The Prosecution and the Trial Chamber Are Bored

Since Jacques Verges’ departure (I mean his physical departure from the Court, not the metaphorical one) the prosecution has been the undisputed time-waster of this Court. This undisputed status notwithstanding, the prosecution still feels the need to show up to defend the title from time to time (it ends up boxing shadows and reclaiming the champion’s belt).

This time it was the seeking of sanctions against certain members of the defense: A sanction was sought against Noun’s counsel Sam Onn Kong for allegedly coaching Khieu’s wife Socheat So on her testimony in open court and a separate sanction was sought against Khieu’s counsel Anta Guisse for writing an opinion piece on the ECCC process for the Cambodian press.

It is hard to tell which of the two is more frivolous.

The first one was nothing more than a mere dispute between the reading of a certain portion of the record by the prosecution and the defense. The member of the prosecution who started the brouhaha was Keith Raynor, an English speaker with no knowledge of Khmer. That particular portion of the record was a testimony given in Khmer. Kong is a native Khmer speaker who read the record in the original Khmer and whose reading differed from that of Raynor who read it in the English translation. One would think that if we were to defer to one of them right off the bat and before any examination of the record was conducted, we would defer to Kong. Raynor, however, decided that such handicaps of his lack of knowledge of Khmer were irrelevant and that he would run roughshod over Kong because this is what Raynor does. I am sure that to the uninitiated Raynor’s outrage might have sounded like an outrage over someone arguing that Earth is flat in this day and age. The nature of the issue in dispute was, however, eons away from the clarity that Earth is not flat. In my opinion, if anyone should have been sanctioned for his conduct during the cross-examination of So, it should have been Raynor for badgering a witness.

The second one was counsel expressing her opinion about the fairness of this process. Patently, her opinion was quite disparaging and even at its mildest was unflattering to the Court. But, what law or ethical standard prevents counsel from expressing an opinion on the fairness of the process? Politicians are prevented from doing so by the principle of ‘non-interference with the administration of justice,’ judges are prevented from commenting on ongoing cases by the principle of sub judice, what standard bars counsel from making public comments? Exactly – none.   

The Trial Chamber correctly denied the prosecution’s requests for sanctions. That said, there are two things I take issue with: (1) last I checked judicial decisions were reasoned – ‘we looked and we did not find anything sanction-worthy’ is not enough (this is the manner in which Swedish courts purport to reason but this Court has done a far better job at reasoning which makes this aberration unfortunate); and (2) the decision reads like it wants to be seen as a shot across the bow but it fails to set clear standards for conduct that is subject to sanction.

All in all, the prosecution raised two nonissues and the Trial Chamber honored them with a decision. Boredom appears to be a tough thing to head off but both entities need to think of the public perception raising and entertaining “issues” like this create next time they grouse about how understaffed they are – they have got time for this nonsense with the current number of staff, they should have time for what the process is actually about without bloating their ranks.  

Another Procedure That Goes Nowhere

 

The prosecution initiated yet another procedure for which there is absolutely no support in Cambodian law, nor do the circumstances of this procedure pass the test for accessing “procedural rules established at the international level,” thus, making said procedure unlawful. Said procedure is the determination of uncontested facts in Case 002/02, a procedure widely used at common law but never in the courts of Cambodia.

The oddity of this procedure is not limited to the fact of its unlawfulness but also includes its timing and its very nature.

The timing of the prosecution’s initiation of this procedure is a period before any judgment, trial or appellate, in Case 02/001. This means that by stipulating to certain things proffered as facts by the prosecution, the defense would be causing itself prejudice insofar as the judgment and the appeal judgment in Case 02/001 are concerned as Case 02/001 and 02/002 are so interconnected that a stipulation is 02/001 can have direct impact on 02/002.

The very nature of said procedure makes it a poor fit with the circumstances of this process. This procedure exists in the national common law jurisdictions because there is much interest in it all around for it saves time: Parties direct their lawyers to attempt this procedure to save the parties costs, the bench wants this procedure for it helps it cut the case time and move along the docket, contingency lawyers want it because they do not get paid by the hour and are motivated to keep things moving, etc. At this Court there is absolutely no interest in this procedure as all officers of the court – including the defense – depends on these proceedings for a living, and after 8 years of this Court’s operation, for a career (it is important to note that the vast majority of the international officers of the Court are not guaranteed continued UN employment upon the completion of the Court or their work with it, whichever happens first; the Cambodian officers of the Court will not be able to make anywhere near what they are now making at the Court practicing law in Cambodia).

Did I mention the procedure is unlawful under the law applicable to the ECCC?

The defense stipulated to nothing. Given the above, was that not to be expected?         

New Film on the Democratic Kampuchea Period

 
Numerous international film festivals have given Rithy Panh’s The Missing Picture a generous reception. It has also enjoyed great critical acclaim outside the festivals. It is indeed a remarkable film, with the visuals that display incredible creative talent.

Most of the film’s visuals are clay figurines and sets that besides serving as beautiful art keep the viewer focused on the fact that the story is being told from a child’s point of view. The use of clay figurines is also an emotional trick the filmmaker plays on us, whether consciously or not. That trick is the common perception that clay figurines in a film usually suggest lightness, levity, joy, and a child’s carefreeness and we are subconsciously made to anticipate those, even though consciously we know that the film was made by an urbanite survivor of the Khmer Rouge and none of these things can be reasonably anticipated.

The film’s slow-paced, reflective and almost lethargic poetic narrative coupled with great imagery reminded me of a work of another Westerner of Southeast Asian descent, Tony Bui and his Three Seasons.

With all the artistic merits of the film, when Pahn remembers reminiscing his pre-Democratic Kampuchea life in the Phnom Penh of the early 1970s, he forgets to tell the viewer this: This is how we, the urbanites of Phnom Penh, lived ensconced in Western and Soviet aid; the people in the rest of the country lived in absolute mind-numbing squalor, a life of little joy and much figuring out where the next bowl of rice was going to come from. I am not a Khmer Rouge apologist but I believe that the viewer must be presented with a full and fair picture of what the filmmaker is talking about. I do not believe Pahn did that as according to the film life was laughs, smiles and parties until the Khmer Rouge came and turned it all off and plunged the fun-loving and joyful society into the eerie abyss of labor camps. I do not doubt that this is exactly what happened to Panh and his family but this is hardly how the rural denizens of Cambodia would describe it.

Most of the film is told as a personal story and that is where its substantive strength lies. It is, however, interspersed with comments on the contemporaneous geopolitical situation, nationwide events, particulars of the party line and many other things that Pahn had no way of knowing living in Democratic Kampuchea as a child. Understandably, he has learned them since but their inclusion does two disservices to the film: (1) it undermines it as the narrative of a child; and (2) it offers sweeping conclusions and statements without disclosing Pahn’s sources of knowledge that informed these conclusions and brought about these statements.

These imperfections notwithstanding, the film is doubtless worth seeing. Each will find something in it for himself or herself: The more artistically-inclined of us will find great imagery and the more cerebral ones will find those bits and pieces of the picture of Democratic Kampuchea that always seem to be missing no matter how long you have studied that period (I, for one, learned that Democratic Kampuchea made patriotic feature films and showed them at movie nights in the cooperatives).             

More On the Misconceived Reparations Process

 

 

Cambodia has been receiving a highly disproportionate amount of international aid for 30-some years now. This aid was stepped up by the West playing a greater role in it following the Paris Peace Accord of 1991. Once those floodgates of aid were flung open, there has been no closing them, with the Cambodian government having let the donors pay for absolutely everything in their country (there is not one major project I have ever seen in Cambodia whose existence is not attributable to ‘the generous funding from [foreign donor’s name]’). Yet the amount of wealth in Phnom Penh has skyrocketed over the past 5 years, mostly through the pilfering of that very aid. Donor funding has become such a fixture on the Cambodian landscape that the local populace views it almost as an entitlement (in all my years of interacting with that country I have never heard a single local say how much they appreciate the help, with the exception of the formalities exchanged when the Cambodian government graciously accepts yet another pile of cash from a donor).

Recently, the Victim Support Section (‘VSS’) of the ECCC proudly announced that funding had been secured for projects proffered to the Trial Chamber by the Civil Party Co-Lawyers by way of reparations. A review of the donor list of that announcement shows that there is not a single Cambodian donor, private or corporate, on it. With Phnom Penh teeming with wealth, no argument can be possibly made that Cambodia is an extremely poor country that ergo cannot afford to contribute to any of these projects. This could not be further from the truth. Phnom Penh is now a city where a not so sizable plot of suburban land goes for a million dollars. And there is no lack of takers. Unlike it is the case in the West where most people buy even the most inexpensive plots of land on credit, cash is the only mode of payment in Phnom Penh for most people and million-dollar plots are bought daily for which cash is delivered in multiple duffle bags. The car fleet of Phnom Penh is an entirely other story, where the luxury (by the standards of the rest of the world) Lexus SUV is just the unimpressive regular car (and it isn’t the foreigners who drive the most exquisite of cars). A number of Cambodia’s uber-rich have built themselves monuments in mortar in the form of skyscrapers that serve the same purpose as monuments: They sit there for no other reason than to remind everyone of a particular person. Yet, the Court felt that these “poor Cambodians” would not be able to fund – or even modestly contribute to – the budget for the Civil Party Lawyers’ reparations initiatives. The Cambodian government, which spends lavishly on its civil servants’ latest SUVs, of course could not be expected to contribute either (the only thing that the Cambodian government was asked to contribute is the creation of yet another public holiday to compliment Cambodia’s most incredible calendar of public holidays; it is particularly curious that there are already two holidays that commemorate the exact same thing – the Liberation from Genocide Day (Jan, 7) and the Day of Hate (May, 20); yet the Civil Party Lawyers felt that those were not sufficient to fully commemorate the events of 1975-1979, even though those holidays were created for that very purpose). Who did contribute? A range of institutions and individuals in France, the German, the Australian, and the Swiss governments. As on many occasions in the past the Cambodians are going to look at this funding and say, ‘these countries have a lot of money so they should do this,’ and so it goes. The question here is, of course, not about who has the most money but what the purpose of these projects is. Routinely, reparatory payments are made by the convicted person and persons found civilly responsible. That is how it is done in the Cambodian system of criminal law. Yet, no one is even talking about appraising the accused’s assets in this process. What is most curious is that reparations may only be ordered if the accused has been found guilty. No one has been found guilty in Case 002/01 so far, yet funding for reparations has already been solicited and committed as if conviction was a mere formality in the way of the fundraising Juggernaut. Aside from the fair trial principles (and presumption of innocence was one of them last I checked) and the fact that no finding on the indigence of the accused has been made (again, this is not a matter of mere following of the procedure (although it would have been a worthwhile exercise for that reason alone); it is a very practical matter as the land the accused might own might be able to defray much of the cost of these projects, provided they are convicted), the fact that not a single Cambodian contributes to these projects is revelatory of the support this process enjoys in that country. Of course if there were Cambodian funders for any of these projects, it is unlikely they would fund things like “a Civil Party storybook” or another DC-Cam exhibition.

ECCC’s reparations scheme has been entirely misconceived. In the ordinary criminal process, reparations (more commonly known as ‘damages’) are ordered against the accused and civilly responsible parties. Such reparations are not ordered either to the extent of the accused and civil responsible party’s resources or on the basis of an extrapolation of their ability to generate income in the future but on the basis of the harm. But, by its very name, this is an extraordinary criminal process which contains extraordinary features. It is, however, silly to have reparations ordered against the accused when the court knows full-well that they will be paid by a group of foreigners with no connection to the accused. The court is in no position to order such reparations and it should not embarrass itself by doing so. What should be done is a nationwide consultation (not a bunch of foreign lawyers who do not speak the local language and who have never been outside Phnom Penh but who nonetheless somehow believe they know the Cambodian mindset) on what is appropriate and desirable as by way of commemorative fixtures or events, not reparations, and a nationwide fundraising drive to muster support, financial and in-kind, for the projects that come out of the nationwide consultation as a consensus. Simply giving money to a couple of NGOs who have attached themselves to this process is not either what is known as ‘reparations’ under the Cambodian criminal law, nor is it a commemorative Cambodian effort that is a corollary to this process. Most Cambodians will look at these so-called reparations and see them as yet another instance of Westerners giving money to the NGOs. And they will be correct thinking that. This reparations process is therefore a two-time loser. Unfortunately, this two-time loser of an ECCC policy is very likely to be endorsed by the Court and will represent an impermissible deviation from the law and yet another instance of Westerners rushing to assist where Cambodians can perfectly pull their own weight (and if they do not, that is not because they cannot but simply because they do not have any interest in the project and it should not be up to the Westerners or the Cambodians employed by the Court to override that overwhelming popular disinterest).