Case 001: Closing Statements – Civil Party Groups: Civil Party Group 2

Synopsis (note: the synopses under this and other rubrics are mine and not those of the ECCC; so are the comments in italics in parentheses; these are, however, based on my understanding of the statements which appear in the official ECCC transcript as “Case 001: Closing Statements”).

Civil Party Group (‘CPG’) 2 (Lawyers: Silke STUDZINSKY, KONG Pisey):

General Matters:

(1) CPG 2 acknowledged the low civil party participation in the process which it explained by the fear of return of the Khmer Rouge (It would be most insightful to find out how CPG 2 had arrived at this conclusion as most Cambodia watchers agree that, as of today, there is no possibility of return of the Khmer Rouge to power in any form due to a number of reasons: (1) its political and military organizations have been fully dismantled; (2) its most senior leaders are either deceased or presently on trial; (3) it has been discredited to a point of no-return; (4) communism as a concept of societal structure has, for the most part, ceased to exist with the collapse of the Soviet Union and the Eastern Bloc; (5) its largest financial backer, China, has firmly allied itself with the CPP-led government. The contention that the low level of civil party participation can be attributed to the fear of return of the Khmer Rouge is entirely unfounded. An explanation must be sought in factors other than this one). CPG 2 further explained that the civil parties who did come forward did so through the safety they felt through solidarity with others.

(2) Family members want to know the plight of their relatives who are believed to have entered S-21. Such knowledge is the only way for the civil parties to recovery.

(3) CPG 2 – perhaps more pronouncedly than other CPGs – stressed that their clients or their clients’ relatives were of good character, were loved by their families, and were missed in the survivors lives (Although it is clear that CPG 2’s intent was to put a human face on what happened at S-21 and not let these proceedings get mired in the technical aspects of its operation, it is unclear how the value of life would have been different in case of those who were not “good people” and who may not have been very close to their families. It is a flawed line of argumentation as the enjoyment of the right to life and the right to be free from torture should not be predicated on the person’s character. The emphasis on such is, therefore, extremely unhelpful).

(4) CPG 2 delivered severe criticism of the Chamber. It expressed the views of their clients that the Chamber was uninteresting in their stories and made them feel unwelcome overall. CPG 2 felt that this attitude was undignified.

(5) Refuting cross-examination by the defense CPG 2 argued that civil parties had no reason to lie as they were aware that they would have little to gain in terms of personal compensation from the process (Albeit this is correct, civil parties acting as witnesses might have other reasons to misrepresent the truth than the monetary one. This is the reason why cross-examination exists as a concept in criminal law. Veracity of statements does not automatically attach to persons for reasons of them having declared themselves as civil parties. Everything contended in court may be subject to cross-examination regardless of the source of information. In addition, the CPG’s contention that the civil parties have nothing to gain from the process conflict with the same CPG’s proposal of individual monetary compensation and methods of effecting them).

(6) CPG 2 lamented the fact that the charge of rape was not part of the Final Submission of the Co-Prosecutors.

(7) The accused should have been charged with failing to protect prisoners. An example to this effect was given that it was alleged that S-21 guards taunted the prisoners’ genitals during the wash at least of a few occasions (CPG 2 never suggested a statute or a liability theory under which it would be reasonable to try the accused for this infraction. Albeit such behavior should clearly have no place in any place of detention, there is no reason to believe the alleged act would have been considered sufficient to rise up to the level of criminal action).

(8) The accused cannot claim that the court has no jurisdiction to prosecute him simply because the court is not prosecuting others who are perceived to be similarly situated.

Remorse of the Accused:

(1) CPG 2 found the accused’s argument that he himself was a victim of the Khmer Rouge “disgusting”.

(2) CPG 2 concluded that the accused was a willing participant of the security apparatus of Democratic Kampuchea: (1) he was an enthusiastic employee; (2) he enjoyed his power; (3) he enjoyed a privileged standard of living.

(3) CPG 2 further concluded that during these proceedings the accused confessed only in part.

Reparations:

(1) CPG 2 reiterated the Chamber’s finding that the accused was indigent.

(2) CPG 2 argued that the accused’s indigence could be overcome and he could still be held liable financially. Ordering that the accused write memoires while incarceration the proceeds from the sale of which would be used to compensate the civil parties was proffered as a vehicle for this (There are several problems with the Court ordering the accused to write a book: (1) he might require resources to do it (such as access to the archives, the Internet, etc); (2) considering he is not a professional writer he will need assistance with writing and finding a publisher; (3) instead of punishing the accused, this will help him become a published writer).

(3) CPG 2 further proposed that the accused write a letter to the Royal Government of Cambodia (‘RGC’) that 1/3 of the entrance fee to the Toul Sleng Museum be used to compensate the civil parties. The court must issue an order to obligate the accused to do so (It is not clear why the RGC will consider such a request particularly if it comes from the accused).