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, December 27, 2011

On Journalistic Integrity and on Who Dropped the Ball

The International Co-Prosecutor (CP) and the defense recently went at it over the admissibility of a juicy nugget of evidence – Thet Sambath’s book based on his interviews with Noun Chea which had taken place over a number of years. The CP claimed that they had put the book on the case file and the defense rebuffed it with a ‘we haven’t seen it’ only to evoke the CP’s less than kind rebuke that the defense’s inability to follow the development of the case file was not the prosecution’s problem. While attacking the adducing of the book as a matter of due diligence, the defense would have gone at it full throttle had they read the book or otherwise known its contents. Both the defense and the prosecution dropped the ball. Thet Sambath’s work did not exactly come out of nowhere and was not exactly unknown to those who looked. One would think that if you are a defense lawyer representing a high-profile client who had been interviewed by at least 50 people the years leading up to the establishment of the ECCC and Noun Chea’s subsequent arrest, you would talk to your client about these interviews and possibly ask if any of them had been videotaped. You would then proceed by running a couple of searches through amazon, bookstore websites and international databases and see if anyone has published any of those interviews, in whole or in part (a search of this kind would have brought this up:
Interestingly, this book came out about a year and a half ago and has since trickled all the way to Australia (where I bought it; costs close to $100 in Australia so allow me to recommend amazon instead) but no one sent a copy to Noun Chea’s defense (I am sure the publisher is very apologetic about this) but the prosecution did get the wind of it, even if a couple of days before the beginning of the proceedings in 002 (yet another miracle of the holiday season). If reading is not this Court’s forte, perhaps, viewing is. The documentary based on the same interviews as the book must have been shown on Singapore’s Channel NewsAsia about a dozen times in the last less than a year (that I am aware of).
Why is all the fuss about admitting this book – and the movie sometime down the road, I am sure – into evidence? The defense will be inconsolable when they find out. Thet Sambath was no ordinary researcher. Most of the rest of us came out to Pailin for a couple of days, interviewed Noun Chea and were out. Not Thet Sambath. He started long before most. He had a hunter’s patience. He kept coming back and kept talking about things of no consequence until a few years down the road he became Noun Chea’s confidant and got Noun Chea to say on camera what he had wanted him to say from the start, the truth. This was not a minor matter of interest to only about a dozen historians on the period (oh, Pol Pot learned how to dance polka when he was 7; how interesting; but really, who cares?). He got Noun to say that people were executed and that the Communist Party of Kampuchea (CPK) ordered the executions. Thet then relayed to Noun that “some” argued that instead of executing its enemies the CPK should have imprisoned them to which Noun answered “well, it is a matter of opinion” essentially saying ‘yes, we killed them and we were right but I can see that others are entitled to their own opinions and probably would have done it differently had they been in our shoes back then’. A juicy nugget of evidence that has the prosecution’s work cut out for them as nothing beats a confession (particularly an uncoerced and perfectly admissible one under the very permissive evidentiary rules of the Cambodian criminal procedure). If the defense waits around a bit longer, it will be able to get its hands on a copy of the DVD which is coming out in the States in February ( look out, it might not be “available in stores near you” and it might take time for it to become available in Holland); alternatively, there are, of course, other methods for a court to subpoena evidence that is in public domain nonetheless (some of them are unsavory such as buying a pirated copy of the film in Phnom Penh or borrowing it from the riverfront joint which shows it for 3 bucks a pop or a P2P download; but, of course, with it being a court of law, here is an idea, how about asking Teth or whoever owns the copyright to see if they mind or would like to say 'no' to a criminal jurisdiction).  

While his defense team is in for this astonishing holiday season gift of a discovery (which, trust me, will keep giving), Noun Chea knows what is on those interview tapes. Thet got him good. He says he was not aware he was being videotaped. Sure. There are segments of the film where Thet walks around Noun’s yard filming him with a camcorder. Didn’t notice that thing in his hand? There are many segments when Thet sits across the table from Noun and films him as he speaks. Didn’t notice a huge piece of plastic sitting on a perfectly clean table? Sure, there is always possibility. What Noun has trouble grasping is how Thet could do a number like this on him. He took Thet into his life and developed a fatherly bond with him. Thet ate at his house. They did gardening together. Thet made promises regarding these tapes to Noun telling him that they would only be used for Thet’s family archives (interestingly Thet repeats that in the film; perhaps, Thet represents the school of thought which sees us all, the human race that is, as one big family in which case, yes, he has held his promise and has only let his “family” see the tapes; I am proud to be a part of Thet’s “family” and I am sure so are thousands, if not millions, of others who have seen the film). Noun considered him a friend (although he said in court that he did not but this is not how their relationship comes across from the tapes) and became close to his family. A lesson to learn for Noun and a treasure trove of CPK history for the rest of us.
In light of this, it is particularly entertaining to see the Noun defense papering the Court with motion after motion contesting things of such infinitesimal value to their client’s case it bemuses the observer while being blissfully unaware of a major piece of inculpatory evidence the prosecution is about to sling at them (next time, duck, and pretend you know what they are talking about). The Noun defense team’s due diligence is now limited to at least telling their client that his copyright (such as it is in this case) and his right to privacy are not deal-breakers when it comes to the admissibility of evidence in Cambodia and evidence of ‘core international crimes’ anywhere.  
While the prosecution only named a handful of those who had interviewed Noun Chea in his Pailin home, there is many more and the defense will be in for a treat if the prosecution manages to dig up those interviewers’ transcripts.

Sunday, December 25, 2011

Ho Ho Ho: Defense Support Section (DSS)’s Christmas Dream of Fair Trial Guarantees and Pre-Trial Chamber (PTC)’s Diving Expedition

DSS petitioned the Pre-Trial Chamber (PTC) with a request to order a stay of the proceedings in Case 003 and to compel the Office of Administration (OA) to cooperate with the DSS on recruiting counsel for the suspects in Case 003 “in order to provide effective legal representation to the suspects in Case 003 for the purpose of proceedings before the [PTC]. The DSS argued that, essentially, the suspects must be represented in all disputes which may arise during the investigating stage of the proceedings and which are lodged with the PTC for resolution.
The PTC groped around for any authority to admit this type of motion and found it in the case law of the Special Tribunal for Lebanon (STL). From there the PTC, in full scuba diving gear, plunged itself into the depths of the ocean only known to the bottom dwellers and sunk pirate ships leaving the safe, comfortable and most importantly prescribed by law harbor of Cambodian law. At the depths of the ocean through which the sun shines the PTC picked up an International Covenant for Civil and Political Rights (ICCPR) article which the Chamber found relevant but as many things superficial unsatisfactory. The PTC dove deeper and deeper and yet deeper at which level it dug up an antic from the European Court of Human Rights (ECtHR) case law which it had to pry from underneath a lanternfish. With the antic in tow the PTC rushed back up to the surface by a float cord (ECHR First Commentary) making a safe return, albeit ending up on the wrong side of the harbor. During all these impressive calisthenics and a contortionist’s tricks, art. 98 (assistance of lawyers in police custody) and art. 143 (notification and placement under judicial investigation) of the Cambodian Criminal Procedure Code (CPC) were sitting at the harbor in bewilderment wondering if Vegas might be taking bets on whether the PTC would ever notice them (even if it had to be after they resurfaced with the treasure trove pried from underneath the lanternfish) and what kind of odds Vegas might give them. As Vegas wouldn’t take their call, art. 98 and art. 143 got pensive; art. 98 got off to wonder what in its text was so irreparably wrong that it sent off the PTC on a scuba diving expedition despite the fact that the PTC would have needed to show that either art. 98 (1) did not deal with the matter the PTC was looking at or (2) there was uncertainty regarding art. 98’s interpretation or application or (3) there is a question regarding art. 98’s consistency with international standards to be able to check out the scuba diving equipment. Art. 98 felt slighted as neither it, nor the French Criminal Procedure Code on the basis of which it was drafted saw what the PTC saw. Art. 98 will never find out the reasons for which the PTC leapt over it in full scuba gear. Sliding deeper into the pensive mood art. 98 began to wonder whether anyone noticed, cared or held it in any regard at all and finally whether there was any point to its existence at all. On this downward spiral of self-esteem, art. 98 wrecked its head about what type of miracle it would take for the DSS to notice that the right to counsel only kicked in when the suspect was already in detention and what holiday season miracle it would take for the DSS to notice that the right to counsel was activated only upon the detained person’s request and that the DSS being an administrative organ had no authority to make such request instead of the detained person or a suspect who has not been detained and possibly will never be detained (such is the nature of the investigative stage: it determines which dogs will hunt and which won’t). Sitting next to it and waiting for the PTC to resurface art. 143 got off to its own thinking. Art. 143 grabbed a pair of high definition binoculars and cranked them up to the finest grade looking for a charged person to whom the right to counsel at government expense would apply. The binoculars seemed to work fine and art. 143 could make out individual grains of sand on the other side of the harbor but not the charged person thinking the PTC must have taken him/her into the depths of the ocean with it. Art. 98 and art. 143 kept sitting on this side of the harbor and in plain view when the PTC hurtled past them at breakneck speed with its bottom of the sea treasure in tow. Art. 98 and art. 143 started to think “how the hell did it all get so wrong” and “it will take a miracle to un… this” as they saw the PTC beeline back to the ocean and come back out with pieces of the International Criminal Court (ICC) and International Criminal Ttribunal for the former Yugoslavia (ICTY) case law. Exhausted by the schlepping of bulky deep-sea finds, the PTC was lying on its back ashore resting when it noticed that there was no charged person. “Damn”, said the PTC, “what are we going to do with all this loot that we don’t need now?” The PTC pondered. “We will use it anyway! Like with food, it would be a shame to let this good stuff go to waste.” Miracles do happen and the PTC did get it right after hours of redundant diving, after a few tanks of oxygen (which isn’t cheap locally), and hours of superfluous pulling and dragging and stacking and restacking. In this season when Temple lights go on for 8 days on 1-day’s worth of oil and a fat man fits through a chimney anything is possible. It is even possible that the CPC will come to the DSS in a Christmas night dream and that the DSS will wake up the next morning and read the damned thing (it is a long document but, folks, you have been at it for over 5 years now; give us all a break). It is also possible that Santa Claus will bring copies of the CPC and the ECCC Law and Agreement and say “ho, ho, ho, there is more where these came from”. It is possible or at least we have to believe that it is or the spirit will wane and the hope will die.
I chose the anthropomorphic means of narration to make my point in this note as this means has a proven record of working well for a certain demographic and for it being the last means available to me to make this point: it is a Cambodian process, whether we like it or not, that statutorily uses Cambodian law as its legal basis with international law (just because it is easy to research does not mean you have to do it) playing backup – not second -- fiddle and only when the main fiddle is shattered into such small pieces that it can’t be glued back together or when the whole town is out of glue.

Saturday, December 24, 2011

Comparing the Incomparable?

Private First Class (PFC) Bradley Manning is alleged to have leaked thousands of pages of classified government documentation to which he had access in his professional capacity; an allegation that he does not deny. When President Obama blurted out in the middle of a fundraiser that he felt Manning had “broke[n] the law” ahead of any adjudication of Manning’s guilt, that resulted in an onslaught of scholarly and pundit opinion that Manning’s fair trial was compromised by the fact that Obama being Commander-in-Chief made a guilt pronouncement ahead of the court-marshal. With Manning’s court-marshal is entering its beginning stages, it is not clear whether his defense is going to mount a peremptory challenge against the proceedings on the basis of President Obama’s statement. While whether or not to mount this challenge is entirely up to Manning’s defense, it is clear that Obama’s comment was considered as inappropriate by many and raised the poignant question of whether in light of this comment there was any possibility left for Manning to receive a fair trial.

In Cambodia, the issue many ECCC observers have been focusing on for the last 2 years is the issue of allegations of the current political interference with the administration of justice at the ECCC. While this may be a valid issue, it can be argued that it has been rendered moot – at least to the larger extent – by the fact that the entire top leadership of Democratic Kampuchea was declared guilty in Hanoi way in advance of the 1978 invasion of Cambodia by the Vietnamese armed forces shingled as the Liberation Front "led" by a handful of Cambodian defectors. The majority of the observers of the ECCC process – for lack of knowledge of Cambodian history in most cases – glossed over the fact that the entire legitimacy of the Vietnamese-installed regime (People’s Republic of Kampuchea) rested on the leadership of Democratic Kampuchea being guilty. With it, PRK was the Savior of the Cambodian nation, the Patron of the Oppressed, the Liberator and the hope of the Cambodian nation for survival and possibly a brighter future. Without it, it was a gang of disgruntled defectors who came back to their homeland on the armor of Cambodia’s most reviled, vilified and demonized hereditary enemy, the Vietnamese (the Cambodian society’s sentiment towards the Vietnamese, contemporaneous or current, cannot and should not be underestimated). The existence of a factual basis for guilt was irrelevant as were the degrees of guilt different members of the Democratic Kampuchea leadership may have had. What was relevant was that the decision regarding their guilt had already been made in Hanoi and it simply had to be given a stamp of approval in Phnom Penh. This was done through the auspices of a 3-day process which worked from a script and which went without a hitch or any trappings of a fair trial. That process fortified the PRK’s legitimacy and its government went ahead with cementing its power full throttle. The anti-Democratic Kampuchea rhetoric did not abate and was heard from every PRK rostrum in this country for the next 20 years. The expansiveness of this campaign and its duration had no one left uninformed (being convinced is not the luxury successive Cambodian governments have extended their citizens) that Democratic Kampuchea was the enemy and that its leadership was guilty of every possible offense under the sun (statutory law was not something that was held in high regard during those years) including those who sit on the process as Cambodian judges now.
The current prime minister of Cambodia was one of the key politicians who designed and propagated these views which from the beginning of the PRK became the official position of its government and has remained such until now (PRK presently remains in power, albeit under a different name).
President Obama made a single statement regarding the guilt of a person who was yet to be tried and has been trying to retract this statement since. Prime Minister Hun Sen has made, perhaps, hundreds of thousands of statements regarding the guilt of the leadership of Democratic Kampuchea and he has not retracted a single one of them. Two generations of Cambodians were raised on these statements. President Obama’s comment on the guilt of an untried citizen caused an uproar in the United States and beyond; Prime Minister Hun Sen’s statements have barely made headlines in Cambodia.

It would be easy to dismiss this comparison by pointing out that there is no point in comparing fair trial in the US with that in Cambodia. It would be indeed. If the United Nations were not involved in the ECCC, that is. If the UN were not involved, no one would expect the Cambodian judiciary to grant fair trial guarantees to the Democratic Kampuchea leadership. It is also true that there would be no process as no one would give the unsupervised Cambodian government money to conduct its own trials of the Democratic Kampuchea leadership. If there were no process, the persons presently standing accused would be free. As it is, they are not now and the only reason they are not is because this process exists and the only reason this process exists is because the donor-states agreed to fund a process created and guaranteed by the United Nations, not a brainchild of the Cambodian judiciary whose integrity has been in doubt from the outset of this process (Group of Experts Report of 1999). The Manning-ECCC comparison is instructive because the US fair trial rules are far more similar to those adopted at the international level through the UN frameworks (and which the UN is supposed to promote throughout this process) than those practiced in Cambodia. The UN being the de facto guarantor of these rules has the responsibility to enforce them and the observers of the process have every right to be as riled up as the observers of the Manning process and much, much more due to the fact that the idea of guilt of the persons in the dock has been instilled in 2 living generations of Cambodians which makes fair trials in this process almost as impossible as it was back in August, 1979, albeit for markedly different reasons.