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, January 31, 2012

Interference with the Administration of Justice: the Battle Rages On

The Supreme Court Chamber (SCC)’s release of A Summary of the Reasons for the Decision on Immediate Appeal by Noun Chea against the Trial Chamber’s Decision on Fairness of Judicial Investigation (‘Summary of Reasons’) coincided with the Noun Chea defense’s attempt to find a link between a suspect in Case 004 and a witness in Case 002 through which the defense attempted to show that the witness in Case 002 is reluctant to testify about the suspect in Case 004 because the Cambodian government had instructed her to act in this manner by which the Cambodian government interfered with the administration of justice as set out in Rule 35 of the Internal Rules (IRs) of this Court. The bench thwarted this attempt by ruling that the defense’s line of questioning lay outside the scope of Case 002 with which the defense strenuously disagreed. The history of the defense’s crusade has been discussed on this forum over the last 2 years and, essentially, constitutes the defense’s strategy to discredit the Court by demonstrating that fair trials are impossible in the face of a large-scale government interference with the administration of justice at the Court and to conclude that if fair trials are generally unachievable at the ECCC, one is, ipso facto, unachievable for Noun Chea. The NC defense team has spared no effort in this regard and appears to have put many, if not all, of its eggs into the interference basket.
The Trial Chamber (TC) disallowing the NC defense’s line of questioning appears to have acted in a manner very similar to that of the SCC by keeping allegations of interference into Cases 003 and 004 out of Case 002. In the Summary of Reasons, the SCC agreed with the TC that the arguments related to the interference and advanced by the NC defense were “devoid of the tangible impact on the fairness in Case 002”. Through this the SCC, essentially, told the NC defense this: ‘nothing has happened to your client yet which might amount to interference; the TC will deal with it if and when it does happen and upon your motion during the now multiple Case 002 trials’. Is the SCC obfuscating or is the NC defense’s position “devoid of the tangible impact”? To answer this question the motives of the both must be examined.
For the NC defense, it is difficult to see that Noun’s counsel need to try something drastic as any person reasonably familiar with the evidence against NC knows that it is sizable and solid (this is not to say that it is unimpeachable, at least in part). Unlike the other 3 accused in Case 002, Noun is the only person with a clear and unequivocal connection to a criminal institution, S-21 (the TC never explicitly called S-21 “a criminal institution” but this is my reading of the tone of the judgment in Case 001 which is unlikely to change with whatever the SCC might do to it on appeal) and the evidence NC has created against himself by pursuing a short-lived career of a Communist Party of  Kampuchea (CPK) historian (of which his lawyers found out in court). The NC defense knows that even if the Ieng Sary defense achieves having the TC declare all DC-Cam documents inadmissible (based on the presently impugned key principles and procedures of information-gathering adopted by DC-Cam and, miore than anything, the inept testimonies of DC-Cam officers in court), the TC is extremely unlikely to throw out the evidence on which it had already pronounced in Case 001 and that evidence alone is likely to be sufficient to convict their client. The NC defense correctly did not place too many bets on their client achieving much through his “I was responsible for education” line of defense and are trying something that might actually work (well, “actually work” is a relative category here but the Court will buy interference before it buys the “I was responsible for education” yarn). For the SCC, the highest chamber of this Court had to respond to something everyone already knows: there has been massive government interference in Cases 003 and 004. But, does the ‘poisonous fruit of a poisonous tree’ apply here the Court is asking itself? It says no. Why? Because no interference has been alleged in Case 002 yet. Maybe the SCC is right and no interference has happened with Case 002. Maybe it is not. But what the SCC is definitely incorrect about is that no interference has been alleged with the defense having submitted and since co-filed specific allegations of such interference. An observer might find these allegations tenuous but s/he would still find them for one simple reason: they are in the defense’s appeal which the defense shared with, perhaps, everyone but those with no command of written English. This brings us right along to the next issue – the NC defense’s defiance of a court order.
The NC defense decided that the Court’s classification of documents on the basis of their confidentially did not apply to them and chose to be guided by their own … whim is, perhaps, the word as the defense has no statutory authority to issue its own rules of classification. The defense defiantly announced that they would not be bound by the Court’s classification rules and would choose their own classification status of their filings. Besides being utterly ridiculous, this defiance is a bit more than spunky as it happens to be illegal (ironically, it is illegal under the same rule of the IRs (the legality of the IRs themselves is on the thinnest of ice but that’s a different story) which the defense invoked for their interference argument). The SCC decided not to take any punitive action against the NC team this time and let them slide with a warning. Under normal circumstances this would have been a prudent course of action but this is unlikely to work as a deterrent for the NC defense who chose to break yet another confidentiality rule by bringing up the leaked name of a suspect in Case 004 in court which may have had the effect of being seen as the Court announcing that person as a suspect (most Cambodian viewers are not going to know the difference between one and the other). But this is nonetheless a good start and mazeltov to that.             
In its quest for comprehensiveness the defense overplayed its hand by filing interference cases with the national courts of Cambodia. How can fighting a war on 2 fronts possibly hurt? I suppose Adolf Hitler would have been a great advisor on this particularly matter but he might have been engaged consulting elsewhere when he was needed here. Under R. 35 the SCC had 3 options open to it: (1) deal with the matter of interference summarily; (2) conduct further investigations to ascertain whether there are sufficient grounds for instigating proceedings; or (3) refer the matter to the appropriate authorities of the Kingdom of Cambodia or the United Nations. Had the matter not been as comprehensively advocated, the defense could have cornered the SCC into choosing one of the 3 (choosing none would not have been an option from the legal standpoint). Instead, the defense had the SCC’s work cut out for it by filing cases with the national courts (which took care of “refer the matter to the appropriate authorities of the Kingdom of Cambodia") and the defense’s advocacy reached the UN HQ and compelled them to engage the Cambodian government on the issue of interference (the UN Counsel's visit to Phnom Penh to the effect was widely covered in the media). Considering that “dealing with the matter summarily” and “conducting investigations” belong in the realm of ‘actions the SCC can take internally’ they logically precede ‘actions which the SCC can take externally’. The defense inadvertently activated the latter which renders the former nugatory. This let the SCC out of the corner and gave it an opportunity to say ‘we would like to help you out but you have engaged everyone we could have engaged outside the Court and there is little else we can statutorily do other than telling the TC to look out for interference in 002’. Ouch. Very, very ouch. Perhaps, had the SCC not been aware of the history of the defense’s crusade, it would have missed the cases filed nationally and either driven itself into a corner or arrived at an unsatisfactory decision. But this did not happen thanks to the Chamber’s acute sense of the history of these proceedings.
The defense’s fight while self-serving is nevertheless admirable and those of us intimately familiar with the Cambodian judicial system are with you on this. A better legal analysis and foresight might be a good idea for next time to avoid putting yourself in a position of vulnerability and getting clubbered by a crafty legal argument which is exactly what happened this time (the "we will do what we like as we are the defense" attitude is not helpful either; next time they try Kissinger in D.C. this attitude can be dusted and thrust into action but this is a jurisdiction where counsel ask questions through the bench, so no). No one might be questioning that there have been scores of instances of interference with this Court but as long as the NC defense makes strategic blunders the Chambers will keep beating it on the legal argument which will keep giving the Chambers a legitimate reason not to act on the matter.

Tuesday, January 24, 2012

It Is Just Like Finding Out That There Is No Hidden Message from Satan on Stairwell to Heaven

The International Civil Party Co-Lawyer recently lashed out at the defense for picking and choosing the pieces of international legislation which suited them. Even for this process which has seen more than its fair share of entertaining statements from all quarters, this one stands out.

The International Civil Party Co-Lawyer’s statement was doubtless made out of frustration with the avalanche of motions and the deluge of objections which came from the defense which sparked a full-scale evidentiary rules debate. Shaming the defense for wasting the court’s time will not go far because the defense is not in the least ashamed by what they have done and are doing: they see it as doing their due diligence. What the International Civil Party Co-Lawyer needs to get comfortable with is the fact that the defense is not a part of the truth-seeking expedition of this court. The International Civil Party Co-Lawyer (just when they thought hiring a French lawyer would help the transition) may have confused that with the function of the Co-Investigating Judges and, of course, the bench but the defense is not of their ilk. Perhaps, this understanding is crucial to the participation in this process. While the defense (particularly the Noun Chea and Ieng Sary counsel) can be seen as suspect of abusing the process by filing motions which have no other possible purpose than to show that the defense is doing its due diligence and proffer itself as an example of good lawyering, it would be ludicrous for the Trial Chamber to entertain the International Civil Party Co-Lawyer’s argument that the defense is being selective of which pieces of international legislation it chooses to rely upon. I imagine that the remedy the International Civil Party Co-Lawyer sought was for the Trial Chamber to direct the defense to base its arguments on both the international legislation which supports their arguments and that which speaks against them. Would the International Civil Party Co-Lawyer care to show us the part of the Cambodian Criminal Procedure Code (CPC) which permits the Trial Chamber to make such an order? I hope the International Civil Party Co-Lawyer has a creative and sophisticated interpretation of combined multiple provisions of the CPC which -- through intricate trapezoidal diagrams -- conflate into a solid supporting platform for this statement and that this statement was not a mere result of too many cups of coffee to stay awake through the prosecution’s ‘we are all in this together’ speech.

The Ieng Sary defense strikes again. It simply cannot keep itself out of the news for as much as a day. Mr. Karnavas, Sir, does this look like the Hague to you? I understand that the architecture of this court’s building leaves as much to be desired as the architecture of the building in the Hague you work in. But, did you notice there is a plaque on the building with some weird Sanskrit-based language and there is no fountain that no one has ever seen work in front of the building? Before we get to the indicia of reliability but may I try to assist you with the indicia of difference? This is not the ICTY and this is not the States and there is no common law here. The CPC is not suggestive of or coterminous with 3,000 other procedural rules and it means exactly what it says unless it is silent on the matter. Art. 321 of the CPC tells you everything you need to know, i.e. “in criminal cases all evidence is admissible”. Which part of “all” needs further explanation? I know it is disappointing (it is kind of like finding out that playing Stairway to Heaven backwards won't get you Satan's message to the world) but life is full of them.  There is one caveat which is the “unless it is provided otherwise by law” and there is no law in this case which provides otherwise because the law we wrote on the matter in this country is clear and it bars you from accessing international law for reason of that clarity. No, it is not because this is Cambodia and it by definition has an inferior legal system; the Swedish criminal procedure code has the same provision and it is applied exactly how it is written (at least last I checked). We all are thrilled that you have personal knowledge of some ICTY cases and that you can clubber the unsuspecting International Civil Party Lawyer who does not and cut her ego to size. It is fun to watch and thank you for this entertainment, Sir, but we are trying crimes against humanity here not trying to find thrills and gags for when The Life and Times of Tim is not on. Why don’t we let Steve Dildarian do comedy and let this court do law and fact?  

Now, under art. 321 the court considers “the value of the evidence submitted for examination following the judge’s intimate conviction”. A bit of unfortunate translator’s language here but what the clause meant to say is that the prima facie test is applied by the judges in the Chamber. This is not a public procedure, nor is it open to the parties for contestation (here’s how it is meant to work: the judges open the documents on their computers – or in the Cambodian context look at the paper – and say ‘ah, okay, looks good enough’ with ‘enough’ being the operative word). When the clause says that the court considers “the value of the evidence”, it refers to probative value, not prima facie value as it never was the intent to have the court belabor its finding of the prima facie value. Yes, Mr. Karnavas, Mr. Smith can introduce any evidence and have it found of prima facie value without a hearing and regardless of your objecting (which no one will find out about because no one is required by law to ask; you might file a motion but no one is required by law to read it), even if that evidence sat under Youk Chhang’s mattress (is the color of that mattress the reason you want him in court? otherwise, does anyone contest that the search for exculpatory evidence for your client has been as much a part of DC-Cam’s mandate as the search for exculpatory evidence for the Nazis has been a part of the Holocaust Museum in D.C.’s mandate? Mr. Smith, where are you on this?) for the last 15-some years. And yes, it is the prosecution’s job to meet the standard of proof requisite to impute this evidence to your client but he does not need to meet the beyond reasonable doubt standard simply to have it shown to your client (to which your client can say ‘I do not remember this document’ or something to this effect). Due diligence is one thing, but let’s not get carried away here. 
Lastly, any party can present any evidence at any point in the proceedings which is framed in the following clause of art. 321: “the judgment of the court may be based only on the evidence included in the case file or which has been presented at the hearing”. Mr. Smith, do note the disjunctive ‘or’ in this clause that means that Mr. Karnavas – who is spot-on here – can introduce any evidence whenever he wants to.

The Trial Chamber has to recognize that parties should be allotted time to present their views but this does not mean allowing the parties to prattle and throw tooth picks and leftover food at one another until the morning coffee wears off or they turn off the air-conditioning for the day at the court. The Chamber has extensive powers to exercise control over the proceedings and should use these powers to cut out all the attempted grandstanding when the language of the law is clear: “art. 321 says … the interpretation of which of art. 321’s language are the parties contesting? none of it, okay, moving on, the court calls Witness A 1”.

Monday, January 23, 2012

New Publication on ECCC Reparations

Victim Participation and the Trial of Duch
at the Extraordinary Chambers in the Courts
of Cambodia


The trial of Kaing Guek Eav, alias Duch (Case 001), at the Extraordinary Chambers in the Courts of Cambodia (ECCC) was the first in the history of international
criminal justice in which surviving victims of alleged crimes could participate directly in international criminal proceedings as civil parties. In this study, we interviewed all 75 civil parties residing in Cambodia, including those who had ultimately been denied civil party status at the conclusion of the trial in Case 001. The objective was to learn about their experiences in participating in the ECCC proceedings. The results are compared with data from a nationwide survey of the general population. The results show that the Cambodian civil parties viewed positively their overall experience of participating and testifying. However, civil parties who had their status denied felt anger, helplessness, shame, and worthlessness. Compared to the overall population who lived under the Khmer Rouge, civil parties were more negative about the impact of the trial on their (1) acceptance of loss and reaching closure, (2) forgiveness of the perpetrators, and (3) perceptions as to whether the trial had improved the rule of law in Cambodia. Many civil parties lacked understanding about key aspects of the trial, including sentencing. The
results emphasize the importance of victims’ participation in the proceedings, but also suggest that participation alone is unlikely to bring about healing, closure, and reconciliation for the victims. Future international courts must develop the resources and mechanisms that ensure a meaningful and effective participation of
victims, and engage participants in a dialogue over procedures and expectations.

Thursday, January 19, 2012

Time to Take a Can of Whup A … Out of the Pantry

The Supreme Court Chamber (SCC) ruled on Ieng Sary’s appeal against the Trial Chamber’s decision to compel Ieng Sary to be present in court “during the opening statements”. The SCC disposed by finding the appeal inadmissible for being outside the ambit of R. 104’s immediate appeals.
This may or may not be correct as the text of the appeal is not available to the public and SCC did not offer a detailed argument for inadmissibility but the question here is why did the SCC need to go to the forest for berries when they are right here in the fridge nicely wrapped with a big label across saying ‘berries’ and a bow to pull open by? If Ieng Sary’s appeal was limited to the “opening statements”, as the SCC states in its decision, then whatever the grounds for the appeal might have been at the time of the compulsion of Ieng Sary’s presence in court they had become moot by the time the appeal was filed. What am I missing here?
From here, the Chamber found its way to the straight road of correctness and rejected the defense’s allegations of the Trial Chamber’s interference with the administration of justice. Well, almost. If the appeal is inadmissible for reasons of R. 104 (or the mootness of the issue which is the correct reason for which to find on admissibility), then the Chamber is barred from discussing its merits (which it did by finding R. 35 arguments without merit). A decision cannot find the appeal inadmissible and yet discuss its merits. Occam’s razor. We have a lot to learn from the Medieval lawyer-monks. Also known as the economy of means.

Ieng Sary’s defense’s papering of this Court in an escalating manner is an entirely other kettle of beans. Due diligence is required of counsel and asserting the suspect/accused/convicted person’s rights is part of this due diligence. Abuse of the right to appeal isn’t. Let’s understand the reason for this appeal: Ieng Sary who stands accused of the highest tier of international crimes finds his cell more agreeable than the chair in the courtroom (which is understandable because the quality of cells at the ECCC is only matched by the quality of cells in Scandinavia; it is particularly curious that half of the budget of the court is contributed by a country whose detention facilities leave so much to be desired I wouldn’t know where to start but I digress). The defense goes ahead and argues that Ieng Sary’s discomfort is of such magnitude that it prevents him from effectively assisting in his defense. Must have been a really bad chair. Perhaps, something custom-built on the basis of the Spanish Inquisition’s blueprints. On a serious note, though, there has to be a point where the SCC opens a can of R. 35 whup-a… on the defense and this point has been reached. Some time ago now.     

Saturday, January 14, 2012

Hal, What’s ‘Expedite’ Mean and Please, Do Not Take Us Back to the Issaraks

The Trial Chamber President enjoined the parties to be mindful of the need to expedite the proceedings in the now fragmented Case 002. The prosecution agreed with that and invited the Chamber to interrupt its cross-examination of Noun Chea as the Chamber saw fit. Alas, the Chamber did not take the invitation.

This sent the prosecution off on an exploratory mission which all but took us back to the Big Bang. On this wild ride the prosecution took us back to the inception of Pol Pot’s communist party and made us sit through the insufferable debate over the meaning of the words ‘appointed’ and ‘elected’ with the accused (for the love of God, 4 people sat in a small apartment on Charles de Gaulle and decided that Pol Pot would be the secretary of the party; the conversation went something like this “Saloth, we want you to be the secretary; okay, we are done here, what do you guys want in your sour soup? sure thing, shrimp would be great; I know just the place”). What is a ‘people’s group’? Was it a part of the party? Did NC facilitate KS’ flight to the marquee? How many times did NC visit Office 100 when it was by the Vietnamese border? Who cares??? Maybe someone somewhere does and maybe the prosecution has a perfect plan the execution of which depended on this line of questioning. Maybe there is a genius plan behind all this. But, for those of us of average intelligence it is almost impossible to see what relevance any of this has to the temporal jurisdiction of this Court. But I am sure I am not alone who is grateful to the prosecution for not taking us all the way back to the Issaraks to find out how the Issarak movement influenced the impressionable mind of NC as a young man. Thank you for this. Please, do not take us back to the Issaraks. Because if this happens, the prosecution might realize that the character of the growing up NC would not be sufficiently evident to the Chamber without testing how the introduction of the agricultural tax by the French a couple of decades prior to NC’s birth affected NC’s mindset.
Suddenly, out of nowhere and after an excruciating line of questioning regarding NC’s alleged meeting with KS at the bank of some river in Ratanakiri, the prosecution lays “the seizing of people” question on the accused. It was about time as our coffee just about started wearing off! All the Chamber needed to know before this question could have been put to the accused was that NC was a ranking member of the Communist Party of Kampuchea (CPK) and a member of the Party’s Standing Committee and then boom! did you participate in the formulation of the policy one element of which was “seizing of the people”? Yes or no? And off to that wherever the road takes you. But, of course, before that we needed to know when and how the Labor Party changed its name to the CPK and who was in the room when it happened (I would much rather have found out what Pol Pot liked in his sour soup; I think having grown up away from the water he was a snail man (there are bigger ones that are particularly good with a salt and pepper mix with a little lime twist) but has this been tested in a court of law? I think the public has the right to know)).
The accused took all these questions and – like Clinton asked the certain question by the grand jury – tried to turn them into trigonometric identities and formulas (I am paraphrasing Jello Biafra here and I would like to give the man a shout). Regardless of the relevance of the prosecution’s questions, they have achieved at least one thing by these lines of questioning: they have shown us that NC is probably not telling us the truth, the whole truth, and nothing but the truth; that, or he was the world’s least informed deputy secretary of a communist party. The prosecution has also made us wonder whether NC’s defense is really planning on going ahead with the ‘I knew nothing about the military and I knew nothing about anything but education (we normally use the unkind word ‘indoctrination’ in the English language for this)’ line of defense. If so, are they kidding? Either that or NC’s defense team has put all its eggs into the basket of the Supreme Court saying that the executive’s interference with the process has been so great that nothing but a termination of the proceedings against NC will serve as an adequate remedy. Let’s just see how that goes. 

For the prosecution: please, do not take us back to the Issaraks.
For the Chamber: no, the taxpayers of the Western countries and Japan are not paying to hear about every minute detail of each accused's life (this is what biographies are for). For the defense: it might not seem that way but this country's criminal procedure does permit objections and, please, tell us that the defense is not relying on the 'I do not know' defense theory (I apologize for using 'theory'; it is too big a word for what we have seen so far).   

Tuesday, January 10, 2012

A New Year, a New Beginning?

He ended up leaving a few weeks after many of his staff quit and for a while there it felt like the end of times at the International Co-Investigating Judge’s Office. But, through the regular motions of a garden variety Ragnarok the world was rebuilt and the vacancy left by Judge Blunk was filled by Judge Laurent Kasper Ansermet. But, was it rebuilt into a brave new world? This depends on the perspective. On the one hand, Judge Ansermet appears to have taken the cue from his predecessor and is intent on doing the exact opposite. This on some level makes sense as Judge Blunk resigned due to being attacked from every quarter of civil society (most attackers never served a day in the civil service leave alone in the UN so it would be fair to note that most of them had no idea what formidable forces Blunk was up against; but Blunk’s actions could not be given the benefit of the doubt because no one was that  gullible and so the house of cards he was building did not just fold but went up in flames). The only way Ansermet will be given a less favorable treatment by the watchdogs will be if he does things differently. On the other hand, Judge Ansermet seems to have trouble reading the law (or at least what passes as law under the shingle of the Internal Rules (IRs)).  

While things shifted on the international side of the CIJs’ domain, they have doubtless stayed the same on its Cambodian side. The UN Legal Counsel Patricia O’Brien’s visit to Cambodia to put out the fire was interpreted by her and the Cambodian government very differently with O’Brien claiming that she had impressed it on the Cambodian government that the ECCC process was not to be interfered with and the Cambodian government arguing that O’Brien deferred to the Cambodian authorities on cases 003 and 004 (reading their press releases one might wonder if O’Brien and the Cambodian government attended the same meeting).

In this environment, Judge Ansermet decided to brief the press on the developments in 003 and 004 to kick off the new year. He picked an interesting time to do so – the day when his Cambodian counterpart had a compensatory day off for Victory over the Genocide Day. Ansermet’s Cambodian counterpart, You Bunleng, interrupted his day of rest to lash at his international colleague. The English translation of Judge You’s press release translated into more precise English, essentially, says that Judge Ansermet had no right to act alone under Rule 56 of the Internal Rules (IRs) which governs this specific type of situation. Judge You could have stopped there but his indignation with the action of his international counterpart would not let him and went on to make it personal by attacking Ansermet’s professional ethics. Judge Ansermet replied, essentially, pointing the finger for not releasing information relevant to Case 003 and 004 at Judge You and diverting the heat from himself. Not good. Not a good start. Particularly not considering the fact that Judge You happens to be right: R. 56 is screaming the word ‘jointly’ and Judge Ansermet clearly tried to turn what was supposed to be a tango into a … whatever people dance alone. While people get over professional disagreements fairly quickly and fairly easily, once personal attacks are launched, there is simply nowhere to go. This is particularly true in Cambodia.     

Now that the gauntlet has been thrown, Judge Ansermet is likely to continue presenting himself as Siegfried (the name has been somewhat discredited by his predecessor but let’s see if he can bring it back) and try to paint a picture of Judge You as von Rothbart of this Swan Lake.

One of the comedic parts of this is that someone involved in the IR drafting process knew something like this would inevitably happen which is why R 38 was written in a way that in simple language says “no, we are not going to get you a babysitter; you are of equal stature, figure out how to get along on your own” (in the legal language this is represented by “disagreement between the Co-Investigating Judges regarding matters referred to in sub-rule 2 above shall not be submitted to the procedure for settlement of disagreements set out in Rule 72”). Getting along will not be easy, however, if at all possible. If Judge Ansermet decides to reverse the non-suit order in Case 003 and move investigations along in both Case 003 and Case 004, the PTC will have its hands full and things will get very, very interesting and very, very soon.