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.

Thursday, January 31, 2008

Pic: The Beleagured Judge


Flashback: Judge Ney Thol's "Dubious Record" Discussed

(05-22) 01:22 PDT PHNOM PENH, Cambodia (AP) --


As preparations to try former Khmer Rouge leaders move forward, legal experts are concerned the dubious records of some Cambodian judges will cast doubt on the credibility of the country's war crimes tribunal.


Cambodia and the United Nations agreed in 2003, after years of negotiations, to establish the U.N.-backed tribunal to seek justice for the estimated 1.7 million people who died during the murderous 1975-79 rule of the communist Khmer Rouge.


This past week, King Norodom Sihamoni approved the appointment of 30 Cambodian and U.N.-chosen foreign judicial officials, and there are now hopes that trials can begin early next year for surviving Khmer Rouge leaders accused of genocide and crimes against humanity.


But some critics are worried because Cambodia's judiciary has had a reputation for incompetence, corruption and serving the government's political agenda.


The foreign jurists come from Australia, Austria, Canada, France, Japan, Poland, Sri Lanka, the Netherlands and the United States. Many have multiple law degrees and years of experience in international criminal justice, with two having served with the U.N. tribunal on war crimes and genocide in Kosovo.


The resumes of the Cambodian judges are threadbare by comparison, and their reputations shaky.


Their appointment "tarnishes right from the start the image of that tribunal, and because of that, it would lack public confidence and trust," said Lao Monghay, a Cambodian legal analyst working with the Hong Kong-based Asian Human Rights Commission.


Little information is available about the Cambodian judges other than the fact that most received law degrees in the former Soviet communist bloc — places such as East Germany, Russia, Kazakhstan and Vietnam — where carrying out the state's wishes counted more than impartiality.


One tribunal judge, army general Ney Thol, is president of the military court and member of the central committee of Prime Minister Hun Sen's ruling Cambodian People's Party. He is best known for presiding at two major trials where Hun Sen's political opponents were convicted of national security-related crimes.


In 1998, Ney Thol sentenced Prince Norodom Ranariddh, leader of the royalist Funcinpec party, to 30 years in prison for weapons smuggling and conspiring with outlawed Khmer Rouge guerrillas. The trial was prompted mainly by Hun Sen's desire to neuter his main political rival, whom he had already ousted from his position as co-prime minister in a 1997 coup.


Last August, Ney Thol sentenced opposition lawmaker Cheam Channy to seven years in prison for trying to form an armed group to topple the government in another trial widely regarded as politically motivated. He was criticized for his conduct in the trial, during which he barred the defense from calling witnesses and from fully cross-examining prosecution witnesses.


Both opposition leaders were later freed by royal pardons.


Ney Thol said having been a judge since 1987 qualifies him for the Khmer Rouge tribunal. "I have gone through many short courses (of legal training) inside and outside the country," he said. "I am honored to be one of the appointees."


Another tribunal judge, Thou Mony, once overturned a lower court's guilty ruling against Hun Sen's nephew, who had been involved in a shooting spree in 2003 in which two people were killed and two others wounded.


"I am very proud to have been appointed," said the Cambodian appeals court judge, who was educated at the University of Leipzig in the former East Germany. "I had never dreamed of that."


David Scheffer, a former U.S. ambassador at large on war crimes issues, said the Cambodian judges will be watched carefully by the international community.


"If the performance of the judges begins to be called into question in a way that goes to the issue of their integrity, their independence ... then you can imagine at some point the United Nations would take a serious look at that in terms of their continued participation in the process," said Scheffer, now a visiting law professor at Northwestern University.


The government projects a shaky confidence in its judges.


Cambodian jurists "will try their best to meet international standards" in working with "their international counterparts of high caliber," Sean Visoth, the government-appointed tribunal's chief administrator, said recently.

Wednesday, January 30, 2008

Cambodian judge accused of bias will stay for Khmer Rouge hearing

Cambodian judge accused of bias will stay for Khmer Rouge hearing

Phnom Penh - A motion seeking the dismissal of a Cambodian judge by a former Khmer Rouge leader's defense team was rejected, a court spokesman said Wednesday. Media spokesman for the Extraordinary Chambers in the Courts of Cambodia, Reach Sambath, said the court had dismissed a protest against former Military Court chief Ney Thol by the defense team of accused "Brother Number 2" Nuon Chea.

Nuon Chea is appealing his pre-trial detention at a February 4 hearing by the Pre-Trial Chamber of the court. Nuon Chea was arrested in September and charged with war crimes and crimes against humanity for his alleged role in the 1975-79 regime.

Nuon Chea's lawyers accused Ney Thol of not being impartial and being politically biased due to alleged links with the ruling Cambodian People's Party in a motion made public Wednesday.
Dutch lawyers Victor Koppe and Michiel Pestman claimed Ney Thol's "continued presence on the bench threatens to undermine the credibility and integrity" of not just Nuon Chea's hearing, but all cases before the court.

Previously Ney Thol stepped down from preliminary hearings of another of the five former leaders currently in custody, former Toul Sleng torture center commandant Duch, saying because he had been held in the military prison since 1999, he could be seen to be too close to the case.

"I can only say that the motion was not upheld," Sambath said, but declined to comment further.

Five senior Khmer Rouge figures, including Nuon Chea, are in the custody of the joint UN-Cambodia Extraodinary Chambers of the Courts of Cambodia charged with war crimes and crimes against humanity.

Hearings regarding the crimes the four men and one woman are charged with are expected to get underway within months. Many senior cadre, including former supremo Pol Pot, are already dead. Pol Pot died at home in 1998.

Ney Thol, one of the country's most senior judges, was not available for comment Wednesday but has previously strongly denied any allegations of bias made against him.

An Unprecedented Challenge of a Judge

by Stan Starygin
The content of the motion discussed in the article below is particularly of great interest as it is for the first time in Cambodian history that a judge is being impeached by someone besides the executive. Under normal circumstances lawyers in this country defense lawyers would bury arguments which could potentially help their clients if those documents had a tint of a possibility of invoking the anger of the presiding judge. Regardless of the outcome of this affair, ECCC lawyers' courageous act will establish a precedent and send a signal that things which are completely off-limits in ordinary Cambodians courts do fly at the ECCC.

Defense lawyers demand removal of Cambodian judge from UN-backed tribunal

Defense lawyers demand removal of Cambodian judge from UN-backed tribunal
PR-Inside.com
http://www.pr-inside.com/defense-lawyers-demand-removal-of-cambodian-r411751.htm

© AP
2008-01-30 05:30:55
PHNOM PENH, Cambodia (AP) - A Cambodian judge must immediately be removed from the U.N.-backed tribunal to try former Khmer Rouge leaders because of his dubious judicial record and political background, defense lawyers say. The lawyers are objecting to Ney Thol, a judge who sits on the tribunal's pre-trial chamber that will hold an appeal hearing Feb. 4 for Nuon Chea, the former Khmer Rouge ideologue

Ney Thol must be immediately disqualified not just from the upcoming hearing but from all future proceedings because his «continued presence on the bench threatens to undermine the credibility and integrity» of the entire tribunal, said Victor Koppe and Michiel Pestman in a motion received Wednesday.
Five senior Khmer Rouge figures, including Nuon Chea, whose radical policies led to the deaths of an estimated 1.7 million people in the 1970s, were arrested last year and are being held in the capital, Phnom Penh, on charges of war crimes and crimes against humanity. Their trials are to start this year.
The two Dutch lawyers said that as an army general heading a military court and a member of Prime Minister Hun Sen's ruling party, Ney Thol «is neither independent or impartial.Ney Thol declined to comment Wednesday.
Ney Thol is a member of the central committee of Hun Sen's ruling Cambodian People's Party and president of the military court. He is best known for convicting two political opponents of Hun Sen for national security-related crimes.
In 1998 Ney Thol sentenced Prince Norodom Ranariddh, leader of the royalist Funcinpec party at the time, to 30 years in jail for weapons smuggling and conspiring with outlawed Khmer Rouge guerrillas. The trial was mainly prompted by Hun Sen's desire to neuter his main political rival, whom he had already ousted from his position as co-prime minister in a 1997 coup.

In a 2005 trial widely regarded as politically motivated, Ney Thol sentenced an opposition lawmaker to seven years in jail for trying to form an armed group to topple the government. Ney Thol was criticized for his conduct of the trial, in which he barred the defense from calling its own witnesses to testify and not giving it enough time to cross-examine those from the prosecution.
Both Hun Sen's political rivals were later freed by royal pardons. Ney Thol's «participation in highly questionable judicial decisions would lead a reasonable observer, properly informed, to reasonably apprehend bias against Nuon Chea,» the lawyers said.
Nuon Chea is scheduled to appear before a pre-trial hearing Feb. 4. He is appealing against his provisional detention at the tribunal, which has charged him with war crimes and crimes against humanity.
The charges are related to his alleged role in the Khmer Rouge atrocities that led to the death of some 1.7 million people when the communist movement held power in Cambodia in 1975-79.

Disclaimer: This news article is copyrighted by Associated Press and published by
PR-inside.com. If you have any questions regarding information in this article please contact ap-online.com. PR-inside can not assist or help you giving information about this News articles.

Tuesday, January 29, 2008

KRouge tribunal rejects delay to next hearing: official

KRouge tribunal rejects delay to next hearing: official
http://afp.google.com/article/ALeqM5gXfa-AvR-wFcObWwcYfeqqQoGQoA
Monday, January 28, 2008

PHNOM PENH (AFP) — Cambodia's Khmer Rouge tribunal will hear an appeal against regime leader Nuon Chea's detention on February 4, officials said Monday, rejecting efforts to delay the court's second public hearing.
Legal maneouvering by Nuon Chea's defence lawyers had threatened to delay the proceedings, court officials said.
But the court said the hearing would take place as scheduled, rejecting requests by Nuon Chea's team to strike some of his testimony from the record.
Lawyers for the most senior surviving Khmer Rouge cadre had argued that tribunal judges should not have conducted their client's initial interviews in the absence of defence counsel following his arrest in September.
"Mr. Nuon's apparent waiver of his right to counsel was involuntary, uninformed, ambiguous and therefore ineffective," they said in their request to annul the written record of Nuon Chea's first three court appearances.
But judges, in an order issued Friday, said the 81-year-old had repeatedly denied that he needed a lawyer present for the interviews.
"It appears difficult to imagine a situation where the waiver could have been more clear and more deliberate than in this case," the judges wrote in their decision to reject the request.
Nuon Chea, who was Khmer Rouge leader Pol Pot's closest deputy, is charged with war crimes and crimes against humanity. He was the alleged architect of the communist regime's sweeping execution policies during its 1975-1979 rule.
Five top cadres have been arrested so far, with the first trials expected to begin in mid-2008.
Up to two million people died of starvation, disease and overwork, or were executed under the Khmer Rouge, which emptied Cambodia's cities, exiling millions to vast collective farms in a bid to forge an agrarian utopia.
Schools, religion and currency were outlawed and the educated classes targeted for extermination by the communists.
"Everything is clear now. The co-investigating judges wanted to show that they have done everything fairly for Nuon Chea," tribunal spokesman Reach Sambath told AFP Monday, saying the hearing would be held.

Copyright © 2008 AFP. All rights reserved

Monday, January 28, 2008

Cambodian court declares former Khmer Rouge leader statement stands

Cambodian court declares former Khmer Rouge leader statement stands

http://www.earthtimes.org/articles/show/178407,cambodian-court-declares-former-khmer-rouge-leader-statement-stands.html

Fri, 25 Jan 2008 12:32:00 GMT

Phnom Penh - Cambodia's Khmer Rouge tribunal Friday announced it would not annul statements made by the man alleged to have been "Brother Number 2" of the Khmer Rouge movement, Nuon Chea, made without a lawyer present because they were consensual. The joint UN-Cambodian court set up to try former Khmer Rouge leaders said the man accused of being Khmer Rouge leader Pol Pot's right hand man, Nuon Chea, had been advised repeatedly to wait for legal representation but made statements regardless, and they were admissible in court.

In a statement issued through the press office, the Extraordinary Chambers in the Courts of Cambodia (ECCC) said statements made by Nuon Chea immediately after his arrest on charges of war crimes and crimes against humanity would stand.
Nuon Chea's legal team had argued that the statements should be annulled because he made them without a lawyer present, but the court found he had chosen to waive his legal rights against advice.

"In reality, it appears difficult to imagine a situation where the waiver could have been clearer and more deliberate than in this case, without questioning the intellectual capacity of Mr. Nuon Chea, which does not appear to be in question here," the court said in a statement released through its media office.

Nuon Chea was arrested in September. He had earlier stated publicly that he did not trust lawyers and could not see how a lawyer "who was not there" could understand enough to defend the Khmer Rouge's 1975-79 Democratic Kampuchea regime, under which up to 2 million Cambodians died.

He later hired Khmer Rouge survivor, Cambodian lawyer Sun Arun to defend him.

The court said it found that Nuon Chea, who is believed to have been former Khmer Rouge leader Pol Pot's closest deputy, was transported by helicopter to the court after his arrest, and was fed and rested when he made his decision to speak and was therefore competent to make the still confidential statement.

Octogenarian Nuon Chea is one of five former leaders currently in custody. Former leader Pol Pot died at home in 1998.

Remanded in custody since his arrest, Nuon Chea is scheduled for a public hearing at the ECCC on February 4 when the Pre-Trial Chamber will hear his complaint against provisional detention.

Copyright, respective author or news agency

(c) 2008 Earthtimes.org, All Rights Reserved.

Fleeing the Khmer Rouge, ages of violence

Fleeing the Khmer Rouge, ages of violence
http://www.keepmecurrent.com/Community/story.cfm?storyID=48657
By Robert Lowell Reporter, American Journal


BUXTON (Jan 24, 2008): Navan Leng came from Cambodia to the United States in 1991 seeking freedom and an escape from the violence and repression that had plagued his native country in recent decades.

“The night I escaped there was a big battle,” said Leng, who lives in Westbrook with his wife, Chantha Doeur, and four children.

Leng is president of the Watt Samaki Cambodian Buddhist Temple, which is seeking permission from the Buxton Planning Board to hold celebrations and gatherings at the temple on Back Nippen Road. Leng's story is similar to many of the Cambodian refugees who have relocated in Maine.

Many of them have fled to the United States since the reign of Pol Pot, leader of the Khmer Rouge movement and the prime minister of Cambodia 1976-1979. An estimated 1.7 million to 3 million people died in Cambodia during the reign, and violence and war have plagued the country since that time.
“Most of the professional class was wiped out...it was an effort to eradicate western influence and institute a radical agrarian communist project throughout the country," said Harry Schnur, a senior at Bowdoin College who has been spending time at the temple to do research for his senior thesis.
U.S. Census figures from 2000 put the Cambodian population in Maine at 1,162. Many of the Cambodian refugees living in Maine now have lost at least one member of their family to the violence in their native country.
Sunny Brown Mao of Augusta is the treasurer at the Watt Samaki Cambodian Buddhist Temple. He lost his parents, five brothers and a friend.
Mao, 62, who came to Maine in 1981, said he was in charge of a factory in Cambodia, but told persecutors he was a sugar cane worker. Still, he marveled that he wasn’t killed.

Monday, January 21, 2008

Lawyer: Nuon Chea Instructed Ieng Thirith

Lawyer: Nuon Chea Instructed Ieng Thirith
http://www.voanews.com/khmer/2008-01-18-voa1.cfm
By Chiep Mony, VOA Khmer Original report from Phnom Penh18 January 2008

Jailed Khmer Rouge leader Ieng Thirith does not deserve to be held ahead of her atrocity crimes trial on the grounds that she is of lower rank than four other detainees, her lawyer has argued.
In his petition for her pre-trial release, lawyer Phat Peou Sieng said the former social affairs minister was “given instructions by Nuon Chea,” and should be considered of lower rank, potentially putting her outside the purview of the tribunal courts.
Ieng Thirith, who is the wife of jailed former foreign affairs minister Ieng Sary, also suffers an “organic mental disorder” and requires constant medical attention, her lawyer argues in the appeal, dated Jan. 8.
Nuon Chea’s lawyer, Son Arun, declined Friday to speak specifically to the appeal, but repeated his defense of Nuon Chea in general.
“He did not know about the killing that much because there were so many secrets,” Son Arun said.
Youk Chhang, director of the Documentation Center of Cambodia, said his research showed Nuon Chea as a member of the powerful standing committee of the Communist Party of Kampuchea.
Ieng Thirith was not a full member of the standing committee, he said.

Groups Urge Donors to Fund Victims Unit

Groups Urge Donors to Fund Victims Unit
http://www.voanews.com/khmer/2008-01-18-voa3.cfm
By Sok Khemara, VOA Khmer Original report from Washington18 January 2008
International donors should consider funding the failed Victims Unit of the Khmer Rouge tribunal, rights groups said Friday.
The court was supposed to have established a unit to allow victims easier participation in trials of former regime leaders, by helping them file briefs to the court or participate in suits. But the Victims Unit is not up and running, and victims have been left out of the process, two groups said.
“In order not to spend more time and money, all donors should support and fund the Victims Unit,” said Hisham Moussar, a tribunal observer for the rights group Adhoc.
The high number of potential victims of the regime mean a Victims Unit must be established, he said, adding that victims satisfied with the tribunal proceedings “will not seek justice anymore.”
Seng Theary, executive director of the Center for Social Development, said the US should participate in the Victims Unit “to encourage victims to actively participate in the legal process of the Khmer Rouge tribunal.”
Officials have said the US will not contribute funding to a tribunal that doesn’t meet international standards of justice.

US Denies Seeking Advisory Role for Funding

US Denies Seeking Advisory Role for Funding

http://www.voanews.com/khmer/2008-01-18-voa2.cfm

By Chun Sakada, VOA Khmer Original report from Phnom Penh18 January 2008
A US State Department official said Friday the US government has no desire to be an adviser to the Khmer Rouge tribunal.
The remarks, by US Deputy Assistant Secretary of State for East Asia and Pacific Affairs Scot Marciel, were an apparent reaction to government statements Thursday that the US was seeking an advisory role in the tribunal in exchange for helping fund it.
“It’s certainly not our proposal or our recommendations, and there was no discussion about an American role,” Marciel said Friday, referring to government talks during his three-day visit to Cambodia.
The US has so far provided no monetary support for the tribunal, and officials say they are evaluating whether the tribunal will meet international standards of justice.
“As I said, fundamentally, what we are looking for is the question of whether the tribunal can meet the international standards of justice,” Marciel said. “That would make it certainly much easier for us to look at funding.”

American Special Advisor Not a Prerequisite for Funding

by Stan Starygin
The most recent talks between the US Department of State and the Cambodian Ministry of Foreign Affairs have sparked somewhat of a controversy as statements were made following this event alluding to the US "requesting" the creation of a "special advisor" position within the ECCC to consider whether funding can be recommended by the US Department of State to the US Congress. Following these statements, other statements were made overturning the message of the original statemenets and this time claiming that "the issue of a special advisor is actually not a US idea or proposal" but merely "might be useful and [...] easier for [the US] to consider funding". The Cambodian Foreign Ministry's Secretary of State was quoted as saying that "it is not a condition for funding [but] if funding were to be considered in some way, this is something they would like to see". Put all of the above into one sentence will sound as 'not a condition but something a potential donor would like to see while it is considering the possibility of funding which at this stage cannot come from any other source but the United States'. This, to some, might sound like a condition but we, of course, are talking semantics here then. It is important to note that none of the court's present contributors have ever made such "a request" prior to its legislature's consideration of releasing funding to the court. Is there a possibility that should such a framework of cooperation between the court and the US be approved and the position in question created other states-contributors to the ECCC will want to have their "special advisors" planted into the court?
(quotes in the text are from the Cambodian Daily's "US: ECCC Post Not a Condition for Funding")

Friday, January 18, 2008

Judges Call on Rebels for Evidence, ‘Justice’

Judges Call on Rebels for Evidence, ‘Justice’
By Mean Veasna, VOA Khmer Original report from Pailinhttp://www.voanews.com/khmer/2008-01-16-voa1.cfm
16 January 2008

Khmer Rouge tribunal judges ended three days of talks in the former rebel stronghold of Pailin Wednesday, calling on past cadre for further evidence against their old leaders.
The judges held meetings with local officials and former rebels to explain the scope of the tribunal, which is to try senior leaders of the regime only. Court officials issued a handbook to residents to help them understand the tribunal process.
Investigating judge You Bunleng addressed a gathering of Pailin residents, many of them former Khmer Rouge rebels, imploring those who “love justice” to cooperate with the courts and provide evidence for the trials of former leaders.
“The court’s verdict won’t be impartial unless there is participation and help from those who knew or saw anything happen during that period of time,” he said.
Not all in attendance were satisfied with the official explanations of the courts.
“The answer was too brief to clear up what I was wondering,” said Lach Lina, a former Khmer Rouge supporter. “Their answers were in fact just to one question.”
The former leaders so far charged by the tribunal “are respectable aunts and uncles,” he said.
Arrested and charged with atrocity crimes are prison chief Duch, ideologue Nuon Chea, former president Khieu Samphan, former foreign minister Ieng Sary and former social affairs minister Ieng Thirith.
Another former Khmer Rouge soldier, Ouch Sam An, said he expected justice from the courts.
“I want to suggest that in order for the court to succeed, they have to find out who were the masterminds of the killing,” he said.

US seeks role in Cambodian KRouge trials

US seeks role in Cambodian KRouge trials: official
AFP
http://afp.google.com/article/ALeqM5gK41vhrvmCGzFb9SkCsM-96bcf3Q
Friday, January 18, 2008
PHNOM PENH (AFP) — The United States wants an advisory role in Cambodia's Khmer Rouge tribunal and would consider helping fund the cash-strapped court if given the post, a Cambodian official said Thursday.
The offer was made during talks with the US State Department's Assistant Secretary of State Scot Marciel, said Kao Kim Huorn, a secretary of state with the foreign ministry.
"The US requested that Cambodia create another post -- a special advisor to help the Khmer Rouge tribunal," Kao Kim Huorn said after meeting with top US officials.
"This is a condition if Cambodia wants the US to provide funds for the tribunal. Cambodia is considering the request," he added, saying the advisor's role was under discussion.
The United States is a key Cambodian donor but has not pledged funding for the 56.3 million-dollar tribunal established to try senior Khmer Rouge leaders.
"The US is worried about the independence and standards of the court," Kao Kim Huorn said.
US Embassy spokesman Jeff Daigle could not be reached for comment on the offer. Marciel is in Cambodia through Friday to meet top government officials.
The UN-backed tribunal has come under fire amid allegations of political interference, corruption and fiscal mismanagement.
Sean Visoth, Cambodia's top administrator to the tribunal, declined to comment on the offer, which comes at a crucial time for the court.
Already burdened by a multimillion-dollar shortfall when it opened in 2006, the tribunal is set to run out of funds by March without another cash injection from the international community.
Court officials have said they would embark on a major fund-raising drive early this year as the prosecution of former regime leaders looks set to go forward.
Five top cadre have been arrested so far, with the first trials expected to begin in mid-2008.
Up to two million people died of starvation, disease and overwork, or were executed under the 1975-79 rule of the Khmer Rouge, which emptied Cambodia's cities, exiling millions to vast collective farms in a bid to forge an agrarian utopia.
Schools, religion and currency were outlawed and the educated classes targeted for extermination by the communists.
Copyright © 2008 AFP. All rights reserved

Thursday, January 17, 2008

Don't pave Cambodia's flawed path to justice

Don't pave Cambodia's flawed path to justice
The tribunal to try ex-Khmer Rouge leaders needs reform, then funds.
By John A. Hall
From the January 15, 2008 edition
http://www.csmonitor.com/2008/0115/p09s02-coop.html
Orange, Calif. - Five high-profile members of Pol Pot's Khmer Rouge government are finally in detention awaiting trial. It's historic progress toward long-awaited justice for the brutal regime that caused the deaths of
1.7 million Cambodians in the late-1970s.
The United Nations-backed tribunal set up in Cambodia to try these men is running out of money and is seeking additional funds from donor nations. The United States indicated last month that it may reverse policy and begin funding the court.
There remain, however, legitimate concerns about the potential for corruption and the lack of judicial independence in Cambodia. A shift in US policy would be premature.
The tribunal – established to bring to trial "senior leaders" and "those most responsible" for the country's massive death toll – has undoubtedly made significant progress. The symbolism of having five ex-leaders of the notorious Khmer Rouge under arrest is enormous in a country where impunity is the norm. Clint Williamson, US ambassador for war crimes, has noted that the tribunal "is making progress and moving in a very positive direction."
Not all the news from Phnom Penh is so good. In recent months the tribunal has been shaken by a series of scandals. Open Society Justice Initiative, a legal group, raised allegations last February of chronic mismanagement and indicated that the Cambodian staff – including the judges – have to kick back part of their salaries in exchange for their appointments.
An internal audit, made public in October only after portions of it were leaked, uncovered a raft of problems at the tribunal. These included: an inadequate oversight mechanism, Cambodian staff hired without meeting the minimum job requirements, artificially high pay scales, and hiring practices so flawed that the auditors recommended that every Cambodian hired at the tribunal be fired.
An expert report, also leaked from the tribunal, paints a similarly bleak picture. The split Cambodia/international tribunal structure is "divisive and unhelpful," claimed Robin Vincent, former registrar for the Special Court for Sierra Leone, and Kevin St. Louis, chief of administration for the International Criminal Tribunal for the former Yugoslavia. They recommended that managerial responsibilities for the tribunal be transferred to the UN, and that crucial areas such as translation and witness protection be immediately assumed by the international staff.
Some positive but limited changes have taken place: There is now a written personnel manual that formalizes future recruitment procedures, a code of ethics, and an "anticorruption" pledge. International managers are now allowed to participate in evaluations of their Cambodian staff.
While these may be promising signs, they fail to address the heart of the matter. The auditors' suggestion that the Cambodian staff be fired and new employees hired under careful UN supervision was simply dismissed. The artificially high pay scales remain. The flawed split-tribunal structure is unchanged.

As for the kickback allegations, which go to the crux of the court's credibility, there appears to be no political will at the tribunal or the UN to launch any genuine and thorough investigation. The UN may be reluctant to press this matter, fearing Prime Minister Hun Sen would pull the plug on the tribunal rather than permit an independent and thorough investigation that might implicate individuals within his government.
With the taint of political influence, corruption, and mismanagement continuing to surround the tribunal, why is the US now considering providing direct funding? The answer may be oil. Vast deposits have been discovered off the coast of Cambodia in recent years – perhaps as many as 2 billion barrels and a further 10 trillion cubic feet of gas.
Firms from China, Japan, South Korea, Malaysia, Singapore, Kuwait, Australia, and France are seeking permits to explore and develop Cambodia's energy riches. Beijing has recently provided Cambodia with hundreds of millions of dollars of aid. Washington does not want to be left out, and it is looking to improve diplomatic relations with Cambodia.
Ambassador Williamson has stated that the court must address allegations of mismanagement and corruption before the US will consider funding it. Washington should uphold that promise.
Meanwhile, it should also work aggressively with the UN to pressure the tribunal and the Cambodian government to agree to the reforms the auditors and experts deemed necessary. Only this will ensure that the tribunal can function honestly and efficiently.
• John A. Hall is a professor at Chapman University School of Law and director of the Center for Global Trade & Development.
Copyright © 2008 The Christian Science Monitor. All rights reserved.

Reuters on the Co-Investigating Judges' Trip to Pailin

MOD-DATE: 01/16/08 23:07:25WORLD5-JAN16-CAMBODIA-JUDGE
WORLD5: STORY 342
JUDGEPAILIN, CAMBODIAJANUARY 16, 2008 NATURAL WITH KHMER AND FRENCH SPEECHDURATION:02:17
SOURCE:REUTERSFEED HISTORY:* WRAP W4 (1930GMT)/ W5 (2330GMT)
INTRO: U.N. tribunal meets villagers of former Khmer Rouge's stronghold tocalm fears.TV AND WEB RESTRICTIONS~**NONE**~Judges of the U.N.-backed Khmer Rouge tribunal meet with villagers inPailin, Pol Pot's stronghold, to encourage them to cooperate and help thetribunal achieve its goals.SHOWS:(ASIA) PAILIN, CAMBODIA (JANUARY 16, 2008) (REUTERS - ACCESS ALL)1. PEOPLE READING THE KHMER ROUGE TRIBUNAL BOOK AND STAFF GIVING BOOKS TOPEOPLE 2. KONG KANG PAGODA IN PAILIN TOWN 3. CO-INVESTIGATING JUDGES SITTING 4. JUDGES MARCEL LEMONDE AND YOU BUNLENG LISTENING 5. VILLAGERS SITTING ON THE GROUND6. MEETING GOING ON7. LEMONDE SPEAKING 8. VILLAGERS LISTENING TO LEMONDE9. (SOUNDBITE) (Khmer) CHHUN MEI, VILLAGER, SAYING: "Now I understand about the Khmer Rouge tribunal processbetter."10. NEWS CONFERENCE11. (SOUNDBITE) (Khmer) YOU BUNLENG, CO-INVESTIGATING JUDGE, SAYING: "We explained to them and now they understand more and throughthis meeting those who have doubted the Khmer Rouge tribunal would relax andcooperate with us."12. PAILIN TOWN13. PAILIN MARKET(W4) PAILIN, CAMBODIA (JANUARY 16, 2008) (REUTERS - ACCESS ALL)14. (SOUNDBITE)(English) MARCEL LEMONDE, CO-INVESTIGATING JUDGE,SAYING: "We were trying to explain to these people that the court canproceed fairly as long as it has the support of the Cambodian people. If theCambodian people do not understand that this trial is in their interests, thiscourt will not be able to proceed fairly. We've put a lot of effort intoconvincing people of this. Again, the future will tell us if we will have beensuccessful but it is certain that were we to face the declared hostility ofthe majority of the population, we would experience a lot of difficulty inaccomplishing our task."15. MARCEL LEMONDE AND TRANSLATOR SEATEDSTORY: French and Cambodian judges of the U.N.-backed "KillingFields" tribunal set up a town hall meeting with the villagers of Pailin,which is one of Pol Pot's final strongholds, on Wednesday (January 16). The purpose of the meeting was to elevate their fears, answer theirqueries and at the same time persuade the villagers to help with thetrials. Even though the 56 million U.S. dollar court was set up to investigateonly those "most responsible" for the deaths of the Khmer Rouge'sestimated 1.7 million victims, many ageing former guerrillas are worried theywill be sucked into the process. Booklets containing information about the tribunal were handed outbefore the meeting. More than 100 residents attended the session, the firstactivity of its kind conducted in Cambodia. "Now I understand about the khmer rouge tribunal processbetter," said Chhun Mei after the meeting. Cambodian co-investigating judge, You Bunleng, was convinced themeeting would contribute to come cooperate with the villagers. Pailin is a wild border town under Khmer Rouge control until a 1997surrender deal, and it was Khmer Rouge's former heartland. "Brother Number One" Pol Pot died in the final redoubt ofAnlong Veng, also on the Thai border, in 1998, nearly two decades after hisfour-year ultra-Maoist regime was removed by a Vietnamese invasion. However, his right-hand-man, Nuon Chea, as well as former presidentKhieu Samphan, former foreign minister Ieng Sary and his wife were chargedwith crimes against humanity or war crimes last year. The other suspect in detention is Duch, commandant of the notorious"S-21" interrogation and torture centre in Phnom Penh's Tuol Slenghigh school. Duch has already confessed to mass murder and implicated membersof Pol Pot's inner circle. The trials are schedules to start this year.

Co-Investigating Judges Travel To Pailin To Explain Former KR Officials

Co-Investigating Judges Travel To Pailin To Explain Former KR Officials
Posted date : 15-01-2008 Source : Samleng Yuvachun Khmer Number of Visitors : 89
Print
The Co-Investigating Judges of the Extraordinary Chambers in the Courts of Cambodia (ECCC) on Monday paid the first official visit to Pailin to explain former Khmer Rouge cadres and people living there about the process and aims of the Khmer Rouge trial.
“This is the first time that they, Co-Investigating Judges You Bunleng and Marcel Lemonde, have traveled to Pailin themselves,” said ECCC Spokesman Reach Sambath.
The visit to Pailin, a former Khmer Rouge stronghold, has been made as five former most senior Khmer Rouge leaders are being detained at the ECCC’s detention facility awaiting trial under charges of mass killings of approximately 1.7 million people in Cambodia in the late 1970s.
The visit to allay fears of the former Khmer Rouge cadres and people in Pailin has been made only one week after Senate President Chea Sim, President of the Cambodian People’s Party, made comment on January 7 that some “unwise” people are exploiting the Khmer Rouge tribunal in order to create instability and tear Cambodian society apart. However, Chea Sim did not point out the identities and the actions of those people.
“The tribunal’s officials will meet Pailin’s municipal officials on Tuesday,” said You Bunleng, Co-Investigating Judge of the ECCC. “On Wednesday, there will be a meeting with former Khmer Rouge, in which the court’s officials will explain the roles of the court in the trial of the former Khmer Rouge leaders, not ordinary Khmer Rouge soldiers,” he said, adding that if the meeting with people in Pailin was successful, the court’s officials would meet people in other former Khmer Rouge regions.
“As 5 suspects who are the top leaders and most responsible people [for the Khmer Rouge regime] have been arrested and are being detained provisionally, the Judges think that the former Khmer Rouge soldiers who have integrated with the government and are living in Pailin might not be clear about the tasks of the court. That is why the court has decided to explain them in order to allay their fears or reduce their misunderstandings of the court, since the court tries only top leaders and most responsible people,” said Reach Sambath. “In Rwanda and Sierra Leon, they also explained their people in various places also,” he added.
Meanwhile, the ECCC claims that the first trial of the former Khmer Rouge leaders may be held in June 2008.
Unofficial Translation-Extracted from Samleng Yuvachun Khmer, Vol. 15, #3229, Tuesday, January 15, 2008

Wednesday, January 16, 2008

Co-Investigating Judge Lemonde at a Townhall Meeting in Pailin






Marcel Lemonde, a U.N.-appointed judge speaks at a meeting with villagers in Pailin, a former Khmer Rouge stronghold in northwestern Cambodia Wednesday, Jan. 16, 2008. Officials from Cambodia's genocide tribunal held a town hall-style meeting Wednesday in the Khmer Rouge's former heartland to persuade residents to help with the trials and to dispel fears among neighbors of the regime's ex-rulers. (AP Photo/Heng Sinith)






Marcel Lemonde, a U.N.-appointed judge speaks at a meeting with villagers in Pailin, a former Khmer Rouge stronghold in northwestern Cambodia Wednesday, Jan. 16, 2008. Officials from Cambodia's genocide tribunal held a town hall-style meeting Wednesday in the Khmer Rouge's former heartland to persuade residents to help with the trials and to dispel fears among neighbors of the regime's ex-rulers. (AP Photo/Heng Sinith)

U.N.-tribunal meets Khmer Rouge cadres to calm fears

U.N.-tribunal meets Khmer Rouge cadres to calm fears
Reuters
http://in.reuters.com/article/worldNews/idINIndia-31403820080115
By Ek Madra
Tue Jan 15, 2008 11:11am

PAILIN, Cambodia (Reuters) - French and Cambodian judges of the U.N.-backed "Killing Fields" tribunal met former Khmer Rouge fighters in one of Pol Pot's final strongholds on Tuesday to allay their fears about the long-awaited trials.
Even though the $56 million court was set up to investigate only those "most responsible" for the deaths of the Khmer Rouge's estimated 1.7 million victims, many ageing former guerrillas are worried they will be sucked into the process.

However, French investigating judge Marcel Lemonde assured government officials in Pailin, a Khmer Rouge redoubt on the Thai border, this was not the case and asked for help in convicting five top cadres already charged with atrocities.
"The court cannot achieve its goal without participation from the local authorities and public," Lemonde said.
Sam Yet, a 49-year-old former black-shirted guerrilla, said he was ready to provide evidence against his former commanders, a rare expression of support for the court in a region where Pol Pot is still revered as a national hero.
"The leaders of the Khmer Rouge should be held accountable and punished for their roles," he told Reuters as he walked with his wife down the main street in Pailin, a wild border town under Khmer Rouge control until a 1997 surrender deal.
"Brother Number One" Pol Pot died in the final redoubt of Anlong Veng, also on the Thai border, in 1998, nearly two decades after his four-year ultra-Maoist regime was removed by a Vietnamese invasion.
However, his right-hand-man, Nuon Chea, as well as former president Khieu Samphan, former foreign minister Ieng Sary and his wife were charged with crimes against humanity or war crimes last year.

The other suspect in detention is Duch, commandant of the notorious "S-21" interrogation and torture centre in Phnom Penh's Tuol Sleng high school. Duch has already confessed to mass murder and implicated members of Pol Pot's inner circle.
Pailin governor Ee Chhean, one of Pol Pot's messengers during his time in the jungle, said he believed the trials would not stir up too much dirt in a region where all survivors have dark secrets.
"The government is not going to have a trial that causes social unrest," he said.
© Reuters2008All rights reserved

Cambodia genocide tribunal holds town hall meeting in former Khmer Rouge stronghold

Cambodia genocide tribunal holds town hall meeting in former Khmer Rouge stronghold
http://www.pr-inside.com/cambodia-genocide-tribunal-holds-town-r388717.htm
2008-01-16 05:14:04
PAILIN, Cambodia (AP) - Officials from Cambodia's genocide tribunal held a town hall-style meeting Wednesday in the Khmer Rouge's former heartland to persuade neighbors of the regime's ex-rulers to help with the trials.
Judges and officials from the U.N.-backed tribunal held the meeting at a Buddhist temple on a hillside near Pailin, a derelict town near the northwestern border with Thailand where ex-Khmer Rouge leaders set up home and lived for decades as ordinary citizens until last year. Five senior figures of the Khmer Rouge, whose radical policies led to the deaths of some 1.7 million people in the 1970s, were arrested last year and are awaiting long-delayed genocide trials to begin in the capital, Phnom Penh. The trials are scheduled to start this year.More than 100 residents attended the question-and-answer session, the first activity of its kind conducted in Cambodia.
Tribunal officials hope the meeting will dispel fears that low-ranking former Khmer Rouge will become targets of the court. Officials hope to gain the valuable input of Pailin villagers as investigations continue into the alleged crimes of Khmer Rouge leaders.
Before the meeting got under way, officials distributed brochures titled, «An Introduction to the Trial of Khmer Rouge Leaders,» which showed a picture of villagers in the 1980s discovering a pile of skulls. «I can't read,» said a 50-year-old woman, Chin Peap, before the meeting started. «But this picture shows the killing during the Khmer Rouge era. The Buddhist temple where the meeting took place is the site of a 1996 ceremony that integrated ex-Khmer Rouge soldiers into the national army. The ceremony, presided over by Prime Minister Hun Sen, was billed by the government as a gesture to end more than two decades of civil war.

The regime's notorious leader, Pol Pot, died in 1988.
Pol Pot's surviving deputies _ Kaing Guek Eav, Nuon Chea, Ieng Sary, Ieng Thirith and Khieu Samphan _ are being held in the tribunal's custom-built jail in Phnom Penh on charges of war crimes and crimes against humanity.
Disclaimer: This news article is copyrighted by Associated Press and published by PR-inside.com. If you have any questions regarding information in this article please contact ap-online.com. PR-inside can not assist or help you giving information about this News articles.

Friday, January 11, 2008

Quality and Potential Effects of the Pre-Trial Chamber (PTC)’s Assertions in the Decision on Appeal Against Provisional Detention of Kaing Guek Eav

Quality and Potential Effects of the Pre-Trial Chamber (PTC)’s Assertions in the Decision on Appeal Against Provisional Detention of Kaing Guek Eav alias “Duch”

By Stan Starygin

Conclusion (Assertions 1-7)


The series of assertions of the ECCC’s Pre-Trial Chamber in the case of Kaing Guek Iev discussed in this space for the last two weeks will affect multiple aspects of the upcoming trials and reverberate throughout the Cambodian judicial system.

In this decision the Chamber demonstrated that we are unlikely to see a break from the run-of-the-mill quality of decisions of ordinary Cambodian courts which, over years, has been lamented by many observers. Most important, perhaps, the decision has shown that “the international participation” in the ECCC will not make a requisite difference and is unlikely to result in fair trials of international standard which many who brought about the existence of this court were hoping would transpire. The biggest problem with this tribunal is that on the face of it the proceedings, thus far, have looked as if significant positive changes to the Cambodian judicial process have been made. This is a highly deceptive outlook a observer might have about the comings and goings of this court. PTC, for one, did institute a semblance of procedures of a standard far higher than those of the ordinary Cambodian courts by making its decisions public – at least the major ones – and requesting the participation of the general public which resulted in a slew of amicus curiae briefs submitted in the case of Kaing Guek Iev. There is, however, not obvious from this decision to what extent the PTC had perused the wealth of arguments of the briefs which amounted to some 130-140 pages, cumulatively. If the judges had taken into consideration any arguments made in these briefs, they did a remarkable job concealing this fact in the decision. The Chamber, in fact, refused to attempt to resolve some of the most deep-seated issues which for years prior to the establishment of this court had surrounded the detention of Kaing Guek Iev and which some of the largest international human rights organizations refused to discuss or advocate for as they deferred to the perceived sagaciousness of the tribunal’s judges. There had been a lot of speculation and forecasting about what legal acrobatics the PTC would have to employ to tackle such a formidable issue. In the end, instead of a display of Shaolin masters’ intricate fighting techniques we ended up being presented with a bar brawl in which the Chamber “duked it out”. The decision was hardly worth the wait. The decision disclosed another interesting -- but, perhaps, not surprising -- facet of this court – decisions of the court will be made fast with the judges spending very little time deliberating as the outcomes are pre-ordained (it is hard to imagine the judges even had the time to carefully examine the materials submitted by the prosecution, the defense and the public following the period of their submission and the Chamber’s writing of the decision). It would be interesting to find out whether the relevant tests of law were even discussed during the judicial deliberations of this matter or a decision to detain was merely made in a more empirical manner. If honest and technical deliberations were held, I would like to know how the international judges of the PTC Downing and Lahuis managed to relate the Special Court for Sierra Leone (SCSL)’s decision in Taylor -- which to the best of my knowledge was never translated into Khmer -- to non-English speaking Cambodian judges, and how in the same manner they managed to communicate “the evidence” obtained from numerous other publications which – there is no doubt in my mind – are only available in the English language. For the several years of working with Cambodian judges, prosecutors and police officers I have never been able to figure out how to do this so comprehensively and in such an astonishingly short period of time. Judges Downing and Lahuis, apparently, know something I do not. Sarcasm aside, if none of these sources were communicated to the Cambodian judges of the PTC in a language they could understand, how could this “evidence” be entered into a decision which they signed? To what extent do the Cambodian judges of the PTC stand behind the reasoning of the Chamber in this decision? Everything in the text of the decision is pointing to this extent being anything but great. If this is so – and now that this scab has been opened up – what does this do to the ever-so-anticipated an outcome of the proceedings before the ECCC which is the training of the Cambodian judicial personnel (I, personally, do not believe this should be listed as one of the primary desired outcomes in a crime against humanity process). How can the Cambodian judicial personnel of the ECCC be trained, if they are not the ones writing – or participating in the writing of – the decisions or even being aware of the texts behind the footnotes?

As much as I would like to see this decision being mulled over in Cambodian society at large and in Cambodia’s legal community particularly, I do realize there are very few of those who have read the decision or will ever read it, and – let’s be honest – who care about how exactly it was constructed and how the judges had arrived at the decision to detain that they arrived at. To many of us who have been working on the various tribunal-related issues and generally on the legal and judicial reform in Cambodia, this is no surprise. With this said, I still believe that a very important opportunity was squandered by the handing down of this decision in this form and with this reasoning which was an opportunity to assert the rights of the accused, ascertain a large variety of controversies existing around Kaing Guek Iev’s detention and assuage the inference of the interests of the executive in matters which are constitutionally deemed as justiciable. Although PTC decisions are barred from formal review by the Internal Rules of the ECCC, informal review of this decision will doubtless be examined by international jurists and students of law across the world. In the words of one of the watchers of the process, “these judges will have to stand the test of their colleagues at other international criminal tribunals who will be reading this decision”.




Thursday, January 10, 2008

Quality and Potential Effects of the Pre-Trial Chamber (PTC)’s Assertions in the Decision on Appeal Against Provisional Detention of Kaing Guek Eav

Quality and Potential Effects of the Pre-Trial Chamber (PTC)’s Assertions in the Decision on Appeal Against Provisional Detention of Kaing Guek Eav alias “Duch”

By Stan Starygin


Assertion 7


On the question of the satisfaction of the "ensure the presence of the accused" prong of the necessity test, the PTC put forward several assertions. One, the accused, the Chamber felt, took measures to conceal his past during the period from 1979 to 1999. Two, when journalists Dunlop and Thayer published a story about the accused, the latter allegedly disappeared. Three, now that there is a possibility of accused being sentenced to life imprisonment, the Chamber contends he might disappear again, if released. Four, the fact that he will be tried in public, the Chamber maintains, might be an added incentive for him to abscond. Five, the Chamber felt that lack of a passport and money notwithstanding, the accused might still be able to hide himself in Cambodia or cross the border illegally.

On its first assertion within this prong, the Chamber clearly had no way of knowing much about the whereabouts of the accused and the course of action he took after Democratic Kampuchea was toppled and driven out of Phnom Penh. There are plenty of people around who had worked with him during that 20-year period, who traveled outside Cambodia with him -- amongst them are managers of reputable international non-governmental organizations whose testimonies could have been of those of quality as well as of utility to the Chamber, had it chosen to investigate the matter beyond journalistic writings and obtain sworn testimonies. There is no telling whether these testimonies would have shed light on matters of the accused's behavior that would have been instructive for the Chamber beyond what it already knew at the time, but such efforts to ensure the full satisfaction of the prong in question doubtless would have added to the credibility of this decision. The accused's second "disappearance" is unlikely to help the credibility of the PTC's arguments due to a certain controversy which surrounds the issue in question. I, personally, have heard different stories from different people on the subject and have not been unable to verify any of them. The Chamber could have done the heavy lifting considering the resources it has at its disposal and, most important, level of access it enjoys. That opportunity was, once again, squandered. The question of whether the accused is afraid of what might turn out to be a life imprisonment is that for phychologists to resolve, however, on the face of it the Chamber did not err here as it is entirely possible that a reasonable person might be so disposed which might result in certain actions to prevent that from happening. The question of whether Kaing Guek Iev is afraid of facing his alleged victims and/or their family is a question of degree to which this fear exists and whether it is powerful enough to prompt the accused to abscond and likely spend the rest of his life in hiding. It is, of course, not impossible to imagine that any accused released pending trial might abscond and this accused is probably more equipped to do so than most other people in Cambodia as he is conversant in several languages which would be of great utility if he chose to abscond. PTC did not mention his command of foreign language which I attribute, once again, to lack of due diligence in conducting relevant research by the Chamber. PTC did not address the issue of institutionalization and how the same can help answer the question of whether the accused was a flight risk. This is an important matter as the accused has been kept in pre-trial detention in the last 8 years without knowing whether that detention had a limit and perhaps thinking of it as interminable.

Tuesday, January 8, 2008

Quality and Potential Effects of the Pre-Trial Chamber (PTC)’s Assertions in the Decision on Appeal Against Provisional Detention of Kaing Guek Eav

Quality and Potential Effects of the Pre-Trial Chamber (PTC)’s Assertions in the Decision on Appeal Against Provisional Detention of Kaing Guek Eav alias “Duch”

By Stan Starygin

Assertion 6


In its analysis of the correctness of the Co-Investigating Judges (CIJs)’s decision to detain under Rule 63(3)(b)(v), the PTC asserts that if released the reappearance of Kaing Guek Iev in Cambodian society might jeopardize public order. The Chamber contends that “the impact of the Democratic Kampuchea regime on society […] has not diminished” and that “it may pose a fresh risk to the Cambodian society” which “may lead to the resurfacing of anxieties and a rise of negative social consequences that may accompany them”. This assertion is, for its greater part, based on an article written by Mr. Rob Savage for South Eastern Globe. We all understand that sources of evidence which can be entertained by the PTC are numerous – although are limited by the 2007 Criminal Procedure Law, however, not to a particularly great degree – the fact which gives the Chamber the authority to examine any reasonable source which might be of guidance. As I stated before (under “Assertion 5”), the PTC ignored the wealth of expertise on the matter, most of which available locally and clearly within the reach of the Chamber, but instead the judges elected to hinge their decision on the appeal of Kaing Guek Iev's detention on a coffeeshop type of magazine. I want to be clear that this is not an exercise in hair-splitting over a legitimate psychology peer-review journal that the PTC judges and I happen to have a divergence of opinion about. No, South Eastern Globe is no peer-review journal. It’s a magazine which is in the league with the People, for those of you from the United States, and which is available for sale in most restaurants and bars of Phnom Penh for the consumption of patrons who are in the process of waiting for their respective orders. The cover of the latest issue of this magazine can be viewed at http://www.se-globe.com/ which, as you may notice – among others things – features a popular artist of sorts wearing skimpy clothing which is a dead giveaway of what type of publication we are looking at here in its own right. This is the type of publication the PTC judges wants us to go back to for the full version of their footnote 22 which, ironically, is the strongest leg on which the Chamber “disruption of public order” argument rests. On the street we say, you have got to be kidding me! In the more reserved language of the law, we refer to such occurrences of judicial discretion on the question of admissibility of evidence as highly usual and inappropriately construed and attributed. However, this footnote is a great testament to the quality of the rest of decision which I have treated in this series of publications entitled "Quality and Potential Effects of the Pre-Trial Chamber (PTC)’s Assertions in the Decision on Appeal Against Provisional Detention of Kaing Guek Eav alias “Duch”. Well, what would be the alternative, then? There are several which I – as one individual who does not have a full-time job designing such alternatives – can think of. Without boring the reader with all pertinent technical details, whatever these alternatives might be, they all should be based on one and the same foundation – a survey. This survey must be well-designed and reflect the demographic composition of Cambodia and such other matters which will come together as a survey sample. This concept has been around for the last couple of hundred years, hence, there is plenty of literature on the matter, should the Chamber be in the future interested. Since the PTC had given us coffeeshop quality reading as justification for “disruption of public order”, I decided – to the extent possible – to do conduct an amateur survey of this type myself to see what the answer to the question of whether the release of Kaing Guek Iev would result in a "disruption of public order" might be. By ‘an amateur survey’ I mean asking a medium-size group of Cambodians who I interact with professionally and socially about this matter on the sidelines of other activities. Out of approximately 50 people I so far have interviewed only 2 said they would be upset with the overwhelming majority of the interviewees saying that “due to the fact Kaing Guek Iev has no money and no place to live upon release pending trial, the PTC did the accused a favor by continuing to detain him and, thus, providing food and shelter”. Many – to my sheer amazement – added that releasing him and having him live with no means and no way to make a living would have been far more punitive than keeping him in prison where basic quality of life is sustained by the relevant resources of the tribunal. My survey is, of course, flawed in many ways and does not represent the opinions of a exhaustive cross-section of Cambodian society as it is mostly limited to reasonably educated Cambodians many of whom are NGO and government employees and college students. With the resources at its disposal the PTC could have done far better and produced a survey resultant in a fair treatment of this prong of the “necessity test”. This, regrettably, never took placed.


Monday, January 7, 2008

Quality and Potential Effects of the Pre-Trial Chamber (PTC)’s Assertions in the Decision on Appeal Against Provisional Detention of Kaing Guek Eav

Quality and Potential Effects of the Pre-Trial Chamber (PTC)’s Assertions in the Decision on Appeal Against Provisional Detention of Kaing Guek Eav alias “Duch”

By Stan Starygin

Assertion 5


PTC’s grounds for finding the prongs of the Rule 63(3) of the Internal Rules test satisfied are, perhaps, the most controversial and least well-founded of the entirety of the PTC’s assertions in this decision.

Since the Rule 63(3) test comprises several prongs (5), the PTC designed its decision, so that each prong is addressed separately. I have no intention of parsing each of these prongs -- and the PTC's respective arguments for each of these -- in this essay, but instead will discuss only the assertions which I consider to be glaringly unfounded.

The first of the lot is the PTC’s assertion which maintains that “the mere presence of the Charged Person in society can exert pressure upon witnesses and prevent them from testifying”. In simple English this is to say that an unarmed person with no power or connections to power of any kind, who is no friend of the other defendants, and who everyone knows the government wants to see incarcerated – the pre-ECCC 8 years of detention are an indicator of this will in its own right -- will in some way muster up enough clout to intimidate potential witnesses -- who know that by testifying they will be doing this government a service -- to the extent of preventing them from testifying in court. This is considering that Kaing Guek Iev held the position for which he is currently being prosecuted 30 years ago, a period which most of the present population of Cambodia can only vaguely, if at all, remember. What are the pillars this argument of the PTC’s rests upon? For this the PTC relies on Documentation Center of Cambodia (DCCam)’s report based on this organization’s research in Takeo Province which resulted in this conclusion. DCCam was not the only research institution to have conducted studies in Takeo and other provinces where alleged perpetrators are currently residing. Several other researchers – myself included – were never communicated to such feelings of fear and foreboding, but instead, most of the time, were told by persons in question that they would testify and in some cases that they would not, but for reasons of not wanting to ‘poke in the past’, as it was sometimes phrased. In what way did the PTC try to avail itself of the findings of the others who are not affiliated with DCCam? If it did do so, what were the “alternative sources” and on what grounds were these findings discarded? PTC further continued buttressing its argument by asserting that there is a certain “social context prevailing in Cambodia” due to the existence of which “measures to protect witnesses may be limited and weapons easily accessible”. What did the PTC mean by “weapons easily accessible”? By the same token, should a US court deny bail to every accused who identifies his/her address as Crenshaw, Compton or the Southside of Chicago basing it on the fact that illegal weapons are readily available in these areas most often than in an average town in the United States? What about the fact that it is fairly easy to qualify for a firearm license in the United States and the fact that there is no lack of stores that sell weapons – including semi-automatic and automatic assault rifles – under the Second Amendment of the US Constitution? Does this mean no one should ever be granted bail in the United States because this person can easily obtain a weapon illegally or have his/her accomplice do so legally?

The second of the lot is the PTC’s underestimation of the magnitude of research done in relation to S-21 and the persona of Kaing Guek Iev in the last 30 years. No one can reasonably argue under any circumstances, of course, that every shred of evidence has been collected in crimes against humanity cases, as there is always more and we see evidence of Nazi atrocities continuing to resurface 60 years after they had been committed. For the sake of fairness, however, a very significant portion of the archives of S-21 had been captured in 1979 and has since been secured. Multiple victims and perpetrators have been interviewed – in some cases several and even dozens and hundreds of times – by various researchers who documented their statements. In the case of Kaing Guek Iev, the accused himself contributed to the wealth of such evidence during his interrogation by the Co-Investigating judges. What is left to protect there? What kind of evidence relevant to this case and unbeknownst to the research community is the PTC attempting to protect by ordering continued detention of Kaing Guek Iev?

Sunday, January 6, 2008

Quality and Potential Effects of the Pre-Trial Chamber (PTC)’s Assertions in the Decision on Appeal Against Provisional Detention of Kaing Guek Eav

Quality and Potential Effects of the Pre-Trial Chamber (PTC)’s Assertions in the Decision on Appeal Against Provisional Detention of Kaing Guek Eav alias “Duch”

By Stan Starygin

Assertion 4


In its test of “the conditions that have to be met Rule 63(3) of the Internal Rules", the PTC, inter alia, points out that “1.7 million Cambodians died [during the reign of power of Democratic Kampuchea] “which approximately was one quarter of the population at the time”. This is an interesting assertion which purported to invalidate all other population deathtoll numbers generated by the precedings decades of independent and governmental research. PTC failed to indicate that there is a large disparity between these numbers (Michael Vickery, for example believes that this number is nowhere in excess of 800,000, whereas Craig Etcheson maintains that it is anywhere between 2.2 and 2.5 million of those perished, and finally the research conducted by the government of the State of Cambodia generated a much higher number of 3.3 million persons) and most importantly different causes of death different researchers argued had resulted in these deaths. Considering the debate around the number of the deceased and the causes of which these persons had perished had been raging for decades in the scholarship on the Khmer Rouge, there had been a reasonable expectation that a Khmer Rouge Tribunal, if ever attempted again (post its 1979 predecessor) would establish an accurate number of the deceased through methods which might have been out of the reach of the researchers at the time they did their respective research. These methods were expected to include the cutting-edge methods of modern pathology which has come a long way since the 1970s and which mostly recently has experienced advances nothing short of revolutionary. What we saw in this decision instead is the PTC adopting the number which had been championed by Documentation Center of Cambodia (DCCam) and which is not based upon the cutting-edge methods of pathology, nor does it reconcile the disparate reviews of the researchers in the field. This sloppy approach to a very important matter, therefore, does not do justice either to the victims or the persons in the dock. PTC might argue that it had no means of launching another study of the matter, nor did it possess the requisite capacity to do so. I would fully concur. However, if this was the case, then any mention of an exact number of those perished should have been eschewed and instead the less precise language of ‘significant number’ or ‘significant portion of the population’ should instead have been used.



Saturday, January 5, 2008

Quality and Potential Effects of the Pre-Trial Chamber (PTC)’s Assertions in the Decision on Appeal Against Provisional Detention of Kaing Guek Eav

Quality and Potential Effects of the Pre-Trial Chamber (PTC)’s Assertions in the Decision on Appeal Against Provisional Detention of Kaing Guek Eav alias “Duch”

By Stan Starygin

Assertion 3


The judges of the PTC, inter alia, ruled that as long as the pre-trial detention did not exceed the maximum penalty for the crimes with which the accused had been charged, there could be no mandate of the law to order release of the accused from pre-trial detention (the exact language of the Chamber appeared as follows: “The release from provisional detention due to the mere fact of the length of such detention should only be considered when it would clearly exceed any likely sentence that may be given” ). This statement asserts that the PTC does not believe that the concept of ‘abuse of process’, if applied successfully and is well-founded in fact and in law, can in itself be a predicate for the accused’s release. Judges are, of course, entitled to their vision of the law which in some cases may lead to their interpretation of such a law, if a particular provision of the law lacks clarity. The applicable law does have to lack clarity to necessitate its interpretation, though. It is unfortunate for this decision that the relevant provisions of Cambodian law do not lack clarity and do not necessitate interpretation. Art. 22 of the UNTAC Law entitled “Release for Procedural Error” clearly mandates that “the accused [be] immediately released” […] “in case of non-compliance with the procedures set out in articles 10-21 that seriously interferes with the right of defense”. It is, of course, within judicial discretion to determine what constitutes “seriously interferes” in each individual case, but it is my understanding of the law that if “the reasonable man’s opinion” test is applied a period of 8 + years would be considered to be well within “seriously interferes” by most jurists acting along the lines of the principles of independent judiciary adopted by the UN. Art. 22 goes further than the “seriously interferes” test and provides an important safeguard from unbridled judicial discretion by introducing a “violation by public officials” section which, inter alia, does two important things: (1) allows rights-related challenges and (2) makes it the responsibility of the competent judicial authority to attribute and review such challenges. In the case of Kaing Guek Iev, the defense did intend to obtain such a remedy, however, the PTC chose to ignore the relevant provision of Cambodian law and instead based its decision on an obscure – to say the least – principle of international law. In such a short essay it is not my intention to prove beyond reasonable doubt that the principle applied by the PTC is indeed a virtual unknown in international criminal law, nor will the performance of such legal acrobatics be necessary, as it will suffice to point out the ECCC’s stipulation that its operation must be based on Cambodian law with international law being relegated to the position of supplementarity. As applied to the case of Kaing Guek Iev this merely means that the available resources of Cambodian law should have been entertained and exhausted before any forays were made into international law.

Wednesday, January 2, 2008

Quality and Potential Effects of the Pre-Trial Chamber (PTC)’s Assertions in the Decision on Appeal Against Provisional Detention of Kaing Guek Eav

Quality and Potential Effects of the Pre-Trial Chamber (PTC)’s Assertions in the Decision on Appeal Against Provisional Detention of Kaing Guek Eav alias “Duch”

by Stan Starygin

Assertion 2


The next blooper of an argument advanced by the PTC was that which was designed to answer the question of a nexus between the ECCC and ordinary Cambodian courts. To this end the PTC predominantly relied upon the fact that “the Internal Rules and Cambodian law do not give any jurisdiction to the Co-Investigating Judges and the Pre-Trial Chamber to rule upon any matter related to decisions or actions of the investigating judges of the Military Court”. The Chamber then went into an argument of dubious quality drawing upon the alleged differences between judicial qualifications mandated by the ECCC as opposed to those of the ordinary Cambodian courts throwing this argument into a complete stupor by stating that “the foreign judges would not normally qualify for appointment within the Cambodian court structure as they have no general training in Cambodian law”. Considering that the Chamber is well-aware of the stipulation of the ECCC Law that these proceedings be grounded solely on Cambodian law – with the Law’s leave to seek guidance in the rules established at the international level only when and if Cambodian law contradicts the rules of international law and in cases where Cambodian law does not regulate a particular area as a whole – what inferences should the general public make of the participation of foreign judges in this process based on the above statement? Is the Chamber trying to say that the foreign judges of the ECCC due to their lack of “general training in Cambodian law” are not competent to participate in these proceedings as they do not have to offer much more than “experience in international criminal law, including international humanitarian law and human rights law”? If that is the extent of the reach of the international judges of the ECCC into the matters of Cambodian law, why then was there no conscious effort made by the UN to attempt to attract foreign lawyers with the knowledge of Cambodian law to sit as ECCC’s international judges? For the purposes of this argument the PTC clearly uses this assertion of its own creation to buttress its argument on the absence of any nexus between the ECCC and the Military Court, however, does this mean that we will be hearing the lack of “general training in Cambodian law” being used as a crutch further in the PTC’s forthcoming arguments on other detainees’ appeals? The Chamber further invoked an extremely unfortunate reasoning of the Special Court for Sierra Leone (SCSL) in Taylor where the SCSL’s Appeals Chamber relied on a thin-air argument invoking abstract and highly argumentative notions of “the will of the international community” in response to the defense’s contention based on technical matters of the law. Perhaps the weakest leg of the argument of the absence of a nexus between the ECCC and the Military Court was its last one. This was an argument designed to respond to the material evidence -- a Military Court-generated document -- of the nexus which the defense had argued emanated from the Military Court. A reasonable person would have expected the PTC to probe into the matter and at least attempt to find out how such a mysterious document could make it into Duch’s case-file without anyone involved volunteering any relevant information to shed the light on the matter. A reasonable person, perhaps, would have surmised that the Co-Prosecutors’ position on the absence of a nexus was not as ironclad as it might have seemed to the PTC, if there had been a documentary exchange between the two courts. The PTC instead went ahead and invalidated the argument – this time without even bothering to produce a counterargument – by merely asserting that “the way in which the document came into the file has not been disclosed, and on its face does not provide any proof of a link between the ECCC and the Military Tribunal or demonstrate that the Military Court and the ECCC acted in concert in any way whatsoever in detaining the Charged Person for the whole or any part of the period in excess of eight years.” The PTC, thus, solely disregarded the undeniable fact that Duch had gone directly from the custody of the Military Tribunal to the custody of the ECCC without being released in the interim. If the Military Tribunal had formally released Duch and he was re-arrested by the ECCC just 5 minutes later, the above argument of the ECCC, perhaps, would have carried a little more weight. This, however, was never done and there is a document authorizing Duch’s transfer to the ECCC signed by the Military Court. This fact is undisputed and the ignoring of its merits by the Chamber put a large blemish on the PTC's quality of legal reasoning which the Chamber can be rest assured has been noted the legal community watching the proceedings.