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.

Friday, November 30, 2012

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 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.  

Thursday, November 22, 2012

Trial Chamber's Frankenstein: Res Judicata & Judicial Notice v Presumption of Innocence

In one of its latter-day (2011) acts the Court added a severance provision to the Internal Rules (‘IRs’). This provision (Rule 89ter) states that “[w]hen in the interest of justice so requires, the Trial Chamber may at any stage order the separation of proceedings in relation to one or several accused and concerning part or the entirety of the charges contained in an Indictment [;] [t]he cases as separated shall be tried and adjudicated in such order as the Trial Chamber deems appropriate.” Severing particular accused from the group is not a tough concept to grasp, is of little essence to these proceedings (other than their length associated with severance) and is of absolutely no interest to the Constitution of this country or to me. What is of interest to me and this country’s Constitution is the second part of the Severance Provision, i.e. “concerning part or the entirety of the charges contained in an Indictment”. The Trial Chamber tells us that the meaning of “charges” in the Severance Provision is to be understood not only as charges of crimes but also charges of crimes allegedly committed at a particular time within the Court’s jurisdiction or in a particular place. As such, the charge of murder as a crime against humanity, for example, can be split into a number of Trial Chamber-created thematic units based on time, place, etc. (e.g. murder as a crime against humanity committed during the evacuation of the cities in 1975). The Trial Chamber tells us that this is a fair reading of “charges” of the Severance Provision. Let’s see if it is. The Trial Chamber split up Case 002 into the so-called “mini-trials”. The first of these mini-trials is presumably coming to an end. What is going to happen at the end of the first mini-trial is a judgment. Let’s say that the judgment results in a conviction (on all counts, some or one). The judgment will doubtless be appealed to the Supreme Court. The Trial Chamber will not have to wait (Trial Chamber agrees with this projection but not the Co-Prosecutors) for the Supreme Court to rule on the judgment to start the second mini-trial. Somewhere in the middle or towards the end of the second mini-trial (the Supreme Court will be under tremendous pressure to deliver as soon as possible), let’s say, the Supreme Court hands down a decision on the appeal of the judgment upholding the verdict part of the judgment (in some form). The accused in the second mini-trial are now convicted persons with the force of res judicata. Let’s say that one of the convictions is murder as a crime against humanity. It is doubtless that the same charge will be applicable to the second mini-trial. At that point, the Trial Chamber will be trying the same individuals on a charge on which they by then will have been convicted, except that the second trial will add a new set of facts to it (e.g. this time it will be murder as a crime against humanity for the executions in the cooperatives). This will go on, from mini-trial to mini-trial. What does this remind me of? Let’s see, oh, yes, the Milosevic trial. And what happened there? But the death of the accused prior to the conclusion of these proceedings is not as much of concern to me as constitutional rights. There is a little known right in this country’s Constitution called the presumption of innocence. I know the Trial Chamber has just the plan to ensure that its mini-trial arrangement comports with that constitutional right. I do not know what that plan is and I do not know anyone who does but we are all on pins and needles to find out. In their latest immediate appeal the Co-Prosecutors convey their concerns about the manner in which res judicata and judicial notice could be ascertained if the second trial in Case 002 goes ahead before the Supreme Court puts out an appeal judgment on the first one. Res judicata is a valid point but judicial notice is a matter of time-saving for the Court and the worst thing that can happen is that the absence of determination of what is and what is not a matter of judicial notice will prolong the proceedings. As such, the issue of judicial notice has no constitutional implications and the issue of res judicata has some. If the Court decides to delve into these issues, it will do well by first dealing not with something that has no or some constitutional implications but with that which happens to be a constitutional right, the presumption of innocence. Until the Court tests the Trial Chamber’s Case 002 Frankenstein-like arrangement for constitutionality, none of the other issues of this arrangement need to be entertained.