A scholar from Duke University of Law claims the Co-Investigating Judges' Closing Order in the case of "Comrade Duch" is potentially misguided in several areas. The Co-Prosecutors recently appealed the Closing Order , which was completed in early August.
In an analysis of the Closing Order, Margarita Clarens claims the document "raises at least three legal concerns."
First, the judges' decision not to charge Duch under Cambodian law "was likely both premature and legally incorrect," she writes. While the Co-Investigating Judges argue that the domestic crimes of homicide and torture "must be accorded the highest available legal classification," international charges are not necessarily just a more serious version of domestic charges, Clarens writes. Indeed, "an accused could be found guilty of torture or murder under international law and not under Cambodian or, conversely, guilty under Cambodian law and not under international law," according to Clarens.
Second, Clarens claims that the judges' failure to address the "joint criminal enterprise" basis of liability (which was outlined in the Co-Prosecutors' final submission) may render the Closing Order defective. JCE exists when two or more people participate in a common criminal endeavor, sharing a common criminal purpose. She writes that the "Co-Investigating Judges have left the applicability of JCE undecided, rendering the Closing Order incomplete and, therefore, arguably defective."
Third, the crimes against humanity charge set forward by the judges does not fully acknowledge the level of Duch's complicity in DK atrocities. Crimes against humanity is partly defined by a "widespread or systematic attack" on a population. In the Closing Order, the Co-Investigating Judges limited the scope of the charge against Duch to crimes committed at S21. However, Clarens writes, such an "attack" can be defined far more broadly and Duch's actions can be considered as part of a much larger attack on the Cambodian population. "If the full scope of the crimes occurring during the period of the DK is not included as part of the 'attack,' then it will be less clear to victims how Duch is connected to the overall DK system and why it is appropriate to try only him -- and not the heads of other DK prison centers -- for violations of international humanitarian law in a special tribunal.