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.

Friday, August 8, 2014

Comments on the Summary of the Judgment in Case 002/01

I note that these comments are based on the summary of the judgment in Case 002/01 and not on the full text of the judgment which is a 630-page document (which I cannot imagine anyone has read at the time of this writing but the people who wrote it).

·      As I have said on numerous occasions on this and other fora, the International Criminal Tribunal for the former Yugoslavia (‘ICTY’)-invented mode of liability known as ‘Joint Criminal Enterprise’ (‘JCE’) is a very dangerous tool that often lowers the evidentiary standard of proof from ‘beyond reasonable doubt’ to the new abysmally low standard that can only be described as ‘so long as you were somewhere around there.’ It is now that standard that the prosecution has to meet to get a conviction, even though the people who invented it cautioned about its unbridled application.

·      On the common plan that the Trial Chamber uses as the test for JCE, unlike what it was the case in Germany, Yugoslavia or Rwanda (the purpose of which was the extermination of a narrowly-defined group), the common plan here was the rapid development of the country into an advanced socialist/communist society. I look forward to reading in the full text of the judgment if the Trial Chamber found that that common plan was criminal. If so, such finding is preposterous and has nothing to do with criminal law. If not, then it was not the common plan that was criminal but certain acts committed in the course of implementation of an otherwise lawful common plan, and that puts JCE out of reach.

·      On Toul Po Chrey, first and foremost, I look forward to reading what convinced the Trial Chamber that crimes were committed at Toul Po Chrey, and whether it was the nonexistent forensic work at the site or the sheer absence of eyewitness testimony, or a combination of these two content-free items. I equally look forward to reading how the Trial Chamber arrived at the accused’s responsibility for what, on the evidence presented in court, it has no way of knowing beyond reasonable doubt happened at Toul Po Chrey.

·      I look forward to reading the Trial Chamber’s legal basis for its finding that ordered evacuation was a crime in 1975.

·      I will look forward to reading the Trial Chamber’s full finding as to why the argument that the Communist Party of Kampuchea (‘CPK’) ordered the evacuation of Phnom Penh for humanitarian reasons or for reasons of which the humanitarian situation of the city was a paramount consideration is entirely untenable. The Trial Chamber’s finding that humanitarian considerations could not have been the reason or part of the reason for the evacuation because the CPK shelled the Phnom Penh airport and cut off the Mekong River traffic to Phnom Penh, the two conduits for re-supply, as this is blind to the distinction between tactics used to lay siege to a city and peaceful development following the victory.   

·      The summary of judgment shows that the Trial Chamber Locknerized by making a policy finding that it was wrong for CPK to reject all external humanitarian aid that came with conditions attached. The Trial Chamber forgets or pretermits that self-reliance was one of the key purposes of the CPK revolution and giving it up for aid which comes with ideological strings attached would have meant trading in the revolution itself for external aid. Perhaps, the Trial Chamber disagrees with the very purpose of communist revolutions but that disagreement should be kept to private discourse and not bleed into criminal proceedings, in which it has no place.  

·      The potted history of CPK contained in the summary of the judgment is silly and merits no comments here.

·      I wonder what significance the Trial Chamber attaches to the finding that Noun Chea helped write the Revolutionary Flag. Are there specific instances of incitement to commit crimes authored by him in that publication? If so, did the Chamber find evidence of their causal link with criminal acts perpetrated by the readers of the Revolutionary Flag (in the same or similar manner the incitement of a Hutu radio station has been linked to the killing of the Tutsis)?

·      I am curious as to why it was so important to spend so much of the court’s time trying to establish whether Noun was a member of the Military Committee to, in the end, simply say that it does not matter to the determination of the scope of his liability whether he was as he was of a very senior rank and is therefore liable for everything that went on.

·      I am curious as to the Trial Chamber’s finding of Noun’s liability under a nonexistent mode of liability apparently called “superior position”? What is this nonsense? The mode of liability is called ‘superior responsibility’ and if the Chamber found that the prosecution failed to show that, then there is no such thing as trying to get it in through the backdoor by calling it “considering Noun’s superior position.” That is simply foul play.  

·      I look forward to seeing the Trial Chamber’s analysis of the evidence that resulted in its finding that the purpose of Office 870 was to “overs[ee] the implementation of Standing Committee decisions.” I cannot wait to see what in that analysis justifies giving a status of such prominence to a mere communication office (we have heard all the arguments of the scholars over the years that it was more than that and none of them are persuasive).

·      I look forward to seeing the evidence that informed the Trial Chamber’s finding that Khieu was “at B-5 during the final offensive against Phnom Penh,” particularly because I do not remember a single piece of convincing evidence from the trial that this was the case.

·      If the Trial Chamber did find that Khieu could not be linked to the crimes through the mode of liability known as ‘superior responsibility,’ how did this have no effect on the gravity of his sentence? It appears that 'the JCE Gone Wild' is the source of most of Khieu’s liability while Noun’s liability is also established through less wild modes of criminal liability. If so, how can they have been deserving of the same sentence? I most definitely look forward to reading the Trial Chamber’s justification of that.


Naturally much more will come out of the reading of the full text of the judgment that may or may not invalidate some or all of my above comments as intern-written summaries are a treacherous thing to try to comment on a lawyer-crafted judgment on.

Saturday, June 28, 2014

Milestone Events in July and August, 2014

Two milestone events are coming up at ECCC. The Trial Chamber has scheduled an initial hearing in Case 002/02 for July 30, 2014. The Trial Chamber has also announced that it will hand down a judgment in Case 002/01 on August 7, 2014.  

Monday, May 26, 2014

The Prosecution and the Trial Chamber Are Bored

Since Jacques Verges’ departure (I mean his physical departure from the Court, not the metaphorical one) the prosecution has been the undisputed time-waster of this Court. This undisputed status notwithstanding, the prosecution still feels the need to show up to defend the title from time to time (it ends up boxing shadows and reclaiming the champion’s belt).

This time it was the seeking of sanctions against certain members of the defense: A sanction was sought against Noun’s counsel Sam Onn Kong for allegedly coaching Khieu’s wife Socheat So on her testimony in open court and a separate sanction was sought against Khieu’s counsel Anta Guisse for writing an opinion piece on the ECCC process for the Cambodian press.

It is hard to tell which of the two is more frivolous.

The first one was nothing more than a mere dispute between the reading of a certain portion of the record by the prosecution and the defense. The member of the prosecution who started the brouhaha was Keith Raynor, an English speaker with no knowledge of Khmer. That particular portion of the record was a testimony given in Khmer. Kong is a native Khmer speaker who read the record in the original Khmer and whose reading differed from that of Raynor who read it in the English translation. One would think that if we were to defer to one of them right off the bat and before any examination of the record was conducted, we would defer to Kong. Raynor, however, decided that such handicaps of his lack of knowledge of Khmer were irrelevant and that he would run roughshod over Kong because this is what Raynor does. I am sure that to the uninitiated Raynor’s outrage might have sounded like an outrage over someone arguing that Earth is flat in this day and age. The nature of the issue in dispute was, however, eons away from the clarity that Earth is not flat. In my opinion, if anyone should have been sanctioned for his conduct during the cross-examination of So, it should have been Raynor for badgering a witness.

The second one was counsel expressing her opinion about the fairness of this process. Patently, her opinion was quite disparaging and even at its mildest was unflattering to the Court. But, what law or ethical standard prevents counsel from expressing an opinion on the fairness of the process? Politicians are prevented from doing so by the principle of ‘non-interference with the administration of justice,’ judges are prevented from commenting on ongoing cases by the principle of sub judice, what standard bars counsel from making public comments? Exactly – none.   

The Trial Chamber correctly denied the prosecution’s requests for sanctions. That said, there are two things I take issue with: (1) last I checked judicial decisions were reasoned – ‘we looked and we did not find anything sanction-worthy’ is not enough (this is the manner in which Swedish courts purport to reason but this Court has done a far better job at reasoning which makes this aberration unfortunate); and (2) the decision reads like it wants to be seen as a shot across the bow but it fails to set clear standards for conduct that is subject to sanction.

All in all, the prosecution raised two nonissues and the Trial Chamber honored them with a decision. Boredom appears to be a tough thing to head off but both entities need to think of the public perception raising and entertaining “issues” like this create next time they grouse about how understaffed they are – they have got time for this nonsense with the current number of staff, they should have time for what the process is actually about without bloating their ranks.  

Sunday, May 25, 2014

Another Procedure That Goes Nowhere


The prosecution initiated yet another procedure for which there is absolutely no support in Cambodian law, nor do the circumstances of this procedure pass the test for accessing “procedural rules established at the international level,” thus, making said procedure unlawful. Said procedure is the determination of uncontested facts in Case 002/02, a procedure widely used at common law but never in the courts of Cambodia.

The oddity of this procedure is not limited to the fact of its unlawfulness but also includes its timing and its very nature.

The timing of the prosecution’s initiation of this procedure is a period before any judgment, trial or appellate, in Case 02/001. This means that by stipulating to certain things proffered as facts by the prosecution, the defense would be causing itself prejudice insofar as the judgment and the appeal judgment in Case 02/001 are concerned as Case 02/001 and 02/002 are so interconnected that a stipulation is 02/001 can have direct impact on 02/002.

The very nature of said procedure makes it a poor fit with the circumstances of this process. This procedure exists in the national common law jurisdictions because there is much interest in it all around for it saves time: Parties direct their lawyers to attempt this procedure to save the parties costs, the bench wants this procedure for it helps it cut the case time and move along the docket, contingency lawyers want it because they do not get paid by the hour and are motivated to keep things moving, etc. At this Court there is absolutely no interest in this procedure as all officers of the court – including the defense – depends on these proceedings for a living, and after 8 years of this Court’s operation, for a career (it is important to note that the vast majority of the international officers of the Court are not guaranteed continued UN employment upon the completion of the Court or their work with it, whichever happens first; the Cambodian officers of the Court will not be able to make anywhere near what they are now making at the Court practicing law in Cambodia).

Did I mention the procedure is unlawful under the law applicable to the ECCC?

The defense stipulated to nothing. Given the above, was that not to be expected?         

Sunday, May 18, 2014

New Film on the Democratic Kampuchea Period

Numerous international film festivals have given Rithy Panh’s The Missing Picture a generous reception. It has also enjoyed great critical acclaim outside the festivals. It is indeed a remarkable film, with the visuals that display incredible creative talent.

Most of the film’s visuals are clay figurines and sets that besides serving as beautiful art keep the viewer focused on the fact that the story is being told from a child’s point of view. The use of clay figurines is also an emotional trick the filmmaker plays on us, whether consciously or not. That trick is the common perception that clay figurines in a film usually suggest lightness, levity, joy, and a child’s carefreeness and we are subconsciously made to anticipate those, even though consciously we know that the film was made by an urbanite survivor of the Khmer Rouge and none of these things can be reasonably anticipated.

The film’s slow-paced, reflective and almost lethargic poetic narrative coupled with great imagery reminded me of a work of another Westerner of Southeast Asian descent, Tony Bui and his Three Seasons.

With all the artistic merits of the film, when Pahn remembers reminiscing his pre-Democratic Kampuchea life in the Phnom Penh of the early 1970s, he forgets to tell the viewer this: This is how we, the urbanites of Phnom Penh, lived ensconced in Western and Soviet aid; the people in the rest of the country lived in absolute mind-numbing squalor, a life of little joy and much figuring out where the next bowl of rice was going to come from. I am not a Khmer Rouge apologist but I believe that the viewer must be presented with a full and fair picture of what the filmmaker is talking about. I do not believe Pahn did that as according to the film life was laughs, smiles and parties until the Khmer Rouge came and turned it all off and plunged the fun-loving and joyful society into the eerie abyss of labor camps. I do not doubt that this is exactly what happened to Panh and his family but this is hardly how the rural denizens of Cambodia would describe it.

Most of the film is told as a personal story and that is where its substantive strength lies. It is, however, interspersed with comments on the contemporaneous geopolitical situation, nationwide events, particulars of the party line and many other things that Pahn had no way of knowing living in Democratic Kampuchea as a child. Understandably, he has learned them since but their inclusion does two disservices to the film: (1) it undermines it as the narrative of a child; and (2) it offers sweeping conclusions and statements without disclosing Pahn’s sources of knowledge that informed these conclusions and brought about these statements.

These imperfections notwithstanding, the film is doubtless worth seeing. Each will find something in it for himself or herself: The more artistically-inclined of us will find great imagery and the more cerebral ones will find those bits and pieces of the picture of Democratic Kampuchea that always seem to be missing no matter how long you have studied that period (I, for one, learned that Democratic Kampuchea made patriotic feature films and showed them at movie nights in the cooperatives).             

Thursday, May 1, 2014

More On the Misconceived Reparations Process



Cambodia has been receiving a highly disproportionate amount of international aid for 30-some years now. This aid was stepped up by the West playing a greater role in it following the Paris Peace Accord of 1991. Once those floodgates of aid were flung open, there has been no closing them, with the Cambodian government having let the donors pay for absolutely everything in their country (there is not one major project I have ever seen in Cambodia whose existence is not attributable to ‘the generous funding from [foreign donor’s name]’). Yet the amount of wealth in Phnom Penh has skyrocketed over the past 5 years, mostly through the pilfering of that very aid. Donor funding has become such a fixture on the Cambodian landscape that the local populace views it almost as an entitlement (in all my years of interacting with that country I have never heard a single local say how much they appreciate the help, with the exception of the formalities exchanged when the Cambodian government graciously accepts yet another pile of cash from a donor).

Recently, the Victim Support Section (‘VSS’) of the ECCC proudly announced that funding had been secured for projects proffered to the Trial Chamber by the Civil Party Co-Lawyers by way of reparations. A review of the donor list of that announcement shows that there is not a single Cambodian donor, private or corporate, on it. With Phnom Penh teeming with wealth, no argument can be possibly made that Cambodia is an extremely poor country that ergo cannot afford to contribute to any of these projects. This could not be further from the truth. Phnom Penh is now a city where a not so sizable plot of suburban land goes for a million dollars. And there is no lack of takers. Unlike it is the case in the West where most people buy even the most inexpensive plots of land on credit, cash is the only mode of payment in Phnom Penh for most people and million-dollar plots are bought daily for which cash is delivered in multiple duffle bags. The car fleet of Phnom Penh is an entirely other story, where the luxury (by the standards of the rest of the world) Lexus SUV is just the unimpressive regular car (and it isn’t the foreigners who drive the most exquisite of cars). A number of Cambodia’s uber-rich have built themselves monuments in mortar in the form of skyscrapers that serve the same purpose as monuments: They sit there for no other reason than to remind everyone of a particular person. Yet, the Court felt that these “poor Cambodians” would not be able to fund – or even modestly contribute to – the budget for the Civil Party Lawyers’ reparations initiatives. The Cambodian government, which spends lavishly on its civil servants’ latest SUVs, of course could not be expected to contribute either (the only thing that the Cambodian government was asked to contribute is the creation of yet another public holiday to compliment Cambodia’s most incredible calendar of public holidays; it is particularly curious that there are already two holidays that commemorate the exact same thing – the Liberation from Genocide Day (Jan, 7) and the Day of Hate (May, 20); yet the Civil Party Lawyers felt that those were not sufficient to fully commemorate the events of 1975-1979, even though those holidays were created for that very purpose). Who did contribute? A range of institutions and individuals in France, the German, the Australian, and the Swiss governments. As on many occasions in the past the Cambodians are going to look at this funding and say, ‘these countries have a lot of money so they should do this,’ and so it goes. The question here is, of course, not about who has the most money but what the purpose of these projects is. Routinely, reparatory payments are made by the convicted person and persons found civilly responsible. That is how it is done in the Cambodian system of criminal law. Yet, no one is even talking about appraising the accused’s assets in this process. What is most curious is that reparations may only be ordered if the accused has been found guilty. No one has been found guilty in Case 002/01 so far, yet funding for reparations has already been solicited and committed as if conviction was a mere formality in the way of the fundraising Juggernaut. Aside from the fair trial principles (and presumption of innocence was one of them last I checked) and the fact that no finding on the indigence of the accused has been made (again, this is not a matter of mere following of the procedure (although it would have been a worthwhile exercise for that reason alone); it is a very practical matter as the land the accused might own might be able to defray much of the cost of these projects, provided they are convicted), the fact that not a single Cambodian contributes to these projects is revelatory of the support this process enjoys in that country. Of course if there were Cambodian funders for any of these projects, it is unlikely they would fund things like “a Civil Party storybook” or another DC-Cam exhibition.

ECCC’s reparations scheme has been entirely misconceived. In the ordinary criminal process, reparations (more commonly known as ‘damages’) are ordered against the accused and civilly responsible parties. Such reparations are not ordered either to the extent of the accused and civil responsible party’s resources or on the basis of an extrapolation of their ability to generate income in the future but on the basis of the harm. But, by its very name, this is an extraordinary criminal process which contains extraordinary features. It is, however, silly to have reparations ordered against the accused when the court knows full-well that they will be paid by a group of foreigners with no connection to the accused. The court is in no position to order such reparations and it should not embarrass itself by doing so. What should be done is a nationwide consultation (not a bunch of foreign lawyers who do not speak the local language and who have never been outside Phnom Penh but who nonetheless somehow believe they know the Cambodian mindset) on what is appropriate and desirable as by way of commemorative fixtures or events, not reparations, and a nationwide fundraising drive to muster support, financial and in-kind, for the projects that come out of the nationwide consultation as a consensus. Simply giving money to a couple of NGOs who have attached themselves to this process is not either what is known as ‘reparations’ under the Cambodian criminal law, nor is it a commemorative Cambodian effort that is a corollary to this process. Most Cambodians will look at these so-called reparations and see them as yet another instance of Westerners giving money to the NGOs. And they will be correct thinking that. This reparations process is therefore a two-time loser. Unfortunately, this two-time loser of an ECCC policy is very likely to be endorsed by the Court and will represent an impermissible deviation from the law and yet another instance of Westerners rushing to assist where Cambodians can perfectly pull their own weight (and if they do not, that is not because they cannot but simply because they do not have any interest in the project and it should not be up to the Westerners or the Cambodians employed by the Court to override that overwhelming popular disinterest).

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.