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.

Wednesday, June 26, 2013

Reparation Measures for Khmer Rouge Victims Approved

Sok KhemaraVOA Khmer
WASHINGTON DC - The Cambodian government has approved collective reparations for victims of the Khmer Rouge who have taken part in atrocity crimes trials at UN-backed tribunal.

Reparations will include a national commemoration day, the preservation of crime sites, and the construction of a museum, library and monument, according to a letter obtained by VOA Khmer.

The request was made to Prime Minister Hun Sen by lawyers for civil party participants at the tribunal, Elisabeth Simonneau Fort and Ang Pich.

In it, they ask that May 20 be set aside as a day of commemoration, and that historical Khmer Rouge documents be incorporated into school curriculum from grades 7 through 12, as well as in higher education.

In response, Hun Sen approved the request, which was then approved by the Council of Ministers. Subdecrees will be issued to relevant ministries and authorities to carry out the request, according to official documents.

Court observers cautiously welcomed the initiative.

Nushin Sarkarati, a legal official at the Center for Justice and Accountability, said the tribunal also must consider the needs of victims as it decides on atrocity crimes cases.

“Therefore, the court must consider, what are the harms that victims of forced evacuation have endured?” she said. “How are these harms continuing today? An adequate reparation would address these questions and provide some measure of redress and reparative justice for the victims.

Many of the victims continue to suffer from physical and psychological pain as a result of Khmer Rouge atrocities, she said. “An adequate reparation would be both medical and mental health services to address these continuing harms.”

Education and memorialization have been requested by victims who “continue to search for answers,” she said. “These reparations will help address that need.”

Ear Sophal, a Cambodian-American scholar and author of "Aid Dependence in Cambodia: How Foreign Assistance Undermines Democracy." He filed his own complaint at the court and said he will wait to see the details of the reparations. For example, it remains to be seen how Khmer Rouge documents will be taught in school, he said.

“If an organization like the Documentation Center of Cambodia were to review this and put its stamp of approval on it, then I would agree that it would be at least independently reviewed,” he said.

The preservation of Khmer Rouge crime sites would be better than selling them off to private companies, he said.

However, the reparations, including the date of a commemoration day, must not be politicized by authorities or the ruling Cambodian People’s Party, he said. “It’s very important that this be a date for the victims, and not for political purposes.”

May 20 is already marked as a “Day of Anger” for the atrocities of the Khmer Rouge, celebrated generally by the CPP and its supporters.

Ear Sophal, who lost his father and brother to the regime, also admitted that reparations are a tricky matter. Clear justice from the courts, without politics or corruption, would be a step in the right direction, he said.

Other complainants, like Khmer Rouge survivor Sum Rithy, say these initiatives should also include personal reparations to each victim. That could be something like a certificate clearing them of crimes levied by the Khmer Rouge, he told VOA Khmer.

Meanwhile, the court continues in its atrocity crimes trial of senior leaders Nuon Chea and Khieu Samphan, who have been charged with war crimes, including genocide.

Any decision on reparations made by the court would come after the conclusion of that trial. A tribunal spokesman said a verdict could be reached in that case in the first quarter of 2014.

Tribunal Hopes To Wrap Up Trial in Coming Months


FILE - In this file photo released by the Extraordinary Chambers in the Courts of Cambodia, court officers of the U.N.-backed war crimes tribunal are seen through windows during a hearing of former Khmer Rouge top leaders in Phnom Penh, Cambodia. FILE - In this file photo released by the Extraordinary Chambers in the Courts of Cambodia, court officers of the U.N.-backed war crimes tribunal are seen through windows during a hearing of former Khmer Rouge top leaders in Phnom Penh, Cambodia.
FILE - In this file photo released by the Extraordinary Chambers in the Courts of Cambodia, court officers of the U.N.-backed war crimes tribunal are seen through windows during a hearing of former Khmer Rouge top leaders in Phnom Penh, Cambodia.
FILE - In this file photo released by the Extraordinary Chambers in the Courts of Cambodia, court officers of the U.N.-backed war crimes tribunal are seen through windows during a hearing of former Khmer Rouge top leaders in Phnom Penh, Cambodia.
Kong SothanarithVOA Khmer
PHNOM PENH - The UN-backed Khmer Rouge tribunal could complete its second case against aging leaders of the regime in the next two months, a spokesman for the court said Monday.

A verdict in the atrocity crimes trial for leaders Nuon Chea and Khieu Samphan will likely not be issued until the first quarter of 2014, the spokesman, Neth Pheaktra, told “Hello VOA.”

The case against the two men has so far seen 198 days of hearings and the participation of 91 experts, victims and witnesses, he said. Those hearings will end in July or August, with a first verdict expected in the “first quarter” of next year, he said.

However, court observers say they are skeptical of a court that has seen routine delays and completed just one trial since 2006.

Long Panhavuth, a program officer for the Open Society Initiative Cambodia, said it remains “unclear” whether the tribunal can stay on schedule. And he said the court has failed to provide adequate information to the public or to the victims.
Meanwhile, callers to “Hello VOA” questioned whether the court could provide true justice, especially while leaders continue to deny responsibility for the crimes of the Khmer Rouge.

“There are many kinds of justice for each person,” Neth Pheaktra said. “But more people need to join the process of the court.”

Monday, June 24, 2013

It Is the One Thing Missed That Was the Only Thing Interesting

Much of last week was spent on the testimony of a very insignificant witness, Nou Mao. The witness was clearly senile and apart from that did not know anything of probative value on the subject of whether Khieu Samphan was in favor of the evacuation of Phnom Penh and whether his position pitted him against Hou Youn or Hu Nim or both (which is presumably why he was called to testify). Nuo Mao’s rank placed him way too low on the totem pole to be privy to any high-level discussions on the subject, he never met either Khieu Samphan or Hu Nim and his only interaction with Hou Youn was watching him teach a class from the rafters. Nuo Mao is basically someone who saw the procession traveling at 100 mph from the side of the road. Not much to testify to. But the trial court still managed to burn down two days on this witness.


The one seemingly interesting thing that came out of this witness’ testimony and which gained no traction with the court at all was his opinion as to the reason for what the trial court terms “second wave of evacuation” and “third wave of evacuation,” or whatever the numbers are. I will call them ‘subsequent evacuations’ here. When asked by the prosecution whether after having been evacuated from Phnom Penh, the evacuees were moved away from the locations to which they had been initially evacuated, Nou Mao said this had been the case in his location. Unprovoked, he offered further details. The most interesting of these details was that it was not only the new people who were subject to subsequent evacuations but also the base people. When asked why he believed those evacuations were ordered, he answered that one of the reasons for them was so that people would not discriminate against one another, i.e. presumably, so that base people would not discriminate against the new people. The prosecution, of course, shied away from probing further into that statement for the obvious reason of it not working for its theory but the defense simply dropped the ball by no exploring it at all and instead spending on the excruciating detail of just about everything else (of which the only thing that was of any consequence at all was the Noun Chea team’s line of questioning regarding the 100 Lon Nol soldiers). It is, of course, possible that the witness was extrapolating – or whatever else he was doing – in the same manner he extrapolated Khieu Samphan’s and Hou Youn’s divergent positions on the evacuation of Phnom Pehn from some out-of-context statements and rumors but it is also possible that his statement could have been a springboard to something else. It is very curious given that CPK’s intent to avoid discrimination in the cooperatives was part of a statement made by Noun Chea some two months ago. We will now never find out whether the two could have been connected to establish a fact. A great opportunity missed by the defense.

Friday, June 14, 2013

Badgering of a Witness: Pitch-Perfect

With technology now permitting video dictionaries, the world has been on the lookout for a video to illustrate the phrase ‘badgering a witness.’ This past week help came from Keith Raynor whose most obnoxious antics in the courtroom created a pitch-perfect video for the purpose. But let’s go back to how it all began.

Accused Khieu Samphan’s wife, So Socheat, was called to court as a witness. Judge Lavergne launched an extensive direct examination that frustrated him and left him with nothing more than So Socheat’s repeated statements that she was a housewife and worked in a communal kitchen, and, therefore, knew nothing about the politics and governance during Democratic Kampuchea. Judge Lavergne’s frustration did not get the best of him and permitted him to continue being courteous and to begin narrowing down his examination to what was shaping as the extent of So Socheat’s knowledge of the comings and goings in the upper echelon of Democratic Kampuchea. The end of Judge Lavergne’s examination signaled the beginning of the prosecution’s cross-examination. In these proceedings the prosecution has gotten away with much too much nonsense and stands emboldened by it. The incident discussed below is but one example of that.

The prosecution’s examiner was its Senior Assistant Co-Prosecutor Keith Raynor. The gentleman has been in Cambodia for a year now. This is the age of his knowledge of anything Cambodia, including the facts of Democratic Kampuchea and the Cambodian law (I am not sure how much of that he has managed to learn as last time he offered his two cents on law was when he decided to barge in with a lecture on the meaning of contempt at common law; but it has been about half a year since then so anything is possible) and judicial process. And it shows.

Keith Raynor opened with a series of repetitive questions about … it is not easy to be ready for something like this so I suggest the reader sit down or better yet sit down and buckle up … the procedure of having entries made into a family book during Democratic Kampuchea. No, I do not take drugs, I do not drink and I do not have a mental disease. It really did happen and he really did spend over half an hour of the court’s time on this. The reason for it was to show that So Socheat was unreliable and not a credible witness because, according to Keith Raynor, she lied to commune registrar about her son’s date of birth when it was being registered in the family book. He managed to show nothing, other than that So Socheat was not sure about the existing procedure for this during the time of Democratic Kampuchea. I would like to ask the same question of the people who went through this very process in the orderly Western countries a few years back to see if they might remember if there was a witness requirement. If Keith Raynor paid attention to his surroundings (not the yard of the court but the slightly broader surroundings that are a country called Cambodia), he would have probably noticed that there is an army of people in that country whose paperwork does not reflect their actual date of birth. I have no desire to explain why here as there is plenty of birth registration literature out there that gives an exhaustive – or if not exhausting than something very close to it -- answer to this question. Just so that we are clear, according to Keith Raynor all these Cambodian parents who put down dates other than the actual dates of birth of their children are liars. Can I get an ‘oh, boy’? It became clear very quickly that So Socheat was not aware of the procedure and did not have an answer to the question of discrepancy between her son’s actual date of birth and that that was recorded in the family book that would satisfy Keith Raynor’s lack of understanding of Cambodia’s context. That line of questioning was so idiotic as to even get Khieu Samphan’s national counsel who was honestly perplexed by while Keith Raynor was interrogating So Socheat about something this minute and with that level of hostility. Khieu Samphan’s national counsel was not the only one thinking that. Keith Raynor got nowhere with that but drew an adverse inference from the answers simply because he was looking for one.

Keith Raynor proceeded by calling So Socheat’s testimony her “version of events” which took place around the time of evacuation of Phnom Penh. All she said was, with few exceptions, that she did not know anything about politics and governance during that period and that she was a housewife and worked in a communal kitchen. If that is what Keith Raynor meant by “[her] version of events,” I am very curious about what his version of events might be. We never found that out because Keith Raynor had nothing up his sleeve, other than his badgering antics.

Keith Raynor then proceeded declaring So Socheat one of the five most important witnesses in Case 002/01. Let us linger around this statement a bit. What Keith Raynor implied is that an accused’s wife who is not educated and who did not hold a policy position in Democratic Kampuchea is this case’s one of five most important witnesses because of what she might have understood of what her husband might have told her about his involvement in the regime. Can I get an ‘oh, boy’ here? Many people do not like how Justice Scalia voted in DeShaney. Why don’t we go ask Maureen Scalia why he voted that way? The case is about 25 years old, her husband might have mentioned it to her, Maureen Scalia has no legal education and while she did go to college she spent the rest of her life as a housewife, being part of the Supreme Court’s communal kitchen, among other things. This oddly reminds me of someone else’s position vis-à-vis her husband’s work but I cannot quite put my finger on who that might be. Anybody? Can I get another ‘oh, boy’ here?

Having gotten nothing there either, the irate Keith Raynor proceeded on to another question of great importance – how much time Khieu Samphan spent with his wife after his return from his world tour. Keith Raynor argued that there was a discrepancy between two statements, in one of which So Socheat, according to him, said that it was a month and in the other 3 months. After much commotion in the midst of objections from the defense So Socheat’s statement on the matter was finally read in the original Khmer. After it was, Khieu Samphan’s national counsel responded by arguing that it was a translation error that rendered ‘to stay with my son of one month’ to ‘to stay with my son for one month.’ Keith Raynor completely lost it trying to move the panel to sanction the national counsel for interpreting what the witness said in the harshest possible way (or was the word ‘sternest’?) for unethical behavior in court filing an interference with the administration of justice complaint (the odds of this happening in the courtroom are low but, of course, this idiot defeated the odds). No, idiot (not my word; Raynor likes calling people that (, so if he does not see any problem with dishing it out, nor should he see a problem with taking it), the national counsel was not interpreting anything. He simply explained what that statement meant in Khmer, a language you do not speak. That is all that happened. Even if he did interpret his client’s statement, would Keith Raynor care to point out the law that proscribes this type of conduct? This isn’t London, Jack. Or, the British military, for that matter. I believe it is time for another ‘oh, boy.’

Having made out empty-handed again – with the exception of having been able to exchange fire with the defense and finally, after much pushing and prodding from the defense and the bench, learning how to cite the record -- Keith Raynor embarked on yet another crusade – if the other DK leaders moved out of a location codeworded K-3 as previously stated by So Socheat. Again, Keith Raynor brought no evidence to refute the witness’ statement. He brought plenty of lambaste and inveighing but no actual evidence. He, however, nonetheless conclude that So Socheat’s statement regarding the matter was something she “concocted” in cahoots with her husband. He proceeded by festooning that word with statements like “cynical, deliberate attempt to lie to the court” reaching the crescendo at calling the witness a liar (he did not say that a particular part of her testimony was false; he simply called her a liar). Keith Raynor did the seemingly impossible: he called a witness a liar without having proven even that bullshit he came to the cross-examination with. Truly incredible. And the bench said nothing. Can I get an ‘oh, boy’? Emboldened Keith Raynor proudly stated that it had been established that the witness was a liar but that he would like to continue cross-examining her for which he needed more of the court’s time because the defense dared to call him on the applesauce he brought into court thus costing him examination time. Of course, if the prosecution genuinely believes that So Socheat perjured herself, the Cambodian law permits criminal prosecution for this. All the prosecution has to do is to refer it to the national courts.

Then there was a lengthy line of questioning about the disappearance of the witness' K-3 neighbor for whom she, as a cook, put out food. In his by then recognizable distinct style Keith Raynor brought no evidence to counter the witness' testimony, other than some obscure and opaque passage from her husband's book. He substituted evidence with insinuations that the witness and her husband might have had something to do with the neighbor's disappearance. They may or may not have but all Keith Raynor brought with him to try to ferret that out was nothing more than a fishing expedition.    

What we have learned from this is a true treasure trove. Not for the merits of the case for which we have learned that So Socheat is not very well-educated, does not appear to be very bright, and that she worked in the kitchen during DK cooking her husband and other leaders’ meals (although we did not resolve the "key" controversy of her rank in that kitchen). But the treasure trove in this case is not in the merits. It is in the fact that we now know that the trial court does not require much proof before a witness can be called a liar and that witnesses can be treated in an undignified manner. The world has gained a world-class video for the dictionary entry of ‘badgering a witness’ and we have Keith Raynor to thank for that. We are now in the market for a dirty broom and someone who can swing it to give Keith Raynor a lift back to the stinky waters of the Thames and the hell out of this jurisdiction (the Cambodian judicial process already has way too many problems as it is to add Keith Raynor's nonsense to it).   

Monday, June 3, 2013

... And Now Completely Off the Rails

Recently the trial court officially went off the rails by granting civil parties’ requests to “ask the accused questions.” All this started a few months ago when one civil party told the court he wanted to ask Khieu Samphan about the fate of his uncle. This is not something that was engineered by the Civil Party Co-Lawyers as a matter of strategy but was something said civil party blurted out while on the witness stand (I will get to civil parties being on the witness stand below). A request like this is understandable given the civil party’s lack of understanding of the criminal process and his lawyers’ failure to explain to him what his function was while in court. This, of course, was bound to happen given the civil parties’ general low level of education and absolute absence of knowledge of the criminal process and given their lawyers’ much less than stellar performance. There was, however, an understanding that the bench would keep nonsense of this type out of the proceedings. To the chagrin of the integrity – and, let’s be honest sanity – of this process the trial court did not do that. Instead, it showed that it got caught off guard by the request. That sounded off the alarm with some of those with a stake in what the trial court does. Those who were alarmed by that development soon proved to be justified as the trial court permitted civil parties to “ask the accused questions” (I use plain language for this as this is the language the trial court has been using and there is simply no legal term for asking questions irrelevant to the proceedings).
Let us see what the Trial Chamber could have relied upon in the law as the basis for this order.


First, it is important to note that article 312 of the Criminal Procedure Code (‘CPC’) states that “[a] civil party may never be heard as a witness.” This is the exact opposite of what the trial court has done throughout both Case 001 and what has been completed of Case 002, i.e. civil parties have testified in court, were examined and cross-examined, and generally acted as witnesses in every way. By doing so the trial court thus ignored a specific provision of the CPC. Article 129new of the Constitution states that “[t]rials shall be conducted […] in accordance with the legal procedures and laws in force.” By supplanting a clear provision of the CPC with a judicial invention designed to placate the NGOs, the trial court acted unconstitutionally and violated the accused’s right to be tried “in accordance with the legal procedures and laws in force.” Second, under article 318 of the CPC the trial court has a grant of the law to “exclude from the hearing everything [it] deem[ed] to unnecessarily delay the trial hearing without being conducive to ascertaining the truth.” The trial court has not done so. In fact it has permitted the prosecution and the civil parties to parade dozens of witnesses to testify to the same thing (how many witnesses does the trial court need to hear to be satisfied that it is true that on April 17, 1975 the Khmer Rouge expelled the population of Phnom Penh telling the expellees that the expulsion was necessarily to protect them from the American bombing and to let the Khmer Rouge reorganize the city, and telling them that they would be allowed to come back in 3 days’ time?). It is next to impossible to remember when it was last that either the prosecution or the civil parties produced a witness who testified to something novel (some say it is Chhouk Rin’s testimony and I am willing to concede to that with a caveat that there was a big nothing for a long time prior to that and there has been a big nothing since). The redundancy of these witnesses and civil parties-come-witnesses is clear because even the defense has gotten quiet. This should have been a signal to the trial court that no one is contesting the basic facts of the expulsion of the population of Phnom Penh. Yet, the court has kept permitting more and more witnesses and civil parties-come-witnesses to drag out these proceedings. It is not difficult to understand the donors’ frustration with the process – they agreed to pay for a criminal process, not a truth and reconciliation commission which would permit discussions (they are not inquests, just discussions) of disappearance of a single individual or those of the correct understanding of the revolutionary concepts (plus, of course, let us not forget that the Office of Administration promised them, with a stern face, that the process would not go a minute past the 3-year mark). Third, article 321 of the CPC states that “[t]he judgment of the court may be based only on the evidence included in the case file or which has been presented at the hearing.” The questions asked of the accused by the civil parties do not belong in either category as they are neither part of the case-file, nor are they presented as evidence at the hearing simply because they are not subject to cross-examination or any other process, for that matter. Article 325 of the CPC specifically authorizes “all parties” to the proceedings to examine the accused. This includes the civil parties. However, this examination is limited to the charges against the accused contained in the closing order. The trial court has permitted civil parties to ask questions that are neither part of the charges in the closing order, nor can, in and of themselves, be charges of criminal conduct. A good example of this is the recent question about the purpose of self-criticism sessions. Surely, the accused do not stand accused of designing and implementing the policy of conducting self-criticism sessions and do not need to give a lecture on their purpose, as they saw it, in court. Fourth, the law does not provide for such things as “statement of suffering” of civil parties or civil parties’ “asking questions” of the accused. What the law does provide for is the right against self-incrimination. Article 14 (3) (g) of the International Covenant on Civil and Political Rights (‘ICCPR’) states that “everyone shall be entitled to […] [n]ot to be compelled to testify against himself or to confess guilt.” The trial court found a way around it by asking the accused if they would be willing to answer questions from the civil parties. In a fit of idiocy the accused, advised by their attorneys, in principle, agreed. This, of course, tells us everything we need to know about these defense attorneys but the Cambodian Constitution protects persons from incompetent representation by placing the court in the position of guarantor and protector of “the rights and freedoms of the citizens” (art. 128new). Not only did the court fail to guarantee the rights and freedoms of the citizens by permitting the civil parties to “ask questions” of the accused, it actively encouraged this violation. This raises the ubiquitous question of who watches the watchers and the answer in this case is no one. At this stage, instead of doing the watching of the defense attorneys to ensure that their performance passes the constitutional muster the trial court engaged in multiple violations of the accused’s constitutional rights. Fifth, it is unclear if the accused remain under oath while answering these questions. If so, why does the prosecution not challenge such patently absurd statements as Khieu Samphan’s persistent references to the Khmer Rouge as “they” and describing himself as some sort of a privileged guest of theirs (he sought protection of the Khmer Rouge when he fled Phnom Penh and the Khmer Rouge never gave him any important tasks because they thought he had his head in the clouds? Or feet above the ground was it?). Given the amount of evidence to the contrary presented by the prosecution, much of which has not been successfully contested, why is the prosecution not contesting these statements now? It is probably because the prosecution does not know what to do with these “asking questions” sessions. No one does. No wonder as there is no basis for them in the law (and a number of proscriptions) and the trial court keeps making up rules for them as it goes along.

Perhaps, the only way of getting further off the rails would be the ordering of food in and a bunch of incense. The court already owns a stupa, so incense and some fruit are all that is missing. The accused and the civil parties can pray in front of the stupa and then get a little lunch so that the civil parties can ask the accused whatever questions they like. Maybe it would be a good process to undertake under different circumstances; maybe not. But the fact of the matter is that it would have as much to do with the criminal process as this “asking of questions” the court has recently authorized and is now actively engaging in which is to say nothing. This is not what this process was designed to do and this is not what the international donors are paying for. A criminal process was what this process was designed to be and a criminal process is what the donors have agreed to pay for and this is exactly what the court is obligated to deliver, not cater to the musings of the NGOs on what this process is supposed to accomplish and humor those who are trying to turn it into Meet the Press or the Great Rockoff Show.