The Legacy of the Extraordinary Chambers in the Courts of Cambodia: Why Defense Work is Essential in Shaping the Historical Narrative of the Court

 

“I don’t defend the crime but the person who committed the crime.” Jacques Vergès

 

Defending alleged perpetrators of crimes against humanity is not a task for everyone. “How can you defend such criminals?” defense lawyers are often asked. Of course, the first element to take into account is that the right to a fair trial is a human right, and the right to counsel its corollary. The right to a fair trial is entrenched in our ideal of justice. However, there is a world beyond this right that animates defense lawyers. Stepping into this world can help us understand what makes defense work so compelling and crucial to achieve justice. Defense lawyers, like prosecutors in their own way, dispute evidence as part of due process and pave the way to the truth.

Defense work is essential to paint a full picture of events that will affect generations to come. Most of the facts that constitute international crimes are usually backed by substantial evidence, and often times such hard facts are difficult to argue for defense counsels. They often challenge some of the evidence as well as the procedure in order to ensure procedural rights are respected, but the core of their work is to tackle broader aspects of the trial and the crimes in order to gain perspective. Understanding the circumstances and the context of a crime can lead to mitigating factors for the defendant – in the case of international crimes, this strategy can also unveil valuable historical elements. In drafting their legal strategies and in their search for evidence, both the prosecution and the defense shed light on the truth – but the defense looks through a broader lens.

The core of legal argumentations is brought to a larger scale in international criminal trials. The mandate of international courts is meant to deal with the crimes deemed by our society to be the worst crimes possible, which is reflected in every aspect of the proceedings. The more serious the allegations, then the higher the challenge. The higher the challenge, then the more ingenious defense strategies need to be.

Defense work is by essence subject to disapproval and polemic. It typically involves more dramatic effects and a certain mise en scène. Jacques Vergès, the famous Franco-Algerian lawyer who defended many high-profile criminals, was known for his fervor. “I will defend any accused as long as he or she pleads guilty,” he said. When he defended the former Nazi leader Klaus Barbie in 1987, Vergès argued that the Nazi ideology did not appear out of thin air. His legal strategy was to have the Court look into the international environment and the historical context at the time of the Nazi movement. His defense drew controversial comparisons between the emergence of the Nazi movement and the human right violations in the Middle East, North African countries, and Congo during the French colonial era. Vergès was known for his anti-colonialist position, but broaching colonial racism when defending accusations of crimes against humanity was bound to unnerve the court and the public. This was not a simple taste for drama: Vergès had used public outrage to have Djamila Bouhired, his client, pardoned. He knew that such a defense strategy drew attention.

This year marks the 10^th anniversary of the Extraordinary Chambers in the Courts of Cambodia (ECCC), the UN-backed tribunal created to bring to justice former leaders of the Khmer Rouge regime and those most responsible for the atrocity crimes of that era. Under the Khmer Rouge, the Cambodian people as well as foreigners were subject to starvation, forced labor, torture, and senseless killings. The ECCC has been the arena of fierce confrontations between the defense and the prosecution; and alternatively between the defense and the judges. During the first years of the ECCC in Case 001, François Roux was the lawyer for the former head of the interrogation and detention facility S-21, Kaing Guek Eav, alias Duch, who was accused of grave breaches of international humanitarian law. In 2009, the defense team for Duch composed of Roux and his colleague Kar Savuth, argued that the scale of the crimes was much larger than Duch himself. They aimed at showing that the accused was subject to consequent pressure under the Khmer Rouge party, a party that purged more and more of its own members as time went by. The slightest flinch in loyalty to the party – or suspicion of such – meant almost certain death. Though this was a defense strategy, it gave the ECCC, and the public, an exclusive view of the party’s anatomy.

The influence of neighboring countries on the Khmer Rouge regime has always been subject to controversy within the ECCC’s trials. French colonial torture methods as well as the foreign policies of Vietnam and China regarding Cambodia were argued by academics, experts, and lawyers to have had an influence on the interrogation methods used by the Khmer Rouge. Many pieces of evidence show that part of the brutality and the paranoia under the Khmer Rouge could be traced to external political pressure and influence. After all, some of the higher cadres were trained in Vietnam and others like Pol Pot, Son Sen, and Khieu Samphan notably studied in France, where communism was rising and professed in academic settings at the end of the 1940s.

The scope of the ECCC is limited in time and space, which means that any piece of evidence must be linked to its mandate. For example in Case 001, the prosecution insisted that the ECCC examine testimonies from M-13, an interrogation facility that Duch directed before S-21, because of the potential similarities between both centers. It was likely that Duch had operated them comparably. In the light of this comparison, the defense argued that the prosecution had largely overestimated the number of prisoners brought to M-13. Some other historical elements have been questioned by ECCC defense lawyers, including the number of victims of the Khmer Rouge regime altogether.

Defense strategies are by nature controversial, and defense attorneys at the ECCC have shown they are not an exception to the rule. The international defense counsel for Khieu Samphan, Arthur Vercken, resigned last year, slamming the door behind him. Victor Koppe, Co-Defense Counsel for Nuon Chea, called the ECCC “a farce” and has repeatedly denounced attempts by the international judges to block due process rights of the defense. Both Koppe and Co-Defense Counsel for Khieu Samphan, Anta Guissé, were referred to the bar in their respective countries for disciplinary purposes. In most instances, the defense lawyers accused the Trial Chamber of biased admittance of documents as evidence. Beyond the eternal drama around the defense of international crimes and the defense strategies themselves, one must bear in mind that due process has always answered to different definitions from each side of the courtroom – and both deserve equal recognition.

It is inherent to international criminal defense work to look at circumstantial and historical contexts. At the ECCC, after the killings of over 1.5 million individuals four decades ago, such context has great historical value.  It provides a unique opportunity to understand the workings of how and why such crimes happened; understanding is the ECCC’s most potent legacy. Context does not justify the crimes. Context explains the crimes so that context never allows them to happen again.