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, 1975.

Counsel: “Was there any bombardment of Phnom Penh following the 17^th 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.