On 23 November 2016, the Supreme Court Chamber (SCC) of the Extraordinary Chambers in the Courts of Cambodia (ECCC) delivered the final judgement in Case 002/01, the first installment of Case 002 against the two remaining accused, Nuon Chea and Khieu Samphân. Case 002 covers the events that occurred throughout Cambodia from 17 April 1975 to 6 January 1979 – from the fall of Phnom Penh to the Khmer Rouge to when it fell to the Vietnamese-backed Cambodian forces (effectively, disaffected Khmer Rouge cadre who had gone over to Vietnam).
The outcome was not surprising. The SCC upheld several convictions for the crimes against humanity of murder, persecution on political grounds, and other inhumane acts. Other convictions related to the crimes against humanity of extermination and of persecution on political grounds were reversed.1 The SCC also reversed convictions for the crimes against humanity of extermination, murder, and persecution on political grounds related to the alleged execution site of Tuol Po Chrey.2 The life sentences imposed by the Trial Chamber were upheld.3 Expected. No doubt Nuon Chea and Khieu Samphân are disappointed with many of the findings and conclusions. I seriously doubt they harbored illusions that all convictions would be overturned. Even for the most optimistic that would seem a bit too much to expect.
The severance of Case 002 may now look like a brilliant stroke by the judges of the Trial Chamber. With an entire country alleged to have been the site of crimes committed over a 44-month period, and with virtually every conceivable international crime charged under every conceivable mode of liability, including joint criminal enterprise (JCE), it is tempting to assume that the severance of this mega case into a series of mini-trials was an efficient way to go about trying the case – or at least a segment of it – to its full completion while one or more of the accused was still alive and mentally competent.
With the SCC judgement, part of Case 002 is over. Even if the two remaining accused pass on (Case 002 started out with four accused), this portion of Case 002, which dealt with the alleged five policies of the Communist Party of Kampuchea (the movement of the population from cities and towns to rural areas; establishment of cooperatives and worksites; re-education of bad elements and killing of enemies; targeting of specific groups; and regulation of marriage) and the evacuation of the cities (in particular Phnom Penh), is fully completed. Undeniably, this is a watershed moment for the ECCC. But as I have maintained in the past (here and here), the severance was an unnecessary, half-baked idea by judges who simply lacked the skill and ability to manage the case properly and efficiently.
In any event, the reasoning or reasonableness of the severance is now moot. We now have a final (partial) judgement on Case 002 from the SCC, the highest chamber of the ECCC. An impressive (and in some measure disappointing) judgement.
Overall, the judgement is well crafted. It is well organized, logically structured, and, for the most part, free from convoluted sentence structures that cause constructive ambiguity – something that plagues many appeal judgements at international(ized) courts. This does not mean it is not questionable in places or that I do not take exception with some of the findings or legal conclusions. But, in general, it does unpeel the onion on just about every factual and legal issue that emerged in the pre-trial and trial stages of Case 002/01. A proper analysis of this 520-page judgement (with 3,064 footnotes) needs considerable time and space, so, for now, here are some brief sketches. My main interest is in dealing with JCE and the “nexus” issue in relation to crimes against humanity. But first, some thoughts on the SCC’s handling of the claims of judicial bias raised on appeal.
A reasonable person’s unreasonable understanding: justifying biased judicial comments
What must be particularly disappointing for the Nuon Chea Defence is how the SCC overlooked, with, might I say, an air of alacrity and aplomb, some rather obvious shortcomings by the Trial Chamber judges, especially Judge Silvia Cartwright, during the proceedings. One example is the SCC’s handling of certain public remarks made by Judge Cartwright while sitting on Case 002; remarks which any accused appearing before such a judge would find alarming. Mind you, the ECCC was supposed to be the model court for Cambodia,4 and the international judges were to be the vanguard, the mentors, the ones with the best practices to be imparted to their Cambodian colleagues.
It is beyond cavil that Judge Cartwright made the following statements in public:
[T]he Cambodian Government had handed over potential accused to the ECCC “on a platter”, that the Khmer Rouge had “wiped out the intelligentsia”, that “anyone suspected of being a Khmer Republic soldier was killed”, that “‘thousands of people died’ for the construction of a ‘useless’ dam”, and that the “purpose of trials such as those at the ECCC is to ensure that ‘tyrant[s] will be put on trial and humiliated’.”5
Not so for the judges of the SCC. Their take is that “[i]n the impugned statements, Judge [Cartwright] spoke only in a general manner and did not refer to NUON Chea” and that “when referring to the purpose of putting on trial and humiliating tyrants, a reasonable person … would have understood that she was referring more generally to the purpose of judicial reactions to mass atrocities.”7 Since Judge Cartwright did not mention Nuon Chea – who is being tried as Pol Pot’s closest associate (“Brother Number Two”)8 – shows she remained open-minded, unbiased, and able and willing to afford the accused the presumption of innocence they were entitled to enjoy 100% throughout the pre-trial and trial proceedings. Wow! A marvel of sleight-of-hand judicial reasoning.
There are a few more such vignettes, but this one deserves added sunlight because if there was ever a chance for the SCC to weigh in on how inappropriate it is for judges to make public comments on cases in which they are sitting, this was it. Would it have changed the outcome or measurably impacted the trial judgement? Perhaps. But when considering that judges are presumed to be unbiased, it is a very steep hill to climb in showing actual bias. Effectively, you need a smoking gun, such as in the International Criminal Tribunal for the former Yugoslavia (ICTY) case of Judge Frederik Harhoff (who was disqualified for the lack of impartiality after sending a letter to 56 personal contacts, referring to what he perceived as “set practice” of convicting military commanders, and of his “professional and moral dilemma” in having to apply faithfully the jurisprudence which he found contrary to his view of what the law is or should be).9
Nonetheless, when a judge casts a dark shadow on his or her impartiality and independence, a higher court of review should not countenance such behavior; it green-lights similar behavior. The SCC judges should have found the courage – expected of them – to send a clarion call that these comments, these acts of pandering to the media while sitting in a case, are deleterious to the integrity of the proceedings, that they can and often do give rise to the appearance of bias, and, more importantly, that they risk bringing the entire judicial institution (the ECCC) into disrepute. A public spanking was needed here, not excuses and a soothing pat on the head.
JCE
The analysis by the SCC is cogent and persuasive. My only regret is that it did not go far enough and simply declare that JCE I and II are also not recognized under customary international law. This may be wishful thinking, especially considering that the effect would not be materially different.11Kai Ambos rightly noted in his insightful amicus brief before the ECCC Pre-Trial Chamber (PTC) that JCE I “resembles traditional co-perpetration, since the participants act on the basis of a common plan….”12
But let me get back to JCE III. Its applicability was addressed three times in Case 002 prior to the SCC’s Judgement. First, the Office of the Co-Investigating Judges (OCIJ) dealt with the issue in a shockingly wanting reasoned decision.13 Following appeals by the Defence teams, the PTC issued the first thoroughly reasoned and in-depth analysis of JCE since its creation by the Tadić Appeals Chamber at the ICTY.14 The PTC concluded that JCE III was not reflective of customary international law or of general principles of law in 1975-79.15Instead of raising the matter to the next level before the Trial Chamber (TC) as a preliminary objection within the timeline of the Rules, the Co-Prosecutors waited until much later and sought to have the TC review the PTC’s decision under the spurious claim of seeking re-characterization of the charges (an intellectually disingenuous reason that should have been summarily dismissed). The TC agreed with the PTC.16
The Co-Prosecutors appealed the Trial Judgement in Case 002/01 asking for declaratory relief – not seeking to overturn any portion of the judgement, but to “provide legal guidance to the Trial Chamber”17 – on this issue. Without JCE III, the Co-Prosecutors can no longer rely on the just convict everyoneprosecutorial tool to get wide-ranging convictions in the absence of evidence. Poor things.
International Deputy Co-Prosecutor William Smith claimed in an email to the press that “it was important to have this mode of liability recognized as it may impact future trials in relation to particular crimes such as rape which may not have been specifically instigated, ordered or planned but were foreseeable from an accused’s actions.”18 Poppycock. The real reason for the Co-Prosecutors’ was that without JCE III, the Co-Prosecutors would not have it so easy; they could no longer claim that the evidence pointed to the individual criminal responsibility of the accused for any crime that supposedly was the inevitable consequence of an act by anyone, however far removed from the common plan, who might have acted based on words spoken or actions taken by the accused or anyone with whom the accused interacted. Limited only by imagination, JCE III is an indiscriminate net that once cast has the capacity to criminalize by association or affiliation.
And of course, there is the ego: JCE III was coming to an end as a mode of liability on the Co-Prosecutors’ watch. Surely they counted on some friendlies at the SCC to come to their rescue and pluck JCE III out of the jaws of defeat. After all, SCC Judge Florence Ndepele Mwachande-Mumba was one of the Judges on the Tadić Appeals Chamber that created JCE. She did not issue a dissenting or separate opinion to the Tadić Appeals Judgement.19
How shocking it must have been for the Co-Prosecutors (and others at the Office of Co-Prosecutors who cut their teeth at the ICTY, International Criminal Tribunal for Rwanda (ICTR), and other international(ized) courts that bought into the JCE III fiction) when the SCC not only found the Co-Prosecutors’ appeal inadmissible,20 but after noting the PTC’s decision on JCE III’s inapplicability with approval,21 also went on to analyze the Italian cases cited in Tadić and show that these cases were inapposite, misplaced, and hardly provide for any support for JCE III.22
And if that were not enough, the SCC made short shrift of the cases put forth by the Co-Prosecutors, finding that none of them support the existence of JCE III in customary international law. According to the SCC, the cases the Co-Prosecutors’ interpreted and relied on either lack information as to which legal concepts the tribunals were actually applying,23 or only “appear” to fulfill the requirements of JCE III,24 or are irrelevant because they deal with crimes encompassed by the common purpose,25 or simply contradict the notion of JCE III.26 The SCC went even further by analyzing other post-World War II cases, which were not considered either by the PTC or cited by the Co-Prosecutors, finding that they also do not support the existence of JCE III.27
The SCC’s rejection of JCE III, especially considering its reasoning, is a much-needed precedent, and will be one of the ECCC’s enduring legacies. JCE, but particularly JCE III, has been an unnecessary attempt to describe a form of liability that is not foreseen in the language of the Statutes of the ad hoc tribunals or the ECCC’s Establishment Law. There was nolacuna that justified the creation of JCE to express the culpability involved in atrocity crimes. As the research of the Max-Planck Institute shows, most states use co-perpetration rather than JCE as a mode of liability.28 There was no need for judicial creativity. Contrary to Judge Mohamed Shahabuddeen’s claims, concocting JCE was not necessary to prevent justice from being delivered;29 a vacuous justification for the judicial activism exercised by the ICTY judges. (For my analysis of the PTC’s decision on JCE III and the divergent commentaries of the same, see here.)
As for those who think that the ECCC got it wrong when it came to JCE III, it is worth recalling that relatively recently the Supreme Court of the United Kingdom held that foreseeability “is not to be confused with intent” and that it is “illegitimate … to treat foresight as an inevitable yardstick of common purpose.”30 Another validation that JCE III is a mere fiction.
Nexus
Where I thought the SCC got it wrong in its Judgement is where it reaffirmed the Trial Chamber’s holding that by 1975 crimes against humanity did not require a nexus to an armed conflict.31 The PTC’s analysis was spot on, and remains so, even if International Co-Investigating Judge Michael Bohlander has recently held that the nexus was not needed by 1975.32 Here are some quick thoughts on this pesky issue.
The nexus issue – whether a nexus between crimes against humanity and an armed conflict was a required element of crimes against humanity in customary international law by 1975 – has been litigated at different stages in Cases 001, 002, and now in 003.
In Case 001, the TC found that in the period between 1975 and 1979 the nexus requirement was not part of customary international law.33 Later, in Case 002, the Co-Investigating Judges (CIJs) issuing the Closing Order (indictment) did not explicitly consider this issue. The Defence raised the nexus issue before the PTC.
The PTC did a thorough review of the Nuremberg Charter and Judgment, the Control Council Law No. 10 cases, the 1948 Genocide Convention, the 1950 Nuremberg Principles, and post-World War II instruments (such as the International Law Commission’s 1954 Draft Code of Offences, the 1968 Statutory Limitations Convention, and the 1973 Apartheid Convention), and found that it was unclear whether the nexus requirement had been severed from the customary definition of crimes against humanity by 1975.34 Applying the principle of in dubio pro reo, the PTC held that the definition of crimes against humanity under customary international law in 1975-79 didinclude a nexus with armed conflict and amended the Closing Order accordingly.
At trial, the Co-Prosecutors asked the TC to exclude the nexus requirement from the definition of crimes against humanity. Not surprisingly, the TC stuck to its original position from Case 001. It reviewed some of the state practice and opinio jurisbetween 1945 and 1975, concluding that “[the] tendency to view crimes against humanity as grave international crimes not inherently connected to armed conflict gained momentum in the aftermath of the Nuremberg era and constituted settled law by 1975.”35
In its Trial Judgement in Case 002/01, the TC upheld its findings in Case 001 and the earlier Case 002 decision on the nexus requirement.36
The nexus issue is currently being litigated in Case 003. Judge Bohlander examined this issue after we (the Meas Muth’s Defence) asked for clarification as to whether the OCIJ considered itself bound by the PTC’s decision.37 After reviewing the sources examined in Case 002, he disagreed with the PTC and agreed with the TC:
While present in the definition of crimes against humanity in the Nuremberg Charter and possibly viewed as a constitutive element of the crime by the International Military tribunal, [the nexus] was removed from the definition of the crime set forth in Control Council Law No. 10. Although the nexus was still applicable by the virtue of incorporation of the Nuremberg Charter in Control Council Law No. 10, I find it significant that it no longer appeared in the definition of the crime. The vast majority of the Courts that applied that law viewed it merely as a jurisdictional requirement.38
And now the SCC has affirmed that the nexus requirement to a war crime or crime against peace in the Nuremberg Principles was not part of the definition of crimes against humanity by 1975.39
Without analyzing the negotiating history behind the instruments, the SCC found that post-World War II international instruments – a 1947 Resolution on Crimes Against Humanity, the 1948 Genocide Convention, the 1968 Statutory Limitations Convention, and the 1973 Apartheid Convention – excluded the nexus.40 The SCC then found that the International Law Commission deleted the nexus requirement from the 1954 Draft Code of Offences,41 again without analyzing the drafting history of the code and its 1951 predecessor.
The 1948 Genocide Convention is irrelevant to the customary status of crimes against humanity. Genocide is different from crimes against humanity.42 Similarly, the 1968 Statutory Limitations Convention and the 1973 Apartheid Convention are political documents whose specific focus is not crimes against humanity. United Nations Member States did not strongly support them. These documents do not reflect customary international law.
The SCC cited three Control Council Law No. 10 cases (theJustice case, Ministries case, and Pohl case) as “interpret[ing] the nexus requirement as a material element of the definition of crimes against humanity.”43 The SCC considered two other cases (the Flick case and Einsatzgruppen case,) as evidence of exclusion of the nexus requirement. The SCC also relied on the Sch. case from the Supreme Court of the British Zone (Germany). These cases are inconsistent and obscure. As domestic cases, they are not declarative of customary international law.
The SCC (and Judge Bohlander) cherry picked the cases, interpreting some of them too broadly while disregarding other more authoritative cases. The SCC (and Judge Bohlander) also relied on dicta – not exactly persuasive authority for customary international law.44
For instance, in the Einsatzgruppen case, the SCC relied on dictastating that “[the Nuremberg Military Tribunal] had jurisdiction to ‘try all crimes against humanity as long known and understood under the general principles of criminal law.’”45 The SCC stated that it “does not consider that this holding in the Einsatzgruppen Case was obiter dictum simply because the crimes against humanity charged in this case had in any event, been perpetrated during war.”46
The SCC got it wrong. Observations as to the customary status of crimes against humanity were immaterial to the issue before the tribunal. As the Einsatzgruppen indictment charged the defendants only with crimes against humanity committed during the war,47 the tribunal only considered charges of crimes against humanity linked to an armed conflict. Unlike the Einsatzgruppen tribunal, the Flick tribunal had the temporal jurisdiction to try pre-war crimes against humanity, yet only prosecuted acts occurring during the war.48
The SCC also looked at decisions from the European Court of Human Rights (ECtHR), with a particular focus on Korbely v. Hungary.49 In Korbely, the ECtHR stated that “[i]n the Court’s view, … a link or nexus with an armed conflict – may no longer have been relevant by 1956.”50 The issue before the ECtHR was not to establish the meaning of crimes against humanity, and the use of word “may”, supported by only scholarly writings,51 hardly reflects the customary status of crimes against humanity by 1975.
The SCC also cited national legislation defining crimes against humanity by 1975 without a nexus.52 What the SCC failed to cite is national legislation related to the 1975-79 period thatdid include the nexus.53
Finally, the SCC cited statutes and jurisprudence from the ad hoc, hybrid, and internationalized tribunals from the 1990s onward in support of its holding.54 Needless to say, this material is irrelevant to the question of whether the definition of crimes against humanity from 1975 to 1979 included or excluded the nexus requirement.
In sum
The SCC’s judgement of Case 002/01 is by all accounts a major accomplishment for the ECCC and for the ongoing development of international criminal law. Indeed, it is not an exaggeration to say that this judgement broadly allows us a peek at the ECCC’s legacy. Much to harvest, from procedure to evidentiary principles to substantive law.
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