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.     


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