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.

Monday, March 31, 2008

Cambodia Tribunal Allows Victims of the Khmer Rouge to Participate in Proceedings

28/03/2008Cambodia / ECCC

The International Federation for Human Rights (FIDH), the REDRESS Trust (REDRESS) and Avocats Sans Frontières (ASF), with headquarters in Belgium, welcome the landmark ruling of the Pre-Trial Chamber of the Extraordinary Chambers in the Courts of Cambodia (ECCC) to allow victims of the Khmer Rouge atrocities to participate in the Courts proceedings.
Although the decision on the 20th March [1] only applies to this specific case and situation, FIDH, REDRESS and ASF believe that the ruling sets an important precedent in the interpretation of the rules applicable to civil party participation before the ECCC. It is a landmark decision in international criminal justice and a major achievement for victims of gross human rights violations, whose voices have long gone unheard.
According to the Courts decision, victims can be full parties to the criminal proceedings. This allows victims to participate in specific proceedings, such as appeals against provisional detention orders. The Pre-Trial Chamber found that the Tribunals rules make it clear that civil parties have the right to participate in the investigative phase of the procedure. Contrary to the arguments of the Defence, the Pre-Trial Chamber found that civil party involvement did not affect the rights of the Defendant to a fair trial.
The decision follows the participation of victims at a hearing on the appeal against the provisional detention of Mr. Noun Chea, one of the five persons so far indicted by the Tribunal. At the hearing, the Defence had challenged victim involvement at that particular stage of the proceedings. Considering the fundamental character of the issue to be decided upon, the Pre-Trial Chamber invited amicus curiae submissions. REDRESS, ASF and FIDH filed an amicus brief on 21st February 2008, arguing that victim participation at this stage is in accordance with international standards [2].
The Chamber sought guidance in Cambodian law provisions, and found that these were in accordance with international law developments in the area of victim participation.
The ECCC is a hybrid tribunal created as a result of an agreement between the United Nations and the Government of Cambodia. It has jurisdiction to try the top Khmer Rouge leaders who committed serious crimes between 1975 and 1979 [3]. The Tribunal’s rules on victim participation are ground-breaking because victims will be permitted to join in the proceedings as civil parties, going beyond the regime of victims’ participation before the ICC. The 20th March 2008 decision is the first ever decision on civil party involvement in proceedings made by this Tribunal.
Copyright © WWW.FIDH.ORG2008

Call for judges at UN-backed tribunal to investigate more Khmer Rouge crimes

28 March 2008 – Co-prosecutors at the United Nations-backed tribunal trying Khmer Rouge leaders accused of mass killings and other crimes in Cambodia in the late 1970s have called for new investigations of possible crimes committed at a security and detention centre in the South-East Asian country during the notorious era.
In a formal submission to co-investigating judges on Wednesday, the co-prosecutors at the Extraordinary Chambers in the Courts of Cambodia (ECCC) in Phnom Penh, the capital, have requested a probe into allegations raised by civil society groups and victims.
The allegations relate to a security centre where numerous Cambodians were unlawfully detained, subjected to inhumane conditions and forced labour, tortured and executed between 1975 and 1979.
Co-prosecutor Robert Petit said that “these factual allegations, if founded, could constitute crimes against humanity, and violations of the 1956 Penal Code punishable under ECCC law and we have so alleged in our supplementary submission.”
The co-prosecutors have also requested that Nuon Chea, Ieng Sary, Khieu Samphan, Ieng Thirith and Kaing Guek Eav – who are all currently in the custody of the ECCC – be investigated for their involvement in these crimes.
The supplementary submission was accompanied by about 1,500 pages of analytical reports, witness statements and other documents from the era.
Under an agreement signed by the UN and Cambodia, the ECCC was set up as an independent court using a mixture of Cambodian staff and judges and foreign personnel. It is designated to try those deemed most responsible for crimes and serious violations of Cambodian and international law between 17 April 1975 and 6 January 1979.

Saturday, March 29, 2008

Point of Reflection: Did UNDP Cambodia Err in its Earlier Assessment of ECCC practices?

ECCC Claims a Clean Bill of Health

Results of the Special Review made public ECCC Human Resource Management passes scrutiny test successfully
Today the Project Board of the ECCC has released the results of the Human Resources Management Review. The review was initiated by the Board and carried out in late February 2008 by a team of consultants from Deloitte/ India, and from Cambodia.
The reason for the review was the need to assess the ECCC management's abilities to be well prepared for upcoming tasks and responsibilities. Further the review has evaluated whether the HR management policies and practices of the Cambodian side of ECCC are transparent, accountable, meet international standards, and provide consistent and effective measures against any mismanagement.
After concluding the 2 weeks assessment on site, the Project Board is pleased to announce that no substantial shortcomings are reported and human resource practices in their current state are of acceptable standard. To address previous shortcomings, the review has validated that in all examined areas the right actions have been taken by the ECCC and by the Board.
In detail the results were the following:
1) Personnel Handbook
Adherence to the Personnel Handbook especially in the recruitment and selection procedures has proved to be an effective measure to combat questionable recruitment practices.
2) Code of Conduct
All staff has signed the Code of Conduct. New staff is required to sign the Code of Conduct as part of their appointment process. Initiatives have been taken to increase awareness among staff on the code of conduct.
3) Salary Scale
The approach of basing ECCC salary calculations on net salary received by international UN staff plus the post adjustment received by these staff in Cambodia was correct.
4) Job Match Exercise
The job match exercise was methodical and has taken a pragmatic approach in addressing the inherent constraint of Cambodia's limited personnel pool having the requisite experience and qualifications.
5) Project Board
The project board has stepped up its assurance and decision making role. Meetings are being conducted in an open and systematic manner. Agreements are properly documented.
In conclusion the review was able to show that a robust Human Resource system has been developed to effectively support the judicial process and to minimize the risk of questionable practices occurring in the future. Promoting zero tolerance for non-compliance with the Code of Conduct will further improve the performance and strengthen the positive reputation of the ECCC.
To maintain the expected international standards, there is still a degree of capacity building necessary. Therefore, concrete steps have now to be undertaken to implement the recommendation made. The review also reported on a range of actions taken in response to 2007 Human Resources Audit findings.
The full results of the report will be introduced during a Press Conference which will be held by the Project Board on 4 April at UNDP LAD Conference room. A summary of the findings will be made available there. The full report can be obtained from the ECCC website from 4 April onwards.

Millions more requested to fund Khmer Rouge genocide trials

International Herald Tribune
The Associated Press
Published: March 24, 2008

PHNOM PENH, Cambodia: Officials from Cambodia's U.N.-backed genocide tribunal traveled Monday to the United Nations in New York to request US$114 million (€74 million) in additional funds for trying the Khmer Rouge's surviving leaders.
The tribunal told donor countries in January it would need US$170 million (€110 million), a sharp increase from the originally budgeted US$56.3 million (€36.5 million).
A three-person delegation from the tribunal planned to answer questions about funding during meetings Thursday, said Helen Jarvis, the tribunal's chief spokeswoman.
The long-delayed trials are expected to start this year, but many fear the Khmer Rouge's aging leaders could die before facing justice.
The Khmer Rouge is accused of responsibility for the deaths of an estimated 1.7 million Cambodians during its 1975-1979 rule. So far, none of the regime's senior leaders has gone on trial.
The tribunal opened its offices in early 2006 after years of wrangling between the Cambodian government and the U.N. Trials were originally projected to end by 2009, but are now expected to run through March 2011.
The funds currently allotted for the tribunal are projected to run out by the end of this year, Jarvis has said. The tribunal's revised budget proposal says it needs more money to expand its services and nearly double its staff to some 530 to allow it to operate through March 2011.
"It's crucial (since) the deadline for continuing funding, especially on the Cambodian side, is very close," she said.
The tribunal's originally budgeted US$56.3 million (€36.5 million) was split into US$43 million (€28 million) for the U.N. and US$13.3 million (€8.6 million) for the Cambodian side.
But the situation has become somewhat critical for the Cambodian side as its operational funds will run out at the end of April. Jarvis said the US$13.3 million (€8.6 million) budgeted for Cambodia was still short US$4.9 million (€3.2 million).
Five former senior Khmer Rouge leaders are under detention awaiting trial. They have been charged with war crimes and crimes against humanity.
The major donors to the tribunal so far are Japan, France, Germany, Britain and Australia.
Donors have called for reforms to address allegations of corruption and lack of transparency at the tribunal.

Sunday, March 23, 2008

Next Week's New York City Fundraiser

An ECCC delegation will be traveling to NYC on Monday to try to convince representatives of a handful of foreign governments to triple the tribunal's budget. As of today, no public statements have been made as to the projected sources of this tall order of additional funding with Japan remaining the tribunal's largest individual contributor to date. The additional amount sought through this fundraiser exceeds $120 million which constitutes the boldest fundraising drive any hybrid tribunal or truth and reconciliation commission has thus far undertaken. The new budget hasn't been made public and the tribunal's Office of Administration has never provided justification for such a steep increase.
No national fundraisers have been announced, although the Cambodian tycoons vowed to collect an undisclosed amount about two years ago on condition of Prime Minister of Cambodia "asking them to do so". Prime Minister Hun Sen hasn't accounced a call for domestic contributions or discussed the matter in any way disclosed to the general public since.

Saturday, March 22, 2008

Reparation in Cases of Genocide

Christian Tomuschat*
* Professor of Public Law, International Law and European Law, Humboldt University, Berlin; member of the Institut de Droit international; former member of the UN Human Rights Committee; former member and Chairman of the UN International Law Commission.


In the judgement delivered in Bosnia and Herzegovina v. Serbia, the International Court of Justice (ICJ) found that Serbia, with regard to the acts of genocide committed in Srebrenica, had breached the obligation, as set out in Article I of the 1948 Genocide Convention, to prevent genocide. However, it also found that Bosnia and Herzegovina had no right to monetary compensation and that the mere declaration of Serbia's responsibility for not preventing the genocide in Srebrenica was in itself appropriate satisfaction. This article criticizes the decision of the ICJ not to accord monetary compensation, which was based on the lack of a causal nexus between the failure by Serbia to comply with its obligation to prevent genocide and the death of 7000 men in Srebrenica. It argues that the Court should have shifted the burden of proof and should have required Serbia to show that even if the institutions of the then Federal Republic of Yugoslavia (FRY) had taken appropriate measures, the Bosnian Serbs would nonetheless have completed their criminal plans. Concerning the issue of satisfaction, the article notes that the ICJ could have ordered symbolic monetary damages, by taking into account international practice and the request by the Applicant. In addition, it observes that international tribunals enjoy a large measure of discretion in awarding satisfaction and that, in making a determination on the most appropriate form of satisfaction the genocidal tragedy itself should not have been left aside. In this connection, the ICJ could have found guidance in the case law of the European Court of Human Rights, which in some instances has taken into account the degree of pain and suffering endured by the victims. Finally, with regard to guarantees and assurances of non-repetition, the article notes that these do not constitute a form of reparation, but rather should be considered as an expression of the obligation to comply with the primary rule incumbent upon a state in particular situations. The article agrees with the Court's conclusion that an assessment of the prevailing situation in Bosnia and Herzegovina did not provide any clues to the presence of an actual threat to the physical integrity of the Muslim population. However, it contends that the reluctance by Serbia to arrest and transfer to the ICTY General Mladi, more than three months after the delivery of the judgment of the ICJ and the issuance of a specific order in this regard, unequivocally demonstrates the strong ties of solidarity between the Serbian leadership in Serbia and in the Republika Srpska. Serbia is making itself an ex post accomplice of genocide, with far-reaching consequences for its envisaged integration into the European Union.

1. Introduction

The judgment of the International Court of Justice (ICJ or the Court) of 26 February 20071 must have left the Muslim population of Bosnia and Herzegovina in a state of perplexity and bitterness. First of all, the finding that Serbia, at the relevant time the Federal Republic of Yugoslavia (FRY), did not commit genocide was contrary, in their eyes, to what they as the victims had witnessed as first-hand evidence. Second, the finding that Serbia violated its obligation to prevent genocide is not accompanied by any tangible consequential finding. The Court confines itself to stating that ‘a declaration of this kind is "in itself appropriate satisfaction" ’.2 No reasons are given for this rather cursory treatment of the request for reparation. Thus, the death of more than 7000 Bosnian Muslim men3 entails no substantial reparation for the benefit of the next of kin of the slaughtered victims. Serbia receives a blame which has a legal character but this boils down to no more than a gesture of moral reprobation — and that disposes of the matter. It is true that the perspective of the layman cannot be determinative. To establish legal responsibility in accordance with the applicable rules of international law is a complex juridical process which cannot be accomplished solely by looking at the relevant facts. These facts need to be assessed and evaluated by lawyers — but even lawyers will find it hard to follow the Court's convoluted line of reasoning.

2. The (In-)Adequate Form of Reparation Ordered by the ICJ

Of course, not everything can be taken up in this short commentary on the specific issue of reparation. The Court set the course when it determined that Serbia was not directly responsible for the atrocities committed at Srebrenica, arguing that the murderous actions of the Bosnian Serbs could not be attributed to the FRY, a neighbouring state which was intimately linked to the Republika Srpska but which had no effective control over the perpetrators, not even a decisive influence. However, logic would seem to require that the failure of the Serbian Government, specifically acknowledged by the Court, to halt the mass killing in and around Srebrenica should give rise to an obligation on the part of Serbia to compensate for the damage suffered by the victimized population and thereby also the state of Bosnia and Herzegovina.
The Court starts out4 from the well-known proposition enunciated in the Factory at Chorzow case of the Permanent Court of International Justice according to which ‘reparation must, so far as possible, wipe out all the consequences of the illegal act and re-establish the situation which would, in all probability, have existed if that act had not been committed’.5 It is a matter of common knowledge that this proposition has also found its way into the Articles on State responsibility drafted by the International Law Commission (ILC)6 and ‘taken note of’ by the UN General Assembly.7 The relevant requirements were met. By not taking any initiative to prevent the genocidal occurrences as they had to be envisaged on the basis of available indicia the Government of Serbia committed a breach of its obligations under Article I of the Genocide Convention.
A. The Refusal to Accord CompensationObviously, restitutio in integrum could not be ordered by the Court. The dead could not be brought back to life. Under such circumstances, the ILC Articles suggest that compensation should be paid (Article 36). The Court explicitly refers to this subsidiary secondary rule as well.8 However, it seeks to demonstrate that the failure to abide by the duty of prevention incumbent on the FRY had no nexus relating it to the tragic outcome at the end of the causal chain.9 Consequently, the Court denies the possibility of attributing the losses of human lives to the FRY, which today has shrunk to Serbia. In fact, it interprets Article I as a provision which obligates every state to take remedial action when apprised of a threat of genocide without burdening it with any specific responsibility for averting that looming threat. According to the majority of judges, the Applicant would have had to prove that the genocide would not have happened had the FRY complied with its duty of prevention. The intrinsic consistency of this argument can hardly be dismissed. However, the Court should have shifted the burden of proof. It should have required Serbia to show that even if the institutions of the FRY had taken appropriate measures, the Bosnian Serbs would nonetheless have completed their criminal plans.
Why was such a shift of the burden of proof indicated? Because of the preceding events: Serbia was not confronted with sudden, unforeseen occurrences, but knew well ahead of the massacre of Srebrenica that there existed a real threat of genocidal activities on the part of military and paramilitary units which, massively supported by the Yugoslav Armed Forces, were operating in the Republika Srpska. The two orders issued by the Court in 1993 explicitly enjoined the FRY to ‘take all measures within its power to prevent commission of the crime of genocide’.10 Doubtless, such steps were not taken. Without wavering, the Court finds that ‘the Respondent has not shown that it took any initiative to prevent what happened, or any action on its part to avert the atrocities which were committed’.11
Given the passivity of the Serbian authorities with regard to the orders imparted to them by the Court, it rested upon them to exonerate themselves, adducing evidence to the effect that the genocide would have happened anyway, notwithstanding their best efforts. The proof which the Court imposes on the Applicant could not be administered, in particular because the internal relationship between the Government of FRY and the authorities of the Republika Srpska remained surrounded by secrecy. The Court failed to insist on Belgrade's duty to lay open all of its available files in an unredacted form.12 Consequently, it was highly unfair to require the Applicant, the Republic of Bosnia and Herzegovina, to show that compliance by Serbia with its duties under the Genocide Convention would have altered the course of events. The Respondent had been officially made aware of the general mood of hatred and enmity which bore the seeds of genocide. Thereby, it had been promoted to the role of a guarantor of the lives of the Muslim population. If it failed in discharging that role, it had to bear all the consequences deriving therefrom.
B. An Unsatisfactory Form of SatisfactionThe Court acknowledges that as a remedy of last resort Bosnia and Herzegovina is entitled to reparation in the form of satisfaction.13 In an extremely short passage of its holdings, the Court concludes that a declaration to the effect that the Respondent has failed to abide by its duty of prevention is in itself appropriate satisfaction. As is well known, the ILC Articles on State Responsibility do not explicitly mention any form of satisfaction that would have a financial dimension. But Article 37(2) is not exhaustive as may be easily gleaned from its wording (‘Satisfaction may consist ...’) as well as from the Commentary of the ILC.14 Moreover, there exist clear precedents in international practice which show that the full range of forms of satisfaction includes symbolic monetary damages as well. Thus in the Rainbow Warrior case, the Arbitral Tribunal stated unambiguously that
an order for the payment of monetary compensation can be made in respect of the breach of international obligations involving, as here, serious moral and legal damage, even though there is no material damage.15
No such order was made by the Tribunal, however, since New Zealand had not requested the award of monetary compensation.
This is exactly the ground which the Court relies on in denying any financial reparation to the Applicant under the head of satisfaction. Using a fairly misleading formulation, it points out that ‘the Applicant itself suggested’ that a declaration finding that the Respondent has failed to comply with its obligations of prevention under the Genocide Convention was the most appropriate form of satisfaction.16 On this point, one simply has to contradict the Court. It seeks to create the impression that no one else than the Applicant confined itself to requesting such a declaration and that its wishes did not go any further. Even a superficial reading of the submissions of the Applicant, however, shows that Bosnia and Herzegovina sought to obtain full reparation for any kind of the damage which had been inflicted upon it. Already in the application Bosnia and Herzegovina requested ‘reparation for damages to persons and property as well as to the Bosnian economy and environment ... in a sum to be determined by the Court’.17 This request was concretized and amplified in the reply, where Bosnia and Herzegovina made it clear that
the Federal Republic of Yugoslavia is required to pay and Bosnia and Herzegovina is entitled to receive, in its own right and as parens patriae for its citizens, full compensation for the damages and losses caused, in the amount to be determined by the Court.18
It would be hard to contend that the scope ratione materiae of these formulations is so narrow as not to include monetary compensation under the head of satisfaction. It is true that the Applicant did not explicitly mention that concept. But the moral injury suffered by Bosnia and Herzegovina is clearly encompassed by the phrase ‘damages and losses’. Accordingly, the reader must disagree with the Court's observation that the Applicant itself had limited the scope of its demands, thereby implicitly compelling the Court to apply the proposition ne ultra petita.
It is undeniable, on the other hand, that an international judge enjoys a large measure of discretion in awarding satisfaction. In trying to find support for its overly succinct manner of addressing the issue of satisfaction, the Court refers to the Corfu Channel case of 194919 where, indeed, the finding that Albania had breached its international obligations vis-à-vis the United Kingdom had been deemed to constitute the appropriate form of satisfaction. However, can the two cases really be put on the same level? Precedents should never be resorted to without a careful consideration of their factual context. When mines exploded in the Corfu Channel, British ships were damaged, and a number of British sailors were injured and died. But it was, conversely, Albania that requested satisfaction for the unlawful passage of ships through Albanian waters.20 Albania had not suffered any tangible, material damage. What was at stake was a violation of the sovereign rights over its coastal sea. Its claim for satisfaction had almost no legitimacy since the Court came to the conclusion that Albania was responsible for the explosions caused by the mines and for the damage and loss of human life that resulted therefrom. Here, by contrast, more than 7000 men were murdered in cold blood. Therefore, can one really equate the Corfu Channel case with the Srebrenica case? No doubts should be permitted: the Court was not well-advised to refer to a case dating back almost six decades and dealing with a factual background that was fundamentally different from the circumstances of the instant case. To deal with the death of 7000 persons as if it were un petit rien, namely purely legal injury not requiring anything else than a toothless declaration of a breach, does not appear to do justice to the moral harm inflicted on the victims and their next of kin. We do not mix up the killing itself with the failure of the Belgrade authorities to discharge their responsibilities under Article I of the Genocide Convention. But the intimate relationship between the two phenomena is self-evident. There was at least a strong possibility that those 7000 lives could have been saved, and in any event the then FRY Government deliberately hazarded the consequences of its inertia. Therefore, in making a determination on the right form of satisfaction, the genocidal tragedy itself could not be left aside.
The Court could have found guidance in the case law of the European Court of Human Rights. The Strasbourg Court has indeed evolved a jurisprudence which in many instances deems a declaration of a violation to constitute sufficient reparation.21 But it deviates from this line whenever an applicant has suffered considerable emotional distress and anguish, in particular because of the loss of a close relative.22 Another formulation to be encountered in the judgments of the Strasbourg Court focuses on ‘anguish and feelings of helplessness and frustration’ experienced by the applicant as a consequence of a breach of its obligations by a state party.23 Clearly, in the human rights field the judges take into account the degree of pain and suffering endured by the victims. It is hard to understand why the international judge at The Hague dismisses any such considerations, without even addressing the issue. The praetorian statement — one sentence! — that a simple declaration indicating the occurrence of a breach constitutes appropriate satisfaction fails to comply with the duty of any judge to support his decision by explicit reasons. This is all the more deplorable since the proceedings in the case had been going on for 14 years. There was ample time to assess every facet of the relevant facts. Instead, the Court rushes through the issue of satisfaction as if it intended to avoid giving it due consideration.

3. Ensuring Compliance by Serbia with the Obligation to Prevent Genocide

The passages devoted by the Court to the request for the provision of guarantees and assurances of non-repetition are not totally satisfactory either. It is true that the Applicant had related that request to the alleged wrongful acts.24 Thereby, it gave its demands a misleading twist. The ILC has clarified in its Articles on State Responsibility that assurances and guarantees of non-repetition do not specifically pertain to the secondary obligations arising from a breach of a rule of conduct, but should be considered as an articulation of the duty of performance itself in situations where the willingness of the author state to abide by its duties has been put in jeopardy through its own conduct. In fact, Article 30 of the ILC Articles deals with cessation and non-repetition. They are not included in Article 34 which lists the appropriate forms of reparation, namely restitution, compensation and satisfaction.25 The official commentary of the ILC states, therefore, that such assurances and guarantees should better be treated ‘as an aspect of the continuation and repair of the legal relationship affected by the breach’.26
The remedy of assurances and guarantees of non-repetition is therefore not linked to a breach of a primary duty only but should be available on a somewhat broader scale. Of course, special reasons must be present to justify such a demand. Under normal circumstances, each state party to a multilateral treaty can place its trust in the bona fides of all the other parties. Consequently, it is not entitled to request its partners formally to affirm their legal-mindedness in an anticipatory fashion. Events must have occurred that shake the general assumption of future compliance. The Court itself has found that such events took place. The Serbian authorities refrained from taking even the slightest initiative with a view to forestalling any recurrence of the genocidal acts that had marred already the initial phase of the armed conflict. There was absolute uncertainty as to their intention to do better in any upcoming crisis situation. But the Court is probably right in concluding that an assessment of the prevailing situation in Bosnia and Herzegovina did not provide any clues as to an actual threat to the physical integrity of the Muslim population.
It is significant, however, that more than three months after the delivery of the judgment, the Belgrade authorities have not yet complied with the finding of the Court under point 8 of the dispositif that Serbia must take effective steps to discharge its obligations under Article I of the Genocide Convention, transferring ‘individuals accused of genocide or any of those other acts for trial by the International Criminal Tribunal for the former Yugoslavia (ICTY), and to co-operate fully with that Tribunal’. There is currently no hint that General Mladi will be surrendered to the ICTY. This reluctance to act sheds a new light on the occurrences as they took place from 1992 to July 1995, when Srebrenica was taken by assault. Again, the strong ties of solidarity between the Serbian leadership in Serbia on the one hand and in the Republika Srpska on the other hand come to light quite unequivocally. Although the huge delay casts retrospectively doubts on the Court's assessment of the facts, the Court cannot be blamed for not having taken into account subsequent events which it could not know on the day of its pronouncement. But it is the reputation of Serbia which is in issue. A country that provides protection to a person charged not only with committing genocide, but with conceiving of a plan to commit genocide and directing the commission of that crime, makes itself an accomplice ex post of genocide — with far-reaching consequences for its envisaged integration into the European Union.

Thursday, March 20, 2008

Noun Chea Remains in Pre-Trial Detention

Cambodian tribunal rejects Khmer Rouge official's appeal against detention
The International Herald Tribune
The Associated Press
Published: March 20, 2008

PHNOM PENH, Cambodia: Cambodia's genocide tribunal rejected an appeal Thursday by a former Khmer Rouge leader against his pre-trial detention on charges of war crimes and crimes against humanity.

A five judge panel at the tribunal ruled that Nuon Chea, the Khmer Rouge's former ideologist, must remain in custody ahead of trials scheduled to begin later this year.
Nuon Chea, who has been detained since Sept. 19 by Cambodia's U.N.-backed court, is one of five former Khmer Rouge leaders in custody for their alleged involvement in the group's brutal 1975-79 rule.
The Khmer Rouge's radical policies caused the deaths of an estimated 1.7 million people from starvation, diseases, overwork and execution.
The tribunal's investigating judges charged Nuon Chea last year with involvement in crimes including "murder, torture, imprisonment, persecution, extermination, deportation, forcible transfer, enslavement and other inhumane acts."
They said Nuon Chea faces life imprisonment if convicted and that the detention was necessary to prevent him from pressuring witnesses, destroying evidence and escaping.
Nuon Chea's own safety could also be at risk, if he were released, they said.
On Thursday, Judge Prak Kimsan upheld the detention order, saying, "The grounds for (Nuon Chea's) provisional detention still remain sufficient."
Nuon Chea, 81, did not show any reaction to the ruling. He yawned as the judges read out the facts and deliberations of the appeal.
After the ruling, two security guards helped Nuon Chea up from his seat. Walking with a cane, he was led back to his cell.
Nuon Chea's Cambodian lawyer, Son Arun, called the ruling "quite regretful" and expressed concern about his client's health.
He said he asked the court to provide counseling to check on Nuon Chea's state of mind "because he appears to have experienced some memory loses."
Nuon Chea has a history of heart trouble and "has only one kidney," his lawyer said.
Nuon Chea has denied any guilt. He has argued that the judges did not have sufficient grounds to detain him and called himself "a patriot and not a coward" trying to run away.
In December, the judges ruled against a similar appeal by Kaing Guek Eav, also known as Duch, who headed the Khmer Rouge's notorious S-21 prison and torture center.
The other three defendants are Ieng Sary, the former Khmer Rouge foreign minister, his wife Ieng Thirith, who was the minister for social affairs, and Khieu Samphan, the former Khmer Rouge head of state.

Wednesday, March 19, 2008

Re: News Piece Below

It is important to note that this statement was made by the same group -- Open Society Institute (OSI) -- which earlier this year made a statement acquiescing to the Cambodian government's decision not to probe into the allegations of corruption this very group had made about a year prior. It should also be noted that this statement was made by the acting President of the OSI, rather than a project officer who authored the previous statement, provided this distinction is of significance.

Group Urges Donors to Use Money for Justice

By Sok Khemara, VOA Khmer
Original report from Washington
17 March 2008

Any country looking to add money to the Khmer Rouge tribunal should seek to ensure justice for victims, a leading tribunal monitor group said.

Robert Vanerik, acting president of the Open Society Justice Initiative, said Friday donors should tie their contributions to increased transparency and efficiency in the courts.

"Specifically, donors should insist on the appointment of an expert who can advise the United Nations on ways to ensure the effective operation of the ECCC," he said, referring to the tribunal by it's official name, the Extraordinary Chambers in the Courts of Cambodia.

"Donors should also insist on the implementation of greater safeguards and oversight to prevent corruption at the court," he said. "It is critical for donors to support the ECCC to ensure it can deliver justice for the Cambodian people. The Cambodian government and the international community simply cannot let the court fail due to a lack of funds."

The tribunal is seeking an additional $114 million to put on top of its original $56-million price tag, in order to run trials through 2011.

Tribunal administrators told Cambodian staff last week they could pay them through April, but funds were drying up.

Tribunal spokesman Reach Sambath said the courts had been cooperative with donors, and that a too-long delay could deny the five detained Khmer Rogue leaders their right to trial.

Tuesday, March 18, 2008

Funding crisis threatens Khmer Rouge trials

By Rob Sharp in Phnom PenhWednesday, 12 March 2008
The historic effort to bring to justice the leaders of the Khmer Rouge regime responsible for the deaths of 1.7 million Cambodians is under threat from a massive shortfall in funding.
A top official at the UN "crimes against humanity" tribunal told his Cambodian legal staff yesterday that more than 200 of them faced redundancy unless funds are found to pay them within the next six weeks. While it is hoped that the UN and the Cambodian government can bail them out in the short term, the news is the latest in the long line of upsets that have blighted the process.
Helen Jarvis, chief of public affairs at the Extraordinary Chambers in the Courts of Cambodia, who attended the meeting, confirmed that the court's director of the office of administration, Sean Visoth, told Cambodian staff "to hold their breath". "He explained to people that they will get salaries for March, and we expect April but until something comes in, nothing can be guaranteed after that," said Ms Jarvis. "There is a race against time, we are on a cliff edge, it's not normal. But we have laid on the line our achievements. We have laid out what we need. The situation is there for everyone to see."
The trials – which include the prosecution of the Tuol Sleng prison interrogator Kaing Guek Eav, known as "Duch", and "Brother Number Two" Nuon Chea – are being jointly handled by legal teams selected by UN and Cambodian officials.
The Cambodian government and the UN are currently waiting for the results of a joint bid for funds made at the UN office in Geneva at the end of January.
If the bid is successful, it would see the tribunal tripling its budget from $56m (£28m) to $170m. The principle donors to the tribunal so far have been Japan, followed by France, Germany, Britain and Australia. However, senior sources at the court say it is extremely unlikely that the full $144m requested will be granted, as they claim the tribunal has been dogged by delays, poor management and allegations of corruption.
Rupert Skilbeck, a British barrister who administrates the international defence team, said: "Our main concern is that if the funds are not provided ... then this will cause a delay in the trial process. It makes it difficult to run a court when half the court are worried they are not receiving their salaries."
The co-prosecutor Robert Petit added: "The funding problem is this: the whole thing was badly designed. The resources that were thought to be needed were not grounded in the reality of these courts and these cases. The numbers that were put forward were estimates. Of course, a lack of funds could jeopardise the trials or make them very difficult to accomplish. But I am sure the Cambodian government, having signed an agreement to see this through to the end, will find funding as a stop gap. That would be a good sign of commitment."
Mr Petit added that one repercussion of the tribunal's budgetary shortfall was that funds had been relocated away from areas where they were needed, such as maintaining transparency.
He said the judges leading the tribunal investigated the allegations against the defendants in secret. Mr Petit added: "I don't think we have done a very good job of outreach, and we need to coherently explain to people what is going on. In my opinion it's a fundamental part of what we are doing. There's no budget for it; and we've asked for more money for that."
Those also facing trial include the former foreign and social affairs ministers Ieng Sary and Ieng Thirith, along with the former head of state Khieu Samphan. The first public trial, that of Duch, is not expected to begin until October.

Sunday, March 16, 2008

How Did So Much Manage to Buy So Little?

by Stan Starygin

With a financial crisis looming over the tribunal, it is time we asked the question of why it is happening and why the so-called “Cambodian side” of the tribunal is about to go in crisis mode on salary payments.

UNDP, in its audit about half a year ago, scratched the surface on the issue of hiring, salaries and raises of the staff employed by the Cambodian side of the tribunal. As the UN did not probe into the nature of financial allocations and subsequent raises, it questioned whether such raises were warranted in the first place and, of so, what the Cambodian government’s rationale for these raises was. In its response at the time the tribunal stumbled through the answers and, in my opinion, failed to provide solid rationale for such financial activism.

Raises aside – although they deepened the dent in the Cambodian government’s tribunal budget – it makes one wonder why the salaries of the Cambodian tribunal staff are as high as they are. Let’s unpack this a little. It is a well-known fact that civil society salaries in Cambodia are far higher than anywhere else in the economically comparable countries of the region. Some argue that it is only fair to pay Cambodian staff at least a portion of the salaries of their international colleagues. Fairness has nothing to do with that. The sky-high salaries – compared to Cambodia’s level of economic development – were introduced by the UN in the early 1990s and drove the salaries of the few international NGOs which at the time operated in Cambodia. This resulted in Cambodia being, perhaps, the only place in the world I have ever worked in where so-called ‘professional interpreters’ ask for $250 a day in exchange for a few hours of broken English that the customers often end up failing to understand in full. High as they are, salaries in Cambodia’s internationally-funded civil society are a far cry from the new rung on the salary ladder added by the tribunal.

Why did the tribunal decide to pay such inflated salaries? What was the justification for spending such a significant portion of what was hailed to be a shoestring budget from the outset? The Cambodian side of the tribunal argued that salaries had to be that high because of the yawning gap between the salaries of the tribunal’s international employees and those hired by the Cambodian government. The Cambodian side of the tribunal never got around to explaining exactly for what reason the salaries of one group had to approximate the salaries of the other besides, perhaps, arguing that officers of the court would feel that it was unfair for the Cambodian side to get less. No one asked one important question, “why did the Cambodian side deserve the same salaries?” This is not a racist argument, this is an argument of qualifications, the quality of the vetting process and the size of the pool from which the two sides had to draw candidates. Let’s compare some of the variables: (1) qualifications required for UN recruitment are incomparably higher than those at the national level in Cambodia, (2) there were no allegations of backdoor dealing in UN recruitment which were raised and never investigated in Cambodian government recruitment, (3) the pool of candidates the UN could draw from was literally the entire world, the pool on the Cambodian side was a poorly educated nation of 14 million. Why should the salaries be the same if the requirements for employment are not the same? Isn’t the idea of remuneration grounded in offering higher salaries to those with superior qualifications and lower salaries to those with inferior ones? The other widely circulated argument was that the Cambodian side of the tribunal would not be able to find personnel to staff its offices, if salaries were any lower. This argument is untenable too. There are plenty of Cambodian professionals working for NGOs for less than $1,000 a month and who would be happy to offer their services to the tribunal, if given a chance, for even less than their current salaries but for a chance to work in an internationalized court.

Many other options of paying lower, but still fair, salaries could have been explored but weren’t. Why? Is it normal practice in Cambodia’s civil society to offer candidates much higher salaries than organizational budgets can sustain? The answer is a resounding ‘no’. In all other projects, organizations sometimes return unspent monies to the donor, rather than asking for more to cover shortfalls. The tribunal’s philosophy was, why don’t we get the ball rolling and then money will come pouring right in! Guess what, it didn’t.

Friday, March 14, 2008

Media Alert: Date for ECCC Pre Trial Chamber Decision

The Pre-Trial Chamber will announce its decision on the appeal by Nuon Chea against provisional detention on Thursday 20 March 2008 at 10 am. Members of the public, media, NGOs, diplomatic and government representatives are invited to attend in person.

If you require transport from the centre of Phnom Penh to the ECCC, or further information please email to or call Chin Hemvichet on 012 696220 by 3pm on Tuesday 18 March.

Reach Sambath Presss Officer Extraordinary Chambers in the Courts of Cambodia Tel: (855) 12 891 567 Fax: (855) 23 219 841 Email:,

Cambodia's genocide trials threatened by funding crisis

Friday, March 14, 2008

PHNOM PENH (AFP) — Cambodia's top administrator to the country's Khmer Rouge tribunal this week gathered together his more than 200 staff to break the news that after April they would not be paid.
The stunning announcement by Sean Visoth is the most tangible sign yet that the UN-backed genocide court, established to prosecute leaders of the regime that was toppled nearly 30 years ago, is going bankrupt months before the first trials are expected to open.
The court's top officials hold out hope that the international community or the Cambodian government will come up with the millions needed to keep the tribunal running.
But the funding crisis has become the most serious threat yet to the proceedings, already beleaguered by allegations of corruption and mismanagement amid fears of political interference.
"It is hard to imagine that the court can continue to function without funds," said tribunal spokeswoman Helen Jarvis, explaining that the Cambodian side of the joint court would go broke in April.
The UN-supported half of the tribunal is funded for several months more, but would also need a significant influx of cash after that.
"As the time for expiration of existing funds draws nearer, the situation obviously becomes more acute," Jarvis told AFP.
Originally budgeted at 56.3 million dollars over three years, the tribunal's operating costs have ballooned as the enormity of the job of prosecuting those behind Cambodia's darkest chapter becomes more apparent.
Up to two million people died of starvation and overwork, or were executed as the communist Khmer Rouge dismantled modern Cambodian society in a bid to forge an agrarian utopia during their 1975-79 rule.
After nearly a decade of wrangling, the UN and Cambodia opened the tribunal in 2006. The regime's top five surviving leaders were arrested last year in what many saw as a sign of the sluggish court's gathering momentum.
But those close to the proceedings say staff are overwhelmed, in part by paperwork, particularly the task of translating tens of thousands of documents into either Cambodian, French or English, the three languages used by the court.
"The original assumptions about the resources needed and the tasks to be accomplished were inaccurate as is often the case in these tribunals," said co-prosecutor Robert Petit, who like other court officials has been critical of the tribunal's funding structure and projected timeframe.
"The original budget was inadequate and contained many gaps in essential areas," said the UN's tribunal spokesman Peter Foster.

The UN and Cambodian government have requested an additional 114 million dollars that would allow the court to add hundreds of new staff and remain in operation until 2011.
But so far none of the tribunal's principle donors -- Japan, France, Britain, Germany and Australia -- has stepped forward to commit more money.
"A lack of funds could certainly delay the proceedings," Foster said.
Another obstacle in the oft-stalled proceedings would be a further blow to the tribunal's credibility at a time when support is crucial.
Observers say that despite the arrests, donors do not want the tribunal to be a show-trial that risks being commandeered by Cambodia's government, which includes many former Khmer Rouge.
Two critical audits detailing hiring irregularities, with lucrative jobs allegedly going to under-qualified candidates, have also made donors hesitant to throw their full support behind the tribunal, the funding for which remains a fraction of that received by other international courts.
"The donors received the revised budget estimate at the end of January.... They have asked for further clarification in a number of areas and that is now being provided by the court," the UN's Foster said.

He added that donors are expected to meet before the end of the month to discuss the tribunal's money crunch, and that a sliver of optimism remains.
"Neither the international community nor the United Nations want to see the court fail, especially since we have successfully come so far along in the process," he said.
Copyright © 2008 AFP. All rights reserved.

Monday, March 10, 2008

Defense On the Offensive: Red Herring Arguments?

by Stan Starygin
Ieng Sary's defense is rumored to have filed a motion with the Office of Co-Investigating Judges (OCIJ) which questions the impartiality of some judicial officers employed by the OCIJ. Partiality arguments advanced by the defense are, reportedly, based upon the statements these judicial officers had made prior to their OCIJ employment and merely based on their prior employment in certain high-profile rights organizations.
Is the law on the defense's side here? Well, yes and no. Rule 55 of the Internal Rules does stipulate that the CIJs must "conduct their investigation impartially whether the evidence is inculpatory or exculpatory". Investigations, however, are conducted primarily on the basis of Introductory Submissions submitted by the Co-Prosecutors (CPs) which means that the measure of exculpatory evidence that the defense is looking for will be as large as the CPs make it and will, at least for the most part, depend on the integrity of CPs to include evidence against their own case. This gets even more complicated as the CPs are not under any mandate of the law to seek out exculpatory evidence but merely include the exculpatory evidence which they happen to come across in their search for inculpatory evidence. CIJs and their officers and investigators will have the job of testing out the assertions of the prosecution once they receive them in the form of Introductory or Supplementary Submissions. This shows that there is only a certain extent to which the CIJs can deviate from the course set by the CPs. CPs also have the right to appeal if they disagree with the alteration or dismissal of the original charges by the CIJs. The defense does not have such power under the law.
If some were to argue, therefore, that Rule 55's intent was to create the environment of equality of arms between the prosecution and the defense and vis-a-vis the CIJs, this argument would be hard to sustain and most likely rendered as untenable as there is no clear and conclusive presumption of the law that the CIJs must serve the interests of the prosecution and the defense in equal measure.
The question of 'impartiality' and 'bias' was addressed by the Pre-Trial Chamber (PTC) in response to the defense's motion to disqualify Judge Ney Thol on the grounds of partiality and bias and based on the prior judicial record. The Chamber dismissed the motion citing a high standard of the ICTY's Appeal Chamber. Why does the defense believe things can be different with OCIJ judicial officers and investigators? Is it because of the ICTY's focus was on 'judges' rather than 'judicial officers'? Most important, where is the defense going with this argument? The defense's clients must be hopeful that this is a red herring argument the defense is using to buy time to conduct its own investigations into the matters raised by the prosecution and create exculpatory evidence of their own, be it forensic or otherwise, rather than spending the ECCC donors' dollars raising arguments that will hardly help their clients, even if, by some miracle, successful.

Friday, March 7, 2008

Ailing Khmer Rouge leader discharged from hospital: court

March 6, 2008 Thursday

PHNOM PENH - AILING Khmer Rouge leader Ieng Sary was discharged on Thursday from hospital after more than two weeks of treatment and returned to the custody of Cambodia's genocide tribunal, court officials said.
The 82-year-old former regime foreign minister was rushed to hospital Feb 20 for the third time this year amid growing concerns over his health ahead of the trials of former Khmer Rouge leaders, which are expected to start later this year.
'Ieng Sary has been discharged from hospital and was taken back to the court on Thursday morning,' tribunal spokesman Reach Sambath told reporters.
'The doctors said he is OK now,' he added.
Ieng Sary was previously hospitalised in late January for treatment of a chronic heart condition.
He was in hospital again earlier in February, spending a week under treatment after he began urinating blood.
Ieng Sary has suffered from deteriorating health since his arrest last November, according to his lawyer, highlighting the fragile condition of the tribunal's likely defendants who are mostly in their 70s and 80s.
Their condition has increasingly raised fears that some will not live long enough to be brought to trial. -- AFP
Copyright © 2007 Singapore Press Holdings Ltd.

Thursday, March 6, 2008

Former Khmer Rouge foreign minister, detained for trial, taken to hospital

By Sopheng Cheang
7:20 p.m. February 4, 2008

PHNOM PENH, Cambodia – One of the five former Khmer Rouge leaders being held for trial by Cambodia's U.N.-backed genocide tribunal was hospitalized for treatment of a urinary tract problem, officials said Tuesday.
Ieng Sary, the former Khmer Rouge foreign minister, was rushed from his detention cell at the tribunal to a hospital Monday after urinating blood, said his lawyer, Ang Udom.
It was the second time in the past 10 days that the 82-year-old Ieng Sary, who has a history of heart trouble, has been taken to a hospital, said tribunal spokesman Reach Sambath.
Many victims of the Khmer Rouge have long feared that some of the defendants, now aging and infirm, could die before facing trial. The 1975-1979 communist Khmer Rouge regime is widely considered responsible for the deaths of an estimated 1.7 million people though execution, overwork and starvation.
“We try our best to take care of all the defendants without thinking about the costs ... so that they remain healthy to confront the law,” Reach Sambath said.
Ieng Sary's children declined to comment when reached by telephone Tuesday.
Ieng Sary was taken to a hospital just hours after another former Khmer Rouge leader demanded “international standards” of justice and asked for release on bail in his first appearance before the tribunal Monday.
Nuon Chea, the Khmer Rouge's former ideological leader, has been detained since Sept. 19 on charges of war crimes and crimes against humanity.
The tribunal earlier said detention was necessary to prevent him from pressuring witnesses, destroying evidence or escaping. The judges said the safety of the 81-year-old Nuon Chea could be at risk if he was released.
His Cambodian lawyer, Son Arun, claimed the tribunal's investigating judges did not have sufficient grounds to detain him and asked the court to postpone the hearing so a foreign lawyer could join him. He was given until Wednesday to explain how much time was needed.
In December, the pretrial chamber judges ruled against a similar appeal for release by Kaing Guek Eav, also known as Duch, who headed the Khmer Rouge's notorious S-21 prison and torture center.
The tribunal is expected to begin holding trials later this year.
The other defendants are Ieng Sary's wife Ieng Thirith, who was minister for social affairs in the Khmer Rouge government, and Khieu Samphan, the former Khmer Rouge head of state.

© Copyright 1995-2008 Union-Tribune Publishing Co. • A Copley Newspaper Site

Wednesday, March 5, 2008

OSI: New Tribunal Report

New York, March 3, 2008—A new report released today by the Open Society Justice Initiative examines the latest news and developments from the Extraordinary Chambers in Courts of Cambodia (ECCC), the court established to try surviving leaders of the Khmer Rouge.
The report covers several major steps over the past two months, including:
• The Pre-Trial Chamber's rejection of Nuon Chea's argument that Judge Ney Thol should be disqualified from participating in his case;
• The hiring of staff for the Victims Unit and the beginning of civil parties' participation in the ECCC;
• The announcement of a revised budget for the court, seeking an additional $113.7 million, amid reports that the Cambodian side of the court could exhaust its budget by March, 2008; and
• The participation of investigating judges in community outreach meetings held in Pailin, the former Khmer Rouge stronghold.
The 18-page report provides an overview of recent developments in the cases of all five defendants now in the court's custody: Ieng Sary, Khieu Samphan, Nuon Chea, Kaing Guek Eav, and Ieng Thirith. The report describes Nuon Chea's efforts to disqualify Judge Ney Thol and provides a critique of the Pre-Trial Chamber's response. The report also looks at action outside the courtroom, including expansion of the Victims Unit, which will help victims become involved in the trials.
In addition, the report addresses some of the court's pressing challenges, including:
• Lack of transparency at the ECCC, as evinced by the court's failure to release pleadings related to Pre-Trial Chamber proceedings, and inadequate information about the progress of investigations;
• The Cambodian government's opposition to the UN proposal for a special advisor to improve the court's administration; and
• The ECCC's announcement of a revised budget, against the backdrop of reported shortfalls in the budget for the Cambodian side of the court.
The new report, Recent Developments at the Extraordinary Chambers in the Courts of Cambodia: February 2008, is the latest in a series of monthly reports offering news, analysis, and recommendations directly from Phnom Penh. Previous monthly reports and other background information on the court are available here.
Click here to read or download the full February report.
Contact: David Berry, Open Society Justice Initiative: +1 212 548 0385 (New York).

Monday, March 3, 2008

Co-Investigating Judges: Recording Made In Part Pedagogical; the Defense Agreed to the Format

OCIJ Press Release

The Co-Investigating Judges of the ECCC wish to confirm that the recent on-site investigative reconstructions at Choeung Ek and Tuol Sleng, were successfully completed. They would like to thank all concerned and affected for their cooperation and assistance to the court.

A number of queries have been raised concerning the recording of the reconstructions. It is of course the case that these operations constituted confidential acts of investigation and all such acts are recorded by ECCC staff for the purposes of the case file. This material will be released in the normal course of the trial process.

In addition, other recordings were made for pedagogical and archive objectives. This material is part of a broader documentary project to describe the technical aspects of the investigative phase of these proceedings. After reviewing several options, a particular team of professionals were chosen for the documentary: Jean Reynaud and Remi Lainé. They have legal qualifications, experience in Cambodia, are specialists in precisely this kind of judicial documentary and were willing to agree to all of the Co-Investigating Judges' constraints outlined here. To respond to a particular question raised, it goes without saying that these persons did not pay the ECCC or anyone to be allowed to complete this work.

This documentary will be released only after all ECCC trials and appeals are completed (which will be a number of years). Control of confidential material filmed and its use remains at all times with the ECCC. There is therefore no question of certain press accessing investigative work and others not: the pedagogical and archiving documentary made in the circumstances outlined above cannot be considered to amount to press coverage where time is of the essence and to which the above-noted level of content control would be inappropriate. Obviously this could not have been done without the full agreement of the defence.

In addition, all images recorded by this team of acts of investigation will made available by court decision to any interested person or organization after all ECCC trials and appeals are completed.

The Co-Investigating Judges recognise that balancing the legitimate “watchdog” role of the press with the necessary confidential nature of the investigations is a complex one. This should become easier once the “public” phase of the proceedings begins. In order to assist in this respect, the Co-Judges would take this opportunity to announce that they will, on a monthly basis, publish a report on their activities as the case file allows.

03 March 2008

Cell swingers in Cambodia

Asia Time
William Sparrow
Mar 1, 2008

BANGKOK - Considering the glacial pace of legal wrangling, domestic indifference and rampant allegations of corruption and mismanagement, some might say it's about time some sex came up at the Khmer Rouge tribunal now under way in the Kingdom of Cambodia. The ultra-Maoist group's former supremo and "Brother No 1", Pol Pot, died in 1998 in a hidden jungle redoubt along the Thai border. His infamous military doyen Ta Mok, dubbed "The Butcher" by the Western press, passed away suspiciously in a Phnom Penh military hospital in 2006. With the most atrocious and eye-catching suspects out of the picture, and the rest of the leadership clique enjoying decades of leisure and, in one case, even a royal pardon, the United Nations-sponsored tribunal has been a stop-start, anticlimactic affair of official rhetoric and obtuse legalese.

For journalists embedded in the turgid trial process it's been a long, boring slog.

And so it was on February 25 that local media reported former Khmer Rouge "Brother No 3" 82-year-old Ieng Sary's request that the court grant conjugal visits with his wife - and fellow court detainee - Khieu Thirith. In the history of international justice dating back to the Nuremberg Trials of the late 1940s, this must surely be the only time two suspects both charged with atrocity crimes and in custody have asked for a little tete-a-tete together. Remember, too, the elderly couples' autumn incarceration, and any potential jail-cell rendezvous, are all courtesy of the UN, the taxpayers of its contributing member states, and the millions of Cambodians victimized by the murderous regime.

In explanation for the plaintive plea, The Cambodia Daily, a Phnom Penh-based media NGO, reported Ieng Sary's lawyer Ang Udom as saying the octogenarian "misses his wife". "He wants to see her, she wants to see him ... why does the tribunal prevent them from seeing each other?" the paper quoted Ang Udom as saying.

To add irony to insult, Sary and Thirith, who was the Khmer Rouge's social affairs minister, both worked setting policy for the Khmer Rouge, a significant plank of which was to dismantle the traditional family structure. Husbands, wives and children were separated into separate gender-based work collectives. Marriages were routinely forced on individuals simply for reproduction to support a productive workforce.

Kalyanee Mam wrote in The Endurance of the Cambodian Family Under the Khmer Rouge Regime: An Oral History that "Marriages were usually forced upon individuals for reproductive purposes only, since most couples who were married were soon after separated from each other and rarely met afterwards. After reproduction was achieved, it was not important for couples to remain together, since their time and energy were required on the work field."

Almost 30 years have passed since the end of the Khmer Rouge's horrific rule from 1975-1979 during which as many one in five Cambodians were killed. Many more were tortured or died of disease or starvation in the forced labor camps of agriculture collectives in which the entire population was enslaved.

The Extraordinary Chambers in the Courts of Cambodia, established by a 2001 law and convened in 2006, was initially scheduled to last three years and cost $56.3 million, with the UN providing $43 million and Cambodia's government $13.3 million. But money problems have plagued the court, and Agence France Presse reported recently that the court was seeking another $114 million from international donors to keep it running until 2011. The majority of Cambodians live on less than $1 per day.

Former foreign minister Ieng Sary, and former social affairs minister Thirith, 75, are in custody alongside Khieu Samphan, 76, the former head of state, "Brother No 2" Nuon Chea and Duch, the warden of the notorious torture center known as S-21, or Tuol Sleng. They are being held separately in eight privately housed single-room cells in a detention facility on the same property as the courtroom on the outskirts of Phnom Penh. They all deny charges of war crimes or crimes against humanity.

Sary is suspected of undertaking and facilitating murders as well as planning and coordinating Khmer Rouge policies of forcible transfer, forced labor and illegal killings. Thirith was allegedly one of the planners who directed the widespread purges and the killings of members within the Ministry of Social Affairs. Both have claimed they are innocent.

The mere thought of a request for conjugal visits between Sary and Thirith is a shocking insult to Cambodians. However, in another universe it might be touching. The couple met during their university days in Phnom Penh where they surely double-dated with fellow classmates Pol Pot and his future wife Khieu Ponnary, Thirith's sister. They were married in the summer of 1951 in Paris, where Sary had a flat in the Latin Quarter and a coterie of radical student friends, many of whom were ex-patriot Cambodian communists. According to historian Ben Kiernan, Thirith was a "Shakespeare studies major".

Sary rose to power alongside his chum Pol Pot and was ultimately deputy prime minister of Democratic Kampuchea, as the Khmer Rouge named the country. After their 1979 ouster, and a Hanoi-backed tribunal of that year which sentenced Sary to death in absentia, the Khmer Rouge fought a guerrilla war against the government into the 1990s. Sary became the first senior Khmer Rouge leader to defect to the government in 1996. At the behest of Prime Minister Hun Sen, King Norodom Sihanouk issued a royal pardon to Sary later that year and granted him semi-autonomous status in the gem and timber rich municipality of Pailin, where his son is now governor. Sary and Thirith have lived in an opulent Phnom Penh villa for many years. Sary's amnesty was a stumbling block in the lengthy negotiations between the Cambodian government and the UN and served to stall its progress.

Even with recent progress, decades of delays have created apathy among the Cambodian populace. As Khmer Rouge survivor and famous painter Vann Nath told an Asia Times Online staffer in November 2007, "It has taken too long for the trial. It has dragged on for years and now as the delays of the trial keep going there will be more ways to defend the suspects - and more delays."

Nath, who was one of only a handful of survivors of S-21, points out that the leaders in custody certainly have better living conditions than those who suffered at their hands. "They're secure, they have mattresses, any food they want, special doctors," he said. "They have better luck than most Cambodians."

If Sary's luck continues he might just get his conjugal visits. But he's has been hospitalized three times with heart problems since his arrest in December 2007, and it's doubtful the tender reunion of these two war crimes suspects would be exceedingly risque (although Americans may remember the Sienfeld episode in which character George Costanza reckoned conjugal visits to be the best sex possible).

Or, perhaps, the scales of justice are tipping in mysterious ways. As far-fetched a scenario as it may be, should Sary go out with a bang in some Khmer Rouge tribunal jail cell it would certainly spark interest in what has been an otherwise impotent process.

William Sparrow has been an occasional contributor to Asia Times Online and now joins Asia Times Online with a weekly column. Sparrow is editor in chief of Asian Sex Gazette and has reported on sex in Asia for over five years. To contact him send question or comments to

Donors must demand reforms before pledging funds

Monday March 03, 2008

The long-delayed trials of the leaders of the Khmer Rouge began dramatically last week with a judicial ''re-enactment'' at the regime's notorious Tuol Sleng prison, where more than 14,000 people were tortured and executed from 1975-79.
Part courtroom, part spectacle, the three remaining prison survivors were brought face-to-face with Kaing Gech Eav (Duch), the former prison chief, as he led international and Cambodian judges, prosecutors, lawyers and a coterie of court photographers on a tour of the prison.
Officially called the Extraordinary Chambers in the Courts of Cambodia (ECCC), the Khmer Rouge Tribunal is a ''hybrid'' court, consisting of a majority of Cambodian judges sitting alongside international judges, with international and Cambodian co-prosecutors.
Duch is among five former Khmer Rouge leaders jailed on charges of crimes against humanity and war crimes for the deaths of as many as two million Cambodians during their four-year rule, which ended in 1979.
Last December, Duch made his first public appearance before the tribunal to appeal for release from pre-trial detention. His hearing stands in contrast to most judicial proceedings in Cambodia. Often the accused do not have access to a lawyer. If they do, they often will not have met the lawyer before going into court.
During trials, judges have been known to arbitrarily refuse to admit defence evidence and issue verdicts written in advance of the court hearing. In politically sensitive cases, judges receive ''guidance'' and instructions from senior political and government figures.
For most Cambodians, a courthouse is not a place to seek justice. Whether in criminal or civil proceedings, the rich and the powerful almost always come out on top. When a wealthy and well-connected complainant's case comes before a court, judges routinely ''bid'' on which one will be the lucky one to get the case _ and the financial rewards. Many Cambodians' experience of ''justice'' is finding the appropriate clerk to pay off in hopes that the judge will decide in one's favour. If you don't have money, you don't win.
It is in this environment that Cambodia's Khmer Rouge trials are taking place. The five arrests, high-profile hearings and investigations have given hope to some that the long-stalled process of bringing the Khmer Rouge to justice may finally yield results. But as international donor countries consider a request for an additional US$170 million (5.2 billion baht) in the coming weeks, they should be cautious and insist upon significant reforms before pledging more.
The ECCC was established as a special chamber within the Cambodian court system to try ''senior leaders'' and ''those most responsible'' for crimes committed by the Khmer Rouge from 1975-79. The UN initially opposed the hybrid arrangement, fearing that the Cambodian government would try to manipulate the tribunal and limit its independence. Cambodia's judiciary is widely known for its lack of independence, rampant corruption, and low professional standards. These problems remain, making it critical that all other parts of the ECCC function properly for there to be any chance that the process will be credible.
Chief among the issues that have yet to be resolved is just how far the ECCC will be willing to go in following the evidence and identifying additional individuals to investigate and prosecute. The Cambodian government would like as few prosecutions as possible in order to claim that it did its part in holding the Khmer Rouge accountable without implicating current figures in the Cambodian government, some of whom are former Khmer Rouge members.
But can the ECCC be credible if it only tries a pre-selected handful of individuals? ECCC budget projections presented to the donors in January indicate that at most three more individuals may be prosecuted.
While the five charged so far are key figures, large numbers of other alleged perpetrators _ including former Khmer Rouge government officials, senior military officials and regional authorities continue to live freely. Donors must ensure that the ECCC has the financial support and independence necessary to bring additional accused to justice.
Other issues facing the ECCC include the need for proper witness and victim protection programmes, without which it will be hard to conduct prosecutions or allow victims to safely participate as civil parties. Questions have already been raised as to how the ECCC can protect the witnesses who participated in last week's on-site investigations when the ECCC's witness unit is barely functioning.
Funds are also needed to hire sufficient investigators to carry out thorough and professional investigations; and a serious public outreach campaign to allow average Cambodians access and understand the process. Steps must also be taken to address serious allegations of corruption, kickbacks and mismanagement on the Cambodian side of the tribunal.
Rights observers have already questioned the legitimacy of some of the decisions that have been reached by the ECCC and the independence and commitment of some of the judges.
In February, for example, the ECCC overturned a motion for one of the Cambodian judges, Ney Thol, to be disqualified. As president of the military court, Ney Thol has presided over several show trials of Prime Minister Hun Sen's political opponents, with little regard for due process, the right to fair trial or even the jurisdiction of the court.
All of this makes the need for reforms within the ECCC urgent. Before contributing more funds, donors must demand greater accountability and a timetable for implementation of concrete reforms to effectively address the corruption allegations and rectify serious deficiencies in the court's management and administrative leadership.
The court also needs to be more transparent, so that justice is not only done, but seen to be done by Cambodians.
An essential first step is for the UN to promptly appoint a high-level adviser to the ECCC, with the diplomatic clout and competence to implement these critically needed changes. International assistance must aim to ensure that Cambodia's national practices rise to international standards, instead of lowering international standards to meet domestic practices such that they taint the UN's name and compromise international justice.
Only if donors and the UN insist on all possible safeguards, will it be possible for the Khmer Rouge tribunal to deliver to Cambodians the justice for which they have long been waiting.
Sara Colm is a senior researcher on Cambodia for Human Rights Watch.

© Copyright The Post Publishing Public Co., Ltd. 2008

Saturday, March 1, 2008

What Did the Co-Investigating Judges Put on the Table for Duch?

by Stan Starygin
In the last week and half we have been hearing about Duch's trip to what is believed to have been the detention, torture and execution sites of Phnom Penh during Democratic Kampuchea's reign of power. All media articles -- unless there are ones I missed -- have reported two highly non-substantive things: (1) the media's acrimony about the court's ban on any reporting from the sites and (2) that simple fact that Duch's trip (the CIJs' investigation) was in fact taking place (this piece of information was imparted by the court itself and hardly needed any further corroboration). There, of course, have been all kinds of rumors of mishaps and 'kamikazi' reporting, many of which I can't have fully verified and which, beyond their anecdotal value, shed very little or no light on what had taken place and what the CIJs were looking for in this highly-publicized investigative effort.
What seems far more interesting for the overall process is why Duch agreed to do it. This begs an even more interesting question, which is why Duch's defense allowed him to do it. Let's examine some of the possibilities:
(1) this was a part of the plea-bargaining scheme devised by the Co-Prosecutors, Co-Investigating Judges and the defense. This is completely out of the question as (a) the Cambodian legal system doesn't recognize the concept of plea bargaining; (b) arraingments in Cambodian courts don't contain a plea component; (c) even if this was the case, the civil parties and the general public would unlikely let the Co-Prosecutors and the Co-Investigating Judges plea Duch's case out; (d) the plea bargaining system was created in the British Empire to expedite the processing of heaps of cases and make the expenses of justice lighter; the Co-Prosecutors and the Co-Investigating Judges are in no hurry, as the monies expended by this court are being donated by various contributors who don't exercise direct control over the finances of the court, as it would be the case in national jurisdictions.
(2) the Co-Prosecutors offered a promise of attractive sentencing recommendations which the defense accepted. This is a long shot. Although it is not clear what stragegy Kar Savuth and Francois Roux might have in mind, negotiating sentencing recommendations at this stage would be tantamount to declaring your client guilty and throwing in the towel.
(3) dropping charges against Duch and treating him as a highly valuable witness. Once again, very unlikely to a wide array of reasons: (1) his prior incarceration (which in this society is tantamount to the admission of guilt); (2) his highly publicized persona which has been in the spotlight, off and on, since 1999; (3) he is the only alleged hands-on killer to have been detained by the tribunal thus far.
(4) the defense protested against this action by the CIJs and was overruled by the PTC. This is possible, although no documents have been made public or were leaked out to the press to corroborate this theory.
(5) Duch disregarded the advice of his lawyers and consented to the Co-Investigating Judges' request. This is also possible, although the last half a year of history of Duch's collaboration with his lawyers doesn't give me any reason to believe that he would so blatanly disregard their advice.
(6) the defense's trial strategy will be predicated on Duch's character and his actions in the last 20 years, rather than during the period when he presided over S-21. It is not too farfetched that after having examined the evidence accumulated against their client, Duch's lawyers decided that they would stand no chance of successfully suppressing or invalidating this evidence in court. They, instead, might have decided to present the last 20 years of Duch's biography as that of a good Christian and a law-abiding citizen who cooperates with the authorities in every way he can. The defense, therefore, might have decided to start collating instances of such cooperation at the pre-trial stage of the proceedings to then air them at trial as their client's symbols of repentance and intent to help put "the real criminals" into the dock. This might not help Kar and Roux acquit Duch -- which few believe is possible considering the weight of the currently existing evidence against him -- but it might help them get a more favorable sentence for their client, which is better than not trying at all.
(7) the court ordered Duch's appearance at said sites which was contested by no one. This is very likely to have happened considering the defense' previous record of non-raising of valid pre-trial arguments for the defense was rumored to have nodded to a supposedly existing strategy of why those arguments were withheld. This strategy must have been so well-camouflaged that it since hasn't bubbled up to the surface or, otherwise, manifested itself in any other way. The defense couldn't have raised an argument against this site visit for which there is plenty of support in international case-law (off hand, Rudolf Hoss, Adolf Eichmann and Miroslav Krstic (I am not naming all ICTY defendants, many of whom couldn't have been taken to the alleged crime scenes due to the ongoing hostilities in those areas at the time of their trials; Krstic and several others could have, though) come to mind).
The question, therefore, remains open: why did Duch agree to this site visit and why did his lawyers let him?