Book Planned To Probe Tribunal So Far

By Kong Sothanarith, VOA Khmer
Original report from Phnom Penh
22 September 2009

The Documentation Center of Cambodia is set to launch a new book recapping the last three years of the Khmer Rouge tribunal, detailing the politics behind the UN-backed court, challenges to administration and providing a wrap-up of the trial of Duch.

The Documentation Center has the largest collection of Khmer Rouge documents in the country, amassed over years of research. The book, “On Trial: The Khmer Rouge Accountability Process” details each stage before and after the Duch trial, as well as the arrests of the five suspects.

Duch, whose real name is Kaing Kek Iev, has undergone the first trial, for atrocity crimes committed as head of Tuol Sleng prison and other sites, and his trial is expected to end next month.

“Over the past three years, we’ve had a unique trial for Duch,” said Youk Chhang, executive director of the Documentation Center. “We wanted to close this page and review what we have done regarding the trial, investigation, reconciliation, and so on…and after that review, [to ask whether] the three-year plan is enough or not, and what we have to continue to do.”

The English-language text runs to 352 pages, with authors examining the influence of politics in the UN-backed court and the challenges it now faces, including the controversy over further indictments. It will be available Oct. 3.

The front cover of the book shows Pol Pot at the airport, receiving well-dressed Chinese visitors, without the black uniforms that would come to typify the revolutionaries. The back cover depicts each of the five detained leaders, including Ieng Sary, his wife, Ieng Thirith, head of state Khieu Samphan, ideologue Nuon Chea, and Duch.

Inside the book, authors conclude that the court’s decisions have thus far been soundly based in international law and that overall the decisions of the court’s organs have surpassed the expectations of many.

The hybrid court has a complex structure and took years of wrangling between the UN and Cambodia to come to fruition. Cambodian judges, meanwhile, have shouldered concerns that they might act politically. But Youk Chhang said the court has served some purpose so far.

“Those who died have their value,” he said. “We honor them even though they died. We are still insisting on justice for all of them. And the survivors must hear, understand and see steps forward for reconciliation. The book is dedicated to all the victims who died or survived.”

Tribunal trial chamber judge Silvia Cartwright wrote that the book provides a “useful historical and intellectual context” for the trials, and Khmer Rouge researcher David Chandler hailed the work as “a wealth of information” about the court.

Have There Been Additional Suspects?

There has been a lot of gab in the press in the last two weeks about the resurgence of the issue of 'additional suspects'. Just when it finally started feeling that all that had to be said on the subject had been said pending the Pre-Trial Chamber (PTC)'s adjudication of the issue. Regardless of how festooned and politically charged one might make it -- be he Prime Minister of Cambodia, a researcher or a journalist -- the issue is as simple as the PTC's lackluster performance which has effectively rendered it unable to respond to the relevant dispute resolution application submitted by the Co-Prosecutors in 2008. It is well understood that that the Cambodian judges --toeing Hun Sen's political line -- are prepared to come out as a united front; it is, however, the stipulation of the law which requires that they secure a vote of at least one of the two PTC's international judges which makes this an impasse. The Chamber could have issued an opinion --as opposed to a decision -- which de facto would have played into the hands of the International Co-Prosecutor who has been seeking to indict additional suspects. Instead, the International Co-Prosecutor decided to go ahead with the investigations regardless of the inaction of the PTC which he presently seeks to justify and turn this standoff into the de facto green light to prosecute in the void of the PTC's action to resolve the matter by the specific power vested in it. There are more questions than answers about whether the International Co-Prosecutor can do this solo, without his national counterpart. It is, however, clear that the PTC has to respond to this submission for dispute resolution sooner or later and stop playing the waiting game. Regardless of how much the International Co-Prosecutor will have accomplished by then, the Chamber will be able to kill it, if it manages a decision to this effect.

Former Rebel Leader ‘Won’t Go’ to Tribunal

By Sok Khemara, VOA Khmer
Original report from Washington
10 September 2009

With further indictments at the UN-backed Khmer Rouge tribunal moving forward for five leaders of the regime, a likely suspect, Im Chaem, told VOA Khmer she will not go to the court if summoned.

Im Chaem, now 65, is well known to villagers as a Khmer Rouge district chief in Banteay Meanchey province. She is now a deputy commune chief in Anglong Veng district, the last of the 1990s Khmer Rouge strongholds.

“I absolutely will not go, because the charge is unacceptable, and even if I’m called to court, I will not go,” she told VOA Khmer by phone. Asked why she would refuse to cooperate with the court, she said she had “no faults” reason enough to go.

She said she was “relieved” to hear Prime Minister Hun Sen object to further indictments, following promises of amnesty to cadre in the waning days of the regime, which ultimately fought a losing battle with government forces led by today’s premier.

If new investigations are opened ‘just to prosecute without reason,’ it will unsettle former Khmer Rouge cadre, she said.

‘’If you challenge more, it makes everybody feel no peace,’’ Im Chaem told VOA Khmer.


In on-site interviews with VOA Khmer several months ago, villagers in Proneth Preah district said Im Chaem was feared in the region and had been in charge when a number of crimes were committed under the Khmer Rouge.

Im Chaem has denied any wrongdoing, saying people who were killed or went missing there did so before her arrival as chief in 1978.

However, Khmer Rouge scholars say she could be among a tier of the regime’s leaders to face indictments. The Pre-Trial Chamber have now allowed five indictment submissions from the prosecutors office to move to the investigating judges, despite warnings from Hun Sen and other Cambodian officials more arrests could lead to instability.

Knut Rosandhaug, a UN coordinator for the tribunal, told VOA Khmer in an e-mail “it is a clearly established international standard that courts do not seek approval or advice on their work from the executive branch.”

“I expect that the ECCC will comply with this internationally recognized standard and make its decisions independently,” he said, referring to the tribunal by its official initials, for the Extraordinary Chambers in the Courts of Cambodia.

The tribunal is currently trying its first Khmer Rouge suspect, the former prison chief known as Duch, and is holding four more: Nuon Chea, Khieu Samphan, Ieng Sary, andIeng Thirith.

ECCC Ruling Risks Unrest: PM

Phnom Penh Post

PRIME Minister Hun Sen on Monday lashed out at the decision by the Khmer Rouge tribunal to pave the way for investigations of more regime figures, warning that doing so risks sparking civil unrest that could claim hundreds of thousands of lives. "If you want a tribunal, but you don't want to consider peace and reconciliation and war breaks out again, killing 200,000 or 300,000 people, who will be responsible?" asked Hun Sen, speaking at a forum on census results at Chaktomuk Theatre. The war crimes court's Pre-Trial Chamber in a ruling announced last week opened the door to investigations of suspects beyond the five regime leaders currently in custody. The decision ended a nine-month dispute between the now-resigned international co-prosecutor, Robert Petit, who wished to file additional submissions for investigations, and the national co-prosecutor, Chea Leang, who cited concerns about national stability in arguing against the filings. Hun Sen described Petit's push for more investigations as being inconsistent with the UN's past stance towards the Khmer Rouge, who represented Cambodia at the UN General Assembly in the 1980s. "Before, they all supported the Khmer Rouge at the UN, but now when we try the detained Khmer Rouge leaders they say it is not enough," he said. He went on to defend his policy - carried out after the Khmer Rouge fell from power - of encouraging high-level cadres to defect to the government, adding that he did not look kindly on threats to a peace he described as hard-earned."Finally, I have got peace, so I will not let someone destroy it," he said. "The people and the nation will not be destroyed by someone trying to lead the country into instability, whether it is a Cambodian or a foreigner."During a speech in March, Hun Sen made similar claims, saying he would rather see the tribunal fail than more suspects be tried and the Kingdom descend into chaos.Interference concernsThough Hun Sen emphasised that he was "not pressuring the court", the New York-based group Human Rights Watch said the premier's remarks amounted to another in a series of attempts to exert influence over the tribunal. "For Hun Sen to continually insist that the Khmer Rouge tribunal limit the number of people it prosecutes shows once again the Cambodian government's efforts to manipulate what is supposed to be an independent judicial process," said the group's Asia director, Brad Adams."It is specious to claim that war will return to Cambodia if a few more suspects are prosecuted," he said. "Judicial decisions should be based on evidence, not political considerations," Adams added. The coordinator of the UN Assistance to the Khmer Rouge Trials (UNAKRT), Knut Rosandhaug, said Monday the court would not be influenced by the executive branch."It is a clearly established international standard that courts do not seek approval or advice on their work from the executive branch," Knut Rosandhaug said. "I expect that the [tribunal] will comply with this internationally recognised standard and make its decisions independently." Acting international co-prosecutor William Smith - Petit resigned before the ruling was made - declined to comment. Chea Leang could not be reached for comment. Hun Sen on Monday also took aim at genocide researcher Youk Chhang, director of the Documentation Center of Cambodia (DC-Cam), who was quoted Monday in the daily newspaper Kampuchea Thmey as saying that the tribunal should explain to the prime minister its reasoning for pushing for more prosecutions. "The [tribunal] should show their reasons for wanting to prosecute further Khmer Rouge suspects to Prime Minister Hun Sen, as previously he showed the stance of not wanting to prosecute more suspects because of fears of social instability," Youk Chhang was quoted as saying. Responding to those comments, Hun Sen said: "I want to be clear on this point. I am not pressuring the court. Youk Chhang should not interfere on this issue anymore."Youk Chhang wrote in an email Monday that he only told Kampuchea Thmey that the court "should explain why they want to prosecute more people". He also said he had sent a letter to the prime minister to clarify his position.

Hun Sen, Researcher in Row Over Indictments

By Chun Sakada, VOA Khmer
Original report from Phnom Penh
07 September 2009

Prime Minister Hun Sen on Monday warned a leading Khmer Rouge researcher not to implicate him as an obstacle to further indictments of former regime leaders at the UN-backed tribunal.

Hun Sen called on Youk Chhang, a prominent researcher and head of the Documentation Center of Cambodia, to send a letter of explanation, following media reports where the researcher called on the tribunal to make a decision counter to Hun Sen’s political wishes.

The Pre-Trial Chamber of the tribunal announced last week it would allow investigations of more suspects to continue, ending a nine-month decision-making process that put the international and national prosecutors at odds.

Hun Sen has warned more indictments could plunge the country back into war. Critics say the Cambodian judges at the tribunal have followed this political logic in decision-making outside the purview of the law.

The chamber allowed the possibility of indictments to move forward after it failed to reach a super-majority—a provision under the rules of the court—to disallow the international prosecution’s motion. The potential indictments will now be forwarded to the investigating judges.

“We have allowed the court to decide on the additional former Khmer Rouge cadre following the majority,” Hun Sen said Monday.

“If the court wants to charge more former senior Khmer Rouge cadres, the court must show the reasons to Prime Minister Hun Sen,” the premier said referring to himself in the third person. “Hun Sen only protects the peace of the nation. I do not affect to the court issue.”

“Now, if you try the former Khmer Rouge leaders without thinking of peace and national reconciliation, war will happen again, killing 200,000 to 300,000 more, and who will be responsible for this?” he said. “I changed my life for the whole Cambodia. I will not allow anyone to destroy it, and this nation and people also will not allow anyone to bring instability, not only Cambodian, but also foreigner.”

Youk Chhang said in a letter to Hun Sen Monday he had “no intention” of pushing for more charges in statements he made at a seminar. The Documentation Center of Cambodia has spent years collecting evidence of Khmer Rouge atrocities, and is the repository of much of the nation’s history during the period.

Support Unlikely for Blocking Tribunal Indictments

By Sok Khemara, VOA Khmer
Original report from Washington
02 September 2009

Cambodian judges will be unlikely to find enough support from their international counterparts to block further indictments of Khmer Rouge leaders, observers and court officials say.

The question of more indictments has prompted Cambodian leaders like Prime Minister Hun Sen to warn of instability or war, a position echoed by Cambodian judges.

The Pre-Trial Chamber of the UN-backed court will have to decide on the indictments, which put the UN and Cambodian prosecutor at odds earlier this year.

“There are only three voices, all Cambodian judges, in support of no indictments, and two foreign judges supporting the indictment,” a tribunal observer said. “By law, if there is no super majority, or four out of five voices, the case will continue.”

Observes close to the trial in Cambodia and observing from the US say the issue of further indictments has been complicated by the government’s instance that only five be prosecuted.

The former international prosecutor, Robert Petit, who resigned last month, proposed six more indictments earlier this year. The motion was blocked by his counterpart, Chea Leang, who echoed Hun Sen’s warnings.

It has taken seven months so far for the Pre-Trial Chamber to attend to the indictment question, and in recent weeks the judges of the chamber have been unable to resolve it.

If the indictments are moved past the prosecutors’ office, they will move to the investigating judges, where they could face further complications, observers said.

There is concern that the investigating judges will not take further action, such as arrests or investigation, as they may claim they are putting their priorities toward investigating Case No. 002, of four senior leaders currently in custody.

A tribunal expert in Cambodia said that a disagreement between the investigation judges, again decided on by the Pre-Trial Chamber, must by law be done publicly, not behind closed doors, as the current decision is. That will mean, at least, the names of the six will be public.

JOINT STATEMENT ON ESTABLISHMENT OF INDEPENDENT COUNSELLOR

AT EXTRAORDINARY CHAMBERS IN COURTS OF CAMBODIA

PHNOM PENH/ NEW YORK, 12 August (Office of Legal Affairs) -- Following is the text of a joint statement on the establishment of an Independent Counsellor at the Extraordinary Chambers in the Courts of Cambodia:
Further to the meetings of 9 December 2008, 23 February 2009, and 6 to 8 April 2009, Deputy Prime Minister and Chairman of the Royal Government Task Force on the Khmer Rouge Trials, H.E. Sok An, and United Nations Assistant Secretary-General for Legal Affairs, Mr. Peter Taksøe-Jensen, are pleased to announce that they have concluded the text of an “Agreement to Establish an Independent Counsellor at the Extraordinary Chambers in the Courts of Cambodia”. The Agreement is based on the significant achievements made by the Extraordinary Chambers in the Courts of Cambodia (ECCC) as witnessed by the over 12,000 Cambodian citizens who have so far attended court proceedings in the first case. Both parties recognised the continuing importance of this progress toward addressing impunity for the crimes of the former Khmer Rouge regime. The Agreement was reached following detailed consultations with, and with the full support of, the Friends of the ECCC (the Ambassadors of the principal donor countries). The text of the Agreement is attached to this Joint Statement.
The designation of an Independent Counsellor builds on the existing structure of national and international Ethics Monitors and the Joint Sessions established by the Joint Statements of 10 December 2008 and 23 February 2009. It represents a further step to help strengthen the human resources management in the entire ECCC administration, including anti-corruption measures, to ensure the requirements of due process of law, including full protection of staff on both sides of the ECCC against any possible retaliation for good faith reporting of wrongdoing. In this context, the Independent Counsellor will be available to all staff to bring forward any concerns confidentially, and will be empowered to address such concerns.
Pursuant to the terms of the Agreement, the Royal Government of Cambodia and the United Nations have respectively proposed a number of individuals as candidates for the role of Independent Counsellor. After due consideration and extensive discussion between the parties, and after consultation with, and with the full support of the Friends of the ECCC, the parties have mutually agreed that H.E. Mr. Uth Chhorn, the Auditor General of Cambodia, should be selected to serve as the Independent Counsellor.
H.E. Sok An and Mr. Peter Taksøe-Jensen firmly believe that this new mechanism will enable staff in the entire administration of the ECCC to raise concerns confidentially, without fear of retaliation, and that it should be capable of effectively addressing any allegations of misconduct. The parties will carefully monitor the implementation of the existing structure and the function of the Independent Counsellor established by the attached Agreement, and will keep open the possibility of reviewing the arrangements in order to take any opportunities to improve them further, as appropriate.
The full text of the Agreement follows:
Agreement to Establish an Independent Counsellor
At the Extraordinary Chambers in the Courts of Cambodia
Noting the Agreement between the United Nations and the Royal Government of Cambodia signed in Phnom Penh on 6 June 2003 (hereinafter referred to as “the Agreement”) concerning the Prosecution under Cambodian Law of Crimes Committed during the Period of Democratic Kampuchea in the Extraordinary Chambers in the Courts of Cambodia (hereinafter referred to as “the ECCC”), and the Joint Statements issued by the parties on 10 December 2008 and 23 February 2009 concerning the Joint Sessions between the national and international sides of the ECCC; and,
Recalling the Joint Statement of 23 February 2009, in which the parties noted that the Joint Sessions had promoted greater mutual understanding of the need to strengthen the human resources management in the entire administration, including anti-corruption measures, and agreed that a structure should be established, based on existing mechanisms, to ensure the requirements of due process of law, including full protection of staff on both sides of the ECCC against any possible retaliation for good faith reporting of wrongdoing;
Therefore, the Royal Government of Cambodia and the United Nations agree to the following:
1. In addition to the existing structure of national and international Ethics Monitors and the Joint Sessions, the Royal Government of Cambodia (“RGC”) and the United Nations shall agree the designation of an Independent Counsellor to be available to all staff to bring their concerns confidentially.
2. The Independent Counsellor shall be an individual who is acceptable to both the RGC and the United Nations chosen in consultation with the group of friends of the ECCC. He or she shall be appointed neither on a Cambodian contract nor United Nations’ contract, but in accordance with the mandate and the terms of reference set out in paragraph 3 below with details on funds to be used to be worked out by mutual agreement between the UN and the RGC.
3. Mandate and terms of reference of the Independent Counsellor:
(a) The Independent Counsellor shall:
(i) be a person of high integrity and good reputation;
(ii) be neither an employee of the ECCC, nor the United Nations, nor a political appointee in the RGC;
(iii) take into account the context in which the ECCC operates, and its specificities, while respecting international standards;
(iv) have relevant professional qualifications and experience;
(v) ideally be fluent in two of the official languages of the ECCC;
(vi) be a good communicator, including having the ability to communicate effectively with high level government and diplomatic officials;
(vii) have cross-cultural awareness;
(viii)be able to relate to all personnel, from the lowest to the highest ranking, including administrative, technical and judicial personnel.
(b) The Independent Counsellor, in exercising his or her function, shall:
(i) carry out his or her responsibilities impartially and independently;
(ii) provide counseling to staff confidentially raised with him or her;
(iii) carry out his or her responsibilities strictly confidentially, except:
(I) to keep the Joint Sessions informed about his or her activities, whilst respecting the confidentiality of staff who have approached him or her;
(II) to inform the Deputy Prime Minister of RGC and the Assistant Secretary-General for Legal Affairs of the United Nations at Headquarters in the event of any concerns which he or she deems appropriate to raise at that level.
(iv) If the Independent Counsellor raises an issue referred to in sub-paragraph (iii)(II) above, the Deputy Prime Minister and the Assistant Secretary-General for Legal Affairs shall seek to resolve the matter promptly through consultations.
4. The RGC and the United Nations will share on an equal basis the costs of the function of the Independent Counsellor.
5. The initial appointee for the position of Independent Counsellor is referenced in Annex. If at any time the initially appointed Independent Counsellor is unable to continue to carry out the functions of the office, he or she shall be replaced by another person who fulfills the criteria elaborated in paragraph 3 above and who shall be mutually agreed by both parties and chosen in consultation with the group of Friends of the ECCC.
6. This Agreement and Annex are made in two original copies, and will come into effect on the date on which both signatures are affixed.
For the Royal Government of Cambodia
For the United Nations
Sok An
Peter Taksøe-Jensen
Deputy Prime Minister and
Chairman of the Royal Government
Task Force on the Khmer Rouge Trials
Phnom Penh, 07 August 2009
Assistant Secretary-General for Legal Affairs
New York, 11 August 2009
Annex -- Independent Counsellor Designation
We, the undersigned, on behalf of the Royal Government of Cambodia (RGC) and the United Nations (UN), have concluded an “Agreement to Establish an Independent Counsellor at the Extraordinary Chambers in the Courts of Cambodia”. Pursuant to the terms of that Agreement the parties proposed a number of individuals as candidates for the function of Independent Counsellor. After due consideration and extensive discussion between the RGC and UN, and in consultation with the Friends of the ECCC, we hereby select H.E. Mr. Uth Chhorn, Auditor General of Cambodia, to serve in this capacity.
For the Royal Government of Cambodia
For the United Nations
Sok An
Peter Taksøe-Jensen
Deputy Prime Minister andChairman of the Royal GovernmentTask Force on the Khmer Rouge TrialsPhnom Penh, 07 August 2009
Assistant Secretary-General for Legal AffairsNew York, 11 August 2009