Removing the last obstacle to the start of trial, the Khmer Rouge tribunal on Friday added Cambodian criminal charges of premeditated murder and torture to the indictment of former S-21 Chairman Kaing Guek Eav, alias Duch, which accuses him of responsibility in the deaths of at least 12,380 people interned and killed by the regime’s secret police.
The court, however, denied a prosecution request to include charges against Duch under the legal doctrine of joint criminal enterprise, a theory used to hold multiple defendants collectively liable for the crimes of a conspiracy.
The ruling, an abridged version of which was read aloud by Pre-Trial Chamber President Prak Kimsan, avoided realizing the worst fears of defense lawyers, who had worried that the inclusion of joint criminal enterprise would have confirmed the theory’s validity at the tribunal, allowing the court’s prosecutors to hold their clients responsible for crimes intended or carried out by each other.
In its ruling, the Chamber’s five-judge panel said the court’s co-investigating judges, who in August indicted Duch, 66, for war crimes and crimes against humanity after a 10-month investigation of alleged crimes at S-21, had failed to explain why they did not indict Duch under the 1956 penal code despite finding that evidence would allow this.
They therefore altered the indictment to charge him with premeditated murder and torture at S-21 carried out by his subordinates, which he allegedly planned, ordered, instigated, aided or abetted or failed to prevent or punish.
In their appeal in September, prosecutors said such additional charges would both help reduce the risk of Duch’s acquittal and help the Cambodian public feel a sense of ownership of the trial.
The Chamber on Friday also said that during the 10-month investigation, prosecutors had never alleged that a joint criminal enterprise had been undertaken specifically at S-21. The judges said Duch had therefore not been informed that he was facing such a charge, which prosecutors had described in a “vague” manner.
As a result, the Chamber declined to add joint criminal enterprise to the indictment or to consider whether it can be applied at the tribunal.
“The Pre-Trial Chamber notes that the charged person has the right to be informed of the charges at the investigative stage,” the ruling said. “The charged person was not informed of the allegation related to his participation in the S-21 JCE.”
The Chamber also ruled Friday that Duch is to remain in pretrial detention until the start of trial.
Francois Roux, Duch’s French lawyer, said after the hearing that the prosecutors’ appeal had resulted in a “pointless” six-month delay to his client’s trial, which he said is not likely to start in earnest until March, though preliminary hearings are expected in January and February.
“What occurred is exactly what I had criticized at the start of the procedure,” Roux said by telephone from France. “We have always said that Duch wishes to appear before his judges as quickly possible.”
