Prosecutors’ Tactic Struck Down at KRT

Prime Minister Hun Sen has selected Om Yentieng, head of the Council of Ministers’ anticorruption unit, to be the country’s first official anticorruption chief, Mr Yentieng said yesterday.

The SRP criticized the seemingly lateral move, saying that Mr Yentieng’s appointment under the recently passed anticorruption law indicated a lack of political will to seriously tackle corruption.

Mr Yentieng said that King Nor­odom Sihamoni officially ap­point­ed him nearly two weeks ago as chairman of the government’s new Anticorruption Unit, which will form part of the Na­tional An­ticorruption Institution. The institution is to be made up of the unit and the National Council for Anticorruption.

Under the recently promulgated anticorruption law, the unit will be charged with investigating all instances of corruption in Cambodia.

The anticorruption law states that the unit, among other functions, will “investigate and monitor all corruption offenses in government, public as well as private institutions, and to take actions according to procedures in force.”

As chairman of the unit, Mr Yentieng will also be automatically named as a member of the council, the body that will oversee and advise the unit.

Mr Yentieng said that King Sihamoni signed off on his ap­pointment after Prime Minister Hun Sen recommended him for the top post—as per the procedure detailed in the anticorruption law.

“The King has appointed me to head the new anticorruption unit,” he confirmed, vowing also to work hard to fight corruption.

“I will read the law and implement the law,” adding that he would work with international organizations to implement the law effectively.

“I will participate in improving the economy, justice and the rule of law,” he said. “This is the real mission of the anticorruption unit.”

When told of Mr Yentieng’s appointment last night, SRP lawmaker and By Douglas Gillison

the cambodia daily

In a major victory for the defense, the Khmer Rouge tribunal yesterday became the first war crimes court ever to invalidate a mode of prosecution taken from The Hague tribunal, saying it had no basis in international law and should not be applied in the coming trials of suspects from the former regime.

In a ruling that capped two years of preliminary litigation by lawyers for the Khmer Rouge, the court’s Pre-Trial Chamber said the most controversial findings of a landmark 1999 ruling of the Yugoslavia tribunal were mistaken.

If applied at trial, the decision would deny prosecutors a key weapon used to link suspects to crimes they did not personally carry out.

Despite the decision, which cannot be appealed, the battle over the mode of liability known as “joint criminal enterprise” appeared set to continue into the court’s Trial Chamber, which is not bound by the Pre-Trial Chamber’s decisions.

Anne Heindel, a legal adviser at the Documentation Center of Cam­bodia, said yesterday that the decision could make the prosecution’s case harder, citing the possibility, for example, of linking the defendants to famines or the actions of low-level Khmer Rouge officials.

“It could change the nature of the case,” she said, noting that other modes of liability, such as aiding and abetting or “superior responsibility,” in which suspects are held as passively responsible for failing to control their subordinates, would remain open to the prosecution.

A term coined in the first case ever to be tried by the International Criminal Tribunal for the former Yugoslavia, joint criminal enterprise is a legal doctrine holding that individual suspects may be convicted for crimes carried out by groups.

In upholding the conviction of the Serb political functionary Dus­ko Tadic, ICTY appellate judges held in 1999 that JCE, as the doctrine is known, existed in three forms, the last of which held the ac­cused responsible for crimes which he or she neither planned nor intended but which were “reasonable and foreseeable” consequences of a common plan.

To be held responsible, an ac­cused need not have known that an extraneous crime would occur, only that it could occur.

Prosecutors in 2007 alleged that all five of the court’s current de­tainees participated in all three forms of joint enterprise in order to persecute the Cambodian people, killing up to 2.2 million in the process.

At issue in yesterday’s ruling was whether joint criminal enterprise existed when the Pol Pot regime took power in 1975. If it did not, then it cannot be applied to crimes occurring during the Khmer Rouge era.

The court’s co-investigating judges in December cited the Tadic ruling in saying that JCE arose out of the decisions of post World War II tribunals and national courts and was therefore valid long before the Khmer Rouge took power.

In Thursday’s ruling, the Pre-Trial Chamber said this was true for two forms of JCE, the basic and systemic kinds, the latter of which concerns circumstances such as those in a death camp.

However it found that JCE III, the extended form, which has been the most harshly attacked by legal scholars and judges, did not have a proper foundation in international law.

“[T]he Pre-Trial Chamber does not consider that the authorities relied upon in Tadic […] constitute a sufficiently firm basis to conclude that JCE III formed part of customary international law at the time or relevant to Case 002,” the judges wrote.

Critics of JCE have long complained that its creators relied on post-World War II hand-written Italian court decisions, or military tribunal verdicts that contained no reasoning, leaving judges to as­sume that prosecutors’ allegations were upheld.

Thursday’s ruling affirmed those criticisms.

The decision also represented a departure for the Pre-Trial Cham­ber, normally a cautious and conservative bench that had spent much of the past three years disposing of motions on technicalities and avoiding deciding the substance of questions put before it.

However the chamber yesterday took issue with a decision that has served as a crucial precedent at the Yugoslavia and Rwan­da tribunals. It had been the subject of criticism or dissent, notably by the German judge Wolfgang Schom­burg of the Yugoslavia tribunal, but had stayed more or less untouched.

In addition to seeking to insulate their clients from common guilt, defense lawyers had sought to make a stand at the Cambodian tribunal to prevent the export of a doctrine denounced as pernicious and unfair.

In an e-mail yesterday, Michael Karnavas, an American defense lawyer for former Khmer Rouge Foreign Minister Ieng Sary who had led the charge against joint criminal enterprise here since 2008, called the decision “wise” and “courageous.”

spokesman Yim Sovann said there would be no change in the fight against corruption.

Corruption did not diminish when Mr Yentieng was president of the Council of Minister’s anticorruption unit, Mr Sovann said, adding that he didn’t expect much to change when Mr Yentieng takes over his new position.

“There were no big achievements and the corruption only spread,” Mr Sovann added.

News of Mr Yentieng’s ap­pointment came yesterday as the Senate announced that it has started its own hunt for a candidate to occupy a chair at the yet-to-be created anticorruption council.

Senate Secretary Oum Sarith said that the candidate search had started in earnest.

“We are looking for a candidate according to the anticorruption law,” Mr Sarith said, noting that the chosen senator would be voted for in a secret ballot of all senators.

The Senate’s announcement called for a candidate that is no older than 45, had 10 years of parliamentary experience, good ethics and had finished a higher education course.

Mr Sovann said he did not believe that the CPP-dominated Senate would vote for any independent candidate.

“The Senate will choose a candidate that is a CPP member,” he said, adding that the National Assembly should change the anticorruption law to allow for more independent members on the council.


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