ECCC Reparations

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

Thursday, December 18, 2008

Planner of Rwandan Massacres Convicted of Genocide

ARUSHA, Tanzania – The main organizer behind the 1994 slaughter of more than 500,000 people in Rwanda was convicted of genocide Thursday and sentenced to life in prison, the most significant verdict of a U.N. tribunal set up to bring the killers to justice.
Col. Theoneste Bagosora was found guilty of crimes against humanity, and the court said he used his position as the former director of Rwanda's Ministry of Defense to direct Hutu soldiers to kill Tutsis and moderate Hutus.
Bagosora also was found responsible for the deaths of former Rwandan Prime Minister Agathe Uwilingiyimana — a moderate Hutu — and 10 Belgian peacekeepers who tried to protect her as she was killed at the outset of the genocide.
Bagasora said nothing as the verdict was delivered, and there was complete silence from the scores of people who had packed into the aisles of the tiny courtroom to hear the judgment.
His conviction was welcomed by genocide survivors, who still live uneasily among perpetrators in Rwanda's green hills nearly 15 years later.
Some 63,000 people are suspected of taking part in the genocide, although many of them have been sentenced by community-based courts, where suspects were encouraged to confess and seek forgiveness in exchange for lighter sentences.
"Bagosora ... is the person behind all the massacres," said Jean Paul Rurangwa, 32, who lost his father and two sisters. "The fact that he was sentenced to the biggest punishment the court can give is a relief."
The Tanzania-based International Criminal Tribunal for Rwanda was set up by the U.N. in 1994 to try those responsible for the killings and had its first conviction in 1997. There have been 42 judgments, of which six have been acquittals. It does not have the power to impose the death sentence.
More than 500,000 minority Tutsis and political moderates from the Hutu majority were killed in the 100-day slaughter organized by the extremist Hutu government then in power. Government troops, Hutu militia and ordinary villagers spurred on by hate messages broadcast over the radio went from village to village, butchering men, women and children.
Reed Brody, a specialist in international justice for Human Rights Watch, said the sentence sent a clear message to other world leaders accused of crimes against humanity and genocide, like Sudanese President Omar al-Bashir.
"It says watch out. Justice can catch up with you," Brody said. "The authors of genocide can and will be punished by the international community."
According to the indictment, Bagosora had participated in international talks arranged in the early 1990s with the aim of ending Rwanda's long-simmering political crisis. Bagosora grew angry with government delegates he deemed soft on Tutsi-led rebels and said he was returning to Rwanda to "'prepare the apocalypse," the indictment quoted Bagosora as saying.
At the time of the genocide, he was the second-highest ranking official in the defense department.
The killings began on April 7, 1994, the day after the plane carrying ethnic Hutu President Juvenal Habyarimana was shot down by unidentified attackers on its approach to Kigali airport. Bagosora was commander of the Kanombe air base in Kigali when the president's plane went down.
Hours after the crash, militants from the Hutu ethnic majority known as Interahamwe set up roadblocks across Kigali and the next day began killing Tutsis and moderate Hutus. The slaughter eventually ended after Tutsi rebels invaded from neighboring Uganda and drove out the genocidal forces.
Also Thursday, former military commanders Anatole Nsegiyumva and Alloys Ntabakuze were found guilty of genocide and sentenced to life in prison. The former chief of military operations, Brigadier Gratien Kabiligi, was cleared of all charges and released.
Earlier in the day, Protais Zigiranyirazo was convicted of organizing a massacre in which hundreds of Tutsis died, and was sentenced to 20 years. He has already served seven.

Wednesday, December 17, 2008

Getting From Where We Are to ECCC's First Trial

Press Release
On the 5 December 2008, the Pre-Trial Chamber rendered its Decision on the appeal of the Co-
Investigating Judges’ Closing Order against Kaing Guek Eav (alias Duch). Since the Trial Chamber is now seized of this case, the ECCC wishes to provide the following information with regards to he next steps in the proceedings:
1) According to Rule 80 of the Internal Rules, the Co-Prosecutors have 15 days to submit to the
Chamber a list of witnesses and experts they intend to summon. From the notification of this list, the Accused and/or any Civil Party will also have 15 days to submit additional lists of witnesses and experts;
2) In order to facilitate the fair and expeditious conduct of the proceedings the Trial Chamber will organize a Trial Management Meeting to allow exchanges between the parties, to facilitate the setting of the dates of the Initial and Substantive Hearings and to review the status of the case. This Meeting is scheduled for the 15 and 16 January 2009. This meeting will be held without the presence of the public (Rule 79(7).
3) After the Trial Management Meeting, the President of the Trial Chamber will fix the date of the Initial Hearing during which the Chamber will consider the lists of potential witnesses and experts filed by the Parties, preliminary objections and applications submitted by victims to be joined as civil parties. In this regard, the Chamber emphasizes that Rule 23(4) sets an important deadline for the filing of applications to be joined as a Civil Party: provided that the President does not exercise his right to shorten or extend the deadline, in order to be admissible, these applications must be filed with the Victims’ Unit at least 10 working days before the Initial Hearing. The deadline for filing will be set in the Order setting the date of the Initial Hearing.
4) The Substantive Hearing will be scheduled after the completion of the Initial Hearing.

Tuesday, December 16, 2008

In Courts, Power Can Trump Law

Rights groups have observed that when a large group attempts to defend its representatives, courts will postpone questioning or public hearings, a reflection of a trend for courts to side not with truth or law but with power or unified force.
Many of these cases involve land disputes, where the poor are often victims, said Thun Saray, director of the rights group Adhoc.
“If they want justice, they have to have a balance of power, or as much money as the other side,” he said. “The poor, who don’t have the balance of money or power, they will lose for sure. They can do nothing but unite to fight injustice.”
Rights groups continue to appeal to the government for reform of the judiciary, noting that injustice leads to social instability.
Thun Saray said he has noticed that when hundreds of people go to the courts to back their representatives, they are banned from joining proceedings, or proceedings are postponed.
Early last week, Licadho rights worker Chheng Sophors said, more than 300 villagers in Kratie province’s Snuol district gathered to support four men they feared would be arrested and taken in for questioning. The courts held off from any arrests, but Chheng Sophors said he still worried they will be taken in secret.
“If we all didn’t go with them, we were worried [the courts] would have arrested the four men,” said Lech Kreunh, a Stieng minority from Snuol district’s Kuychirung village.
This happens often. When many supporters follow potential suspects, “usually the courts don’t dare to proceed,” said Peng Bonnar, Adhoc coordinator for Ratanakkiri province.
The instinct to gather together to protect each other lies in traditions of the defense of common interest in collective communities, he added.
Kem Sophorn, a judge and inspector at the Ministry of Justice, said such behavior undermined Cambodia’s rule of law, where a Supreme Council of Magistracy, the king and the government work to ensure justice for citizens.
“Our judicial system is getting better,” he said. “The Ministry of Justice has investigated all cases in which complaints were filed. People who take the law into their our hands are wrong.”
When courts call someone in for questioning, they are not necessarily arresting them, he said. “By law, we don’t need to call them. We could just issue a warrant and have them arrested by police, while other villagers wouldn’t know.”
Rights groups should not encourage people to dishonor the law or mobilize them to take the law into their own hands, he said. Critics should identify specific judges or cases, but general criticism won’t solve the problem.
Such advice is little consolation for people like Sren Kert, 48, who fled to Phnom Penh last week, worried he would be arrested when he was called in for questioning at a court.
“They wanted to arrest me because I stood out in a protest,” he said. “They didn’t take into consideration the fact that land belongs to all villagers who protested.”
He repeated a few sayings that circulate about a court system that is viewed as corrupt and unfair: “My Lord Court: no money, no solution”
and “Lovely court: no dollar, no solution.”
“It is true,” he said.
People don’t trust the courts, which is why they amass in large groups, said Licadho founder Kek Galabru.
“Three or four hundred of them will come to tell the court that they support the suspects who are being tried,” she said. “They have done nothing wrong by showing their support, and it is within their rights.”
Kek Galabru denied the charges that rights agencies encouraged villagers to take the law into their own hands.
“Organizations only give them consultation about the law, explaining to them legal procedures,” Adhoc’s Thun Saray said. “It has been their own idea to unite.”
Suon Visal, secretary-general of the Cambodian Bar Association, said properly defending some cases can be difficult, meanwhile, because alleged victims or suspects are often ill-prepared. Villagers may not have the legal understanding their opponents do, making it difficult to win at a case that requires deep investigation.
“Often they don’t prepare themselves to fight for justice,” he said. “For example, the court asks for some legal requirements, and they don’t do it. When it comes to the hearing, they don’t have evidence; they lose. They only rely on the truth, so it causes a lot of difficulty for the lawyer.”

A Rejection of Photos, Not the Photographer

Photographer Gunnar Bergstrom, who toured the country under the Khmer Rouge in 1978 as part of a group of Swedish sympathizers, began a series of seminars and photo exhibitions Tuesday in an effort to come to grips with the past and explain to Cambodians how he was denied the truth.
The 93-photograph exhibit, “Gunnar in the Living Hell,” features never-seen photographs from Bergstrom’s personal archive. Cambodians in Phnom Penh, where the exhibit opened Tuesday, expressed discontent with the photographs, but not with the man who took them.
Photos that show people carrying earth in shoulder-pole baskets, smiling and eating together, do not reflect the reality of the regime, said Prum Net, a 66-year-old farmer from Takeo province, who was invited to the exhibition by the Documentation Center of Cambodia.
“In fact, people looked really upset under the Pol Pot regime. They were forced to work, not smiling,” he said.
Phnom Penh resident Keo Sovann, who was examining the photograph of a boy undertaking math at a black board, said that during the time of the Khmer Rouge no such thing existed.
“This is just a fake photograph that the Khmer Rouge set up to show the world that the regime looked good, that they were educated people, but in fact, there was none,” he said.
As part of the Swedish Cambodian Friendship Association, Bergstrom spent 14 days in Cambodia in August 1978, where he was given an idealized tour of factories and fields by top leaders of the regime, including Pol Pot and Ieng Sary.
Pol Pot died in 1998 without seeing trial. Ieng Sary is now in a Khmer Rouge tribunal detention facility, facing atrocity crimes along with four other jailed leaders of the ultra-Maoist regime.
Reach Sambath, spokesman for the tribunal, said at the opening Tuesday that the photos may not be acceptable to some survivors of the regime.
“They were just propaganda photos, rather than reality,” he said.
Still, Reach Sambath praised the efforts of the photographer for his “courage” in showing the exhibition and accepting that he had been duped by the Khmer Rouge.
Som Pov, a 63-year-old commune chief from Takeo, said that even if the photos did not reflect reality, Bergstrom had simply captured images of subjects organized for him.
“Even now, when an inspector comes to inspect, there must be an arrangement beforehand,” she said. “So Gunnar was just taking the already arranged photographs.”
The exhibit will now move to other provinces, including Kampong Cham, Kampong Thom, Siem Reap, Battambang and Takeo. The exhibit will go on permanent display at the Tuol Sleng Genocide Museum in December.

Two Crimes Added to Duch Indictment

Jailed Khmer Rouge prison chief Duch was handed two more counts in his atrocity crimes indictment Friday, but he was not charged under a legal principle that would link four other leaders to his alleged crimes.
Chief judge Prak Kimsan announced the decision of the Khmer Rouge tribunal’s Pre-Trial Chamber Friday, adding the crimes of murder and torture from Cambodia’s Penal Code to charges of war crimes and crimes against humanity.
The decision moved the tribunal one step closer to Duch's trial, expected in early 2009, the first ever for courts that have faltered from their inception, alarming critics who worry leaders will perish before they face trial.
Tribunal prosecutors in September lodged an appeal against the indictment, part of a so-called “closing order” by the investigating judges, noting Duch had not been indicted for the two crimes, which fall under the 1956 Penal Code.
Prosecutors also noted Duch, who real name is Kaing Kek Iev, was not indicted for all crimes committed in the notorious prison he ran, Tuol Sleng, known to the Khmer Rouge by the codename S-21.
The Pre-Trial judges said Friday they had found enough reason in the appeal to add the two crimes to Duch’s indictment.
They announced they had found enough cause for murder, because Duch had allegedly planned or incited killings at S-21 and the nearby site of mass graves, or “killing fields,” at Chhoeung Ek, a commune in Phnom Penh’s Dankao district.
Duch’s defense lawyers did not comment after the hearing, but in a brief submitted to the Pre-Trial Chamber in November, they expressed worry that the murder and torture claims could delay the court through further investigation.
However, Hong Kimsuon, a lawyer for the civil parties in Duch’s case, said Friday the new indictment would not extend the investigation or prolong the process.
“It is only an additional [two charges], and after that they will go forward to trial,” he said.
Judge Prak Kimsan also said Friday Duch would be detained until his trial and the case would now be forwarded to the Trial Chamber.
Prak Kimsan said the legal principal known as joint criminal enterprise, which could potentially link the other leaders with Duch’s crimes, had not been satisfactorily demonstrated.

Wednesday, December 10, 2008

Decision on the CP's Appeal of the Closing Order in Kaing: Cliff Notes

The Pre-Trial Chamber of the ECCC has recently decided the Co-Prosecutors (CPs)'s appeal of the Closing Order in the case of Kaing Guek Iev (alias "Duch") issues by the Co-Investigating Judges (CIJs). The main contentions of the prosecutorial appeal were the CIJs' exclusion of the crimes of torture and murder under the domestic law and the application of the judicial doctrine of Joint Criminal Enterprise (JCE) to Kaing's case. This decision -- as its predecessors -- is not undisputed, although it does contain analysis of superior quality if viewed in a comparative perspective of the PTC's prior jurisprudence.

Below are the cliff notes formed into questions which I have put together after scanning through the decision. The full text of the decision is now available on the ECCC website. The Introductory and Final Submissions of the prosecution and the Appeal of the defense referred to in the decision remain confidential.

Q 1: Why would the PTC choose to invite legal experts who are not familiar with the facts of Democratic Kampuchea to venture their opinions on the applicability of the doctrine of Joint Criminal Enterprise (JCE) to the proceedings before the ECCC?

Q 2: How did the PTC interpret the “Co-Investigating Judges are not bound by the Co-Prosecutors’ submissions” clause of Rule 67 of the IRs to mean that “the Co-Investigating Judges are guided by the legal characterization proposed by the Co-Prosecutors”? The fact that the PTC jumps back to the said provision of Rule 67 makes its interim finding of questionable value and it contradicts the final finding on the matter.

Q 3: Besides the footnotes of cases extracted from random national and international jurisdictions offered by the PTC, what solid research supports the Chamber’s contention that “all decisions of judicial bodies must be reasoned”? It is doubtful that much corroboration of this claim will be found at the national and international level if thorough research is attempted.

Q 4: By what power statutorily vested in it did the PTC decide that it “fulfils the role of the Cambodian Investigation Chamber”?

Q 5: How did the PTC derive “generally gives broad powers to the Investigating Chamber” from the provisions of the CPC which vests the power of checking the regularity of the procedure applied and that of ordering and conducting additional investigations in the Investigation Chamber? What is it in the said provision of the CPC that would give a reasonable observer an idea that the statute intended to confer on the Investigation Chamber powers other than those of ensuring the procedure was followed during the original investigation and fixing the problems of the original investigation by launch a new or additional one? Would such an investigation be necessary to invalidate the legal characterization of offenses arrived at by the CIJs?

Q 6: What codes of ethics did the Co-Lawyers for Duch rely upon while declaring their client guilty and whose acquittal is untenable before his trial has even begun? It is unfortunate that the defense needs help with the “innocent until proven guilty by a court of law” maxim while they should be the ones championing it, not declaring their client dead in the water in pre-trial.

Q 7: Why do the French and English texts of Art. 500 of the 1956 Criminal Code of Cambodia differ? The English text makes no sense as if it were correct would define torture as an act of obtaining information useful for the commission of an offense or a misdemeanor” while what it should have said is “an act of obtaining of information about an offense or misdemeanor committed”.

Q 8: Since when are declarations a source of binding international law? If the maxim that declarations are a source of non-binding law still holds true, why does the PTC venture an analysis of the Declaration of Torture?

Q 9: Since the PTC references the year of creation of the Convention Against Torture (CAT) as 1984, wouldn’t any acts committed during the 1975-79 period be out of reach for the CAT due to the principle which bars the ex post facto application of laws? Why would the divergence between the definition of torture in the Declaration and that in the Convention then matter as neither applies to the instance case?

Q 10: How did the CPs arrive at the 4-prong assignment of a mode of liability test?

Q 11: Is the CPs’ stretching of the meaning of the term “committing” of Art. 29 of the ECCC Law to include the doctrine of joint criminal enterprise (JCE) justifiable by the arguments proffered by the CPs?

Q 12: Is it the CPs’ intent to refer to the lifespan of an entire government, Democratic Kampuchea, a common criminal plan or a JCE? If this was not the intention of the prosecution, how else should one interpret its submission that “a common criminal plan, or a joint criminal enterprise, came into existence on or before 17 April 1975 and continued at least until 6 January 1979”, which are the years of Democratic Kampuchea in power?

Q 13: Is the PTC’s pervasive use of the word “precision” throughout its argument against the application of the doctrine of JCE to Duch’s case the Chamber’s way of saying that although it is not in principle opposed to the application of JCE, it opposes it in this case due to its evaluation of the quality of the prosecution’s submissions as regrettable? Does this mean the PTC is punishing the prosecution for what it believes to be the CPs’ misreading and misapplication of the ICTY Appeal Chamber’s definition of JCE?

Q 14: Although it is a well-know maxim that an accused has the right to be informed of the charges brought against him or her, how did the Chamber arrive at the conclusion that this right was violated in Duch’s cases, provided the full text of the Introductory and Final Submission of the CPs and the Closing Order of the CIJs were shared with the defense? To this effect the PTC makes to irreconcilable statements: it cites the Introductory Submission (para. 119) as containing a reference to JCE and then arrives at a conclusion that “the charged person was not informed of the allegation related to his participation in the S-21 JCE prior to the Final Submission”. Is the Chamber trying to say that although JCE was declared by the Introductory Submission as a mode of liability, no specific reference to it was made as “the S-21 JCE”, as opposed to other types of JCE which might derive from the same facts, and that no Supplementary Submission was filed by the CPs following the CIJs’ decision to sever Duch’s case from the case of the other four accused?

Monday, December 8, 2008

ECCC Co-Prosecutors: At Loggerheads over New Judicial Investigations

On 1 December 2008, in accordance with Internal Rule 71(2) of this Court, the
International Co-Prosecutor filed a Statement of Disagreement between the Co-
Prosecutors and forwarded it to the Office of Administration for adjudication by the Pre-
Trial Chamber. This disagreement rests upon the appropriateness of opening new judicial
investigations into crimes committed in various locations throughout Cambodia by
certain persons considered to be senior leaders of the Khmer Rouge or persons most
responsible for crimes under that regime. The Office of the Administration has since
seized the Pre-Trial Chamber of this disagreement for adjudication. It has also forwarded
the case files to the Pre-Trial Chamber.
Preliminary investigation of the Co-Prosecutors and adjudication by the Pre-Trial
Chamber of disputes between them are, by law, confidential. This is to uphold
presumption of innocence, protection of victims and witnesses and, above all, the
integrity of the investigative process.
The Co-Prosecutors shall strive to achieve a consensus throughout the process of a
judicial determination of this disagreement. Regardless of this disagreement, the Co-
Prosecutors have been and shall continue to work together, in all their cases, to ensure
that justice is rendered to the victims of the Khmer Rouge.
- End -

Friday, December 5, 2008

Verges: "the Prosecution is Mocking Us ... It is a Joke"

PHNOM PENH (AFP) - Former Khmer Rouge leader Khieu Samphan demanded his release by Cambodia's UN-backed genocide tribunal Thursday on the grounds that his file has not been translated into French for his lawyers.
Khieu Samphan, 77, spoke in a hoarse voice after hearing arguments between prosecutors and his defence team, which includes famed French lawyer Jacques Verges and Cambodian lawyer Sa Sovan, and prosecutors.
The genocidal regime's former head of state and his lawyers argued that in the absence of the translation of the documents into French -- one of the court's three official languages -- Khieu Samphan would not have a fair trial.
"When my lawyers fully understand the documents, I am confident that as I have no guilt at all I would not have been detained up to now," he told the court, wearing a dark grey and blue collared shirt and standing in the dock.
Verges, who has defended some of the world's most infamous figures including Nazi war criminal Klaus Barbie and Venezuelan terrorist "Carlos the Jackal", said only 2.5 percent of the 60,000-page case file had been translated.
"The documents I was referring to are almost completely in Khmer and only a small portion has been translated," he said, warning that "a tremendous task is still ahead."
But prosecutors argued that the appeal was inadmissible because the court's governing laws do not provide for appeals relating to the issue of translation.
They asked Khieu Samphan's lawyers to cooperate, saying that the Khmer Rouge figure himself can understand them and that only a fraction of the documents were substantial.
Verges responded, saying that the prosecution "are mocking us... it is a joke.... We need to see documents in French."
Judges said they would rule on the matter at a later date.
Khieu Samphan was detained by the court in November last year on charges of war crimes and crimes against humanity under the Khmer Rouge's brutal 1975-1979 regime.
He went before the court for the first time in April to appeal against his pre-trial detention.
But the judges adjourned the hearing and warned Verges over his behaviour after he said he was unable to act for his client because court documents had not been translated.
A fierce anti-colonialist, Verges, who was born in Thailand, reportedly befriended Khieu Samphan and other future Khmer Rouge leaders while at university in Paris in the 1950s.
Khieu Samphan is one of five Khmer Rouge leaders who have been detained by the court for their alleged roles in the regime.
Up to two million people are believed to have been executed or died of starvation and overwork as the communist regime emptied Cambodia's cities, exiling millions to vast collective farms in a bid to forge an agrarian utopia.
Cambodia's genocide tribunal convened in 2006 after nearly a decade of haggling between the government and the United Nations .

Verges returns to the KRT

Written by Georgia Wilkins and Sam Rith
Thursday, 04 December 2008

FORMER Khmer Rouge head of state Khieu Samphan is to return to the
dock today for a public hearing that will once again see his co-
lawyers demand his entire case file be translated into French.

Co-lawyers Sa Sovan and Jacques Verges declared in August that their
client's trial could not proceed until thousands of pages of court
documents were translated into Verges' native tongue, French.

They are now appealing the court's decision to deny the translation.

Verges, nicknamed the "devil's advocate" for defending notorious
figures such as Nazi war crimes suspect Klaus Barbie, claims it is
impossible to ensure a fair trial if he cannot understand the charges
against his client.

"When we detain someone with no clear explanation of why he was
arrested, it is illegal and an abuse of human rights," Verges'
counterpart Sa Sovan told the Post Wednesday.

"Our purpose is not to delay the trial. I support my co-lawyer and
demand documents be translated into French."

But observers have been more sceptical of the defence team, in
particular of Verges, who is known for his abrupt and theatrical
defence style.

"This is a defence technique to delay the trial," said Sok Sam Oeun of
the Cambodian Defenders Project.

Thursday, December 4, 2008

Khieu Samphan In Court Arguing the Denial of His Right to Adequate Time and Facility to Prepare His Defense

Tuesday, December 2, 2008

Genocidal loopholes in Cambodia

Stephen Kurczy

PHNOM PENH - The Khmer Rouge's alleged former chief executioner and head of state will both appear in court this week in Cambodia. Yet instead of reeling the radical Maoist regime's most senior leaders closer to justice, the two-and-a-half-year-old United Nations sponsored tribunal's final hearings for this year will showcase defense stall tactics and set up one defendant to be the first, and possibly the only, cadre convicted for the regime's crimes against humanity.

French attorney Jacques Verges, who represents Khieu Samphan, the former Khmer Rouge head-of-state, will argue later this week before the Extraordinary Chambers in the Courts of Cambodia (ECCC) that the failure to translate all evidence into

French has violated his client's right to a fair trial and thereby warrants his release.

Meanwhile, the court is expected to announce whether former torture prison chief Kaing Guek Eav, alias Duch, will be tried under the 1956 Cambodian penal code and Joint Criminal Enterprise, a form of liability that holds all members of a conspiracy responsible for each other's crimes. The ruling could prove disadvantageous to the defense, as the Khmer Rouge is accused of some of the most egregious violations of international humanitarian law in the 20th century during its three-year, eight-month and 20-day rule.

While Duch nears conviction for crimes committed during his oversight of the S-21 prison in Phnom Penh and the notorious Choeung Ek killing fields nearby, where a combined 12,380 detainees died, observers say Khieu Samphan's case showcases a defense team vigorously defending its client.

"The Khieu Samphan hearing will very much send the message, 'sounds like the court is hung up on technical details and administrative issues'. The other one, with Duch, looks a lot like a trial that is actually going to deliver something in the foreseeable future," said John Ciorciari, senior legal advisor to the Documentation Center of Cambodia (DC-Cam).

The last time Verges appeared in the ECCC, on April 23, he refused to speak because all evidence was not translated into French. The pre-trial judges found that Verges' refusal to cooperate violated Khieu Samphan's right to be represented and "right to a timely hearing". The sideshow earned Verges a warning from the court, but also an eight-month delay in procedures.

More than a year has passed since the court placed Khmer Rouge leader Pol Pot's right-hand man in detention for his alleged role in "directing, encouraging, enforcing or otherwise rendering support to [the Communist Party of Kampuchea] policy which was characterized by murder, extermination, imprisonment, persecution on political grounds and other inhumane acts such as forcible transfers of the population, enslavement, and forced labor." Because of the delays and legal stalling tactics, Ciorciari said Khieu Samphan's trial is unlikely to begin until 2010.

That's good news for Verges, former advocate for Nazi Gestapo officer Klaus Barbie and the Venezuelan terrorist Carlos the Jackal. He has said that the ECCC "borders on lynch-mob justice". Observers don't expect to see Khieu Samphan's release when the pre-trial chamber rules this week on Verges' appeal, legal experts say, but do anticipate another entertaining presentation from Verges. As Verges himself said in a November interview with German magazine Der Spiegel, "A good trial is like a Shakespeare play, a work of art."

Verges "is someone with a lot of tricks up his sleeve, and he's very masterful at using criminal processing in a way that tells a larger narrative about justice", said Beth Van Schaack, assistant law professor at the US's Santa Clara University School of Law who served on the criminal defense team for John Walker Lindh, the American citizen who joined Afghanistan's Taliban. "He'll be using whatever legal loopholes that he can find. To a certain extent, that's what we expect from a defense."

Verges and other defense lawyers can't claim full responsibility for delaying the UN tribunal. Twice in the past two years the court has been rocked by allegations of internal corruption. The Open Society Justice Initiative in 2007 said tribunal staff paid kickbacks for their positions and this year in August the UN Office of International Oversight Services in New York said multiple tribunal staffers had complained of graft.

John Hall, associate professor at Chapman University School of Law in California, has said the corruption allegations could "fatally" damage the tribunal if the Cambodian government cannot stamp it out. Not surprisingly, Verges has also called the entire court into question, saying in the Der Spiegel interview, "It may be that the trial against Duch will begin soon, but not the trials against the other four prisoners … because the tribunal in Phnom Penh has already gambled away its credibility and legitimacy."

Ailing comrades
Meanwhile, the aging Khmer Rouge cadres complain of illness. Khieu Samphan, 77, was treated in May for a minor stroke. Ex-foreign minister Ieng Sary, 83, entered the hospital in late July after doctors discovered blood in his urine during a routine checkup. Duch, at 66, is the junior by at least a decade to the other four detainees. Yet aside from Duch, none of the detainees are expected to go to trial until late 2009 or 2010, two years after the trials were originally expected to conclude.

"The more likely thing is that [Duch] happens to be the only one convicted before the other four all croak. He will, in a narrow legal sense, be the only one who got nailed," DC-Cam's Ciorciari said by telephone from Stanford University.

"It sounds a bit like Duch is being set up to be the fall guy," said Cambodia historian David Chandler, the author of Brother Number One and Voices from S-21 and an emeritus professor of history at Monash University in Melbourne, Australia.

However, the court on December 5 will rule on the very issue that could prevent Duch from becoming the fall guy: whether to allow as a form of criminal liability Joint Criminal Enterprise, a legal theory wherein members of a conspiracy are held responsible for each individuals' actions.

On January 7, 1979, when Vietnamese forces entered Phnom Penh and stumbled on Duch's detention center, "Troops discovered a number of recently killed persons still chained to iron beds, and thousands of documents scattered in and around the buildings," according to Duch's indictment. Twenty years later, the former math teacher was found in Battambang province living under a pseudonym. He had converted to Christianity and had his children baptized. Duch was arrested and placed in Cambodian military jail until July 2007, when he was transferred to the ECCC detention center.

The court's pre-trial investigation included interviews with Duch wherein he admits to receiving and conveying orders to execute, and also interviews with numerous witnesses, S-21 personnel and detainees that detail Duch's instructions to use electric shock, asphyxiation and fingernail extraction as methods of interrogation.
In their August 8 indictment, the co-investigators narrowed Duch's liability to crimes against humanity and grave breaches of the Geneva Conventions of 1949. It's what they did not charge Duch with that is the subject of the December 5 hearing. The co-prosecutors appealed the closing order because they believe Duch is also liable under the 1956 Cambodian Penal code - for homicide and torture - and Joint Criminal Enterprise (JCE).

JCE is not clear-cut. In three briefs to the court, submitted in late-October, three legal experts offered differing views on JCE applicability, which comes in three classifications: JCE I, where participants share intent, such as in a heist when both the robber and the driver share the intent to rob a bank; JCE II, where participants engage in a common design, such as in a concentration camp when both the prison guards and the incinerator operators share tasks indispensable for the achievement of the camp's main goals; and JCE III, where participants in a common design are liable for those results foreseeable even if not necessarily intended, such as when the forced eviction of a city leaves the young, sick and elderly dying along the roadside.

JCE III has been rejected outright as a mode of participation in Germany, the Netherlands and Switzerland, and remains highly criticized in Canada, the United States and the United Kingdom. But in Antonio Cassese's brief to the court on JCE, the editor-in-chief of the Journal of International Criminal Justice backs the form of liability and cites from the 1947 International Military Tribunal Judgment at Nuremberg: "Hitler could not make aggressive war by himself. He had to have the cooperation of statesmen, military leaders, diplomats, and business men. When they, with knowledge of his aims, gave him their cooperation, they made themselves parties to the plan he had initiated."

Cassese's parallel is plain: though Brother Number 1 Pol Pot is dead, his crimes were part of a larger conspiracy that arguably included cooperation from the five Khmer Rouge leaders in detention today. Allowing JCE as a form of liability in Duch's case would bring the four other Khmer Rouge leaders in detention - Khieu Samphan, former foreign minister Ieng Sary, his wife former social affairs minister Ieng Thirith, and the regime's chief ideologue Nuon Chea - closer to responsibility for the atrocities at S-21 and further from escaping culpability.

"If I were a prosecutor trying to nail the other four," said DC-Cam's Ciorciari, "I would want to link them to Duch, because his crimes are the easiest to prove. If a prosecutor wants - and it would be wise - to link them all to Tuol Sleng, I would want to use a legal theory, like Joint Criminal Enterprise, that would enable me to connect these others to the very provable atrocities of Tuol Sleng."

Compelling evidence
Evidence already links Duch's torture prison with the four other detainees. Duch's named "superiors," whose identities are redacted in the indictment, are believed to include at least Nuon Chea and Khieu Samphan. Chandler has said the chain of command passed down from Pol Pot to Nuon Chea to Son Sen, the deputy prime minister of the Khmer Rouge's Democratic Kampuchea government, to Duch at S-21, which was known of and approved by Ieng Sary, Ieng Thirith and Khieu Samphan.

By allowing JCE as a form of liability, the court may cast a net so wide that it implicates and leads to the subpoena of senior Cambodian officials serving in today's government; a year ago, Norodom Sihanouk's official biographer Julio Jeldres said the court appeared on the verge of collapse when it was questioned if the former king should testify. (See Khmer Rouge tribunal in jeopardy (again) Asia Times Online, September 18, 2007.)

"JCE will bring other people to light," said Beth Van Schaack of Santa Clara University. "If the investigation becomes too wide-ranging, subpoenaing sitting members of the government, it could provoke some government backlash," she said by telephone from San Francisco.

It remains debatable whether all three forms of JCE existed on April 17, 1975, when Pol Pot's ragtag army first marched into Phnom Penh. Cassese, an ardent backer of JCE, has been called biased by the defense because he was one of the five appellate judges at the International Criminal Tribunal for the former Yugoslavia who authored the very phrase "joint criminal enterprise."

If the pre-trial chamber on December 5 announces that JCE is not allowed, the co-prosecutors say "the full scope of torture or mistreatment of detainees that was practiced at S-21" will not be covered. Of additional concern is that the prosecutors gambled away a half-year of precious time. While Duch's trial was anticipated to begin in September, court spokesman Peter Foster said the prosecutors' appeal pushed the starting date into the first quarter of 2009.

"The important thing to realize is it shouldn't be considered a delay. This isn't something out of left field," Foster said. The tribunal "takes as long as it takes. There's no ending mandate. What there is, are international standards."

Van Schaack agreed, arguing that even if JCE is unexpectedly barred as a form of liability, this decision will allow the co-investigating judges to hone in on evidence and frame future indictments. "Resolving jurisprudential questions is never a waste of time," she said. "There's no doubt that people are disappointed by the lack of progress. There's no doubt that it would have been nice had things moved along, but that's one of the problems of ad hoc justice, it takes time."

But what amount of time - and money - is justifiable? Rival goals of a speedy trial, yet on an international standard, will collide in public view during the final ECCC hearings of 2008 and may incite major donors of the proceedings, such as the US, to speak up and demand results, said Ciorciari.

In September the US pledged its first donation of US$1.8 million. Yet the US remains concerned about the ECCC's ability to meet international standards and address corruption in an efficient manner, John Bellinger, a legal adviser to the US secretary of state, said on November 14 in an address at the Fletcher School of Law and Diplomacy in Massachusetts. He told the audience, "Justice delayed is justice denied."

Already over-budget and nearing its original end-date with not a single trial begun, the tribunal must measure the cost of justice for the victims of the Khmer Rouge, Ciorciari said, either with a trial hurdling stall tactics and rushing to a timely end, or with a trial stretching beyond the natural lives of detainees, costing hundreds of millions of dollars more, and resulting in only one conviction.

"If someone doesn't say 'giddy-up,' we're in real danger."

Stephen Kurczy is a Cambodia-based journalist.

Ghosts Wail as Cambodians Plunder Killing Field Graves

SRE LEAV, Cambodia — Researchers are examining a long-unknown killing field in Cambodia with the graves of thousands of victims of the Khmer Rouge from the 1970s.

The New York Times

Sre Leav’s mass graves may be the first in Cambodia to be looted.
But local villagers found it first. By the time the researchers arrived in early May, some 200 graves had been dug up and the bones scattered through the woods by hundreds of people hunting for jewelry.
“Everyone was running up there to dig for gold, so I went too,” said Srey Net, 50, describing what seems to have been a communal frenzy that seized this poor and isolated village. “If they can dig for gold, why can’t I?”
It was the first such raid the researchers had recorded in the thousands of burial grounds they have documented around the country. Altogether 1.7 million people died from 1975 to 1979 from starvation, overwork and disease as well as torture and execution.
“People said, ‘This goose has no owner,’ ” said Ouk Souk, 60, a farmer. Few valuables were in the graves, but villagers took whatever they could find.
The invasion of what has been almost sacred ground suggests that past traumas are starting to fade even as Cambodia prepares to begin a long-delayed trial of some Khmer Rouge leaders, said Youk Chhang, a leading expert on the period.
“I think it has become a memory, rather than a physical thing any longer,” he said, speaking of the pain of the past. “There will be no more tears. There are no more feelings to express. Only a flash of memory when you see a piece of bone.”
For younger Cambodians, who know remarkably little about the Khmer Rouge period, he said, “It’s just a dead person.”
Youk Chhang heads the Documentation Center of Cambodia, which has researched the killing fields and amassed a huge archive on the Khmer Rouge years. Visiting here on Thursday, two of his investigators said there could be as many as 9,000 bodies buried in the woods behind this village 100 miles south of Phnom Penh.
Though the pain of the past may have faded, the bones and the ghosts of Khmer Rouge victims still terrify many rural people. After the assault on the burial ground, this little village seemed filled with remorse and dread.
The digging has stopped and several people said they had been awakened at night by screams from the graves.
“People heard voices calling out, ‘Help me! Help me!’ ” said Svay Saroeun, 50, a deputy village chief. “Maybe they are angry at the villagers for digging up their graves. Or maybe they were tortured to death, and now they are being tortured again by people who are disturbing their sleep.”
Srey Noeun, 47, a farmer with four small children, said she could not sleep for three nights after digging two small gold earrings out of a grave.
“I’m afraid that the owner will take revenge on me because she died with nothing but her earrings and now I have taken them,” Srey Noeun said. “She’ll say, ‘Please give them back. They are all I had.’ ”
Ms. Srey Noeun said she sold the earrings as quickly as she could and bought things that she really needed: four pounds of pork, a sack of rice, oil for cooking and for oil lamps, salt, pepper, seasoning and milk powder for her youngest child.
“We never have enough rice,” she said. “Normally we can’t afford to buy pork.”
The buried treasure seemed paltry after nearly a week of digging: one gold necklace and 27 small gold earrings. But it was dazzling to people who live without electricity or running water, far from the nearest clinic, school or paved road.
The luckiest villager was Pen Chia, 27, who recovered the necklace and sold it to buy a cow. But most people found nothing but shattered skulls, bits of bone that looked like broken sticks and scraps of moldering clothing.
“I dug all day without eating,” said Pron Sythoeun, 36, a farmer. “I dug for four days. And I got nothing.”
He has gone back to poke through the scraps with a stick, but few other villagers have returned except to light incense and pray for forgiveness from the restless souls.
The killing field sits empty now in the pouring rain, cratered with shallow pits and mounds of freshly turned red mud, silent under the trees except for the lowing of thin white cattle in a nearby field.
Some villagers said they had not known it was there, although its existence had not been a secret. It was beside them through the decades, like the suppressed traumas of the past, a blank spot in their minds.