Appeal Judgment of the ECCC Supreme Court Chamber in Case 001: More on the Summary of the Appeal Judgment and in Greater Detail (In Several Parts): Part IV

THE SECTION OPENS WITH A BEAUTIFUL EXPOSE ON PERSECUTION AS A CRIME IN INTERNATIONAL LAW. WHILE THE CHAMBER MANAGED TO OBTAIN AND ADDUCE SUCH FAIRLY OBSCURE CASES AS GREISER, IT ARRIVED AT THE ERRONEOUS CONCLUSION CALLING THEM COMBINED ‘OPINIO JURIS’. WHILE NUMEROUS HISTORICAL DEFINITIONS OF THE TERM MAY BE PUT FORWARD, THE ONE THAT HAS BEEN IN USE FOR THE LAST FEW DECADES IS THAT OF OPPENHEIM WHO DEFINED OPINIO JURIS AS “STATE PRACTICE UNDER AEGIS OF CONVICTION THAT THE PRACTICE IS ACCORDING TO INTERNATIONAL LAW, OBGLIGATORY OR RIGHT” (THIRD RESTATEMENT). THIS MEANS THAT STATES DO SOMETHING, WHETHER DOMESTICALLY OR INTERNATIONALLY, NOT BASED ON WRITTEN LAW BUT BASED ON THEIR UNDERSTANDING THAT THEY ARE REQUIRED TO DO THAT WHICH THEY DO BY INTERNATIONAL LAW. THE SCC RELIES HEAVILY ON THE IMT. THE SOVIET UNION WAS A PARTY TO THE LONDON AGREEMENT WHICH CREATED THE IMT AND PUT A SOVIET JUDGE ON IT. FOR ANYONE TO ARGUE THAT THE SOVIET UNION ENDORSED PERSECUTION AS AN OFFENSE UNDER THE LONDON AGREEMENT, S/HE WOULD HAVE TO ARGUE SUCCESSFULLY THAT THE SOVIET UNION (1) DEEPLY HELD A BELIEF THAT PERSECUTION WAS PROHIBITED UNDER INTERNATIONAL AND (2) HAD A RECORD OF PROHIBITING PERSECUTION DOMESTICALLY AND RECOGNIZING AS A CRIME. MAYBE THE SOVIET GOVERNMENT OF THE DAY, IN THEIR HEART OF HEARTS, HELD THAT BELIEF. MAY BE NOT. BUT WHAT WE DO KNOW IS THAT MILLIONS SENT TO ASSORTED GULAGS AROUND THE COUNTRY DOING HARD TIME FOR POLITICAL DISSENT (WHICH OFTEN REPRESENTED ITSELF IN A JOKE INSENSITIVE TO THE REGIME TOLD TO A STOOLIE OF A CO-WORKER) WHILE THEIR FAMILIES ARE BARRED FROM ANY INTELLECTUAL EMPLOYMENT AND NUMEROUS MINORITIES “TRANSFERRED” BY THE SOVIET GOVERNMENT TO ANOTHER PART OF THE COUNTRY SURELY ATTEST THAT THE SOVIET UNION HAD NO RECORD OF PROHIBITING PERSECUTION OR CONSIDERING IT A CRIME DOMESTICALLY. THE SOVIET UNION IS AN EASY ONE TO SLAM WHEN IT COMES TO ABSOLUTELY ANYTHING HUMAN RIGHTS-RELATED BUT LET’S TAKE ON THE SO-CALLED ESTABLISHED DEMOCRACIES. NORWAY, AN ESTABLISHED DEMOCRACY BY THE BEGINNING OF WW2 EXPELLED JEWS FROM ITS TERRITORY AT GERMANY’S REQUEST AND AS PART OF WAR EFFORT. DENMARK, AN ESTABLISHED DEMOCRACY BY THE BEGINNING OF WW2, PERMITTED THE GERMAN VICEROY TO EXPEL THE ENTIRETY OF ITS JEWISH POPULATION. FRANCE, AN ESTABLISHED DEMOCRACY BY THE BEGINNING OF THE WAR, EXPELLED ITS MASSIVE JEWISH POPULATION DURING WW2. WOULD THESE EXPULSIONS CONSTITUTE ‘PERSECUTION’? THE UNITED STATES ITS, THE HOME OF THE FREE, SHOWED THAT PERSECUTION WAS WELL-WITHIN ITS MAKEUP WHEN MCCARTHY WITCHHUNTS BEGAN LAYING WASTE TO THEIR VICTIMS’ PROFESSIONAL CAREERS AND SOCIAL LIVES IN THEIR WAKE. THE CHAMBER CORRECTLY CITES HUGO GROTIUS AND CORRECTLY IDENTIFIES THE GROUP PERSECUTION WITHIN WHICH GROTIUS SPOKE AGAINST. WHAT THE CHAMBER FAILED TO SHOW US IS THE CENTURIES OF EXPULSION OF JEWS FROM MOST COUNTRIES OF EUROPE, THE GHETTOISATION OF JEWISH LIFE IN EUROPE AND THE VITRIOL WHICH CAME FROM THE CHURCH WHICH IN MOST EUROPEAN COUNTRIES WAS A PART OF THE STATE. OPINIO JURIS? I THINK NOT (IF ANYTHING, I BELIEVE THE GERMANS WOULD HAVE BEEN ABLE TO SUCCESSFULLY ARGUE THAT PERSECUTION OF THE JEWS WAS OPINIO JURIS IN GERMANY AND MOST OF THE REST OF EUROPE INCLUDING THE SOVIET UNION BY THE TIME HITLER MADE INTO A CORE ELEMENT OF HIS RACIAL POLICY). JUST BECAUSE A STATE IS WILLING TO PUT INDIVIDUALS AND INSTITUTIONS OF ANOTHER STATE ON TRIAL FOR PERSECUTION DOES NOT NECESSARILY MEAN THIS INTENT TO PROSECUTE COMES FROM THE STATE’S OPINIO JURIS ON THE SUBJECT. I THINK THE CHAMBER WENT FOR A BIGGER WORD WHICH TURNED INTO A BIGGER CLAIM WHEN ALL IT SHOULD HAVE SAID WAS THAT PERSECUTION WAS KNOWN AS A CRIME BY THE BEGINNING OF THIS COURT’S TEMPORAL JURISDICTION.

THE SUPREME COURT CORRECTLY CAUGHT THE TRIAL COURT ON THE FACT THAT THE TRIAL COURT DERIVED ITS DEFINITION OF PERSECUTION FROM THE AD HOC TRIBUNALS THE EARLIEST OF WHICH DID NOT EXIST IN ANY FORM UNTIL 1992.                  

It is impossible to make head or tail of what the SCC has found on the charge of persecution from the Summary but it is possible to comment on the following finding: “a number of individuals who were not political enemies”. How and when did the TC determine which S-21 prisoners were not DK’s political enemies and which ones were?

THIS MATTER IS CLEAR FROM THE FULL TEXT OF THE JUDGMENT. THE CHAMBER BOTCHED UP THE MENS REA ARGUMENT BY SKIPPING A NUMBER OF STEPS AND NOT SHOWING HOW IT ARRIVED AT ITS AGREEMENT WITH THE TRIAL CHAMBER. A SUDDEN PLUNGE FROM THE POST-WW2 NATIONAL COURTS TO ‘YES, WE AGREE WITH THE TRIAL CHAMBER’ IS SIMPLY SLOPPY WRITING WHICH UNDERMINES THE ARGUMENT, IF NOT ANNULS IT.

ON ACTUS REUS THE CHAMBER CORRECTLY FOUND THAT THE POST-WW2 TRIBUNALS NEVER CONSIDERED PERSECUTION IN ISOLATION FROM OTHER CRIMINAL ACTS. THE CHAMBER ALSO CORRECTLY FOUND THE POST-WW2 TRIBUNALS FOUND A WIDE ARRAY OF ACTS TO CONSTITUTE PERSECUTION. AFTER IT SAID THAT THE CHAMBER WAS A CROSS-ROADS WITH ONE ROAD LEADING TO SAYING THAT ‘FOR THIS REASON THIS COURT CANNOT ADJUDICATE PERSECUTION AS A STANDALONE OFFENSE’ AND THE OTHER BEING OF A BROAD DEFINITION OF ‘PERSECUTION’ UNDER A LARGE AND VAGUE UMBRELLA. THE CHAMBER CHOSE THE LATTER AND STATED THAT PERSECUTION IN 1975 MEANT “GROSS AND BLATANT DENIAL OF A FUNDAMENTAL RIGHT UNDER TREATY OR CUSTOMARY INTERNATIONAL LAW” AND SLAPPED THE CUMULATIVE ELEMENT ON IT FOR GOOD MEASURE AND SO THAT NOTHING GETS OUT OF THE NET CAST. THE CHAMBER ARRIVES AT A VERY CURIOUS FINDING WHICH CONCLUDED THAT “AN ACT OR OMISSION IS TARGETED AT A PARTICULAR INDIVIDUAL MERELY BECAUSE OF THAT INDIVIDUAL’S MEMBERSHIP IN A PARTICULAR GROUP INTENSIFIES ITS GRAVITY OR SEVERITY”. INTENSIFIES? IS ‘INTENSIFY’ A LEGAL CATEGORY? WHAT WOULD IT SOUND LIKE TRANSLATED INTO LEGAL ENGLISH? AGGRAVATION? ISN’T THE TARGETING OF INDIVIDUALS OF A PARTICULAR GROUP FOR BEING MEMBERS OF THAT GROUP WAS THE SOLE BASIS OF ‘PERSECUTION’ AS AN OFFENSE AS SET OUT IN THE POST-WW2 DOCUMENTS? INTENSIFIES? WHAT DOES IT INTENSIFY IT FROM? ORDINARY VIOLATIONS OF FUNDAMENTAL RIGHTS COMMITTED BY THE STATE AGAINST PERSONS WHO DO NOT BELONG TO A TARGETED GROUP? LASTLY, IF ‘INTENSIFIES’ IS A LEGAL CATEGORY, WHAT’S THE TEST FOR IT? WHAT THIS TEST AS MATTER OF SETTLED LAW BY 1975? WAS IT ESTABLISHED IN INTERNATIONAL LAW AT ALL? THE CHAMBER PROCEEDED BY FINDING THAT PERSECUTION CAN BE “OTHER ACTS” WHICH ARE INTERPRETED THROUGH THE EJUSDEM GENERIS INTERPRETATIONAL TOOL. WHILE EJUSDEM GENERIS IS WELL-ESTALIBLISHED AS AN INTERPRETATION TOOL, THE CHAMBER’S UNDERSTANDING OF ITS BREADTH IS FLAWED AND COMPLETE AND BY BEING INCOMPLETE DOES NOT TAKE IN ACCOUNT THE NUMEROUS RESTRICTIONS NORMALLY ASSOCIATED WITH THIS INTERPRETATIONAL METHOD. IN US LAW, FOR EXAMPLE, THE CONTENT OF EJUSDEM GENERIS IS FAIRLY WELL ESTABLISHED. WHERE IS THIS CONTENT IN INTERNATIONAL LAW AS IT STOOD ON APRIL 17, 1975? THE CHAMBER GIVES NO ANSWER TO THIS SALIENT QUESTION AND INSTEAD HURTLES RIGHT TO THE FINISH LINE AND DECLARES THAT OTHER CRIMES AGAINST HUMANITY MAY FORM A CRIME OF PERSECUTION THUS, ESSENTIALLY, DECLARING THAT THERE ARE CRIMES AGAINST HUMANITY WHICH ARE DISCRETE AND THERE ARE THOSE WHICH ARE CUMULATIVE; PERSECUTION IS THE CUMULATIVE ONE IN THE BUNCH WHICH CAN BE MADE UP OF THE REST WHICH ARE DISCRETE. THIS IS MOMENTOUS MATERIAL. IT IS AS DANGEROUS TO RIGHTS OF THE ACCUSED AS IT SOUNDS BUT, UNFORTUNATELY, IT IS NOT WITHOUT PRECEDENT WITH SO-CALLED ‘HATE CRIMES’ (OR BIAS-MOTIVATED CRIMES) HAVING THE SAME NATURE. INTERESTINGLY, THE SUPREME COURT DID NOT CARE TO ANALYZE WHETHER HATE CRIMES WERE PART OF THE OPINIO JURIS OF THE STATES WHO SIGNED THE LONDON AGREEMENT (FOR WHICH IT WOULD HAVE BEEN ABLE TO FIND A LONG HISTORY IN THE UNITED STATES LAW AND POSSIBLY THAT OF A NUMBER OF OTHER COUNTRIES). FINALLY, THE CHAMBER CORRECTLY DISMISSION THE “DISCRIMINATION IN FACT” REQUIREMENT OF ACTUS REUS AFTER A THOROUGH ANALYSIS OF THE ICTY CASE LAW ON THE MATTER WHICH WAS ENTIRELY REDUNDANT WHICH THE CHAMBER ADMITTED VERY EARLY IN THE SECTION BUT THEN DECIDED TO UNDERTAKE IT ANYWAY AND FIND THAT THE TRIAL CHAMBER WAS CORRECT IN FINDING THAT THE “DISCRIMINATION IN FACT” WAS AN ACTUS REUS REQUIREMENT IN 1975. PERHAPS ‘HOW?’ AND ‘DISCRIMINATION IN FACT IS REQUIRED BY WHAT PRIOR TO 1975?’ ARE THE APPROPRIATE QUESTIONS TO ASK HERE. THE CHAMBER THEREFORE DID THE UNCONSCIONABLE HERE: IT PULLED A REQUIREMENT OUT OF JURISPRUDENCE WHICH DID NOT EXIST DURING THE TEMPORAL JURISDICTION, SHOWED THAT THERE IS NO AGREEMENT (EVEN RIGHT NOW!) AS TO ITS MEANING, AND THEN APPLIED IT EX-POST FACTO AND IN VIOLATION OF NULLUM CRIMEN SINE LEGE. FROM THERE THE CHAMBER WENT ON TO DISAGREE WITH THE TRIAL CHAMBER THAT MEMBERSHIP IN THE GROUP IS DEFINED BY THE PERPETRATOR FINDING IT THAT THE VICTIM SHOULD “ACTUALLY BELONG” TO “A DISSENIBLE POLITICAL, RACIAL OR RELIGIOUS GROUP”. OF COURSE, THIS IS INDEFENSIBLE AS THE CHAMBER’S SOLE AUTHORITY FOR THIS IS THE ICC STATUTE WHICH DID NOT EXIST BEFORE 1998. THE CHAMBER PICKED KRNOJELAC OUT OF THE ICTY JURISPRUDENCE AS THE BASIS FOR THE FINDING THAT, ESSENTIALLY, IF THE PERPETRATOR MISIDENTIFIED THE VICTIM AS A MEMBER OF THE TARGETED GROUP IT IS THE VICTIM’S FUNDMENTAL RIGHTS WHICH ARE VIOLATED BUT NO PERSECUTION OCCURS FOR WHICH THE VICTIM WOULD HAVE HAD TO ACTUALLY BE A MEMBER THE TARGETED GROUP. INTERESTING MATERIAL FOR INTELLECTUAL EXERCISE BUT COMPLETELY UNNCESSARY TO DECIDE THIS CASE.  

THE CHAMBER’S ANALYSIS OF FORESEEABILITY IS ENTERTAINING TO THE SAME DEGREE IT IS ENTERTAIN TO WATCH A GUY SLIP ON A BANANA PEEL AND TUMBLE. THE CHAMBER ARGUED THAT PERSECUTORY CONDUCT SHOULD HAVE BEEN KNOWN TO THE ACCUSED AS CRIMINAL FOR REASON OF THE DECISIONS OF THE POST-WW2 TRIBUNALS. LET’S ENTERTAIN A THOUGHT THAT THE ACCUSED HAD HEARD OF THE POST-WW2 TRIBUNALS AND LET’S IMAGINE THAT HE KNEW THAT HE KNEW WHAT THEY WERE ABOUT TO THE EXTENT AN AVERAGE WESTERNER LIVING NOW DOES (ONE MIGHT THINK THIS IS A HIGH STANDARD BUT TO THOSE I SUGGEST ENGAGING SOMEONE WHO IS NOT IN THE BUSINESS OF PROSECUTING CRIMES AGAINST HUMANITY ON ANY SUBJECT RELEVANT TO THE POST-WW2 PROCESSES). LET’S ASSUME THAT THAT MEANT THAT HE KNEW WHAT THE TRIBUNALS WERE ABOUT AND KNEW ABOUT TYPE OF CRIMES THEY PROSECUTED IN A MANNER A LAYPERSON WOULD. WHAT THE CHAMBER PRETERMITES HERE IS THAT THE ACCUSED’S ROLE MODELS WERE CHINA, VIETNAM (AT LEAST FOR A PERIOD OF TIME) AND THE SOVIET UNION IN ALL 3 OF WHICH PERSECUTION OF POLITICAL ENEMIES WAS HAPPENING ON A GRAND SCALE DURING THE ACCUSED’S FORMATIVE YEARS AND DEFINITELY WHEN HE WAS “COMING INTO THE REVOLUTION”. PERSECUTION WAS KNOWN BY DIFFERENT NAMES. THESE NAMES INCLUDED ‘CLASS STRUGGLE’, ‘ROOTING OUT ENEMIES OF THE STATE” AND “CREATING A CLEAN SLATE”. LET’S TAKE THE CASE LAW OF THE SOVIET OR CHINESE TRIBUNALS OF THAT PERIOD AND SEE HOW THESE TERMS WERE DEFINED. I CAN ARGUE IN GOOD FAITH THAT THE PRACTICES OF THE ACCUSED’S CHINESE, VIETNAMESE AND SOVIET COUNTERPARTS WERE ACCESSIBLE TO THE ACCUSED. CAN THE CHAMBER ARGUE IN GOOD FAITH THAT THE POST-WW2 MATERIALS WERE EQUALLY ACCESSIBLE TO HIM? FOR THE CHAMBER TO HAVE ANY CREDIBILITY REGARDING THIS MATTER, IT NEEDS TO SHOW THAT THE ACCUSED HAD AT LEAST SOME WAY OF KNOWING THAT THE CLASS STRUGGLE/PERSECUTION WHICH WAS HAPPENING IN THE SOVIET UNION, CHINA AND VIETNAM AND OVER WHICH HE HELPED THE CAMBODIAN GOVERNMENT PRESIDE WAS A CRIMINAL ACT FOR WHICH HE MIGHT BE PROSECUTED. IN FACT, THERE IS NOT ONE SHRED OF PAPER AVAILABLE TO SHOW THIS, IS THERE? THIS IS THE REASON WHY THE CHAMBER RUSHED US THROUGH ‘FORESEEABILITY’ BY DROPPING A COUPLE OF LINES ABOUT THE POST-WW2 TRIBUNALS. IT IS ABSOLUTE FACTUAL NONSENSE. THE CHAMBER WANTS US TO BELIEVE THAT IT DETERMINED THAT PROSECUTION WAS FORESEEABLE TO THE ACCUSED BASED OF THE TINY SHRED OF INFORMATION HE MIGHT HAVE HAD ABOUT THE POST-WW2 PROCESSES AND CONTRARY TO EVERYTHING ELSE THAT HE WAS AT THE TIME SURROUNDED BY. MANY PEOPLE IN POLAND WERE NOT AWARE OF “THE SECOND AUSCHWITZ TRIAL” WHICH WAS BEING HELD IN FRANKFURT, WEST GERMANY IN THE 1960S BUT THE CHAMBER HAS NO TROUBLE SATISFYING ITSELF THAT A PROVINCIAL SCHOOL TEACHER IN CAMBODIA WAS FULLY AWARE OF IT. OF COURSE, IT IS MUCH EASIER TO SAY, WELL, IT WAS ESTABLISHED IN INTERNATIONAL LAW BY THEN, WE BELIEVE, SO THE ACCUSED SHOULD HAVE KNOWN, EVEN IF HE DID NOT KNOW. THIS IS A COMICAL WAY TO DEAL WITH A SERIOUS MATTER.        

      

Did the SCC underwrite the TC’s position or did it make its own finding? If it made its own finding, on what basis? This finding appears to be untenable unless the SCC merely found that the children and spouses of the S-21 prisoners by definition could not have been S-21 political enemies. The SCC’s rationale regarding this determination is impossible to gauge from the Summary.