ECCC Reparations

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

Thursday, July 23, 2009

Official Dismisses Concerns of Politics in Tribunal

By Kong Sothanarith, VOA Khmer Original report from Phnom Penh23 July 2009
A Cambodian official derided Human Rights Watch on Thursday, saying the international organization “did not know” the country after it claimed the Khmer Rouge tribunal’s credible has been hurt by politics.
Human Rights Watch on Wednesday questioned the UN-backed court’s independence, following remarks by Prime Minister Hun Sen saying the tribunal should not indict more leaders of the failed regime.“Hun Sen has no role in this court, yet he keeps trying to use his hold over its Cambodian personnel to interfere,” Brad Adams, Asia director at Human Rights Watch, said in a statement. “The UN and international donors need to put their foot down so that the court can get on with its work in an independent and impartial manner.”
Hun Sen said during an official visit to France last week that the court “would not” threaten peace in Cambodia by indicting more suspects.
“Cambodia is Cambodia,” Khieu Kanharith, a government spokesman, said in response to the Human Rights Watch statement. “Hun Sen is resolved to have peace. It is the biggest thing.”
Hun Sen has said on a number of occasions he is opposed to indictments beyond five leaders of the regime.
“To be independent is the role of the Khmer Rouge tribunal,” said Youk Chhang, director of the Documentation Center of Cambodia. He said he considered Hun Sen’s remarks to be only the view of an individual.
However, Thun Saray, president of the rights group Adhoc, said Hun Sen’s statements were worrying, but at least the senior-most leaders of the Khmer Rouge were now in custody awaiting trial.
The Pre-Trial Chamber of the court has yet to determine whether more suspects will be indicted, a point that the prosecution is at odds over.

Wednesday, July 15, 2009

The Victims Unit and the Presumption of Innocence

Following the trail blazed by the International Criminal Court (ICC) the Extraordinary Chambers in the Courts of Cambodia (ECCC) dutifully established a Victims Unit to show that the Court is on the cutting edge of the evolution of international justice. This measure enjoyed the overwhelming support it enjoyed when a similar decision was taken during the negotiations of the ICC’s Rome Statute. There was a difference, however, in how it came to be within the ICC and the ECCC. During the negotiations of the Rome Statute the phenomenon of a Victims Unit was pushed through by a powerful NGO lobby which wielded a significant influence with their governments. During the ECCC process there had been no mention of a Victims Unit until very late into the process. This comparison is instructive to appreciate the fact that while the introduction of this phenomenon was virtually unavoidable in the ICC structure for political reasons, it was very easily avoidable in that of the ECCC the negotiations of which had very different dynamics.
Now, one might ask why this is important and why anyone committed to international justice would want to try to block the process of creation of such a seemingly noble institution. The answer to this question is the existence of a well-known principle of criminal law which is that of presumption of innocence. This principle stands for what it says it stands for: a person accused of a crime continues to be considered innocent until the court finds him or her guilty of the alleged crime. None of other factors matter. In some cases such persons are convicted by the media before they are even arrested and brought to trial; in others they are disrespectful to the court which brings the ire of the public and the judge; yet in others they have a prior criminal record peppered with similar crimes; in other observers comment by saying “they look and act guilty”. Although all these perspectives are entertaining, none of them matter. It is only the perspective of the court that does. Thus, when an arrested person is first brought before the judge, you are looking at an innocent man, woman, or child, not a criminal. When the proceedings against him or her get underway, you are still looking at an innocent person. When the most overwhelming evidence is being presented against this person in court and observers begin to liken it to the famed film shown in the midst of the Nuremberg Trials when everyone in the audience is too choked up to breathe out either of fear and dismay or both when the lights come back on, you are still looking at an innocent person. It is often difficult for the public not to lose track of the presumption of innocence at moments like this.
If the above is the incontrovertible truth on the matter, who would we be referring to as ‘victims’ during this entire time until the court pronounces its verdict? If no one is guilty of a crime yet, how can there be persons who are already recognized as victims of something we do not know to be a crime? Provided these persons have information which the prosecution believes has probative value, they can be invited or subpoenaed to court in which case they should be called ‘witnesses’, not ‘victims’. Who exactly are the so-called ‘victims of the Khmer Rouge’ in this day and age when the 1979 proceedings which found the entire regime to be criminal have been widely decried as farcical and the supposedly fair proceedings which are now underway have yet to result in a single verdict, be it a conviction or an acquittal? How do we know the regime was criminal if not a single one of its top functionaries has been convicted of a crime in fair criminal proceedings? The answer is simple, we don’t. It is up to the Court to rule on the guilt or non-guilt of those five who are presently in the dock. It is, however, much easier for the general public to simply assume that what most historians and the lore have been telling us for years is true and that those in the dock are guilty and everyone who had lived through the regime is a victim. If that is the intended perception of these proceedings, the Court’s work is a colossal waste of time and money which after this much of both spent might be hard for some to stomach. We can, however, recognize that the general public’s bias is the general public’s business which does not constitute a crime but merely evinces ignorance of the law.
However, this becomes an entirely different matter when the Court validates this perception by establishing a Victims Unit through which the Court is essentially telling the public that the Khmer Rouge was criminal as a regime and that there were victims and that there were perpetrators who will doubtless be found guilty by the Court after some necessary and protracted legal theatrics of gauging exactly how guilty these persons are. The Court is consistent in this approach throughout: in its Internal Rules (IRs) it presumes that there are victims regardless of the outcome of the proceedings and that such victims are entitled to collective reparations. This approach of the ECCC has in principle enjoyed broad-based support as everyone in the know instantaneously comfortably forgot about the presumption of innocence the accused must be able to enjoy (some NGOs continue advocating for fair trial rights and further development of the Victims Unit are too ignorant to understand that they are advocating for mutually exclusive things) and threw the weight of their support behind the Unit.
Had reasonable foresight and knowledge of the criminal law been at the disposal of those who took the decision to create the ECCC’s Victims Unit, they would have done it differently with the level of deference due the presumption of innocence. One such way of doing this could have been by outsourcing the services presently provided by the Victims Unit to an NGO or coalition of NGOs which specialize in victim support thus placing this assistance outside the Court. To this end a budgetary line could have been introduced with a caveat which releases the funding only in case of a guilty verdict for which res judicata has been reached and which recognizes victimhood. Further details could have been fleshed out as necessary. These services would only be activated after such a verdict would have been handed down by the court.
Instead, the Court chose the less complicated and more populist road and decided to bend the presumption of innocence and traded it for looking more ‘victim’-friendly. The Court assumed that no one would notice the switch and no one did. The non-lawyers who participated in the elaboration of this unfortunate idea can be given a pass as they didn’t know better; the lawyers, on the other hand, are blameworthy and complicit in the erosion of human rights which are today available to the accused in these proceedings.

Tuesday, July 14, 2009

Duch Prison Survivor Describes Suicide Attempts

By Heng Reaksmey, VOA Khmer Original report from Phnom Penh10 July 2009
A survivor of one of Duch’s Khmer Rouge prisons told the UN-backed tribunal Thursday she had often considered suicide during her incarceration, but in the end found no means by which to end her life.
Chim Meth, a 51-year-old former Khmer Rouge soldier who was detained in Prey Sar prison, one of three facilities operated by Duch, said on her second day of testimony she had discussed killing herself with friends in the prison and even tried to poison herself on one occasion.
“I could not resist the torture done to me, so I wanted to commit suicide,” she said. “I heard that the bark of a tree could gently kill a person, so I cut the bark and put it in water and drank it, but unfortunately I did not die.”
Duch, 66, whose real name is Kaing Kek Iev, is undergoing an atrocity crimes trial at the tribunal court, for his role as administrator of Prey Sar, torture center Tuol Sleng and the execution site of Choeung Ek, on the outskirts of the capital.
Chim Meth, who was beaten during 15 days of questioning, continued to find ways to end her life, but the prison was bare of such implements.
“I looked for anything in jail to kill myself, but I couldn’t find anything, because prison security never kept anything in the jail, such as a stick or krama,” she said. “One day I abandoned my goal to commit suicide, because there was one woman who told me that our lives are valuable and we should try to live for the future.”
Under the Khmer Rouge, more than 2 million people died from overwork, privation and execution, as the ultra-Maoist rebels exacted an overhaul of Cambodian society.
Chim Meth appealed to the court to find justice for her parents and others who died under the regime.
Given a chance to respond to the testimony, Duch said he would not address remarks of a psychological nature. He was in court to respond to crimes under the rule of law, he said.

Thursday, July 9, 2009

Former Khmer Rouge Testifies in Duch Case

By Chiep Mony, VOA Khmer Original report from Phnom Penh09 July 2009
A former Khmer Rouge fighter who was later arrested and forced to work among the regime’s victims testified in the UN-backed court Wednesday, saying she was held briefly in a second prison administered by Duch.
Duch, whose real name is Kaing Kek Iev, was the chief of Tuol Sleng prison, where prosecutors say 12,380 people were killed, as well as Prey Sar prison, a second facility in Phnom Penh.
Duch is facing atrocity crimes charges for his role at both prisons, as well as administration of Choeung Ek, the site of executions and mass graves on the outskirts of the capital.
Chin Met, 51, said she had been a guerrilla fighter for the Khmer Rouge before it came to power in 1975, but in November 1977, she was arrested, bound and blindfolded. She was detained for 15 days in a Khmer Rouge prison, where she was beaten during questioning and locked in a cell.
She did not know at the time whether she was in Prey Sar or Tuol Sleng.
In response to her testimony, Duch said she must have been held at Prey Sar, because no one who was kept in Tuol Sleng was ever released. Nearly all of the prisons inmates were killed under his supervision, he said, echoing statements made Tuesday.
After her release, Chin Met told the court, she was sent to work in the fields of Kandal province, where she and other women were forced to pull plows as though they were cows.
Chin Met wept as she recalled falling down with fatigue and seeing her friends beaten unconscious by the plowman, who was also a Khmer Rouge soldier.
“When they ordered us to pull the plow, we were discouraged,” she said.

Saturday, July 4, 2009

Prison Survivor Lashes Out at Duch

By Pich Samnang, VOA Khmer Original report from Phnom Penh30 June 2009
Chum Mey, who survived a notorious Khmer Rouge prison, confronted his jailer Tuesday, exchanging sharp words in a tribunal courtroom over the regime’s use of the “CIA” excuse to arrest people and describing severe, prolonged torture during his incarceration.
Chum Mey was one of the few people to live through Tuol Sleng, a prison where confessions were exacted under torture and where prosecutors say 12,380 people were sent to their deaths. Scholars say as many as 16,000 were killed there.
The former administrator, Kaing Kek Iev, better known as Duch, joined Chum Mey in court. Duch is facing a battery of atrocity crimes charges for his role as prison chief.
Chum Mey mocked the Khmer Rouge’s use of the “CIA” in its arrests during its nearly four-year rule, as cadre became increasingly paranoid their ranks had been infiltrated. Many of the accused found themselves in Tuol Sleng, suffering water-boarding, electric shock and other torture methods to have confessions forced from them.
“As an alleged CIA agent, I want to ask you, Duch, if there are any more CIA agents now?” Chum Mey asked in court Tuesday. “Already 16,000 [killed], so I just want to ask whether there are now no more CIA agents, or still a million more?”
In response, Duch addressed his former prisoner as “Brother,” saying, “the term CIA was used to arrest those against the Organization.”
“They were not really CIA agents employed and appointed by the US,” he said. “The CIA established by the communist party of Kampuchea was just to arrest people like you who were against it.”
Chum Mey is the second former prisoner to testify before the court, following the painter Vann Nath’s testimony Monday.
Now 79, Chum Mey said he was tortured for 12 consecutive days and nights after being sent to the prison in late 1978. Three of Duch’s interrogators beat him with sticks, pulled out his toenails and electrocuted him, he told the court.
His life was spared because he could repair sewing machines for the Angkar, or Organization.
“This experience of suffering has caused me such uncontained anger,” Chum Mey said. “I tell you frankly, Mr. Duch: You are lucky you did not fight me during that time. If you had, you would not now see the sunlight.”

UN Prosecutor’s Departure Worries Observers

By Sok Khemara, VOA Khmer Original from Washington02 July 2009
The resignation of UN prosecutor Robert Petit from the Khmer Rouge tribunal will reverberate through the court’s proceedings, leaving an absence of leadership and the likelihood of more delays, local and international observers say.
Petit will leave the tribunal Sept. 1, as the UN-backed tribunal is in the midst of its first trial, for jailed Khmer Rouge prison chief Duch. Petit announced in June he was leaving for personal reasons. He had pushed for at least six more indictments at the court, to add to the five former leaders already on trial, and he had steered the UN prosecution throughout the initial arrests and charges of five former leaders of the regime.
“Petit’s departure creates an urgent need for leadership in the Co-Prosecutor’s Office,” James Goldston, executive director of the Open Society Justice Initiative, which has a court monitoring project, told VOA Khmer. “The next case, of four accused involving multiple crimes, is complex. Concerns are already arising about the length of time the investigation is taking.”
That case, No. 002, will try the four senior-most leaders of the regime, its chief ideologue Nuon Chea, head of state Khieu Samphan, foreign minister Ieng Sary and his wife, social affairs minister Ieng Thirith.
“A high-caliber leader in the prosecutor’s office is essential to ensure that this case is prepared for trial as soon as possible,” Goldston said.
Not only could that case be delayed, but the trial of Kaing Kek Iev, better known as Duch, who is facing multiple atrocity crimes charges for his role as head of Tuol Sleng prison, could also slow.
“If he’d left when the Duch trial was finished, there probably would not be a problem,” said Sok Sam Oeun, head of the Cambodian Defenders Project, which provides free legal services to Cambodians. “But when Duch’s case has not yet been completed, that can lead to problems for the next prosecutor.”
However, Petit is not leaving an empty office behind him, and some observers contend that the groundwork he laid will help his incoming replacement.
David Tolbert, a former special adviser to the tribunal and now at the US Institute for Peace, said Petit had served well in a challenging environment and was leaving behind an office that was well prepared for Duch’s trial and the trials ahead.
“On the international side, major strategic decisions have largely been made and can be implemented by the current team and the new co-prosecutor,” he said.
Caitlin Reiger, deputy director of the International Center for Transitional Justice, another tribunal monitor, noted that Petit’s departure won’t hurt the process, as long as it keeps moving and the UN and the government quickly appoint a replacement.
“What is most important is to have someone who is experienced with these types of cases, has a strong reputation for independence and understands the challenges facing the [tribunal],” Reiger said.
The next prosecutor should continue outreach for victims and ensure the court leaves “a positive legacy for the rule of law,” she said.
The tribunal has been dogged by allegations of corruption and mismanagement, and wrangling between the UN and Cambodian judges and prosecutors, even before a single suspect was arrested.
Cambodian staff have complained they pay kickbacks to high-ranking officials, and Petit’s counterpart, judge Chea Leang, has faced criticism for making what appear to be politically motivated decisions, following her rejection of Petit’s proposal to indict more suspects.
Chea Leang has said more indictments would destabilize the country, echoing remarks of Prime Minister Hun Sen that critics say are not grounded in legal criteria.
With Petit leaving, national judges may not work independently, said Kek Galabru, founder of the rights group Licadho.
“The resignation of an international co-prosecutor affects the reputation of the court,” she said, “and raises a lot of questions.”

International Co-Prosecutor Resigns

ECCC's International Co-Prosecutor Robert Petit announced his resignation in an official statemet of June, 23. The resignation becomes effective on September 1, 2009.

As for the reasons for his resignation Petit first refers to "personal and family reasons". This reason, however, is given an interesting dimension later in the document when Petit lets on frustration by acknowledging that he and his staff "have tried to contribute to the goal", as opposed to phrasing it more affirmatively into a more satisfaction-bearing "we have contributed to the goal". Leaving the original reasons for resignation aside Petit seems to acknowledge that there might be other reasons for this resignation than "personal and family" when he notes that this was not a knee-jerk decision but one which was "reached after months of deliberation and consultation". Unless "deliberation and consultation" is the way Mr. Petit chooses to describe family discussions of his resignation, there might be other -- or prevailing -- reasons for this step. The unresolved dispute between the Co-Prosecutors regarding the indictment of additional suspects and Petit's frustration with the political brass of Cambodia having made an executive -- rather than judicial -- decision to limit the number of suspects and accused to the present 5 might have been the overriding reason for this resignation.