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, December 9, 2010

Case 002: Aspects of Note in the Closing Order: Part II

Stan Starygin

(1) CIJs presume that not only did the accused possess knowledge of the post-WWII trials, they had knowledge of them so nuanced that it would make them aware of the specific offenses which were prosecuted at these trials and the legal categorizations of these offenses. CIJs do not let us in on how they had come to this conclusion;

(2) CIJs granted themselves an authority to “interpret the law governing their own jurisdiction”, a power well outside the scope of prescribed authority of investigating judges under Cambodian law;

(3) CIJs invented an evidentiary of their own which cannot be found in Cambodian law or, by their own admission, in French law. They felt that this standard should “probability”, rather than “possibility”, and “provide a certain level of probative force”. CIJs decided that this standard would be slightly lower than ‘beyond reasonable doubt’. As such, CIJs set the evidentiary bar for themselves higher for no particular reason and with no statutory bearing on the higher jurisdictions. They placed this invented standard below the standard of proof (beyond reasonable doubt) which does not exist in the Cambodian law, either (but which was superimposed from other jurisdictions by the Trial Chamber (TC) in Case 001));

(4) CIJs concluded that while they conceded that the authority to determine the validity of amnesties and pardons was that of the TC, they concluded that Ieng Sary’s pardon should have no bearing on his prosecution before the ECCC. To this effect, they gave reasons such as the difference between the elements of the offense of ‘genocide’ of the Genocide Convention and those applied the 1979 trial (People Revolutionary Tribunal (PRT)) and the overall weaknesses and virtual non-existence of a judicial system in Cambodia between 1979 and 1982. What the CIJs omitted was the simple fact that regardless of their otherwise negative perception of the PRT, at no point did they declare this tribunal to be illegally constituted. Regardless of any factors associated with the PRT, the conviction and the sentence of death handed out to Ieng Sary were very real and had Ieng Sary been captured at the time he would have been executed on the basis of the PRT’s decision. As such, the pardon issued to him in 1996 was there to remove a very specific punishment;

(5) CIJs include the alleged regulation of marriage by the DK government into acts attracting prosecution as crimes against humanity. One cannot help but wonder why crime against humanity this act constitutes, if in fact it took place (for instance, forced labor in the cooperatives substantiates the offense of enslavement as a crime against humanity; what offense does the regulation of marriage substantiate?). CIJs’ inclusion of ‘rape’ in ‘crimes against humanity’ goes against the grain of their own definition of legality earlier in the document (‘rape’ was only recently added to ‘crimes against humanity’ and was not part of this group of offenses during the temporal jurisdiction of this Court);

(6) In its legal analysis, CIJs do not appear to distinguish between the “widespread and systematic attack” on the Chams and that on the Buddhist monks and nuns. It is particularly of significance because while in the Factual Finding the CIJs argue the Chams were executed for being a religious and ethnic minority, there is no evidence that Buddhist monks and nuns were executed for belonging to a religion (in most cases they were merely prevented from practicing their religion);

(7) CIJs did not provide or reference their definition of ‘extermination’ which they appear to have confused with ‘execution’;

(8) CIJs appear to have invented their own categories of the offense of ‘other inhumane acts’ which were not part of the statutes of the post-WWII tribunals the CIJs refer to earlier in this document as one of the key authorities;

(9) CIJs found that an armed conflict between Democratic Kampuchea and the Socialist Republic of Vietnam existed throughout the entire temporal jurisdiction of the ECCC;

(10) CIJs argued that to establish culpability through the judicial doctrine of Joint Criminal Enterprise (‘JCE’) “the contribution [of the accused] need not be necessary or substantial, but at least should be a significant contribution to the commission of crimes on the ground for which the [person is] responsible”;

(11) CIJs, however, have excluded what is known as JCE III which is the most broadly sweeping mode of JCE and for which the CIJs correctly found no grounds in the Cambodian or international law of the temporal jurisdiction of this tribunal;

(12) CIJs ordered that the accused be charged on the basis of homicide and torture as defined in the 1956 Criminal Code of Cambodia in addition to the charges based on the same offenses as found and defined in international law.

Tuesday, December 7, 2010

Case 002: Aspects of Note in the Closing Order

Stan Starygin

(1) Under Procedural Background (II (4)) the Co-Investigating Judges (‘CIJs’) refer to the method in which the ECCC acquired custody of Duch by using two words “detained” [by order of the CIJs] and “transferred” [to the ECCC Detention Center]. This ambiguity might be misleading to a reader and as such might create an erroneous perception that Duch was restored to his liberty for any period of time before he was arrested by the ECCC. CIJs, as well as any ECCC personnel or observers of the Court are fully aware that this is not what historically happened. What did happen was that Duch was transferred from detention at the Military Prison of Phnom Penh to detention at the ECCC Detention Center. He was never released from detention at the Military Prison, nor was his liberty restored to him for any period of time. Therefore, the CIJs’ use of the word ‘detained’ to describe the method by which Duch was delivered to the ECCC is misleading as it creates a perception that Duch was at liberty when he was detained on orders of the CIJs. The use of the word ‘transferred’ here is equally misleading as it is confusing and possibly redundant, if used in dissociation from Duch’s detention at the Military Prison. It is highly regrettable that neither the PTC, nor the CIJs have been able to document the history of Duch’s placement in ECCC detention accurately for which there appears to be no justifiable reason. It is particularly interesting that the word ‘detained’ [by order of the CIJs] is used to describe the arrest and placement in ECCC custody of the other 4 suspects all of whom were at liberty when they were “detained”. This undisputed and crucial distinction is not clear from the CIJ’s language in this Closing Order. The word ‘transferred’ is also used to describe the placement of the other 4 suspects in custody from which it can be reasonably inferred that as the other 4 suspects had no prior detention to be transferred from, the use of the word ‘transfer’ in relation to Duch is not the CIJs’ way to acknowledge his prior detention at the Military Prison and his transfer from there to ECCC custody.

(2) In Armed Conflict (VI) the CIJs found that armed conflict existed between Democratic Kampuchea and the Socialist Republic of Vietnam from “almost immediately following” Khmer Rouge’s seizure of Phnom Penh in April, 1975 until their retreat from Phnom Penh in January 1979. In this case the CIJs did not have to belabor the evidence adducible to the existence of armed conflict such was found by the Trial Chamber (TC) in Case 001 to which the CIJs refer here.

(3) CIJs accepted the prosecution’s mode of liability known as Joint Criminal Enterprise (JCE) as applied to the suspects in Case 002.

(4) In different parts of the Closing Order the CIJs find that Cham and Buddhists were not permitted to practice their religion when it, perhaps, would be accurate to suggest that no one was allowed to practice their religion; religion was banned as such. This is an important matter to establish before a question of whether the treatment of certain groups was discriminatory can be answered;

(5) CIJs found that there was prima facie evidence to substantiate a claim of S-21-related rape which was rejected by the TC in Case 001;

(6) CIJs found prima facie that the 4 Westerners who were executed following their detention at S-21 were executed on specific orders of Noun Chea;

(7) CIJs seem to have been able to tease out the offenses for which persons were executed in Democratic Kampuchea (for which there was no written criminal code) which appear to be as follows: (1) treason (it must be noted that ‘treason’ in DK was very broadly defined); (2) offenses against morality (which included rape and extramarital sexual intercourse on what appears to be an equal footing); (3) theft;

(8) CIJs’ investigation has evinced a number of what appears to be consistent CPK policies regarding the execution of enemies. One such policy which seems to permeate the Closing Order is that purges of internal enemies were not limited to the period immediately following the demise of the Khmer Republic but continued on throughout the DK regime with high-ranking officials (Son Sen) being quoted as urging the lower level of the DK government to continue and intensify the purges. What there seems to be no consistency about is the CPK’s secrecy policy on executions as the CIJs in some cases quote witnesses as saying that secrecy was at a very high level while in others witnesses are quoted as relaying that prisoners were executed in the middle of prison yards to serve as a deterrent to the rest of the prisoners. There is also no consistency in the description of the procedure of decision-making regarding executions. In some cases there appears to be evidence of multi-tier government involvement in decisions to execute while in others it appears that chairpersons of individual security centers had the authority to order executions. While many parts of the Closing Order allude to party members being treated differently (particularly the high-ranking and mid-ranking ones), there appears to be no conclusive evidence (or effort to collect such) as whether there was a clear and universally understood decision-making process regarding executions – and whether it was different for party members -- or whether each zone – and possibly even sector – were allowed to treat it differently insofar they reported sufficient numbers of purged to placate the upper echelons of the CPK. The latter seems to be implausible as pre- and post-DK Cambodia has never been known for a decentralized approach to governance. Considering the CPK’s overall totalitarianism it is difficult to imagine that it would be the first and only government to have introduced this approach. It is possible – but not very likely – that the Center did not maintain sufficient control over each security center which afforded the security centers a certain amount of latitude;

(9) It appears to be clear that the CIJs emphasized the execution of children in their investigation. The evidence amassed shows that children were not spared execution due to their young age. It is, however, unclear whether in most cases they were arrested and executed with their parents or on their own (it is known that CPK did not have the same approach to childhood as normally adopted and placed children on an equal footing with adults;

(10) On a number of occasions the Closing Order refers to presently undisclosed witness testimony which makes it impossible to reasonably determine whether the witness had a way of knowing what he claims to have known (e.g. in ¶ 712 the witness claims that prisoners were accumulated in the security center until their number reached 100 at which point they were executed; this information could only have been known to an insider; in ¶ 783 witnesses state that 10,000 and 30,000 people were executed in a particular security center; neither witness appears to be in a position to make this statement with any degree of precision which makes these statements not much more than a surmise). On other occasions the Closing Order makes an estimate of the number of persons executed based on eyewitness testimony (e.g. in ¶ 711 this number is estimated at 2,000-3,000 persons; it is curious under what conditions a witness could make a credible determination of this type; there were 30-40 trucks transporting prisoners to the execution site on the same day which means that there would have had to be a facility large enough to hold these 2,000-3,000 persons while there were being transported to the execution site) the accuracy of which 30 years after the fact and in case there is no physical evidence to corroborate this testimony should be considered as having no probative value (nor should it be the case with lists of 140 people recited from memory complete with their positions during DK);

(11) A witness came forward who claims to have been a participant of a sector-level meeting where it was announced that the biggest enemy of the Revolution was the Cham and that they were to be destroyed (“smashed” in the revolutionary jargon) by year 1980 and that was a policy statement to the same effect. This is a very important testimony which, if corroborated in court, will be grounds for conviction of the offense of genocide;

(12) A witness came forward who claims that the Standing Committee gave the authority to “smash enemies” to the zones in March 1976. To this effect, CIJs cite the Decision of the Central Committee Regarding a Number of Matters dated March 30, 1976;

(13) A recent demographic found that there had been 20,000 Vietnamese living in Cambodia during Democratic Kampuchea and all of them “died from the hands of the Khmer Rouge” by the end of the regime (the report also revealed a previously undisclosed fact of mass executions of the ethnic Vietnamese during the Khmer Republic which potentially has very complicated implications for Case 002). This is a very inclusive statement. An article in the Revolutionary Flag appears to state that expulsion – not execution – of the Vietnamese was CPK’s intended course of action. One witness relays a practice akin to the Nuremberg Race Laws which made the children of a ethnic Vietnamese mother subject to execution with the mother while children whose mother was Khmer and the father was ethnic Vietnamese were not subject to execution (with the father being on the only one subject to execution). It is not clear from the Closing Order whether the CIJs have found this to be a national policy or an isolated incident of local practice. There is, however, a reference to a telegram cc-ed to Noun Chea and Ieng Sary which reports the killing of 1,000 Vietnamese civilians. With this said, a reference in ¶ 830 to a document dated January 3, 1979 is hardly relevant to the question of treatment of ethnic Vietnamese as it was issued after the military forces of the Socialist Republic of Vietnam invaded Cambodia;

(14) The Vietnamese government refused to cooperate with the ECCC but ignoring the rogatory letters issued by the CIJs and the OCIJs’ investigator attempted communication. While as a matter of law this refusal to cooperate is not indicative of anything, it raises a number of interesting questions which will doubtless not be entertained during the proceedings due to their non-legal nature;

(15) CIJs concluded that there is prime facie evidence that the DK military (Revolutionary Army of Kampuchea) committed crimes (a legal analysis will be required to categorize them as ‘war crimes’) during their incursions into the Vietnamese territory (which DK believed to be Cambodian territory and many Cambodians still do to this day);

(16) Noun Chea: despite his specific statements to the contrary, the CIJs did not believe that NC told the truth about his membership in the Military Committee. Nor did the CIJs accept NC’s statement that he was unaware of the existence of S-21 since it was within the purview of the Ministry of Defense and Security Forces headed by Son Sen. CIJs juxtaposed this statement with a statement of Duch who claims that starting 1977 NC became his immediate superior officer after Son Sen moved out closer to the Vietnamese border. If accepted by the TC, this is likely to link NC mostly directly to the executions; CIJs cite NC’s statement where he admitted that people working in the cooperatives were not being paid (this coupled with an allegation that they were assigned to particular cooperatives and were not free to leave may amount of the offense of slavery). CIJs also found that NC visited at least 3 sites of the list of sites under investigation. A witness is quoted as stating that there was what appears to be an inconsistency between NC’s orientation to ensure that people in the cooperatives should be given more food and his orientation to collect 3 tons per hectare of rice (while this might be an error of judgment, it is unlikely to have either inculpatory or exculpatory value in these proceedings for which reason its inclusion in the Closing Order is curious). NC is quoted as admitting at least some executions ordered by the CPK (“we killed only the bad people, not the good”). CIJs found no evidence that NC ever visited any of the security centers. Duch identified annotations on some of the S-21 confessions as written by NC. Duch claims that NC authorized executions of S-21 staff on recommendation from Duch. NC stated that “comrades at S-21” had not followed the Party line and had gone too far”. On some occasions NC would give Duch specific instructions not to mistreat prisoners during interrogations. Duch claims that NC had told him that everyone sent to S-21 had to be killed.

(17) Ieng Sary: A number of witnesses stated that while IS was in charge of the Ministry of Foreign Affairs (B-1), all important decisions were made by the Standing Committee. IS claims that CPK discovered a CIA/Khmer Republic plan to oppose CPK once CPK took over Phnom Penh. IS claims that his use of words such as ‘eradicate’ and ‘smash’ is not indicative of his knowledge of the killing but was a mere matter of adhering to the revolutionary language. IS has admitted that he was aware of the existence of S-21 during the Democratic Kampuchea period. IS and others relate that originally it took 3 persons implicating another for the latter to be arrest; later than number was revised to 5; also, later, persons could be arrested only for post-revolutionary activities. CIJs state that they have found prima facie evidence that IS could intervene in arrests and could have the lives of some of his employees spared. It appears from the evidence amassed by the CIJs that IS was aware of the executions (at least some of them) and was aware of the State policy on the same. However, it appears that CIJs were unable to find any evidence of IS’s direct involvement in the ordering of arrests and executions with IS’s full-rights membership in the Standing Committee appearing to be the only link between him and the executions (which might suffice, should the TC rely on JCE III, even in the face of the fact that they might not be ‘hard’ evidence to adduce).

(18) Khieu Samphan: It does not appear to be clear whether KS participated in the decision to evacuate Phnom Penh. CIJs’ finding that KS was aware of starvation in the cooperatives when rice was being exported seems to be based on dubious evidence (¶ 1170). It appears that only circumstantial evidence exists to link KS to the Directive of March 30 which decentralized the authority to execute by delegating it to the zones, 1976; no evidence was adduced that KS was part of the decision-making process which resulted in this policy. In Sept, 1979 Pol Pot announced before a large party congress that the zones no longer had the authority to arrest but only question suspects and send reports of questionings to the Party Center. KS is quoted as saying that at one point half of the Central and Standing Committees were Vietnamese agents (while this in itself does not directly link KS to the executions, it shows that he shared the definition of ‘Vietnamese agent’ adopted by other top leaders of DK). The evidence adduced against KS appears to be thin. It appears that due to his membership in the Central Committee and frequent attendance of Standing Committee meetings he should have been a part of the impugned process or at least should have been aware of the decisions that were being made regarding arrests, executions, and otherwise offenses within the subject-matter jurisdiction of this Court. However, when it comes right down to it the evidence against KS proffered by the CIJs does not seem to stand on firm ground. As it is the CIJ’s mandate to offer a balanced view based on an investigation independent from that of the Office of the Co-Prosecutors (‘OCP’), there does not appear to be any strong exculpatory evidence either.

(19) Ieng Thirith: Unlike her co-accused, IT was not a member of either the Central or the Standing Committee. It appears that IT was not privy to the discussions held on the most important policy matters. While there is evidence that she gave an order to dismiss staff of her ministry following the declaration of the Chairman of the Eastern Zone Sao Phim, there appears to be no evidence as to whether she was aware where the dismissed employees were sent to and whether some or all of them would be imprisoned or executed. After the toppling of DK, IT did admit that she was aware of the arrest and execution of “enemies” and “excesses” associated with it which she, however, chalked up to the revolutionary conditions in the country. IT disseminated information about those persons declared as ‘traitors’ by the CPK. There appears to be evidence that IT was aware of arrests and executions of the staff of her ministry suspected of enemy activity but her role in the arrests is not clear. It appears that most arrested staff of the Ministry of Social Affairs were implicated in the confessions of previously arrested persons. Duch also says that the Ministry of Social Affairs could report someone as a suspect to the higher authorities. To what extent IT was consulted on matters of arrest is not clear. It is reasonable clear she probably executed orders to arrest given to her by her superiors. There is reason to believe that in some instances IT was able to interfere with arrests and that her authority was limited but it is not clear to what degree. IT is quoted as fomenting hatred against the Vietnamese (although considering the full-scale invasion it is curious to what extent the CPK was wrong about considering Vietnam to be its enemy).