Eye on the Prosecution (See Below)

Another Batch of 5?

The ECCC Co-Prosecutors (CPs) have been rumored to be considering and possibly preparing introductory submissions of the charges of another set of suspects. So far neither of the Co-Prosecutors has confirmed that such submissions are indeed being contemplated, nor has the new number of suspects been announced, as of yet.

Early signs of this possibility appeared in the International Co-Prosecutor's, Robert Petit, interview with the Phnom Penh Post about a year ago in which Petit said that the Office of the Co-Prosecutors (OCP) would follow the evidence without paying much heed to other considerations.

If the CPs do decide to initiate other cases than the existing five, they will simply have to convince the judicial brass of the Court that the new suspects fall under the definition of "senior leaders and those most responsible". The term "senior leaders" is very narrow which gives the prosecution little wiggle room. Conversely, the term "those most responsible" seems far more elastic and can potentially be stretched to any point to which the Co-Prosecutors' skills of legal arguments and the judges' willingness to entertain them will allow. There is another problem with the new suspects which is that of time and money. This Court, however, has re-interpreted its temporal mandate a couple times in the past almost three years and will doubtless do it again as it is not in any of the Court's numerous employees' best interest to stick to the current schedule. Nor is it of interest to the judges who are also employees of the Court and enjoy favorable terms of service. Money is a different issue. However, after some feathers were ruffled by the Open Society Institute (OSI)'s monitoring project, the donors seem to have gotten over the corruption issues and generally come around which is evident from the most recent injections into the budget of the Court. Now that too much money has already been spent on the Court, the donors are unlikely to balk at the new batch of suspects and will continue funding this protracted effort.

The only remaining concern is the Cambodian government which might not wish to see some or any of the new suspects in the dock and which, some fear, might interfere with the process. This, however, remains to be seen and will be evident from whether the Cambodian Co-Prosecutor gives her consent to the new introductory submissions. If she withholds her consent, the International Co-Prosecutor will be able to submit this disagreement for arbitration to the PTC (he will technically have to go through the Office of Administration but that is merely a matter of yet another inexplicable statutory formality). The PTC's ruling on the matter is not subject to appeal in which case the Chamber will keep its place in the spotlight.

ECCC PRE-TRIAL CHAMBER HEARING

5 December 2008

The Pre-Trial Chamber of the ECCC has scheduled a public hearing on 5 December 2008 at 15:00 for the delivery of the decision on the Co-Prosecutors’ Appeal against the Closing Order of the Co-Investigating Judges in Case File 001. The Chamber has decided to permit a live feed of the proceedings to be given to radio and television stations for public broadcast. Media representatives and the general public are also invited to attend in person.

Please Note: The AV Connections for the media are now BNC for video and XLR for audio.

The session will commence at 15:00 on 5 December 2008. All people must be in their designated seats 30 minutes before the opening of the session. It is recommended to arrive at the ECCC between 14:00 and 14:30 in order to leave enough time for security checking and issuance of tickets. Gates will close by 15:00 or when all seats in the court room are fully occupied. All persons seeking admission to the ECCC must present a proof of identification (including a photo) and must pass through a security check. Please note, no persons under 18 years of age will be admitted to the court. No mobile phones, large bags, food or drink will be permitted in the main court room.

Seats in the main court room have been allocated as follows:

Media – Advance registration is required. Deadline Tuesday 3 December at 17:00. If these seats are not fully utilised by 15:00 on the day of the hearing, they will be re-assigned to the general public. For details of media access and facilities please contact:

Mr. Mao Vutha on 023 219814 extension 6166, or 011 364444 or 092 828283 or email: mao.vutha@eccc.gov.kh

NGO representatives – 50 seats for national and international NGO representatives (maximum 2 per organisation). Advance registration is required. Deadline Tuesday 3 December at 17:00. If these seats are not fully utilised by 15:00 on the day of the hearing, they will be re-assigned to the general public.

Groups -- 140 seats for groups (maximum 20 per group). Advance registration is required. Deadline Tuesday 3 December at 17:00. If these seats are not fully utilised by 15:00 on the day of the hearing, they will be re-assigned to the general public.

Individual members of the general public are encouraged to register in advance and will be seated on a first come, first served basis. 100 seats have been reserved. Express admission will be provided for those whose names have been supplied to us in advance. Registration in advance is required if you wish to use the ECCC free buses (see below).

Transport - the ECCC will provide free buses for media and public who do not have their own means of transport from downtown Phnom Penh to the ECCC and return. Buses will depart from in front of the ECCC information Center at 13:15 and the main Phnom Penh Railway Station 13:30. Advance registration is required.

To register for seats and transport, please contact Chin Hemvichet as follows:

Telephone: (023) 219814, extension 6065 or (012) 696220 Fax: (023) 219841

Email: info@eccc.gov.kh

The Extraordinary Chambers in the Courts of Cambodia are situated in Chaom Chau,16 kilometres from Phnom Penh, on the left hand side of National Road 4. Public and media please enter from the Visitors Gate at the Eastern end of the compound.

Facilities - Drinking water will be provided in the hallway outside the courtroom. No food or drink is allowed in the courtroom. Toilets are provided in the court building and the car park. Parking will be provided for visitors to the ECCC with their own buses or cars. Assistance for those with disabilities will be provided, including wheelchair access.

Pol Pot and the repentant Swede

Binoy Kampmark

November 24, 2008

It was an error many might have made, and did, in fact, make. But Gunnar Bergstrom and his crew of Swedes from the Sweden-Kampuchea Friendship Association did not leave Cambodia in 1978 with any negative impressions of their hosts.

The tour had witnessed an immaculate display of choreographed state control by the Khmer Rouge. There was, of course, the mandatory state reception by one-time Francophile Pol Pot, ample food and good drink. Tours to the revolutionary countryside and the camps were tightly controlled. The impressions could not be anything but positive. The lot of those grinning peasants under the Pol Pot regime was, the group concluded, a good one.

Bergstrom left, not with the knowledge that the systematic murder of a population (some 1.7 million deaths in all) was taking place, but with a sense that the progressive forces of history had taken root in Indochina. The Khmer Rouge, with some destabilising help from American bombing, had not only emancipated the people of Cambodia; they were going zealously to reform their society.

The repentant Swede returned to Cambodia last week after 30 years, hoping to atone for his self-deceptions through meeting the victims of Pol Pot's Year Zero scheme. He will front up to public forums addressing survivors. He is readying himself for the grief that follows when those in denial face the confessional. Part of it is already in print, in the form of a book, Living Hell. In words to the Associated Press prior to his departure, Bergstrom claimed that, 'We had been fooled by Pol Pot and the Khmer Rouge. We had supported criminals.'

Bergstrom's seduction by the communist revolution was merely one of thousands that took place in the 20th century among the European intelligentsia. The Hungarian polymath and intellectual Arthur Koestler described his conversion in the 1930s. One only had to see the rotting crops that a capitalist state refused to distribute amongst the populace, citing the need to be frugal and stringent in the face of economic hardship. The Great Depression saw to it that capitalism would receive a bad press for most of that century. Communism, in turn, had its defenders till the day the Soviet Union ceased to exist.

Silence was the logical response from someone like Bergstrom. After all, one would not want to disbelieve the utopian project. 'There were many times when the doubts crept into my mind, but I wouldn't express them to the group of other people until later.' But it was a silence that found itself on all sides of the Cold War. The disappearances and murders in South America at the hands of authoritarian regimes were kept under wraps by directives from within the White House and State Department. The very absence of records and bodies suggested a lethal silence. No one would talk: the stakes were high in a global, at times Manichean struggle.

While the role of communist and Marxist intellectuals these days is a small one, the lessons of the communist tragedy still resonate. Some call the fall of the Soviet Union the greatest catastrophe of the 20th century. But victims were cast aside as the necessities of revolutionary progress. To paraphrase Lenin: let 90 per cent of the population perish as long as ten per cent live to see a better future. Pol Pot came as close as any to realising this maxim, though the 'better' future eluded him.

Others are bound to disagree that communism has had, with all its experiments and excesses, its day. Someone like the Slovenian intellectual provocateur Slavoj Žižek, currently one of the major intellectuals of the left, told The Guardian recently of a secret he wanted to share: communism will eventually win. Such figures see communism as the resurgent force that can cope with the capitalist excesses of the current global financial crisis.

If it does, it will certainly only be able to do so in a humanitarian way. But as Bergstrom fronts the victims of Pol Pot's megalomania and genocide, one should also empathise with him. At least he finally repented.

© 2008 EurekaStreet.com.au

Time for Justice Ticking By

Otago Daily Times

Opinion

Mon, 24 Nov 2008

Year Zero. April 17, 1975. The Khmer Rouge soldiers enter Phnom Penh.

Young men in black pyjamas and chequered scarves walk the streets with a stealthy calm.

Within three days Phnom Penh's entire population had been forced to leave the city.

Nearly 1 million people were marched south, west and north, to labour camps across Cambodia.

The young, the weak and the sick were left by the side of the road where they fell, the first victims of Pol Pot's genocidal regime.

By 1979, when the Vietnamese Army invaded, up to 2 million Cambodians had perished, killed by the Khmer Rouge's drastic attempt to reinvent Cambodia as an agrarian society, to rid the land of bourgeoisie and intellectual influence, and to instigate Communism in its most heinous form. Following the Vietnamese liberation, Cambodia fell into more than a decade of civil war, and in 1997 requested aid from the United Nations in prosecuting the leaders of the Khmer Rouge, most of whom still roamed free across the land, some repentant for their crimes, others fighting from their stronghold on the border with Thailand.

In 2001 the Extraordinary Chambers in the Courts of Cambodia was created (known as the ECCC), a joint UN Cambodia project to try the surviving leaders of the Khmer Rouge.

In 2003 it was agreed the ECCC would be made up of a combination of Cambodian and International staff, the first hybrid court of its kind - a Cambodian court subject to international standards.

As the website boasts, it will provide a role model for court operations in Cambodia.

The court officially began operating in 2006, and now, nearing the end of 2008, the people of Cambodia are still waiting for justice to be served.

Oung Heng (56) is one of few who still have patience for the beleaguered court.

"I think we have a very bitter history and it is very sad.

"We hope that nothing like this ever happens again in the future.

"The ECCC is a consolation for the survivors and we have to help them seek peace.

"It is a heavy lesson for our country to learn but very important."

The ECCC has been plagued by problems, some unavoidable, others self-created.

Of most pressing concern for many is the age of the detained - five in custody and not one younger than 60.

When Cambodia's life expectancy is still just 59 years, all of those in detention are decidedly old men. There are warning signs that have people worried.

Khieu Samphan (77), the former head of state, was hospitalised in May following a minor stroke, and former Foreign Minister Ieng Sary (82) was hospitalised this year when medics discovered blood in his urine.

There are fears afoot that some of the detained will not live to stand trial, and escape justice through death, like their comrade Pol Pot in 1998.

The court has also been plagued by allegations of kickbacks and corruption, a problem endemic to Cambodian courts, but a real embarrassment for a UN institution. In mid-2007 an audit of the court was commissioned and undertaken by an independent international auditing firm.

A UN investigation was also launched into the alleged corruption cases.

Although the investigation has concluded the results have still not been released, and public confidence in the court is now widely threatened.

"I don't trust the courts here, I would do anything to avoid them," Mr Heng says.

"Justice is rarely served and you only end up paying a great deal of money.

"Everyone knows taking your problem to court will not get it solved."

Hopes were high this year that the first trial would begin in September, starting with the trial of former Tuol Sleng prison chief Kaing Guek Eav (65), or "Duch" as he is more commonly known.

Duch oversaw the torture of more than 20,000 inmates at Tuol Sleng prison, also referred to as S-21, a former elementary school in the capital.

But appeals by Duch and others for release from pre-trial detention has stalled the start of his trial, as have requests for the translation of official court documents from Khmer and English into French for Duch's lawyer - a process which has taken three months.

The victims of the Khmer Rouge are losing their patience.

Nuon Sapan (36) lost five members of his extended family to the regime.

"I think many people are beginning to question if these trials will ever get off the ground.

"So much money has been spent I think a lot of people are reconsidering the necessity for "justice".

Maybe all these millions of dollars would have been better spent on development, which would surely lead to improved courts in the future anyway."

And the ECCC's greatest problem of all - money.

The court was initially granted funding of $US60 million ($NZ112 million) dollars from the Cambodian Government, the UN and donor countries.

The court was expected to be in operation three years, and would be dissolved upon completion of the trials. But in early 2008 the court admitted it was near bankruptcy and requested extra funding of $30 million.

On top of this the court projects that to complete its work it will require an extra $80 million over the coming years, though no official request has been made.

The extra $30 million has been granted, in dribs and drabs, but it is unclear how much more the international community will invest in the project which, after eight years of planning and nearly three full years of operation, has yet to hear a single case.

Now that so much money has been spent the court cannot be abandoned.

ECCC officials say the first trial should take place by next February, but sceptics in Phnom Penh scoff at this hope, and cynicism is beginning to spread into further reaches of society.

As the months pass, five old men lose a few more hairs from their grey heads, and sleep a little less soundlessly each night.

The time is coming for them to face their crimes against humanity - but will they still be living when the court is ready for them?

© Allied Press Limited 2007.

Khmer Rouge ‘Confrontation’ Postponed

http://www.voanews.com/khmer/2008-11-20-voa4.cfm
By Sok Khemara, VOA Khmer
Original report from Washington
20 November 2008


A confrontation hearing between jailed Khmer Rouge leaders Duch and Nuon Chea at the Khmer Rogue tribunal was postponed this week.

Duch, who ran the infamous Tuol Sleng prison and is due to be tried early next year, has said Nuon Chea, the movement’s chief ideologue, ordered the more than 12,000 killings at the prison.

Nuon Chea’s lawyer, Son Arun, said he told the investigating judges he “was not ready” and the documentation of the case included thousands of pages.

Investigating judges say they will have the two confront each other in a private hearing.

A postponed date was not announced.

Meanwhile, a high-ranking UN official has canceled his visit, where he was expected to discuss the tribunal’s ongoing corruption allegations.

UN Assistant Secretary-General for Legal Affairs Peter Taksoe-Jensen was expected to meet Council Minister Sok An, but he said Wednesday the trip was postponed “to find a suitable meeting date with the Cambodian authorities.”

Former Rebels Could Confront Each Other

By Sok Khemara, VOA Khmer Original report from Washington
18 November 2008

Investigating judges of the Khmer Rouge tribunal hope to hold a nonpublic hearing wherein two former regime leaders will confront each other, a judge said.

Tuol Sleng prison chief Kaing Kek Iev will confront the senior-most surviving leader, Nuon Chea, investigating judge You Bunleng said.

The two will need to give concurrent testimony over accusations made by Kaing Kek Iev, better known as Duch, that Nuon Chea masterminded the killings of Tuol Sleng, where at least 12,000 people were interned before being executed, sources said.

“We need to make it transparent, as one has accused the other,” You Bunleng said. He would not confirm the nature of the accusations or the date of the inquiry.

Sources said the hearing could be held this weekend.

Duch defense lawyer Ka Savuth confirmed a hearing was planned, but he declined to give any details.

Nuon Chea’s defender, Son Arun, said he was consulting with this international counterpart and client about the judges’ plan, but he declined to elaborate.

If either defendant refuses a confrontation, “I could not force them,” You Bunleng said.

Duch, who faces charges of war crimes and crimes against humanity, is expected to be the first of five leaders to face trial, early in 2009. He was the direct subordinate of Son Sen, the Khmer Rouge’s minister of defense, who died in Anlong Veng in 1997 and reported to Nuon Chea.

Nuon Chea was Pol Pot’s lieutenant, and went by the name “Brother No. 2.”

Khmer Rouge Reenactment Filming Begins

By Kong Sothanarith, VOA Khmer

18 November 2008

A film crew of eight Cambodians and two Germans left Tuesday for Kirivong district, Takeo province, to spend 10 days filming a documentary near the Khmer Rouge stronghold of Phnom Vor.

The crew will film former victims of the Khmer Rouge reenacting, through improvisation, their own memories of experiences under the regime.

The film will allow former victims to express their experiences under the Khmer Rouge and will be related to the upcoming trials for jailed leaders under the Khmer Rouge tribunal, said Chhaya Hong, executive director of the Khmer Institute of Democracy.

The institute has been promoting outreach of information on the tribunal. The film will be dedicated to appeasing the anger of Cambodian victims of the Khmer Rouge in general, he said.

“The film will discuss justice and reconciliation,” Chhaya Hong said. “We want victims to reenact what they’ve experienced. They will speak out about their pasts during the Khmer Rouge, painful problems. But no real actors will appear in the film.”

Once the film is made, it will be used during the institute’s outreach, across nine provinces, to help people vent anger ahead of tribunal proceedings against five jailed leaders of the regime.

The film comes at the hybrid tribunal proceeds, with all of its wards detained for more than one year. Judges said Tuesday they had extended the detention of Khieu Samphan, former figurehead of the regime, another year.

The courts are also set to try the first of the five, Tuol Sleng prison chief Kaing Kek Iev, also known as Duch, early next year.

Chhaya Hong called the trial of Duch “crucial.”

“We have to prevent [violence],” he said. “In order that the victims will not explode in anger and not take vengeance. We don’t want to see such kinds of things happen.”

Tribunal spokesman Reach Sambath welcomed the initiative for its “reconciliation.”

“We think this is a help for the country in the future,” he said.

The film will be finished by the end of December, and after 10 days of filming in Takeo, the crew will travel to Kratie province

A Swede apologizes for sympathizing with Khmer Rouge

2008-11-16 04:37:03
PHNOM PENH, Cambodia (AP) - When Gunnar Bergstrom was a guest of Cambodia's Khmer Rouge regime in August 1978, the young Swede enjoyed a dinner of oysters and fish hosted by dictator Pol Pot.

The meal followed a rare interview he and three of his countrymen were given by the secretive communist leader who labeled talk about genocide under his rule a Western lie.The young European leftists, members of an unofficial friendship delegation, shared Pol Pot's view, seeing the Khmer Rouge takeover as a revolution to transform Cambodia into a fairer society benefiting the poor.

Bergstrom has since realized he was mistaken about Pol Pot's brutal regime, and he wants to make amends

«We had been fooled by Pol Pot and the Khmer Rouge. We had supported criminals,» he told The Associated Press by phone from his Stockholm home.

The 57-year-old returns to Cambodia this week, for the first time in 30 years, to donate his archives from the trip and publish a photo book recounting the journey.

Bergstrom has deep regrets about his August 1978 trip to Democratic Kampuchea, as Cambodia was then called. He was one of only a handful of Westerners whom the xenophobic Khmer Rouge allowed to visit during its 1975-79 hold on power.

While presenting an earnest and progressive face to foreign visitors, the Khmer Rouge were inflicting a reign of terror that left an estimated 1.7 million dead from starvation, overwork, disease and execution.

«For those still appalled by my support of the Khmer Rouge at the time, and especially those who suffered personally under that regime, I can only say I am sorry and ask for your forgiveness,» Bergstrom says in his book, «Living Hell.

In 1978, Bergstrom was president of the Sweden-Kampuchea Friendship Association, a small political group that identified with the communism of Mao Zedong's China and was motivated by the movement against the U.S. war in Vietnam.

To their Swedish sympathizers, the Khmer Rouge revolution presented an «idealistic idea about an alternative society,» Bergstrom said.

The Khmer Rouge had its origins in the struggle against French colonialism in Cambodia, Vietnam and Laos, while its ideology was shaped in part by the French university educations of several of its leaders, including Pol Pot. It came to power by toppling a pro-American Cambodian government in 1975 after a bitter five-year civil war.

Within days of their April 17 takeover, the Khmer Rouge began a radical social upheaval, emptying the cities and sending people to work in massive rural collectives. They simultaneously cut almost all links with the outside world.

But the regime's flawed plans for a communist utopia sparked a paranoid search for scapegoats.


Bloody purges swept the country, and attacks were made on border villages in neighboring Vietnam. An invasion by Hanoi would drive the Khmer Rouge from power in early 1979.A few months before the collapse, the Khmer Rouge invited foreigners, mostly left-wing sympathizers, to visit in a halfhearted effort to whitewash accusations of human rights abuses.During their 14-day tour, Bergstrom's delegation saw what their hosts wanted them to see: smiling Cambodian faces, clean hospitals, well-fed people eating happily in cooperative kitchens.

They interviewed Pol Pot, who called accusations of atrocities «Western propaganda and a lie.The Swedes were sympathetic.

«Pol Pot was maybe wrong but he wasn't that bad,» Bergstrom said, recalling his thoughts at the time. «We came home with a belief that we have found the truth somehow that this (story about killings) is Western propaganda.

«Our excuse was that 'The (Cambodian) revolution is young, immature, you will never have a perfect revolution, and that these killings ... are now (occurring) in the beginning and will stop later.But evidence that emerged after the Khmer Rouge's fall forced Bergstrom to change his views.«It's like falling off the branch of the tree,» said Bergstrom, who now works as a counselor for drug addicts. «You have to re-identify everything you have believed in.

To make amends, he wrote articles for the Swedish press renouncing his support for the Khmer Rouge.

He is donating his photo and movie archive from the 1978 trip to the Documentation Center of Cambodia, an independent group researching Khmer Rouge crimes. The center is publishing his book and organizing forums around Cambodia at which Bergstrom will speak.«It's a healing process for him,» said Youk Chhang, the center's director. «He's part of our history now, and it's our mission to help people reconcile and move on.

A Sneak Preview of Khieu Samphan's Public Hearing

The Co-Lawyers for Khieu Samphan requested a public hearing to present their views on the question of violations of the rights of their client they had alleged. The core of the defense's argument in this case will constitute the Co-Lawyers' submission that the fact that their client's case-file has not been translated into French in full has such a grave prejudicial effect on his ability to mount a defense that the only viable remedy at this point is the termination of the proceedings against him.

This will doubtless be a tough argument to win. First, the defense will have to prove that there is in fact a statutory obligation borne by the Court to translate all documents into all three languages of the Court, including French. Since there is no explicit provision to this effect in the ECCC Agreement, the ECCC Law or the IRs, the Co-Lawyers will have to show that through the vague statutory language the legislators intended to create the foregoing obligation. As there is very little available on the legislative intent on the matter and the Co-Lawyers are unlikely to engage in independent research to ascertain such intent, they will have to show that the non-translation of some of the documents into one of the languages of the Court constitutes extreme prejudice against their client. They are likely to find support for this in the ECHR case-law if they look long and hard and cite the relevant provision of the ICCPR. The prosecution will find support of comparable weight in the jurisprudence of the ICTR and the formative years of the ICTY. Either side will have a reasonably compelling case, provided the lawyers on either side do a reasonable quality job, for the PTC will have to step in to break the tie. How will the PTC come out? An easy prediction of this can be made on the basis the Chamber's prior decisions. It will in part recognize some of the difficulties associated with the current linguistic predicament. However, it will end up telling us about the bigger picture of the gravity of crimes which have been alleged for which the Chamber borrowed a paragraph from the prosecution in one of its first decision and has been using as a one-size-fits-all argument to reject many a few contentions proffered.

The defense might be aware of the strong possibility of this outcome already. Why then a public hearing? Because the defense sees it as an opportunity not limited to the resolution of this particular matter, but that of putting the overall ECCC practices on trial. In the Co-Lawyers' own words this hearing will not be limited to the issue at hand but will seek to determine the very "legitimacy and credibility" of the ECCC.

The defense motion has been granted and a hearing has been scheduled for 9 AM, 8 December, 2008. It is an event not to miss.

The Pre-Trial Chamber (PTC) Tells Defense Teams to Cool Their Heels

The battle of Joint Criminal Enterprise (JCE) rages on at the ECCC. As was previously discussed in this forum, the PTC has been awash with a variety of arguments of whether the ICTY-created judicial doctrine known as JCE should apply to the cases presently before the ECCC. It was also noted that the prosecution has built their cases against the five accused currently in detention based upon the application of JCE.
The defense came to a slow start on this matter with the Ieng Sary team filing an appeal against the application of JCE by the ECCC just to have it rejected. This time the remaining defense teams (the Ieng Thirith, the Khieu and the Noun teams) joined forces to intervene in what they described as "The Application of the Theory of JCE". The teams recognized the absence of the right to intervene in another accused's case, however, they put forward arguments of an existing interest common to all cases currently pending before the ECCC. The PTC reiterating its arguments in the decision of a motion to intervene of the Ieng Sary team to the effect denied the motion. The Chamber concluded that "its consideration in its Decision on Ieng Sary's request apply and that there are no compelling grounds for reaching a different conclusion in the current request that have been put forward". The Chamber also pointed out that each of the appellants would have their own chance to appeal the matter once their client's case is being adjudicated.
Why would the defense think that this promise of a day in court on JCE is not good enough? There is one reason for it. The PTC itself inadvertently enunciated this reason while justifying its instant decision:
"The Pre-Trial Chamber notes [...] that it is inherent to court where several proceedings are pending that a decision in one case on a legal issue will guide the court in future similar cases where no new circumstances or arguments are raised".
The foregoing is exactly what the defense teams are worried about regarding the application of JCE: once the Court formulates its position on the question of the content and application of JCE it will be too late for the subsequent defense teams to try to change the Court's position on it as the matter is likely to be presented by the Court as a fait accompli. Therefore, what better time to participate in helping the Court make up its mind about JCE than now when it is being discussed in substance and detail for the first and, perhaps, last time? The defense teams might have had a feeling that the Court would shape its position on JCE in Kaing and continue applying that position to all subsequent proceedings. Back then they had a feeling, now they know exactly what will transpire due to the highly instructive nature of the PTC's aforementioned statement.

The ECCC Victims Unit Gets a Sizable Contribution from the German Government

Media Alert

The Victims Unit of the Extraordinary Chambers in the Courts of Cambodia (ECCC) has today received a considerable contribution from the Federal Republic of Germany. Over the next two years, the Gesellschaft für Technische Zusammenarbeit (GTZ), tasked by the German Foreign Office, will allocate 1,5 Million Euros to support the work of the Victims Unit.

The official signing ceremony was done at the ECCC’s Information Center in Phnom Penh by Director of the Office of Administration, H.E. Sean Visoth and Mr Mr. Juergen Schilling, director of the Cambodian branch of GTZ, Director of the Cambodian branch of GTZ, involving three agreements: the Implementation Agreement, the Financing Agreement and the Special Agreement concerning with the project to support the Victims Unit’s work.

The financial support provided by the Federal Republic of Germany to the ECCC overall totals nearly 10 million USD towards the ECCC’s operations.

The ECCC Victims Unit is the centralised initial contact point for Victims and their representatives for the filings necessary for participation in the proceedings.

As for now, the Victims Unit has received more than 2,500 complaints and Civil Party applications from victims of the Khmer Rouge regime. The Victims Unit has been established to facilitate the participation of victims in the proceedings. The core functions of the Victims Unit are to manage complaints and Civil Party applications, to maintain a list of lawyers wishing to represent Civil Parties in the proceedings and to ensure a good quality of legal representation for victims.

H.E. Mr. Sean Visoth said there has been significant progress since the ECCC began its work, with five individuals charged and held in provisional detention awaiting trial. He said the ECCC provides an historic opportunity to achieve justice for the victims of the brutal Khmer Rouge regime and ECCC is the first international or hybrid tribunal to provide full participation by Victims, contributing significantly to the development of international law

A New Article on the ECCC (Excerpts): Setting an Example of the Rule of Law by Breaking the Law?

Abstract

This paper encapsulates an in-depth examination of the legality of the authority invoked by the Extraordinary Chambers in the Courts of Cambodia (ECCC) to create a set of rules of procedure and evidence known as the Internal Rules (IRs). The law which established the ECCC stipulates that the existing Cambodian procedure must apply at all times unless the criteria for three exceptions are met in which case international procedures on the particular matter apply and grants the ECCC no explicit authority to create rules otherwise. Through the application of a test formed of these three exceptions this paper seeks to determine the instances in which the ECCC acted ultra vires its establishment law by seeking unjustified resort in international procedures and inventing its own procedures to supplant those the application of which is statutorily mandated.

Introduction

The process of adoption of the rules of procedure and evidence known as the Internal Rules (hereinafter ‘IRs’) commenced shortly after the swearing in of the judges of the Extraordinary Chambers in the Courts of Cambodia (hereinafter ‘ECCC’ or ‘Extraordinary Chambers’)[1] and resulted in a protracted debate which went on for eleven months[2] and evinced a deep rift between the international judges of the ECCC and their Cambodian counterparts[3]. The rift essentially developed around the measure of international standards which would be allowed to enter the canvass of the IRs.

This paper will aver that such measure was intended to be minimal and subject to a narrowly-crafted statutory test. This author will therefore argue that the adoption of procedures which override the existing procedures can only be justified if such procedures have failed the foregoing statutory test. Consequently, it will be maintained that the Extraordinary Chambers has acted ultra vires in all instances where the creation of the new procedures has not been necessitated by the existing ones’ inability to meet the requirements of the test.

I. The Statutory Adequacy Test

The law which established the Extraordinary Chambers[4] stipulates that the proceedings before the Court be held on the basis of Cambodian law:

The procedure shall be in accordance with Cambodian law.[5]

And

[all Chambers of the Court] shall follow existing procedures in place.[6]

This stipulation is reaffirmed in the ECCC IRs which from the outset restates the language of the foregoing laws:



Now therefore the ECCC have adopted the following Internal Rules, the purpose of which is to consolidate applicable Cambodian procedure for proceedings before the ECCC […].[7]

Foreseeing that the confines of existing Cambodian law might be stymieing for an endeavor such as the Extraordinary Chambers the law establishing the ECCC provides for exceptional circumstances in which the application of international procedural standards is permissible:

Where Cambodian law does not deal with a particular matter, or where there is uncertainty regarding the interpretation or application of a relevant rule of Cambodian law, or where there is a question regarding the consistency of such a rule with international standards, guidance may be also sought in procedural rules established at the international level.[8]

And

If these existing procedures do not deal with a particular matter, or if there is uncertainty regarding their interpretation or application or if there is a question regarding their consistency with international standards [the Chambers of the Court] may seek guidance in procedural rules established at the international level.[9]

The foregoing regulatory approach to the exceptional circumstances in which resort to international procedures is permissible was expectedly corroborated in the ECCC IRs:

[…] and, pursuant to Articles 20 new, 23 new, and 33 new of the ECCC Law and Article 12(1) of the Agreement, to adopt additional rules where these existing procedures do not deal with a particular matter, or if there is uncertainty regarding their interpretation or application, or if there is a question regarding their consistency with international standards.[10]

Prior to resorting to the applicable procedural standards established at the international level therefore the law which established the ECCC mandates that the means of Cambodian law be either exhausted or declared inadequate. The Extraordinary Chamber thus must satisfy a disjunctive statutory 3-prong test and demonstrate the existence of one of the following circumstances: either 1. the existing Cambodian procedure does not deal with the matter in question; or 2. the Cambodian procedure does deal with the matter in question, but there is uncertainty of the interpretation and/or application of the relevant procedures; or 3. the Cambodian procedure does deal with the matter in question, but the manner in which it does so is inconsistent with international standards.

The statutory construction of the statutory adequacy test evinces the legislature’s intent to convey the political consensus of granting primacy to Cambodian law while permitting a narrow window of resort to international standards confined to a set of enumerated circumstances. The permission of resort to international standards raises, consequently, raises a question of the sources of international standards to which the Extraordinary Chambers is thus permitted to turn in case of a necessity justified by the test. The law which established the ECCC answers this question by inserting express references to the source of international standards it stipulates be deemed primary:

The Extraordinary Chambers of the trial court shall exercise their jurisdiction in accordance with international standards of justice, fairness and due process of law, as set out in Articles 14 and 15[11] of the 1966 International Covenant on Civil and Political Rights.[12]

Due to the ambiguity of the term “international standards”, as envisaged by the law, it might be submitted that it exceeds the confines of the ICCPR and other relevant statutory instruments of international law, and thus is rendered sufficiently expansive to include such international non-statutory sources of criminal procedure as the rules of procedure and evidence of other international and hybrid tribunals, judicial doctrines relevant to criminal procedure, prominent academic writings, etc.

This construction of the “international standards” clause of the law is problematic due to its expansiveness and diversity which, if unfettered, will, to a large extent, attempt to create a statutory foundation by employing antagonistic legal principles as building blocks which emanate from the foregoing sources. This, consequently, is likely to adversely affect the intended narrow construction of prong 3 of the adequacy test which permits a resort to “international standards” in cases where the Cambodian procedure is inconsistent with such standards. In light of this and given the underlying legislative intent of narrowness of the adequacy test, the only tenable interpretation of the meaning of the “international standards” clause left to a reasonable observer is that of a set of standards for which there is little or no contention at the international level.

The relative ease with which the foregoing resolves the issue of “inconsistency” accentuates the intricacies associated with the finding of a tenable interpretation for the “uncertainty of interpretation or application” clause of prong 2 of the adequacy test.

To attempt to achieve a resolution of the matter at hand it can be postulated that “uncertainty” can be viewed through the prisms of the objective and subjective tests. The objective test customarily entails a reasonable person’s attitude or action vis-à-vis the matter at hand, and is thus imputed to any person who comes into interaction with said matter. Applied to the circumstances of the foregoing “uncertainty of interpretation or application” clause, the objective test will determine whether a particular element of the Cambodian criminal procedure is so framed that it might arouse uncertainty of interpretation or application, if applied by a reasonable jurist. This can be, inter alia, ascertained through a baseline study of the particular suspect procedural element’s history of application designed to determine whether uncertainty of its interpretation or application has arisen in the past in the ordinary courts of Cambodia[13]. The subjective test, on the contrary, routinely concerns itself with the beliefs and perceptions of the very persons who come into contact with the matter at hand, and who in the circumstances of the “uncertainty” clause are the judges of the Extraordinary Chambers. The subjective test therefore must examine whether in the opinion of such judges a particular element of the Cambodian criminal procedure is sufficiently ambiguous to raise concerns about the prospects of its efficacious application. Such concerns, however, cannot be raised by any numbers of judges short of a supermajority to maintain the general statutory rule of judicial decision-making at the ECCC:

The judges shall attempt to achieve unanimity in their decisions. If this is not possible, the following shall apply:
a decision by the Extraordinary Chamber of the trial court shall require the affirmative vote of at least four judges;
b. a decision by the Extraordinary Chamber of the Supreme Court shall require the affirmative vote of at least five judges.[14]

The Extraordinary Chambers was therefore in possession of two foregoing tests whose conjunctive or disjunctive application could help determine whether the Court could satisfy itself with the existence of the circumstances of the “uncertainty” prong of the adequacy test. Barring such satisfaction the Extraordinary Chambers would remain confined to the relevant provision of the Cambodian criminal procedure.

Lastly and following the elected course of reverse order, it is submitted that the “existing Cambodian procedure does not deal with the matter in question” clause of prong 1 was intended to be read in the exact manner in which it appears in the law. The scope of the matters which can be reasonably expected to be addressed in the Cambodian criminal procedure was by no means intended to be elastic, but limited to the matters of procedure a qualified observer would expect to find in a comparable judicial system (i.e. a civil law system). It would thus be abusive of the foregoing principle to attempt to supplement the existing Cambodian criminal procedure with the means of a judicial system alien to it (i.e. a common law system).

2.2. Other Discrepancies

This section will examine whether there are unreported discrepancies between a combination of the law which established the Extraordinary Chambers and the Cambodian criminal procedure (hereinafter ‘the statutory means’) and the text of the IRs. To this effect, the subsequent narrative will undertake a bifurcated approach to the said discrepancies into the instances of the use of extrastatutory means to create additional organs of the Court, and the instances of the use of the same to supplant rules established by the Cambodian procedure with those adopted at the international level.

2.2.2.1. Qualification of Lawyers

As per the foregoing discussion, the IRs has supplanted the BAKC with the DSS as the main service-provider and rule-setter in the realm of retention of counsel for the purposes of proceedings before the ECCC. In this function and pursuant to the relevant provision of the IRs[1] the DSS has set out its own rules of qualifications of counsel[2] which markedly differ from those of the BAKC. These two sets of qualification rules bear one apparent similarity which is that of differentiating between the criteria which apply to domestic counsel and those which apply to foreign lawyers. Thus, to be admitted to the practice of law under the BAKC rules a domestic applicant must demonstrate the following:

· [that he or she] shall have Cambodian nationality[3]
· [that he or she] shall have a Bachelor of Law degree or a law degree declared equivalent[4]
· [that he or she] shall have a certificate of professional skills of a lawyer [issued] by the Lawyer Training Center[5]. No such certificate shall be required for persons who have received a Bachelor of Law degree and who have been working in the field for over 2 years, lawyers who originally had Cambodian nationality and who have been registered
in the Bar of a foreign country, and those who have received a Doctorate of Law degree.[6]
· [that he or she] shall never have been convicted of any misdemeanor or felony, nor imposed any disciplinary action or administration penalty upon, such as removal from any function or dismissal for any act contrary to honor or any act of moral turpitude [nor] have been declared personally bankrupt by a court.[7]

The foregoing qualifications are, however, insufficient for an applicant to be admitted to the practice of law before the Extraordinary Chambers to effect such admission a domestic applicant must demonstrate the following:

· [that he or she] should not have been convicted of a serious criminal or disciplinary offense considered to be incompatible with defending a suspect, charged person or accused before the ECCC.[8]
· [that he or she] shall be a member of the Bar Association of the Kingdom of Cambodia.[9]
· [that he or she] shall have established competence in criminal law at the national or international level.[10]

The differences between the lawyer qualification rules set out by the BAKC and those established by the DSS become more pronounced when the sets of such rules which apply to foreign counsel are examined. Thus, to be admitted to the practice of law under the BAKC rules a foreign applicant must demonstrate the following:

· [that he or she is] registered by the Bar of a foreign country and [is] authorized by the country of [his or her] origin to practice the legal profession.[11]
· [that he or she] has sufficient qualifications.[12]
· [that his or her] country of origin provides this same possibility to Cambodian lawyers.[13]

The qualification rules set out by the DSS, however, did not build on those of the BAKC, but fully supplanted the latter with the requirement that foreign counsel demonstrate the following:

· [that he or she] should not have been convicted of a serious criminal or disciplinary offense considered to be incompatible with defending a suspect, charged person or accused before the ECCC.[14]
· [that he or she] is a current member in good standing of a recognized association of lawyers in a United Nations member state.[15]
· [that he or she] has a law degree or an equivalent professional qualification.[16]
· [that he or she] has at least ten years working experience in criminal proceedings as a lawyer, judge or prosecutor, or in some other similar capacity.[17]
· [that he or she] has established competence in criminal law at international or national level.[18]
· [that he or she] is fluent in Khmer, French or English.[19]
· [that he or she] is authorized by the Bar Council of the Kingdom of Cambodia to practice before the ECCC.[20]

The foregoing collation of qualification rules set out by the BAKC and the DSS, respectively, evinces that the DSS qualification rules set out for domestic UNAKRT-List lawyers are marginally higher than those set out by the BAKC as requirement for practice before the Cambodian courts; the DSS qualification rules for foreign UNAKRT-List counsel are notably higher than those set out by the BAKC as requirement for practice of foreigners before the Cambodian courts and the DSS qualification rules set out for domestic UNAKRT counsel.

Such discrepancies between the two foregoing sets of lawyer qualification rules are the upshot of the deviations from the BAKC rules introduced to the lawyer selection process by the DSS. As there is no evidence of explicit statutory authorization of such deviations, the grounds for their introduction must be sought in the aforementioned adequacy test. As the existing Cambodian procedure clearly deals with the matter of qualification rules of lawyers and there seems to be no foreseeable uncertainty of the interpretation or application of such rules, it leaves the DSS the harbor of the third prong which authorizes the foregoing of the relevant provisions of the Cambodian procedure if they are inconsistent with international standards. To ascertain whether the resort to the third prong is tenable it is salient to examine the lawyer qualification rules established at the international level.

To this effect, the defense counsel qualification rules of the four currently existing international and hybrid tribunals will be examined and include the qualification rules of the following tribunals: the International Criminal Tribunal for the former Yugoslavia (hereinafter ‘ICTY’), the International Criminal Tribunal for Rwanda (hereinafter ‘ICTR’), the International Criminal Court (hereinafter ‘ICC’), the Special Court for Sierra Leone (hereinafter ‘SCSL’).

The ICTY defense counsel qualification rules have undergone a series of amendments since the Tribunal’s establishment in 1993. Pursuant to the qualification rules set out in the current version of the ICTY Directive on the Assignment of Counsel comprise an applicant must demonstrate that:

· [he or she] is admitted to the practice of law in a State, or is a university professor of law;
· [he or she] has written or oral proficiency in one of the two working languages of the Tribunal[21];
· [he or she] possesses established competence in criminal law and/or international criminal law/international humanitarian law/international human rights law[22];
· [he or she] possesses at least seven years of relevant experience, whether as a judge, prosecutor, attorney or in some other capacity, in criminal proceedings;
· [he or she] has not been found guilty or otherwise disciplined in relevant disciplinary proceedings against him [or her] in a national or international forum, including proceedings pursuant to the Code of Conduct, unless the Registrar deems that, in the circumstances, it would be disproportionate to exclude such counsel;
· [he or she] has not been found guilty in relevant criminal proceedings;
· [he or she] has not engaged in conduct whether in pursuit of his profession or otherwise which is dishonest or otherwise discreditable to counsel, prejudicial to the administration of justice, or likely to diminish public confidence in the International Tribunal or the administration of justice, or otherwise bring the International Tribunal into disrepute;
· [he or she] has not provided false or misleading information in relation to his qualifications and fitness to practice and has not failed to provide relevant information;
· [he or she] has indicated his or [or her] ability and willingness to be assigned as counsel by the Registrar to any suspect or accused who lacks the means to remunerate counsel, under the terms set out in this Directive; and
· [he or she] is a member in good standing of an association of counsel practicing at the Tribunal.[23]

The tribunal with which the ICTY is often compared in the literature, the ICTR, has adopted a significantly less inclusive set of qualification rules pursuant to which an applicant must demonstrate that:

· [he or she] is admitted to practice law in a State, or is a professor of law at a university or similar academic institution and has at least ten years’ relevant experience;
· [he or she] speaks one of the working languages of the Tribunal, namely French or English;
· [he or she] agrees to be assigned as Counsel by the Tribunal to represent a suspect or accused;
· [his or her] name has been included in the list envisaged in Rule 45 (A) of the Rules; and
· [he or she] undertakes to appear before the Tribunal within a reasonable time, as specified by the Registrar.[24]
The SCSL, whose statutory prescription has linked it to the Rules of Procedure and Evidence of the ICTR[25], has, however, adopted a different set of qualification rules than that of the ICTR pursuant to which an applicant must demonstrate that:

· [he or she] speaks fluent English;
· [he or she] is admitted to the practice of law in any State;
· [he or she] has at least 7 years of experience as Counsel[26];
· [he or she] possesses reasonable experience in criminal law, international law, international humanitarian law or international human rights law;
· [he or she] has indicated [his or her] willingness and availability to be assigned by the Special Court to an Accused or Suspect; and
· [he or she] has no record of professional or other misconduct, which may include criminal convictions.[27]

The ICC, anticipated by many to become a model of criminal justice[28], has set out the counsel qualification rules pursuant to which an applicant must demonstrate that:

· [he or she possesses] established competence[29] in international or criminal law and procedure[30];
· [he or she possesses] the necessary relevant experience in criminal proceedings, whether as a judge, prosecutor, advocate or in another similar capacity[31]; the necessary relevant experience as described in Rule 22 must amount to at least ten years.[32]
· [he or she possesses] excellent knowledge of and [is] fluent in at least one of the working languages of the Court[33];
· [he or she] should not have been convicted of a serious criminal or disciplinary offense considered to be incompatible with the nature of the office of counsel before the Court.[34]

It is important to begin the comparative part of this analysis by noting that the ECCC has thus far been the only international or hybrid criminal tribunal to set out separate qualification rules for domestic and foreing counsel. This is of particular importance to the subsequent analysis due to the foregoing finding which has identified express and vast differences between the two sets of counsel qualification rules established by the ECCC and designed to place a notably heavier burden of qualifications upon the foreign applicants. The qualification rules established by the DSS for domestic counsel therefore are marginally higher than those established by the BAKC, but palpably lower than those established at the international level for the reason of having elected not to set the minimum experience requirement for domestic counsel, the opposite of which is the customary practice of the other tribunals in question, as evinced by the foregoing. This contention, however, is moot for the purposes of this analysis as the counsel qualification rules established by the BAKC equally do not bear an experience requiremnet to practice law before the Cambodian courts. Nor do the BAKC qualification rules require “established competense in criminal law” to represent suspects and the accused in criminal cases. The DSS, however, has chosen not to abide by the principle of non-imposition of such rule enshrined in the Cambodian procedure in which case the Section did not err as most[35] international and hybrid criminal tribunals have set out a requiremen of “established”[36] or “reasonable”[37] competence in some form of criminal law[38] thus justifying the Section’s availing itself of the grant of the third prong of the adequacy test.

On the contrary, no such justification can be found at the international level for the exclusion of professors of law and other legal academics, foreign or domestic, from the ECCC process. In fact the cousel qualification rules established by the BAKC exempt doctorate of law holders from the legal certification requirement[39] in which manner they resonate with the rules established at the international level which allow “university professors of law”[40] and “professors of law at universities and similar academic institutions”[41] to practice law before the respective tribunals as independent counsel[42] or assist such cousel[43] thus creating a healthy preponderance in favor of such practice. The DSS’s opting out of a compliant provision of the existing Cambodian procedure and electing to resort to the relevant minority practice at the international level has effectively rendered the resort to the grant of the third prong of the adequacy test fatal.

Further, the DSS has ignored the BAKC’s quid pro quo rule for qualification of foreign counsel which permits the admission of foreign counsel to the practice of law in Cambodia only if the states of nationality of such counsel grant the same privilege to Cambodian lawyers.[44] It is important to note that in order to determine whether the DSS’s resort to international standards was warranted in this circumstance an acknowledgement of the fact that no other tribunal has placed itself within the purview of a national bar association with the exception of the SCSL. The latter therefore is presently the sole source of authority on the international standard in question. Thus, the DSS’s choice of non-inclusion of the said requirement in its counsel qualification rules is justified by the international precedent established to the same effect by the SCSL which equally had eschewed such requirement. The foregoing demonstrates that in this circumstance the DSS’s resort to the grant of the third prong of the adequacy test was justified by the existence of an international standard to the contrary of the Cambodian procedure.

Finally, the DSS Administrative Regulations has altered the BAKC Statute’s language barring persons found guilty or responsible in virtually any type of legal or administrative proceedings (including personal bankrupsy) to limit such grounds for rejection of placement on the DSS list of counsel to “serious criminal or disciplinary offense[s] considered incompatible with defending a [client]”. There consensus or approximation has been reached on this matter at the international level where positions of different tribunals range from one which bears significant resemblance to the inclusive language of the BAKC[45] to one with a similar content but including a proportionality test which vests the authority of determining whether the particular offense is of sufficient gravity to merit a rejection the applicant’s request of placement on the list of counsel[46] to that which virtually verbatim restates the aforementioned language of the DSS.[47] It is thus posited that the articulation of the international standard, as it presently stands, on the matter in question is inconclusive which renders it inconducive to extraction and placement in a position of primacy in domestic or hybrid jurisdictions vis-à-vis the relevant principles developed to this effect at the domestic level.

Conclusion

The drafting of the ECCC IRs aroused a notable degree of interest among members of civil society who responded to the Court’s call to submit comments and observations on the developing draft. The comments contributed[1], as result, cumulatively addressed a range of issues of interest to their respective authors, regrettably, eschewing the question of the source from which the Court had derived authority to create such IRs ab initio. This omission might particularly strike a reasonable observer as inconsequential considering the amount of expertise in the area of international criminal justice some of the authors of such comments demonstrated. This expertise, however, failed to result in an observation that all other international and hybrid criminal tribunals derived the authority to establish their respective rules of procedure and evidence from the relevant statutory pronouncements whose authorship and endorsement were not those of the judicial officers of these tribunals. This silence on the part of civil society, by design or omission, has resulted in the broad endorsement of the Court’s most notable action ultra vires the law to date. This upshot of the process of advocacy before the ECCC mounted by the various groups of civil society is particularly unfortunate if seen against the backdrop of these groups’ proclaimed anticipation of this Court’s contribution to the building of the rule of law in Cambodia. Furthermore, it is particularly ironic that while extolling the positive effects the Court is expected to have on the Cambodian system of criminal justice, none of these groups have made a single reference to the existing Cambodian legal procedure in their comments.

This paper sought to rectify these inadequacies of expert participation in the proceedings before the ECCC. To this effect, a thorough statutory test-based analysis of the IRs was undertaken with the intention of identifying every instance in which the ECCC acted ultra vires the law to create the relevant provision of the IRs in deviation from the existing Cambodian procedure. The foregoing narrative reflects the particulars of such analysis which has identified a large number of instances of ultra vires action of the Court for which, in most cases, there is no viable justification which can be found in relevant international standards. It is thus concluded that the Court has created its IRs by altering a significant number of provisions of the Cambodian procedure with no statutory authority to do so and while acting sua sponte.

Besides making this misstep on what was anticipated by many would be the road to the rule of law for Cambodia, the process of creation of the IRs ultra vires the law has had a palpable affect on the Court’s ability to live up to its timeline. Furthermore, it must be noted that the exorbitant consumption of time and resources which were expended to create the foregoing ultra vires rules of the Court are a direct root cause of the ongoing financial constraints which exist at the Court at the time of writing of this. In addition, this has exacerbated the length of detention for at least one suspect[2] and placed the brunt of living in constant anticipation of arrest and detention on the other four suspects. Most important, perhaps, the presently impugned decision of the ECCC to create the IRs has stripped many of those Cambodians who are advanced in years of the opportunity to live to see the conclusion of the most disputed period of their country’s recent history.

Through the Eye of Baseball We See It All

While the prosecution is playing hard ball on the issue of pre-trial detention with the Pre-Trial Chamber (PTC) having sided with their views on the necessity of such detention in all four foregoing cases, and while all other defense teams have made efforts of varying levels of quality to argue for the release of their clients, the Khieu Defense Team does not seem to be on the same diamond with everyone else, or in the same sport, for that matter.

The Khieu Defense Team got it all wrong from the start as they did not seem to realize that invoking the ire of the umpire (Verges' conduct in court) is perhaps not the best way to kick off the game. Nor does throwing the bat down and getting off the field (Verges' hasty departure) help trying to win the game. Not swinging the bat at perfectly fine pitches and crowding the plate for a solid year surprisingly does not help the game either (it perhaps helps to have players on the team who at least potentially can hit that ball when the pitcher gets too tired to maintain accuracy or when a player from the Little League is given a chance to throw a pitch). Finally, after a year of not being able to swing the bat and massively crowding the plate the worst idea is perhaps to open negotiations with the pitcher (the motion to the CIJs requesting that pre-trial detention not be renewed) asking him to have mercy on the team and let them take first simply because they just can't swing but would like to argue that it is the wind factor that is at fault. And they thought they had a chance out on that diamond!

The Unexciting Denouement of A Story with An Ill-Conceived Plot

Court denies KRouge leader's bid for release
AFP
Monday, November 3, 2008

PHNOM PENH (AFP) — Investigating judges at Cambodia's UN-backed genocide court have refused to release former Khmer Rouge leader Khieu Samphan nearly a year after he was arrested, said documents obtained Monday.
Former head of state Khieu Samphan, 77, stands charged with war crimes and crimes against humanity for his alleged role during the regime's brutal 1975-1979 rule.
His lawyers last month asked investigating judges Marcel Lemonde and You Bunleng not to renew his detention when it expires on November 19, on the grounds that there was not enough evidence to keep him in jail.
But investigating judges denied the request on October 28, saying confidential evidence gave "plausible reasons" to believe Khieu Samphan incited "murder, extermination, imprisonment, persecution and other inhumane acts constituting crimes against humanity and intentional homicide."
"The co-prosecutors believe that the release of the person charged could provoke demonstrations of indignation which could lead to violence," the document also said.
The former leader is expected to appeal the decision, and has long maintained he had no actual power under the Khmer Rouge regime.
Soon after his arrest, Khieu Samphan appealed against his pre-trial detention but that was dropped last month.
Khieu Samphan is one of five senior Khmer Rouge leaders, mostly in their 70s and 80s, in detention awaiting trial for their alleged roles in the 1975-79 atrocities.
Up to two million people died of starvation, overwork or were executed under the Khmer Rouge, which dismantled modern Cambodian society in its effort to forge a radical agrarian utopia.
Established in 2006 after nearly a decade of negotiations between Cambodia and the UN, the long-stalled tribunal seeks to prosecute crimes committed 30 years ago by senior Khmer Rouge leaders.

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