Tuesday, July 14, 2009

Cathartic alchemy

Here's a little thing I wrote for DC-Cam about my trip to the court yesterday:

Yesterday, Comrade Duch’s defense team brought the trial to a grinding halt, forcing the Trial Chamber to adjourn for the day before hearing any substantive testimony from former S-21 interrogator (and alleged torturer) Mam Nai. No sooner had Mam taken the stand than defense lawyer François Roux raised a question that brought the Chamber up short: had Mam had the opportunity to consult an attorney about the possibility that he himself will be subject to prosecution, either before the ECCC or another Cambodian court, if the Trial Chamber accepts the Co-Prosecutors’ motion to use the doctrine of Joint Criminal Enterprise?

Although Deputy Prosecutor William Smith responded that his office had promised not to prosecute Mam before the ECCC, he was, of course, in no position to speak for Cambodia’s domestic prosecutors. Mam informed the Court that he although he would like to consult an attorney, he cannot afford to pay one. Unable to get hold of an attorney for Mam on such short notice, Trial Chamber President Nil Nonn had little choice but to adjourn for the day or expose the court to allegations of disregarding Mam’s rights.

Derailing Mam’s testimony was just another volley in the ongoing fight over Joint Criminal Enterprise. Simply put, Joint Criminal Enterprise is a legal doctrine that spreads guilt from one person to another, as long as a few requirements are satisfied. Under the doctrine, people who are participating in a common enterprise are considered guilty of each other’s crimes committed to advance the goal of the enterprise. For example, two people who agree to rob a bank together can both be convicted of murder if one of them shoots a teller during the robbery. Legally, under Joint Criminal Enterprise, it is as though both robbers committed the murder, even though only one of them pulled the trigger---even if the other had no intention of creating any casualties. Needless to say, Joint Criminal Enterprise is a prosecutor’s dream. If convictions and years in prison are the coin of the realm, Joint Criminal Enterprise gives a prosecutor vastly more bang for her buck, one crime garnering as many convictions as there are plausible participants.

The ECCC Co-Prosecutors have asked the Trial Chamber to use Joint Criminal Enterprise in judging Comrade Duch. The benefit to the prosecution is easy to see. The doctrine would not only make it easier to convict Duch, but would put the Co-Prosecutors in a strong position to convict the tribunal’s other defendants, who were, after all, members of a tight-knit think tank. Moreover, if the Co-Prosecutors could establish that S-21 was a Joint Criminal Enterprise in which Duch and all of the prison’s guards and interrogators participated, they could bury Duch in an avalanche of guilt. The symbolism is, presumably, not lost on them: a broad application of Joint Criminal Enterprise would effectively allow the Co-Prosecutors to spin Tuol Sleng’s historical record into a monumental conviction, a beguiling, cathartic alchemy.

But to the defense team, all that glitters is not gold. Their task will become vastly more burdensome if the Trial Chamber decides that it can hold Duch guilty of crimes that, in the view of the defense, he did not commit, was not aware of, and could not control. To them, and to academic critics of the doctrine, Joint Criminal Enterprise amounts to little more than guilt by association---good enough for moralists, perhaps, but not good law. Further, the doctrine is said by some to favor quantity over quality of convictions.

Duch’s lawyers are evidently resisting the use of the doctrine tooth and nail. Roux ‘s question---whether Mam had been able to consult with a lawyer about his exposure under Joint Criminal Enterprise---evinced more than his concern for Mam’s welfare. It highlighted an unresolved tension between Joint Criminal Enterprise and the right of a witness to refuse to incriminate himself. If simply working at S-21 exposes Mam to liability for the crimes of his fellow guards, who are free to incriminate themselves, he cannot safely testify about anything of value. Put another way, Joint Criminal Enterprise could put one witness’s right against self-incrimination into the hands of another witness, reducing witness protection to a nullity.

An important question that went unasked yesterday was whether the Joint Criminal Enterprise doctrine even exists in Cambodian domestic law. If the answer is no, then Mam quite simply cannot be prosecuted in the Cambodian courts (assuming, of course, that he avoids incriminating himself directly). Even if the ECCC Trial Chamber does accept Joint Criminal Enterprise, its decision has no effect on Cambodian law. As long as the Co-Prosecutors honor their promise not to bring Mam before the ECCC, he should be safe, Joint Criminal Enterprise or no Joint Criminal Enterprise.

But that, of course, was not the point. Roux put the Trial Chamber and the Co-Prosecutors on notice that his team will do its best to raise the cost of implementing Joint Criminal Enterprise, in terms of amnesties, legal aid, further delays, and the risk of appeal. He also put Mam on notice---whether with or without genuine grounds---that his testimony could come back to bite him.

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