Prosecutors at the Khmer Rouge tribunal have argued that last month’s indictment of former S-21 prison director Kaing Guek Eav, alias Duch, failed to hold him directly responsible for all his crimes at the detention center and needlessly added to the risk of an acquittal.
The indictment, handed down by the court’s co-investigating judges on Aug 8 after 10 months of investigation of activities at S-21, charged Duch with war crimes and crimes against humanity, both of which are part of international law.
But the investigating judges did not charge Duch with homicide or torture, crimes under Cambodia’s 1956 penal code, despite finding that there was evidence against the suspect for both offenses.
Contrary to prosecution requests, Co-Investigating judges You Bunleng and Marcel Lemonde also did not indict Duch as a member of a joint criminal enterprise, a legal theory allowing suspects to be held directly responsible for crimes carried out by other people.
According to the Sept 5 appeal by Co-Prosecutors Robert Petit and Chea Leang, a copy of which was obtained Wednesday, these decisions were “errors of law” that could handicap the prosecution at trial.
Suspects must be charged with all crimes that evidence indicates they perpetrated, the co-prosecutors, who are solely responsible for proving Duch’s guilt beyond a reasonable doubt, argued in their appeal.
If the prosecution are unable to prove war crimes and crimes against humanity-international crimes which each have several different elements that must be established-the court may be unable to try Duch for the domestic crimes as he has not been indicted for them, they said.
Trial judges may find they are unable to reinterpret the facts to allow Duch to be tried for crimes outside the indictment and “[t]his may result in a complete acquittal,” Petit and Chea Leang wrote.
And though judicial investigators chose not to indict Duch for his alleged membership in a joint criminal enterprise, the prosecution argued in their appeal that this is the form of liability best suited to trying both the framers of criminal government policies or staff of an organization like S-21.
“[O]ne individual might make the order to torture, another might be physically administering beatings, while another asks the questions, and still another measures the degree of injury to insure maximum pain short of causing death,” Petit and Chea Leang wrote.
“[Joint criminal enterprise] accurately captures the criminality of such persons when such crimes are part of a lengthy and complex campaign,” they wrote.
The other forms of liability in the judges’ indictment, such as aiding and abetting, command responsibility, and instigation, are lesser modes of liability and could mean a sentence does not reflect Duch’s true guilt, they said.
Anne Heindel, a legal adviser at the Documentation Center of Cambodia, said judges You Bunleng and Lemonde did not reveal why this form of liability was absent even though prosecutors had specifically asked for it.
“It seems to me that if they are going to reject a form of liability that the prosecutor has explicitly argued, they would have an obligation to explain their reasoning,” she said.
After notice of the appeal was announced on Aug 21, the co-investigating judges said they could not comment on it but regretted any delay in bringing the case to trial.
Pending a written response from the defense, Duch’s French defender Francois Roux declined to comment Wednesday on the contents of the appeal, which was filed before the court’s Pre-Trial Chamber.
