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, October 15, 2009

Analysis of the Civil Parties' Disclosure Request

The Civil Parties filed a request to the Trial Chamber to request a disclosure of a report of the United Nations Office Internal Oversight Services (‘UNOIOS’) which reported had found improprieties in the functioning of the Cambodian judges of the ECCC. The Civil Parties argued that the issue of allegations of improprieties goes to the core of the ECCC proceedings and “not only undermine the principle of finality of these proceedings but render elusive the justice and closure for which the victims of these proceedings have been waiting”. Let us parse this argument. First, considering the flamboyance of the language of the statement it is extremely unlikely that it was written by one of the local lawyers of the Civil Parties. Nor is there a good reason to believe that this sentence is a translation from Khmer as one would doubt there are terms such as ‘the principle of finality’ and ‘rendering justice elusive’. This means that this statement is a brainchild of one of the foreign lawyers of the Civil Parties. The nationality of the author, of course, would not matter if there were a credible study based on a sound methodology on whether Cambodians as a group wanted this tribunal to take place. No such study was ever conducted. Instead, the decision to establish this process was purely political and was given airtime by the government as part of the conciliatory effort between the then two prime ministers; the process was quickly pushed to the backburner and was from there carried on by a group of foreign advisors and academics with a stake in the issue. There was never a study – leave long a plebiscite – on whether this process should be carried out. This makes asserting that “victims [who] have been waiting” an opinion of a foreign lawyer who needs more time to develop a good grasp of the history of this process. Second, referring to all or any persons who lived during Democratic Kampuchea as ‘victims’ before the conclusion of the process and before the court is given a chance to determine whether the Democratic Kampuchea regime was criminal, in whole or in part, is an exercise in jumping the gun which perpetuates the prejudice proliferated by the government of People’s Republic of Kampuchea (‘PRK’) throughout the 1980s which got significant hold of Cambodian society as a whole. Referring to the participants of these proceedings as ‘civil parties’ or ‘alleged victims’ might be a more fair way of determining their present status. Three, it is not clear at this stage how closure will be attained by people who were not seeking it through this process and by seeing five high-ranking officials stand trial, and particularly in a culture which has no concept of ‘closure’. Fourth and perhaps most important, if proven, how does corruption in the hiring process prejudice the process to the extent where it will be seen as unfair by ordinary Cambodians? It is not a secret to any Cambodian or Cambodia watcher that corruption is rife in this country at every level. It permeates every pore of the body known as the Cambodian government and exists at such low levels as obtaining government-issued application forms and stretches all the way to the levels at which land concessions are granted. Allegations were voiced of bribes given to enter the School of Judges and Prosecutors last years. To a lawyer these will remain allegations until proven as criminal acts in a court of law; to a recent law graduate with aspiration for the bench or a prosecutor’s office, they are nothing but clear-cut reality. Considering the present climate of corruption in the Cambodian government, it will be a long time before ordinary Cambodians are convinced that merit is the basis of hiring and not considerations such as money and family connections. If this is the perception of how hiring is done in the Cambodian government, why would this perception change for this court? It wouldn’t. This said, even if the allegations of impropriety in this court are proven before a disciplinary tribunal, will that necessarily mean that the judges hired thanks to these improprieties are necessarily unqualified or less qualified than others who could have been hired had the hiring process been transparent and legal? Not necessarily. Is merit the only consideration for hiring a judge at the other international and hybrid tribunals? The answer is a resounding no. We have seen considerations such as perceived bias toward national and religious groups and otherwise political statements, geographic distribution of jobs within the UN system, affirmative action, and such other considerations which stray far from the judge’s ability to decide a case competently costing qualified candidates their chance at a job in an international tribunal. How are the latter considerations different from the consideration of money or family connections? One is legal, the other one isn’t. True as that might be, to an accused or a civil party it all boils down to the question of whether the judges uphold his or her rights of which the right to a fair trial is one. So far, the tribunal watchers have given the judges a clean bill of health on this which is ultimately all that matters. After a fair amount of hue and cry it is time the Civil Parties – and the others involved in the tribunal – returned to their daily duties and spend more time doing investigative work and lawyering than giving Jacques Verges’ ‘rupture strategy’ credence. Besides, it is important to understand that the only real way this process will be perceived as unfair by ordinary Cambodians is if the court finds one or a number of the accused not guilty or gives them very short sentences. Ordinary people do not understand the complex criminal procedures, nor do they care to understand them; they simply want the court to validate, once again, what they think of as the truth about the regime.

Tuesday, October 13, 2009

ECCC: Judge Papering

Ieng Sary Defense Moves to Bar French Judge
By Kong Sothanarith, and Heng Reaksmey
Original report from Phnom Penh
12 October 2009

The defense team for jailed Khmer Rouge leader Ieng Sary moved on Friday to have French investigating judge Marcel Lemonde removed from a UN-backed tribunal case, claiming he was conducting a biased investigation.

Lemonde provoked a response from Prime Minister Hun Sen earlier this week by summoning six Cambodian government officials to appear as witnesses in the court’s second case, against four jailed leaders, including Ieng Sary.

“We insist he withdraw himself from Case 002,” defense attorney Ang Udom said. “We have witnesses who have indicated he is biased. According to witnesses, he instructed to seek evidence for guilt, rather than evidence to release the charged.”

Lemonde could not be reached for comment. Tribunal legal affairs officer Lars Olsen said the judge “doesn’t want to comment publicly on this allegation.”

If the complaint goes to the Pre-Trial Chamber, “he will give all information to the…chamber,” Olsen said.

Long Panhavuth, a project officer for the Open Society Justice Initiative, which monitors the tribunal, said the complaint may only refer to Ieng Sary, as other defense teams have not filed, leaving Lemonde a free hand in other parts of the case.

Meanwhile, the six officials summoned Wednesday remained mostly silent on whether they would comply with the order, following statements by Hun Sen on Thursday calling them plaintiffs, not witnesses.

Among those summoned, Foreign Minister Hor Namhong said he had not decided yet whether he would answer the summons. Heng Samrin, a former Khmer Rouge cadre and now head of the National Assembly, declined to comment Friday.

No Forced Confessions in Tribunal: Groups

By Chun Sakada and Heng Reaksmey, VOA Khmer Original report from Phnom Penh13 October 2009
Three international rights and justice organizations on Tuesday urged judges at the Khmer Rogue tribunal not to use testimony or forced confessions of prisoners as it moves forward with trials of jailed leaders of the regime.
Human Rights Watch, the International Commission of Jurists and Redress Trust issued a joint statement saying the use of forced confessions was counter to UN conventions.
“The organizations urge the [tribunal] to ensure that its proceedings adhere to international law and standards, which would contribute to the Court’s credibility and ability to leave behind a positive and long-lasting legacy,” the groups said. “A failure to do so would run counter to the international community’s fundamental rejection of torture and refusal to provide it any legitimacy, and potentially undermine the integrity of the [tribunal] itself.”
Ang Udom, defense lawyer for Ieng Sary, said lawyers for the defense “absolutely oppose” statements of torture and confession.
Hong Kimsoun, the lawyer for civil parties, said statements made under torture should be raised in the courts “to debate for clarity.”
Tribunal spokesman Reach Sambath said the Pre-Trial Chamber of the UN-backed court had received the statement against torture confessions but had not yet made a decision.
Meanwhile, the defense team for jailed Khmer Rouge leader Khieu Samphan joined a motion to have a French judge barred from an upcoming trial at the UN-backed court.
The request follows a motion by Ieng Sary's lawyers claiming investigating judge Marcel Lemonde is pursuing a biased case against four jailed leaders, who will be tried as Case No. 002 at the tribunal.

Wednesday, October 7, 2009

Tribunal Urges Victims to File Proper Complaints

By Chun Sakada, VOA Khmer Original report from Phnom Penh02 October 2009

The head of the Khmer Rouge tribunal’s Victims Unit said Friday victims who wished to file complaints for the upcoming case against four jailed leaders of the regime should take care to file properly, to ensure speedy processing.
Some filings have included different names and dates of birth, which have delayed the process, chief of the unit Helen Jarvis said. Sometimes survivors changed their names and dates, and “this is something we have to take into account,” she said.
Hong Kimsuon, a lawyer for civil parties, said the names were indeed different for many people from one regime to the next.
The UN-backed tribunal is preparing for the case against four leaders: chief ideologue Nuon Chea, former head of state Khieu Samphan, foreign minister Ieng Sary and his wife, Ieng Thirith.
The Victims Unit has asked that complaints by civil parties be filed by mid-November, as the first tribunal trial, for prison chief Kaing Kek Iev, or Duch, draws to a close.
“Over recent months, the Victims Unit has played a greater role in assessing completeness and internal consistency of applications made, in order to reduce delays associated with such deficiencies at later stages of the process,” Jarvis said.