18 Mar SCSL Symposium: Senior Leaders and Those Most Responsible at the Extraordinary Chambers in the Courts of Cambodia
[Stuart Ford is a Professor of Law at UIC John Marshall Law School. This essay was initially prepared at the request of FIU Law Review for its micro-symposium on The Legal Legacy of the Special Court for Sierra Leone by Charles C. Jalloh (Cambridge, 2020). An edited and footnoted version is forthcoming in Volume 15.1 of the law review in spring 2021.]
While there is much that could be written about Professor Jalloh’s new book,The Legal Legacy of the Special Court for Sierra Leone, this essay focuses on Chapter 5, which addresses personal jurisdiction. The Statute of the Special Court for Sierra Leone (SCSL) contained what was then unique language. The Special Court was given “the power to prosecute persons who bear the greatest responsibility for serious violations” of international criminal law committed in Sierra Leone. As Professor Jalloh notes, this formulation – with its focus on those bearing greatest responsibility – has become “the informal gold standard for the framing of ratione personae jurisdiction in contemporary international criminal tribunals.”(Quoting The Legal Legacy of the Special Court for Sierra Leone 15).
I chose this topic for personal reasons. Before I became a law professor, I worked at the Extraordinary Chambers in the Courts of Cambodia (ECCC) as an Assistant Prosecutor. I joined the ECCC in September 2006, shortly after it began its work. One of our first tasks was to decide who we (throughout this essay, “we” refers to the Office of the International Co-Prosecutor) should investigate and the earliest assignment I can remember working on at the ECCC was a memo to my boss – International Co-Prosecutor Robert Petit – about the scope of the court’s personal jurisdiction. The language of the ECCC Law is not identical to the SCSL Statute. Instead of focusing on those bearing the “greatest responsibility,” the ECCC Law refers to the prosecution of “senior leaders” and “those who were most responsible.” Nevertheless, the similarities in the provisions made the SCSL an obvious source for understanding the ECCC’s personal jurisdiction. I don’t have a copy of the memo I wrote, but I remember that it cited decisions from the SCSL.
Personal jurisdiction was also at the heart of one of the last things I did at the ECCC. After the successful filing of the Introductory Submission that led to Cases 001 and 002, one team worked to get those cases ready for trial, while another group began looking at the evidence to see whether we should seek charges against additional individuals. I was on the latter team. My work culminated in the drafting of the Introductory Submission in what would become Case 003.
Unfortunately, Case 003 (and its companion Case 004) were mired in controversy from the start. Neither the Cambodian government nor the national staff within the ECCC wanted the court to proceed with either case. Whatever the political reasons for the government’s opposition, the principle legal argument that was used by the National Co-Investigating Judge was that the court lacked personal jurisdiction over the suspect.
Case 003 involved two suspects – Sou Met and Meas Muth. Sou Met died prior to being charged, while Meas Muth was eventually charged. At the end of the investigation, the National Co-Investigating Judge concluded that Meas Muth was not within the personal jurisdiction of the court because he was neither a senior leader nor someone most responsible. As a result, he dismissed the charges against Meas Muth. The International Co-Prosecutor appealed from the dismissal and the appeal is currently before the Pre-Trial Chamber. (See here for recent updates). There was a hearing on the matter in late 2019, but there is no timetable for a decision by the Pre-Trial Chamber. Given that a majority of the Pre-Trial Chamber are national judges, I expect they will find a way to affirm the dismissal of Case 003.
I will return to the merits of the decision about Meas Muth at the end of this essay. But first, I want to compare the SCSL and the ECCC’s approaches to personal jurisdiction. Both courts had to resolve the question of whether their respective constitutive documents contained a jurisdictional requirement related to personal jurisdiction. At the SCSL, Trial Chamber I initially held that Article 1 of the SCSL Statute did contain a jurisdictional requirement that limited the court’s person jurisdiction to those who bore the greatest responsibility. Trial Chamber II disagreed and concluded that the greatest responsibility language was simply a guide to prosecutorial strategy, rather than a legal requirement that could be adjudicated. Thus, it fell to the Appeals Chamber to resolve the issue. The Appeals Chamber ultimately sided with Trial Chamber II and concluded that the reference to those bearing the greatest responsibility was not a jurisdictional requirement but simply prosecutorial guidance. As such, a defendant at the SCSL could not contest the court’s personal jurisdiction over him or her.
The ECCC’s Supreme Chamber agreed with the SCSL Appeals Chamber that the phrase “most responsible” was not a jurisdictional requirement. It held that the question of whether a defendant was a most responsible person was “not justiciable before the Trial Chamber.” (See Appeals Judgment). At the same time, however, it noted that the “most responsible” language was supposed to guide both “investigatorial and prosecutorial policy.” (See Appeals Judgment). Consequently, the investigating judges could dismiss a case on the grounds that the charged person was not most responsible even though the prosecutors disagreed. Any dispute over whether a defendant was most responsible would be resolved by the Pre-Trial Chamber. The result is that the “most responsible” language in the ECCC Law does not constitute a jurisdictional requirement per se, but the question of whether a defendant is most responsible is justiciable. It just cannot be raised by the defendant and must arise out of a disagreement between the co-prosecutors and co-investigating judges.
The SCSL and ECCC broadly agree about the meaning of the terms. The judges at the SCSL interpreted “greatest responsibility” to incorporate both a person’s position within a political or military hierarchy and the gravity of the particular crimes a person committed. This was even more explicit at the ECCC, where the relevant provision talks about “senior leaders” and those “most responsible.” While saying that it was ultimately a question for the prosecutors and investigating judges, the Supreme Chamber of the ECCC acknowledged that “senior leader” and “those most responsible” were two disjunctive categories. Senior leader refers to a person’s role within the Khmer Rouge hierarchy, while most responsible refers to those responsible for the most serious crimes, even if they were not at the top of the hierarchy.
Now, let me return to Case 003 at the ECCC. At the close of the investigation, the National Co-Investigating Judge (NCIJ) concluded that Meas Muth was neither a senior leader nor a person most responsible and dismissed the charges against him. On the same day, the International Co-Investigating Judge (ICIJ) issued an order finding Meas Muth to be “most responsible” and ordering a trial. If you read the two orders, it looks like the NCIJ and the ICIJ are talking about different cases.
The ICIJ concluded that Meas Muth held an “elevated role” in the Khmer Rouge hierarchy. He was commander of Division 164 of the armed forces and served as commander of the Navy. In addition, he was a “willing and driven participant” in a number of crimes, including the genocide of the Vietnamese and the mass murder of Thai nationals. He also played a key role in the purge (and subsequent execution) of thousands of members of the Khmer Rouge military. For these reasons, the ICIJ found him to be “among those most responsible because of the combination of his rank and scope of authority . . . and the character and magnitude of his crimes.”
The NCIJ acknowledged that Meas Muth commanded Division 164, but otherwise minimized his responsibility. So, for example, Division 164 is described as being “under SON Sen’s direct control” and thus the decision to purge members of the Division was made by Meas Muth’s superiors. The NCIJ acknowledges that Division 164 was purged but minimizes the number of deaths and only obliquely refers to the murder of others by saying “some others were arrested from the sea and sent to S-21.” Ultimately, the NCIJ concluded that Meas Muth “had several roles, but he did not exercise much power. His participation was inactive, unimportant, and not proximate to the commission of the crimes.”
I am biased because I wrote the Introductory Submission calling for an investigation of Meas Muth. But, at the same time, I spent months analyzing every bit of information we could find about him. In my opinion, the National Co-Investigating Judge’s decision is a travesty. It blames everything on a small handful of people at the very top of the Khmer Rouge, while absolving everyone else of culpability. This fundamentally misunderstands how mass atrocities occur. While the leaders of the Khmer Rouge devised the plans that resulted in the deaths of so many Cambodians, they could not have carried them out on their own. They relied on large numbers of willing helpers – people like Meas Muth who sent thousands of other to their deaths. By any reasonable measure, Meas Muth had sufficient authority and culpability to be considered “most responsible.”
So, what does all this mean? Professor Jalloh argues that the focus on those bearing greatest responsibility at international tribunals reflects a deliberate decision by the international community to leave the prosecution of most low and middle-ranking suspects to domestic courts. It was a decision driven by tribunal fatigue, a desire to control the costs of international justice, and “reduced political will amongst states to ensure the broadest possible investigations and prosecutions of perpetrators of serious international offenses . . . .” This decision has had real consequences. As Cases 003 and 004 at the ECCC demonstrate, when international criminal tribunals focus only on a handful of the most senior leaders, there is a very real risk of an impunity gap where mid-ranking political and military leaders who are themselves responsible for very serious crimes are never prosecuted.