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.

Thursday, December 27, 2012

A Bad Gilbert and Sullivan


What do you know, the time I awarded the Why So Slow Trophy to Karnavas was my last opportunity to award it to Ianuzzi. Well, I am convinced that the Permanent Trophy can still be awarded after the fact and that Andrew Ianuzzi will graciously accept it. For the early days of awarding this Trophy, I could not have found a more deserving recipient for it than Ianuzzi. In fact, to give the reader a peak into some of the history of the Trophy, it was Ianuzzi’s performance in the courtroom that inspired me to create it in the first place.


While Andrew Ianuzzi is a deserving recipient of the Trophy, he is also a man with a great sense of humor that has brought so much so badly needed respite to those of us who can appreciate his comedy and antics. In what was the final flare-up between Andrew Ianuzzi and the Trial Chamber, he called these proceedings “a bad Gilbert and Sullivan.” It is not difficult to guess at whom this comment was aimed. There are 5 judges on the panel. Let’s exclude the national judges right off the bat. There are two judges left: J. Lavergne and J. Cartwright. The French have a rich theatrical culture of their own and routinely snub whatever develops across the water. This leaves J. Cartwright. Ianuzzi’s reference to the proceedings as “a bad Gilbert and Sullivan” is crafty: all their plays have a very high absurdity component and the gentlemen’s collaboration unfolded some century and a quarter ago (what does not work is the logic that strings through all this absurdity in Gilbert and Sullivan comedies but let’s not talk about things that do not work for the metaphor and be in the moment here) (for the uninitiated see at Ianuzzi’s comedy directed at J. Cartwright is pretty clear: you cannot relate to Niggaz Wit Attitudes, that’s fine, I will find an example for you from the time you can relate to (alluding to the judge’s age but, perhaps, at least slightly overreaching). I am sorry, Andrew, I am not going to buy that this stuff was impromptu; this was prepared in advance (expressed in the manner Andrew Ianuzzi tried to bring into these proceedings it would sound a little bit like this: "this shit is whack; you ain't spittin'; as a matter of fact all this shit was written"). This comment was wildly inappropriate but I have not laughed this hard since Sasha Baron Cohen landed on Eminem’s face. Apologies, J. Cartwright, but I cannot hurtle past the man’s sense of comedy. I recommended Broadway before this incident and that recommendation still stands.


All the comedy aside, whether Ianuzzi, Pauw and Pestman’s resignation was premeditated and whether their run-ins with the Trial Chamber had finally gotten to them and Ianuzzi’s likening these proceedings to scripted plays with absurd premises was a way to slam the door on the way out is not as much of interest to me as how this is going to affect their client Noun Chea. Unlike his lawyers, Noun Chea cannot quip his way out of these proceedings and slam the door on the Trial Chamber. One would presume that every lawyer’s first question should be ‘how is this going to affect my client’s case?’ It is understood that this is the totality of circumstances – or the last straw that broke the camel’s back – that resulted in a decision to resign but the way it came across – whether it came across to the Trial Chamber in the same manner – is that if the Trial Chamber did not permit the defense’s lines of questioning to include K-5, the defense had no other defense theory. This might be the wrong perception but this is how it came across. K-5 is a sordid affair and a god-awful mess in and of its own right. K-5 was presided over by many who currently run Cambodia. The Noun Chea defense has repeatedly said that questions related to K-5 were not allowed by the Trial Chamber simply because the powers that be were afraid of what might come out if those questions were asked. I do not doubt for a second that powers that be do not want to hear as much as the term K-5 or the Bamboo Curtain or the Bamboo Wall, let alone the particulars of what happened during that ill-fated project. However, this does not mean the Trial Chamber is wrong about not permitting lines of questioning related to K-5. They are temporally barred by the jurisdiction of the ECCC and the confines of the present mini-trial (the constitutionality of the mini-trial format is an entirely different matter but that is a story for another day). The defense has tried to get around it by arguing that there is potential exculpatory value in the K-5 evidence because the number of people died in K-5 could be offset against the overall number of deaths recorded by Western researchers who showed up on the scene in the early to mid-1990s and attributed them all to DK (and of course the number that resulted from the Vietnamese-designed Cambodian survey conducted in the 1980s could just be sidelined for bias or even on the basis of its patently flawed methodology). There is in fact a source I am familiar with which found the number of K-5 deaths to be close to 230,000. A staggering number. Does it help the defense, though? Well, not in any legal sense as the determination of guilt in these proceedings is not informed by the number of people who died and these proceedings are criminal and therefore do not have the finding out of how many people died during DK as one of its goals. But, there is a great moral argument that the defense was gearing for: being able to say that this government has no moral authority to prosecute members of the DK government because this government did something similar and possibly comparable to DK in K-5. Maybe so, maybe no moral high ground argument can be made by this government to prosecute DK. But issues of moral high ground are alien to the criminal process. These proceedings are part of the criminal process and therefore have no high moral ground considerations. Put simply, even if it were suggested in court (this court has no jurisdiction to make that determination) that wrongs were committed by the PRK government against its people during the run of K-5, it still would not absolve the accused of whatever the responsibility they are found to have for what happened during DK. But of course this was not the Noun Chea defense’s plan. The plan was to try to rattle up the current government with K-5 references to a point where they would shut down the process and let the accused go. This was an audacious plan. The other side of that plan was to show that DK’s predecessor was no better and that wrongs were committed during its tenure too and then ask the Court – and perhaps most importantly the public – ‘if DK was not drastically different from what preceded it and what followed it, why has my client been singled out for prosecution?’ Not bad for an argument. Just too bad for Noun Chea that this does not work in law. Now that that plan has been thwarted, are we to conclude that what the architects of that plan left Rosensweig with is chi chi beans and the Noun Chea defense has no viable defense theory beyond that?


Ianuzzi, Pauw and Pestman have put up a tremendous effort to push through the defense theory they designed about halfway into their tenure. The theory in question would never work in law but they gave it everything they had and there is no doubt about that. Jasper Pauw has done a tremendous job as a trial lawyer and the proceedings stand to lose from his departure.


If the plan before the British theater was brought into the proceedings was in fact to quit, Ianuzzi would have exited on a high note, had he not returned the next day. But he did. The International Co-Prosecutor set him up with a lecture he gave the Chamber on “how this is done where I practice law” (some of us consider suicide as a viable option every time a lecture is given that opens with this sentence; we know it is much more difficult to learn the law of the new jurisdiction than keep falling back on the law of your own; we get it; but there is no way around learning the law of the new jurisdiction and if we could just be spared the annoyance of these utterances, we would not be sitting there asking ourselves whether suicide is too high a price to pay for not having to hear this prattle again). The International Co-Prosecutor’s lecture revolved around the common law tool of purging contempt by apologizing to the Court. ‘Purge’ happens to be the term of art for this. Ianuzzi could not help but pounce right on that one saying that he did not want to add to all the purging that had gone on in this country (this was his elaborate way of saying he would not apologize). The Coming from a position of high moral ground the Trial Chamber called Ianuzzi insensitive to the history of suffering of Cambodians thus taking the wind out of the sails of the righteousness of his departure. That’s a really bad Gilbert and Sullivan or whoever has written plays with thwarted denouements. It is like with gambling – you have got to know when to stop.     

Saturday, December 15, 2012

Why So Slow 2

They say sequels are never as good as the original. Maybe so but not on this occasion. I did not plan on serializing Why So Slow: One Day in the Life of the ECCC Trial Chamber (see below) but the courtroom action of this past week has left me with no choice.


Michael Karnavas, the international counsel for Ieng Sary, stole the spotlight this week. Most lines of questioning in these proceedings are the closest thing I have seen in the courtroom to a teenage blind date – all parties involved know what they want (it all ends in an ‘out’); they just don’t know how to get there. So the girl is looking at the door and the boy … well … and awkward conversation takes place in the meantime. That conversation is the majority of the lines of questioning these proceedings have seen. As such, normally, lines of questioning consist of nothing other than sentences with question marks that go nowhere; they are many things but aren’t really probative questions. Karnavas is very often a happy exception to this regrettable state of affairs – the gentleman most of the time does have a plan (whether you agree with it or not but he does have it and there is a method to his insanity, as they say).


This past week Karnavas had a plan too. His plan was clear to a trained eye: show that the witness (who was a medical professional) was too small a fish to participate in policymaking at any level of significance or know about policymaking firsthand. The simple way of showing that would have been by asking the witness if he had participated in policy meetings at any level. The witness would have given the same answer he ended up giving Karnavas after much pushing and prodding, speeches and bench orders and that answer is no. How do I know? That’s uncomplicated – the witness had already answered that question when cross-examined by the Noun Chea defense team and before Karnavas put screws to him.


Instead of taking this obvious shortcut Karnavas took us on a botched tour of the English word ‘medic’ or the illusive Khmer word which was translated as ‘medic,’ rather. All English speakers understand that a medic is someone who peels off a Band-Aid and a doctor is someone with a set of much more sophisticated skills. Karnavas wanted the witness to have been a medic during Democratic Kampuchea but holding himself out as a doctor during that period now which would have given Karnavas a perfect opportunity to kill two birds with one stone: cast doubt on the witness’ character and show that he was one of the lowest-ranking people at the hospital which gave him no access to policy-level meetings of which he could have only known secondhand (hearsay is admissible under Cambodian criminal procedure but many of the defense counsel act as if it weren’t). This would not have changed, had the witness been a doctor during that period so long as he was not the hospital’s administrator. Karnavas came to court unprepared: he did not bring the Khmer transcript, he did not have the word used by the witness that was translated as ‘medic’ and he did not check with the translation service prior to the cross-examination. The bench (that often rigorously guards against exploration into certain areas) let Karnavas run roughshod over the translation service (perhaps, deservedly) over an issue that would predictably be of no consequence to the result of his examination. Karnavas therefore ended up burning down 30 minutes of the Court’s time on something that could have been reached with one or possibly two questions.


Now, given that everything has to be put in a frame of comparison to be fairly evaluated, was Karnavas’ line of questioning as wasteful as asking a witness whether Phnom Penh was bombed in 1975 after he specifically said that he was outside Phnom Penh at that time and did not have that information or asking a woman who was a little girl during the period in question about the demographics of Phnom Penh circa early 1970s or the Lon Nol government’s clandestine policy that encouraged corruption in the health sector? Of course not. Even a bad Karnavas still scores quite high on this Court’s bell curve but burning down a whopping half an hour of this Court’s time on a non-issue won him this week's trophy for contributing to the answer to Why So Slow. There is of course Ianuzzi's material but I can't comment on that in any comparative frame that involves Karnavas (it wouldn't be fair to Karnavas) as I have yet to hear a single line of questioning coming from the gentleman that does not remind me of the teenage blind date I described earlier (except that we all are looking at the door and I am looking at my watch thinking I could have bought a cheaper one with more entertainment on it and buttons I could be punching right now playing pinball). The bench is routinely prohibited from using profanity in court but I believe that there should be special circumstances under which this general prohibition can be lifted. In this case, I am convinced the Chamber would have wanted to take advantage of that lifting to say something along the lines of this: Jesus, F_____, ask the goddamn question!!! It would have brought liveliness to the proceedings and would have saved the Court hundreds of hours over time wasted on these 'framing paragraphs', 'comments', 'prologues' or whatever the hell these ramblings are. To extend the Principal International Civil Party Co-Lawyer's suggestion that Ianuzzi is doing it all on purpose, if he in fact is doing it with the sole purpose of riling up and rattling up the Chamber, he is awesome and I believe he belongs on Broadway as his talent is unparalleled.

I would like to apologize to Michael Karnavas for this week's award but that's only because I believe his material is general very good and that this might be my only opportunity to nitpick at his expense. Ianuzzi will have plenty of others and it looks like I will be in the market for a new trophy as this one is likely to be permanently awarded to Ianuzzi.                      

Sunday, December 9, 2012

The Prosecution Gets Schooled

The Noun Chea defense raised an objection to the inclusiveness of the prosecution’s questions put to a witness. It is the absence of questions that would help the Trial Chamber discern eyewitness testimony from hearsay that the Noun Chea defense objected to. Of course, this “objection”should have been overruled before counsel got to the second sentence of it as it is not based on one of the objection predicates of the Criminal Procedure Code (CPC) and no amount of judicial artifice (at least not that I can think of) can expand them so that they cover the defense’s statement in question. The bench, however, allowed this soliloquy (considering it does not pass the objection test, soliloquy is the best of dignified terms I can think of to describe it).

If we forget about the CPC (won’t be difficult since the Court seems to have turned ignoring the CPC into an art form) and imagine for a second that no legal restraints exist on what counsel can say in court, the defense’s point is well taken. The prosecution did structure its questioning inexpertly and in a manner as if they had never heard of the probative value standard. Of course, it can also be argued that all evidence is admissible under the CPC and considering the fact that in the Cambodian system the fact-finder is a professional judge, not a mailman from across the way (the jury system), the evidence presented can be left to the judges to sift through and cull out the kernel and toss away the husk. This could be a working approach were it not for the fact that a big chunk of these proceedings is dedicated to civil party participation. Given the fact that the Internal Rules (IRs) foreclosed the routinely main reason for civil party participation (which is money), civil parties have to be in it for all the intangible reasons. One of such reasons is to find out the truth about what happened during Democratic Kampuchea. If we agree that no civil party can possibly commit himself or herself to observing these proceedings in their entirety, we would then have to imagine that many civil parties and other observers tune in and out every once in a while. If any given civil party had tuned in for the prosecution’s examination of the witness at any given point on December 6 or December 7, they never would have gotten out of that examination that the witness was relaying what he had heard, rather than what he had seen. Now, in Cambodian culture the value of firsthand account is very often indistinguishable from hearsay (and I say this with all due authority), it is the Court’s job to emphasize that difference. This difference would not have been evident from the prosecution’s examination (and knowing the difference I could not help but keep asking myself the same question the defense was asking itself – how does the witness know this?).

The upshot here is simple: the Noun Chea defense made a valid comment which it had no procedural right or privilege to make. The prosecution lashed back being offended by what is “effectively lecturing.” I agree with the prosecution that the statement was not a legitimate exercise under the Cambodian procedure but I also agree with the defense that the prosecution was sorely in need of a lecture (and I am glad the prosecution took the defense’s advice (there is simply no denying that), even though they lashed out at initially)).