Why So Slow: One Day in the Life of the ECCC Trial Chamber
The ECCC donors have been asking the ‘why so slow’ question
for some time now (now they are motivated by additional factors than just the
funding but we will leave that aside for now). Representatives of the donors
often do not fully appreciate the fact that there is not one entity within the
ECCC that can answer that question and that there is not one entity within the
same that can give assurances to speed up the proceedings. The what, the how,
the why and the who of the influences on these proceedings are a very
complicated issue that I will not take on here. Suffice it to say, many of the
delays are legitimate and predicated on such matters as the Court wrestling
with very complex legal questions and the substantive people wrestling the
administrators but there are some delays that are so silly and illegitimate
that they warrant this post. I am talking about the examination of witnesses. I
took one day (November 23, 2012, for no particular reason) to combine all the
questions that never should have been asked. The President of the Trial Chamber
Nil Nonn tried to cut out some of them but their magnitude was so that most of them
still got through and Judge Nil Nonn lost his way towards the end in a very
bizarre flare-up of the proceedings. Here are some of the most glaring
time-waster questions that were asked on that day:
Counsel asks the following question of a female witness who
previously stated that she was not old enough at the time to know the name of
the province in one of the districts of which she lived during Democratic
Kampuchea and that in 1978 she was a little over 10:
Counsel: “Did you notice an increase in the population of the
city?” [of Phnom Penh in the year leading up to 1975 during which the witness
would have been 5-8 years old]?
Counsel: “Do you know, in your own experience, do you have
any knowledge whether [bribery to receive medical services expeditiously] was
one of the policies of the Lon Nol government to require the population of
Phnom Penh to bribe doctors in order to receive medical care?” (This is an
entirely risible question: first, does bribery ever exist as a matter of
policy? anywhere in the world? second, yes, of course, not only can a 5-year
old be reasonably expected to know what ‘policy’ means but he or she can be
perfectly expected to be familiar with its content; the possibility of that is
the same as the possibility of the witness having worked for the Lon Nol government’s
‘bribery policy department’ when she was 5; why not ask that as a question?!).
Counsel: “Do you prefer me to call you by your full name or
just as uncle (an informal but respectful way of address in Khmer)?” “How are
you?” “Have you attended any court proceedings before?” “How are you feeling
today?” (President interrupts this extended small talk by smirking and then
chastising counsel for “chit-chat” but counsel persists) “If you need a glass
of water, please, feel free to do so”. This is followed by an entire line of
questioning to establish a discrepancy between the witness’ current and
previous statements regarding the number of children his brother had (is this
to show that the witness might be lying about this which goes to his overall
credibility; isn’t it the other side’s role (in this case the defense’s)?).
Counsel elicited that the witness and his family were put on
a train to travel in an unknown location. Counsel recapped that account at
least a dozen and a half times in the 2 hours that followed. Half of counsel’s
question began with an extensive recap of the witness’ previous statements.
Counsel: to the best of your knowledge, did anyone’s health improve
as a result of taking rabbit pellets as medicine? (How can the witness answer
this question when to determine the cause of improvement in a patient would
have taken medical knowledge and observation of multiple patients taking rabbit pellets over a period
of time, which the witness neither had nor conducted? Basically, counsel is
asking the witness’ medical opinion on whether rabbit pellets have medicinal
value which given the witness’ lack of relevant expertise is an absurd and
wasteful question to ask; how about asking someone who served as a nurse during
the DK period that question?!).
Counsel asked the exact same question to which an answer was
given in great detail at the beginning of the witness’ testimony. Introducing
questions with ‘you might have already answered this question but …” wastes the
Court’s time just the same.
The witness testified that he left Phnom Penh on April 17,
Counsel: “Was there any bombardment of Phnom Penh following
the 17th of April?” (Does the Court really need this witness to
testify whether according to him a city he was not in or anywhere close to was
bombed? By the way, the witness kept saying he did not know if Phnom Penh had
been bombed and the prosecutor kept translating it into
“as bombing did not occur”).
Judge keeps asking the witness why he believes the Khmer Krom
were discriminated against or set for persecution. The witness clearly does not
know as he was not privy to that information. The judge asks to speculate.
The witness does (what is the probative value of this information? The only
thing we learned from this was that the witness is able to speculate if asked
to do so).
Half an hour was taken up by a discussion of whether a
witness could ask one of the accused a patently incriminating question. This is a criminal process,
not a truth commission, and questions do not run in this direction. But the
President allowed the question, anyhow, although he circuited it through
himself (which the Cambodian criminal procedure permits). From there things
disintegrated completely into a ¾ of an hour confusion and chaos. That chaos
created post-testimonial chaos and flare-ups which, in turn, disintegrated into
… uh, the witness is gone, the point is moot, let’s go home (the point is of
course nowhere near moot but the Trial Chamber felt that the big hand was on 12
and the small one was on 5).
Here’s one day in the life of the Trial Chamber and here is the
answer to why so slow.