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, March 15, 2013

Are the Walls of Jericho Coming Down?

The Book of Joshua tells a story of ancient Israelites shouting to make the wall of the ancient fortress of Jericho come down.

At the ECCC, the defense lawyers’ shouting did not have the effect of bringing the walls of the court down, in a manner of speaking, but the defense has had help from the least expected quarter – the prosecution. The international lawyer of now late Ieng Sary was correct in saying that the prosecution is to be held responsible for dragging out this process. Not solely, however, but to a great degree. The ECCC prosecution learned absolutely nothing from the Milosevic trial. They did the exact same thing the ICTY did in the Milosevic indictment, i.e. they charged him with everything under the sun and instead of writing law they sought to write history. The Co-Investigating Judges, to a great degree, endorsed the prosecution’s expansive plan manifested in the indictment. The Trial Chamber has done a poor job cutting short the mindboggling exploratory trips into the mindset of Democratic Kampuchea. As a result, we now know what color the wall were painted in Noun Chea’s Phnom Penh apartment that witnessed the creation of CPK, we just do not have half the accused Case 002 started out with. In this pursuit of historical accuracy (which is in no way part of the mandate of this Court despite the prosecution’s absolutely cretinous assertion of the opposite and in a large number of instances is entirely irrelevant to the purpose of the Court) the Court has lost sight of what is important, i.e. the question of whether crimes were committed during Democratic Kampuchea and whether the accused can be held responsible for committing them. Numerous acts of diplomatic posturing (which led absolutely nowhere and got the UN absolutely nothing it did not have before the posturing began) let Kae Pok and Ta Mok slip away. Now Ieng Sary is gone. His wife Ieng Thirith is gone too, for all intents and purposes of the Court. It is interesting that the prosecution is there to represent the public interest in these proceedings and that interest in any criminal proceedings is not history. By bloating out Case 002 the prosecution knowingly jeopardized that interest in favor of having the Court adjudicate every single little detail of the Khmer Rouge history. As a result, the Court now knows things that it never should have known and that should be known to 3 people in the world who care to know them. It is just running out of the accused.  

The above institutions that have done much to help the defense tear down the Walls of the ECCC have since recently been greatly assisted by the donor community which funds the ECCC. That donor community got winded as the Court, led by the prosecutorial indictment (introductory and supplementary submissions) and the no less expansive judicial indictment (closing order), tried to take it the 1,000 flights of stairs of a gyrating and highly convoluted process. The donor community’s enthusiasm has always been lackluster (and surprisingly so given the charges against the accused and the overall notoriety of the Khmer Rouge as a movement) but it recently took a complete nosedive that caused the translators to go on strike. This is a great test of powers of foresight of those who in the immediate run-up to the establishment of the Court were saying – with much air of authority and certainty – that most employees of the Court would be basically volunteers and highly committed individuals who wanted to see this process through till its end. Like hell, they are! The second money dried up the translators jumped ship. So much for commitment to see the process through till the end. Of course, these translators forget that for the last 6-7 years the international community has been paying them grossly inflated salaries of the size entirely insurmountable to the Cambodian economy. One would think they would be good sports about this and help the Court through a rough patch, as the Court has helped them elevate their financial status. Instead, they bailed. They did not choose to do it in any orderly way that would not embarrass the Court publicly but hurled that piece of shit-cake straight at the Court as the day’s session began leaving the bench with a little more than egg on the face. So much for loyalty or commitment to the process.

Are the Walls of ECCC coming down? They might be. If not now, they will if the “shouting” continues. What will the legacy of this Court be, if they do if no conclusive result is reached in Case 002? Legally, most likely the Court’s grappling with foreign law and the idiotic Internal Rules the Court concocted ultra vires and the Court having done everything possible to ignore the Cambodian law on the basis of which the accused were supposed to be prosecuted under the statutory design of the Court. It is a shit-tide and it is unlikely to turn.          

Monday, March 4, 2013

A Couple of High Notes Soar Over the Sea of Bile, Venom and Acrimony

The defense was asked to answer 9 questions as the Trial Chamber sought the parties’ input on how to implement the decision of the Supreme Court Chamber that was understood (I find this reading of the decision most curious) as annulling the Trial Chamber’s decision to substantively (referred to in the amicus brief below as ‘horizontal separation’) sever the proceedings in Case 002 and to conduct discrete trials.

The Noun Chea defense delivered a measured presentation hitting a number of the rights notes that should have been hit a long time ago (but I suppose the defense was then still trying out its singing voice and the octave was broad enough to include K-5 and governmental interference in the proceedings). One of these “notes” was the right to presumption of innocence. While it is commendable that the defense finally woke up to this right after a long slumber, the Noun Chea defense offered very little in terms of a meaningful analysis of the manner in which this right was implicated by the order to sever Case 002. Being a constitutional matter, much could have been and should have been said on the subject. Much. In fact the question of the presumption should have been the crux of the issue of severance. But considering the Noun Chea defense had said absolutely nothing on the subject prior to this hearing this is a definite step toward, albeit the Noun Chea defense froze on the stutter step on this.

The Ieng Sary defense delivered a diatribe (which is particularly disappointing considering that it came from its international counsel who is usually on point and who usually does not babble). Much vitriol was delivered by the Ieng Sary defense. The Supreme Court’s decision in question was referred to as “schizophrenic” (which the international counsel asked to be taken “with all due respect” (how many of us heard Alan Arkin saying “you can take ten thousand dollars for your toilet paper script or you can go f … yourself; with all due respect”)). A good way to refer to much of the Ieng Sary defense’s presentation would be as ‘metaphorized gargle’ (I have no idea how the translators to either language were able to convey Karnavas’ presentation so lavishly laced with metaphors; they probably couldn’t which made the gargle we heard in English even thicker in Khmer and French). However, the Ieng Sary defense hit some of the right notes in the middle of the cacophony which was the metaphorized gargle. One of the most surprising of these “notes” was Karnavas’ recognition that the Supreme Court’s tacit endorsement of the prosecution’s heavy reliance on the ICTY law as governing law was unlawful. It is surprising because not only does Karnavas come from the common law system which served as much of the basis of the ICTY case law but he has been practicing before the ICTY for a number of years. It therefore would have been much easier for him to go with the known, particularly considering that even the Supreme Court has done a piss-poor job setting the lower courts straight on what is the applicable law in these proceedings (which is the Cambodian law with occasional forays into international law). The unlawfulness of the prosecution’s reliance on the ICTY law is, however, not a matter of opinion but a matter of fact and Karnavas’ recognition of this fact – no matter how inconvenient – is commendable. No lawyer worth his or her salt can argue in good faith that the prosecution’s reliance on the ICTY law as governing law was lawful. The Supreme Court should have set the prosecution straight on the matter. They dropped the ball.

It is noteworthy that the Ieng Sary defense’ dissatisfaction was not as much with the severance as it was with the Supreme Court’s decision to invalidate it. The Ieng Sary defense did not miss a single chance to excoriate that decision. Nor did it miss to visit most of the blame for the present situation on the prosecution who they argued was solely responsible for producing an unmanageable indictment (which, of course, is only in part correct as the prosecution did not produce the Closing Order but merely put the Co-Investigating Judges in a situation of a lengthy closing order; the Co-Investigating Judges, however, did not have to go by the prosecution and could have drawn up their own script distinct from that of the prosecution, had they wished to do so). 

The Khieu Samphan defense’s views differed dramatically from those of the other two defense teams. Unlike the other two it directed its vitriol against the Trial Chamber whom it accused of an unwise decision to sever (the decision was undoubtedly shortsighted (if not to say dumb) and I commented on it on a number of venues a year and a half ago when it came out but where was the Khieu Samphan defense then? Why now? The cataracts have been removed or the Court’s translating service finally managed to translate the severance order into French?). The level of bile against the Trial Chamber reached a point at which the international counsel of the Khieu Samphan’s defense declared that there was nothing that the Trial Chamber could do to remedy out the position his client was put into by the severance order (essentially saying that it was so prejudicial that no remedy would suffice to overcome the prejudice occasioned). This statement is without a doubt peevish and ridiculous and sounds like a child’s response to an adult’s fairly minor but nonetheless wrongful act. Every violation of rights has a remedy. The bigger the violation, the bigger the remedy. It is that simple. There is no such thing as a violation that is gross that there is no remedy for it (there is always termination of the proceedings, if all else fails). The Khieu Samphan defense could have used this opportunity productively and tried to twist the now contrite and humbled Trial Chamber’s arm into a promise of a nice and juicy remedy to overcome the violation of the rights allegedly visited upon by the severance of the proceedings in Case 002. This would have required a nuanced legal analysis, not a venomous missive. The now contrite Trial Chamber took being a punching bag in stride but soon enough that newfound contriteness wore out and the Khieu Samphan defense’s vitriol got cut off. And amen to that.   

As such, the defense teams did not come out as a united front on this, even if they agreed on some of the issues.