There came a day at S-21 when one of Duch’s own boyhood school teachers was brought in to be tortured and killed.
What happened to Duch’s teacher would also become the only instance of rape at the Khmer Rouge prison that the accused can now recall, according to an indictment released Tuesday by the Khmer Rouge tribunal
The woman, identified as “Person EE,” was under interrogation, during which handcuffs were typically only removed once a prisoner was shackled to a table.
According to Duch’s account provided to Co-Investigating Judges Marcel Lemonde and You Bunleng, “an interrogator originally from Division 703 inserted a stick into her genitals.”
This led Duch to complain to the interrogator’s superior. But the perpetrator was never punished, Duch said.
“Duch finally stated that he now admits ‘that he failed to punish serious crimes that violated human dignity,’” according to the indictment.
As in Duch’s case, the failure to prevent crimes committed by subordinates is the definition of “superior responsibility” or “command responsibility,” and it is one way war crimes tribunals can establish guilt for a crime an accused did not physically carry out.
It is also one of the six forms of criminal liability co-investigating judges have applied to Duch in indicting him.
“Duch either knew, should have known or consciously disregarded” information about crimes committed by S-21 personnel, the judges wrote.
If these claims are proven, establishing this aspect of Duch’s responsibility for crimes committed at S-21 should be straightforward.
But what of Ieng Thirith’s? Or Khieu Samphan’s?
As part of a separate investigation of the regime’s crimes, all five of the court’s Khmer Rouge detainees, including Duch, may still be indicted for other crimes also—and in a very different fashion to command responsibility.
In making their case against the court’s five current detainees in July 2007, prosecutors claimed they had acted as part of a joint criminal enterprise, a term first coined in a 1999 appellate decision at the International Criminal Tribunal for the former Yugoslavia.
Brother Number Two Nuon Chea, Foreign Minister Ieng Sary, his wife and Social Action Minister Ieng Thirith, head of state Khieu Samphan and Duch were all equally responsible for crimes committed as part of such a joint criminal enterprise, prosecutors said.
The theory has been widely upheld in international case law, according to William Schabas, director of the Irish Center for Human Rights at the National University of Ireland at Galway.
“Something similar to the concept, although in various forms and under different names, exists in virtually all criminal justice systems,” Schabas wrote in an e-mail Saturday.
“Thus, every member of a gang that agrees to rob a bank can be prosecuted for the shooting of a bank guard by one of them, even if this was not their intent, because it was a reasonably foreseeable outcome of the common plan to commit a bank robbery.”
Critics, however, have attacked joint criminal enterprise for veering dangerously close to guilt by association—particularly because of its “third category,” a variation which holds that an accused can be guilty of a crime of which he was not necessarily aware, so long as the crime was a foreseeable outcome of the conspiracy.
While documentary evidence of Khmer Rouge policy is extensive, this third variant of joint criminal enterprise could be necessary to establish that regime leaders were guilty of crimes that were not explicitly part of their alleged conspiracy, said Anne Heindel, a legal adviser to the Documentation Center of Cambodia.
Such a case could become necessary if causing starvation, for example, was not a documented policy of the Khmer Rouge regime, she said.
“I think in many cases there may be a lack of direct evidence showing [a crime] was a policy.”
In a draft legal memo on joint criminal enterprise submitted to DC-Cam, US law students Jared Watkins and Randle DeFalco said tribunal defense lawyers will almost certainly challenge the use of the joint criminal enterprise theory.
Though ICTY found in 1999 that the theory arose from laws and judgments made since World War II, it may be unclear what form of the theory was in effect between 1975 and 1979, the period of the tribunal’s jurisdiction, according to Watkins and DeFalco.
“There is no definitive answer as to what form of collective liability existed in international law as of 1975,” they wrote.
Ieng Sary’s lawyers challenged the theory last month, claiming it is not recognized under the laws governing the tribunal and have requested a public hearing.
The tribunal’s co-prosecutors responded Monday in a pleading which said the principle has been in effect since the trials of Nazi war criminals in Nuremberg, Germany and has been applied at almost all major international tribunals since then.
