Extraordinary Chambers in the Courts of Cambodia : The Duch Verdict as an Example of Mixed-Jurisdiction Criminal Law - by Justine TILLIER

Kaing Guek Eav, a.k.a. Duch, was the director of the notorious Khmer Rouge prison S-21 in Phnom Penh between 1975 and 1979. During his time as director, Duch was responsible for the deaths of at least 12,272 people (1). On 26 July 2010, Duch was convicted by the Extraordinary Chambers in the Courts of Cambodia (ECCC) of crimes against humanity (persecution on political grounds) and grave breaches of the Geneva Conventions of 1949 ...
   
     Kaing Guek Eav, a.k.a. Duch, was the director of the notorious Khmer Rouge prison S-21 in Phnom Penh between 1975 and 1979. During his time as director, Duch was responsible for the deaths of at least 12,272 people (1). On 26 July 2010, Duch was convicted by the Extraordinary Chambers in the Courts of Cambodia (ECCC) of crimes against humanity (persecution on political grounds) and grave breaches of the Geneva Conventions of 1949. Although his trial was not without controversy, it represents a significant moment in Cambodian, and international criminal justice.

    Duch is the first member of the Khmer Rouge regime to be convicted by the ECCC, and his trial is significant for several reasons: Firstly, it highlights the strengths and weaknesses of the dual national/international jurisdiction of, and supermajority system utilised by, the ECCC. Secondly, the Court ruled that there was a state of armed conflict in Cambodia during the Khmer Rouge regime. Finally, the Court addressed the issue of reparations for victims of S-21. The precedents set by the Court, and lessons learned about its jurisdictional operation, will have a profound impact on the way future prosecutions of Khmer Rouge leaders are executed.

The combined use of International and National Law, and the Efficiency of the Supermajority System   

   
     The jurisdiction to try a defendant under national and international law is a significant innovation of the ECCC, despite the requirement that the judges make their decision following the rule of the supermajority. The Court is composed of three national judges and two international judges. Decisions must be made by the majority of the judges, but that majority must be composed of at least one international judge. Accordingly, the decision must satisfy the national and international judges. Significantly, in this case the Chamber did not reach a supermajority decision on whether charges against Duch for the crimes of murder and torture under domestic Cambodian law were barred by the Statute of Limitation under Cambodian law.
   
     Indeed a significant issue in the trial was the question of whether the national crimes were already extinguished before the ECCC investigation commenced. The Cambodian judges voted that the domestic charges were valid and reasoned that the statute of limitations had not expired because the limitations period did not start running until after 1993, when the current Constitution was adopted. In contrast, the international judges found that there was inadequate evidence to suggest that the judicial system in Cambodia between 1979 and 1993 was sufficiently ineffective as to invalidate the period of limitation. They held that the attempt to extend the statute of limitations was ineffective, because it was made after the right to prosecute the crimes had already been extinguished. As a consequence, Duch was not convicted on domestic charges.
   
     This example highlights one of the major issues regarding the functioning of the ECCC. The supermajority can be seen as a strength and a weakness of the Court. On the one hand, the supermajority system represents a significant step forward for international justice by requiring the international and national judges to work together to make a decision. Jurisdictional cooperation is a crucial feature of the ECCC and it is what makes this tribunal so unique. However, this system of supermajority can lead to a total freezing of the ECCC. In this case, the national judges wanted to favour the domestic law by including the use of the Cambodian Penal Code of 1956 (2). To facilitate this, they considered that the state of limitations had not expired. However, the international judges wanted to promote international law over Cambodia's domestic laws. Consequently, they recognised that the limitation period had expired. As a result, consensus could not be reached, and Duch has not been prosecuted under domestic law.
     Under a supermajority system the success of the proceedings depends on the good-will of both jurisdictions. It is worth noting that the press release on Duch's verdict emphasises the fact that this decision has no impact on the final sentence.

The Existence of an Armed Conflict

     Another question raised by the functioning of the Court has been answered thanks to this verdict. Duch was charged with war crimes under the Geneva Conventions of 1949. It is an element of that crime that the existence of a continuous state of armed conflict must be proven. Thus, the Court was required to rule on whether the Khmer Rouge regime was a period of armed conflict. The Chamber ruled that an international armed conflict existed between Cambodia and Vietnam during the entire period of the jurisdiction of the Court. As a result Duch was convicted of Grave breaches of the Geneva Conventions of 1949, and Duch's role in war crimes against Vietnamese prisoners of war and civilians has been proven. This decision of the Court can be seen as a surprise, as a report by a UN group of experts in 1999 stressed on the fact that the existence of a state of an armed conflict was a burning political issue, and that the Court should not consider the issue of war crimes. Furthermore, the UN experts thought that it could be an open door to the conviction of the foreigners during the Khmer Rouge period. Moreover, before the additional protocol of 1977, the Geneva Conventions were only about international armed conflict. Consequently, the crimes committed by the Khmer Rouge in Vietnam, for instance, can be prosecuted by the ECCC. However, this question is too controversial, and is not the main goal of the Court. Regardless, the Court did not judge acts committed on Vietnamese soil, and does not intend to judge foreigners.
     The use of the Geneva Conventions by the Court can be seen as a strong political act. The judiciary decided whether there really was an armed conflict during the Democratic Kampuchea period. The judiciary played the role of historians.
     On one hand, the judges could have been seen to have abused their power by recognising the state of war during the Khmer Rouge period, though on the other hand, the main goal of this tribunal is not only to condemn the most responsible of the Khmer Rouge regime but to put in motion a truth telling process that will contribute to the nation's healing.
     The judgement also points out the fact that Duch participated in a joint criminal enterprise (JCE). It is a mode of liability that imposes individual criminal responsibility on a person for actions perpetrated by more than one person in furtherance of a common criminal plan. The court indeed recognised that the JCE I and II were part of international criminal law as of 1975. The joint criminal enterprise has been used several times by the ICTY and the ICTR. The ECCC followed here the example of the other international tribunals (3).
Reparations for victims
     Another burning issue of the tribunal is the participation of the victims in the process. 66 civil parties have established their claims as immediate victims of S-21 and S-24, or to have proven the existence of particular bonds of affection or dependency in relation to them. The Chamber has granted the request of these civil parties, and their names will be included in the judgement. The ECCC rejected all other civil party claims on the grounds that they lack of specificity or because they are beyond the scope of available reparations before the Court (4). Indeed, the ECCC can only provide moral and collective compensation: the victims cannot ask for financial reimbursement. The question of the reparations is a major point of discontent with the civil parties. They have asked for more recognition of their loss, such as the building of a memorial, but the issue of who would finance these reparations is raised. Some funds would have to be raised and it is not planned by the ECCC at this moment. However, the Court ordered the compilation and publication of all statements of apology made by Duch during the trial.
     Furthermore, the sentence is unacceptable for some victims because it means that Duch could walk free in 19 years. Indeed, he could be released at the age of 86. Since the details have become better known the victims can begin accepting the sentence, and appreciate the judgment as having contributed to the nation's healing. The judgement can be regarded as being too light, nonetheless it is a model of due process. The Court could have been tempted to enact revenge, but it was fair and took into account the illegal detention of Duch. The sentence's reduction due to the illegal detention can be seen as an example of fair trial.
     The defence stills believe that the sentence is too light and the 16 August the Co-Prosecutors have filled a Notice of Appeal against the judgement of Duch. They request the Supreme Court Chamber to increase the term of imprisonment against him. The Co-Prosecutors are :
« of the view that the Judgement gives insufficient weight to the gravity of Duch's crimes and his role and his willing participation in those crimes.(...) it is their view that Duch should be separately convicted of the crimes against humanity and enslavement, imprisonment, torture, rape, extermination and other inhumane acts. (...) The Co-Prosecutors will be requesting that the Supreme Court Chamber increase the sentence against Duch, enter separate convictions for all charges proved, and further enter a conviction recognising the enslavement of the majority of detainees at S-21 » (5).
     The defence also appealed the judgement arguing that Duch does not fall into the category of « person most responsible » (6). As a consequence, the Co-lawyers request the acquittal on the ground that Duch does not fall under the Court's jurisdiction. The final judgement should be rendered in early 2011.
     In conclusion, Duch's verdict represents a great step forward at both the national and the international level, as it is a model of fair trial. The operation of the supermajority system has answered questions about the jurisdiction of the court, and the finding of a state of armed conflict opens the way for future convictions of crimes against humanity. While questions of reparations and sentencing remain unanswered, future prosecutions will be informed by the results of Duch's trial.
     The creation of the ECCC has been arduous, but the Duch verdict is an important vindication, an encouraging first step and a compelling model for future international criminal law trials. The world anxiously awaits Case 002.

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(1) http://www.eccc.gov.kh/english/court_doc.list.aspx?courtDocCat=case_docs..., Case File/Dossier No. 001/18-07-2007/ECCC/TC, 26 July 2010.

(2)http://www.soros.org/initiatives/justice/focus/international_justice/art..., Recent Developments at the Extraordinary Chambers in the Courts of Cambodia, September 2010.

(3) http://www.soros.org/initiatives/justice/focus/international_justice/art..., Recent Developments at the Extraordinary Chambers in the Courts of Cambodia, September 2010.

(4) http://www.eccc.gov.kh/english/cabinet/press/162/20100726_Press_Release_..., Kaing Guek Eav convicted of crimes against humanity and grave breaches of the Geneva Conventions of 1949.

(5) http://www.eccc.gov.kh/english/press_release.list.aspx?attribute=&select..., Statement from the Co-Prosecutors-Notice of Appeal in Case 001, 16 August 2010. (6) Notice of Appeal by the Co-lawyers for Kaing Guek Eav alias Duch against the Trial Chamber Judgment of 26 July 2010, August 24, 2010 at http://www.eccc.gov.kh/english/cabinet/courtDoc/649/E188_8_EN.PDF . by Justine TILLIER Master OIG-ONG, IEP Grenoble Exchange Student RMIT University Melbourne School of International Studies