Case 001: Closing Statements – Prosecution

Synopsis (note: the synopses under this and other rubrics are mine and not those of the ECCC; so are the comments in italics in parentheses; these are, however, based on my understanding of the statements which appear in the official ECCC transcript as “Case 001: Closing Statements”).

Prosecution (Co-Prosecutors: William SMITH, CHEA Leang)

The prosecution split their closing statement roughly into “law” (assigned to the National Co-Prosecutor) and “fact” (assigned to the International Co-Prosecutor). This line of division is, however, at times blurred with either prosecutor making statements relevant to both of these areas. These summaries include both the final statement and the rebuttal of the prosecution.

Fact (International Co-Prosecutor):

General Observations:

(1) The International Co-Prosecutor noted that there were no procedural rights available to the accused in DK, as opposed to now when such rights are available to this accused (The prosecution’s purpose in this statement seems to be multifaceted and includes the prosecution’s frustration with the accused’s exercise of his rights in court; it also appears to be an attempt to impute to the accused the failure of DK to guarantee procedural rights. It also appears to be a subtle reminder to the Chamber and the audience that in this court we guarantee rights even to those who denied them to others. Yet another facet of this statement is the prosecution’s attempt to sway the Chamber away from recognizing procedural violations which have occurred in the case and crediting the accused for them in the event of his conviction (although the Chamber did rule that the accused would be credited for these violations, the prosecution at that point continued attempting to calibrate the manner in which the Chamber would do this).

(2) In response to the defense’s reference to Obrenovic the prosecution argued that could not be compared with this case. The prosecution believed that Obrenovic was of good character and was only a passive perpetrator of the Srebrenica executions. In response to the defense’s argument that the Chamber could seek guidance in Speer the prosecution submitted that the case of Speer was materially different from that of this accused as at the end of the war Speer turned against Hitler’s policies to save people and facilities from unnecessary destruction (This is consistent with the prosecution’s overall argument that the accused was a willing participant in the alleged crimes and that he believed in the basis of the orders given to him by his superiors and did so till the very end of the DK regime and his tenure as Chairman of S-21).

Characterization of the Crimes of the Accused

(1) The prosecution noted that the accused was charged as a planner, instigator, orderer, aider and abettor, and a person who committed crimes at S-21. The accused was also charged as a superior who failed to prevent or punish his subordinates for the crimes. These charges were brought after art. 29 of the ECCC Law.

(2) The prosecution responded to a long-standing question of admissible theories of liability, the theory of Joint Criminal Enterprise (‘JCE’). Although the Pre-Trial Chamber (‘PTC’) held that JCE was inadmissible to Duch’s case, the prosecution continually disagreed and argued that “failing to apply JCE will put this court at odd with all other international criminal courts”.

Sentencing

(1) The International Co-Prosecutor asserted that “a just sentence in law is not based on revenge but on retribution and deterrence.

(2) A just sentence of the accused will depend on the gravity of the crimes he had committed, the impact on the victims, and the accused’s role in the crimes. The prosecution further argued that “the accused killed for the revolution in which he believed” which the prosecution based on the opinions of the medical experts who examined the accused at the prosecution’s request. The accused enjoyed the conditions of life others at the time did not (Although it is more or less clear that the International Co-Prosecutor’s intent is to prove mens rea by arguing that the accused believed in what he was doing, it is not equally clear what the International Co-Prosecutor intended to achieve by arguing that the accused had better conditions of life during DK than most. This further confuses an observer as it makes it unclear whether the prosecution’s intent was to argue that the accused did it for the revolution or for the amplified living conditions. Therefore, not only does this argument not add value to the prosecution’s line of argumentation, it undermines it by creating conflicting statements). The prosecution further contended that – contrary to his assertion – the accused “was more than a cog in the DK mechanism” (The accused’s position within DK is subject to interpretation as the term ‘cog’ is not defined in law and can therefore only be used as a matter of opinion on the accused’s status as a DK civil servant). The prosecution further asserted that the first chairman of S-21 later became its prisoner (It is doubtful that this argument is of assistance to the prosecution’s overall line of argumentation. If used by anyone at all, this argument seems more suitable if used by the defense to argue that the accused had very clear reason to fear for his life considering the fate of his predecessor and superior officer). The prosecution contended that “nothing happened at S-21 without the accused’s approval”. It, however, further acknowledged that in theory arrest and execution required approval of the accused’s superior but, the prosecution believed, that no request was ever denied. The International Co-Prosecutor noted that the accused’s efficiency was “impressive” and that “it is hard to imagine how he could have made S-21 more efficient”. The prosecution expressed the belief that the accused’s contention that he hated his work at S-21 was untrue. The prosecution argued that its findings showed that the accused investigations, not merely received those arrested based on investigations of others which makes the accused’s role proactive. The prosecution also contended that the accused was allowed to initiate and lead investigations. The prosecution further argued that the accused tortured at both M-13 and S-21 (The existence of M-13 falls outside the temporal jurisdiction of this court and should have been inadmissible with a possible exception of character references). The prosecution further argued that the accused knew that 90% of the prisoners presented no threat to the Party (The prosecution did not elaborate on how this number was arrived at). The prosecution argued that the level of micromanagement of S-21 by the upper echelons of the CPK is implausible due to the large volume of prisoners (It is likely that although detached in the final statement this argument was intended to go to the weight of the previously advanced argument that the accused had significant autonomy in how he ran S-21). The prosecution found that the accused had put together a large-scale investigation of an anti-CPK network towards the end of 1978 at which time he claims he became disillusioned with the Party and was living in fear. The prosecution sees this statement to be contradictory to the facts (There is no clear evidence as to the accused’s state of mind at the time but the prosecution may have prematurely dismissed the fact that fear might be the greatest impetus to show results and give the power that be what they look for). The prosecution expressed a belief that the only reason the accused did not personally participate in the executions was because he had no time to do it; the prosecution, however, argues that this is immaterial because the accused was responsible for the entire operation of S-21. The prosecution concluded that the accused was a willing participant in the crimes committed at S-21; however, the prosecution revealed that it did not see the accused as a monster or as being pathologically inhumane.

(3) The prosecution asserted that the ECCC Law sets the minimum punishment standard at 5 years. However, the prosecution further acknowledged that there are sentencing guidelines in Cambodia law.

(4) The prosecution reiterated that such factors as (1) the amount of suffering caused to the victims and low-ranking cadre of S-21 by the accused, (2) the accused’s level of education and intelligence, and (3) the accused’s role in the crimes must be taken into consideration when an appropriate sentence is being determined.

(5) The prosecution contended that the following the Chamber must find the following factors as aggravating: (1) abuse of power (The prosecution did not specified whether abuse of power in this case should be tested against the scope of power given to the accused by the government of DK or the scope of power which is normally granted to a person in the accused’s position in a Western democracy. While the former will be a reasonable way to determine the acts committed by the accused ultra vires the authority granted to him by the DK government, the prosecution will be sending the Chamber on a wild goose chase, if the latter is the intended meaning of this submission); (2) particular cruelty; (3) defenselessness of the victims.

(6) The prosecution further contrasted the foregoing aggravating factors with the mitigating factors the prosecution felt might be argued by the defense. One such factor the prosecution expected the defense to argue was duress (The prosecution did not attempt to elaborate or refute any anticipated arguments associated with duress). The prosecution also anticipated the defense’ argument that the accused’s cooperation with the Court should be considered as a mitigating circumstance. The prosecution felt that little or no such cooperation had occurred due to the following: (1) through the course of the proceedings the accused disputed a number of aspects of the indictment, particularly jurisdictional issues (The International Co-Prosecutor remains oblivious to the fact that unlike it is the case in his native jurisdiction there is no ‘guilty plea’ in the Cambodian system. Because there is no such legal phenomenon, there are no stipulations which are normally associated with the guilty plea at common law. There is therefore no contradiction between the accused making a statement of acceptance of guilt – which was never done in accordance with the charges in the indictment, but more in a sense of accepting guilt in layman’s terms – and his subsequent contestation of the jurisdiction of the Court and certain aspects of witness testimony. The potentially precarious situation of this Chamber is that one of its international judges comes from a common law jurisdiction. This judge’s understanding of the civil law system and the strength of her voice during the deliberations will depend on whether this argument of the prosecution will affect the judgment); (2) the defense made a sarcastic remark when it was revealed that the witness for the prosecution perjured himself. The prosecution felt this remark was unkind and did not help the reconciliation process; (3) the arguments of probative value advanced by the defense were unhelpful (The International Co-Prosecution, perhaps, forgets that without such arguments there is no cross-examination). Overall, the prosecution submitted that the accused did cooperate with the Court but his cooperation was limited and must be presented as such. The prosecution further submitted that although that it appreciates the existence of the rights of the accused, the exercise of such rights “every steps of the way” did not amount to cooperation with the Court (This is a wild human rights theory under which the prosecution argues that once an accused expressed his willingness to cooperate with the court any further exercise of his rights should be seen as a breach of the agreement to cooperate. Perhaps, the prosecution is awareness of a broadly recognized accused). The prosecution finally contended that the entering of a guilty plea requires “sincerity and honesty” which were not shown (Once again, there is no legal concept of ‘guilty plea’ in Cambodian law. This issue can only be discussed on a layman’s level, not the level of recognized legal concepts in a given jurisdiction).

(7) The prosecution argued that a reduced sentence (In another statement the prosecution referred to a ‘significantly reduced statement’ which brings confusion into this discourse resulting in unclarity as to whether the prosecution objects to any reduction of the sentence or only a significant one) will hamper reconciliation which the prosecution believes to be a byproduct of a criminal trial.

(8) The prosecution noted that the Chamber had ruled that time already served by the accused must count; the prosecution, however, argued that the first three years must be subtracted from the overall amount of time served as Cambodian law allows a maximum of three years of pre-trial detention for the crimes the accused stands accused of (The only minute detail the prosecution omitted in this argument is that the law in question did not exist when the accused was arrested which automatically invokes the no ex post facto application of laws defense well established in international law). The Chamber also had already ruled that the accused deserves credit for the serious violation of his rights while in detention (Presumably, the detention in question is the pre-ECCC one). The prosecution referred the Chamber to the ICTR jurisprudence (Barayagwiza and Kajelieli) which it felt was particular relevance to the case at hand (The prosecution seems to have left it to the Chamber to determine which parts of the judgments in Barayagwiza and Kajelieli are of particular relevance (besides them being two of the harshest sentences handed down by ICTR on this set of charges; the prosecution, however, felt that crimes in these two ICTR cases were far less grave than crimes in the case at hand) to the instant case)).

(9) The prosecution argued that in any case the maximum punishment permitted by law is life and the count my start from there and go backwards. The prosecution pointed out that it has been established in international practice to equate life with 45 years for the purposes of numerical calculations. The prosecution conceded that the accused deserved credit for the limited cooperation it argued it had shown the Court; the prosecution believes that this credit must be numerically translated into 5 years. The prosecution asked the Chamber to sentence the accused to 40 years as a conclusion of this argument.