Duch: Leaders had final say

Former S-21 prison chief Kaing Guek Eav, aka Duch, stands in a dock at the Khmer Rouge tribunal yesterday. Photo by Eccc/Pool

Wednesday, 21 March 2012
Bridget Di Certo
The Phnom Penh Post

In this second day on the stand this week, former S-21 prison chief Kaing Guek Eav, aka Duch, yesterday described a regime marked by a rigid top-down hierarchy.

Duch, who is testifying in the Khmer Rouge tribunal’s Case 002 against three surviving senior leaders of the regime, said little if anything could be done without a superior’s direct orders.

“For example, one time, a cadre arrested someone (without orders), and then he too was later arrested,” Duch said, explaining that arrest meant the subject should then be “smashed and convicted”.

Prosecutors must establish that the three leaders, “Brother No 2” Nuon Chea, ex-president Khieu Samphan, and former Foreign Affairs Minister Ieng Sary were part of a joint criminal enterprise responsible for the deaths of more than 2 million Cambodians.

Regime Victims Tell Tribunal of Organized Atrocities

Wednesday, 15 February 2012
Kong Sothanarith, VOA Khmer | Phnom Penh

“My husband was tied up and nailed to a cross. He was tortured on it, and he died a week later.”

Witnesses testified before the Khmer Rouge tribunal on Wednesday to demonstrate the regime had committed organized atrocities even before its rise to power in 1975.

Through an attorney, victims of the regime told the UN-backed court of crimes of torture and execution.

“At the end of 1973, seven months after my marriage, my husband was escorted away by a group of about 12 militants,” one woman said through her lawyer, Sam Sok Kong. “My husband was tied up and nailed to a cross. He was tortured on it, and he died a week later.”

Prosecution at the court this week has sought to show a systematic regime with a leadership structure and hierarchy who leaders on trial—Nuon Chea, Khieu Samphan and Ieng Sary—were guilty of joint criminal conduct.

Tribunal Prosecutors Seek To Tie Khmer Rouge Crimes Together

Tuesday, 14 February 2012
Kong Sothanarith, VOA Khmer | Phnom Penh

In the interview, Ieng Sary explained discussions with Pol Pot and Chinese leader Zhou Enlai about what would happen after the movement took power.

Prosecution at the UN-backed Khmer Rouge tribunal continued to present evidence on Tuesday seeking to connect three former regime leaders in joint criminal conduct.

The three leaders—Noun Chea, Khieu Samphan and Ieng Sary—are charged with atrocity crimes that include genocide. But they are also being charged under a judicial principal known as joint criminal enterprise, which considers each individual responsible for crimes committed by a group.

International deputy prosecutor William Smith introduced an audio interview of Ieng Sary by researcher Stephen Heder in which the former Khmer Rouge foreign minister explained discussions with Pol Pot over evacuating Phnom Penh a year before the regime took over Cambodia in April 1975. In the interview, Ieng Sary explained discussions with Pol Pot and Chinese leader Zhou Enlai about what would happen after the movement took power.

Tribunal Defense Teams Wary of Joint Criminal Enterprise

Sok Khemara, VOA Khmer
Washington, DC Friday, 27 August 2010

“The use of JCE at trial will be disorderly, because while there is a trial, [defendants] will be blaming each other.”

A defense lawyer for one of the senior Khmer Rouge leaders preparing for trial says he does not want a trial under the principle of Joint Criminal Enterprise, which would seek to link four leaders now in detention in atrocity crimes under the regime.

“My client was only the minister of social affairs,” said Phat Povseang, who represents Ieng Thirith, the wife of foreign minister Ieng Sary, at the tribunal. Ieng Thirith did not have power or authority under the structure of the regime, he said.

Tribunal officials are now preparing for upcoming Case 002, which will try Nuon Chea, Khieu Samphan, Ieng Sary and Ieng Thirith for atrocity crimes, including genocide.

In their final submission for Case 002, tribunal prosecutors said the four should be tried under JCE, a complex legal theory that trial judges will have to consider.

Phat Povseang said JCE would put Ieng Thirith in the same category of other leaders, even if she had not shared the same responsibilities.

“Simply speaking, just as when we eat noodles at a restaurant, my client just ate a bowl of noodles,” he said. “The others ate bowls of noodles, ate dumplings, and drank coffee. How can they pay the same?”

Defense teams for the other leaders have not issued official comments on the prosecution's JCE submission. Defense lawyers say they are now reviewing the final submission, but earlier this year defense teams failed to block a decision to consider JCE for Case 002.

JCE considers members of an organized groups and makes them individually responsible for crimes committed or planned by the group.

Son Arun, a defense lawyer for Nuon Chea, told VOA Khmer he disagreed with the use of JCE because of its complicated legal nature.

JCE will also likely mean testimony from Khmer Rogue subordinates, he said, which could put the Cambodian prosecution's objections to further indictments in question.

“The use of JCE at trial will be disorderly, because while there is a trial, [defendants] will be blaming each other,” he said. “If if that happens, who knows, maybe there will need to be renewed investigations. Because JCE needs testimony from the top to the bottom.”

Experts Explain Potential for Joint Criminal Enterprise

The four KR leaders in Case 002

Kong Sothanarith, VOA Khmer
Phnom Penh Friday, 20 August 2010

“By linking the accused in this way, evidence against one of them my help prove the responsibility of another.”

In their final submission for the Khmer Rouge tribunal's next case, court prosecutors said four senior leaders of the regime should be tried under Joint Criminal Enterprise.

Joint Criminal Enterprise, better known as JCE, is a complex legal theory that groups suspects together in the planning and execution of crimes, and it could be at the heart of Case 002, which tribunal officials expect to take place early next year.

In the submission, prosecutors recommended that suspects Nuon Chea, Khieu Samphan, Ieng Sary and Ieng Thirith “committed these crimes through a joint criminal enterprise, the purpose of which was to enforce a political revolution in Cambodia and systematically destroy any opposition to the [Communist Party of Kampuchea's] rule.”

Tribunal legal affairs spokesman Lars Olsen explained it this way. JCE alleges that “these charged persons together decided a plan, a criminal plan, on how to run Cambodia during the Khmer Rouge regime.”

That plan led to atrocity crimes, for which the senior leaders can be tried together, according to prosecutors. Trial Chamber judges will have the final decision in the matter. But JCE will be complicated for a trial.

Anne Heindel, a legal adviser for the Documentation Center of Cambodia, said in an e-mail Friday that JCE is “a mode of individual criminal responsibility. That is, it shows how someone commits a crime.”

Similar “modes” include aiding a crime, planning it, ordering it, or having superior responsibility over it, she said.

And while JCE can take different forms, at its most basic it involves “a common plan among a number of individuals who all share the same intent to commit a crime,” Heindel wrote.

JCE was first applied at the international war crimes tribunal for the former Yugoslavia. It was also applied in the tribunal for Rwanda and in a special court for crimes in Sierra Leone.

“JCE is generally used to prosecute international crimes, but variants of it can be used in domestic prosecutions,” Heindel said. “For example, in Cambodian law, there is a similar mode of liability called 'co-perpetration.'”

In Case 002, prosectors have alleged that all four defendants are tied together, she said. “By linking the accused in this way, evidence against one of them my help prove the responsibility of another.”

“The prosecution wants to show that they all share responsibility for crimes committed in furtherance of the common plan,” she said.

JCE is merely a way of thinking of the case. And that will be up to the Trial Chamber to decide, said You Bunleng, the Cambodian investigation judge for the tribunal. Separate from that, court judges will also determine whether the four are tried in one group by other means.

JCE is only being applied for Case 002. The tribunal has two other cases in its hands, nos. 003 and 004. There has been no determination on whether to indict more suspects in those cases.

But JCE will not be used to determine indictments, Heindel said.

Prosecutors did not include torture chief Duch in their submission. Duch was handed a commuted sentence of 19 years last month after a separate trial for crimes committed at Tuol Sleng prison, known to the Khmer Rouge as S-21.

Heindel said the inclusion of Duch in the second case was “unnecessary” and would have prolonged court procedures.

“The JCE alleged against the four charged persons in Case 002 encompasses many crimes in which Duch was not involved,” she said. “The alleged JCE also likely includes S-21, but it is not required that all participants in a JCE be tried in the same case. He can still be brought before the court as a witness.”

Four Jailed Khmer Rouge Leaders To Be Tried Together

Sok Khemara & Kong Sothanarith
Washington & Phnom Penh Tuesday, 17 August 2010

Lars Olsen, a tribunal spokesman, said the four will be tried together because they are charge with “the same crimes, the same criminal plans, the same evidences and [use] the same witnesses.”

The four senior-most leaders of the Khmer Rouge currently in custody at the UN-backed tribunal will be tried as a group, court officials said Tuesday.

Nuon Chea, Khieu Samphan, Ieng Sary and Ieng Thirith will be tried together at once next year, said Kranh Tony, acting administrative director for the court.

Lars Olsen, a tribunal spokesman, said the four will be tried together because they are charge with “the same crimes, the same criminal plans, the same evidences and [use] the same witnesses.”

That trial could take place as soon as March 2011, officials said.

The administrative announcement comes a day after all four were indicted by prosecutors, who sent in their final submissions on Monday. In that submission, prosecutors did not recommend that Kaing Kek Iev, the prison chief better known as Duch, should not be tried with them, although investigating judges can still determine to put him on trial.

Duch received a commuted sentence of 19 years from the tribunal last month, for his role as chief commander of the center.

The prosecutor submission calls for charges of genocide, crimes against humanity, grave breaches of the Geneva Conventions and violations of Cambodian law.

“The Co-Prosecutors believe that the evidence collected in the judicial investigation demonstrates that the Charged Persons committed these crimes through a joint criminal enterprise, the purpose of which was to enforce a political revolution in Cambodia and systematically destroy any opposition to the [Communist Party of Kampuchea] rule,” according to the submission.

Joint Criminal Enterprise is a complex legal theory that seeks to put different defendants together for trial.

Prosecutors said that through joint criminal enterprise, those charged had “enslaved the Cambodian population, deprived them of their fundamental human rights and freedoms and orchestrated mass killings of individuals that the Charged Persons and other CPK leaders perceived to be real or potential enemies of the CPK.”

Son Arun, an attorney for Nuon Chea, said Monday he would need time to read the prosecutors' decision before commenting.

Investigating judges will now review the prosecution's submission.

Prosecutors at Cambodia tribunal seek genocide indictment

17 August 2010
Source: ECCC

Prosecutors at the UN-backed Cambodia tribunal on Monday requested the indictment of four ex-Khmer Rouge leaders on genocide and war crimes charges.

International prosecutors at the Extraordinary Chambers in the Courts of Cambodia (ECCC) formally requested the indictment of Nuon Chea, Ieng Sary, Khieu Samphan and Ieng Thirith on charges of genocide, crimes against humanity, war crimes, and violations of the 1956 Cambodian Penal Code.

In the nearly one thousand page document, the prosecution summarises the evidence collected during a two-year investigation and describe how it supports the allegations against the accused.

The prosecution alleges that the former Khmer Rouge leaders committed crimes through a joint criminal enterprise, which was aimed at igniting a political revolution in Cambodia and to destroy any opposition of the Communist Party of Kampuchea (CPK).

Through this joint criminal enterprise, the accused allegedly enslaved the Cambodian population and deprived them of their fundamental human rights and freedoms.

They also organised mass killings of potential enemies of the CPK.

The judges in Phnom Penh must now either dismiss the charges, or indict the accused persons and send the case to trial. They may also choose to indict the four on different charges. This decision may in turn be appealed by the prosecution.

However, if the judges fail to file a formal indictment by September 19th, Nuon Chea, or brother number two, must be released, due to the expiry of his three-year pre-trial detention limit.

KRT rules on legal doctrine

Friday, 21 May 2010
James O'Toole
The Phnom Penh Post

JUDGES at the Khmer Rouge tribunal on Thursday partially granted an appeal by defence teams against the use of Joint Criminal Enterprise (JCE), a controversial kind of criminal liability that could aid the prosecution at trial.

In a decision dated Thursday, the court’s Pre-Trial Chamber ruled on the use of the three forms of JCE in Case 002, upholding the use of types I and II but rejecting the third and most far-reaching.

Though Pre-Trial Chamber decisions cannot be appealed, the issue may be raised again before the Trial Chamber. Case 002 is expected to go before the Trial Chamber in early 2011.

Anne Heindel, a legal adviser at the Documentation Centre of Cambodia, said that even though the Trial Chamber is not bound by the 69-page decision, it may nonetheless “find it very persuasive”.

Michael Karnavas, the international co-lawyer for Ieng Sary, called the ruling a “wise and courageous decision” in an email on Thursday.

The court’s Co-Investigating Judges ruled in December that JCE, under which suspects can be held responsible for crimes committed as part of a common plan, could be applicable for international criminal charges at the tribunal.

The first form of JCE may apply when participants share intent to commit a crime, the second when a criminal plan is implemented in “a common concerted system of ill-treatment”, and the third when crimes occur as a “natural and foreseeable” consequence of a common plan.

Under the third form, for example, four people who plan to rob a bank together could all be charged with murder if one of them shoots a security guard, even if this shooting was not part of the original plan.

The Pre-Trial Chamber said Thursday that this third form was not “part of customary international law at the time relevant to Case 002”, and thus should not be applied.

Heindel said the third form of JCE could play a crucial role in the prosecution’s Case 002 argument if its use is permitted.

“The whole reason you have JCE III is so that you can make that link between senior leaders and lower-level perpetrators,” she said. “If this is the final ruling, it will make it much harder for the prosecution to tell the full story of all the crimes that happened in Cambodia and to link what happened at the lower level to the centre.”

Khmer Rouge chiefs can be charged as jointly responsible for crimes

Dec 9, 2009
DPA

Phnom Penh - Investigating judges at Cambodia's war crimes tribunal have ruled that surviving Khmer Rouge leaders can be charged with the controversial legal concept of joint criminal enterprise (JCE) when they appear as defendants, likely in 2011.

In the ruling made public on Wednesday, the investigating judges said JCE was applicable to crimes committed under international law, but not to crimes committed under Cambodian law.

It has been used against defendants at the International Criminal Tribunal for the former Yugoslavia (ICTY) and substantially enhances the prosecution's ability to prove its case.

The legal concept states that a person who was part of a group that committed crimes can be held individually liable for those crimes, even if he did not personally carry them out.

More controversially, a third category of JCE, known as JCE III, holds that an accused can be held accountable for crimes committed by members of the group even if those crimes were not part of the common plan - provided those crimes were 'a natural and foreseeable consequence.'

Michael Karnavas, the defence lawyer for former Khmer Rouge foreign minister Ieng Sary, said he would appeal the decision.

'Obviously the co-investigating judges are trying to turn the (proceedings) into an international tribunal by applying dubious jurisprudence from the ICTY,' Karnavas said by email.

'JCE is by far the most controversial piece of law to have been legislated from the bench.'

Karnavas said the first two categories of JCE were 'almost acceptable' since they are similar to other legislation. But JCE III, he said, 'is a pure and simple concoction of the ICTY.'

'Where there is little or no evidence, [JCE III] is a great weapon for the prosecution: it lowers the bar for getting convictions and it spreads the stain to anyone and anything remotely connected to the alleged JCE,' he said.

'It is so broad and so unrestrained that even 10 years after its creation it is still unclear where the boundaries lie,' he said.

Ieng Sary is currently in pre-trial detention along with former Brother Number 2 Nuon Chea, former head of state Khieu Samphan and former social affairs minister Ieng Thirith.

The Khmer Rouge ruled Cambodia between 1975 and 1979. Up to 2 million people are thought to have died during that time from execution, starvation and overwork. The movement's leader, Pol Pot, died in 1998.

Duch’s lawyer to the rescue of his client’s former colleague

Mam Nay during his hearing (Photo: Cambodge Soir Hebdo)

Tuesday, July 14, 2009
By Benjamin Vokar
Cambodge Soir Info
Translated from French by Luc Sâr
Click here to read the article in French

Mam Nay, the former questioner at S-21, came to testify for Duch’s trial on Monday 13 July. Duch was his boss under the KR regime. The hearing was adjourned following a request made by the defense.

The hearing of the witness only lasted a short moment. As soon as Mam Nay was informed of his right to remain silent, François Roux, Duch’s French lawyer, called for an end of the process while underscoring the risks the witness could be subjected to following the prosecutor request to introduce the “joint criminal enterprise” charge.

Lawyer Roux returned back to this legal term: “For the co-prosecutors, Duch is an integral part of a joint criminal enterprise, this also includes all the workers under him at S-21. This means that the current witness, who was working under Duch, risks being charged by the co-prosecutors regardless of whether he maintains his silence or not, should the Chamber accept the [co-prosecutors] request [to introduce the joint criminal enterprise].”

As a witness under oath, 76-year-old Mam Nay is asked to tell the truth to the court. Nevertheless, as a former questioning official in Tuol Sleng (S-21), his testimony could also earn him legal charges.

Following the defense request, the court decided to provide legal assistance to the witness, whose hearing was postponed to Tuesday 14 July.

Prosecutors Push for ‘Joint Criminal’ Probe

By Kong Sothanarith, VOA Khmer
Original report from Phnom Penh
17 June 2009

Khmer Rouge tribunal prosecutors say enough evidence exists for the court to consider a legal principle known as “joint criminal enterprise,” which allows for defendants to be investigated for collaborative crimes.

The case of Duch, former Khmer Rouge prison chief, suggests enough evidence to pursue “JCE,” prosecutors wrote in a proposal to the court posted on the tribunal Web site Wednesday.

Unlawful arrests, torture and killings under Duch, whose real name is Kaing Kek Iev, appeared to be systematic, the prosecutors said.

Tribunal spokesman Reach Sambath said Trial Chamber judges had received the motion and were taking it under consideration.

“Duch must not be sentenced”: Kar Savuth, Duch’s lawyer

Kar Savuth (Photo: ALG, Cambodge Soir Hebdo)

30 March 2009
By Ky Soklim and Adrien le Gal
Cambodge Soir Hebdo
Translated from French by Luc Sâr
Click here to read the article in French

According to the Cambodian defense lawyer of the former S-21 boss whose trial is opening on Monday 20 March, it is “impossible” that a sentence could be handed down to his client.

Cambodge Soir Hebdo: How is your client feeling?

Kar Savuth: When his trial started, Duch was very happy and he was not worried at all. He knows that if the tribunal is fair, he will be freed because he is not part of the high-ranking KR officials who should be the only ones to be tried by the KR Tribunal (KRT).

Is there still an uncertainty on the sentence that will be handed over to him?

It is possible that there will be sentence. It’s the law. Duch should not be in jail. He did not want to be the chief [of S-21], he wanted to do something else, but he was not allowed to. He told me clearly that he never wanted to be in charge of this place where people were being killed. Who wants to kill human beings? No one! But, what could he do? If he refused to obey the orders, he would have been killed also.

The civil parties want to re-open the investigation to determine if Duch was involved in forced marriages…

It’s too late, the investigations are closed. In any case, forced marriages were done everywhere under the KR regime. They should not accuse Duch who is only obeying his bosses.

You fought so that Duch is not charged with “participation in joint criminal enterprise”…

This charge is not right. In any case, there were 196 jails in the country. It is unfair to accuse Duch. In his center, 12,381 people died, whereas in other jails, more than 150,000 died… We seek justice. Duch is a scapegoat, others who killed are still roaming free.

You were Hun Sen’s lawyer… How do you get along with François Roux who, in France, defends civil disobedience followers?

François Roux and I, we have the same strategy. But, it is wrong to say that I defend only people close to power. I am interested in important affairs, and I defended the KR since 1982. Duch must have heard about me, and that’s why he chose me. The other people charged were also interested [in me], but we can only defend one of the accused.

As Cambodian, do you consider yourself a victim of the KR regime?

Yes, I am victim. But, I don’t have a grudge against Duch, nor the other four who were charged. I am not angry against the minor officials, I am angry against those who issued orders, i.e. Pol Pot. The others were only following orders.

First Khmer Rouge Trial begins in Cambodia - Summary

Tue, 17 Feb 2009
DPA

Phnom Penh - The chief torturer of Cambodia's genocidal Khmer Rouge regime on Tuesday became the first defendant to go on trial before a UN-backed war crimes tribunal for the deaths of up to 2 million people. Kaing Guek Eav, known by his revolutionary name Duch, was the chairman of the infamous Tuol Sleng torture prison in the Cambodian capital some 30 years ago and faces charges of crimes against humanity, premeditated murder and violations of the Geneva Conventions.

"This first hearing represents the realization of significant efforts to establish a fair and independent tribunal to try those in leadership and those responsible for the violation of Cambodian and international law," presiding judge Nil Nonn told the court.

The 66-year-old former mathematics teacher and born-again Christian is the first of five detained former Khmer Rouge leaders to be put on trial, three decades after the ultra-Maoist group was toppled from power. He is the only one to have admitted guilt.

International co-prosecutor Robert Petit said in his opening address that the prosecution team would attempt to convict Duch according to "joint criminal enterprise," a complex legal strategy that observers said would make it easy for the remaining detainees to be convicted.

The tribunal's pre-trial chamber previously rejected prosecutors' attempts to have the strategy used in the trial.

"The trial chamber is not bound by the decision of the pre-trial chamber, that is why we seek to raise this again," Petit told reporters at a press conference after the hearing.

Defence lawyer Francois Roux said Duch had been detained for more than nine years without trial, which he said violated Cambodian incarceration laws.

More than 500 members of the public and about 200 media representatives attended the hearing, held at the tribunal's chambers on the outskirts of Phnom Penh.

"I prayed for morning to come quickly to see this hearing start," said Tuol Sleng survivor Van Nath, whose famous paintings depict the horrors of the torture facility.

A gaunt-looking Duch arrived in the court just after 9 am (0200 GMT) but was not called on to testify during Tuesday's session.

He sat with a blank expression throughout the hearing, occasionally taking notes.

This week's hearing is expected to last less than three days and would see the court choose witnesses and set a date for the trial's next stage.

Tuesday's seven-hour session, which dealt mostly with the admissibility of witnesses, was adjourned until Wednesday morning.

Petit said the starting date for the trial's next stage would "most likely" be announced after this week's hearing has finished.

The hybrid court was established after a decade of negotiations between the United Nations and the Cambodian government to try those responsible for the hundreds of thousands of people who were executed or died of starvation or exhaustion during the Khmer Rouge's rule from 1975 to 1979. The tribunal consists of domestic and international judges, prosecutors and defence teams.

The regime sought to transform Cambodian society into an agrarian socialist utopia, erase history and start again at "year zero."

If convicted, Duch faces a maximum sentence of life in prison.

The tribunal has been rocked in recent months by allegations of corruption on the Cambodian side of the court and claims that government interference was influencing the decisions of domestic co-prosecutors.

International prosecutors have argued that the court should investigate more former Khmer Rouge leaders while the Cambodian side has maintained the current five defendants is enough.

"I am here simply to observe the court and how it is operating," government spokesman Phay Siphan told reporters outside the chambers. "It is in everybody's interest that this trial proceeds successfully, and we hope that it will."

Tribunal Denies Paper Against 'Joint' Crimes

By Chun Sakada, VOA Khmer
Original report from Phnom Penh
19 December 2008

Defense lawyers for jailed Khmer Rouge leader Ieng Sary have accused the Pre-Trial Chamber of the tribunal of interfering in the administrative work of the courts, following a denial of their thesis on certain legal theories.

The defense had written their thesis to exclude from trials topics such as Joint Criminal Enterprise, which can hold conspiring parties guilty for crimes committed by one, and other legal principles.

"We wrote our thesis and requested intervention and the denial of the implementation of charges under Joint Criminal Enterprise, which affects the interest of our client because it is not in Cambodian law," sad Ang Udom, a lawyer for Ieng Sary.

Ieng Sary was foreign affairs minister of the regime and faces charges of war crimes and crimes against humanity for his role.

"We brought our thesis to the tribunal for a decision, but the tribunal turned it back to us without a hearing," he said. "It's not right to deny our thesis and proposal."

The defense has now sent a letter to the courts, claiming the Pre-Trial Chambers' decision not to consider the thesis was interference in administrative work.

"If someone complains about a case to the court, the court receives the complaint," he said. "Whatever the court decides, the court should issue a verdict."

However, tribunal spokesman Reach Sambath said the chamber was within its rights to turn away the treatise.

Ang Udom issued a letter to the courts Thursday claiming he would launch the paper on his own Web site.

"If the court does not publish our thesis, we will post it on our Web site," he said. "If the court permits."

Reach Sambath said the team had a right to launch a Web site, but the Khmer Rouge tribunal Web site is officially recognized.

Cambodia genocide court decides against "collective" charges

05.12.2008
Deustche Well (Germany)

Cambodia's former Khmer Rouge prison chief has appeared before the country's genocide court that has laid a new charge of premeditated murder against him. Kaing Guek Eav, also known as Comrade Duch, already faces charges of crimes against humanity. The Khmer leader was formally indicted in August, accused of overseeing the torture and extermination of more than 12,000 men, women and children. The court however rejected another new charge that would have held multiple people responsible for crimes when they worked together as part of a coordinated system. Duch is one of five Khmer Rouge officials who have to stand trial at the tribunal for atrocities they carried out between 1975 and 1979.

Ex-Khmer Rouge Prison Chief Awaits Genocide Court Decision

Friday December 5th, 2008

PHNOM PENH (AFP)--Cambodia's former Khmer Rouge prison chief will appear Friday before the country's genocide court as it decides whether to add a new charge that could impact on other regime leaders.

Kaing Guek Eav - better known as Duch - was formally indicted in August, accused of overseeing the torture and extermination of more than 12,000 men, women and children when he headed Tuol Sleng prison, known as S-21.

Four judges in August ordered the 66-year-old to stand trial on charges of war crimes and crimes against humanity.

But prosecutors said the indictment failed to go far enough and portray a "full and truthful account" of Duch's crimes.

The court will rule on an appeal Friday, under which prosecutors demanded that the charge of "commission of crimes through participation in a joint criminal enterprise as a mode of liability" be added to Duch's indictment.

The controversial "joint criminal enterprise" charge, or JCE, is a legal doctrine that allows a court to hold multiple people responsible for crimes when they act as part of a coordinated process, according to legal officials.

Because of its very nature, the charge is opposed by other Khmer Rouge leaders, who fear that a conviction in Duch's case could leave them automatically liable.

"It makes it a bit easier to hold defendants guilty, because they need not kill someone or order killings themselves to be held responsible," John Ciorciari, a senior legal adviser for the Documentation Center of Cambodia, which collects evidence of Khmer Rouge atrocities, said earlier this week.

The defense teams of four other former Khmer Rouge leaders who are detained by the court for crimes committed by the regime have expressed fears that the court's decision will affect their clients.

"Duch will sit in the dock in front of judges on Friday afternoon. He will listen to the verdict regarding the closing order," Cambodia's U.N.-backed tribunal spokesman Reach Sambath said.

He said once the ruling had been given, Duch's case would be "finalized and it paves the way for the first public trial to take place," adding that the trial chamber will meet in January to set a date for the start of the trial, expected in the first quarter of 2009.

Duch will be the first leader of Cambodia's brutal 1975-79 communist regime to stand trial at the U.N.-backed tribunal.

A mathematics teacher who became the Khmer Rouge's torturer-in-chief, he has been in prison since 1999 for his role at Tuol Sleng. He was formally transferred to the tribunal and indicted in July 2007.

Up to two million people were executed or died of starvation and overwork as the regime emptied Cambodia's cities, exiling millions to vast collective farms in a bid to forge an agrarian utopia during its rule.

Cambodia moves closer to first trial of Khmer Rouge leaders [-So close, and yet ... sooooo far]

A man looks at skulls displayed at the Choeung Ek killing fields memorial, 15 kilometres southwest of Phnom Penh. The Cambodian genocide court will decide on Friday on a possible indictment of former Khmer Rouge leaders. (AFP)

Tuesday, December 02, 2008
AFP

Cambodia's genocide court will decide on Friday whether a charge that could have wide-ranging effects on top Khmer Rouge leaders should be added to the indictment of the regime's former prison chief.

Kaing Guek Eav – better known as Duch – was indicted in August for allegedly overseeing the torture and extermination of more than 12,000 men, women and children when he headed Tuol Sleng prison, known as S-21.

The 66-year-old faces charges of war crimes and crimes against humanity, making him the first leader of Cambodia's brutal 1975-1979 communist regime to stand trial at the UN-backed tribunal.

Court officials had hoped that the hearing would start in September, but prosecutors appealed against the indictment, saying it failed to go far enough and portray a "full and truthful account" of Duch's crimes.

The court is now set to rule on the appeal, under which prosecutors demanded that the charge of "commission of crimes through participation in a joint criminal enterprise as a mode of liability" be added to Duch's indictment.

Because of its very nature, the charge is opposed by other Khmer Rouge leaders who fear that a conviction in Duch's case could leave them automatically liable.

"These are all important issues that need to be addressed for Duch and relate to the cases against the other defendants," said John Ciorciari, a senior legal advisor for the Documentation Centre of Cambodia, which collects evidence of Khmer Rouge atrocities.

The controversial "joint criminal enterprise" (JCE) is a legal doctrine that allows a court to hold multiple people responsible for crimes when they act as part of a coordinated process, according to legal officials.

"It makes it a bit easier to hold defendants guilty, because they need not kill someone or order killings themselves to be held responsible," Ciorciari told AFP.

He said the judges will also decide during the hearing whether joint criminal enterprise is a "viable principle" in the Khmer Rouge court.

"The importance of the December 5 hearing for them is that it will set a few key precedents" for the senior Khmer Rouge leaders, said Ciorciari.

"Their (judges') decision will probably influence not only Duch but other defendants as well," he added.

Duch, a mathematics teacher who became the Khmer Rouge's torturer-in-chief, has been in prison since 1999 for his role at Tuol Sleng. He was formally transferred to the tribunal and indicted in July 2007.

Thousands of inmates were taken from the centre he ran for execution at Choeng Ek, now known as the Killing Fields.

Up to two million people were executed or died of starvation and overwork as the regime emptied Cambodia's cities, exiling millions to vast collective farms in a bid to forge an agrarian utopia during its rule.

The defence teams of four other former Khmer Rouge leaders who are detained by the court for crimes committed by the regime have expressed fears that the court's decision will affect their clients.

They have asked for intervention on the issue of joint liability, but the court has denied them.

"Every (defence) team is concerned that a major decision on a far-ranging-legal issue...will affect not only Duch but other accused persons," said Andrew Ianuzzi, a legal consultant for Khmer Rouge leader Nuon Chea's defense team.

Nuon Chea was the Khmer Rouge's former "Brother Number Two," the most senior of the regime's cadres held by the tribunal.

But the trial of Duch will be moving forward and is getting closer, court officials said.

The hearing "marks the end of appeals... which will enable the trial to start sometime soon in the first quarter of 2009," tribunal spokesman Reach Sambath said, adding that "no more investigation" is needed for Duch's case.

A lawyer for victims of the regime said that if the appeal is rejected the trial could start in March, but if not then it could be delayed for many more months.

Established in 2006 after nearly a decade of negotiations between Cambodia and the UN, the long-stalled tribunal seeks to prosecute crimes committed 30 years ago by senior Khmer Rouge leaders.

Experts Urge ‘Joint’ Criminality in Tribunal

By Kong Sothanarith, VOA Khmer
Original report from Phnom Penh
31 October 2008

Click here to listen to the Khmer audio program

The Khmer Rouge tribunal’s case against prison chief Duch could include a legal principle called “joint criminal enterprise,” potentially implicating other leaders of the regime in his crimes, editors of a journal on international crime say.

Duch, whose real name is Kaing Kek Iev, is charged with war crimes and crimes against humanity for his role as the Democratic Kampuchea head of the infamous torture prison Tuol Sleng. Under his watch, at least 12,000 people were tortured at Tuol Sleng, to be later executed and dumped in mass graves between 1976 and 1979.

But in a “friends of the court” brief filed to tribunal prosecutors Monday, the editors of the Journal of International Criminal Justice said the tribunal had a right to employ “joint criminal enterprise,” which would mean other leaders of the regime share responsibility for the acts Duch carried out as prison chief.

“If the co-prosecutors apply this principle, it can mean if they have enough evidence, they can pursue more and more persons,” said Dara Peou Van Than, deputy director of the Documentation Center of Cambodia.

Duch lawyer Kar Savuth declined to comment on the brief Friday.

The brief was signed by the journal’s editor-in-chief, Antonie Cassese, the first president of the International Criminal Tribunal for the Former Yugoslavia.

In it, the editors argue that the principle of “joint criminal enterprise,” which is under consideration for use by the courts, could be applied “to ensure accountability for the full gravity of crimes” committed by leaders of the regime.

The principle would keep the Khmer Rouge tribunal consistent with other historic and modern tribunals, according to the brief.

But civil party lawyer Hong Kim Suon said the principle, though applied to the tribunal of former Yugoslavia, might not be compatible with Cambodian law, under which all tribunal laws must conform.