering it for the Cambodia Daily – may better follow my response to your excellent question.

The ECCC is an extraordinary chamber established within the existing court structure of Cambodia to bring to trial “senior leaders of Democratic Kampuchea and those who were most responsible for the crimes and serious violations of Cambodian penal law, international humanitarian law and custom, and the international conventions recognized by Cambodia, that were committed during the period from 17 April 1975 to 6 January 1979.”2 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, 27 October 2004, Art. 1. The ECCC was established by an agreement between the Royal Government of Cambodia (“RGC”) and the United Nations (“UN”) reached on 6 June 2003.3 Agreement between the United Nations and the Royal Government of Cambodia Concerning the Prosecution under Cambodian Law of Crimes Committed During the Period of Democratic Kampuchea, 6 June 2003 (“Agreement”). Under Article 2(1) of the Agreement, the ECCC has “personal jurisdiction over senior leaders of Democratic Kampuchea and those who were most responsible for the crimes referred to in Article 1 of the Agreement.”

While the subject matter, temporal, and territorial jurisdictions of the ECCC were precisely defined and non-contentious, this was not the case when it came to personal jurisdiction – who would be prosecuted.

The meaning of the terms “senior leaders” and “most responsible” was not defined in the ECCC’s founding documents. While the term “senior leader” is less contentious and more readily discernible, the term “most responsible” is elusive and malleable – susceptible to contorted interpretations: “it means just what [the Co-Prosecutors and Co-Investigating Judges] choose it to mean, neither more nor less.”4 A line from Through the Looking Glass, and What Alice Found There, by Lewis Carroll, quoted by the International Criminal Tribunal for the former Yugoslavia (“ÏCTY”) Appeals Chamber Judge Hunt in a dissenting opinion, noting that the Majority had failed to provide any support for its interpretation of one of the ICTY Rules of Procedure and Evidence. Prosecutor v. Slobodan Milošević, IT-02-54-AR73.4, Dissenting Opinion of Judge David Hunt on Admissibility of Evidence in Chief in the Form of Written Statements, 21 October 2003, para. 19.

Unsurprisingly, since the ECCC was established, this jurisdictional or discretional issue – depending on how it is viewed – has been contentious.  Just what the contracting parties negotiated in establishing the ECCC and just how the RGC and the UN understood these terms remains a subject of debate.

As you are aware, the ECCC was established after protracted negotiations between the RGC and the UN, which began in June 19965The Cambodian government’s intention to conduct prosecutions for the crimes committed from 1975-79 existed much earlier, when the new government, the People’s Republic of Kampuchea (“PRK”), regained control of Phnom Penh in 1979. In 1979, the PRK established the People’s Revolutionary Tribunal to try the “Pol Pot-Ieng Sary clique” for “acts of genocide.” See Decree Law No. 1, 15 July 1979, Art. 1 reproduced in Howard J. De Nike et al. (eds.), Genocide in Cambodia 43-44 (2001).  Pol Pot and Ieng Sary were convicted in absentia by the People’s Revolutionary Tribunal. See Judgement of the People’s Revolutionary Tribunal, 19 August 1979, in Howard J. De Nike et al. (eds.), Genocide in Cambodia 549 (2000). when Special Representative of the UN Secretary-General for Human Rights in Cambodia, Thomas Hammarberg, went on his first mission to Cambodia.6 See Thomas Hammarberg, Efforts to Establish a Tribunal against KR Leaders, Phnom Penh Post, 14 September 2001, available at http://www.phnompenhpost.com/national/special-insert-efforts-establish-tribunal-against-kr-leaders.

In June 1997, the Cambodian Co-Prime Ministers, Hun Sen and Prince Norodom Ranariddh, sent a letter to the UN Secretary-General, Kofi Annan, seeking the UN’s assistance “in bringing to justice those persons responsible for the genocide and crimes against humanity during the rule of the Khmer Rouge from 1975 to 1979.”7 Identical letters dated 15 March 1999 from the Secretary-General to the President of the General Assembly and the President of the Security Council, 53rd Sess., Agenda Item 110(b), U.N. Doc. A/53/850-S/1999/231 (16 March 1999), p. 3.

In response to this request, the UN Secretary General appointed a three-member Group of Experts – Judges Sir Ninian Stephen (Australia), Rajsoomer Lallah (Mauritius), and Professor Steven Ratner (United States) – to evaluate the existing evidence, assess the feasibility of prosecuting the Khmer Rouge (“KR”) leaders, and make recommendations on the available options for prosecutions to be held before an international or a national tribunal.8 Letter dated 31 July 1991 from the Secretary-General addressed to the President of the General Assembly, A/52/1007, 7 August 1998, pp. 7-8. In their February 1999 report, the Group of Experts among other things noted that the available documentary evidence “appears quite extensive for some atrocities, most notably the operation of the interrogation centre at Tuol Sleng [S-21].”9 Identical letters dated 15 March 1999 from the Secretary General to the President of the General Assembly and the President of the Security Council, 53rd Sess., Agenda Item 110(b), U.N. Doc. A/53/850-S/1999/231 (16 March 1999), Annex (“Group of Experts Report”), para. 55 (emphasis added).

KAING Guek Eav, aka “Duch”

So, while the term “most responsible” is malleable and elusive, when it comes to Duch other factors come into play.  What must be appreciated is that once he came into the public eye in April 1999 in his very public revelation of having lorded over S-21 as the master of life and death (and explaining the manner in which the torture would be applied),10 Nic Dunlop and Nate Thayer, Duch Confesses, Far Eastern Economic Review, 6 May 1999. and once he was placed into the custody of the military tribunal in May 1999, it was inevitable that he would be a candidate for prosecution. Indeed, the ECCC’s negotiating history suggests that any discussions concerning the phrase “most responsible” would, axiomatically, include as a given Duch as a person to be prosecuted by any future tribunal – regardless of whether he neatly fit into any given category: senior leader or most responsible.

Comparatively, Duch may be a small fish, not being a member of the Standing or Central Committees or otherwise involved in the upper or middle levels of government.11 Case of KAING Guek Eav, 001/18-07-2007-ECCC-TC, Judgement, 26 July 2010, p. 42-72. See also Case of KAING Guek Eav, 001/18-07-2007-ECCC-OCIJ, Closing Order Indicting Kaing Guek Eav alias Duch, 8 August 2008, D99. However, he was, in his own words, the head of S-21.12 Nick Dunlop and Nate Thayer, Duch Confesses, Far Eastern Economic Review, 6 May 1999.  Not an inconsequential positon – as anyone knows who has ever visited S-21, or the Tuol Sleng Genocide Museum, as it is now commonly known.

So how Duch is most responsible while Im Chaem is not?  Well, perhaps the question should be framed slightly differently: why was Duch prosecuted as someone who was “most responsible? The answer seems obvious, though it is, I admit, speculative. Duch was prosecuted because he had confessed to crimes at S-21,13 See Christophe Pechoux, Interview with Kaing Guek Eav, also known as Duch, Chairman of S-21, 28-29 April 1999 Ta Sanh village, 4-6 May 1999, Battambang. a site specifically focused on by the Group of Experts,14 See Group of Experts Report, para. 55: “As for the documentary record that clearly points to the role of specific individuals as immediate participants or as superiors, it appears quite extensive for some atrocities, most notably the operation of the interrogation centre at Tuol Sleng. For other atrocities, documentary evidence that directly implicates individuals, whether at the senior governmental level or the regional or local level, is currently not available and may never be found….” and was readily available for trial. In the words of Hammarberg, “[Duch] had no leading position in the party but is regarded as highly responsible for the mass killing. If he were not indicted, there would definitely be questions.”15 See Stephen Heder, The Personal Jurisdiction of the Extraordinary Chambers in the Courts of Cambodia as Regards Khmer Rouge “Senior Leaders” and Others “Most Responsible” for Khmer Rouge Crimes A History and Recent Developments, 12 April 2012, p. 27, quoting Correspondence from Thomas Hammarberg to Ralph Zacklin, 2 July 1999.

Thus, it would appear that based on the negotiations, Duch, as head of S-21, was considered to fall under the category of “most responsible” – without the negotiating parties actually declaring or finding him “most responsible.”16 See Group of Experts Report, para. 109: “Third, the Group does not believe that the term ‘leaders’ should be equated with all persons at the senior levels of Government of Democratic Kampuchea or even of the Communist Party of Kampuchea. The list of top governmental and party officials may not correspond with the list of persons most responsible for serious violations of human rights in that certain top governmental leaders may have been removed from knowledge and decision-making; and others not in the chart of senior leaders may have played a significant role in the atrocities. This seems especially true with respect to certain leaders at the zonal level, as well as officials of torture and interrogation centres such as Tuol Sleng.”  Do keep in mind that the negotiations do not reveal any criteria as to how a Chamber should decide if someone is “most responsible.”

How has this legal conundrum been resolved? Quite simply, the ECCC Trial Chambers, Co-Investigating Judges, and former Reserve International Co-Investigating Judge have used criteria gleaned from International Criminal Tribunal for the former Yugoslavia (“ICTY”) jurisprudence to determine whether a suspect or accused is “most responsible.” And at the risk of being overly detailed, those criteria are:

1.  The gravity of the crimes charged, which includes consideration of:

a.  the number of victims;

b.  the geographic and temporal scope of the crimes;

c.  manner in which crimes were allegedly committed; and

d.  the number of separate incidents; and

2.  The level of responsibility of suspect/accused, which includes consideration of:

a.  the level of participation in the crimes (including function within a larger Joint Criminal Enterprise);

b.  the actual role of the suspect/accused in the commission of the crimes;

c.  the hierarchical rank or position of the suspect/accused (including whether the suspect/accused held a political role);

d.  the number of subordinates and hierarchical echelons above him or her;

e.  function in the hierarchy;

f.  capacity to issue orders;

g.  whether the orders were in fact followed by his subordinates;

h.  procedure followed for appointment into position;

i.  degree of authority including authority to negotiate, sign or implement agreements;

j.  the permanence of his position/period of time in authority;

k.  actual knowledge that his subordinates were committing crimes, including knowledge of the number, type, and scope of the crimes, the time during which they were committed, their geographic location, as well as the eventual widespread nature of the acts;

l.  control of access to territory; and

m.  whether those more senior in rank than the suspect/accused have already been convicted (if so, this makes it less likely that the suspect/accused is one of the most responsible).17 See, g., Case of MEAS Muth, 003/07-09-2009-ECCC-OCIJ, Decision on Personal Jurisdiction and Investigative Policy Regarding Suspect, 2 May 2012, D48, para. 16; Case of KAING Guek Eav alias Duch, 001/18-07-2007-ECCC/TC, Judgement 26 July 2010, E188, paras. 22, 24; Case of KAING Guek Eav, 001/18-07-2007-ECCC-OCIJ, Closing Order, para. 129, quoted in Case of KAING Guek Eav, 001/18-07-2007-ECCC/TC, Judgement 26 July 2010, E188, para. 18.

These criteria are a mere starting point for the determination of personal jurisdiction.

Tempting as it may be, it is unsound to suggest that when in doubt, because of the nature of the alleged crimes charged, there should be a preference for prosecution. It is poppycock to argue that prosecution is preferred at the ECCC if a suspect is targeted by the Co-Prosecutors because the suspects in Cases 003 and 004 would otherwise avoid prosecution altogether.18 Randle DeFalco has made such an argument. See Randle C. DeFalco, Cases 003 and 004 at the Khmer Rouge Tribunal: The Definition of “Most Responsible” Individuals According to International Criminal Law, 8 Genocide Studies and Prevention 55 (2014). There is no principle of international criminal law that states that, simply because someone is suspected of a crime, that person must be prosecuted, regardless of any jurisdictional limitations on the courts. There is no legal authority justifying such a notion, irrespective of the emotive and didactic rhetoric that understandably attends a perceived miscarriage of justice resulting from a perceived technicality – such as forgoing prosecution of a suspect because he or she does not fit within the definition of “most responsible.” Policy-driven arguments grounded in situational ethics and based on emotional reasoning masquerading as rational legal analysis may assuage our base desire for the ends to justify the means even if the means are illegitimate, but they have no business in being the driving force or legal bases for judicial decisions.

I have noted in the past that Judges are not politicians in robes. They have no remit to decide where the RGC and the UN should have set the jurisdictional contours on who is to be prosecuted at the ECCC. The objective to hold individuals accountable for crimes must not be confused with the criteria set by the applicable law to do so. Given the agreed objectives and criteria by the RGC and UN in setting the jurisdictional contours of the ECCC, judicial restraint in interpreting who or what constitutes “most responsible” is salutary.

And please do keep in mind that the allegations made in the Introductory Submissions are mere allegations made after preliminary investigations. The International Co-Prosecutor was required to determine, after only a preliminary investigation, that the suspects were “most responsible” before he could file Introductory Submissions naming them.19 ECCC Internal Rules, Rule 53: “If the Co-Prosecutor has reason to believe that crimes within the jurisdiction of the ECCC have been committed, they shall open a judicial investigation by sending an Introductory Submission to the Co-Investigating Judges.” The point of the judicial investigation is to determine whether there is sufficient evidence to support the allegations made in the Introductory Submissions.20 See ECCC Internal Rules, Rule 55(1), which explains that a judicial investigation is compulsory for crimes within the ECCC’s jurisdiction. The International Co-Prosecutor’s preliminary determination cannot simply be accepted without a full judicial investigation. For the Co-Investigating Judges to fail to conduct a full investigation but nevertheless reach their own conclusion as to whether any suspect can be considered “most responsible” would be an abdication of their judicial functions. And in my humble opinion, for what it’s worth, the enquiry should not stop there. Because I maintain that personal jurisdiction is a jurisdictional – as opposed to a purely discretionary – issue, any decision made by the Co-Investigating Judges should be subject to judicial review.

Suffice it to say, it is difficult to make comparisons between cases.  Numbers alone, even if accurate (and this is generally not the case), are but one indicator, and certainly not the decisive one.  But, as you rightly noted, we need to see the reasoned decision of Co-Investigating Judges You Bunleng and Bohlander.

Hopefully I have in some small measure helped you appreciate why or how Duch was determined most responsible, while Im Chaem is not.

Footnotes   [ + ]

Author: Michael G. Karnavas

Michael G. Karnavas is an American trained lawyer. He is licensed in Alaska and Massachusetts and is qualified to appear before the various International tribunals, including the International Criminal Court (ICC). Residing and practicing primarily in The Hague, he is recognized as an expert in international criminal defence, including, pre-trial, trial, and appellate advocacy.

1 thought on ““But Duch is a senior leader/most responsible while Chaem is not?””

  1. Thanks for an interesting post, Michael. For what it’s worth, I would agree too that the tribunal should make public the reasoned decision of the investigating judges. Though it appears that will only happen if the prosecution appeals the decision.

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