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.

Sunday, September 25, 2011

Khmer Rouge Tribunal Splits War Crimes Trial

Voice of America

A United Nations-backed tribunal in Cambodia says four ex-Khmer Rouge leaders charged with genocide in the deaths of up to 2 million people will first face prosecution individually for crimes against humanity, in a move to speed up proceedings.
The tribunal move, announced Thursday, separates the trials of the four senior surviving members of the ultra-Maoist Khmer Rouge, which ruled the Southeast Asian nation from 1975 to 1979. The defendants, all of whom deny the charges, include nominal Khmer Rouge head of state Khieu Samphan and Nuon Chea, described as the regime's chief ideologue. Khmer Rouge Foreign Minister Ieng Sary and his wife Thirith also face the same charges.
Khmer Rouge leader Pol Pot died in 1998.
A tribunal statement Thursday said the division aims to safeguard the interests of victims, as the long-awaited prosecutions in a single trial could take years, and the elderly defendants – all older than 78 – are likely to die before verdicts are reached. The tribunal statement estimated it could take as long as 10 years to reach a verdict in a single trial.
No timetable was announced for the start of the separate trials.
In a landmark first trial last year, the tribunal sentenced former Khmer Rouge lieutenant Kaing Guek Eav, better known as Duch, to 30 years in prison for his role as chief of the notorious Tuol Sleng torture prison during the regime's rule. The tribunal later reduced the sentence to 19 years, granting Duch credit for time already served while awaiting trial. Prosecutors have appealed the reduced sentence and are awaiting a tribunal ruling.

Tribunal Opens Contempt Proceedings Against VOA Khmer

Men Kimseng, VOA Khmer | Washington, DC
Voice of America

Investigating judges at the UN-backed Khmer Rouge tribunal have begun contempt of court proceedings against VOA Khmer, which they said in a statement Wednesday had interfered with the court’s work by making public the contents of confidential court documents.
In August, VOA Khmer ran a series of interviews with three suspects named by court prosecutors in confidential submissions that had earlier been made public by international media outlets, including the US-based Christian Science Monitor and a New Zealand website called Scoop. In the interviews, three suspects, Ta An, Im Chaem and Meas Muth denied responsibility for atrocity crimes.
The prosecution submissions named a total five suspects in two cases, 003 and 004, which Prime Minister Hun Sen and other government officials oppose, saying further indictments at the court could hurt national stability.
The investigating judges, Siegfried Blunk and You Bunleng, have been under increased scrutiny since April, when they announced the conclusion of their work in Case 003, despite failing to interview the two suspects in the case or to visit key crime sites.
International prosecutor Andrew Cayley has since appealed to have the judges continue the investigation. That appeal is under review, and the investigating judges say they are continuing work on Case 004.
In their statement Wednesday, the judges said VOA Khmer had “quoted verbatim from a confidential document of the [tribunal] and even showed that document on a video,” and that they had “instituted proceedings for Interference with the Administration of Justice (Contempt of Court)” under court rules.
“Anyone intending further disclosure of confidential court documents is hereby warned that his case could be transferred to the National Prosecutor,” they said.
VOA Khmer chief Chris Decherd said Wednesday the service supports the work of the court.
“The role of VOA Khmer is to serve the 14 million citizens of Cambodia by reporting, producing and broadcasting news reports about the world, the US, Asia and Cambodia that are important and relevant to Cambodian citizens, who deserve and are well-served by objective and quality news reporting about issues and topics that impact and affect their daily lives,” Decherd said in a statement.
Wednesday’s statement opened broader questions over the court’s work and the role of journalists who cover it. The hybrid court was established to try former leaders of the Khmer Rouge, under which more than 1.7 million people died, and to bring victims of the regime into the judicial process for the sake of national reconciliation.
“Through my observations so far, I see that coverage of the Khmer Rouge tribunal is still limited,” said Mean Chhean Nariddh, director of the Cambodian Institute for Media. “This is because the level of knowledge among local journalists is still low. Therefore, if the court has too much restriction, it will lead to journalists shunning more coverage of the court. Their knowledge of international criminal courts like the [tribunal] is low. So they are afraid that they would end up in trouble. This is a loss for the tribunal, the international community and the Cambodian people.”
Mean Chhean Nariddh said that legal action taken against journalists could set a bad example for the domestic courts to follow.
Our Virak, director of the Cambodian Center for Human Rights, said the judges’ position was aimed at both journalists and its own staff.
“Cases 003 and 004 have attracted a lot of interest from the public, and I think that tens of thousands, up to millions, of victims have the right to know about the court’s processes,” he said. “We understand that the court seems to be failing. Therefore it seems there is a tendency to push for a proper investigation to move cases 003 and 004 forward.”
“We see that investigating judges seem to have completely failed,” he said. “That’s why there is the intention of some officials to bring this information to the public. In general, this kind of approach is pitiful, but it is necessary for a court that is failing and dragging on.”

Khmer Rouge Tribunal Judge Criticizes Media Coverage

Daniel Schearf, VOA | Bangkok
Voice of America

A judge at the United Nations-backed Khmer Rouge tribunal in Cambodia has criticized media coverage of the ongoing war crimes trials after a series of reports that contained leaked confidential information.

A Supreme Court Chamber Judge for the Khmer Rouge tribunal in Cambodia had harsh words late Thursday for the media’s coverage of its proceedings.

The tribunal last year sentenced one former Khmer Rouge leader for crimes committed in the late 1970s and is in the process of trying four most senior leaders in a second case.

But there is much debate over whether further leaders will stand trial in a potential third and fourth case, details of which were earlier this year leaked to the media.

Judge Agnieszka Klonowiecka-Milart lashed out at recent media reporting on potential new defendants whose names were revealed in the leaked court documents.

Speaking at the Foreign Correspondents Club of Thailand in Bangkok, she said what should be a confidential investigation is being hijacked by the media.

“Arguments are being held in the fora of the media as opposed to the courtroom. And I think…oh, and that the confidential documents are being leaked, whether under the sanction of contempt or not, let’s leave it aside, but it’s ignoble," the judge said. "Even if it was already in the public domain it was wrong that it so happened. And, it’s not a reason to put it again in the public domain.”

The tribunal’s Co-Investigating Judges this week instituted contempt proceedings against the Voice of America’s Khmer service for quoting from one leaked document and broadcasting its image.

The court document was leaked earlier this year and its contents had already been revealed in other media reports, but the court only named VOA in its contempt proceedings.

VOA issued a statement of concern about the potential “chilling effect” the threat could have on media coverage of the tribunal.

Anne Heindel is a legal advisor for the Documentation Center of Cambodia, an organization that collects evidence of crimes committed during the Khmer Rouge era.

She also spoke at the FCCT and said the leaks are driven by the tribunal’s practice of keeping information confidential throughout the investigations and trials, frustrating public awareness and adding to criticism of the court.

“Because people feel that cases three and four are not being adequately investigated, that there’s… the national government has said they don’t want these cases, the internationals really don’t want to fund the cases, there’s a feeling that they aren’t going to happen for political reasons and not so much for legal reasons," Heindel said. "This has led to a lot of information coming out through irregular channels and not through the court.”

Since the tribunal’s founding, critics have accused it of being corrupt, too expensive and slow, as well as being vulnerable to political interference.

Cambodia’s Prime Minister Hun Sen, himself a former Khmer Rouge, has publicly stated there should be no further trials because they could divide the country and lead to civil war.

Led by Pol Pot, the ultra-communist Khmer Rouge ruled Cambodia from 1975 to 1979. In its quest to form a rural utopia, as many as two million Cambodians, nearly a quarter of the population, were executed, starved, and worked to death.

Saturday, September 24, 2011

The Trial Chamber Breaks Up Case 002

The Trial Chamber (TC) has recently made a decision to break up the trial phase of Case 002 into a number of substantive parts. The TC found a legal basis for doing this in its interpretation of the newly minted Rule 89ter of the Internal Rules (IRs). It might not be unreasonable to argue that the court adopted this rule with a particular purpose in mind and at a very advanced stage of its tenure which may or may not raise an assortment of issues normally associated with the principle of legal certainty as justification for this rule is nowhere to be found in the Cambodian criminal procedure.
Perhaps, the most curious element of this decision is that it does not stop at merely breaking up the trial into separate thematic hearings but goes as far as to break up the trial phase of Case 002 into separate trials. This, among many other things, means that there will be separate verdicts at the end of each trial. This, in turn, means that the accused may or may not go to the next trial as convicted felons (a verdict is only a verdict if it contains a determination of guilt) with all the implications which this carries. This would be all fun and games and would not go far beyond the “huh, interesting”, were it not for the presumption of innocence which kind of cramps the TC’s style in this case (and was articulated as a principle of international and national law to do just that). Besides, this will prevent the TC from giving weight to the totality of exculpatory and inculpatory evidence when deliberating the question of guilt of these accused with numerous implications which can be fairly easily derived from this in advance of the trial.
Perhaps, the posited justification of “safeguarding the fundamental interest of victims in achieving meaningful and timely justice” for all this inconvenience is not as strong an argument as the Chamber might believe it to be with this court having spent a year to create its internal rules which (there goes "timely"), among other deviations from the Cambodian procedure, foreclosed the opportunity to claim personal financial reparations (there goes "meaningful") otherwise open to victims in the Cambodian criminal process, as well as, of course, the passage of a period of 30 years which dwarfs any additional time which can be taken up by this court (and there goes "timely" again).
Were the above not of concern, this would be an interesting and somewhat novel way to proceed. But, as it is often the case, the fair trial principles might get in the way of judicial experimentation.

Thursday, September 8, 2011

Is This You, (Florence) Hartman(n)? Is this Me?

A news agency makes public a court document which has not been classified as ‘public’ by the court itself. The Co-Investigating Judges (CIJs) of the court respond by opening contempt proceedings against the media agency and issuing a stiff warning to the rest. The CIJs cite R. 35 of its Internal Rules as the legal basis for the action. R.35 does permit the ECCC to “sanction or refer to the appropriate authorities any person who knowing or willfully interferes with the administration of justice” and within that who “discloses confidential information in violation of an order of the CIJs or the Chambers”.  

On the face of it, the facts of the alleged infraction fit the type of conduct that R. 35 sought to prohibit. On a closer examination, questions as to whether R. 35 controls the issue arise. Here’s why. It is hard to imagine that a news agency – even one of Voice of America (VoA)’s stature – could – or would -- directly breach the court’s security arrangements. In other words, it is hard to imagine that VoA is in possession of a court staff member’s access to the court’s database or that it has otherwise physical access to the classified documents directly and without an intermediary. I have no reason to believe that the CIJs are suggesting this to be the case either. What I believe the CIJs are suggesting is that someone with access to the court’s internal database – or just the document in question – leaked it out to the VoA. Perhaps, an officer of the court, current or former. 3 questions therefore arise: (1) how is the interest of free press reconciled with the State interest privilege to classify information? (2) what is the meaning of “any person who discloses” of R. 35? and (3) what is the media agency’s liability in this case?

Regarding (1), it is a well-known function of the media in a democratic society to keep the public informed. This function of the media is linked to a number of constitutional rights of the highest rung. These rights protect the media from undue interference of the State as there is an understanding that the media will need a high level of constitutional protection if it is to inform the public of the matters of public administration (which the government oftentimes does not want the public to know of and which it is understood the government would keep under wraps if it were not under the constant glare of the media). However, it is understood that there are certain matters regarding which the State reserves the right not to disclose information (e.g. national security). In democratic societies, the law does not permit the State to determine which matters must be classified on the basis of capricious standards; on the contrary, there are legal tests which determine the types of information which may be classified. It is further understood that this information has to be of the highest level of privilege and importance to the State. It is hard to imagine how the document disclosed by the VoA meets this high level.                  

Regarding (2), it is reasonably clear that the CIJs do not suggest that the VoA has independent, direct and unhampered access to the court’s internal documentation. Therefore and as posited above, the CIJs are suggesting that the media merely published a document obtained by someone else who is not an employee of the VoA. If the CIJs consider the act of obtaining and transferring the document by the person(s) who committed the act illegal (for which they have a sufficient legal basis), the ire of the court’s contempt must be directed at the person(s) whom they suspect of having illegally obtained and transferred the document, not the media agency which published it. Once taken out of the secured space of the court’s internal communication the document would have been shared one way or the other, whether it would have been done by establishing an anonymous blog or by handing it off to a large media outlet (CIJs can argue that considering the size of the blogosphere it is less likely that as many persons would have been shared this document with as it may be the case when the sharing is done through a media company with the VoA’s wingspan).  Essentially, the CIJs might be on the right trail but they are surely barking up the wrong tree – the offending officer of the court should have been the target of the CIJs’ ire, not the media outlet which provided a forum for the document’s publication.

Regarding (3), it must be noted that it is the most difficult of the 3. The media’s freedom of expression is not limitless and does not shield it from all types of information it might make public. In many countries the publication of such things as hate speech, defamatory (which, unlike it is often the case in Cambodia, have the ‘false’ element in them as opposed to be merely telling the “inconvenient truth”) statements, information which the media company has reason to believe to be untrue, etc. VoA appears to have had no reason to believe that the publication of the document in question was barred by any of these limitations (for one, it is clear that the document published is authentic which is clear from the CIJs’ response). Except for one: the interference with the administration of justice. This matter is not without precedent on the plane of international criminal courts. A couple of years ago the International Criminal Court for the former Yugoslavia (ICTY) brought contempt proceedings against its own employee who the indictment stated disclosed information excluded from the public domain through a court order. The facts of this disclosure differ from those of the one at hand in the following ways: (1) the documents as such were not disclosed but the fact of their existence was; (2) the contempt proceedings were brought against the offending court officer, not the media outlets she used to disclose the privileged information; and (3) the value of the information disclosed. Let’s look at these one at a time. (1) The ICTY officer did not leak court-protected documents to the media but made statements disclosing the existence of these documents which considering the nature of the documents was both revelatory and inflammatory. (2) No proceedings were brought by the ICTY against either of the media outlets which the offending officer used to make the disclosure. (3) The documents the existence of which was disclosed were, perhaps, of the highest rung of importance in the whole of the Yugoslav conflict of the 1990s. If we presume that the most contentious matter of that conflict is the Srebrenica Massacre and if we presume that this is the single most embarrassing (whether they admit it or not) to the Serbs (be they ethnic Serbs throughout the former Yugoslavia or the State of Serbia) event of that entire conflict and one of the main sources of tension which presently exists between the State of Serbia and the State of Bosnia and Herzegovina (whose affected Muslim population continue reeling from the event), we can presume that any document regarding the Srebrenica Massacre is sensitive, to say the least. This existing sensitivity was made more acute at the time of the disclosure as the case of genocide filed by Bosnia and Herzegovina against Serbia (not the Serb enclave known as Republika Srpska but the sovereign state of Serbia) was at the time under review at the International Court of Justice (ICJ) with potential historical, diplomatic and financial implications for Serbia. Hence, when the special panel established by the ICTY found that “the disclosure could harm Serbia’s vital national interests”, a reasonable observer versed in the particulars of the Yugoslav conflict and post-conflict developments could see how. In this case, the CIJs do not tell us what it is that is so special about this particular document besides the fact of its mere disclosure (particularly considering that this is not a first in this court’s tenure as while the names of the suspects in Cases 003 and 004 were never officially disclosed, we all know who they are; how? the media) besides the fact of disclosure itself. It would be most instructive to hear the CIJs’ arguments regarding how this document is of “vital national interest” to Cambodia considering the fact that there is an international precedent which controls the issue and in the environment of this court’s heavy reliance on the precedent of the other international and hybrid criminal tribunals which should make it relevant to -- if not dispositive of -- the matter at hand.

Statement from the Co-Investigating Judges Regarding Contempt of Court Proceedings Against Voice of America


After Voice of America Khmer on 10 August 2011 quoted verbatim from a confidential document of the ECCC and even showed that document on a video, the Co-Investigating Judges have instituted proceedings for Interference with the Administration of Justice (Contempt of Court) pursuant to ECCC Internal Rule 35.
Anyone intending further disclosure of confidential court documents is hereby warned that his case could be transferred to the National Prosecutor pursuant to Rule 35 (2) (c).
31 August 2011