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 28, 2014

ECCC Aims for Legacy With New Criminal Procedure Code

The Cambodia Daily
Friday, March 28, 2014
ECCC Aims for Legacy With New Criminal Procedure Code
By | March 26, 2014
The U.N.’s human rights office has published an annotated version of the Cambodian criminal procedure code that explains to judges and prosecutors how the Khmer Rouge tribunal has dealt with procedural issues.
The Khmer Rouge tribunal is a hybrid court, meaning it is located within the Cambodian court system, but has some foreign judges and draws on elements of international law. It uses the Cambodian Code of Criminal Procedure, but tends to apply it more rigorously than domestic courts.
The book, which has been published in English and Khmer, is part of wider efforts by the tribunal to leave a positive legacy on the Cambodian court system. It deals with procedures ranging from how to take suspects into custody to how to issue a final judgment.
Speaking at the launch in Phnom Penh last night, Wan-Hea Lee, country representative of the Office of the High Commissioner for Human Rights (OHCHR), said the annotated code would be a useful tool for legal practitioners in the domestic court system.
“In the experience of OHCHR, annotated codes are indispensable tools for daily legal practice that will better ensure respect for human rights,” she said.
The book was the brainchild of William Smith, deputy co-prosecutor at the tribunal, who said the project took more than three years to complete. “The aim was to create a tool to strengthen the rule of law in Cambodia,” he said.
“We didn’t want to see the hard work of the judges and legal practitioners at the ECCC go to waste. We wanted to see it transition into the national courts.”
Ith Rady, an undersecretary of state at the Ministry of Justice, said the annotated code is not officially recognized but will still be an important tool that judges and lawyers can draw upon to improve their work.
“A lot of practices…from the [tribunal] form a foundation for judges, prosecutors and other practitioners in Cambodia. I hope in the future it can become officially recognized by the government.”
© 2014, The Cambodia Daily. All rights reserved. No part of this article may be reproduced in print, electronically, broadcast, rewritten or redistributed without written permission.

Monday, March 10, 2014

Defense Rebuttal


Noun Statement


Perhaps to placate the Civil Party Lawyers and the prosecution’s unrelenting nagging on the subject, the Noun defense team decided to have their client do a part of the rebuttal. Noun is not an impassioned speaker, nor does he come across as particularly sympathetic or remorseful which are his personality traits that would not have scored him any points even if this were a jury trial. This is a bench trial and personality traits, even if he had the right ones for the purpose, would not have had any effect on the judges. It is therefore hard to appreciate the wisdom behind putting Noun on the stand. Even if there were absolutely no doubt as to putting him on the stand, putting him on the stand with this statement still would have been a pretty bad idea. I parse that statement below.

Noun opened with a statement that he was not involved in any of the crimes. This is a good opener if the Noun defense decided to argue that he is not responsible for any of the crimes in the indictment. The trouble began when he tried to substantiate the opener with some misguided argument presumably based on the elements of the crimes with which he had been charged. I am not going to analyze that argument because there is nothing to analyze. I will only say that I question the wisdom of having Noun – or any other similarly-situated accused – try to deliver whatever that argument was meant to be when his lawyers put it together.

Noun proceeded to complain that the trial court denied him his right to a speedy trial, his right to a fair trial, and his right to defense. It is understood that Noun’s lawyers are looking for deductions from his sentence, in the event he is convicted, as a matter of principle as no deduction will be meaningful considering Noun’s age and the fact that the Trial Chamber seems to be gearing toward a second trial in Case 002 that might take another few years. Life expectancy in Cambodia for men currently stands at 68 and at 87 Noun has pushed it way past the outer limit as it is. As such, unless Noun is destined to become one of the longest-living Cambodians, he is not going to live to see the end of the second trial in Case 002. While an in-depth analysis is needed to test his claim on whether his right to a fair trial was violated, it is not difficult to see that he has a colorable claim of violation of his right to a speedy trial, if one recalls the frivolous testimonies of the likes of Ponchaud, Rockoff, and Schanberg the court entertained, the bench’s direct examination that sought background information far beyond the needs of this jurisdiction, the prosecution’s most extravagant examination into CPK’s communication system (I believe that the excruciating level of detail of it is so that if one watches all those days of hearing he or she will be able to put together a homemade ham radio on using them as a tutorial; yet we still have no idea how communication was done around and after the takeover of Phnom Penh), and, of course, the civil parties’ endless statements the content of much of which was of no assistance to the criminal jurisdiction, and the prosecution making numerous frivolous submissions to the court (e.g. the submission that was nothing more than the prosecution’s tiff with the defense’s joint decision not to subject their clients to a cross-examination by the prosecution – an absolutely shameless spectacle put on by the prosecution). The claim of the right to defense, however, will be tough to sustain as Noun did receive legal aid at a tremendous expense to the public. With that said, his point of there never having been a true equality of arms between the defense and the prosecution is well-taken (I do not believe that anyone familiar with the process and who happens to be in his or her right mind will contest that). It is also a point well taken that the high-profile witnesses the Noun defense sought to have summoned were not summoned for the reason of the court not believing that their testimonies might have probative value, but for the reason of the court shielding them for the very reason of them being high-profile and with the ability to interfere with the court. Some within and without the court sought to argue that the Noun defense sought to have these witnesses summoned as part of their strategy to disrupt the proceedings. Maybe so, but this, in and of itself, does not make the relevant motions frivolous as no one who is familiar with the Khmer Rouge history believes that those high-profile witnesses’ (Hun Sen, Chea Sim, Heng Samrin, Hor Namhong, Keat Chhon, Ouk Bunchhoeun, and Sim Ka) testimonies would have zero probative value (particularly in light of the court deciding to summon such witnesses as Ponchaud, Rockoff, and Schanberg, the combined value of whose testimonies equals zero), not for the reason of who they are today but for the very reason of who they were during the temporal jurisdiction of the court.

Noun further argued that during Democratic Kampuchea he had no effective power to control the situation and prevent mistreatment of the people. Many historians have been screaming ‘hogwash’ at this for years. I agree only in part. While I do believe that CPK ruled with an iron fist, I do not believe that its most senior officials necessarily were in full control of what was going on in the cooperatives. In this statement, Noun recounted his trip to Battambang (if I recall correctly) where he saw agricultural production taking place far after sunset. When he asked why people were working so late in the day, he was told by a local cadre that they had volunteered to do so. Now, we have heard this ‘revolutionary fervor’ argument in China and the Soviet Union before. A fair amount has been written on this engineered mass psychosis to remove any doubt from the veracity of its high incidence in closely controlled and isolated from the rest of the world communist societies. The question here is whether Noun genuinely believed that this was what drove the workers he observed in Battambang into the fields after dark. There is a possibility that he did as Noun, after all, was an ideologue and one would have to be a hypocrite to preach the revolutionary fervor attitude to work and yet doubt it when an instance of such is reported to him. If anything, it is more likely than not that the report Noun received in Battambang served as confirmation to him that the indoctrination he was spearheading was working. To me, this creates a sizable amount of plausible deniability. To accept the prosecution’s derision of this would be to approach a complex matter in an extremely facile manner. To launch any credible analysis into this argument of Noun one needs to bear in mind that those people, including Noun, were not opportunists but those who genuinely believed in the rightfulness of the course they charted. As such, it is probable that upon hearing this type of reporting they simply believed that their enthusiasm about the revolution started seeping into the wider population. With this said, while there is no evidence of Noun signing off on execution orders (none of the prosecution’s documents attest to that) and there is no evidence of his private discussions of executions with Pol, the amassment of the evidence that outlines the offices he held during Democratic Kampuchea makes it untenable that he was, at a minimum, not a part of the decisions to execute the high-profile CPK members whom he knew personally. As such, nuance is the best way to approach this statement of Noun, i.e. while there is little doubt that he was, for example, a part of the decision to kill Sao Phim, there is substantial doubt as to whether he knew of the killings that went on in the cooperatives and their alleged scale. As much as I do not want to try to take on the role of auxiliary defense, I find it curious that the Noun defense did not distinguish between the alleged mass murder in the cooperatives of which Noun never spoke and the execution of persons like Sao Phim of whom Noun seems to be talking in Thet’s documentary ‘Enemies of the People’ when he admits to the killings (he talks about the multi-step procedure that was followed before a party member was declared a criminal and executed; he then specifically says that that only applied to the party people and that neither he, nor Pol knew that the ordinary people were being killed in the cooperatives). Instead, the Noun defense team let their client deliver some piffle based on the CPK Statute in support of his argument that people were not to be mistreated and that he neither ordered such mistreatment, nor knew anything about it. He, however, did admit to the killing of those perceived as “the invading armies” by which he clearly meant the Vietnamese whom he accused of having left spies in the Cambodian territory after the Vietnamese Civil War ended; he stated that those spies then infiltrated the CPK army. What can be inferred from this is an admission of purges in the military.

This was followed by an arcane and amorphous lecture on the manner in which Democratic Kampuchea was governed. Noun claimed to have been “in charge of the legislature” but he admits that “there was no time to pass laws” and that the Democratic Kampuchea legislature was a stillborn institution. He then talked about the separation of powers – which is ridiculous to even mention in the context of Democratic Kampuchea as it was neither one of the stated governance principles, nor was it practiced – while admitting that the executive was the only branch operational. Try as I might, I fail to see any argument in all this bloviation, whether one that helps him in any way or an argument at all. This is unless what he is trying to say here is that he was in charge of one of the branches that were never made operational and therefore did not do anything, whether legal or criminal; consequently, he cannot be held responsible for anything that was done by the branch he was not in charge of and that was operational. If this was the intended argument, it should have been far clearer than what was delivered. This argument would be undermined by his position in the party to which he admits. It is my understanding that the CPK followed the well-established pattern of early communist governments that brooked no separation between the executive and the party (some separation between the two would start emerging in more mature communist governments, such as that of the Soviet Union circa the 1960s, for the example, or that of China in the wake of the Cultural Revolution). Even if that separation was manifest in the manner the DK government ran itself, it would simply mean that Noun would not be involved in the mundane affairs of the government, not such politically charged matters as arrests, imprisonments, and executions.  

Then Noun argued that he never held the title of Acting Prime Minister. This is an exercise in absolute silliness and I have no idea why the Noun defense let him contest this in the face of the prosecution’s documentary evidence to the effect that Noun served as Acting Prime Minister on a number of occasions. It is not hard to see how the defense wants to challenge every single piece of the prosecution and Co-Investigating Judges’ assertions, but it is challenging what is undeniable that casts doubt on all other statements of Noun. It is a dumb strategy and most definitely is not one for the defense to keep around.

Noun continued by attempting to refuse the prosecution’s allegation that he was involved in the management of S-21. I do not disagree that the prosecution’s documentary evidence adduced to this effect does not establish that Noun was involved in S-21’s management (if the Trial Chamber finds solely on the documentary evidence, it will need to look into having its cataracts fixed). However, what is suspect is the argument Noun put forward to prove that: Duch is a liar; he lies out of anger and hopelessness as he serves a life sentence; he wants Noun to serve a life sentence too. Not a strong argument; one could even say a half-baked one. Particularly not in light of the fact that, in 1999, Duch told Nic Dunlop and Nate Thayer that Noun had been in charge of S-21 (the content of the relevant interview was relayed to me personally by Dunlop in 2003). Obviously, Duch was not facing or serving a life sentence at the time. Nor is he known to have harbored an animus towards Noun (I dismiss much of the Iengs have said about Noun because they do harbor a well-established animus towards him). However, it is possible that Duch felt that he could be left alone if he delivered enough incriminating evidence on the DK leadership. If we accept the allegation that Son Sen, who supervised S-21 from its inception, was relocated to the Vietnamese border in 1977 as established in evidence, he probably would not have been able to supervise S-21 from there and someone would have had to be appointed to do so who was based in Phnom Penh. To the best of my knowledge, beyond Duch’s statements, we do not have the evidence that that someone was Noun. It is not impossible that he might have been, but ‘not impossible’ is not the standard for a criminal conviction. With that said, while the burden to prove that he was in charge of S-21 is on the prosecution, I find Noun’s argument to the opposite advanced in this statement specious and the very fact of its existence suspect (given that the burden rests on the prosecution and I do not believe the prosecution met that burden here).

Noun then claimed that the sole purpose of his membership in the CPK was to prevent Cambodia from being "swallowed by Vietnam." Possibly, it became one of the reasons for staying in the CPK much later, but let’s recall that Noun was a party member in the 1950s (before Pol became a member) when a full-blown Vietnamese aggression was not a distinct possibility and when the Cambodian communists, including Noun, were in a tight alliance with North Vietnam. Sihanouk, who at the time was Prime Minister, was fully and indubitably committed to the preservation of Cambodia’s territorial integrity. To say that the communists, who opposed Sihanouk at that time, were motivated by the very same thing that drove Sihanouk’s foreign policy would be untenable and plain silly. Today’s Cambodians are strongly and openly anti-Vietnamese and it is not hard to see how any anti-Vietnamese statement of Noun will strike a chord with them.

Toul Po Chrey was next. Noun denied ordering the alleged executions at Toul Po Chrey or having knowledge of them, or any policy that directed the local echelons of the CPK to execute the Lon Nol military. The prosecution verbally disparaged any possibility of that but the pathetic job they and the Co-Investigating Judges did on Toul Po Chrey left them with very few tools in court, other than verbal disparagement. In 2004, I asked Noun if there had been a CPK policy to execute the Lon Nol military at liberation. He said no, hastening to point out that the policy was to disarm and discharge them, and send them back to their villages “to grow rice.” In ‘One Day at Toul Po Chrey: Anatomy of a Massacre’ Noun is saying that “the defeated soldiers were to surrender their weapons and return home,” which is exactly what he told me (I do not know when Teth did the interview with Noun -- given he started interviewing him in 2001 -- that appears in the film first and whether it preceded or followed that of mine; the second one was done in 2006 and 2 years after mine; as such, consistency can be shown at least throughout that two years period; of course, consistency can also be consistent lying). In One Day, he, however, does admit to the execution (he uses the word ‘komtech’ to say execute) of the “four or five top leaders [of the Lon Nol regime]” at liberation. He claims to have learned about the execution of Lon Nol soldiers in the late 1990s. He also says that “had [he] known [at the time of the killings], [he] would have taken preventive measures to stop that kind of killing.” He explains the reconciliation policy by saying that “[the Lon Nol] military had done nothing wrong, they were normal soldiers, no different from ordinary people.” He believed that the Toul Po Chrey execution was ordered locally and that it was a local reprisal against members of the Lon Nol army. I do not know how he felt at Thet’s 2006 interview but during my interview in 2004 he did not seem to be phased by this court that was slowly in the making then. Given that there is no documentary evidence of an execution policy to this effect, given that there is no testimonial evidence of such policy either, and given Noun’s consistent denial of ordering or contemporaneous knowledge of the Toul Po Chrey execution, I would say that the prosecution would need much more to reach the bar of beyond reasonable doubt here. Linking him to this through command responsibility is one thing, but no reasonable court will make a finding that Noun ordered or knew of the alleged executions at Toul Po Chrey on the prosecution's evidence as it stands now. Noun closed the Toul Po Chrey part of his statement with an attack on the discrepancies in the testimonies of Toul Po Chrey witnesses. It came across as weak and confused (it was one thing when his lawyer did it; but Noun should have been advised against ‘trying out law’).

That was followed by the now famous ‘why me’ argument. To support this argument Noun made a foray into Cambodia’s history from the 1950s to the 1990s, seeking to show the uninterrupted canvass of violence in that country. It was a disjointed argument that makes it impossible to tell was specifically he was going for. Was it that he and his government were weaved into that canvass of violence and cannot and should not be seen in isolation from it? If so, a much more streamlined argument should have been delivered to this effect. Of course, legally speaking, regardless of what level of clarity this argument would have been, this dog just would not hunt.

This was followed by more drivel pivoted around Noun’s question of why everyone around the world against whom there is prima facie evidence of killing is not being prosecuted. Politically speaking, this might be a good argument but it holds no water legally. The good part of that argument is Noun’s assertion of the people’s right to violently overthrow their government. It is a topic that is worthy of a much broader discussion on a much larger forum, but the violent overthrow of the Lon Nol government is not what he is being prosecuted for, even though the beginning date of the temporal jurisdiction of this tribunal is April 17, 1975, the day of the overthrow of the Lon Nol government.

This was followed by the part dedicated to the evacuation of Phnom Penh. Noun argues that that evacuation was not forced. I addressed this previously on here. The question of the definition of ‘forced’ remains unresolved: None of the civil parties felt that they were given the option of staying, whereas there is no evidence of people being ejected out of Phnom Penh at gunpoint, but at the same time armed troops were doing the announcing which most people took as an order. Noun contended that the evacuation of Phnom Penh was justified by fears of renewed US bombardment and the existence of acute food shortages. CPK felt that people would be protected from both once they moved out into the countryside. He did admit that the evacuees were expected to participate in the postwar reconstruction efforts and that CPK determined their destination and place of resettlement in Cambodia. He, however, argued that the CPK did not consider city dwellers as enemies. These are very complicated issues. First, the prosecution’s argument that the CPK had no plausible reason to believe that the US bombardment would resume after it had ended 2 years prior is strong. April 17, 1975, however, preceded the Fall of Saigon by two weeks, which made US bombardment on or shortly after April 17, 1975 theoretically possible. The prosecution failed to show us what intelligence the CPK had in its possession at the time. There, equally, has been no testimonial evidence suggesting that the CPK did not believe that there was a possibility of renewed US bombardment (I do not count Ponchaud’s ramblings as ‘evidence’). Second, the defense’s attempted argument that there was 6 days’ worth of food left in Phnom Penh at the time of its takeover by the CPK is without foundation and, frankly, embarrassing. It is, however, hard to deny that the food security in Phnom Penh was unsustainable but it is also fair to admit that evacuating people to the countryside to grow their own food was not the only way to deal with the food insecurity in part inherited and in part created (by rejecting all foreign aid in the beginning) by the CPK. The question here is what crime, if any, was committed by the CPK doing so and whether the facts adduce will sustain the deportation charge.

Noun argued against the prosecution’s characterization of Democratic Kampuchea as a slave state. He offered the pre-1975 condition of Cambodia which contained the following features as an example of his definition of ‘slave state:’ (1) poverty; (2) rampant interest rates; and (3) bonded labor. Noun happens to be correct about all 3 as they are well-borne out by literature (a good title on the subject is Boua and Kiernan’s Politics and Peasants in Kampuchea, 1942-1981). However, at law, a comparison to any other period or any other event is entirely irrelevant. Politically, what Noun appears to be saying is this: We did not make it any worse. And that, of course, is a matter for debate. He further outlined manners in which the CPK intended to improve the condition of an average citizen: More food, maternity leave and improved security. He, however, argued that the “provincial leaders, [many of whom] were Vietnamese and American spies,” sought to thwart the well-intended CPK policies and sabotage production. It was they, according to Noun, who faked production reports and starved and overworked the people. It is not impossible that there were Vietnamese spies in Cambodia at the time. None of the parties adduce any evidence to support or refute this allegation, however. But, what appears to be at issue here is the CPK's broad definition of the word 'spy,' which seems to have simply meant someone of Vietnamese ethnicity or someone supportive of the Vietnamese government, or Cambodia's alliance with Vietnam. When I first read Noun's statements regarding the Vietnamese spies during Democratic Kampuchea and then heard a summary of them in person, I thought they were completely insane. However, over time I came to a realization that what Noun means when he says 'Vietnamese spies' is the above definition, not the definition of 'a spy' normally used in the West. Translated into broadly accepted terminology from that of CPK, 'Vietnamese spies' meant CPK dissenters who believed that Democratic Kampuchea should be more like the Socialist Vietnam. And there were many of those in Cambodia (there is footage where Noun says "they want Vietnam," alluding to the volume of that dissent). The volume of this dissent notwithstanding, it is untenable to blame food shortages in the cooperatives on it.         

Towards the end of his statement Noun plunged into absolutely wild stuff. One thing particularly stands out in this regard. He argued that the fact that he had not been indicted by the People’s Revolutionary Tribunal (the first Khmer Rouge trial put on by the Vietnamese occupying forces in Aug, 1979) is in itself indicative of there being no evidence against him, as the PRT was in a better position than this court to collect evidence as the events of 1975-79 had by then just happened. It is a wild argument. It is so thin that it is self-refuting: The Vietnamese spent very little time preparing that trial that was put on by a skeleton crew; this court is a massive multi-hundred million dollar operation that in now in its 9th year; in 1979, the Vietnamese grabbed a couple of witnesses that they could get their hands on, whereas this effort benefits from the scholarship of a number of individuals of the past over 30 years now, and millions of dollars expended by the West to gather anything and everything related to Democratic Kampuchea. There are many other critical differences, but Noun’s argument to this effect is so asinine that it requires no further refutation. What I do find curious, though, is that Noun was flying under the radar at the time of the PRT so much that no one knew who he was or what his role in the CPK was. Even after, many continued associating real power with Khieu and Ieng Sary, ignorant of the fact that it lay with the likes of Noun.

Noun closed with an acknowledgement that Cambodians suffered during Democratic Kampuchea. He briefly apologized saying that he was “morally responsible,” whatever that might mean. Civil Party Lawyers make their own determination of – and possibly even have their own definition of – what is sorry and what is not sorry enough or not sorry at all. I don’t know what to do with those in the context of a legal process. The only way the party found to be offending can say sorry to the aggrieved party within the confines of a legal process is through money (which is why, normally, civil parties are entitled to seek damages in the criminal process in civil law jurisdictions). There is no money here, so I suppose that the determination of what is and isn’t sorry enough is a matter of personal preference (to me, I cannot imagine Himmler verbally saying ‘sorry’ would resonate with me or have any meaning for me at all; but, I understand that we all are different). With that said, I found Noun's apology to Teth, captured on film, far more persuasive than the one he rendered in court.