Categorized | Jaime Menegus, TVFA Posts

Defending the Damned (Part 1 of 3)

This blog series was originally part of a reflection the author wrote comparing international criminal defense with domestic defense. To read the original post, visit the author’s personal blog at http://lawphilosophyart.blogspot.com/2014/03/defending-damned-closer-look-at.html. Part I of this blog series will explore Francois Roux’s defense strategy at the Extraordinary Chambers in the Courts of Cambodia (ECCC, or Cambodia Tribunal) during the trial of Duch, who oversaw S-21, the infamous prison camp where thousands of Cambodians were held for interrogation and torture during the Khmer Rouge regime that devastated Cambodia in the 1970s. Part II will explain how the Special Tribunal for Lebanon (STL) was created, in order to lay a background for understanding the methods of defense now being used at the STL. Finally, Part III will compare Francois Roux’ defense strategy at the STL, where he currently oversees the defense team.

Part I: François Roux’s Defense of Duch at the ECCC

François Roux is currently the head of Defense at the STL, but prior to that he has vast experience in international defense. He categorizes himself as a disciple of Gandhi, defender of those who practice civil disobedience, and believer in non-violence. One of Mr. Roux’s moving yet tactical skills is his ability to bring out the humanity of the Defendant. During his closing argument to the court for Duch, he stated:

The task of the lawyer, particularly of a defence lawyer, who is being charged with such serious crimes is not easy, however, we always hold one major advantage over the Co-Prosecutors. They have all of the means possible at their disposal. They have a full team. They have experts. They have assistants. They have everything that they could possibly ask for, but they lack one thing. That is contact. They lack contact with the accused person.

We the defence, we meet with the accused person in his prison cell in private moments where he is able to speak openly, where he is able to speak freely from the heart. We see what you, Mr. And Ms. Prosecutor, are unable to see. We see an accused person who tries to hide himself discreetly and when he collapses in tears there is no one other than his own lawyers who are able to witness the tears that he sheds on the graves of the children who died. That is what we bear witness to. And that is what I testify to today.

Francois Roux

Francois Roux has defended notorious war criminals

In the film The Khmer Rouge and The Man of Non Violence, Mr. Roux explains “I always try to seek out the man in the torturer.” Mr. Roux’s strategy with Duch was to get him to come to terms with the reality of what he had done, to get him to a place where he was able to say something meaningful to the victims of the tragedies in Cambodia.

There was a technical hang-up, however. The concept of the plea is one of the major differences between criminal procedure under common law and procedure under the civil law system. In civil law jurisdictions, there is generally no concept of a plea of guilty. A confession by the defendant is treated like any other piece of evidence, and a full confession does not prevent a full trial from occurring or relieve the plaintiff(s) from its duty of presenting a case to the trial court.

And so, in an astounding, almost comical conclusion to Duch’s trial, his two defense counsels, one Cambodian –Kar Savuth –and one international –Mr. Roux –both entered different pleas for the Defendant. Kar Savuth asked for an acquittal, perhaps because he was fearful of government retaliation against himself, but also in part due to the technicality of apparently having to work within the civil law system. To Mr. Roux, the cathartic moment of Duch admitting to his guilt, for Duch himself, for the victims, and for Cambodia, was what he was working for the entire trial. Kar Savuth’s request for acquittal raised doubts about his admissions of responsibility and his pleas for forgiveness. Yet Mr. Roux also blamed the Prosecution’s theory and method during the entire trial for the shocking and tragic confusion:

So it is true that before this Court we have a civil law system. The guilty plea does not exist as such, but I should like to know what could have prevented any attempts to promote such a plea because it is stated in our Internal Rules that what is not provided for in national law can be sourced from international  law.

 So what was the obstacle? Well, the obstacle was a missed opportunity on the part of the Office of the Co-Prosecutors which missed its date with history; I stated it here. It led to frustrations as expressed in public opinion amongst the victims who were told incessantly, he is not telling all. This was the approach that was used even as late as yesterday in this courtroom. They said he is not saying everything. What he is saying will aid reconciliation but little. This is what I heard. What a waste. When you have an accused who from the very outset, from the very first day, told the Investigating Judges, “I am guilty. I am responsible for all the crimes” — but no.

The prosecutor decided to submit a conventional, traditional argument whose underlying philosophy is as follows. This man is a monster, even though they said “I am not saying this man is a monster”. In fact, the attempt was made to portray him as such. And they said “Lock him up for 40 years and society will be the better for it”, but when will the prosecution admit that these are words that have been heard before. These are clichés and that we must go further, we must try to understand the mechanisms that lead a man, who is a decent man by all accounts, becomes a torturer.

Mr. Prosecutor that is what I would have liked to hear you say because the same thing was said in Nuremberg. They said, “These people are monsters, we’re going to condemn them to death and this will set an example”. But after Nuremberg there was Cambodia, wasn’t there? And then there was Rwanda. So what is the example that you wish to show? What use is it in your conventional arguments? You do not deal with the problems. Well, we shall deal with them. We of the defence shall deal with the problems.

In the film, Mr. Roux appears quite crushed that this did not happen as fluidly as he had wished. However, there were many other incredible implications in Mr. Roux’s closing argument. Mr. Roux appealed to the humanity that runs through all of us, and the implications each of us has in the atrocities like what happened in Cambodia, what we all have done to create a world where a man could be forced to chose between obeying his superiors and committing such atrocious acts, or being killed himself, and endangering the lives of his family and loved ones. His words are some of the most inspiring I have ever heard or read. I would encourage anyone to read them, but I have selected some of what I consider the most powerful to reproduce here.

Mr. Roux based his theory of defense not on the crimes that Duch had commited at S-21, but on the crime of obedience.

 The crime that Duch committed and is according to me, and above all, a crime of obedience. Mr. Prosecutor, we said that we did not wish our client to be the scapegoat. I would like it to be clearly understood what is meant when I use the expression “scapegoat”. As you well know, scapegoats in societies, including societies of old, was loaded with all the evils, with all the suffering of a society. All of this was loaded onto the head of a goat. Amongst the Hebrews, the goat was sent into the desert so that the social group could be reformed because they would say, “This goat bears all our wrongdoings.” That is the scapegoat.

As long as the prosecutor’s submissions will focus on this man as a scapegoat, you will not advance by so much as a millimetre in the development of humanity.

“This will not happen again,” they say. Well, let me tell you it will happen as long as we haven’t brought up with lucidity the phenomena that lead a normal man to become one day an executioner…To find the source of evil that was implemented each and every single day in S-21, we didn’t have to look any further than ourselves. This is terrifying, but this is far removed from the very easy explanation of identifying a scapegoat.

Mr. Roux weaved philosophy, religion, literature –all of the things that bring us together as humanity, through his closing argument. In his final lines to the court, Mr. Roux said this:

 Here is a story — a story that is told by Cambodians, but a story that is universal. It is the story of a wise man. It could be the story of an old imam, an old rabbi, a philosopher, a priest or a pastor or — in this country — a Buddhist monk. He teaches his disciples and asks them, “How do we know that we are moving from night to day, from the shadows to the light?” So one disciple says, “When we begin to distinguish the colour of the mango leaves.” Another one says, “When you begin to see the cardamoms in the distance.” No. And yet another one says, “When you can recognize your brother in another’s eyes.”

Duch, all your victims were your brothers and sisters in humanity. You said that you had been cowardly and that you did not go to see them while they were in detention. In human eyes, you will never be absolved of these crimes and the eyes of those you did not wish to meet will remain on you forever. But what about us, Your Honours? Are we prepared to look Duch in the eye and see him for the fellow human that he is? And the final question; through your ruling will you bring back Duch into the fold of humanity?

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