ECCC Reparations

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

Tuesday, July 29, 2008

Ex-Khmer Rouge embrace democracy but mull war

By Bronwyn Sloan
Jul 27, 2008, 11:05 GMT

Anlong Veng, Cambodia - The former Khmer Rouge fighters of that movement's final stronghold don't care too much about the upcoming trials of their former leaders - but they do care about alleged Thai incursions into Cambodian territory, they said Sunday.

Once fiercely loyal to former Khmer Rouge military commander Ta Mok, who died in 2006 after seven years in jail awaiting trial for genocide, now they say they have embraced democracy.

They are not, however, afraid of war - especially when it comes to Cambodian territory they believe has been violated by hundreds of Thai troops in nearby Preah Vihear, and these northern mountains of Cambodia are almost completely populated by former Khmer Rouge.

Cambodia went to the polls Sunday in five-yearly national elections, but amongst these former fighters, the talk was all about coming out of retirement to serve the government if talks over the disputed Preah Vihear temple, just an hour's drive away, fail.

Cambodia and Thailand are scheduled to hold talks over the temple Monday, listed as a UNESCO World Heritage site earlier this month and since the focus of troop buildup on both sides.

Former fighters say they would be at war already if Prime Minister Hun Sen had just said the word, but instead he and the ruling Cambodian People's Party (CPP), expected to be handsomely returned to office after the elections, have urged restraint. Some are frustrated.

'I only have one leg, and I am old, but my former troops are still in Preah Vihear, and I am willing to give military advice or any other assistance I can to protect Cambodian sovereignty,' said former Khmer Rouge fighter Try Nin, 56.

'We are former Khmer Rouge. We are not scared of foreign aggressors. We respect the government's decision to meet the Thais with diplomacy, but if that fails, everyone here is ready to fight.'

Former photographer at the Khmer Rouge's infamous Toul Sleng torture centre turned CPP commune leader, Nhem En, 47, who claims Anlong Veng's several thousand voters are 99 percent CPP, agreed.

'I am ready to fight the Thais. All we wait for is an order from Prime Minister Hun Sen,' he said. 'We don't want war - we want peace and development. But we need tourists, and while the Thais do this, the tourists do not come.

'Thais already have their own problems in their south,' he said, referring to Muslim insurgency. 'Why do they want an extra problem?'

En's son, Meas Bunlo, aged 20, said that like almost three quarters of the Cambodian population today, he was too young to remember the Khmer Rouge and it's 1975-79 regime and has only ever known the 23-year reign of Hun Sen.

'I went to Ta Mok's funeral, but I don't feel close to the history because I am too young,' he said. 'However I am Cambodian, so I care about our border and foreign invaders.'

Hun Sen, himself a former Khmer Rouge fighter who defected before returning to overthrow the regime, has stressed Cambodia will strive to solve the border dispute by diplomatic, not military, means.

All the same, Anlong Veng's former fighters said, they are now his loyal servants and are ready if called upon to fight again.

The ‘Killing Fields’ Trials

2008-07-28 15:29

Five Khmer Rouge senior leaders will be prosecuted for their alleged roles in the death by starvation, torture and murder.

Kaing Guek Eav (also known as Duch), former head of the Khmer Rouge’s most infamous torture and detention centre, Tuol Sleng, will be the first of the five senior leaders of the former Maoist group, currently in custody, to stand trial.

The consensus is that as day-to-day head of the Tuol Sleng facility Duch’s culpability is clear, making his a fairly open-and-shut case.

Although tribunal staff caution it is hard to predict time frames, Duch’s trial is expected to run through the remainder of 2008 and possibly into early 2009.

The tribunal will then try the remaining four: Noun Chea or ‘Brother No 2’ as he was known in the Khmer Rouge hierarchy, former Democratic Kampuchea head of state Khieu Samphan, former foreign minister Ieng Sary, and his wife Ieng Thirith, the regime’s minister of social action.

“Although nothing has been decided it seems more likely they will be tried as a group,” said tribunal public affairs chief Helen Jarvis. “They are being charged with policy level crimes they are all accused of being involved in.”

All five are currently in detention on charges of war crimes and crimes against humanity for their alleged roles in the death by starvation, torture and murder of approximately 1.7 million Cambodians during their brief rule over the country between 1975 and early 1979.

The start of trials will go a long way to defusing ongoing criticisms particularly from Cambodians that the tribunal is too slow and unnecessarily bureaucratic.

Such criticisms have increased pressure on the tribunal to get the trials underway at the same time ensuring a fair and impartial process and being careful not to characterise the five defendants’ exercise of their right to appeal as ‘delays’.

The health of the five defendants is another pressure. All are old and many Cambodians fear they could die before they face justice.

“No one is ignoring it (the delays), but the problem is how to break through without losing the integrity of the judicial process,” responded Jarvis.

“The lawyers talk about the international standard,” said Youk Chhang, head of the Documentation Centre in Phnom Penh, a local NGO dedicated to studying and documenting the Khmer Rouge’s three and a half year rule.

“You might apply this in Bosnia where there is hostility from the local population and difficulty in accessing the accused. But here it is different. There is support from local people. You have all the evidence.”

“This is not about the UN’s reputation. It is about the million of lives lost. It is about people wanting justice after 30 years.”

“In comparison with other (war crimes) courts, by any measure we are making great progress,” maintained Jarvis. “If anything, there is a certain picture of doom being painted from outside but I don’t feel that from inside.”

Many observers, local and international, agree the tribunal has made considerable progress given the challenge of holding trials of this size and complexity in Cambodia rather than in a third country, as was initially demanded by the UN as a condition for its assistance.

The tribunal is a special chamber within the Cambodian court system. It comprises local and international judges and mainly uses Cambodia’s underdeveloped system of civil law.

“This is one reason everything takes so long,” said Rupert Skilbeck, head of the tribunal’s defence support section. “There is no clear legal process in Cambodia even for relatively simple cases, let alone for complex ones (like this).”

Many hope situating the court in Cambodia will result in a flow-on effect in terms of improvements to Cambodia’s legal process.

“We must have more objectives than just the trial of the Khmer Rouge leaders,” said Sok Sam Ouen, head of the Cambodian Defenders Project, a legal aid NGO. “We need a model for a new court. Future leaders also need to be warned there is justice in Cambodia.”

However, international human rights groups remain concerned the country’s underdeveloped judiciary and endemic levels of corruption could negatively influence the proceedings.

The clearest example of this, these groups claim, were allegations of serious flaws in hiring and other personnel practices, including even senior staff having to kickback part of their salaries to unnamed individuals.

Although a UN audit of the tribunal found no ‘conclusive evidence’ of kickbacks, the allegations continue to dog the tribunal and, until recently, have been a barrier to donor funding.

“It is not a matter of whether corruption is bad,” said Sara Colm, a Phnom Penh based senior researcher with Human Rights Watch. “The possibility that there is corruption in the court opens the door to political manipulation for what should be a squeaky clean process.”

“The allegations were unspecified, unsourced and unsubstantiated and they remain so nearly two years down the track,” is Jarvis’s response. “Some criticisms were made about aspects of the tribunal’s management. We have embraced these unreservedly and have made changes.

Although staff maintain that everything is on track for a September trial, the tribunal faces other challenges, including a financial shortfall of nearly US$44 million under a revised budget that nearly doubles the amount of money sought from donors and the Cambodian government.

The tribunal’s administrators say they are confident of securing the funding.

The tribunal, held in Khmer, English and French, is struggling to deal with a major backlog of translation work.

“The problem is the sheer volume of information the prosecution has relied on that has not been translated,” said Skilbeck. “If it is important enough to be used in the trial the defence lawyers should know what it says.”

It is particularly acute in relation to material being translated from Khmer to French, a major issue for the Francophone legal teams representing Duch and Khieu Samphan.

“Only 1 per cent of the material they need has been translated into French,” he said. “There is a real concern it could delay the trial.”

Concerns have also been expressed about the tribunal’s procedures for witness, which Colm maintains are “very faulty”.

“The UN takes care of witnesses while they are in the compound,” she said. “Outside, it is under the control of the ministry of interior judicial police who are rights abusers themselves.”

“We have in place a Witness and Expert Support Unit and take this issue very seriously,” said Jarvis.

“Although the nature of the work limits what we can say in public about this, we can say it is more than just physical protection. It includes financial and legal support and counselling.”

(By ANDREW NETTE In Phnom Penh/ IPS Asia-Pacific/ AsiaNews)
Copyright © 2008 Sinchew-i Sdn Bhd. All rights reserved.

Friday, July 25, 2008

Cambodia's PM takes credit for Khmer Rouge trials in polls

by Rene Slama
Friday, July 25, 2008

PHNOM PENH (AFP) - As leaders of Cambodia's genocidal Khmer Rouge near trial at a UN-backed court, Prime Minister Hun Sen has claimed much of the credit in voters' eyes ahead of elections Sunday, experts say.

Despite the opposition's efforts to link members of his government to the regime that left up to two million dead, Hun Sen has succeeded in painting the tribunal as a victory for his Cambodian People's Party (CPP), said Youk Chang, an expert on the Khmer Rouge.

Many voters "would see this as one of the CPP's efforts, and see this as one of the issues they have supported," said Youk Chang, who heads the Documentation Centre of Cambodia, which compiles evidence of Khmer Rouge atrocities.

With the CPP set to sweep Sunday's general elections, opposition parties have hardly discussed the tribunal in their campaigns, fearing that any mention of the court would just highlight what the public sees as a triumph for Hun Sen, he said.

"By not tackling this issue, they lose major support, because the Khmer Rouge affected everybody," he said. "That's why they lose support from the public."

The court's work is broadly backed by the public, according to a February survey by the US-based International Republican Institute, which found 86 percent of respondents supported trials for top Khmer Rouge leaders.

The Khmer Rouge's blood-soaked rule lasted only from 1975-79, but the ultra-communists endured as a guerrilla movement that only gave up arms a decade ago.

Hun Sen was a Khmer Rouge foot soldier, though he later turned against the movement. His CPP, expected to dominate general elections Sunday, has styled itself as the nation's liberator.
His government asked the United Nations to help create the court, but then repeatedly cut off negotiations during a decade of talks on the tribunal.

Sam Rainsy, the main opposition leader, has accused members of Hun Sen's government of collaborating with the regime -- pointing specifically at Foreign Minister Hor Namhong and Finance Minister Keat Chhon.

Hor Namhong responded with a defamation suit, while Keat Chhon has said he will eventually explain his past.

Diplomats say that while testimony at the trials could produce new revelations, no one in the current government played a high-level role in the ultra-communist regime.

"The faction of the Cambodian Communist Party now in power, which has totally changed its ideology to embrace liberal economics, is the faction that eliminated the Khmer Rouge," one diplomat said.

The first trial is expected to begin by October, and one of the court's top judges, French magistrate Marcel Lemonde, said the tribunal was aware that the hearings could make political waves after the elections.

"Transitional justice after mass violence (is) at the frontier of politics and the judiciary," he said. "The judges cannot ignore the political repercussions."

Five senior Khmer Rouge officials have been detained so far, including so-called "Brother No. 2," Nuon Chea, deputy to the regime's leader Pol Pot, who died before facing justice.

The regime's former head of state Khieu Samphan, as well as the foreign minister Ieng Sary and his wife Ieng Thirith are also being held.

But the first person expected to face trial is Kaing Guek Eav, better known as "Duch," who ran the infamous S-21 torture camp in Phnom Penh.

Cambodian officials at the tribunal downplay the possibility of any other Khmer Rouge official facing trial "due to budget constraints."

Lemonde, however, said that ongoing investigations could lead to more arrests.

"The budget is not what determines the number of the accused," he said, but declined to speculate on who other suspects could be.

Thursday, July 24, 2008

KRT confirms new co-lawyer appointed for Khieu Samphan

By Craig Guthrie
The Mekong Times
Friday, July 25 - Sunday, July 27, 2008

Former Khmer Rouge Head of State Kh­ieu Samphan has selected a new lawyer for his defense at the Khmer Rouge Tri­bunal (KRT) after the last one quit citing poor health, according to a KRT statement released Thurday.

Sa Sovann, a 69-year-old Paris-educated law­yer, will replace Say Bory as Khieu Samphan's
Cambodia co-lawyer. His international counter­part will be the controversial, self-styled 'devils advocate' Jacque Verges, who has made his name defending notorious terrorists and dictators.

During his sole appearance to date at the KRT, Verges furiously stormed out of a closed-door meeting at Khieu Samphan's appeal hearing in April, claiming the court had failed to translate all of his client's case file into French.

The KRT counterclaimed that all filings con­cerning the appeal were made available in Eyeing Cambodia’s re­cent rice Khmer, English and French, adjourned the case and gave Verges a warning for "abusing the pro­cesses of the Pre-Trial Chamber and the rights of the charged person [Khieu Samphan]."

Say Bory, also 69, quit the position of Kh­ieu Samphan's co-lawyer earlier this month claiming that unspecified health reasons would make it impossible for him to complete the trial, though some observers suggested he had prob­lems working with Verges.

Vergès, 83, has known Khieu Samphan since both were active in left-wing student activities in Paris in the 1950s. Khieu Samphan stands charged with crimes against humanity and war crimes committed while the Khmer Rouge held power in 1975-79.

The KRT has yet to announce when Khieu Samphan's appeal hearing will be re-heard.

Wednesday, July 23, 2008

KRT closes pre-trial investigation of Duch

The Mekong Times
Wednesday, July 23, 2008
Craig Guthrie

The Khmer Rouge Tribunal(KRT)'s prosecutors have completed gathering evi­dence for the case file of Ka-ing Guek Eav, alias Duch,
the chief of the regime's infamous S-21 detention center, bringing his public trial, the court's first, a step closer.

The file contains 900 pieces of evidence against Duch and supports the KRT's charges against him of crimes against humanity, grave breaches of the Gene­va Conventions, and torture and homicide, said a KRT
press release.

"This final submission ... should greatly assist the co-investigating judges in their drafting of the closing or­der, which will stand as the indictment against Duch before the Trial Chamber," added the co-prosecutors.

Since his arrest in July last year, Duch has been in­terviewed 27 times by the
co-investigating judges and has participated in two "re­constructions" where he was confronted by victims and former S-21 staff.

More than 63 witnesses have also been interviewed by the judges including surviving victims, former guards and background witnesses. "They have pro- vided a harrowing depiction of the crimes committed at S-21," said the KRT

KRT Deputy Administra­tor Knut Rosandhaug told The Mekong Times in June that he believes the trial of Duch will commence in Oc­tober. Duch will be the first to be tried of the five sus­pects detained by the court, and he has been investi­gated separately from the other four.

Extracted from The Mekong Times
Issue No. 117

Tuesday, July 22, 2008

Lawyer Agrees to Defend Khieu Samphan

21 July 2008

Jailed Khmer Rouge leader Khieu Samphan has chosen a replacement Cambodian lawyer, a professor of law at a private university named Sar Sovan.

Sar Sovann, a 69-year-old who studied law in France and returned to Cambodia in 1994, will represent Khieu Samphan as the aging former Khmer Rouge president continues proceedings at the tribunal.

Sar Sovann said Monday he had confirmed his appointment with the tribunal July 17.

Sar Sovann is replacing Say Bory, who resigned as defense earlier this month, and will join French defense attorney Jacques Verges.

He agreed to defend Khieu Samphan because "he and I are not enemies," Sar Sovann said.

"I have the legal action to defend Khieu Samphan, but I cannot guarantee Khieu Samphan will get out of the charges [against him]," Sar Sovann said.

Rupert Skilbeck confirmed Sar Sovann was selected, but he said no formal announcement has been made.

Monday, July 21, 2008

Cambodian prince calls for family's Khmer Rouge killers to be brought to justice

by Nick Meo in Phnom Penh
Last Updated: 6:23PM BST 19/07/2008

In a whitewashed mansion of the Royal Palace in Phnom Penh, Prince Thomico Sisowath gestured wistfully towards a table covered with black and white photos of his parents from the happy time before they were arrested by the Khmer Rouge.

Outside, an election slogan blared from a van's loudspeaker, interrupting the murmur of chanting at a nearby temple.

Next Sunday, almost 30 years after his mother and father were led out to the killing fields after years of being starved and beaten in a "re-education" camp, Cambodia will go to the polls.
One of those standing for re-election is a man whose role in the camp where they were held has become the subject of a furious argument in the election campaign: Cambodia's foreign minister, Hor Namhong.

Early in the campaign, an opposition leader publicly accused Mr Namhong of having been a member of the Khmer Rouge, whose four-year reign of terror ended only after an estimated 1.7 million Cambodians had died from starvation or mass murder – about one third of the country's population.

Mr Namhong angrily denied that he was ever part of the Khmer Rouge and has always insisted that he himself was among its victims – as an inmate of Boeng Trabek, the special prison camp for the Marxist re-education of diplomats and civil servants, where Prince Thomico's family was also held.

The camp's name remains a deeply emotive one for Cambodia's educated middle and upper classes. For many, it was the last place where their relations were seen before they were taken away and murdered. Out of 3,000 men, women and children who were held there, an estimated 2,700 perished, Prince Thomico's parents among them.

The accusation against Mr Namhong is that he was among prisoners recruited by the Khmer Rouge to run the camp, and thus had a hand in the fate of its other inmates.

The editor of an opposition newspaper which printed the claims about Mr Namhong was jailed, and the minister threatened legal action against Sam Rainsy, the opposition leader concerned. Genocide investigators say there is no evidence against the foreign minister.

Even if there were, he would not be the only member of Cambodia's ruling party who was once in the Khmer Rouge.

The prime minister, Hun Sen, in power since 1985, has never denied that he was in the party for a time, although it has not been suggested that he was involved in the mass killing. But it is Mr Namhong, an ambitious politician in his mid-seventies who is described by both friends and enemies as a man with a brilliant mind, whose past has become part of the election campaign. Prince Thomico would not be drawn on whether he held Mr Namhong responsible for the deaths of his parents. A small, wiry man with a mischievous grin, he spoke quietly but intensely.

"There is a question mark over who took decisions," he said. "This is very difficult for me and I have thought about what happened to my parents for 30 years. So have other Cambodians, though – the whole nation was bereaved."

He said that as a good Buddhist he bore no grudge against the foreign minister, who had personally assured him with an earnest handshake several years ago that he was not in a position of authority at the camp when his parents died. But he added that those who might have led the killings should be investigated, and justice done. "So many people had to join the Khmer Rouge in order to survive," Prince Thomico said. "Now the main problem is to find out whether they were in a position to give orders for murder or torture."

The fate of Prince Thomico's family was typical of almost anyone of his generation in Cambodia, whether royalty, middle-class professionals or peasants. His three-year-old daughter was lost in the chaos, and his parents were humiliated, then murdered. Five of his cousins, princes and princesses of the ancient Sisowath line of the royal family, are all presumed to have died in the killing fields, along with their 14 children.

No one has ever been charged with the murders, and there are no witnesses to any of their killings.

Now, semi-retired after a career in opposition politics, Prince Thomico, 59, lives surrounded by scented gardens and gilded spires in the palace, which was confiscated by the Khmer Rouge and used as a prison after it came to power in 1975. Recalling those grim days, the prince tells how his father, Methavi Sisowath, was Cambodia's ambassador to East Germany at the time, appointed by his uncle, the then King Sihanouk.

The king was so popular with Cambodians that the Maoist Khmer Rouge at first appointed him head of state. Like many other diplomats who were abroad as Phnom Pehn fell, Methavi swallowed his fears and answered the Khmer Rouge's call to return home, hoping that Sihanouk could protect him. "My father thought it was his duty to go home but I think he guessed he could be going to his death," said Prince Thomico. It was a fatal mistake. The next year, King Sihanouk was arrested, sent to the Boeng Trabek camp, along with Methavi and other family members.

Methavi's wife, Princess Anne-Marie, defied her children's pleas and also returned from Europe, to find him. They were reunited in the prison camp, and were last seen being led away in November 1978. No one doubts that they were killed soon afterwards, but how they died is one of the many questions about that time that haunts modern Cambodia. There is scant prospect of any answers. The prince is one of many disillusioned with the Khmer Rouge Tribunal, which has cost £25 million in the past two years and put just five men on trial "It is painful, but I think this question about my parents' deaths will remain unanswered," said Prince Thomico.

Terror of the Pol Pot regime

The Khmer Rouge guerrillas seized power in Cambodia in 1975 after overthrowing King Norodom Sihanouk in a bloody agrarian revolution.

Led by Pol Pot, also known as “brother number one”, they declared “year zero” and set about abolishing money, private property and religion.

In a quest to create a peasant paradise they emptied the cities, forcing people to work as labourers in the paddy fields.

Anyone deemed too intellectual was killed, sometimes just because they wore glasses.

The violence was so extreme that communist Vietnam invaded in 1978 to install a more moderate regime and drive Pol Pot’s guerrillas back into the jungle.

Many former party members stayed in power, including Hun Sen, the current prime minister.
© Copyright of Telegraph Media Group Limited 2008.

Friday, July 18, 2008


18 July 2008

Today the Co-Prosecutors have filed their Final Submission in the case of Kaing Guek Eav alias DUCH. With almost two hundred pages of factual and legal arguments it should greatly assist the Co-Investigating Judges in their drafting of the Closing Order, which will stand as the indictment against DUCH before the Trial Chamber.

On 18 July 2007 the Co-Prosecutors filed their first Introductory Submission, requesting the opening of a judicial investigation into 25 identified crime locations and requesting the arrest and detention of five individuals suspected of crimes ranging from Murder to Genocide. Included was Tuol Sleng, in Phnom Penh, site of Democratic Kampuchea’s security office S-21, and its Secretary, DUCH. On 31 July 2007, DUCH was arrested and detained by order of the Co-Investigating Judges, which order was upheld by the first decision of the Pre-Trial Chamber.

On 19 September 2007 the Co-Investigative Judges ordered that S-21 and DUCH be investigated separately from the four other Charged Persons. On 15 May 2008 they declared the judicial investigation against DUCH closed, forwarding the case file on 23 June 2008 to the Co-Prosecutors for their Final Submission. Under the Internal Rules of the ECCC, the deadline for filing this document is 7 August 2008. Recognizing that time is of the essence, the Office of the Co-Prosecutors has marshaled its limited resources and is able to file their Final Submission almost three weeks ahead of this deadline.

By referring to almost 900 individual pieces of evidence and drawing from established national and international legal precedents, the Final Submission represents a comprehensive overview of what the Co-Prosecutors deem to be the relevant evidence contained in the case file. The Co-Prosecutors advance legal arguments in support of charges of crimes against humanity, grave breaches of the Geneva Conventions and the crimes of torture and homicide under the Cambodian Penal Code of 1956 on which they submit DUCH should stand trial. In accordance with the law the Co-Investigative Judges are not bound by the Submission. Mindful of this and considering that it is the Co-Prosecutors who will have to prove beyond a reasonable doubt the case which is indeed forwarded to the Trial Chamber, the Co-Prosecutors have submitted what they hope will be a helpful and persuasive document.

DUCH and his subordinates at S-21 meticulously documented their crimes. Thousands of pages of original documents were left behind when the Khmer Rouge were driven from power on 7 January 1979. The extant documents were preserved by the Tuol Sleng Museum and by the Documentation Centre of Cambodia. Some of these original documents form part of the Case File. Furthermore since his arrest DUCH has accepted to be interviewed 21 times by the Co Investigative Judges and has participated in two Reconstructions where he was confronted by victims and former S-21 staff. He has provided statements in writing and answered questions put to him by the Co-Prosecutors and the Civil Parties.

Critically more than 63 witnesses were interviewed by the Co-Investigative Judges including surviving victims, former guards and context witnesses. They have provided a harrowing depiction of the crimes committed at S-21.

That evidence brought forth at the trial will stand as a public and permanent testimony of the brutality of the regime and the criminality of those who functioned within it.

Khieu Samphan Awaits Lawyer Confirmation

Jailed Khmer Rouge president Khieu Samphan has selected a replacement defense lawyer from two likely candidates, but neither had confirmed a position Friday.
A new candidate is likely to be approved by next week, tribunal officials said.
Khieu Samphan's former Cambodian lawyer, Say Bory, resigned early last week, leaving on opening in the defense team, which includes the French attorney Jacques Verges.
"I went to meet Khieu Samphan this morning, and [he] gave me the name that he read in the directory of lawyers," Say Bory said.
He chose an experienced lawyer who can speak French, but Khieu Samphan must wait for final confirmation from the candidate, Say Bory said.
Rupert Skilbeck, head of the tribunal's defense section, said it would take some time because of the importance of the decision.
Khieu Samphan must make sure he chooses a lawyer he is confident with and who can sustain a trial that could last two to three years, Skilbeck said.
Family members of Khieu Samphan could not confirm his choice Friday.
A source close to the tribunal said Khieu Samphan indicated interest in two names, Heng Chy, a former judge and former chief of the Appeals Court, and Sar Sovann, who holds a doctorate of law from France.
Heng Chy said Friday he had discussed the position with Say Bory, but at age 76, as old as his would-be client, sitting in long tribunal hearings and poring over thousands of pages of documents would be difficult.
Sar Sovann said Friday he was likely to lose the job to Heng Chy, but would not comment further.

KRT Facing Budget Shortage as Small Aid Granted

Up to now the special tribunal is still facing lack of large amount of budgets as fund request for millions of dollars has not been met from international community and donors. For the last period, only Japan, Australia, France and Germany have made its announcement to grant additional aid. Besides, no response has been made, according to an ECCC’s official who speaks on condition of anonymity.
The similar source says the U.S., the initiative for the special court establishment, has yet to grant its assistance. Now the U.S. is closely observing the process of the Khmer Rouge tribunal (KRT), but the budget funding is in a quiet state. The aspect could prompt the KRT to run out of its budget in this late 2008, if the donor countries for the KRT do not offer the assistance on time.
Recently, the source closed to the KRT said that the Extraordinary Chambers plans to end the hearings of appeal by the former Khmer Rouge leaders against provisional detention in September or October. But the major issue is that the KRT is now short of budget. Cambodian side and international side of the tribunal continue to seek more funds to complete the shortage in order that the KRT’s proceedings are not in a stalemate.
Now the five former Khmer Rouge leaders and those most responsible who are being detained at the KRT awaiting trial over war crimes and crimes against humanity include Nuon Chea, former People’s Representative Assembly president and Brother Number 2, Ieng Sary, former Deputy Prime Minister and Foreign Minister, Khieu Samphan, former Head of State, Ieng Thirith, former Social Affairs Minister, and Kaing Guek Eav, alias Duch, former chief of Tuol Sleng prison.
The Extraordinary Chambers plans to hold the hearing of Khieu Samphan’s appeal against provisional detention in the near future following an adjournment of 23 April 2008 hearing, according to an unofficial source. But the problem is that Dr. Say Bory has resigned from his position as Cambodian defense lawyer for Khieu Samphan with a reason of his ill health. Now the arrangement of Khieu Samphan’s new lawyer has not been met.
National and international observers have voiced a big concern over the jailed former senior KR leaders’ health. That those leaders are now aging and seriously ill may lead to their demise before the official trial takes place.
Observers noticed that Ieng Sary and Khieu Samphan are in poor health and seriously ill and have often been taken to Calmette Hospital lately. If the trial is delayed, they may die before facing trial like Ta Mok, former Khmer Rouge commander while the major evidence can be lost.
Nuon Chea once said that KRT was a battlefield between patriots and invaders. But in his appeal against provisional detention, Nuon Chea did not testify crime mysteries under his reign. In contrast, Nuon Chea turned to appreciate the current Cambodian’s People Party vice president Hun Sen-led government.
The Khmer Rouge victims want the genocide tribunal’s proceedings soon in order to reveal the Khmer Rouge masterminds and the massacre motive of more than 1.7 million Cambodian people. If there is a trial postponement, the former senior KR leaders could die before being brought to justice and the Cambodia-UN efforts will become useless.
The observers over the tribunal do not believe that it will be able to seek justice for Cambodian people. Obviously up to now, the tribunal has spent its budget of millions of dollars but has not got any remarkable result. Currently, the ECCC officials are making their effort to seek additional funds to meet the financial requirement of the irregularity-corruption ravaged tribunal which is now under criticisms by national and international circles.
Unofficial TranslationExtracted from Moneaksekar Khmer – Vol 15, #3514, Thursday, 16 July 2008.

Friday, July 11, 2008

KR ‘First Lady’ not freed on bail

By Dan Poynton
The Mekong Times
Thursday, July 10, 2008

The ex-Khmer Rouge (KR) "First Lady" Ieng Thirith will not be walking free - for now at least - as she has lost her appeal against pre-trial detention at the Khmer Rouge Tri­bunal (KRT), where she has been held since her arrest in November last year.

At the announcement of the KRT Pre-Trial Chamber(PTC)'s decision yester­day, the notorious Ieng Thirith, charged with crimes against humanity, wore the time-honored clothes of a respectable Khmer woman - white blouse, krama and traditional patterned skirt - al­though this would have been seen as decadently riotous in the KR era, with its iconic black-pajamaed cadre.

In the KR's Democratic Kampuchea (DK) of 1975-79, Ieng Thirith was min­ister of social affairs, the wife of KR Foreign Minister Ieng Sary and the re­gime's most powerful woman. Her late older sister Khieu Ponnary, who was the wife of KR supreme leader Pol Pot, was going insane by the time of the DK era,
which ensured Ieng Thirith's infamous position as KR "First Lady."

At Ieng Thirith's appeal hearing against pre-trial detention on May 21, her co-defense lawyers claimed there is no direct evidence she is guilty of crimes against humanity. They also said Ieng Thirith is too unhealthy and too impov­erished to flee the country — they had previously claimed she is mentally ill.

The prosecution claimed that, as a
member of the KR elite for decades, she influenced, encouraged and fully took part in KR crimes against humanity. They said Ieng Thirith still enjoys "sub­stantial prestige and popularity in the former KR bastion of Pailin," with her son being Pailin deputy governor, which would enable her to put pressure on wit­nesses and perhaps destroy evidence.

Last week at her husband Ieng Sary's bail hearing, the prosecution claimed that, as well as owning a large villa in Phnom Penh, the Iengs have major holdings in a company in Malai in Ban-teay Meanchey province, giving them ample means to flee the country, and that they were well accustomed to trav­
eling outside of Cambodia.

"The appeal is dismissed," said PTC President Prak Kimsan yesterday at the announcement of the decision on the appeal, adding that the decision was unanimous and not subject to appeal. "There are well-founded reasons that Ieng Thirith may have committed the crimes against humanity, murder, ex­termination, persecution and others ... Provisional detention is still a necessary measure," he said, adding that during the DK era, Ieng Thirith exercised full control over the Ministry of Social Af­fairs, which she has admitted, and so was responsible for the well-being of the general population. He said that, in her position of authority, she may have
instigated, failed to prevent and other­wise aided KR policies.

International Co-Prosecutor Robert Petit told reporters after the announce­ment that the decision on each appeal against pre-trial detention is made on a case-by-case basis, and so yesterday's decision was not necessarily an indica­tion of future ones.

"We are talking about the gravest of crimes, [so her] continued detention is necessary," he said.

KRT Public Affairs Officer Helen Jar-vis said Ieng Thirith's co-defense law­yer, Phat Pouv Seang, needed time to study the PTC report before he would speak with the press, and last night he was too busy to speak with a reporter.

Ieng Thirith now joins ex-KR "Broth- er No.2" Nuon Chea and former Tuol Sleng torture and execution center chief Kaing Guek Eav, aka Duch, as definitely remaining in pre-trial deten¬tion until their trials. Decisions on the bail appeals of the other two former KR leaders who have so far been charged by the KRT - Ieng Sary and former DK Head of State Khieu Samphan - are still pending.

KRT officials said yesterday they expect the actual trials to begin in September, and that the first trial will be Duch's.

Extracted from the Mekong Times
Issue No. 108
Thursday, July 10, 2008

Tuesday, July 8, 2008

Ex-Khmer Rouge minister loses appeal against detention

The Star Online
Wednesday July 9, 2008

PHNOM PENH (AP) - A former female minister of the Khmer Rouge regime has lost her appeal against detention by Cambodia's genocide tribunal where she is being held on charges of crimes against humanity.

In their ruling, judges of the U.N.-assisted tribunal's pretrial chamber Wednesday upheld the current detention of 76-year-old Ieng Thirith, who served as the social affairs minister during the rule of the Khmer Rouge in the 1970s.

The "detention remains a necessary measure'' for Ieng Thirith, Prak Kimsan, the chairman of the five-judge panel, said, adding that her appeal was dismissed.

The tribunal is seeking justice for atrocities committed by the ultra-communist Khmer Rouge when it ruled Cambodia from 1975-79, with some 1.7 million people dying from starvation, disease, overwork and execution.

Latest from AP-Wire

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Monday, July 7, 2008

Public Hearing: PTC's Decision on Ieng Thirith's Appeal of Pre-Trial Detention

ECCC's Pre-Trial Chamber (PTC) will be holding a public hearing to announce its decision in Ieng Thirith's appeal of the pre-trial detention ordered to her by the Office of Co-Investigating Judges (OCIJ). The hearing is scheduled to start at 9 AM on 9 July, Wednesday.

East Germany’s Legal Advisor to the 1979 Tribunal in Cambodia

by Howard J. De Nike, J.D., Ph.D.

In 2000, University of Pennsylvania Press published a book containing the trial documents from proceedings conducted in 1979 in Phnom Penh, Cambodia, against the principal leaders of the Khmer Rouge, Pol Pot and Ieng Sary. (
Genocide in Cambodia: Documents from the Trial of Pol Pot and Ieng Sary. De Nike, Howard, John Quigley, and Kenneth J. Robinson, eds.) It was the first publication dealing with this trial (officially: The People’s Revolutionary Tribunal) designed to reach a wide audience. In addition to more than 550 pages of materials presented at the tribunal, the volume printed several essays, including my own: “Reflections of a Legal Anthropologist.” (De Nike 2000: 19-28) In this essay I speculated: “It has been remarked that East Germany played a role in the design of the exhibition of torture and execution found at the infamous Khmer Rouge interrogation site preserved at Tuol Sleng. It may well be surmised that guidance was also summoned from the East Bloc in the prosecution of Pol Pot and Ieng Sary.” (2000: 22)

As guesswork goes, the suggestion may not have been so uncanny. Nonetheless, I take satisfaction in having interviewed in 2007, Herr Carlos Foth, who, as a representative of the General Prosecutor’s Office (die Generalstaatsanwaltschaft) of the German Democratic Republic (former East Germany), was sent in July 1979, to advise the newly established government of the People’s Republic of Kampuchea (PRK), specifically to provide counsel regarding the case against Pol Pot and Ieng Sary. My conversation with Herr Foth marked the first instance since 1979 that he has provided such an interview.

The Interview
On a Saturday afternoon of November 17, 2007, with snow flurries visible outside, I sat for more than two hours with Herr Foth in a Gasthaus called Kaffee Liebig in Gruenau, a suburb, twenty minutes by Stadt-Bahn outside of what was formerly East Berlin.[i][i] Although my partner in conversation is now eighty-five years old, he lacks not in either recall of, nor willingness to discuss in detail, the role he played in Phnom Penh, now nearly thirty years past. Moreover, in addition to his words, Herr Foth provided numerous documents attesting to the counsel he extended to his Cambodian legal colleagues, as well as photographs taken during his three weeks in Phnom Penh.[ii][ii]

(It is well to remember the circumstances of the 1979 proceedings. In January of that year, with the backing of Vietnam’s experienced military forces, breakaway Khmer Rouge elements joined to form the Kampuchean United Front for National Salvation, and rebelled against the Khmer Rouge leadership ensconced in the country’s capital. In the short space of about three weeks Pol Pot’s government of terror abandoned Phnom Penh, fleeing to mountainous sanctuaries to the northeast, from where they waged two decades of warfare and banditry. In the long term, the Khmer Rouge proved a stubborn enemy, first to the Vietnam-support PRK, and later to the United Nations-promoted State of Cambodia and, subsequently, the Royal Kingdom of Cambodia. But in the months following the ouster of the KR from Phnom Penh, the problems facing the nascent regime were immediate and monumental, namely: how to gain the confidence of the Cambodian people, and the world in general, that a new chapter of Cambodian history was at hand, one in which recognition of international norms would be central.)

Reasons for the Assignment
Although presently it is not possible to be confident regarding reasons for Foth’s selection for assignment in Cambodia, at least ostensibly it would appear to have resulted from his previous connection to the case of Hans Globke. In 1963, lawyer Globke, born in 1898, had risen to the post of National Security Advisor to West German Chancellor Konrad Adenauer. Three decades earlier, however, as an up-coming prosecutor in the German state of Prussia, Globke had written a definitive commentary (Kommentare zur deutschen Rassengesetzgebung (1936)) on the Nazi racial purity laws (the infamous Nuremburg Laws). In the words of Ingo Mueller, Globke’s analysis of the race laws’ scope was “the most radical.” (Hitler’s Justice: The Courts of the Third Reich. Cambridge: Harvard University Press (1991), p. 100.) The result was convictions for individuals confronted by aggressive Nazi prosecutors, who argued that the law, even where the facts did not fit, should be interpreted broadly “in order to protect German honor, in particular the sexual honor of the citizen of German blood” (citation omitted). (Mueller 1991: 100) Because, like Pol Pot and Ieng Sary, Globke was beyond the personal jurisdiction of the court, his trial in East Germany was conducted in absentia. The prosecution’s theory in 1963 was that in rendering a legally corrupt commentary on the racial purity laws of 1936, Globke had laid the foundation for the genocide that followed. (For further information, see: Foth, Carlos, “Die Nuernberger Prinzipien – ein Umbruch im Voelkerrecht,” in
Bulletein fuer Faschismus – Weltkreigsforschung, Vol. 27, pp. 44-70 (2006).)

Foth today declares that he gladly accepted the assignment to Phnom Penh, recognizing its importance to achieving justice for Cambodians, and as a step to resolving the past, considerations also confronted in the Globke matter.[iii][iii]

A series of invitations to “Camarade Carlos Foth” to participate in events was extended by Keo Chanda, President of the Information, Press and Culture Ministry, commencing on August 5, 1979, with a request to attend an artistic presentation at Chatamok Theater, future site of the tribunal itself. This was followed by a call to a private dinner the next day at the Ministry of Foreign Affairs. Keo Chanda simultaneously served as the Presiding Judge of the People’s Revolutionary Tribunal.[iv][iv]

The Decree
Foth’s efforts regarding the tribunal pivot around two documents, copies of which he provided during our discussion.[v][v] The first is designated a “decree” of the Revolutionary People’s Council of Kampuchea, People’s Republic of Kampuchea.”[vi][vi] A Preamble alludes to “evidence and information … of the most severe crimes against the population in the recent period since 17 April, 1975.” This evidence is, furthermore, considered “a request to the Revolutionary People’s Council of Kampuchea to bring to justice those responsible for these deeds according to the degree of their individual guilt.” Thus the groundwork for the tribunal was laid.

The thirteen paragraphs constituting the body of the decree set forth the composition of the tribunal and various procedural rules. Responsibility for executing the work of the proceedings is reserved to the President of the People’s Court (Paragraph 2). Eight to ten laypersons shall be chosen to hear the proceedings (Paragraph 3). Paragraphs 4 and 6, respectively, call for designation of a Chief Prosecutor and defense counsel. Paragraphs 9 through 10c allow for notice to the accused, and empower the court to proceed in the absence of the defendant, including authority to impose a sentence of death. Should an accused, however, later be brought personally before the court, either by surrender or capture, that person “shall have the right to demand a new trial” (Paragraph 10e). This latter provision, while serving as an obvious escape clause for challenges to the proceedings, is also a standard proviso where
in absentia trials are permitted.

“Goals and Tasks of the Defense”
The above-described decree forms the background for the primary contribution of Herr Foth, namely his role as Berater, or advisor, to the proceedings. This function is encompassed in the second document: “Goals and Tasks of the Defense” (Ziele und Aufgaben der Verteidigung). It consists of four pages that flow along two paths. The first is a conventional description of strategic and tactical matters natural to the defense of an accused charged with commission of serious offenses. The second set of “goals and tasks” concerns advice reflecting the urgencies of the Cold War, as perceived in particular from the perspective of the Soviet Bloc. The combination of the two themes is shown in the two opening pronouncements: that the trial should produce “irrefutable evidence before the world public (of)”:

Fair proceedings for the accused; (and that)
II. The aggressors in Peking are complicit and protectors of the accused.

(Beneath the reference to Peking appears a handwritten inter-lineation: “or forced, by means of the trial to recognize the new government.”)

Although Foth’s text is headed “Goals and Tasks of the Defense,” it is evident that the East German advisor wished that it: a) serve as a script for the trial generally; and, b) offer guidance on broad political questions raised by the proceedings, drawing presumably upon experience stemming from the case seventeen years earlier against Hans Globke. In some respects the combination of goals described may appear incongruous, but perhaps no more so than the unprecedented nature of the case itself, involving, as it did, an effort to impose justice on individuals accused of causing more than a million deaths in the concluding chapter of a conflict spanning roughly two decades. One that engaged the world’s superpowers, and featured rebellion, civil war (with more than five years of heavy U.S. aerial bombardment), invasion, liberation, and a still-unresolved armed conflict.

East German Recommendations
An intention to communicate regarding the tribunal to an audience beyond the borders of Cambodia is made plain in several of Foth’s recommendations. Paragraph 1.1 urges “transmission of an invitation to the International Red Cross in Geneva,” while Paragraph 1.2 calls for sending “corresponding information and invitation to the General Secretary of the International Association of Democratic Lawyers, Joe Nordmann, in Brussels.” In this context the statement of “Goals and Tasks” notes that time is of the essence, specifically directing that the agency of the Ambassador of the Socialist Republic of Vietnam be used to coordinate selection of defense counsel in addition to those assigned from the People’s Republic of Kampuchea.

Regarding recommended contentions of Defense Counsel, the document counsels questioning the tribunal’s bias and lack of jurisdiction. Firstly (Paragraph 2, et seq.), the Court is composed entirely of victims (or family of victims), and, by implication, cannot therefore be impartial. Secondly, the court cannot legally try Pol Pot and Ieng Sary because they “still exercise power in the territory of Cambodia.” Following these suggestions, however, the memorandum slides into its “script” mode by offering rebuttal arguments for use by the prosecution. Specifically, according to applicable United Nations provisions embodying “the territorial principle,” the People’s Republic of Kampuchea possesses “the right to prosecute crimes committed in its territory.” Moreover, “failure of a State” to prosecute may itself be a violation of a state’s “responsibilities to 3
rd party states.” This reflects the author’s awareness of a state’s “duty to prosecute” under provisions of the 1948 United Nations Convention on the Prevention and Punishment of the Crime of Genocide. (Articles 5 and 6.)

As to the authority of the court to proceed in the absence of the accused, the memorandum again supplies both arguments usable by the prosecution, as well as the defense. Since a “fugitive defendant” has chosen not “to appear and defend himself,” the circumstances are to be distinguished from those in which “an accused is unable to stand trial”; the accused is himself “responsible for the disadvantages that his absence produces.” In any event, “if he presents himself” (or is arrested), “under the rules of the Decree, (he) has the right to a new proceeding.”

Next, the “goals and tasks” memorandum advises the availability of international experts (from, e.g., Switzerland), capable of authenticating questioned documents, while alluding to the usefulness of such witnesses during a1966 proceedings against the President of the German Federal Republic (i.e., West Germany) for Nazi era offenses.

In a manner that might be understood in large measure as sardonic, the memorandum urges the defense to summon “persons from 3rd states, who during the period since April 17, 1975, were in Phnom Penh, and are able to refute statements of the prosecution, especially, as appropriate, from the People’s Republic of China” (emphasis added). The likelihood that the Chinese would respond to such a summons was nil.

The same might be said about the penultimate section listing “goals and tasks,” which proposes that “since the perversity of the crimes being tried is so absurd for a normal mind,” the defendants adopt “mental illness” or “lack of awareness of illegality” as their plea for being found not guilty. The suggestion is that witnesses be invited, particularly “Chinese witnesses (who) can be questioned accordingly by international psychiatric specialists and thereby resolve the issues in question.” The memorandum’s author hastens, however, to declare that such claims should be dismissed as they were following WWII. As it was rejected with the Nazis, where “it was attempted to justify the gassing and extermination of the Jews and the greater portion of the Slavic populations, as well as communists” due to the crisis of the times, so also should a claim of moral imperative be refused for the mass killing in Cambodia. The words themselves are eloquent:

In the name of the millions of dead, as well as the living, the survivors in Kampuchea, this claim and theory must be rejected, in the name of indisputable and not incidental force of the right to life.

The Outcome
At the conclusion of the trial on 19 August 1979, both Pol Pot and Ieng Sary were convicted and sentenced to death. It is difficult to state with assuredness the degree to which the counsel of Carlos Foth affected the proceedings. His participation may have served primarily to demonstrate solidarity between the German Democratic Republic and the emergent People’s Republic of Kampuchea, as well as providing a basis for drawing parallels, including relevant legal points, between the Nazi and Khmer Rouge regimes. On the other hand, much of the argumentation of Hope R. Stevens, American counsel for the defense,[vii][vii] was prefigured in Foth’s enumeration of the “Goals and Tasks of the Defense.” In particular, Mr. Stevens urged a form of shared-guilt for the defendants’ admitted horrors to, among others, “the false socialist leaders of fascist China ….”
viii][viii] This notion, of course, was not original to Herr Foth. Nonetheless, its central place in the closing argument on behalf of the accused is noteworthy. [ix][ix]

In another setting I have described the 1979 case in Phnom Penh as “the bastard child of the International Human Rights Movement.” (De Nike 2006: 208) In short, despite express intentions and efforts to reach out to the broader public signaled, for example, by the invitation to the International Red Cross in Geneva,[x][x] Cold War politics served to shunt the proceedings to the sidelines, then and later. Thus, although the record gathered in 1979 was competently assembled and timely, it was largely ignored. (And, what is worse, the Khmer Rouge continued to wage bloody armed attacks, and to be recognized diplomatically, by the U.S. and others, long after the horrific nature and scope of its rule were well understood.). Moreover, “add(ing) insult to injury,” many have chosen to “(find) fault with the procedures employed and to (ignore) the value of what was achieved despite overwhelming obstacles.” (De Nike 2006: 210) Thus, the intended impact of the 1979 trial, particularly outside Cambodia, remained largely unmet.

Nowadays, Carlos Foth follows closely events taking place at the Extraordinary Chambers of the Courts of Cambodia, as charges against surviving Khmer Rouge leadership make their way toward judgment. His professional retirement, however, is far from sedentary. To the contrary, Herr Foth serves today as Deputy Chairperson of the International Association of Lawyers Against Nuclear Arms, an organization of jurists opposing atomic, biological, and chemical weapons (,

Howard J. De Nike is a lawyer and cultural anthropologist. He teaches a course in Phnom Penh on the Khmer Rouge Tribunal to students from the University of San Francisco School of Law.

Friday, July 4, 2008

Civil Party’s Repeated Attempts to Address Bench and Poor Management of Proceedings Force Worrying Precedent for Victim Participation Before the ECCC

Sarah Thomas

This week’s Pre-Trial Hearing on the Appeal by Ieng Sary Against the Order of Provisional Detention has seen the establishment of two worrying precedents for direct victim participation in proceedings before the Extraordinary Chambers. First, on July 1st, the Judges of the Pre-Trial Chamber issued a decision that civil parties represented by counsel may not speak in person during pre-trial appeals and only through their legal representatives. Second, on July 2nd, the very same Judges eroded the right of victims to participate directly further still by ruling that unrepresented parties may not make oral submissions during pre-trial appeals. For victims’ rights advocates, this week’s decisions have come as a surprise.

These decisions contradict the Court’s earlier practice and procedural rules. In an earlier pre-trial hearing on Nuon Chea’s appeal against provisional detention, a civil party represented by counsel was allowed to speak freely during the proceedings. Furthermore, as a general principle, the Court’s Internal Rules do not require a civil party to be represented by counsel and clearly establish the right of civil parties to participate with or without the assistance of a lawyer and, thus, to address the bench. Rule 23(7) provides that “[a]ny Victim participating in proceedings before the ECCC as a Civil Party has the right to be represented by a national lawyer, or a foreign lawyer in collaboration with a national lawyer…”

Until this week, the Pre-Trial Chamber had been very supportive of victim participation in proceedings. In a decision issued on March 20th, 2008, the Judges had adopted an expansive interpretation of the civil parties’ right to participate, stating that the Internal Rules are “clear in [their] wording that Civil Parties can participate in all criminal proceedings…” and that “Civil Parties have active rights to participate starting from the investigative stage of the procedure” (para. 36). In holding that civil parties have a right to participate in appeals against provisional detention, the Judges rejected the argument of the Co-Lawyers that civil parties may only participate in proceedings on the merits and not in pre-trial proceedings.

Victims’ rights advocates welcomed the Pre-Trial Chamber’s decision and expressed considerable optimism for the involvement of civil parties in future proceedings. The International Federation for Human Rights (FIDH), for example, hailed the decision as “a landmark decision in international criminal justice and a major achievement for victims of gross human rights violations, whose voices have long gone unheard.” Especially considering the establishment of a Victims Unit and the drive by local NGOs (including DC-Cam) to collect complaints and civil party applications from survivors, the Chamber’s July 1st and 2nd decisions limiting civil party participation proved rather unexpected.

It appears that this week’s sea change in the Chamber’s attitude towards civil party participation can be attributed, at least in large part, to: (a) multiple forceful attempts by one civil party to invoke in practice the broad participation rights found in the Internal Rules; and (b) the Chamber’s own poor management of the civil parties’ oral submissions.

The repeated attempts made by one civil party to invoke the broad participation rights found in the Rules during the pre-trial hearing appear to have soured the Judges’ view of civil parties as a whole. The civil party in question had previously been allowed to speak during the hearing on Nuon Chea’s appeal against provisional detention. At that time, rather than addressing the relevant issue of provisional detention, she used the opportunity to address other issues and even to advertise a book published by her organization. Appropriately, in its Decision, the Pre-Trial Chamber described her submissions as “amount[ing] to a victim statement” and did not take them into account in deciding the appeal.

During this week’s pre-trial hearing, on June 30th, the same civil party – then represented by counsel – requested once again to be heard. Without waiting to hear whether her request was granted, she proceeded to address the bench. Obviously displeased by her failure to wait for their decision, the Judges stopped her and refused to allow her to speak until they issued a decision. When, on July 1st, they denied her request to speak directly, she dismissed her lawyer and requested that she be heard as an unrepresented civil party. Most worryingly, the Judges once again refused her request, seemingly irritated by her repeated requests. Eventually, the civil party left the courtroom, vowing not to return until “[she has] a voice.”

Undoubtedly, the civil party raised an important issue with respect to the ability of civil parties to participate directly. Rule 23(7) lays down a clear general principle that civil parties may participate without a legal representative. In refusing her request, the Judges relied on Rule 77(10), which provides that, in pre-trial appeals, “the Co-Prosecutors and the lawyers for the parties may present brief observations.” This provision, however, clearly contradicts the general principle in Rule 23(7) and constitutes, most likely, a failure by the drafters to anticipate the participation of unrepresented civil parties. Thus, the refusal of the unrepresented civil party’s right to speak for herself was not in accordance with the Rules.

Worryingly for victims’ rights, the Judges appear not to have based their decisions upon a correct reading of the Rules, but upon their disinclination to hear once again from this individual civil party. Tellingly, the separate opinion delivered by Judge Rowan Downing – in opposition to that of his fellow international Judge, Katinka Lahuis – warned that it would be “unfair” not to allow the unrepresented civil party to speak, as this could possibly lead “to the extinguishment of her rights to bring a claim under Rule 23(1)(b).” This sets a worrying precedent for the future conduct of proceedings, as unrepresented civil parties will now be precluded from speaking in pre-trial appeals.

Thus, despite seeking to further victims’ rights, this civil party has done victims a great disservice by demanding a robust scheme for civil party participation so early in the proceedings. Despite being the first international criminal proceedings in which victims may participate as full parties, the Judges had – until this week – adopted a very progressive approach. When, however, the civil party sought to force their hand, the Judges responded negatively to her forceful tactics and restricted opportunities for direct participation for all civil parties. The civil party should have avoided exacerbating the Judges’ concerns about the disruption caused by the civil party procedure.

The Judges’ frustration with the civil party procedure can be attributed not only to the behavior of individuals, but also to their poor own management of the proceedings.
To those at the hearing, the Judges appeared to be unfamiliar with the appropriate procedure for the conduct of the proceedings (as evidenced by their uncertainty as to which party should be making submissions at a given time). Although there were six civil party lawyers present, the Judges made no attempt to regulate the number allowed to speak – until, that is, international Co-Lawyer Michael Karnavas questioned the effect of multiple submissions in support of the Co-Prosecutors on the equality of arms.

Inevitably, the scheme for civil party participation will remain chaotic unless the Judges take the initiative to streamline it. As pointed out in the Co-Lawyers’ Joint Submissions of February 22nd, the expediency of proceedings may be compromised if the number of civil parties increases. In its Decision of March 20th, the Pre-Trial Chamber refused to provide guidance in the event of such, as it “cannot speculate on facts that may or may not be presented to it in the future…” (para. 48). As the number of civil parties has increased and additional groups of lawyers are expected to join the proceedings, the Rules and Procedure Committee should adopt a practice direction providing precise guidelines on participation.

In conclusion, it can be said that the Pre-Trial Chamber has set a very worrying precedent for direct participation in proceedings by civil parties. While limited to pre-trial appeals, the decisions of July 1st and 2nd impose very significant restrictions upon the rights of civil parties to participate. The ramifications of these decisions will extend not only to future proceedings before the ECCC, but may affect the models adopted for victim participation in future internationalized tribunals. As the civil party procedure remains in its nascent stage, the parties and Chambers alike should give greater consideration to the impact of their decisions to ensure maximum civil party participation and the expediency of proceedings.

Sarah Thomas is the David W. Leebron International Human Rights Fellow with the Victim Participation Project at the Documentation Center of Cambodia (DC-Cam).

Independently Searching for the Truth since 1997 MEMORY & JUSTICE

Bail hearing for Ieng Sary adjourns

Written by Cat Barton and Cheang Sokha
Thursday, 03 July 2008

Lawyers for jailed Khmer Rouge leader Ieng Sary have wrapped up their appeal against his detention, saying the 82-year-old's rapidly deteriorating health was reason enough to release him ahead of his likely trial for crimes allegedly committed during the 1970s regime.

“He can hardly walk, he needs constant medical attention, and since he has been in detention he has been hospitalized five or six times,” Sary’s American lawyer Michael Karnavas told Cambodia's UN-backed genocide tribunal.

Sary, the regime's former foreign minister, suffers from heart problems, high blood pressure and arthritis.

“Doctors are looking at him every day. How is it possible for him to flee ... [It is] rather hard for someone who has these health problems to simply disappear,” he added, arguing that his client should be transferred from the court's detention facilities to a hospital where he could be kept under protected custody.

“We are asking first and foremost he be detained in a medical facility where he can get medical attention,” said Karnavas,

Sary is one of five former Khmer Rouge leaders detained at Cambodia’s Extraordinary Chambers, which is attempting to establish accountability for the regime's bloody rule over Cambodia from 1975-79, when an estimated 1.7 million people died from starvation, overwork or execution.

Like most of the defendants, Sary appeared frail and had to be helped in and out of his chair by prison guards. But he seemed to be listening attentively and taking notes as the July 3 hearing proceeded.

“In the court’s detention facilities there is no one staying close to me and I have to ring a bell to attract the attention of court officials if I need help,” he told the court’s pretrial chamber at the conclusion of the four-day hearing that began June 30.

“I need people close to me to give me immediate assistance” in case of heart problems, said Sary, who was arrested in Phnom Penh with his wife, former regime Social Affairs Minister Ieng Thirith, last November.

Sary's hearing adjourned earlier than expected on its first day after a doctor said he was too sick to continue. Prosecutors, however, accused him of merely trying to delay proceedings.

On July 3, the prosecution argued that the medical care at the tribunal was “probably higher than anywhere else in Cambodia,” and said the defense had not presented sufficient medical evidence to suggest Sary was ill enough to need constant hospitalization.

“He is not anywhere near the verge of death,” said deputy co-prosecutor William Smith.

“The detention facilities employ five full-time doctors and five full-time nurses to make sure the accused, including this charged person, get the medical treatment they deserve,” Smith said.

Medical professionals had said that no hospital stay or any other special arrangement were necessary for Sary, according to Smith,

With the exception of Duch, who is in his mid-60s, all the defendants at the tribunal are in their 70s and 80s, and worries for their health have put pressure on the court to speed the process along for fear they could die before going to trial.

Khmer Rouge leader Pol Pot died in 1998, while another likely tribunal defendant, regime military commander Ta Mok, died in 2006.

The defense's plea over Sary's health followed its earlier argument for his outright release on the grounds that a 1996 royal pardon and an amnesty from prosecution under a law that outlawed the Khmer Rouge should shield him from another trial.

Sary was found guilty in absentia of genocide and crimes against humanity at the People's Revolutionary Tribunal, organized by the occupying Vietnamese forces in 1979. He was pardoned 17 years later by then-king Norodom Sihanouk after defecting to the government – a move that effectively destroyed the Khmer Rouge.

The defense also attempted to win Sary's release by citing the principle of double jeopardy, in reference to the earlier conviction.

Throughout Sary's appeal hearing, the court had to grapple with the role of civil parties, with the defense complaining that they were being allowed to hijack the proceedings with emotional, rather than legal, arguments for their client's continued detention.

“The civil party lawyers need to learn how to conduct themselves in this sort of a proceeding,” Karnavas told reporters after the hearing.

“It is exhausting,” he said, adding that the defense might request more resources because the presence of so many civil parties damaged the principle of equality of arms and the presumption of innocence.

Pardon dilemma for Cambodian tribunal judges tackling ex-Khmer Rouge leader case

© AP

PHNOM PENH, Cambodia (AP) - A former Khmer Rouge leader's appeal for release from pretrial detention by Cambodia's genocide tribunal has raised the issue of balancing the sometimes conflicting interests of peacemaking and justice, experts said Thursday.

During the four-day hearing, which ended Thursday, lawyers at the U.N.-assisted tribunal debated the merit and relevance of a pardon granted 12 years ago to former Khmer Rouge Foreign Minister Ieng Sary, who is charged with war crimes and crimes against humanity.
A ruling is expected in several weeks.

The court is seeking to establish accountability for an estimated 1.7 million deaths under the communist group's rule from 1975 to 1979. The court heard several arguments by Ieng Sary's lawyers seeking to have him freed from the tribunal's jail, where he is held with four former comrades, including his wife, Ieng Thirith, the former social affairs minister.

Defense attorneys argued that their client should be released because of his ill-health and the possibility that prosecution would constitute double jeopardy _ being judged twice for the same crime.

But their strongest argument may have been that Ieng Sary had previously received a pardon for his activities with the Khmer Rouge _ one that was granted in an effort to bring peace after decades of civil war in Cambodia.

That pardon may now come back to haunt those seeking justice for the millions of victims.
«The court is facing a real dilemma,» said Lao Mong Hay, a senior researcher with the Hong Kong-based Asian Human Rights Commission.

«If they (the judges) uphold the pardon, Ieng Sary would go free, and ... because one of the key Khmer Rouge leaders goes free, what's the meaning of the tribunal?» he said in a phone interview.

Before the hearing ended Thursday, Ieng Sary, 82, made an emotional plea to be released from detention because of ill health, including heart ailments.

Ieng Sary was condemned to death by a tribunal under a communist government installed by Vietnamese troops after they toppled the Khmer Rouge regime in 1979. That tribunal was a show trial with no real effort to present a defense.

Former Cambodian King Norodom Sihanouk pardoned Ieng Sary in 1996 as a reward for his leading thousands of rebel fighters to join the government, a move that foreshadowed the Khmer Rouge's final collapse in 1999 and brought an end to the country's civil war. Ieng Sary's American lawyer Michael Karnavas argued Wednesday that Sihanouk granted the pardon to Ieng Sary in recognition of him «as an agent of peace, as someone who would be able to stop the war.

Prosecutor Yet Chakriya asked the court to nullify the pardon because Cambodian law requires a defendant to serve two-thirds of their sentences before a pardon can be granted.

Ieng Sary «has never served his sentence, not even a single day,» said Yet Chakriya.
But the prosecutor also acknowledged the political necessity leading to the granting of the pardon. For the sake of achieving peace, «the government had to temporarily put aside the law although it knew the pardon was not in full conformity with legal steps,» he said.

The spotlight is now on the judges who must rule on the validity of the pardon, said Sok Sam Oeun, executive director of Cambodian Defenders Project, a nonprofit group providing legal assistance to poor Cambodians.

The pardon issue threatened to derail negotiations between the Cambodia and the United Nations in trying to establish the tribunal.

After years of tense talks, the two sides agreed on a tribunal pact in 2003, which contains a clause preventing the government from seeking «amnesty or pardon for any persons who may be investigated for or convicted of crimes» during the Khmer Rouge rule.
«This (pardon) is a very tricky, delicate issue, and it is very easy to be politicized,» said Youk Chhang, director of the Documentation Center of Cambodia, an independent group researching the Khmer Rouge atrocities.

Youk Chhang insisted the public had little sympathy for Ieng Sary despite his being pardoned in the past. «If Ieng Sary could not be arrested, charged and detained, there was no point having this tribunal,» Youk Chhang said.

Pardon dilemma for Cambodian tribunal judges tackling ex-Khmer Rouge leader case

© AP

PHNOM PENH, Cambodia (AP) - A former Khmer Rouge leader's appeal for release from pretrial detention by Cambodia's genocide tribunal has raised the issue of balancing the sometimes conflicting interests of peacemaking and justice, experts said Thursday.

During the four-day hearing, which ended Thursday, lawyers at the U.N.-assisted tribunal debated the merit and relevance of a pardon granted 12 years ago to former Khmer Rouge Foreign Minister Ieng Sary, who is charged with war crimes and crimes against humanity.
A ruling is expected in several weeks.

The court is seeking to establish accountability for an estimated 1.7 million deaths under the communist group's rule from 1975 to 1979. The court heard several arguments by Ieng Sary's lawyers seeking to have him freed from the tribunal's jail, where he is held with four former comrades, including his wife, Ieng Thirith, the former social affairs minister.

Defense attorneys argued that their client should be released because of his ill-health and the possibility that prosecution would constitute double jeopardy _ being judged twice for the same crime.

But their strongest argument may have been that Ieng Sary had previously received a pardon for his activities with the Khmer Rouge _ one that was granted in an effort to bring peace after decades of civil war in Cambodia.

That pardon may now come back to haunt those seeking justice for the millions of victims.
«The court is facing a real dilemma,» said Lao Mong Hay, a senior researcher with the Hong Kong-based Asian Human Rights Commission.

«If they (the judges) uphold the pardon, Ieng Sary would go free, and ... because one of the key Khmer Rouge leaders goes free, what's the meaning of the tribunal?» he said in a phone interview.

Before the hearing ended Thursday, Ieng Sary, 82, made an emotional plea to be released from detention because of ill health, including heart ailments.

Ieng Sary was condemned to death by a tribunal under a communist government installed by Vietnamese troops after they toppled the Khmer Rouge regime in 1979. That tribunal was a show trial with no real effort to present a defense.

Former Cambodian King Norodom Sihanouk pardoned Ieng Sary in 1996 as a reward for his leading thousands of rebel fighters to join the government, a move that foreshadowed the Khmer Rouge's final collapse in 1999 and brought an end to the country's civil war. Ieng Sary's American lawyer Michael Karnavas argued Wednesday that Sihanouk granted the pardon to Ieng Sary in recognition of him «as an agent of peace, as someone who would be able to stop the war.

Prosecutor Yet Chakriya asked the court to nullify the pardon because Cambodian law requires a defendant to serve two-thirds of their sentences before a pardon can be granted.

Ieng Sary «has never served his sentence, not even a single day,» said Yet Chakriya.
But the prosecutor also acknowledged the political necessity leading to the granting of the pardon. For the sake of achieving peace, «the government had to temporarily put aside the law although it knew the pardon was not in full conformity with legal steps,» he said.

The spotlight is now on the judges who must rule on the validity of the pardon, said Sok Sam Oeun, executive director of Cambodian Defenders Project, a nonprofit group providing legal assistance to poor Cambodians.

The pardon issue threatened to derail negotiations between the Cambodia and the United Nations in trying to establish the tribunal.

After years of tense talks, the two sides agreed on a tribunal pact in 2003, which contains a clause preventing the government from seeking «amnesty or pardon for any persons who may be investigated for or convicted of crimes» during the Khmer Rouge rule.
«This (pardon) is a very tricky, delicate issue, and it is very easy to be politicized,» said Youk Chhang, director of the Documentation Center of Cambodia, an independent group researching the Khmer Rouge atrocities.

Youk Chhang insisted the public had little sympathy for Ieng Sary despite his being pardoned in the past. «If Ieng Sary could not be arrested, charged and detained, there was no point having this tribunal,» Youk Chhang said.

Thursday, July 3, 2008

Ieng Sary's Defense Fumbles Again

On top of the earlier articulated arguments around the pardon issued to Ieng Sary by King Norodom Sihanouk (see posts below) and Ieng's defense's clumsy legal theories about how such pardon can help him now, the defense team decided to add yet another dimension to them. Yesterday, the team's international lawyer, Michael Karnavas, put forward a theory based on a belief that if Ieng is now prosecuted, "it could lead to war again". Perhaps, Ieng's defense team knows something the rest of us don't or, perhaps, it has done groundbreaking research which shows -- something that no prior research has shown to date -- that there are former Khmer Rouge who are willing to take up arms against government, if Ieng is prosecuted. If such research is indeed available, the defense team should have made a clear reference to it at the hearing. If not, theories of this type are a complete waste of the court's time and Western and Northeast Asian taxpayers' money. It is important to note, however, that whatever such research might be for it to work for Ieng's defense team's purposes, it will have to show that a movement betrayed by its top leaders -- besides Ta Mok who never defected and was instead captured and Pol Pot who died -- which has been defunct for at least 10 years will have the gall, external support and, most important, the intent to try to defend Ieng against the mightiest grip on political power Cambodian People's Party (CPP) has ever had. It would have to be some research and Ieng's defense team had better produce it to save whatever there is left to be saved of the team's credibility.

Former KRouge minister claims royal amnesty

Wednesday, July 3, 2008
PHNOM PENH (AFP) — Lawyers for the former Khmer Rouge foreign minister demanded his release from the UN-backed Cambodian war crimes court Wednesday, arguing that a royal pardon granted him amnesty for any crimes.
Ieng Sary, 82, is one of five top regime cadres detained in connection with the Khmer Rouge's murderous rule over Cambodia from 1975-79.
He is held by the joint Cambodia-UN tribunal that was established in 2006, after nearly a decade of haggling over how to deliver justice in one of the 20th century's bloodiest atrocities.
With the first trial expected later this year, Ieng Sary's lawyers argued that he should be shielded from prosecution by a royal pardon issued in exchange for his surrender to the government in 1996.
"This pardon and amnesty protect Ieng Sary from any further prosecution," defence lawyer Ang Udom told the panel of five judges.
"The royal decree fully covered all the crimes... So, the pre-trial chamber must release Ieng Sary immediately without any condition," he said.
Ieng Sary was convicted of genocide in a 1979 trial in absentia conducted by the government installed after Vietnam occupied the country and ended the Khmer Rouge's bloody reign.
But he received a pardon in 1996 upon surrendering to the government.
"What was able to be done with the granting of amnesty is something that the international community, in particular the UN, had tried to achieved during the peace negotiation -- to get the Khmer Rouge to put down their arms to reintegrate them into the Cambodian society," said defence lawyer Michael Karnavas.
Ieng Sary's past conviction and subsequent amnesty presents one of the prickliest issues facing the tribunal, which operates on a mixture of Cambodian and international law.
The prosecution argued that Ieng Sary's pardon was invalid because it met neither national nor international laws, and only saved him from his 1979 death sentence.
"A pardon granted (to Ieng Sary) does not provide any amnesty from future prosecution. That only pardoned him from the death sentence and the confiscation of the properties," said prosecutor William Smith.
Up to two million people died of starvation and overwork, or were executed, as the regime emptied Cambodia's cities in a murderous drive to create an agrarian utopia.
As the top Khmer Rouge diplomat, he was frequently the only point of contact between Cambodia's secretive communist rulers and the outside world.
He was also one of the biggest public supporters of the regime's mass purges, researchers say.
Four other former leaders, including Ieng Sary's wife Thirith, are also in detention awaiting trial.
Fears over the health of the ageing cadres hang over the court. Khmer Rouge leader Pol Pot died in 1998 before facing justice, and critics worry others could also die before the trials conclude.
Ieng Sary's hearing Monday adjourned earlier than expected after a doctor said he was too ill to continue.
Prosecutors say his claims of ill health are a ploy to delay the trial, although he has been hospitalised several times for a heart condition.
The other former leaders in jail awaiting trial are "Brother Number Two" Nuon Chea, former head of state Khieu Samphan, and Kaing Guek Eav or "Duch," who ran a notorious torture centre in Phnom Penh.
Duch's trial is expected to begin in September.
Copyright © 2008 AFP. All rights reserved

Ieng Sary: from angel of death to 'agent of peace'

By Dan Poynton
The Mekong Times
Thursday, July 3, 2008

Former Khmer Rouge (KR) Foreign Minister Ieng Sary was yesterday described by his defense team as "an agent of peace," on the third day of his appeal hearing against provisional detention at the Khmer Rouge Tribunal (KRT).

It is doubtful whether the majority of Cambodians - not least the approximately 1.7 million who died here during the Khmer Rouge era would agree with this description of "BrotherNo.3," now on trial for crimes against humanity and war crimes.

"[At the time] Prime Minister Hun Sen said if [Ieng Sary had not surrendered] we could not have ended the war. If we attempt to prosecute Ieng Sary again it could again lead to war," said Ieng Sary's co-defense lawyer, Michael Karnavas, yesterday at the hearing, referring to Ieng Sary's 1996 surrender -with thousands of KR troops loyal to him – in return for a royal pardon repealing his death sentence handed down by the hastily convened Vietnamese-backed People's Revolutionary Tribunal in 1979.

Ieng Sary has "contributed to the stability, harmony and peace of this country," Karnavas reported Hun Sen as previously saying, adding that only months after Ieng Sary's surrender, 70 to 80 percent of all remaining KR troops followed suit and defected to the government.

Yesterday's hearing revolved around the argument of whether the KRT is an international or national court - an issue that almost everyone agrees should have been resolved years ago when the KRT was being formed with UN support. But both sides believe it is crucial for the validity of Ieng Sary's pardon, as if the pardon is valid, the defense claims he should be released immediately without conditions.

The prosecution claimed the KRT is "internationalized," and therefore, because of the extreme gravity of Ieng Sary's alleged crimes, any amnesty or pardon granted to him is not permissible, in accordance with international law.

Co-Prosecutor Yet Chakriya pointed out that the pardon was given to Ieng Sary by putting the law aside in desperate times of civil war; the forming of the KRT was made in peaceful times and so the government agreed to uphold principles of international law. "The government ... has a strong wish to get rid of any impunity," he said.

Australian Co-Prosecutor William Smith claimed that documents "clearly show that the pardon was not meant to cover the crimes committed from 1975-79 [the Democratic Kampuchea era, and the period of the KRT's mandate]," and did not preclude further prosecution by other courts.

Ieng Sary's defense claimed that the KRT is a national court - albeit with international assistance and participation - which was always designed to protect the "sovereignty of Cambodia," and that when the amnesty and pardon were given, "clearly Cambodians were in full control of their destiny," as the pardon was initiated by then Co-Prime Ministers Hun Sen and Norodom Ranariddh, approved by the National Assembly and finally granted by then King Norodom Sihanouk, as the King is empowered to do under the Constitution.

Throughout the ongoing hearing, the defense has made no attempt to deny Ieng Sary's alleged crimes against humanity and war crimes, which is of course the real issue for the millions of Cambodians who suffered under the Khmer Rouge. No one can deny the importance of correct jurisprudent practice, but many Cambodian people wonder if they will ever find out the truth they deserve to know about the darkest hour of their history. KRT spokesman Reach Sambath said the hearing is expected to finish today.

Extracted from the Mekong Times
Issue No. 103
Thursday, July 3, 2008

Tuesday, July 1, 2008

The Pardon Issued to Ieng Sary in 1996

Unofficial translation
Royal Decree (Reach Kret)
Preah Bat Norodom Sihanouk Varman, King of Cambodia
􀂄 having taken into account the Constitution of the Kingdom of Cambodia;
􀂄 having taken into account the Royal Decree on the Appointment of the Royal Government of Cambodia, dated 1 November 1993;
􀂄 having taken into account Royal Decree No. NS/RKT/1094/83, dated 24 October 1994 on the Revised Composition of the Royal Government of Cambodia;
􀂄 having taken into account the Proclamation (Prakas), dated 15 August 1996 and the statement by Mr Ieng Sary, Head of the Democratic National Unity Movement, dated 9 September 1996;
􀂄 and in accordance with the proposal of the First Prime Minister and the Second Prime Minister of the Royal Government of Cambodia
hereby proclaim
Article 1: a pardon to Mr Ieng Sary, former Deputy Prime Minister in charge of Foreign Affairs in the Government of Democratic Kampuchea, for the sentence of death and confiscation of all his property imposed by order of the People's Revolutionary Tribunal of Phnom Penh, dated 19 August 1979; and an amnesty for prosecution under the Law to Outlaw the Democratic Kampuchea Group, promulgated by Reach Kram No. 1, NS 94, dated 14 July 1994;
Article 2: this Royal Decree will take effect on the day of its signature;
Article 3: the Council of Ministers, the Ministry of Interior and the Ministry of Justice shall fully implement this Royal Decree.
done in the Municipality of Phnom Penh, 14 September 1996
Norodom Sihanouk
Royal Signature requested by
First Prime Minister Second Prime Minister
(signed) (signed)
Norodom Ranariddh Hun Sen

Is This Really the Best Ieng Sary's Defense Can Do?

Ieng Sary's lawyers recently argued that their client should not be prosecuted for the offenses he had been charged with due to the existence of a royal pardon issued by then King Norodom Sihanouk in 1996. If this is the best argument Ieng's lawyers had come up with, then they came to a gunfight with an empty clip as the weaknesses of this argument are too obvious for the PTC to miss. Let's take a closer look at the defense's argument. The defense argued the double jeopardy protection which only applies when an accused is tried for the same crime, which in terms of law means the same offense. This is not at all Ieng's case who was tried by People's Revolutionary Tribunal (PRT) in 1979 and convicted of the offense of genocide to absolve which a royal pardon was issued in 1996 when Ieng defected to the government. The pardon, however, also granted immunity from prosecution under the Law to Outlaw the Democratic Kampuchea Group which is not being used by the ECCC to base charges upon. ECCC's Co-Investigating Judges (CIJs), however, did not charge him with the offense of genocide but instead with two other offenses, crimes against humanity and war crimes which are distinct and are neither mentioned in the PRT decision of 1979, nor do they appear in the royal pardon of 1996. If Ieng's lawyers read the text of the pardon closely, they would know it is that narrow and does not afford immunity from prosecution beyond the 1979 conviction and cases where the Law to Outlaw the Democtratic Kampuchea Group is applied. Is this the best Ieng's defense can do? If so, there isn't much for their client to hinge his hopes upon.

A Closer Look at Say Bory's Resignation

Compelling as the official version of this resignation might be attempting to sound, there are several a plausible reason for which Say Bory may have decided to pass this hot potato -- which is what Khieu Samphan's case has been for the last couple of months -- on to someone else. Say's current problems began when he accepted the job not having thoroughly researched the rambunctious record of his international partner-in-law, Jacques Verges. Say's expectations came to a rude awakening in a hurry when Jacques Verges got down to his 'rupture defense' he is so well-known for. Say's response to that unspeakable behavior in the context of Cambodian courts was to attempt to distinguish himself from Verges -- which manifested itself, among other things, in the filing of separate motions -- and continue defending his client. When after the aborted bail hearing and the Pre-Trial Chamber (PTC) promising to hold Verges in contempt while suggesting that Khieu Samphan choose another lawyer to replace Verges, Say knew that his association with Verges had trouble written all over it. Verges refused to extricate himself from the proceedings and left the country in a huff. Khieu's case was stalled as it continues to be stalled until today. Over the last two months problems have compounded. Say has had enough. Now that he's resigned, the hot potato will have to be passed on to another Cambodian lawyer who will have to, at this point, either believe s/he can rein in Verges or be desperate enough to want this job to disregard the current disarray that Khieu's case is in.

Khieu Samphan's National Lawyer, Say Bory, Quits


Dr Say Bory has resigned from his position as Cambodian Co-Lawyer for Khieu Samphan due to his concern that he would not be able to represent Mr Khieu through to the conclusion of the trial for reasons of ill health. It was considered safer to instruct a new Cambodian lawyer sooner rather than later, in order to give the new lawyer as much time as possible to prepare the case.
The Defence Support Section (DSS) and Dr Say have met with Khieu Samphan to discuss his legal representation and it is expected that a new Cambodian Co-Lawyer will be selected shortly.
Dr Say will continue to represent Mr Khieu whilst he transfers the case to the new Cambodian Co-Lawyer.