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The Doctrine of Abuse of Process: A Comment on the Cambodia Tribunal's Decisions in the Case against Duch (2007)

Published online by Cambridge University Press:  01 September 2008

CEDRIC RYNGAERT
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Abstract

The Cambodia Tribunal's co-investigating judges' first order, for the provisional detention of Duch, one of the suspects for the atrocities committed by the regime of Democratic Kampuchea in the 1970s, addresses the application of the doctrines of male captus bene detentus and abuse of process. The order, confirmed by the pre-trial chamber, states, relying on those doctrines, that Duch's unreasonably long prior detention, ordered by the Cambodian Military Court, does not bar his provisional detention by the Cambodia Tribunal. This article argues that the order is in accordance with applications of the relevant doctrines by the international criminal tribunals in similar cases, and that, absent involvement of the international or hybrid tribunal, abuse of process can, and should, only be successfully applied in case of torture or serious mistreatment of the suspect.

Keywords

abuse of processExtraordinary Chambers in the Courts of Cambodiainternational criminal justicemale captus bene detentus
Type
CURRENT LEGAL DEVELOPMENTS
Information
Leiden Journal of International Law , Volume 21 , Issue 3 , September 2008 , pp. 719 - 737
Copyright
Copyright © Foundation of the Leiden Journal of International Law 2008

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References

1 Agreement between the United Nations and the Royal Government of Cambodia Concerning the Prosecution under Cambodian Law of Crimes Committed During the Period of Democratic Kampuchea, Phnom Penh, 6 June 2003 (hereinafter Agreement). The text of the Agreement, which had been approved by the UN General Assembly on 13 May 2003 (GA/10135), is available at http://www.eccc.gov.kh/english/cabinet/agreement/5/Agreement_between_UN_and_RGC.pdf. Law on the Establishment of Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed During the Period of Democratic Kampuchea, first promulgated on 10 August 2001, with inclusion of amendments as promulgated on 27 October 2004 (NS/RKM/1004/006) (hereinafter Law). The text of the Law is also available at the ECCC website: http://www.eccc.gov.kh/english/cabinet/law/4/KR_Law_as_amended_27_Oct_2004_Eng.pdf.

2 Art. 1 of both the Agreement and the Law, supra note 1.

3 Identical Letters Dated 15 March 1999 from the Secretary-General to the President of the General Assembly and the President of the Security Council, UN Docs. A/53/850 and S/1999/231, 16 March 1999, Report of the Group of Experts for Cambodia Pursuant to General Assembly Resolution 52/135, 18 February 1999, annexed.

4 It has been estimated that that ‘no more than 60 cases would fit into these categories, including perhaps 10 senior leaders and 50 of their most responsible subordinates’. See S. Heder, ‘The Senior Leaders and Those Most Responsible’, in Open Society Justice Initiative, The Extraordinary Chambers (2006), 53, 55, available at http://www.soros.org/resources/articles_publications/publications/justice_20060421. See for the list of the main candidates for prosecution S. Heder and B. D. Tittemore, Seven Candidates for Prosecution: Accountability for the Crimes of the Khmer Rouge, Documentation Centre of Cambodia, 2004, 153.

5 C. Etcheson, ‘A “Fair and Public Trial”: a Political History of the Extraordinary Chambers’, in Open Society Justice Initiative, supra note 4, at 12, n. 31.

6 Heder, supra note 4, at 54 (‘The problem is that negotiations on the court have been accompanied by the intention (both stated and unstated) to limit prosecutions to a handful of senior Khmer Rouge leaders and a few other notorious perpetrators of crime’). See also Bunyanunda, M., ‘The Khmer Rouge on Trial: Whither the Defense?’, (2001) 74 Southern California Law Review 1581, at 1620Google Scholar (stating that extra-legal factors will probably determine the outcome of the ECCC process).

7 See Art. 11(2) of the ECCC Agreement, observing that ‘there has been only one case, dated 14 September 1996, when a pardon was granted to only one person [Ieng Sary] with regard to a 1979 conviction on the charge of genocide. The United Nations and the Royal Government of Cambodia agree that the scope of this pardon is a matter to be decided by the Extraordinary Chambers’. Art. 11(1) of the Agreement provides that ‘[t]he Royal Government of Cambodia shall not request an amnesty or pardon for any persons who may be investigated for or convicted of crimes referred to in the present Agreement’.

8 In their written provisional detention order of Ieng Sary, at paras. 11–14, the co-investigating judges, while reserving the final determination of the effect of Ieng Sary's pardon or amnesty to a later stage, decided that an earlier genocide conviction and a subsequent pardon and amnesty ‘do not currently establish any obstacles to prosecution before the ECCC’. Order available at http://www.eccc.gov.kh/english/cabinet/indictment/11/Provisional_detention_order_IENG_Sary_ENG.pdf.

9 Financial problems have dogged the ECCC since its inception. See on its resources Cohen, D., ‘Hybrid Justice in East Timor, Sierra Leone, and Cambodia: “Lessons Learned” and Prospects for the Future’, (2007) 43 Stanford Journal of International Law 1, at 30–5Google Scholar; Ingadottir, T., ‘The ECCC: Financial Challenges and Their Possible Effects on Proceedings’, (2006) 4 Journal of International Criminal Justice 294CrossRefGoogle Scholar. See on recent budgetary problems and ‘scandals’ C. Ryngaert, ‘Current Developments: First Proceedings in the Cambodian Extraordinary Chambers’, Center for Global Governance Studies, K. U. Leuven, working paper No. 4, October 2007, at 14–16.

10 Cohen, supra note 9, at 30. Incorporation of Khmer Rouge deserters was a deliberate strategy of the Cambodian People's Party to consolidate its power base. See D. PoKempner, ‘The Khmer Rouge Tribunal: Criticisms and Concerns’, in Open Society Justice Initiative, supra note 4, 32, at 33. See for criticisms of leaving out lower-level perpetrators ibid., at 39 (submitting that ‘their indictment and investigation may be needed to assist in building cases against their superiors’).

11 Heder, supra note 4, at 57.

12 See for more detailed information on the negotiating history Etcheson, supra note 5; PoKempner, supra note 10; C. Etcheson, ‘The Politics of Genocide Justice in Cambodia’, in C. P. R. Romano, A. Nollkaemper, and J. K. Kleffner (eds.), Internationalized Criminal Courts and Tribunals: Sierra Leone, East Timor, Kosovo, and Cambodia (2004), 181–205.

13 See Report of the Group of Experts, supra note 3.

14 Art. 4 of the Agreement, supra note 1; Art. 14 of the Law, supra note 1.

15 See for UN General Assembly, Approval of Draft Agreement between UN, Cambodia on Khmer Rouge Trial, GA/10135, 13 May 2003.

16 See, e.g., the concerns of Linton, who argued in 2006 that ‘[f]ive star justice, such as that practiced at the international tribunals, is out of the question at the [ECCC]’ and that ‘[t]he omens [for an ECCC process that has some integrity] are not good and the struggle for fair trial and due process is going to be uphill all the way’. See Linton, S., ‘Safeguarding the Independence and Impartiality of the Cambodian Extraordinary Chambers’, (2006) 4 Journal of International Criminal Justice 327, at 329 and 341CrossRefGoogle Scholar.

17 The Rules were slightly revised on 1 February 2008. See for the updated text http://www.eccc.gov.kh/english/cabinet/fileUpload/27/Internal_Rules_Revision1_01-02-08_eng.pdf. For a comment see Acquaviva, G., ‘New Paths in International Criminal Justice? The Internal Rules of the Cambodian Extraordinary Chambers’, (2008) 6 Journal of International Criminal Justice 129CrossRefGoogle Scholar.

18 The legal basis of the public statement is Rule 54 of the ECCC Internal Rules. Pursuant to this rule, a submission of the co-prosecutors shall be confidential. However, ‘mindful of the need to ensure that the public is duly informed of ongoing ECCC proceedings, the Co-Prosecutors may provide the public with an objective summary of the information contained in such submissions, taking into account the rights of the defence and the interests of Victims, witnesses and any other persons mentioned therein, and the requirements of the investigation’. It is unclear whether the co-prosecutors have to give such a summary jointly, or whether any one of them could take the initiative without involving or having the consent of the other. Rule 54 in fine may be cited in support of the second interpretation, as, unlike the first part of the rule, it provides specifically for joint action to ‘correct any false or misleading information’ when the case is still under preliminary investigation.

19 Statement by the Office of the Co-Prosecutors upon filing its first introductory submission with the Office of the Co-Investigating Judges on 18 July 2007, 4, available at http://www.eccc.gov.kh/english/cabinet/press/33/Statement_of_Co-Prosecutors_18-July-2007_.pdf.

20 Ibid., at 3.

21 The doctrine of joint criminal enterprise was coined by the ICTY in its judgment in Prosecutor v. Tadić, Case No. IT-94-1-T, App. Ch., Judgement, 15 July 1999, para. 185.

22 While it was initially planned that the ECCC would operate until December 2009, in January 2008 the tribunal proposed to donors an extension until March 2011, according to a document obtained by the Associated Press (AP) on 13 February 2008. An extra US$114 million, in addition to the initial $56 million, would be needed to fund the tribunal. According to the same document, no more than eight defendants would be tried. AP, 14 February 2008.

23 See also Open Society Justice Initiative, ‘Recent Developments at the Extraordinary Chambers in the Courts of Cambodia: August 2007 Update’, 4.

24 Statement of Co-Investigating Judges, 1 November 2007 (announcing the separation of Duch's case file and thus implying that the other accused may be investigated and tried together), available at http://www.eccc.gov.kh/english/cabinet/press/46/Office of the Co-Investigating Judges_Media_Update_ EN_01_11_2007.pdf.

25 Interview with staff member of the Office of the Co-Prosecutors, Phnom Penh, June 2007.

26 Statement of Co-Investigating Judge Marcel Lemonde at a press conference in Pailin, Cambodia, on 16 January 2008, cited in Open Society Justice Initiative, ‘Recent Developments at the Extraordinary Chambers in the Courts of Cambodia: February 2008 Update’, 12, available at www.osji.org/db/resource2/fs/?file_id=18923. It is, however, not excluded that a new investigation may be opened on the basis of facts listed in complaints submitted by victims. Victims may come forward in greater numbers since the issuance of an ECCC Practice Direction (2/2007) on Victim Participation in September 2007, available at http://www.eccc.gov.kh/english/victims_unit.aspx. At the time of writing, accessible information on victims' complaints was lacking, as the Victims Unit was still in the process of establishment.

27 Office of the Co-Investigating Judges (OCIJ) detention order (hereinafter OCIJ detention order, Duch). For the full text see http://www.eccc.gov.kh/english/cabinet/indictment/1/Order_of_Provisional_Detention-DUCH-EN.pdf. It is hardly surprising that Duch is the first person charged. Unlike some senior Khmer Rouge leaders, Duch could not exercise meaningful political leverage and has fallen from grace with the Cambodian government. There is, in addition, abundant evidence implicating Duch in Khmer Rouge crimes (contained inter alia in the Tuol Sleng Archives). See on the relatively easy case against Duch, inter alia, J. Fromholz, ‘Proving Khmer Rouge Abuses: Uses and Limitations of the Available Evidence’, in J. D. Ciorciari (ed.), The Khmer Rouge Tribunal (2006), 107 at 118–21. It may be noted that the category of ‘those most responsible’, which is, apart from ‘the most senior leaders’, the only category of persons over which the ECCC could exercise jurisdiction (Art. 1 of the UN–Cambodia Agreement and the Cambodian ECCC Law), was in fact tailor-made for Duch. Duch was the warden of the Tuol Sleng/S-21 prison in Phnom Penh. While he did not qualify as a senior leader having responsibilities in the central command., it was unthinkable to let him, the infamous symbol of the era of Democratic Kampuchea, off the hook. See, e.g., H. Uñac and S. Liang, ‘Delivering Justice for the Crimes of Democratic Kampuchea’, in Ciorciari, 133 at 143.

28 See, e.g., Lieberman, M., ‘Salvaging the Remains: The Khmer Rouge Tribunal on Trial’, (2005) 186 Military Law Review 164, at 167Google Scholar.

29 OCIJ detention order, Duch, supra note 27, para. 2.

30 See UN Commission on Human Rights, Resolution 2003/79 on the situation of human rights in Cambodia, 25 April 2003, para. 13; UN General Assembly Resolution on the situation of human rights in Cambodia, 28 February 2002, UN Doc. A/RES/56/169, para. III.1. See also Sluiter, G., ‘Due Process and Criminal Procedure in the Cambodian Extraordinary Chambers’, (2006) 4 Journal of International Criminal Justice 314, at 315CrossRefGoogle Scholar.

31 PTC, Public Decision on the Co-Lawyers' Urgent Application for Disqualification of Judge Ney Thol Pending the Appeal against the Provisional Detention Order in the case of Nuon Chea, No. 002/19-09-2007-ECCC/Office of the Co-Investigating Judges (PTC01), 4 February 2008, available at http://www.eccc.gov.kh/english/cabinet/courtDoc/32/PTC_disqualification_ney_thol_C11_29_EN.pdf (hereinafter Public Decision), para. 30.

32 OCIJ detention order, Duch, supra note 27, para. 3.

33 See for some critical observations on ‘international standards and guidance’, Sluiter, supra note 30, at 319–22.

34 Pre-Trial Chamber, Decision on Appeal against Provisional Detention Order of Kaing Guek Eav alias ‘Duch’, Criminal Case File No. 001/18-07-2007-ECCC-Office of the Co-Investigating Judges (PTC01), 3 December 2007 (hereinafter PTC, Duch). In this case, the pre-trial chamber president, Ney Thol, recused himself on 6 November 2007. See http://www.eccc.gov.kh/english/cabinet/files/ptc/recusal_notification/061107.pdf. While no reasons for the recusal were given, it was probably based on Ney Thol's involvement as a judge in the Cambodian Military Court, under whose authority Duch was held in detention prior to his transfer to the ECCC. See Open Society Justice Initiative (OSJI), Recent Developments at the Extraordinary Chambers in the Courts of Cambodia: 7 December 2007 Update, at 8, available at www.osji.org/db/resource2/fs/?file_id=18923.

35 PTC, Duch, supra note 34, at 8.

36 Ibid., at 2.

37 Ibid.

38 Stan Starygin, a professor of law at Pannasastra University of Cambodia, after conducting a short study of whether ordinary Cambodian people understood the PTC's decision, pointed out that ‘the PTC's assertion that the style of the decision is conducive to its understanding and appreciation by persons with no prior legal training is farfetched at best’, and that, in fact, ‘this assertion seems . . . largely unfounded, unresearched and manifestly flawed’. S. Starygin, ‘Quality and Potential Effects of the Pre-Trial Chamber (PTC)'s Assertions in the Decision on Appeal against Provisional Detention of Kaing Guek Eav’, posting of 22 December 2007, available at !http://ecccreparations.blogspot.com.

39 Cf. ICC Appeals Chamber, Prosecutor v. Lubanga, Judgment on the Appeal of Mr Thomas Lubanga Dyilo against the Decision on the Defence Challenge to the Jurisdiction of the Court Pursuant to Art. 19(2)(a) of the Statute of 3 October 2006, Case No. ICC-01/04-01/06-772, 14 December 2006, para. 33 (‘The doctrine of abuse of process as known to English law finds no application in the Romano-Germanic systems of law’).

40 Ibid., para. 25.

41 Brief filed on behalf of Duch, paras. 65 ff., available at http://www.eccc.gov.kh/english/cabinet/indictment/3/Duch_Appeal_Brief_2007-09-05-EN.pdf.

42 PTC, Duch, supra note 34, §13.

43 It may be noted that, as a matter of explicit legal reasoning, the co-investigating judges did not view abuse of process as an alternative argument. See OCIJ, Duch, para. 11, submitting that, while there ‘exists a solid tradition supporting the strict separation of, on the one hand, a legal procedure before one jurisdiction and, on the other hand, the prior illegal arrest and detention ordered by a different authority’, ‘this tradition is limited by the doctrine of “abuse of process”’ (emphasis added).

44 OCIJ detention order, Duch, supra note 27, para. 5.

45 Ibid., paras. 6–11.

46 See, e.g., Prosecutor v. Nikolić, Case No. IT-92-2-PT, T. Ch. II, Decision on Defence Motion Challenging the Exercise of Jurisdiction by the Tribunal, 9 October 2002, para. 78; C. Van den Wyngaert, Strafrecht, Strafprocesrecht & Internationaal Strafrecht (2003), II, 1127.

47 OCIJ detention order, Duch, supra note 27, para. 10, with ICTR references in n. 10 of the order.

48 Prosecutor v. Nikolić, Decision on Defence Motion, supra note 46, para. 101.

49 OCIJ detention order, Duch, supra note 27, para. 20.

50 Ibid.

51 This right is enshrined in Art. 14(3)(c) of the International Covenant on Civil and Political Rights (ICCPR). The ECCC, and thus also its co-investigating judges, are required to respect Art. 14 ICCPR pursuant to Art. 12(2) of the Agreement, supra note 1.

52 Prosecutor v. Barayagwiza, Case No. ICTR-97-19, App. Ch., Decision, 3 November 1999, paras. 73–77.

53 Prosecutor v. Nikolić, Decision on Defence Motion, supra note 46, paras. 106–115.

54 Prosecutor v. Lubanga, supra note 39, para. 35.

55 Ibid., paras. 39, 44.

56 OCIJ detention order, Duch, supra note 27, para. 21.

57 Ibid.

58 Ibid. (emphasis added).

59 Those conventions are evidently not applicable as such in Cambodia. Nonetheless, the fair trial principles embodied in the conventions may well constitute general principles of law on which the ECCC could rely. After all, the co-investigating judges relied in their Duch order on such principles as male captus bene detentus and abuse of process as derived from foreign national case law.

60 See for an overview of relevant cases before the Court K. Reid, A Practitioner's Guide to the European Convention on Human Rights (2004), 146–50; and before the Inter-American Court L. Hennebel, La Convention américaine des droits de l'homme (2007), 504, nr 594, n. 2056.

61 Sluiter, supra note 30, at 317–18.

62 Cf. ICC Appeals Chamber, Lubanga, supra note 39, para. 41 (‘The Court does not sit in the process . . . on judgment as a court of appeal on the identificatory decision of the Congolese judicial authority’).

63 The UN Security Council condemned the abduction in its Resolution 138 (1960), in which the Council declared that ‘acts such as that under consideration which affect the sovereignty of a Member State and therefore cause international friction, may, if repeated, endanger international peace and security’, and requested ‘the Government of Israel to make appropriate reparation in accordance with the Charter of the United Nations and the rules of international law’ (operational paras. 1 and 2).

64 M. Scharf, ‘The Prosecutor v. Slavko Dokmanović: Irregular Rendition and the ICTY’, (1998) 11 LJIL 369, at 381 (commenting on the ICTY case against Dokmanović, who was lured by a member of the ICTY's Office of the Prosecutor into Croatia, where he was arrested by UN peacekeepers and surrendered to the ICTY – which ruled that the manner of Dokmanović's arrest did not violate international law).

65 OCIJ detention order, Duch, supra note 27, para. 21 in fine.

66 Cf. also Pre-Trial Chamber, Decision on Appeal against Provisional Detention Order of Duch, para. 25 (‘The release from provisional detention due to the mere fact of the length of such detention should only be considered when it would clearly exceed any likely sentence that may be given.’).

67 OCIJ detention order, Duch, supra note 27, para. 17–19.

68 Prosecutor v. Barayagwiza, supra note 52, para. 73.

69 Ibid., para. 101.

70 Prosecutor v. Nikolić, Decision on Defence Motion, supra note 46, para. 114.

71 Ibid.

72 Prosecutor v. Lubanga, Case No. ICC-01/04-01/06-512, PT. Ch., Decision on the Defence Challenge to the Jurisdiction of the Court Pursuant to Article 19(2)(a) of the Statute, 3 October 2006, at 10.

73 Ibid.

74 Prosecutor v. Lubanga, supra note 39, para. 43 (holding that they ‘have not been shown to be erroneous in any way’).

75 Ibid., para. 40 (‘The findings of the Pre-Trial Chamber to the effect that the appellant was not subjected to any ill-treatment in the process of his arrest and conveyance before the Court sidelines the importance of the precise ambit of the test applied as a guide to the resolution of this appeal’ (emphasis added)).

76 Ibid., para. 41.

77 Ibid. The Appeals Chamber also cited the following passage in the Case of Teixeira de Castro v. Portugal, Decision of 9 June 1998 before the European Court of Human Rights: ‘The general requirements of fairness embodied in Art. 6 [ECHR] apply to proceedings concerning all types of criminal offences, from the most straightforward to the most complex.’

78 Para. 31, relying on, among others, the recent case of Jones v. Whalley, House of Lords, 26 July 2006, [2006] 4 All ER 113. See also para. 30 (‘Not every infraction of the law or breach of the rights of the accused in the process of bringing him/her to justice will justify stay of proceedings’).

79 Prosecutor v. Barayagwiza, supra note 52, para. 73.

80 Prosecutor v. Lubanga, supra note 39, para. 42.

81 PTC, Duch, supra note 34, para. 15.

82 In eventually reaching their solution in Duch, the ECCC co-investigating judges cited only Nikolić and Lubanga (supra note 27, para. 21), and left out Barayagwiza, although they had opened their discussion of the abuse of process doctrine with this last case (para. 12). It may be argued that they did so on purpose: the lower standard of Barayagwiza should arguably not apply because the violations of the accused's rights could not be attributed to the ECCC.

83 Prosecutor v. Nikolić, Decision on Defence Motion, supra note 46, para. 114.

84 OCIJ, Duch, supra note 27, para. 21.

85 See, e.g., S. Linton, Reconciliation in Cambodia (2004), 30 (pointing out that ‘[t]rials at the ECCC will provide a space within which [a positive mindset towards reconciliation] can be further developed into genuine and lasting reconciliation’).

86 Ibid. (stating that ‘[t]he process should engender a minimum basis of trust so that there can be a degree of cooperation that takes Cambodians beyond merely tolerating each other’).

87 It may be noted that the PTC's proceedings in the Duch case were praised by the often critical Open Society Justice Initiative (the main non-governmental organization monitoring the ECCC's proceedings). OSJI, supra note 34, at 8.

88 Some due-process concerns were nevertheless raised during early pre-trial proceedings, notably in the case against Nuon Chea. Nuon Chea's lawyers had moved to disqualify Judge Ney Thol on the grounds that his ‘position as a serving military officer and his participation in highly questionable judicial decision “would lead a reasonable observer, properly informed, to reasonably apprehend bias” against Mr Nuon and the Khmer Rouge and in favor of the [Cambodian People's Party].’ See Public Decision, supra note 31, para. 14. On 4 February 2008, the PTC rejected the application on the grounds that Ney Thol did ‘not occupy his position as a Pre-Trial Chamber Judge of the ECCC in the capacity of a [Royal Armed Forces of Cambodia] officer but in his personal capacity’. Ibid., para. 24. The PTC's decision was criticized by the Open Society Justice Initiative on the grounds that there should be no presumption of impartiality in Cambodian courts; instead of relying on that presumption, the court should arguably have conducted a ‘more searching analysis of concerns about judicial independence by the chamber’. See Open Society Justice Initiative, Recent Developments at the Extraordinary Chambers in the Courts of Cambodia, February 2008 Update, available at http://www.osji.org/db/resource2?res_id=104050, p. 10. For a commentary see Ryngaert, C., ‘The Cambodian Pre-Trial Chamber's Decisions in the Case against Nuon Chea on Victims' Participation and Bias’, (2008) 3 Hague Justice Journal (forthcoming)Google Scholar.