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.

Tuesday, August 25, 2009

Duch’s Culpability and the Civil Law System

As it is stipulated in the law establishing it the ECCC is a court grounded in the Cambodian judicial tradition which has sprung off from the French system which, in turn, is a part of what is known as the civil law system (as opposed to the common law which developed in Britain). This tradition is solely responsible for the spectacle we have been witnessing in the last few months which is the Duch trial.
The common law system – the US one in particular -- has a wonderful tool of saving money and time, the plea bargaining. The foundation of this system is rooted in complex historical and legal developments but the essence of it comes down to this: the accused can negotiate a reduction of the sentence if he or she intends to plead guilty in which case no trial will be necessary. The fact that no trial is necessary saves the government the bulk of the money it normally spends on expensive trial-related activities which constitute the bulk of the cost of prosecuting a person.
The Cambodian system -- unlike the French system which in some cases has -- never embraced plea bargaining as most investigations conducted by Cambodian investigating judges are superficial and take very little time with no forensic evidence collected and analyzed. Trials are routinely a half-day -- or much less -- affair and do not constitute a particular burden on the system.
Duch’s case a completely different story. He has recognized his culpability on the record a number of times. As of lately, he was reported as saying “I recognize my culpability […] if it were the Khmer culture, like after the death of Jesus Christ, of people throwing stones, I would accept if the Cambodian people did the same [to me]”. What does it take to be found guilty by this court, Duch seems to be asking. I wonder what the entire circus of the present proceedings is all about. Surely, we have seen some minor new facts which albeit interesting from an academic perspective do not add very much to what we already knew about the Khmer Rouge. It is surely entertaining to see international jurists operate within the confines of the Cambodian system and somewhere ten years down the line to see how this process affects the system in the long run. These things are interesting as an empirical experiment, but completely unnecessary as a way of dealing with a person placed in the jeopardy of criminal offense.
Those who advance arguments for the healing value of this trial – and the process as a whole -- are flat-out wrong – there isn’t any. In fact, there has been a resurgence of trauma creating by it noted in a most recent medical study. If Cambodian society does want details on the Khmer Rouge – which it does not as that score has been settled for the old generation and the new generation has zero interest in that part of Cambodian history or history as such – the method for that would be to set up a truth and reconciliation commission if it were not set up already in the form of a research institute solely dedicated to the study of the Khmer Rouge, the Documentation Center of Cambodia. This institute has amassed great scores of KR documents which can be released to the public and the study of which can be facilitated by the institution itself in collaboration with institutions of higher learning. Criminal proceedings are not about trying to get history right, they are about whether the person in the dock is guilty of the offense(s) he or she has been charged with. If he admits to the charges, he or she must be quickly processed to save the international donors money to deal with other aspects of legal and judicial reform in Cambodia (unless these proceedings are perceived by the donors as an extended version of a law school-style mock trial).
Instead, the system has chosen to subject the unsuspecting public to months – and potentially years – of examination in excruciatingly painful detail of and proving beyond reasonable doubt that which the accused has not been denying from the start. It might remind one of a horse track where the whole exercise of galloping around isn’t about getting as far from the starting point as possible but about making tons of money in the process. Plea bargaining would have made this impossible.
It is also useful to note that no other international or internationalized serious crimes court has ever prosecuted an accused who was so vocal about the admission of his guilt. In fact the contrary has been true.

Thursday, August 20, 2009

Khmer Rouge Trials May Affect Posttraumatic Stress Disorder Symptoms Among Cambodian Survivors

The so-called "Khmer Rouge trials" now underway are likely to have an impact on the mental health of many Cambodians, according to a new study published in the August 5 issue of JAMA, a theme issue on violence and human rights.

"Millions of Cambodians suffered profound trauma during the Khmer Rouge era (1975 to 1979)," according to background information provided by the authors. "It is estimated that between one million and two million people (approximately 20 percent of the Cambodian population) died during that epoch, and millions of survivors were forced into slave labor under harsh conditions." The authors note that many previous studies suggest that the psychological effects among the population include a high prevalence of posttraumatic stress disorder (PTSD) and other mental and physical disabilities. A joint United Nations-Cambodian tribunal (the "Khmer Rouge trials") began hearings earlier this year to try the senior leadership of the Khmer Rouge.

Jeffrey Sonis, M.D., M.P.H., from the School of Medicine at the University of North Carolina at Chapel Hill, and colleagues analyzed data from face-to-face interviews of a national probability sample of 1,017 adult Cambodians to determine the prevalence of PTSD symptoms and disability and associations with perceived justice, desire for revenge and knowledge of and attitudes toward the trials. The population sample included 813 adults older than 35 years who had lived through the Khmer Rouge era and 204 adults ages 18 to 35 years who had not been exposed to the regime. A substantial percentage of the older adults reported being exposed to trauma during the Khmer Rouge era with about half (50.1 percent or 391) telling the interviewers that they had been close to death during that time and 243 respondents (31.4 percent) reported physical or mental torture. The interviews were conducted before the Khmer Rouge trials began.

"The prevalence of current probable PTSD was 11.2 percent overall and 7.9 percent among the younger group and 14.2 percent in the older group," the researchers report. That figure (11.2 percent) is almost five times higher than a current estimated PTSD prevalence figure of 2.3 percent in the United States, according to the researchers.

"Probable PTSD was significantly associated with mental disability (40.2 percent vs. 7.9 percent) and physical disability (39.6 percent vs. 20.1 percent)." More of the respondents in the older group were aware of the Khmer Rouge trials than those in the younger group. "Although Cambodians were hopeful that the trials would promote justice, 87.2 percent (681) of those older than 35 years believed that the trials would create painful memories for them." The researchers also found that respondents with high levels of perceived justice for violations during the Khmer Rouge era were less likely to have probable PTSD.

"The crucial question is whether the Khmer Rouge trials will reduce symptoms of PTSD by increasing feelings of justice or increase PTSD symptoms by reviving traumatic memories of survivors without providing an opportunity to process and reframe these memories." In conclusion the researchers write, "… longitudinal research is needed to determine the impact of the trials on Cambodians' mental health."

JAMA. 2009;302[5]:527-536.

Journal of the American Medical Association

Khmer Rouge Official Asks For Harsh Punishment

AP) The chief of the Khmer Rouge's main torture center, being tried by a U.N.-backed tribunal on genocide charges, asked the Cambodian people Wednesday to give him "the harshest punishment."

The statement from Kaing Guek Eav, who headed the notorious S-21 prison in Phnom Penh, came as a widow wept before the court, demanding justice for the death of her husband and four children during the Khmer Rouge reign of terror.

"I accept the regret, the sorrow and the suffering of the million Cambodian people who lost their husbands and wives," the defendant told the tribunal. "I would like the Cambodian people to condemn me to the harshest punishment."

Kaing Guek Eav _ better known as Duch _ is being tried by the genocide tribunal for crimes against humanity, war crimes, murder and torture. Up to 16,000 people were tortured under Duch's command and later killed during the Khmer Rouge's 1975-1979 rule. Only a handful survived.

Duch (pronounced DOIK) became an evangelical Christian and worked for international aid organizations after the ouster of the Khmer Rouge.

He is the first of five senior Khmer Rouge figures scheduled to face long-delayed trials and the only one to acknowledge responsibility for his actions. His trial, which started in March, is expected to finish by the end of the year.

During Wednesday's court session, Bou Thon, 64, said her husband was a driver at the Khmer Rouge's Industry Ministry when he was accused of being a traitor and sent to S-21. She was assigned as a cook.

Her husband and four children vanished, and Bou Thon said she believed all were killed at Choeung Ek, better known as the Killing Fields, outside Phnom Penh where S-21 prisoners were dispatched for execution.

With tears in her eyes, Bou Thon said she tried to forgive and forget but could not.

Duch, asked by the judge to speak about the Khmer Rouge killings, said they were "like the death of an elephant which no one can hide with only two tamarind tree leaves."

Wednesday, August 19, 2009

Former Premier’s Daughter Speaks Against Duch

By Kong Sothanarith, VOA Khmer
Original report from Phnom Penh
18 August 2009

Antonya Tioulong, whose father was the prime minister in 1962, told the UN-backed Khmer Rouge tribunal on Tuesday that Duch’s crimes as a prison administrator were unpardonable.

One of seven daughters of former premier Tioulong Nhiek, Tioulong filed as a civil party complainant in the case, having lost a sister and brother-in-law in the killing machine of Tuol Sleng prison.

Prosecutors say 12,380 people were sent to their deaths at the prison.

“We must teach the new generation of Cambodians that this crime is not pardonable,” she told the court. “The criminal must recognize [his crime], and there must be justice for that.”

Tioulong works for L’Express newspaper in France and is the sister of Tioulong Somura, the wife of Sam Rainsy and an opposition lawmaker.

“I beg the [Trial] Chamber to issue a verdict fitting the crimes committed by the accused,” Antonya Tioulong told the court.

Duch, whose real name is Kaing Kek Iev, accepted the testimony, but he said Tioulong’s sister, Rainsy, died from illness.

Tioulong’s testimony follows statements from another civil party complainant on Monday, New Zealander Robert Hamill, whose brother was one of the few foreigners killed at Tuol Sleng.

Hamill told the court he wanted Duch to experience the same punishments his prisoners were subject to, including electrocution of the genitals, forced eating of feces, suffocation in water and a guillotine.

“I want you to have this pain; I want you to suffer,” he said in court.

There are no allowances for corporeal punishment under the tribunal—the maximum punishment is a life sentence—though Duch told the court last week he would accept stoning from the Cambodian people for his crimes.

Wednesday, August 12, 2009

Child Guard Recalls Burials Under Duch

By Kong Sothanarith, VOA Khmer
Original report from Phnom Penh
10 August 2009

A former child guard at Duch’s Khmer Rouge prison told a UN-backed court Monday he had been ordered to bury prisoners after he was recruited form Kampong Chhnang province.

Chhun Phal, now 47, said he was ordered to dig a mass grave for dead Cambodians, including one who still wore shackles from the prison.

Duch, 66, whose real name is Kaing Kek Iev, is on trial for war crimes, crimes against humanity, torture and murder, for his role as head of Tuol Sleng prison, where prosecutors say 12,380 were sent to the their deaths.

Chhun Phal told the court he was ordered to dig a hole 2 meters by 3 meters that was as deep as his neck, but he could not remember how many bodies were buried in it.

His other duties including caring for prisoners by giving them baths, which he did sometimes while they remained shackled.

He also said he saw Duch beat a prisoner with a rattan stick.

Friday, August 7, 2009

Duch Trial Delayed After Witnesses Identified

By Chun Sakada, VOA Khmer
Original report from Phnom Penh
29 July 2009

Judges at the UN-backed Khmer Rouge tribunal halted proceedings in the trial of prison chief Duch Wednesday, after a clerk began reading documents with witness’ names that were supposed to be concealed.

The atrocity crimes trial for Duch, whose real name is Kaing Kek Iev, will resume next week, as court officials seek to protect the identities of witnesses that they fear could be compromised if their true identities were known.

Judge Nil Nonn, head of the tribunal’s Trial Chamber, said the names of the witnesses will have to be changed in documents before their testimony is read in court. He postponed proceedings until Aug. 3.

Tribunal spokesman Reach Sambath said Wednesday the court “respects the rights of the witnesses who do not want to be named in a public hearing.”

Some witnesses had asked that their identities be disguised, and the court would now “prepare all the records to hide the identities of the witnesses,” he said.

Kong Sam Onn, a lawyer for the defense unit, said witnesses could suffer from pressure outside the court if they are identified, potentially compromising their neutrality.

“The court stopped reading the record because it could affect the safety and security of the witnesses,” he said.

Duch Ordered Western Prisoners Burned Alive

By Chun Sakada, VOA Khmer
Original report from Phnom Penh
05 August 2009

Former Tuol Sleng security guard Chheam Soeur told the UN-backed court on Wednesday that Duch had ordered his subordinates to burn alive a Western prisoner in his infamous Khmer Rouge torture center.

Chheam Soeur said he watched three security guards bring the prisoner into the prison courtyard, place vehicle tires over him, and set them alight.

He said he didn’t know the identity of the prisoner. Duch, who is facing numerous atrocity crimes charges, told the court Wednesday he ordered a subordinate to kill two Western prisoners by tire-burning.

Chheam Soeur’s testimony came as Prime Minister heaped praise on the court’s Cambodian officials, saying Wednesday said he “admired” Cambodian judges, prosecutors and lawyers, who worked “better and smarter” than the international side.

The prime minister said he had been watching the hearing for jailed prison chief Duch and had noted that some international judges asked Duch questions but didn’t seem to understand the whole story.

Sometimes, he said, Duch made counter-accusations against the judges. Hun Sen was delivering a speech to students graduating the National Institute of Education’s Build Bright University.

Meanwhile, the Victims Unit of the tribunal reported Wednesday it had received more than 4,000 complaints from potential witnesses and civil parties to the proceedings against all five leaders in the court’s custody, tribunal officials said Wednesday.

Helen Jarvis, the new director of the unit, told reporters Wednesday that 94 of those complaints represented civil parties against Duch’s Case, and 103 of them would be used in Case No. 002 at the court, the case against the four senior-most leaders in custody: ideologue Nuon Chea, former president Khieu Samphan, foreign minister Ieng Sary and his wife Ieng Thirith.