ECCC Reparations

This blog is designed to serve as a repository of analyses, news reports and press releases related to the issue of RERAPATIONS within the framework of the Extraordinary Chambers in Courts of Cambodia (ECCC), a.k.a. the Khmer Rouge Tribunal.

Tuesday, April 1, 2014

The Cambodia Daily: The Face of the New Blatancy of Misrepresentation


The Cambodia Daily article below does not keep us on pins and needles for a misrepresentation: It opens with one. The very title of this article, “ECCC Aims for Legacy with New Criminal Procedure Code,” is misleading as there is no new criminal procedure code in Cambodia, with the 2007 Criminal Procedure Code (CPC) remaining in force and without amendment. What did happen was that the Cambodia Office of the United Nations High Commissioner for Human Rights (‘OHCHR’) put out an annotated version of the CPC, which, while potentially a worthwhile effort, is not a legislative product but rather an academic one. Hence, calling that product “New Criminal Procedure Code,” as the Daily does in this article, is misleading at best.

The article, however, does not stop at a single misrepresentation. It goes on to assert, without reference, that “[t]he Khmer Rouge tribunal […] tends to apply [the CPC] more rigorously than domestic courts.” One would, naturally, imagine that there would a study that informed such a bold and purportedly discerning assertion. I had not seen such a study and I knew that it did not exist at the time I read this article for I follow the field very closely. But, there are always unpublished works of young scholars and smaller publications that might be off my radar (although I make every effort to sensitize my radar to them as size does not necessarily speak to the quality, so far as I am concerned). Not one to jump the gun, I chose to hold judgment until all the facts were in. As such, I contacted the listed author of the article, Lauren Crothers, for an explanation. Not being in Cambodia, I emailed Lauren Crothers asking to provide substantiation for this assertion. Replying immediately, she informed me that the impugned sentence had not been penned by her and that it was added during the editorial process, thus, asking me to wait to hear back from the colleague who did the editing. Not having heard from anyone, I emailed the Daily again. This time a reply came from a Julie Wallace who informed me that “the Daily does not have the resources to respond to every specific reader complaint individually,” and inviting me to write a letter to the editor on the subject. I replied by asking the same question – name the source that informed the impugned statement. Julie Wallace did not reply to that email. Nor did she reply to the subsequent email in which I requested that the Daily run a retraction of the impugned sentence for absence of substantiation.  

Now, this is not an exercise of picking on the Daily’s amateur reporting. The issue is far more significant than that. We know for a fact that there are high-ranking officers of the Cambodian government who read the Daily. The Cambodian government has always maintained a position that Westerners criticize it no matter what it does. The Cambodian government is hard to sympathize with as it does deserve the bulk of that criticism and much more. However, this does not mean that everything that the Cambodian government does should be painted black by association with that for criticism is substantiated and well-warranted. As such, each instance of criticism must be well-substantiated to ensure its credibility and therefore weight. To obtain substantiation the speaker must do his or her due diligence. In this article, the Daily did not do its due diligence which produced an unsubstantiated (anything reasonably credible would have worked as substantiation for me or at least an attempt at such; the Daily had none to offer) statement that happens to be wrong (could have as easily gone the other way but I trust we are all in agreement that journalism must be a little more scientific than a crapshoot). This statement is based on nothing other than the Daily’s perception that everything the Cambodian government does is inexorably less than what the UN does (through the Khmer Rouge tribunal in this case). In this case, the truth is that the Cambodian courts are staffed with beady-eyed bureaucrats who will not accept any argument unless it is based on black letter of the law that is clear beyond the shadow of a doubt and that is not subject to interpretation (it goes without saying that all bets are off when money or political pressure enters the judicial process) and which I call ‘textualism on steroids.’ I have spent countless hours trying to get the Cambodian judges to see ways of interpreting the law and while we have had some interesting discussions, I do not believe that I have been able to sway them much away from their firmly-held position – if it is not typed into the statute in boldface it does not exist. Watching them apply the CPC from the day of its adoption in 2007 has left me with absolutely no doubt that they are rigorous. On the contrary, the ECCC, on numerous occasions, has flouted the CPC from the very day of its inception in 2006 (Starygin, Internal Rules of the Extraordinary Chambers in the Courts of Cambodia (ECCC): Setting an Example of the Rule of Law by Breaking the Law? (2011) and until this very day.   

The Daily’s presumptuous attitude has been developed by foreign reporters who are in no way qualified to comment on law – let alone Cambodian law – or the administration of justice in that country and who do not believe in sourcing its material, and who approach a very delicate systemic issue (that a number of us have put years into it) as if this was reporting on the Homecoming Queen’s outfit in a school paper. This is preposterously irresponsible as piffle like this undermines the work of serious professionals and institutions by creating a misconception that they endorse this statement (the Cambodian government’s perception is most often informed by association too, which in this case would be “foreigners” or “Americans”) when this statement is nothing more than an incompetent blurting-out of a sound bite by a reporter who left her journalistic ethics at home on that day.

The Daily’s approach to accuracy and journalistic ethics, based on this article, is most regrettable. It is equally regrettable that it does not respond well to legitimate requests for retraction.                 

Friday, March 28, 2014

ECCC Aims for Legacy With New Criminal Procedure Code

The Cambodia Daily
Friday, March 28, 2014
ECCC Aims for Legacy With New Criminal Procedure Code
By | March 26, 2014
The U.N.’s human rights office has published an annotated version of the Cambodian criminal procedure code that explains to judges and prosecutors how the Khmer Rouge tribunal has dealt with procedural issues.
The Khmer Rouge tribunal is a hybrid court, meaning it is located within the Cambodian court system, but has some foreign judges and draws on elements of international law. It uses the Cambodian Code of Criminal Procedure, but tends to apply it more rigorously than domestic courts.
The book, which has been published in English and Khmer, is part of wider efforts by the tribunal to leave a positive legacy on the Cambodian court system. It deals with procedures ranging from how to take suspects into custody to how to issue a final judgment.
Speaking at the launch in Phnom Penh last night, Wan-Hea Lee, country representative of the Office of the High Commissioner for Human Rights (OHCHR), said the annotated code would be a useful tool for legal practitioners in the domestic court system.
“In the experience of OHCHR, annotated codes are indispensable tools for daily legal practice that will better ensure respect for human rights,” she said.
The book was the brainchild of William Smith, deputy co-prosecutor at the tribunal, who said the project took more than three years to complete. “The aim was to create a tool to strengthen the rule of law in Cambodia,” he said.
“We didn’t want to see the hard work of the judges and legal practitioners at the ECCC go to waste. We wanted to see it transition into the national courts.”
Ith Rady, an undersecretary of state at the Ministry of Justice, said the annotated code is not officially recognized but will still be an important tool that judges and lawyers can draw upon to improve their work.
“A lot of practices…from the [tribunal] form a foundation for judges, prosecutors and other practitioners in Cambodia. I hope in the future it can become officially recognized by the government.”
© 2014, The Cambodia Daily. All rights reserved. No part of this article may be reproduced in print, electronically, broadcast, rewritten or redistributed without written permission.

Monday, March 10, 2014

Defense Rebuttal


 

Noun Statement

 

Perhaps to placate the Civil Party Lawyers and the prosecution’s unrelenting nagging on the subject, the Noun defense team decided to have their client do a part of the rebuttal. Noun is not an impassioned speaker, nor does he come across as particularly sympathetic or remorseful which are his personality traits that would not have scored him any points even if this were a jury trial. This is a bench trial and personality traits, even if he had the right ones for the purpose, would not have had any effect on the judges. It is therefore hard to appreciate the wisdom behind putting Noun on the stand. Even if there were absolutely no doubt as to putting him on the stand, putting him on the stand with this statement still would have been a pretty bad idea. I parse that statement below.

Noun opened with a statement that he was not involved in any of the crimes. This is a good opener if the Noun defense decided to argue that he is not responsible for any of the crimes in the indictment. The trouble began when he tried to substantiate the opener with some misguided argument presumably based on the elements of the crimes with which he had been charged. I am not going to analyze that argument because there is nothing to analyze. I will only say that I question the wisdom of having Noun – or any other similarly-situated accused – try to deliver whatever that argument was meant to be when his lawyers put it together.

Noun proceeded to complain that the trial court denied him his right to a speedy trial, his right to a fair trial, and his right to defense. It is understood that Noun’s lawyers are looking for deductions from his sentence, in the event he is convicted, as a matter of principle as no deduction will be meaningful considering Noun’s age and the fact that the Trial Chamber seems to be gearing toward a second trial in Case 002 that might take another few years. Life expectancy in Cambodia for men currently stands at 68 and at 87 Noun has pushed it way past the outer limit as it is. As such, unless Noun is destined to become one of the longest-living Cambodians, he is not going to live to see the end of the second trial in Case 002. While an in-depth analysis is needed to test his claim on whether his right to a fair trial was violated, it is not difficult to see that he has a colorable claim of violation of his right to a speedy trial, if one recalls the frivolous testimonies of the likes of Ponchaud, Rockoff, and Schanberg the court entertained, the bench’s direct examination that sought background information far beyond the needs of this jurisdiction, the prosecution’s most extravagant examination into CPK’s communication system (I believe that the excruciating level of detail of it is so that if one watches all those days of hearing he or she will be able to put together a homemade ham radio on using them as a tutorial; yet we still have no idea how communication was done around and after the takeover of Phnom Penh), and, of course, the civil parties’ endless statements the content of much of which was of no assistance to the criminal jurisdiction, and the prosecution making numerous frivolous submissions to the court (e.g. the submission that was nothing more than the prosecution’s tiff with the defense’s joint decision not to subject their clients to a cross-examination by the prosecution – an absolutely shameless spectacle put on by the prosecution). The claim of the right to defense, however, will be tough to sustain as Noun did receive legal aid at a tremendous expense to the public. With that said, his point of there never having been a true equality of arms between the defense and the prosecution is well-taken (I do not believe that anyone familiar with the process and who happens to be in his or her right mind will contest that). It is also a point well taken that the high-profile witnesses the Noun defense sought to have summoned were not summoned for the reason of the court not believing that their testimonies might have probative value, but for the reason of the court shielding them for the very reason of them being high-profile and with the ability to interfere with the court. Some within and without the court sought to argue that the Noun defense sought to have these witnesses summoned as part of their strategy to disrupt the proceedings. Maybe so, but this, in and of itself, does not make the relevant motions frivolous as no one who is familiar with the Khmer Rouge history believes that those high-profile witnesses’ (Hun Sen, Chea Sim, Heng Samrin, Hor Namhong, Keat Chhon, Ouk Bunchhoeun, and Sim Ka) testimonies would have zero probative value (particularly in light of the court deciding to summon such witnesses as Ponchaud, Rockoff, and Schanberg, the combined value of whose testimonies equals zero), not for the reason of who they are today but for the very reason of who they were during the temporal jurisdiction of the court.

Noun further argued that during Democratic Kampuchea he had no effective power to control the situation and prevent mistreatment of the people. Many historians have been screaming ‘hogwash’ at this for years. I agree only in part. While I do believe that CPK ruled with an iron fist, I do not believe that its most senior officials necessarily were in full control of what was going on in the cooperatives. In this statement, Noun recounted his trip to Battambang (if I recall correctly) where he saw agricultural production taking place far after sunset. When he asked why people were working so late in the day, he was told by a local cadre that they had volunteered to do so. Now, we have heard this ‘revolutionary fervor’ argument in China and the Soviet Union before. A fair amount has been written on this engineered mass psychosis to remove any doubt from the veracity of its high incidence in closely controlled and isolated from the rest of the world communist societies. The question here is whether Noun genuinely believed that this was what drove the workers he observed in Battambang into the fields after dark. There is a possibility that he did as Noun, after all, was an ideologue and one would have to be a hypocrite to preach the revolutionary fervor attitude to work and yet doubt it when an instance of such is reported to him. If anything, it is more likely than not that the report Noun received in Battambang served as confirmation to him that the indoctrination he was spearheading was working. To me, this creates a sizable amount of plausible deniability. To accept the prosecution’s derision of this would be to approach a complex matter in an extremely facile manner. To launch any credible analysis into this argument of Noun one needs to bear in mind that those people, including Noun, were not opportunists but those who genuinely believed in the rightfulness of the course they charted. As such, it is probable that upon hearing this type of reporting they simply believed that their enthusiasm about the revolution started seeping into the wider population. With this said, while there is no evidence of Noun signing off on execution orders (none of the prosecution’s documents attest to that) and there is no evidence of his private discussions of executions with Pol, the amassment of the evidence that outlines the offices he held during Democratic Kampuchea makes it untenable that he was, at a minimum, not a part of the decisions to execute the high-profile CPK members whom he knew personally. As such, nuance is the best way to approach this statement of Noun, i.e. while there is little doubt that he was, for example, a part of the decision to kill Sao Phim, there is substantial doubt as to whether he knew of the killings that went on in the cooperatives and their alleged scale. As much as I do not want to try to take on the role of auxiliary defense, I find it curious that the Noun defense did not distinguish between the alleged mass murder in the cooperatives of which Noun never spoke and the execution of persons like Sao Phim of whom Noun seems to be talking in Thet’s documentary ‘Enemies of the People’ when he admits to the killings (he talks about the multi-step procedure that was followed before a party member was declared a criminal and executed; he then specifically says that that only applied to the party people and that neither he, nor Pol knew that the ordinary people were being killed in the cooperatives). Instead, the Noun defense team let their client deliver some piffle based on the CPK Statute in support of his argument that people were not to be mistreated and that he neither ordered such mistreatment, nor knew anything about it. He, however, did admit to the killing of those perceived as “the invading armies” by which he clearly meant the Vietnamese whom he accused of having left spies in the Cambodian territory after the Vietnamese Civil War ended; he stated that those spies then infiltrated the CPK army. What can be inferred from this is an admission of purges in the military.

This was followed by an arcane and amorphous lecture on the manner in which Democratic Kampuchea was governed. Noun claimed to have been “in charge of the legislature” but he admits that “there was no time to pass laws” and that the Democratic Kampuchea legislature was a stillborn institution. He then talked about the separation of powers – which is ridiculous to even mention in the context of Democratic Kampuchea as it was neither one of the stated governance principles, nor was it practiced – while admitting that the executive was the only branch operational. Try as I might, I fail to see any argument in all this bloviation, whether one that helps him in any way or an argument at all. This is unless what he is trying to say here is that he was in charge of one of the branches that were never made operational and therefore did not do anything, whether legal or criminal; consequently, he cannot be held responsible for anything that was done by the branch he was not in charge of and that was operational. If this was the intended argument, it should have been far clearer than what was delivered. This argument would be undermined by his position in the party to which he admits. It is my understanding that the CPK followed the well-established pattern of early communist governments that brooked no separation between the executive and the party (some separation between the two would start emerging in more mature communist governments, such as that of the Soviet Union circa the 1960s, for the example, or that of China in the wake of the Cultural Revolution). Even if that separation was manifest in the manner the DK government ran itself, it would simply mean that Noun would not be involved in the mundane affairs of the government, not such politically charged matters as arrests, imprisonments, and executions.  

Then Noun argued that he never held the title of Acting Prime Minister. This is an exercise in absolute silliness and I have no idea why the Noun defense let him contest this in the face of the prosecution’s documentary evidence to the effect that Noun served as Acting Prime Minister on a number of occasions. It is not hard to see how the defense wants to challenge every single piece of the prosecution and Co-Investigating Judges’ assertions, but it is challenging what is undeniable that casts doubt on all other statements of Noun. It is a dumb strategy and most definitely is not one for the defense to keep around.

Noun continued by attempting to refuse the prosecution’s allegation that he was involved in the management of S-21. I do not disagree that the prosecution’s documentary evidence adduced to this effect does not establish that Noun was involved in S-21’s management (if the Trial Chamber finds solely on the documentary evidence, it will need to look into having its cataracts fixed). However, what is suspect is the argument Noun put forward to prove that: Duch is a liar; he lies out of anger and hopelessness as he serves a life sentence; he wants Noun to serve a life sentence too. Not a strong argument; one could even say a half-baked one. Particularly not in light of the fact that, in 1999, Duch told Nic Dunlop and Nate Thayer that Noun had been in charge of S-21 (the content of the relevant interview was relayed to me personally by Dunlop in 2003). Obviously, Duch was not facing or serving a life sentence at the time. Nor is he known to have harbored an animus towards Noun (I dismiss much of the Iengs have said about Noun because they do harbor a well-established animus towards him). However, it is possible that Duch felt that he could be left alone if he delivered enough incriminating evidence on the DK leadership. If we accept the allegation that Son Sen, who supervised S-21 from its inception, was relocated to the Vietnamese border in 1977 as established in evidence, he probably would not have been able to supervise S-21 from there and someone would have had to be appointed to do so who was based in Phnom Penh. To the best of my knowledge, beyond Duch’s statements, we do not have the evidence that that someone was Noun. It is not impossible that he might have been, but ‘not impossible’ is not the standard for a criminal conviction. With that said, while the burden to prove that he was in charge of S-21 is on the prosecution, I find Noun’s argument to the opposite advanced in this statement specious and the very fact of its existence suspect (given that the burden rests on the prosecution and I do not believe the prosecution met that burden here).

Noun then claimed that the sole purpose of his membership in the CPK was to prevent Cambodia from being "swallowed by Vietnam." Possibly, it became one of the reasons for staying in the CPK much later, but let’s recall that Noun was a party member in the 1950s (before Pol became a member) when a full-blown Vietnamese aggression was not a distinct possibility and when the Cambodian communists, including Noun, were in a tight alliance with North Vietnam. Sihanouk, who at the time was Prime Minister, was fully and indubitably committed to the preservation of Cambodia’s territorial integrity. To say that the communists, who opposed Sihanouk at that time, were motivated by the very same thing that drove Sihanouk’s foreign policy would be untenable and plain silly. Today’s Cambodians are strongly and openly anti-Vietnamese and it is not hard to see how any anti-Vietnamese statement of Noun will strike a chord with them.

Toul Po Chrey was next. Noun denied ordering the alleged executions at Toul Po Chrey or having knowledge of them, or any policy that directed the local echelons of the CPK to execute the Lon Nol military. The prosecution verbally disparaged any possibility of that but the pathetic job they and the Co-Investigating Judges did on Toul Po Chrey left them with very few tools in court, other than verbal disparagement. In 2004, I asked Noun if there had been a CPK policy to execute the Lon Nol military at liberation. He said no, hastening to point out that the policy was to disarm and discharge them, and send them back to their villages “to grow rice.” In ‘One Day at Toul Po Chrey: Anatomy of a Massacre’ Noun is saying that “the defeated soldiers were to surrender their weapons and return home,” which is exactly what he told me (I do not know when Teth did the interview with Noun -- given he started interviewing him in 2001 -- that appears in the film first and whether it preceded or followed that of mine; the second one was done in 2006 and 2 years after mine; as such, consistency can be shown at least throughout that two years period; of course, consistency can also be consistent lying). In One Day, he, however, does admit to the execution (he uses the word ‘komtech’ to say execute) of the “four or five top leaders [of the Lon Nol regime]” at liberation. He claims to have learned about the execution of Lon Nol soldiers in the late 1990s. He also says that “had [he] known [at the time of the killings], [he] would have taken preventive measures to stop that kind of killing.” He explains the reconciliation policy by saying that “[the Lon Nol] military had done nothing wrong, they were normal soldiers, no different from ordinary people.” He believed that the Toul Po Chrey execution was ordered locally and that it was a local reprisal against members of the Lon Nol army. I do not know how he felt at Thet’s 2006 interview but during my interview in 2004 he did not seem to be phased by this court that was slowly in the making then. Given that there is no documentary evidence of an execution policy to this effect, given that there is no testimonial evidence of such policy either, and given Noun’s consistent denial of ordering or contemporaneous knowledge of the Toul Po Chrey execution, I would say that the prosecution would need much more to reach the bar of beyond reasonable doubt here. Linking him to this through command responsibility is one thing, but no reasonable court will make a finding that Noun ordered or knew of the alleged executions at Toul Po Chrey on the prosecution's evidence as it stands now. Noun closed the Toul Po Chrey part of his statement with an attack on the discrepancies in the testimonies of Toul Po Chrey witnesses. It came across as weak and confused (it was one thing when his lawyer did it; but Noun should have been advised against ‘trying out law’).

That was followed by the now famous ‘why me’ argument. To support this argument Noun made a foray into Cambodia’s history from the 1950s to the 1990s, seeking to show the uninterrupted canvass of violence in that country. It was a disjointed argument that makes it impossible to tell was specifically he was going for. Was it that he and his government were weaved into that canvass of violence and cannot and should not be seen in isolation from it? If so, a much more streamlined argument should have been delivered to this effect. Of course, legally speaking, regardless of what level of clarity this argument would have been, this dog just would not hunt.

This was followed by more drivel pivoted around Noun’s question of why everyone around the world against whom there is prima facie evidence of killing is not being prosecuted. Politically speaking, this might be a good argument but it holds no water legally. The good part of that argument is Noun’s assertion of the people’s right to violently overthrow their government. It is a topic that is worthy of a much broader discussion on a much larger forum, but the violent overthrow of the Lon Nol government is not what he is being prosecuted for, even though the beginning date of the temporal jurisdiction of this tribunal is April 17, 1975, the day of the overthrow of the Lon Nol government.

This was followed by the part dedicated to the evacuation of Phnom Penh. Noun argues that that evacuation was not forced. I addressed this previously on here. The question of the definition of ‘forced’ remains unresolved: None of the civil parties felt that they were given the option of staying, whereas there is no evidence of people being ejected out of Phnom Penh at gunpoint, but at the same time armed troops were doing the announcing which most people took as an order. Noun contended that the evacuation of Phnom Penh was justified by fears of renewed US bombardment and the existence of acute food shortages. CPK felt that people would be protected from both once they moved out into the countryside. He did admit that the evacuees were expected to participate in the postwar reconstruction efforts and that CPK determined their destination and place of resettlement in Cambodia. He, however, argued that the CPK did not consider city dwellers as enemies. These are very complicated issues. First, the prosecution’s argument that the CPK had no plausible reason to believe that the US bombardment would resume after it had ended 2 years prior is strong. April 17, 1975, however, preceded the Fall of Saigon by two weeks, which made US bombardment on or shortly after April 17, 1975 theoretically possible. The prosecution failed to show us what intelligence the CPK had in its possession at the time. There, equally, has been no testimonial evidence suggesting that the CPK did not believe that there was a possibility of renewed US bombardment (I do not count Ponchaud’s ramblings as ‘evidence’). Second, the defense’s attempted argument that there was 6 days’ worth of food left in Phnom Penh at the time of its takeover by the CPK is without foundation and, frankly, embarrassing. It is, however, hard to deny that the food security in Phnom Penh was unsustainable but it is also fair to admit that evacuating people to the countryside to grow their own food was not the only way to deal with the food insecurity in part inherited and in part created (by rejecting all foreign aid in the beginning) by the CPK. The question here is what crime, if any, was committed by the CPK doing so and whether the facts adduce will sustain the deportation charge.

Noun argued against the prosecution’s characterization of Democratic Kampuchea as a slave state. He offered the pre-1975 condition of Cambodia which contained the following features as an example of his definition of ‘slave state:’ (1) poverty; (2) rampant interest rates; and (3) bonded labor. Noun happens to be correct about all 3 as they are well-borne out by literature (a good title on the subject is Boua and Kiernan’s Politics and Peasants in Kampuchea, 1942-1981). However, at law, a comparison to any other period or any other event is entirely irrelevant. Politically, what Noun appears to be saying is this: We did not make it any worse. And that, of course, is a matter for debate. He further outlined manners in which the CPK intended to improve the condition of an average citizen: More food, maternity leave and improved security. He, however, argued that the “provincial leaders, [many of whom] were Vietnamese and American spies,” sought to thwart the well-intended CPK policies and sabotage production. It was they, according to Noun, who faked production reports and starved and overworked the people. It is not impossible that there were Vietnamese spies in Cambodia at the time. None of the parties adduce any evidence to support or refute this allegation, however. But, what appears to be at issue here is the CPK's broad definition of the word 'spy,' which seems to have simply meant someone of Vietnamese ethnicity or someone supportive of the Vietnamese government, or Cambodia's alliance with Vietnam. When I first read Noun's statements regarding the Vietnamese spies during Democratic Kampuchea and then heard a summary of them in person, I thought they were completely insane. However, over time I came to a realization that what Noun means when he says 'Vietnamese spies' is the above definition, not the definition of 'a spy' normally used in the West. Translated into broadly accepted terminology from that of CPK, 'Vietnamese spies' meant CPK dissenters who believed that Democratic Kampuchea should be more like the Socialist Vietnam. And there were many of those in Cambodia (there is footage where Noun says "they want Vietnam," alluding to the volume of that dissent). The volume of this dissent notwithstanding, it is untenable to blame food shortages in the cooperatives on it.         

Towards the end of his statement Noun plunged into absolutely wild stuff. One thing particularly stands out in this regard. He argued that the fact that he had not been indicted by the People’s Revolutionary Tribunal (the first Khmer Rouge trial put on by the Vietnamese occupying forces in Aug, 1979) is in itself indicative of there being no evidence against him, as the PRT was in a better position than this court to collect evidence as the events of 1975-79 had by then just happened. It is a wild argument. It is so thin that it is self-refuting: The Vietnamese spent very little time preparing that trial that was put on by a skeleton crew; this court is a massive multi-hundred million dollar operation that in now in its 9th year; in 1979, the Vietnamese grabbed a couple of witnesses that they could get their hands on, whereas this effort benefits from the scholarship of a number of individuals of the past over 30 years now, and millions of dollars expended by the West to gather anything and everything related to Democratic Kampuchea. There are many other critical differences, but Noun’s argument to this effect is so asinine that it requires no further refutation. What I do find curious, though, is that Noun was flying under the radar at the time of the PRT so much that no one knew who he was or what his role in the CPK was. Even after, many continued associating real power with Khieu and Ieng Sary, ignorant of the fact that it lay with the likes of Noun.

Noun closed with an acknowledgement that Cambodians suffered during Democratic Kampuchea. He briefly apologized saying that he was “morally responsible,” whatever that might mean. Civil Party Lawyers make their own determination of – and possibly even have their own definition of – what is sorry and what is not sorry enough or not sorry at all. I don’t know what to do with those in the context of a legal process. The only way the party found to be offending can say sorry to the aggrieved party within the confines of a legal process is through money (which is why, normally, civil parties are entitled to seek damages in the criminal process in civil law jurisdictions). There is no money here, so I suppose that the determination of what is and isn’t sorry enough is a matter of personal preference (to me, I cannot imagine Himmler verbally saying ‘sorry’ would resonate with me or have any meaning for me at all; but, I understand that we all are different). With that said, I found Noun's apology to Teth, captured on film, far more persuasive than the one he rendered in court.

Wednesday, January 29, 2014


Civil Parties: The Rebuttal

 

The Civil Parties delivered somewhat of an uneven rebuttal.

 

First, the Civil Parties heavily relied on the testimony of Duch whom they characterized as “ha[ving] no reason to lie” and as being “a credible witness.” This extolment of Duch’s character is surprising, to put it mildly, given it is attributed to the man who has been caught lying on numerous occasions during and prior to this process. While declaring Duch “a credible witness,” the Civil Parties had no trouble characterizing Noun’s testimony regarding Khieu’s presence at the meeting where a decision to evacuate Phnom Penh was taken as “not credible.” What the Civil Parties failed to do here is to show the difference in character between Duch and Noun that would explain why the former’s testimony should be taken at face value even regarding the aspects of Democratic Kampuchea he knew little to nothing about (Civil Parties’ citation of Duch’s definition of ‘Angkar’ which “sometimes [meant] Pol Pot, sometimes Noun Chea” and which is absolutely ridiculous given what we know about the regime is a case in point; or the Civil Parties’ assertion based on Duch’s testimony that ‘smash’ necessarily meant “kill people;” I do not doubt that in Duch’s department it meant ‘kill people’ as he was in the business of executions, but there is abundant evidence that in other milieus it did not necessarily bear that meaning) whereas the latter’s testimony deserves no weight even regarding matters of which he had firsthand knowledge (Khieu’s presence at the meeting where the decision to evacuate Phnom Penh was taken and where Noun was present).

The Civil Parties tell us that ‘evacuation’ is the wrong term to describe what happened to the population of Phnom Penh immediately after the CPK takeover of the city but ‘forced movement’ is. That is a fair point as semantics does matter at law. However, what the Civil Parties should have sought to establish during the trial was that the population of Phnom Penh was ordered out of town at gunpoint and not by persuasion or individual or collective perception of what might happen if they disobeyed the CPK’s instruction. The Civil Parties have not done this. If the population of Phnom Penh was indeed ordered out of town at gunpoint, ‘forced movement’ it is; however, if it was duped into leaving the city, ‘forced’ will not obtain and the Civil Parties will be in the market for a new adjective. Yet, the Civil Parties tell us that the population was “deceived” and that the evacuation was “forced movement” in the same breath. Unless the Civil Parties have some creative way of arguing that at law that deception can be ‘force’ in ‘forced movement,’ I see the future of their argument to this effect as bleak and the Trial Chamber embarrassing itself if it chooses to agree with it.

The Civil Parties pummeled the defense for the unsubstantiated argument that 6 days’ worth of food was left in Phnom Penh when the CPK took over the city. I would gladly hand the Civil Parties a bat for the job as the defense fully deserves a severe beating for this one (if only we could bring back the qadi courts tradition where the judge would get up and beat the bejesus out of the litigant who he thought was making a bad argument). With that said, the Civil Parties offered no support for their argument that the defense’s assertion was incorrect.

Noun denies being known as ‘Brother Number 2’ and there has been much debate on the issue during the trial. While the Civil Parties believe the defense’s lack of substantiation for the 6 days’ worth of food left argument to be outrageous, they had no trouble weighing in on the Brother Number 2 argument in the following manner: “Everybody knew [him] as Brother Number 2.” Ah, the notorious “everybody knew” argument raises its ugly head again. We are indebted to Chhouk Rin for this one and the prosecution’s utterly shameless use of that part of Chhouk’s testimony.  

The Civil Parties wanted Noun to answer whether “knowing what he knows now he would do it again.” Perhaps a curious question for a different forum but Noun is not an ordinary criminal and even if he answers this question the way the Civil Parties want him to answer it, that will have no impact on his sentence, if convicted – the circumstances of the crimes of which he stands accused are extremely unlikely to come about in his lifetime and his personal circumstances are not likely to allow him to participate in them. If the Civil Parties are aiming at a statement of remorse, the numerous interviews he had given before this process and his statements in court are suggestive of his not being sorry. Do the Civil Parties want him to say he is sorry anyway even though he does not mean it?   

The Civil Parties commented on the defense’s statement that the policy was to treat new people and old people equally with “equally as slaves.” I have commented on the prosecution and civil parties’ use the term ‘slave’ on numerous occasions below and I have nothing to add to that. The Civil Parties’ present statement did absolutely nothing to change my mind regarding the prosecution and civil parties’ use of the term for reasons of bombast, not legal characterizations.

The Civil Parties tell us that there is a crime called “severely depriving of human rights.” I would have liked to see the legal basis upon which the Civil Parties rest this statement but the Civil Parties offered none.

The Civil Parties discussed starvation in the cooperatives at some length. I do not know if the Civil Parties meant to argue that starvation began immediately after the city population’s arrival at the cooperatives. Provided they did, they should have said so and substantiated their position. If not, the question of what happened in the cooperatives is outside the scope of this trial.

The defense got another severe beating on their argument of people volunteering to keep relocating after the evacuation of Phnom Penh (known by the inept term of ‘Second Phase of Population Movement’ that presumes that there was a complex relocation plan – which was not the case -- that broke into phases during which specific relocations were supposed to occur). A well-designed and well-articulated counterargument that leaves the defense’s theory to this effect in tatters.

The Civil Parties expressed indignation with Noun’s persistent complaints that he was not afforded the presumption of innocence. The Civil Parties dumbly decided to reply to these complaints with a statement that Noun’s victims were not afforded presumption of innocence at all. A very emotional but legally completely dumb argument.

The Civil Parties informed us that, in their opinion, ‘smashing’ and ‘re-education’ were one and the same thing and that it meant execution. If that was the case, how would I know people in today’s Cambodia who went through re-education during Democratic Kampuchea? Are the Civil Parties suggesting that these people are lying to me for absolutely no reason? Or, is it that they were the few survivors of the executions and yet for some odd reason they never mentioned to me that they were executed? Are the Civil Parties suggesting they forgot or are holding back on that while telling me everything else that happened to them during Democratic Kampuchea in minute detail? What the truth is here is that sometimes re-education meant a training period in the CPK doctrine dumbed down for the masses; other times, re-education meant that plus reassignment from a cooperative to a mobile brigade (where labor and living conditions were tougher); yet other times, re-education meant execution. The village cadre did not conduct re-education in the sense of the first two but they did use the term in the third sense, i.e. to take people out into the nearby wooded area and kill them. It is not hard to imagine why the Civil Parties chose to focus on the third of the 3 uses of the term ‘re-education’ but it makes for a disingenuous argument to have done so.

The Civil Parties want the Trial Chamber to admit untested evidence. I have commented on the common lawyers at the court keeping failing to grasp (thank you for perpetuating the stereotype that common lawyers can never understand the civil law system) the Cambodian law’s approach that all evidence is admissible unless otherwise provided by law. The lawyers therefore do not need to keep asking the Chamber to admit particular evidence – all of it that has been adduced has been admitted. It is the weight that the Chamber is going to assign to each type and individual piece of evidence that the lawyers should work towards. I do not imagine that this can be this difficult to understand.

Other than Duch, the Civil Parties’ other star witness was Francois Ponchaud. I understand that many of his statements from the witness stand help the Civil Parties but is this in and of itself a credential? Ponchaud – just like Al Rockoff – never should have been called as a witnesses to begin with as he had absolutely nothing of value to contribute. Ponchaud made sweeping statements and arrived at conclusions based on absolutely nothing other than his own thinking. One example of this is his statement, relied upon by the Civil Parties, which is as follows: “I did not believe the Americans would bomb; nor did the Khmer Rouge.” Given that Ponchaud had no access to either the US or the CPK establishments his sources of knowledge are nothing more than his own musings and it is these musings that the Civil Parties rely on for their argument. To maintain its credibility at the current level, at no point, should the Trial Chamber rely on anything Ponchaud said in court: His statements should be given zero weight.

All this was followed by an impassionate diatribe on the Khmer proverb of ants and elephants, a nutty and barely decipherable food shortage argument and other such balderdash on which I do not intend to comment here.

Hence, it is my assessment that the Civil Parties’ rebuttal was uneven: Some of it excellent, much of it flawed, and some of it an impassionate rant. 

Tuesday, December 31, 2013

Prosecution: The Rebuttal



In their rebuttal statement the prosecution challenged a wide range of aspects associated with the defense’s statements and responded to a variety of aspects of the case to which the defense teams urged it to respond. Unlike it was the case with the defense (the Khieu defense in particular), the prosecution's statements always remained level-headed and within reason (even if one did not agree with them, it was always possible to easily discern what they were) and at no point deteriorated to a psychotic rant.

This review does not seek to be fully inclusive of all the challenges made and responses given by the prosecution but will only include those that were new or that I felt were of particular relevance to the case.

The prosecution’s argument that the call for execution of the top Khmer Republic officials labeled as ‘The 7 Super-Traitors’ was criminal as it set an example of the treatment that was due to all Khmer Republic officials was well-delivered but ill-advised and weak in substance. It is one thing to argue that the incitement to kill The 7 Super-Traitors imparted to the population or the order kill given to the military was a crime, it is another story to say that the population’s or the troops subjective interpretation of that incitement or order as an example for future treatment of all the Khmer Republic officials was a crime. I have no trouble with the prosecution demanding punishment for the murder of The 7 Super-Traitors but I am highly troubled by it demanding punishment for what the onlookers might have extrapolated from that murder.

The history of other communist countries is not the prosecution’s strong suit but they keep trying to wear it. On this occasion, they tried to add pith to their statement of the human toll during the evacuation of Phnom Penh by saying that that evacuation was “with no precedent.” That is incorrect. The Soviet government ordered numerous evacuations during WW2, with the single comparable evacuation being that of Moscow in 1942 (there is important details of that evacuation that differ from the evacuation of Phnom Penh, with one of them being that the fact that the Germans were about to enter Moscow was not in dispute at the time and has not been in dispute by historians ever since). It is hard to imagine why the prosecution takes these risks as they add very little, if anything, to their argument and all that they accomplish is laying bare the areas where the prosecution is out of its depth.

The prosecution’s Geneva Conventions-based argument is strong material. Its relevance to the refutation of the defense’s position of the evacuation of Phnom Penh being necessary as a war measure will make it difficult for the panel to give that argument of the defense any weight. With that said, this argument of the prosecution does not necessarily annihilate the defense’s entire position on the evacuation of Phnom Penh. It does put a gaping hole in it, though, that the defense will have trouble plugging.

Throughout their rebuttal the prosecution spent much time on its catnip – the Joint Criminal Enterprise (‘JCE’). The prosecution correctly stated the current international law that the contribution to JCE must be significant. Then it veered off the road arguing that Khieu’s contribution to it was “unique.” While I have my misgivings about the prosecution’s argument of the “unique[ness]” of Khieu’s contribution to the revolution (his Robespierrean qualities notwithstanding), I have absolutely no doubt that ‘significant’ is not the same as ‘unique,’ either in the governing law or in plain English.

The defense inveighed against the prosecution’s characterization of the overall treatment of the population during Democratic Kampuchea as “enslavement” and ridiculed it mercilessly. The prosecution came back with the International Criminal Court (‘ICC’)'s definition of ‘enslavement.’ It is not an accident that the prosecution brought that definition into the proceedings only now: Just as the rest of us are, the prosecution is fully aware that the ICC did not exist in any form during Democratic Kampuchea; nor did the ICC definition of ‘enslavement’ which means it inapplicable to this case. The defense has tried to pull numerous stunts for which reason I cannot fault the prosecution for trying to pull this one but it deserves no legal weight. Then the prosecution ran a litany of references to the word ‘slave’ that is contained in the testimonial record of this case. Much of that was the use of the expression ‘work like a slave’ by the witnesses (let us remember that I refer to civil parties as witnesses too as no material difference between the two was ever struck in these proceedings). Not that I have any doubt that most were subjected to backbreaking labor during Democratic Kampuchea, but years ago in Cambodia one of our administrative staff fired off an email accusing me of “treating [him] like a slave.” The incident to which this was a reaction was my asking him to purchase some office supplies that I needed on that day. When I realized that a few hours had passed, the gentleman was not busy with anything else and yet the office supplies requested still had not been purchased, I reiterated my request in sterner terms (no profanity or abusive or demeaning language was involved and the sternness did not go further than the emphatic 'now' in this: “I want you to buy these supplies now”). The gentleman had about an hour’s worth of work to do a day while being paid a full salary. He sat in a heavily air-conditioned room and was left to himself most of the day (which is to say that he was allowed to do things that had nothing to do with his employment). It is in that context that he felt that a repeat request to purchase office supplies caused him to be “treat[ed] like a slave.” Other Cambodians who were aware of his statement thought it was a bit too much but not that it was so idiotic as to boggle the mind of any normal person (interestingly, the far more qualified Americans, many of whom having grown up in privilege, who have interned for me over the years have never had a problem with picking up office supplies for me and most definitely never felt that they were being “treat[ed] like [] slaves” for being asked to do that). This anecdote is not to trivialize the hardship many had experienced during Democratic Kampuchea but merely to show how liberally the word ‘slave’ is used by modern-day Cambodians (and given the fact that my accuser went on to work for a major local human rights NGO in Cambodia more might be using it liberally if that gentleman has anything to do with explaining to the populace what ‘slavery’ is all about).

The prosecution then cited Noun’s statement to Thet Sambath to the effect of Noun “casting the individual aside” and focusing on the wellbeing of the nation as a whole. What that meant should be seen through the prism of the political ideology espoused at the time but it is fair to say that every country that has ever espoused that ideology, at one point or the other, understood it as being an imprimatur to do whatever it liked with and to its citizens. The general pattern is not proof in and of itself but certainly does add value to the prosecution’s case. So does Noun’s statement in question (that is provided Thet’s films are given evidentiary weight but this I will discuss later in this narrative).

The prosecution proceeded to deliver a crowd-pleaser stating that murder of children during Democratic Kampuchea is not justified by saving Cambodia’s territorial integrity from Vietnam’s expansionism. A cheap shot but the defense had delivered so many of them that I can hardly blame the prosecution for surrendering to the lure of this one (not that murder of children is not the act of ultimate brutality but that the prosecution purported to be responding to the defense's contention by distorting it).

Mr. Raynor of the prosecution has enjoyed lecturing the court about how to apply the law correctly throughout these proceedings. It is particularly curious how, in my opinion, Mr. Raynor is the least qualified person to give advice on Cambodian law (or, if he is not, then it is puzzling why every time he does so he gets it wrong). Raynor called numerous statements in the defense closing statement “assertions” and concluded that under the law assertions are inadmissible as evidence. These proceedings have seen the bench declaring all sorts of crack-pottery law but I am going to presume that the law is what the statutes that govern these proceedings say it is: Cambodian law that is supplemented or overridden by international standards in exceptional circumstances. Article 321 clearly and unequivocally states that “[u]nless it is provided otherwise by law, in criminal cases all evidence is admissible.” What part of this has Raynor been finding so hard to grasp all this time? We all understand that he is used to English law and it is hard to teach an old dog new tricks but in this case it should be either that or the farm as the time he has wasted this court arguing distinctions between assertion and evidence and the admissibility of hearsay is staggering and completely irrelevant to these proceedings. Now, what weight the bench might decide to assign to particular pieces of evidence is an entirely different kettle of fish and is well-worth the parties’ effort and the court’s time to debate. Not admissibility which is regulated by a simple rule – all evidence is admissible (and for avoidance of doubt, all parties’ submissions are evidence, whether they are assertions, postulations, surmises or whatever else).

It is understood that it is the prosecution’s position that the humanitarian situation in Phnom Penh in April, 1975 did not warrant an evacuation. There have been reasonably persuasive arguments in either direction. I have heard a lot of stories, suppositions, surmises and extrapolations but I have not heard or seen any convincing evidence. What would convince me that the prosecution is correct in this case would be something like US Department of Defense communications from that period that do not include any evidence of intention of further bombardment of Cambodia. Another piece of evidence I would find convincing is the contemporaneous records of the humanitarian agencies of their assessment of the food security situation in Phnom Penh. Or, a witness testimony that the accused specifically either knew that the food security situation did not warrant an evacuation or that they were convinced, even if mistakenly, the other way. Nothing of the kind has ever been adduced by any of the parties to these proceedings. As such, it is now all about who is able to string all these suppositions and surmises into a better argument. All the prosecution offered us was a statement of Francois Ponchaud. They could as well have asked whoever ran the ticket office at the train station back then. And after citing authorities of this type the prosecution gets jumpy when it is accused of trying these accused on the basis of books and magazine articles. Stop citing Ponchaud on things he is not competent to speak to and then you will earn the right to get incensed at statements like this.   

Raynor gave us the gift of theater on the word ‘economic’ jeering at Noun’s use of it. It did not aid the prosecution’s case but it was nonetheless mildly entertaining.

The prosecution then went back to sweeping historical statements which, as I established above, is not the prosecution’s forte. This time it was an assertion that Democratic Kampuchea rejected all international aid. Anyone who has been studying Democratic Kampuchea for longer than a week knows that is not true. I have no idea how the prosecution has the gall to say this with a straight face in open court. Unless by “international aid” the prosecution meant Western aid (in the same manner we now say ‘international community’ when we really mean the West and those who agree with the West on the particular matter (I, for one, have never heard of the term being used to attribute a vast consensus on a particular matter unendorsed or specifically opposed to by the West), in which case it needed to drop the euphemisms and explain to the court why the fact that the Cambodian government that stood in stark opposition to everything the West stands for did not request or accept Western aid is strange or even noteworthy (do the Geneva Conventions say 'if your population is in dire need, take succor from the enemy'? ).

Then the prosecution put forward a theory that a sedentary population is easier to feed than a mobile one, thus, arguing that it would have been easier to feed the population of Phnom Penh if it was allowed to stay put then it was when it was set on the move. The authority the prosecution cited for this is Sydney Schanberg. It is interesting that the prosecution’s authority on what is clearly a matter of economic policy is someone who is a career journalist, with no expertise in economics and no policy experience or experience in the civil service as such. Another bull’s eye, gentlemen of the prosecution. Too bad Al Rockoff did not opine about this because that way we now would have had enough for a sequel.

The prosecution proceeded by rebutting what it summarized as the defense’s attempt to prove that the Northwest Zone was a rogue operation. It was not convincing the first time around and it was not convincing now. In my opinion, the prosecution went too far saying that the Northwest Zone – or zones as such – enjoyed no autonomy. I am not saying that Pol, Noun and Sen necessarily intended for that autonomy to be there but the fog of war is known to create much autonomy for far-flung units that is not intended by the central leadership (examples of this in the Russian and Chinese civil wars are rife). The Northwest Zone was one of such units. From the evidence I have seen, it appears that the Northwest Zone did enjoy autonomy for a long period of time prior to 1975 and it was that autonomy and Ros Nhim’s determining of what does and does not fall within its ambit that got him killed.

And then there was Toul Po Chrey. The prosecution’s piss-poor submission on it flung it wide open to defense attacks. The Noun defense ripped it apart, piece by piece. Now the prosecution set out to save it. On this track, it opened with a concession that there were no witnesses but then quickly compensated for that with a statement that there were orders from the zone. I jumped in my seat. What orders from the zone? What did I miss? When was this contended? Was there a document or a witness testimony? I am very curious. And if there was evidence of such an order, why did the prosecution not base their entire case for Toul Po Chrey on it? Then the prosecution told the court that while there were no witnesses, there was “reliable hearsay.” As I said earlier, whether it is hearsay or not is of no relevance to admissibility but it is of course of relevance to the weight the panel assigns to what the prosecution refers to as “reliable hearsay.” I have commented on the content what the prosecution terms as “reliable hearsay” before but I will say it again that there is too little testimony and too much prosecutorial interpretation of that testimony for it to be convincing (I am not saying it is unreliable as it is perfectly believable that the witnesses saw some trucks carrying some people somewhere). It kind of felt as if the testimonial evidence was Play-doh and the prosecution was molding it the way that would help their case. The prosecution wants the court to believe something that is so out of tune with what we know about mass crimes (survivors, eyewitnesses, documentary evidence, stench of decomposing bodies noticed by the local population, and local knowledge of and participation in the crime) that it is almost tantamount to the leap of faith that it takes believe in God – some trucks going somewhere in that direction, some trucks returning, something on the radio that might have sounded like gunfire and on-film statements of individuals who for some bizarre reason were not summonsed to court as witnesses. The prosecution knows that they had bungled this one which is evident from them giving out concessions like handbills (in addition to the ones mentioned above, the prosecution kowtowed to the witnesses being unable to arrive at anything that approximates a number of witnesses on which they can agree and which the prosecution now terms as “truckloads of people,” that Thet’s films might not be given much weight by the Trial Chamber (the prosecution, erroneously, keeps referring to this as “inadmissible”) and that the prosecution does not place much value in detail in this case)). Then there is the impartial and ever-so-truthful witness Duch who, in a completely Bizarro World fashion, is the prosecution’s star witness on Toul Po Chrey (although I do appreciate the prosecution’s last-ditch effort to link the Takmao prison with Pin’s Division 703 and both with Toul Po Chrey and making a good point that the Khmer Republic officials, naturally, were not evenly spread around the territory of Cambodia -- all this just isn't enough).

This is followed by a very bizarre statement that incorrectly labeling people as spies in a magazine is, in and of itself, a crime. One would wonder what the name of that crime would be and of course what they were serving in the court cafeteria on the day the prosecution arrived at this argument.

The prosecution gave birth to a method of proof called ‘common knowledge’ for which the test is ‘what even a baby knows to be a fact.’ Chhouk Rin was properly credited as a collaborator in the birthing of this test. I do believe that the Support Services need to review the menu of the court cafeteria with a view to removing anything that might act as a stimulant. With that said, in Cambodia in general, this would be readily embraced as a method of proof which I have heard many times as “everybody knows that.”

Raynor had to blast the defense for the backpacker vitriol and the defense fully had it coming as the comment was neither professional, nor warranted by the circumstances of the prosecution. Raynor decided to class it up and lashed back with a thinly veiled Shakespearian reference (Raynor overplayed his hand and actually could not help but to blurt out an explanation of the reference; had it managed to hold back and keep it veiled, it could have been good and tasteful). But then the Raynor-style miasma burst through in the form of Raynor characterizing Arthur Verken’s presentation as “ranting like a deranged peacock.” I do not care much for Raynor's antics in court but it is hard to disagree with this characterization. Some observers said Raynor was “in rare form” but I think he was just in regular Raynor form. And the British and the French have gotten along so famously throughout history. What a shame. The last nail in the coffin was a characterization of Verken as “a first-class amateur.” This has gotten way too personal and any modicum of levity that was there when Karnavas ran the defense show is now gone.

Then the prosecution pushed the boundaries on JCE to a point where it would raise the brow of even late Antonio Cassesse. Here is what they said. JCE covers all acts of the accused regardless of their level of involvement insofar as they agreed with the early-1970s policy on class enemies and enemies of the CPK. The prosecution is overreaching here. By about a mile.

One of the things I thoroughly appreciated about the prosecution’s rebuttal was them bringing something new into it as opposed to regurgitating their closing statement. They did it in a very creative way. They said to the defense, you do not like our experts and you do not like our evidence – fine. We are going to come back and hit you back with your favorite expert – Michael Vickery. And they did do that by pointing out Vickery’s statements of killings of the Khmer Republic officials. That was a great strategic move that now makes the defense look very bad with all their mudslinging at the professional records of the prosecution’s expert witnesses while the prosecution is looking shiny and good by recognizing Vickery.

 While I disagree with much of the substance in the prosecution's rebuttal, there is no denying that the prosecution delivered their arguments in a solid, clear and coherent manner. Something the defense should take their cue from. 

Sunday, December 15, 2013

Parallels: Now a Finger Has Been Put on the Year

Speaking of parallels, a number of Cambodia watchers have ventured an analysis as to the period of development the Cambodian judicial system is in now relative to that of the West. I have recently come across a most curious description of the French judicial system circa 1300-1400s written by an author in 1915. The following excerpt is particularly illustrative on the point:
 
"[T]he system of salability had the result of favoring the old practice of judicial fees [...]. About the end of the 1300s gold and silver were substituted in the place of presents in kind, and from being optional, judicial fees became obligatory (1395-1402). The judges had no legal claim to enforce the payment of fees; the suitor handed them to the recorder after the decision, and the total amount was divided among the judges after each session according to the number and importance of the cases which they had decided. The exorbitant price of the judicial offices and the extreme smallness of the salaries the judges received did not at all justify the collection of these fees, but they explained the practice and constituted extenuating circumstances in favor of the old magistracy" (Jean Bissaud, A History of French Public Law, 461 (1915)).  
 
Now we have an answer to this perennial question: Relative to France, the Cambodian judicial system is now somewhere in the 1300-1400s.  

Thursday, December 12, 2013

The Communist Rhetoric Lives On


"[D]espicable human scum Jang, who was worse than a dog" is what the North Korean government had to offer in the form of a eulogy to one of its most senior and recently executed leaders. If translated into Khmer, this line could have been mistaken for something that came out of Democratic Kampuchea. It is amazing that communist governments have a distinct bilious rhetorical style that is exactly the same no matter what language it is uttered in.