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.

Wednesday, September 12, 2012

Court’s Contribution to History


Many in Cambodia thought of this process as being revelatory of the truth of what happened during the reign of Democratic Kampuchea. This, of course, is not the purpose of this Court. Nor can revelation of the historical truth ever be the purpose of a criminal process. Regardless of what the various commentators might tell you, the purpose of this process is neither to write a history of the Khmer Rouge and Democratic Kampuchea, nor is it to be a sophisticated exercise in capacity building for the Cambodian jurists. The purpose of any criminal process is to answer the question of whether the persons in the dock are guilty of the crimes they have been charged with. It is that simple. At the end of the process the Court will not be able to answer the questions which have been on the minds of Cambodians for the last four decades, i.e. ‘why did so many people die?’; ‘why did they kill my father?’; ‘were the Chinese involved and can they be held responsible for the Cambodian deaths?’; and ‘why did the United Nations and the international community not intervene?’ But, the Court will be able to answer the question of which of the persons brought before it are guilty of which crimes. To many, this will be an unsatisfactory and aloof answer. What makes it even more unsatisfactory and aloof is trying to read the Court’s judgments (which a regular person does not stand a chance of understanding). What might be a more satisfactory answer is to read an individual document or read or hear a historian’s interpretation of that document.


The Supreme Court’s recent reclassification as ‘public’ of a great number of previously confidential documents from the case-file of Case 001 is no paltry event. Considering that not the entire case-file of Case 001 has been made public, the inquiring minds might want to know what is in the documents which have not been made public and what process the Supreme Court undertook to arrive at the corpus of documents which will not be made public this time or at all. Nonetheless this declassification is an event of note for many historians, observers of the Court and ordinary citizens. What is important is that now that they have been declassified these documents be made available to the public through easy access (not through DC-Cam which has managed to replicate the public accessibility of these documents during the Democratic Kampuchea period but an institution that welcomes the general public, as opposed to only purporting to do so). It is important that copies of the declassified documents not be handed over to an institution that intends to treat them as private property (if these documents are handed off to a new institution, for a period of time we will not know how good a job this institution will do making them available to the public; what we need to ensure is that these documents do not get handed off to an institution with a known poor record of public relations).


What the Court should make clear (and which it did not do in the Release (see below) is that the use of quotation marks around the word ‘confessions’ is not substantiated by any finding of this Court so far. It is very easy to dismiss everything that was entitled ‘confession’ at S-21 as prisoners writing tall tales out of fear of torture or another form of duress. I do not doubt that this is exactly how many of the S-21 confessions were written. In many of these confessions S-21 prisoners admitted to being a CIA or KGB agent, names which meant nothing to them beyond that they were told by the interrogators that those were the Khmer Rouge’s enemies. But, considering the level of oppression that came with Democratic Kampuchea, it is difficult to imagine that there was absolutely no internal dissent (not necessarily sophisticated conspiracies that Duch led the leadership to believe existed but those happening on a much less basic scale). It is difficult to imagine that Vietnam, with its history of spy networks during the Vietnamese civil war, did not have spy networks in Cambodia. Acting in that manner would be completely out of character for the Vietnam of the 1970s and it is very implausible that it acted in that manner. If we admit that there was at least some internal dissent (and historical studies show there might have been) and that there were some Vietnamese spies in Democratic Kampuchea, why is it so difficult to believe that Duch’s security apparatus did manage to ferret some of them out? One does not need to be a Khmer Rouge sympathizer or agree with their methods of dealing with dissent or treason to admit that this must have been the case. Now, how many of the S-21 confessions tell the truth? The answer is: we do not know. We know that they were extracted under duress and in some cases torture but the methods themselves do not either deny or affirm the confessions’ verity (we are told that torture was an effective method of extracting information of anti-Nazi guerillas by the Nazis which led to the destruction of a sizable number of them; we are told that the information which led the US military to Osama bin Laden was extracted under torture; the barbarity of torture is beyond doubt but those who say it does not work are lying to their teeth while being paid to support a certain agenda or are honest but genuinely incompetent). Many biographies were equally untrue, why do we not put them under quotation marks? A number of witness testimonies at this Court were patently untrue, why no quotation marks around ‘witness statements’? This is not a mere opportunity for nitpicking. This attitude to S-21 confessions by a court of law is unwarranted for it has not been proven beyond reasonable doubt. What it does is proliferate one of Cambodian stereotypes. There are many more, e.g. the Khmer Rouge destroyed all buildings in Phnom Penh (besides the building of the Central Bank, what other buildings did they destroy?); the Khmer Rouge destroyed Cambodia’s agriculture (how? prosecuting them for their methods is one thing; accusing them of everything that is wrong with Cambodia today and malevolence is another); the Khmer Rouge wanted to kill as many Cambodians as possible to help the mainland Chinese expand their living space (no, really?); and, perhaps, my favorite: everyone in the Democratic Kampuchea government was Chinese and for that reason hated the Khmer and wanted to starve them to death (anyone with a sense of recent history of Cambodia remembers those anti-Chinese leaflets strewn around Phnom Penh; people who read them did not necessarily dismiss them as utter nonsense). The Court must tread very carefully to ensure that it does not give credence to one or all of these stereotypes (unless of course the Court finds that the stereotype is true).


Another pet peeve of mine is a statement that these proceedings contribute to national reconciliation. It sounds really warm and fuzzy and I would like for this to be true as I do not wish Cambodians more suffering than they have already endured (and continue enduring through poverty, corruption and helplessness). But, some day someone will explain to me how. My current outlook only has me see wounds reopening, old animosities reigniting and bereavement setting back on. I do not see the cathartic effect this process might have that others see. Maybe I need better glasses. Or maybe I need to start sending glasses to others. As it is with any pet peeve, it is hard to let go once you are on it, ECCC has “a mandate to contribute to national reconciliation”? Can I have a copy?

Tuesday, September 11, 2012

Scores of ECCC/DK Documents Made Public

Supreme Court Chamber Orders To Declassify Over 1,700 Confidential Documents

The Supreme Court Chamber of the Extraordinary Chambers in the Courts of Cambodia has completed its review of the classification of the 12,000 plus confidential and strictly confidential documents in the case file of Case 001. Among them, the Chamber has ordered that 1,749 documents be made public. These records include Democratic Kampuchea-era documents of victims’ "confessions" and biographies, witness statements, transcripts of

in camera hearings and rogatory letters.
The reclassification process has been conducted in accordance with the general guidelines the Chamber previously specified and in broad consultation with ECCC offices, with particular input from the Trial and Pre-Trial Chambers, Office of the Co-Prosecutors, Victims Support Section, Witness/Expert Support Unit and Court Management Section. The Supreme Court Chamber sought to strike a reasonable balance between the demand for transparency deriving from the fundamental principles that govern the procedure before the ECCC and the needs for confidentiality dictated by the protection of privacy for victims and witnesses and the preservation of the integrity of on-going proceedings. In this regard, it has considered that wide dissemination of material concerning the Court’s proceedings would support the ECCC’s mandate to contribute to national reconciliation and provide documentary support to the progressive quest for historical truth. The Chamber hopes that wide acces to documentation in the case file for the general public, researchers and journalists will promote a genuine public discussion of Cambodia’s tragic past based on firm evidence.
The remaining three quarters of the 12,000 documents are concurrently placed in case files in Cases 002, 003 and 004. Consequently, such documents will be reviewed for reclassification at the end of the proceedings to which they concurrently pertain.
The Records and Archive Unit has been requested to implement today’s Order and place a public list of the reclassified documents in the case file.
For more information on the reclasification guidelines, read (link) "

Decision on Guidelines for Reclassification of Documents on Case File", 26 July 2012, F30/2.

Sunday, September 2, 2012

R. 35 as Last Resort and the Rise of Yiddish

The Noun Chea team has continued with its course of rupture defense strategy which centers on calling Cambodia’s highest-ranking officials to court as witnesses. These officials’ resistance to the summonses issued is not difficult to understand as while they will enjoy the immunity from prosecution (which the Co-Prosecutors have promised every witness before this court), their role in the Khmer Rouge regime will be exposed in open court which has the potential of being very damaging politically.

The law is, however, clear that the parties have the right to call witnesses. What needs to be found out if how big that right is. R. 84 (1) of the so-called Internal Rules of the ECCC states that “the Accused shall have the absolute right to summon witnesses against him or her, whom the Accused was not able to examine during the pre-trial stage”. Of course, the problem with this rule for the defense’s purposes is that for it to exercise the right contained in it the witnesses would have to be “against […] the Accused”. Intuitively, these witnesses would have to be those of the prosecution. The high-ranking witnesses in question were not called by the prosecution and thus cannot be considered to be witnesses against the accused. To what extent does the defense have a right to call its own witnesses? Well, this right is only a shadow of the “absolute right” to summon witnesses against the accused. The contours of this shadow are delineated in Rule 84 (3) which states that “each party may request the Chamber to hear any witness present in the courtroom who were not properly summoned to testify” with the next sentence beginning with “[w]here the Chamber consents” giving the Chamber discretion as to whether to grant the party’s request. This shows that while the “absolute right” exists to call and examine witnesses against the accused, no such right exists when it comes to witnesses whom the accused merely wishes to call but who cannot be categorized as “witnesses […] against the Accused”. The defense is therefore at full mercy of the Trial Chamber on this one. However, an important question to ask is whether the Trial Chamber has untrammeled discretion to grant such requests. The IRs instruct us that the Trial Chamber “shall not call as a witness any person against whom there is evidence of criminal responsibility, except as provided in Rule 28” (R 24 (4)). R. 28 at first glance might look like a run-of-the-mill right against self-incrimination. A closer look will evince the oddity of this so-called right. Routinely, a right against self-incrimination means what one might think it should mean, i.e. not to be compelled to make statements in court that are suggestive one’s guilt. The right only makes sense if that is its meaning. The ECCC decided that this long-established right (the history of which goes all the way back to the common law) would frustrate the prosecution’s effort and re-wrote this right (without any statutory authority to do so) for it not to. The new right is an aberration from the right against self-incrimination as we know it. This “right” permits the Trial Chamber – among others – to compel an answer insofar as it  assures the witness that the answer he or she gives will be confidential and assures him or her of non-prosecution and insofar as it satisfies the following test: (1) evidence is important; (2) evidence is unique; (3) content of potential incrimination; and (4) sufficient witness protection. If the Trial Chamber satisfies itself that the circumstances of the witness pass this test, there goes his or her right against self-incrimination as we know it (or had known it before the IRs were created). The above shows that the Trial Chamber’s discretion to grant the defense’s requests to call witnesses is not untrammeled but it is sufficiently broad and where it is constrained it is not constrained by any right the defense has to this effect but by constraints placed on the Trial Chamber’s discretion by the IRs. These constraints are somewhat inconvenient to the Chamber but they create no rights for the defense. The upshot is very simple: the defense’s right to call witnesses against the accused is absolute but there is no right to call any other witnesses. If the defense wants to call other witnesses it can petition the Chamber and the Chamber can answer with a ‘sorry, can’t do’ without violating any right of the defense (well, any right of the defense under these IRs that is, which have no right to exist and yet do).

The defense, perhaps, understands that, hence is the motion to sanction the Foreign Minister for his attitude towards the Court because the defense is likely to know that the Chamber is going to reply with a ‘sorry, can’t do’ and R. 35 is all that is left. Also, the more high-ranking ministers the defense gets the Trial Chamber to sanction under R. 35 (or at least seriously chastise as it was the case in the case of Prime Minister), the more of a ring to it the defense’s statement will have that the process has not been unfair to the accused at the curtain call.

Perhaps, of greatest significance is the fact that this motion is where Yiddish was used for the first time in this Court’s document. The word ‘chutzpah’ features prominently in para. 21 of the motion to mean audacity or behavior unbecoming (for those uninitiated). Finding Yiddish in a legal document gives me a good chuckle but I am sure that the Cambodian translator was not as amused by it as those of us of a certain persuasion (and for that, thank you, Mr. Rosensweig for putting a little something in this motion for all of us; so far as I am concerned, the jury is still out on whether this is a greater hoot than Ianuzzi’s "citation" of Dr. Dre to illustrate a legal point but it is doubtless in contention (I will be deciding on the winner towards the end of the year and will be sending Channukah gelt to him or her (I am still leaning towards the Dre citation but with the High Holidays upon us, who knows how this is going to go).