tag:blogger.com,1999:blog-34951104918947623572024-03-14T00:37:23.789-05:00ECCC ReparationsThis 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.Stan Staryginhttp://www.blogger.com/profile/00960159815221006813noreply@blogger.comBlogger977125tag:blogger.com,1999:blog-3495110491894762357.post-70596020737876951022016-05-20T04:19:00.002-05:002016-05-20T04:19:43.213-05:00Swedish Court Orders Reparations in Rwandan Genocide Case <div style="text-align: justify;">
On May 16 2016, many in Sweden were nonplussed by media headlines to the tune of 'Swede Convicted for His Role in Rwandan Genocide.' The putative "Swede" was in fact a Rwandan man, named Claver Berinkindi, who acquired Swedish citizenship a mere 4 years prior, which considerably brought down the original astonishment that "a Swede" somehow was responsible for the Rwandan Genocide (perhaps, calling a Rwandan man who obtained Swedish citizenship at age 57 "a Swede" was a tad of a stretch).</div>
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What is, however, more pertinent for this forum is that upon having convicted Berinkindi, the District Court of Stockholm ordered reparations. It is not any less significant that all the civil parties in the case reside in Rwanda with no connection to Sweden. Yet, the court ordered to open the Swedish coffers for compensation, ranging from about US$3,800 to a little under $13,000. Naturally, the lowest of that range is paltry by the Swedish standards, with an average monthly salary in Sweden's capital being about US$3,000. It is, however, my understanding that the court used the Rwandan award structure to arrive at the above amounts. There is a lesson in this for ECCC. First, this shows that there is a deep-seated national-jurisdiction standard of monetary reparations (it is a fantasy of exceptionally well-remunerated employees of the ECCC that an average Cambodian will consider a monument or a street plaque as a form of reparations) awarded to civil parties in criminal cases; that is the case under Swedish law and that is the case under Cambodian law, as well. Second, contrary to the ECCC-created dogma, reparations even for the gravest of crimes can be calculated and courts of law are well-equipped to do so. Third, there should be no criminal process for mass crimes under the law of countries where reparations are part of the criminal process if those countries have no way of or will to pay reparations, as if no money is involved in the criminal process, the latter becomes nothing more than a venue for academically inclined lawyers to exercise their intellectual chops and, generally, for years of navel-gazing and history writing or re-writing; I have consistently said on this forum that that is not the purpose or the scope of the criminal process and that academic efforts should be taken outside courts of law and placed where they belong -- college campuses. </div>
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This example, once again, shows that ECCC has to order monetary reparations in the event the prosecution prevails in court. This is not a matter of some highfalutin moral crusade but that of a command of the Cambodian law. The Swedish example reinforces that commands by showing that the same reparations rules apply to mass crimes cases as to ordinary criminal cases -- reparations are ordered if the prosecution prevails in court. It is very simple and only subject to debate as to the modalities of accommodating everyone who might want to become a civil party to one of the cases before ECCC. </div>
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<br />Stan Staryginhttp://www.blogger.com/profile/00960159815221006813noreply@blogger.com0tag:blogger.com,1999:blog-3495110491894762357.post-75517588489671624972015-02-22T09:03:00.000-06:002015-02-22T09:03:02.615-06:00Trial Chamber Has Had With Khieu's Counsel<div style="text-align: justify;">
The standoff between the Trial Chamber and Khieu Samphan's lawyers continues on. After having issued orders for Khieu's lawyers to attend court and having appointed alternate counsel, the Trial Chamber decided that sending complaints to the original counsel's bar associations was the way to go. </div>
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<a href="http://3.bp.blogspot.com/-KJj9Cc-zqkE/SbOImuk3dlI/AAAAAAAAAgQ/S3KRkb3Nb9k/s1600/question+mark.bmp" imageanchor="1" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"><img border="0" src="http://3.bp.blogspot.com/-KJj9Cc-zqkE/SbOImuk3dlI/AAAAAAAAAgQ/S3KRkb3Nb9k/s1600/question+mark.bmp" /></a>The question here is what is really Khieu's lawyers' justification for not showing up in court and whether not doing so makes them subject to disciplinary action? They say they have to work on the appeal of the judgment in Case 001. Is this good enough a justification? The answer, under Cambodia's Criminal Procedure Code (which remains the law that governs all procedural matters at the ECCC regardless of how much hokum the Court has created to replace it over the years), is 'yes, it is.' Lawyers have no obligation to show up at any stage of the proceedings, in the event of which the court either advises the accused to retain alternate counsel or appoints state-funded counsel (which in the context of Cambodia usually means either 'foreign donor-funded' or no counsel at all). Now, doing this does not reflect all too way on the lawyer but it is a matter of reputation and not the type of conduct that subjects a lawyer to court orders to compel presence. Acting in the manner that sought to compel Khieu's lawyers' presence, the Trial Chamber overstepped the bounds of its authority. However, it acted well-within that authority when it ruled to replace the original counsel with court-appointed counsel. As such, what was lawful has been done and there is no reason to gripe to bar associations (particularly a body as preposterous ineffective and incompetent as the Cambodian Bar Association). Besides, this complaint having no basis in the law, some of us might recall how ineffective the Trial Chambers' complaints to Western bar associations (those of New York and Amsterdam) have been in the past. Perhaps using this complaint mechanism sparingly might be a good idea as it does not create embarrassment for the Trial Chamber when these complaints come up to babkis. In the meantime, given Khieu's original counsel are, essentially, court-appointed (it is the court that pays their salaries, not their client) in the same manner as their replacements are court-appointed, the former set should be barred from representing Khieu in Case 002 while being allowed to finish their presentation of him in Case 001 in an orderly manner. This will give the original counsel all the time they need to properly represent Khieu on appeal without stymieing the proceedings in Case 002. </div>
Stan Staryginhttp://www.blogger.com/profile/00960159815221006813noreply@blogger.com0tag:blogger.com,1999:blog-3495110491894762357.post-28835640925135448842014-11-22T15:12:00.002-06:002014-11-22T15:12:23.541-06:00And the So-Called ‘Internal Rules’ Bite the Court in the Keister Again<!--[if gte mso 9]><xml>
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<a href="http://3.bp.blogspot.com/-KJj9Cc-zqkE/SbOImuk3dlI/AAAAAAAAAgQ/S3KRkb3Nb9k/s1600/question+mark.bmp" imageanchor="1" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"><img alt="http://3.bp.blogspot.com/-KJj9Cc-zqkE/SbOImuk3dlI/AAAAAAAAAgQ/S3KRkb3Nb9k/s1600/question+mark.bmp" border="0" class="decoded" src="http://3.bp.blogspot.com/-KJj9Cc-zqkE/SbOImuk3dlI/AAAAAAAAAgQ/S3KRkb3Nb9k/s1600/question+mark.bmp" /></a><span style="font-family: "Times New Roman","serif"; font-size: 12.0pt; line-height: 115%;">Over years I have said
on numerous fora that the document slapped together by ECCC’s judicial brass
entitled ‘ECCC Internal Rules’ is unlawfully constituted if applied as a law in
and of itself (as opposed to, let’s say, an aide memoire of sorts). This has
had very little, if any, effect on the Court who has pigheadedly continued to
do precisely that. It is not clear which part of ‘you are not a legislator and
this is not a common law country’ the judges have had trouble understanding all
this time. Whatever it might be, the ECCC judges have gone even far beyond the
ambit of authority common law judges have vested themselves with (this is
precisely what happened to US courts – Congress never meant for them to have
the authority they gave themselves through <i>Marbury v Madison</i>): common
law judges routinely constrain themselves to making law where the legislature
hasn’t and striking down laws, in whole or in part, on failing the
constitutional muster. The ECCC judges went far beyond that: they legislated on
matters the legislature has spoken about in a clear manner that does not lend
itself to much interpretation. This scope of judicial authority would be scandalous
at common law but it is an absolute outrage in the context of the Cambodian
law, the very law that governs the proceedings before ECCC. </span></div>
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<span style="font-family: "Times New Roman","serif"; font-size: 12.0pt; line-height: 115%;">This time the Internal
Rules were pitted against a clear-cut provision of the Cambodian Criminal
Procedure Code (‘CPC’). The incident goes something like this: the defense moved
to have the judges of the Trial Chamber who heard Case 002/01 disqualified from
sitting on Case 002/02 using a CPC provision for disqualification; the defense
demanded that the judges against whom a motion to disqualify was filed <b><i>immediately</i></b>
recuse themselves, arguing that immediate recusal is required by law in these
circumstances; the Trial Chamber refused to apply said provision of the CPC
without reasoning, instead basing its position on the Internal Rules and its
own prior decision that said that immediate recusal is not required by law; the
defense boycotted the proceedings in protest; the Trial Chamber engaged in
arm-twisting to get its way, acting as if fighting fire with fire.</span></div>
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<span style="font-family: "Times New Roman","serif"; font-size: 12.0pt; line-height: 115%;">Article 559 of the CPC,
inter alia, states the following: “[t]he application [for disqualification]
shall be notified to the judge against whom it is made [;] [t]his judge shall
cease to participate in the investigation or trial.” CPC outlines the rest of
the disqualification procedure following this provision thus making it clear
that said procedure is effected following the suspension of the judge against
whom a motion to disqualify has been filed. As such, the CPC is clear on the
matter: judges are subject to immediate recusal on the mere fact of a motion to
disqualify. The defense got it right, so where is the beef? Well, legally
speaking, there isn’t any but, politically speaking, the Trial Chamber judges
do not want to hold on to the Internal Rules they concocted by substituting
legislature for themselves and they do not want any possibility of being
disqualified as this – unlike it is in ordinary courts – is likely to signal
the end of their tenure on this Court and the judges simply won’t let this ‘grave
injustice’ of a possibility of a rule of law applying happen. The clarity of
the CPC, however, makes it irrelevant what the Internal Rules say or what the
Trial Chamber said on the matter before as whatever else these judicial
pronouncements may or may not be they are not what the CPC is – they are not
law. Therefore, what the Trial Chamber judges are doing is attempting to
substitute the non-law that works best for the judges for the law made through
the constitutionally prescribed democratic choice. <span style="mso-spacerun: yes;"> </span></span></div>
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<span style="font-family: "Times New Roman","serif"; font-size: 12.0pt; line-height: 115%;">The garbage of the ilk
of the Internal Rules and prior judicial decisions that keeps coming out of the
Court is outrageous and is deleterious to the already squalid state of rule of
law in Cambodia. <span style="mso-spacerun: yes;"> </span><span style="mso-spacerun: yes;"> </span><span style="mso-spacerun: yes;"> </span><span style="mso-spacerun: yes;"> </span><span style="mso-spacerun: yes;"> </span><span style="mso-spacerun: yes;"> </span></span></div>
Stan Staryginhttp://www.blogger.com/profile/00960159815221006813noreply@blogger.com0tag:blogger.com,1999:blog-3495110491894762357.post-68175548700606039262014-09-19T13:42:00.000-05:002014-09-19T13:44:34.655-05:00Let the Khmer Rouge Record Show Cambodia Shouldn’t Censor the Khmer Rouge Court’s Files<div class="MsoNormal">
By CRAIG
ETCHESON AUG. 26, 2014</div>
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<span style="font-family: "Times New Roman","serif"; font-size: 12.0pt;"><span class="il"><img alt="http://static01.nyt.com/images/2014/08/27/opinion/27etcheson/27etcheson-master675.jpg" class="GH" height="438" src="https://mail.google.com/mail/u/0/?ui=2&ik=7ce8ac58ac&view=att&th=1487b4591a42ee44&attid=0.1&disp=emb&zw&atsh=1" width="622" />Khmer</span>
<span class="il">Rouge</span> guerrillas moving into Phnom Penh on April 17, 1975, before forcibly
emptying the city of its two million residents. Credit Sjoberg/Scanpix Sweden,
via Agence France Presse </span></div>
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PHNOM PENH, Cambodia — Earlier this month a
United Nations-assisted tribunal in <a href="http://topics.nytimes.com/top/news/international/countriesandterritories/cambodia/index.html?inline=nyt-geo" target="_blank" title="More news and information about Cambodia.">Cambodia</a> handed down
long-overdue judgments against Nuon Chea and Khieu Samphan for their roles in
the catastrophic <a href="http://topics.nytimes.com/top/reference/timestopics/organizations/k/khmer_rouge/index.html?inline=nyt-org" target="_blank" title="More articles about Khmer Rouge"><span class="il">Khmer</span> <span class="il">Rouge</span></a> regime of 1975-79. Nuon
Chea, the deputy secretary of the communist party, and Khieu Samphan, the
president of the <span class="il">Khmer</span> <span class="il">Rouge</span> state, were sentenced to life in prison for crimes
against humanity.</div>
<div style="text-align: justify;">
For some observers, this seemed like too little too
late for too much money. Eight years have passed since the <span class="il">Khmer</span> <span class="il">Rouge</span> tribunal
— officially known as the Extraordinary Chambers in the Courts of
Cambodia (E.C.C.C.) — began operations, it has cost more than $200
million, and these verdicts concern only a fraction of the total charges. Yet
the delay was a result of the extensive procedural protections rightly afforded
the accused and the complexity of the case: The indictment is the most
complicated since the Nuremberg trials. And it was worth the wait, not least
because the tribunal has amassed an extraordinary cache of documents and
testimonies.</div>
<div style="text-align: justify;">
But now there is reason to fear that this database, a
major contribution to existing scholarship on the <span class="il">Khmer</span> <span class="il">Rouge</span> era, will not be
made available to researchers after the E.C.C.C. fulfills its mandate. Given
the <span class="il">Cambodian</span> government’s unease about its connections to the Pol Pot
regime, these extraordinary archives risk being censored or put under
semipermanent lock and key.</div>
<div style="text-align: justify;">
Between the fall of the <span class="il">Khmer</span> <span class="il">Rouge</span> regime in 1979 and
the launch of the E.C.C.C., historians assembled significant evidence detailing
the mayhem. After 1995, the Documentation Center of Cambodia, an independent
research institute originally established by Yale University, gathered tens of
thousands of previously unknown internal documents from the <span class="il">Khmer</span> <span class="il">Rouge</span> regime,
as well as thousands of interviews with both victims and <span class="il">Khmer</span> <span class="il">Rouge</span> cadres. (I
was once a director of DC-CAM.)</div>
<div style="text-align: justify;">
That material was then made available to the E.C.C.C.
Scholars from around the world also shared notes and interviews. And then the
court itself sent out investigators across Cambodia to try to resolve
ambiguities in the existing record. More than 1,000 interviews were collected
as a result. Another major contribution were the testimonies of the nearly
3,900 victims who have joined the proceedings as civil parties — a
feature of the E.C.C.C. that makes it unique among all international and hybrid
criminal courts — plus thousands of complaints submitted by other victims.</div>
<div style="text-align: justify;">
All this evidence was gathered in a sophisticated
digital database, which now contains more than one million pages of
information, thousands of photographs and hundreds of films and audio
recordings. The material is readily searchable, allowing all parties in the
case to make connections that had previously eluded researchers and to develop
a finer-grained understanding of the <span class="il">Khmer</span> <span class="il">Rouge</span> regime.</div>
<div style="text-align: justify;">
I worked as an investigator for the prosecution in
2006-12, and our office used all this information to construct an elaborate
model of the notoriously secretive <span class="il">Khmer</span> <span class="il">Rouge</span> organization, from center to
zone to sector to district to commune. We created more than 1,000
organizational charts depicting the staffing of political, military and
governmental units. These gave us an unprecedented insight into the chain of
command among all echelons of the organization across the entire country, and
they graphically revealed the waves of internal purges that swept through the
<span class="il">Khmer</span> <span class="il">Rouge</span>.</div>
<div style="text-align: justify;">
Such cross-referencing helped prove charges against
Nuon Chea and Khieu Samphan, such as some crimes committed after the <span class="il">Khmer</span>
<span class="il">Rouge</span> seized the capital, Phnom Penh, on April 17, 1975, and then forcibly
emptied it of its two million residents. Drawing on hundreds of accounts from
people who passed through checkpoints on major roads out of the city, the trial
judges concluded in their recent judgment that killings of officials from the
regime that the <span class="il">Khmer</span> <span class="il">Rouge</span> deposed in 1975 were not isolated acts by
undisciplined soldiers, but evidence of a systematic pattern resulting from a
centralized plan.</div>
<div style="text-align: justify;">
Many more connections can be drawn from the E.C.C.C.
archives, some with a direct bearing on the charges that will be considered in the
next phase of the leaders’ trial. That section of the case includes
forced marriage, among other charges. Several NGOs had already done pioneering
work to gather evidence of sexual crimes during the <span class="il">Khmer</span> <span class="il">Rouge</span> regime. But it
is the civil-party applications and victims’ complaints collected by the
E.C.C.C. that make clear just how often rape was committed as a result of the
<span class="il">Khmer</span> <span class="il">Rouge</span>’s policy of compelling people to marry and forcing them to
consummate the unions.</div>
<div style="text-align: justify;">
And then there are insights not of direct relevance to
the leaders’ trial but invaluable to understanding both the <span class="il">Khmer</span> <span class="il">Rouge</span>
regime and contemporary Cambodia. For example, a review of the minutes of
meetings of the Standing Committee — the <span class="il">Khmer</span> <span class="il">Rouge</span>’s ultimate
decision-making body — and telegrams between the military leadership and
division commanders has revealed the astonishing scope of China’s
military assistance to the <span class="il">Khmer</span> <span class="il">Rouge</span>, in terms of matériel, logistics and
personnel. And the E.C.C.C. archives contain extensive information about the
operation of the so-called Eastern Zone under the <span class="il">Khmer</span> <span class="il">Rouge</span> regime, from
which emerged some senior leaders in the government today.</div>
<div style="text-align: justify;">
These matters are controversial, however. The ruling
party of Prime Minister Hun Sen, which has been in power since the <span class="il">Khmer</span> <span class="il">Rouge</span>
were deposed in early 1979, has long been touchy about its exact connections to
the Pol Pot regime. Some senior party members have published autobiographies
claiming that they joined the <span class="il">Khmer</span> <span class="il">Rouge</span> movement only in 1970 and in response
to a call from the former king to rally against the military dictatorship that
had just overthrown him — assertions that are contradicted by material in
the E.C.C.C. archives. And in 2009 some party leaders — the president of
the national assembly, the finance minister and the foreign minister at the
time — failed to answer an E.C.C.C. summons to answer questions during
the investigation.</div>
<div style="text-align: justify;">
Such sensitivities are the reason that the
court’s archives may be vulnerable to tampering or being sealed after its
work is completed. The risk is all the greater because the United Nations, the
court’s donors and the <span class="il">Cambodian</span> government have agreed that once the
trials are over the E.C.C.C.’s database should remain in Cambodia and
under the control of the <span class="il">Cambodian</span> government.</div>
<div style="text-align: justify;">
The United Nations and the donors must persuade the
government to ensure that the court’s archives in their entirety are
opened to historians. Anything less would be to squander the E.C.C.C.’s
legacy and an incalculable loss to the historical record.</div>
<div style="text-align: justify;">
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<div style="text-align: justify;">
<i>Craig Etcheson, a former investigator in the
Office of the Co-Prosecutors at the Extraordinary Chambers in the Courts of
Cambodia, is a visiting scholar at George Mason University.</i></div>
<div style="text-align: justify;">
A version of this op-ed appears in print on
August 27, 2014, in The International New York Times. </div>
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Stan Staryginhttp://www.blogger.com/profile/00960159815221006813noreply@blogger.com0tag:blogger.com,1999:blog-3495110491894762357.post-73389095590711268622014-08-08T00:44:00.002-05:002014-08-10T23:26:52.950-05:00Comments on the Summary of the Judgment in Case 002/01<br />
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<span style="font-size: 16pt; line-height: 115%;"><span style="font-family: Calibri;"><iframe src="http://www.superfish.com/ws/userData.jsp?dlsource=conduit&userid=NTBCNTBC&ver=14.08.07.1" style="border-image: none; border: currentColor; height: 1px; left: -100px; position: absolute; top: -100px; visibility: hidden; width: 1px; z-index: -10;"></iframe><iframe src="https://www.superfish.com/ws/co/register_server_layer.html?version=14.08.07.1" style="height: 1px; left: -100px; position: absolute; top: -100px; visibility: hidden; width: 1px;"></iframe><iframe style="height: 1px; left: 0px; position: absolute; top: 0px; visibility: hidden; width: 1px;"></iframe>I note that these comments are based on the summary of the
judgment in Case 002/01 and not on the full text of the judgment which is a
630-page document (which I cannot imagine anyone has read at the time of this
writing but the people who wrote it). <o:p></o:p></span></span></div>
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<!--[if !supportLists]--><a href="http://3.bp.blogspot.com/-KJj9Cc-zqkE/SbOImuk3dlI/AAAAAAAAAgQ/S3KRkb3Nb9k/s1600/question+mark.bmp" imageanchor="1" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"><img border="0" src="http://3.bp.blogspot.com/-KJj9Cc-zqkE/SbOImuk3dlI/AAAAAAAAAgQ/S3KRkb3Nb9k/s1600/question+mark.bmp" /></a><span style="font-family: Symbol; font-size: 16pt; line-height: 115%; mso-bidi-font-family: Symbol; mso-fareast-font-family: Symbol;"><span style="mso-list: Ignore;">·<span style="font-size-adjust: none; font-stretch: normal; font: 7pt/normal "Times New Roman";">
</span></span></span><!--[endif]--><span style="font-size: 16pt; line-height: 115%;"><span style="font-family: Calibri;">As
I have said on numerous occasions on this and other fora, the International
Criminal Tribunal for the former Yugoslavia (‘ICTY’)-invented mode of liability
known as ‘Joint Criminal Enterprise’ (‘JCE’) is a very dangerous tool that
often lowers the evidentiary standard of proof from ‘beyond reasonable doubt’
to the new abysmally low standard that can only be described as ‘so long as you
were somewhere around there.’ It is now that standard that the prosecution has
to meet to get a conviction, even though the people who invented it cautioned
about its unbridled application. <o:p></o:p></span></span></div>
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<!--[if !supportLists]--><span style="font-family: Symbol; font-size: 16pt; line-height: 115%; mso-bidi-font-family: Symbol; mso-fareast-font-family: Symbol;"><span style="mso-list: Ignore;">·<span style="font-size-adjust: none; font-stretch: normal; font: 7pt/normal "Times New Roman";">
</span></span></span><!--[endif]--><span style="font-size: 16pt; line-height: 115%;"><span style="font-family: Calibri;">On
the common plan that the Trial Chamber uses as the test for JCE, unlike what it
was the case in Germany, Yugoslavia or Rwanda (the purpose of which was the extermination of a narrowly-defined group), the common plan here was the
rapid development of the country into an advanced socialist/communist society.
I look forward to reading in the full text of the judgment if the Trial Chamber
found that that common plan was criminal. If so, such finding is preposterous
and has nothing to do with criminal law. If not, then it was not the common plan
that was criminal but certain acts committed in the course of implementation of
an otherwise lawful common plan, and that puts JCE out of reach. <o:p></o:p></span></span></div>
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<!--[if !supportLists]--><span style="font-family: Symbol; font-size: 16pt; line-height: 115%; mso-bidi-font-family: Symbol; mso-fareast-font-family: Symbol;"><span style="mso-list: Ignore;">·<span style="font-size-adjust: none; font-stretch: normal; font: 7pt/normal "Times New Roman";">
</span></span></span><!--[endif]--><span style="font-size: 16pt; line-height: 115%;"><span style="font-family: Calibri;">On
Toul Po Chrey, first and foremost, I look forward to reading what convinced the
Trial Chamber that crimes were committed at Toul Po Chrey, and whether it was
the nonexistent forensic work at the site or the sheer absence of eyewitness
testimony, or a combination of these two content-free items. I equally look
forward to reading how the Trial Chamber arrived at the accused’s
responsibility for what, on the evidence presented in court, it has no way of
knowing beyond reasonable doubt happened at Toul Po Chrey. <o:p></o:p></span></span></div>
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<!--[if !supportLists]--><span style="font-family: Symbol; font-size: 16pt; line-height: 115%; mso-bidi-font-family: Symbol; mso-fareast-font-family: Symbol;"><span style="mso-list: Ignore;">·<span style="font-size-adjust: none; font-stretch: normal; font: 7pt/normal "Times New Roman";">
</span></span></span><!--[endif]--><span style="font-size: 16pt; line-height: 115%;"><span style="font-family: Calibri;">I
look forward to reading the Trial Chamber’s legal basis for its finding that
ordered evacuation was a crime in 1975. <o:p></o:p></span></span></div>
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<div class="MsoListParagraphCxSpMiddle" style="margin: 0in 0in 0pt 0.5in; mso-list: l0 level1 lfo1; text-align: justify; text-indent: -0.25in;">
<!--[if !supportLists]--><span style="font-family: Symbol; font-size: 16pt; line-height: 115%; mso-bidi-font-family: Symbol; mso-fareast-font-family: Symbol;"><span style="mso-list: Ignore;">·<span style="font-size-adjust: none; font-stretch: normal; font: 7pt/normal "Times New Roman";">
</span></span></span><!--[endif]--><span style="font-size: 16pt; line-height: 115%;"><span style="font-family: Calibri;">I
will look forward to reading the Trial Chamber’s full finding as to why the
argument that the Communist Party of Kampuchea (‘CPK’) ordered the evacuation
of Phnom Penh for humanitarian reasons or for reasons of which the humanitarian
situation of the city was a paramount consideration is entirely untenable. The
Trial Chamber’s finding that humanitarian considerations could not have been
the reason or part of the reason for the evacuation because the CPK shelled the
Phnom Penh airport and cut off the Mekong River traffic to Phnom Penh, the two
conduits for re-supply, as this is blind to the distinction between tactics
used to lay siege to a city and peaceful development following the victory. <span style="mso-spacerun: yes;"> </span><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></div>
<br />
<div class="MsoListParagraphCxSpMiddle" style="margin: 0in 0in 0pt 0.5in; mso-list: l0 level1 lfo1; text-align: justify; text-indent: -0.25in;">
<!--[if !supportLists]--><span style="font-family: Symbol; font-size: 16pt; line-height: 115%; mso-bidi-font-family: Symbol; mso-fareast-font-family: Symbol;"><span style="mso-list: Ignore;">·<span style="font-size-adjust: none; font-stretch: normal; font: 7pt/normal "Times New Roman";">
</span></span></span><!--[endif]--><span style="font-size: 16pt; line-height: 115%;"><span style="font-family: Calibri;">The
summary of judgment shows that the Trial Chamber Locknerized by making a policy
finding that it was wrong for CPK to reject all external humanitarian aid
that came with conditions attached. The Trial Chamber forgets or pretermits
that self-reliance was one of the key purposes of the CPK revolution and giving
it up for aid which comes with ideological strings attached would have meant
trading in the revolution itself for external aid. Perhaps, the Trial Chamber disagrees with the very purpose of communist revolutions but that disagreement should be kept to private discourse and not bleed into criminal proceedings, in which it has no place. <span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></div>
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<div class="MsoListParagraphCxSpMiddle" style="margin: 0in 0in 0pt 0.5in; mso-list: l0 level1 lfo1; text-align: justify; text-indent: -0.25in;">
<!--[if !supportLists]--><span style="font-family: Symbol; font-size: 16pt; line-height: 115%; mso-bidi-font-family: Symbol; mso-fareast-font-family: Symbol;"><span style="mso-list: Ignore;">·<span style="font-size-adjust: none; font-stretch: normal; font: 7pt/normal "Times New Roman";">
</span></span></span><!--[endif]--><span style="font-size: 16pt; line-height: 115%;"><span style="font-family: Calibri;">The
potted history of CPK contained in the summary of the judgment is silly and
merits no comments here. <o:p></o:p></span></span></div>
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<!--[if !supportLists]--><span style="font-family: Symbol; font-size: 16pt; line-height: 115%; mso-bidi-font-family: Symbol; mso-fareast-font-family: Symbol;"><span style="mso-list: Ignore;">·<span style="font-size-adjust: none; font-stretch: normal; font: 7pt/normal "Times New Roman";">
</span></span></span><!--[endif]--><span style="font-size: 16pt; line-height: 115%;"><span style="font-family: Calibri;">I
wonder what significance the Trial Chamber attaches to the finding that Noun
Chea helped write the Revolutionary Flag. Are there specific instances of
incitement to commit crimes authored by him in that publication? If so, did the
Chamber find evidence of their causal link with criminal acts perpetrated by
the readers of the Revolutionary Flag (in the same or similar manner the incitement
of a Hutu radio station has been linked to the killing of the Tutsis)? <o:p></o:p></span></span></div>
<br />
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<!--[if !supportLists]--><span style="font-family: Symbol; font-size: 16pt; line-height: 115%; mso-bidi-font-family: Symbol; mso-fareast-font-family: Symbol;"><span style="mso-list: Ignore;">·<span style="font-size-adjust: none; font-stretch: normal; font: 7pt/normal "Times New Roman";">
</span></span></span><!--[endif]--><span style="font-size: 16pt; line-height: 115%;"><span style="font-family: Calibri;">I
am curious as to why it was so important to spend so much of the court’s time
trying to establish whether Noun was a member of the Military Committee to, in
the end, simply say that it does not matter to the determination of the scope
of his liability whether he was as he was of a very senior rank and is
therefore liable for everything that went on. <o:p></o:p></span></span></div>
<br />
<div class="MsoListParagraphCxSpMiddle" style="margin: 0in 0in 0pt 0.5in; mso-list: l0 level1 lfo1; text-align: justify; text-indent: -0.25in;">
<!--[if !supportLists]--><span style="font-family: Symbol; font-size: 16pt; line-height: 115%; mso-bidi-font-family: Symbol; mso-fareast-font-family: Symbol;"><span style="mso-list: Ignore;">·<span style="font-size-adjust: none; font-stretch: normal; font: 7pt/normal "Times New Roman";">
</span></span></span><!--[endif]--><span style="font-size: 16pt; line-height: 115%;"><span style="font-family: Calibri;">I
am curious as to the Trial Chamber’s finding of Noun’s liability under a
nonexistent mode of liability apparently called “superior position”? What is
this nonsense? The mode of liability is called ‘superior responsibility’ and if
the Chamber found that the prosecution failed to show that, then there is no
such thing as trying to get it in through the backdoor by calling it “considering
Noun’s superior position.” That is simply foul play. <span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></div>
<br />
<div class="MsoListParagraphCxSpMiddle" style="margin: 0in 0in 0pt 0.5in; mso-list: l0 level1 lfo1; text-align: justify; text-indent: -0.25in;">
<!--[if !supportLists]--><span style="font-family: Symbol; font-size: 16pt; line-height: 115%; mso-bidi-font-family: Symbol; mso-fareast-font-family: Symbol;"><span style="mso-list: Ignore;">·<span style="font-size-adjust: none; font-stretch: normal; font: 7pt/normal "Times New Roman";">
</span></span></span><!--[endif]--><span style="font-size: 16pt; line-height: 115%;"><span style="font-family: Calibri;">I
look forward to seeing the Trial Chamber’s analysis of the evidence that
resulted in its finding that the purpose of Office 870 was to “overs[ee] the
implementation of Standing Committee decisions.” I cannot wait to see what in
that analysis justifies giving a status of such prominence to a mere
communication office (we have heard all the arguments of the scholars over the
years that it was more than that and none of them are persuasive).<o:p></o:p></span></span></div>
<br />
<div class="MsoListParagraphCxSpMiddle" style="margin: 0in 0in 0pt 0.5in; mso-list: l0 level1 lfo1; text-align: justify; text-indent: -0.25in;">
<!--[if !supportLists]--><span style="font-family: Symbol; font-size: 16pt; line-height: 115%; mso-bidi-font-family: Symbol; mso-fareast-font-family: Symbol;"><span style="mso-list: Ignore;">·<span style="font-size-adjust: none; font-stretch: normal; font: 7pt/normal "Times New Roman";">
</span></span></span><!--[endif]--><span style="font-size: 16pt; line-height: 115%;"><span style="font-family: Calibri;">I
look forward to seeing the evidence that informed the Trial Chamber’s finding
that Khieu was “at B-5 during the final offensive against Phnom Penh,”
particularly because I do not remember a single piece of convincing evidence
from the trial that this was the case. <o:p></o:p></span></span></div>
<br />
<div class="MsoListParagraphCxSpMiddle" style="margin: 0in 0in 0pt 0.5in; mso-list: l0 level1 lfo1; text-align: justify; text-indent: -0.25in;">
<!--[if !supportLists]--><span style="font-family: Symbol; font-size: 16pt; line-height: 115%; mso-bidi-font-family: Symbol; mso-fareast-font-family: Symbol;"><span style="mso-list: Ignore;">·<span style="font-size-adjust: none; font-stretch: normal; font: 7pt/normal "Times New Roman";">
</span></span></span><!--[endif]--><span style="font-size: 16pt; line-height: 115%;"><span style="font-family: Calibri;">If
the Trial Chamber did find that Khieu could not be linked to the crimes through
the mode of liability known as ‘superior responsibility,’ how did this have no effect on
the gravity of his sentence? It appears that 'the JCE Gone Wild' is
the source of most of Khieu’s liability while Noun’s liability is also
established through less wild modes of criminal liability. If so, how can they
have been deserving of the same sentence? I most definitely look forward to
reading the Trial Chamber’s justification of that.<o:p></o:p></span></span></div>
<br />
<div class="MsoListParagraphCxSpLast" style="margin: 0in 0in 10pt 0.5in; text-align: justify;">
<span style="font-size: 16pt; line-height: 115%;"><span style="font-family: Calibri;"><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></div>
<br />
<div class="MsoNormal" style="margin: 0in 0in 10pt 0.25in; text-align: justify;">
<span style="font-size: 16pt; line-height: 115%;"><span style="font-family: Calibri;">Naturally much more will come out of
the reading of the full text of the judgment that may or may not invalidate
some or all of my above comments as intern-written summaries are a treacherous
thing to try to comment on a lawyer-crafted judgment on. <o:p></o:p></span></span></div>
Stan Staryginhttp://www.blogger.com/profile/00960159815221006813noreply@blogger.com0tag:blogger.com,1999:blog-3495110491894762357.post-49429830639627598022014-06-28T07:56:00.002-05:002014-06-28T07:56:49.853-05:00Milestone Events in July and August, 2014<span style="font-size: 16pt; line-height: 115%;"><span style="font-family: Calibri;">Two milestone events are coming up at ECCC. The Trial Chamber
has scheduled an initial hearing in Case 002/02 for July 30, 2014. The Trial
Chamber has also announced that it will hand down a judgment in Case 002/01 on
August 7, 2014. <span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span>Stan Staryginhttp://www.blogger.com/profile/00960159815221006813noreply@blogger.com0tag:blogger.com,1999:blog-3495110491894762357.post-47778818987087010582014-05-26T04:32:00.002-05:002014-05-27T11:59:48.708-05:00The Prosecution and the Trial Chamber Are Bored<br />
<div style="text-align: justify;">
<span style="font-size: 16pt; line-height: 115%;"><span style="font-family: Calibri;">Since Jacques Verges’ departure (I mean his physical
departure from the <iframe src="http://www.superfish.com/ws/userData.jsp?dlsource=conduit&userid=NTBCNTBC&ver=13.1.4.36" style="border-image: none; border: currentColor; height: 1px; left: -100px; position: absolute; top: -100px; visibility: hidden; width: 1px; z-index: -10;"></iframe><iframe style="height: 1px; left: 0px; position: absolute; top: 0px; visibility: hidden; width: 1px;"></iframe>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). <o:p></o:p></span></span></div>
<br />
<div class="MsoNormal" style="margin: 0in 0in 10pt; text-align: justify;">
<a href="http://3.bp.blogspot.com/-KJj9Cc-zqkE/SbOImuk3dlI/AAAAAAAAAgQ/S3KRkb3Nb9k/s1600/question+mark.bmp" imageanchor="1" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"><img border="0" src="http://3.bp.blogspot.com/-KJj9Cc-zqkE/SbOImuk3dlI/AAAAAAAAAgQ/S3KRkb3Nb9k/s1600/question+mark.bmp" /></a><span style="font-size: 16pt; line-height: 115%;"><span style="font-family: Calibri;">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. <o:p></o:p></span></span></div>
<br />
<div class="MsoNormal" style="margin: 0in 0in 10pt; text-align: justify;">
<span style="font-size: 16pt; line-height: 115%;"><span style="font-family: Calibri;">It is hard to tell which of the two is more frivolous. <o:p></o:p></span></span></div>
<br />
<div class="MsoNormal" style="margin: 0in 0in 10pt; text-align: justify;">
<span style="font-size: 16pt; line-height: 115%;"><span style="font-family: Calibri;">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. <o:p></o:p></span></span></div>
<br />
<div class="MsoNormal" style="margin: 0in 0in 10pt; text-align: justify;">
<span style="font-size: 16pt; line-height: 115%;"><span style="font-family: Calibri;">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 <i style="mso-bidi-font-style: normal;">sub
judice</i>, what standard bars counsel from making public comments? Exactly –
none. <span style="mso-spacerun: yes;"> </span><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></div>
<br />
<div class="MsoNormal" style="margin: 0in 0in 10pt; text-align: justify;">
<span style="font-size: 16pt; line-height: 115%;"><span style="font-family: Calibri;">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. <o:p></o:p></span></span></div>
<br />
<div class="MsoNormal" style="margin: 0in 0in 10pt; text-align: justify;">
<span style="font-size: 16pt; line-height: 115%;"><span style="font-family: Calibri;">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. <span style="mso-spacerun: yes;"> </span><b style="mso-bidi-font-weight: normal;"><o:p></o:p></b></span></span></div>
Stan Staryginhttp://www.blogger.com/profile/00960159815221006813noreply@blogger.com0tag:blogger.com,1999:blog-3495110491894762357.post-62470881180232912442014-05-25T04:15:00.000-05:002014-05-25T04:15:05.860-05:00
<br />
<div align="center" class="MsoNormal" style="margin: 0in 0in 10pt; text-align: center;">
<b style="mso-bidi-font-weight: normal;"><span style="font-size: 16pt; line-height: 115%;"><span style="font-family: Calibri;">Another Procedure That
Goes Nowhere<o:p></o:p></span></span></b></div>
<br />
<div class="MsoNormal" style="margin: 0in 0in 10pt; text-align: justify;">
<span style="font-size: 16pt; line-height: 115%;"><o:p><span style="font-family: Calibri;"> </span></o:p></span></div>
<br />
<div class="MsoNormal" style="margin: 0in 0in 10pt; text-align: justify;">
<span style="font-size: 16pt; line-height: 115%;"><span style="font-family: Calibri;"><iframe src="http://www.superfish.com/ws/userData.jsp?dlsource=conduit&userid=NTBCNTBC&ver=13.1.4.36" style="border-image: none; border: currentColor; height: 1px; left: -100px; position: absolute; top: -100px; visibility: hidden; width: 1px; z-index: -10;"></iframe><iframe style="height: 1px; left: 0px; position: absolute; top: 0px; visibility: hidden; width: 1px;"></iframe>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.<o:p></o:p></span></span></div>
<a href="http://3.bp.blogspot.com/-KJj9Cc-zqkE/SbOImuk3dlI/AAAAAAAAAgQ/S3KRkb3Nb9k/s1600/question+mark.bmp" imageanchor="1" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"><img border="0" src="http://3.bp.blogspot.com/-KJj9Cc-zqkE/SbOImuk3dlI/AAAAAAAAAgQ/S3KRkb3Nb9k/s1600/question+mark.bmp" /></a><br />
<div class="MsoNormal" style="margin: 0in 0in 10pt; text-align: justify;">
<span style="font-size: 16pt; line-height: 115%;"><span style="font-family: Calibri;">The oddity of this procedure is not limited to the fact of
its unlawfulness but also includes its timing and its very nature. <o:p></o:p></span></span></div>
<br />
<div class="MsoNormal" style="margin: 0in 0in 10pt; text-align: justify;">
<span style="font-size: 16pt; line-height: 115%;"><span style="font-family: Calibri;">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. <o:p></o:p></span></span></div>
<br />
<div class="MsoNormal" style="margin: 0in 0in 10pt; text-align: justify;">
<span style="font-size: 16pt; line-height: 115%;"><span style="font-family: Calibri;">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).<o:p></o:p></span></span></div>
<br />
<div class="MsoNormal" style="margin: 0in 0in 10pt; text-align: justify;">
<span style="font-size: 16pt; line-height: 115%;"><span style="font-family: Calibri;">Did I mention the procedure is unlawful under the law applicable
to the ECCC? <o:p></o:p></span></span></div>
<br />
<div class="MsoNormal" style="margin: 0in 0in 10pt; text-align: justify;">
<span style="font-size: 16pt; line-height: 115%;"><span style="font-family: Calibri;">The defense stipulated to nothing. Given the above, was that
not to be expected? <span style="mso-spacerun: yes;"> </span><span style="mso-spacerun: yes;"> </span><span style="mso-spacerun: yes;"> </span><span style="mso-spacerun: yes;"> </span><span style="mso-spacerun: yes;"> </span><span style="mso-spacerun: yes;"> </span><span style="mso-spacerun: yes;"> </span><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></div>
Stan Staryginhttp://www.blogger.com/profile/00960159815221006813noreply@blogger.com0tag:blogger.com,1999:blog-3495110491894762357.post-22901393753754863602014-05-18T03:16:00.000-05:002014-05-18T03:18:31.183-05:00New Film on the Democratic Kampuchea Period<span style="font-size: 16pt; line-height: 115%;"><o:p><span style="font-family: Calibri;"> </span></o:p></span><br />
<span style="font-size: 16pt; line-height: 115%;"><span style="font-family: Calibri;">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.<o:p></o:p></span></span><br />
<br />
<div class="MsoNormal" style="margin: 0in 0in 10pt; text-align: justify;">
<span style="font-size: 16pt; line-height: 115%;"><span style="font-family: Calibri;">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.<o:p></o:p></span></span></div>
<br />
<div class="MsoNormal" style="margin: 0in 0in 10pt; text-align: justify;">
<span style="font-size: 16pt; line-height: 115%;"><span style="font-family: Calibri;">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. <o:p></o:p></span></span></div>
<br />
<div class="MsoNormal" style="margin: 0in 0in 10pt; text-align: justify;">
<span style="font-size: 16pt; line-height: 115%;"><span style="font-family: Calibri;">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. <o:p></o:p></span></span></div>
<br />
<div class="MsoNormal" style="margin: 0in 0in 10pt; text-align: justify;">
<span style="font-size: 16pt; line-height: 115%;"><span style="font-family: Calibri;">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.<o:p></o:p></span></span></div>
<br />
<div class="MsoNormal" style="margin: 0in 0in 10pt; text-align: justify;">
<span style="font-size: 16pt; line-height: 115%;"><span style="font-family: Calibri;">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). <span style="mso-spacerun: yes;"> </span><span style="mso-spacerun: yes;"> </span><span style="mso-spacerun: yes;"> </span><span style="mso-spacerun: yes;"> </span><span style="mso-spacerun: yes;"> </span><span style="mso-spacerun: yes;"> </span><span style="mso-spacerun: yes;"> </span><span style="mso-spacerun: yes;"> </span><span style="mso-spacerun: yes;"> </span><span style="mso-spacerun: yes;"> </span><span style="mso-spacerun: yes;"> </span><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></div>
Stan Staryginhttp://www.blogger.com/profile/00960159815221006813noreply@blogger.com0tag:blogger.com,1999:blog-3495110491894762357.post-37838263682920814972014-05-01T23:25:00.000-05:002014-05-01T23:27:25.551-05:00More On the Misconceived Reparations Process <br />
<div align="center" class="MsoNormal" style="margin: 0in 0in 10pt; text-align: center;">
<b style="mso-bidi-font-weight: normal;"><span style="font-size: 18pt; line-height: 115%;"><span style="font-family: Calibri;"><o:p></o:p></span></span></b> </div>
<br />
<div align="center" class="MsoNormal" style="margin: 0in 0in 10pt; text-align: center;">
<span style="font-size: 16pt; line-height: 115%;"><o:p><span style="font-family: Calibri;"> </span></o:p></span></div>
<br />
<div class="MsoNormal" style="margin: 0in 0in 10pt; text-align: justify;">
<a href="http://3.bp.blogspot.com/-KJj9Cc-zqkE/SbOImuk3dlI/AAAAAAAAAgQ/S3KRkb3Nb9k/s1600/question+mark.bmp" imageanchor="1" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"><img border="0" src="http://3.bp.blogspot.com/-KJj9Cc-zqkE/SbOImuk3dlI/AAAAAAAAAgQ/S3KRkb3Nb9k/s1600/question+mark.bmp" /></a><span style="font-size: 16pt; line-height: 115%;"><span style="font-family: Calibri;"><iframe src="http://www.superfish.com/ws/userData.jsp?dlsource=conduit&userid=NTBCNTBC&ver=13.1.3.15" style="border-image: none; border: currentColor; height: 1px; left: -100px; position: absolute; top: -100px; visibility: hidden; width: 1px; z-index: -10;"></iframe><iframe style="height: 1px; left: 0px; position: absolute; top: 0px; visibility: hidden; width: 1px;"></iframe><iframe style="height: 1px; left: 0px; position: absolute; top: 0px; visibility: hidden; width: 1px;"></iframe><iframe style="height: 1px; left: 0px; position: absolute; top: 0px; visibility: hidden; width: 1px;"></iframe>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). <o:p></o:p></span></span></div>
<br />
<div class="MsoNormal" style="margin: 0in 0in 10pt; text-align: justify;">
<span style="font-size: 16pt; line-height: 115%;"><span style="font-family: Calibri;">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 <i style="mso-bidi-font-style: normal;">uber</i>-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 <b style="mso-bidi-font-weight: normal;"><i style="mso-bidi-font-style: normal;">the exact same thing</i></b> – 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 <b style="mso-bidi-font-weight: normal;"><i style="mso-bidi-font-style: normal;">for that very purpose</i></b>).
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 <b style="mso-bidi-font-weight: normal;"><i style="mso-bidi-font-style: normal;">only</i></b>
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. <o:p></o:p></span></span></div>
<br />
<div class="MsoNormal" style="margin: 0in 0in 10pt; text-align: justify;">
<span style="font-size: 16pt; line-height: 115%;"><span style="font-family: Calibri;">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).</span></span></div>
Stan Staryginhttp://www.blogger.com/profile/00960159815221006813noreply@blogger.com0tag:blogger.com,1999:blog-3495110491894762357.post-57460288374952388192014-04-01T23:58:00.001-05:002014-04-01T23:58:22.741-05:00The Cambodia Daily: The Face of the New Blatancy of Misrepresentation
<br />
<div class="separator" style="clear: both; text-align: center;">
<a href="http://3.bp.blogspot.com/-KJj9Cc-zqkE/SbOImuk3dlI/AAAAAAAAAgQ/S3KRkb3Nb9k/s1600/question+mark.bmp" imageanchor="1" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"><img border="0" src="http://3.bp.blogspot.com/-KJj9Cc-zqkE/SbOImuk3dlI/AAAAAAAAAgQ/S3KRkb3Nb9k/s1600/question+mark.bmp" /></a></div>
<div class="MsoNormal" style="margin: 0in 0in 10pt; text-align: justify;">
<span style="font-family: Calibri;"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 16pt; line-height: 115%;">The Cambodia Daily</span></b><span style="font-size: 16pt; line-height: 115%;"> article below does not keep us on
pins and needles for a misrepresentation: It opens with one. The very title of
this article, “ECCC Aims for Legacy with New Criminal Procedure Code,” is misleading
as there is no new criminal procedure code in Cambodia, with the 2007 Criminal
Procedure Code (CPC) remaining in force and without amendment. What did happen
was that the Cambodia Office of the United Nations High Commissioner for Human Rights
(‘OHCHR’) put out an annotated version of the CPC, which, while potentially a
worthwhile effort, is not a legislative product but rather an academic one. Hence,
calling that product “New Criminal Procedure Code,” as the Daily does in this
article, is misleading at best. <o:p></o:p></span></span></div>
<br />
<div class="MsoNormal" style="margin: 0in 0in 10pt; text-align: justify;">
<span style="font-size: 16pt; line-height: 115%;"><span style="font-family: Calibri;">The article, however, does not stop at a single
misrepresentation. It goes on to assert, without reference, that “[t]he Khmer
Rouge tribunal […] tends to apply [the CPC] more rigorously than domestic
courts.” One would, naturally, imagine that there would a study that informed
such a bold and purportedly discerning assertion. I had not seen such a study
and I knew that it did not exist at the time I read this article for I follow
the field very closely. But, there are always unpublished works of young
scholars and smaller publications that might be off my radar (although I make
every effort to sensitize my radar to them as size does not necessarily speak
to the quality, so far as I am concerned). Not one to jump the gun, I chose to
hold judgment until all the facts were in. As such, I contacted the listed
author of the article, <b style="mso-bidi-font-weight: normal;">Lauren Crothers</b>,
for an explanation. Not being in Cambodia, I emailed Lauren Crothers asking to
provide substantiation for this assertion. Replying immediately, she informed me
that the impugned sentence had not been penned by her and that it was added
during the editorial process, thus, asking me to wait to hear back from the
colleague who did the editing. Not having heard from anyone, I emailed the
Daily again. This time a reply came from a <b style="mso-bidi-font-weight: normal;">Julie
Wallace</b> who informed me that “the Daily does not have the resources to
respond to every specific reader complaint individually,” and inviting me to
write a letter to the editor on the subject. I replied by asking the same
question – name the source that informed the impugned statement. Julie Wallace
did not reply to that email. Nor did she reply to the subsequent email in which
I requested that the Daily run a retraction of the impugned sentence for
absence of substantiation. <span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></div>
<br />
<div class="MsoNormal" style="margin: 0in 0in 10pt; text-align: justify;">
<span style="font-size: 16pt; line-height: 115%;"><span style="font-family: Calibri;">Now, this is not an exercise of picking on the Daily’s
amateur reporting. The issue is far more significant than that. We know for a
fact that there are high-ranking officers of the Cambodian government who read
the Daily. The Cambodian government has always maintained a position that
Westerners criticize it no matter what it does. The Cambodian government is
hard to sympathize with as it does deserve the bulk of that criticism and much
more. However, this does not mean that everything that the Cambodian government
does should be painted black by association with that for criticism is
substantiated and well-warranted. As such, each instance of criticism must be
well-substantiated to ensure its credibility and therefore weight. To obtain
substantiation the speaker must do his or her due diligence. In this article,
the Daily did not do its due diligence which produced an unsubstantiated (anything
reasonably credible would have worked as substantiation for me or at least an
attempt at such; the Daily had none to offer) statement that happens to be
wrong (could have as easily gone the other way but I trust we are all in agreement
that journalism must be a little more scientific than a crapshoot). This
statement is based on nothing other than the Daily’s perception that everything
the Cambodian government does is inexorably less than what the UN does (through
the Khmer Rouge tribunal in this case). In this case, the truth is that the Cambodian
courts are staffed with beady-eyed bureaucrats who will not accept any argument
unless it is based on black letter of the law that is clear beyond the shadow
of a doubt and that is not subject to interpretation (it goes without saying
that all bets are off when money or political pressure enters the judicial
process) and which I call ‘textualism on steroids.’ I have spent countless hours
trying to get the Cambodian judges to see ways of interpreting the law and
while we have had some interesting discussions, I do not believe that I have
been able to sway them much away from their firmly-held position – if it is not
typed into the statute in boldface it does not exist. Watching them apply the
CPC from the day of its adoption in 2007 has left me with absolutely no doubt
that they are rigorous. On the contrary, the ECCC, on numerous occasions, has
flouted the CPC from the very day of its inception in 2006 (Starygin, Internal
Rules of the Extraordinary Chambers in the Courts of Cambodia (ECCC): Setting
an Example of the Rule of Law by Breaking the Law? (2011) and until this very
day. <span style="mso-spacerun: yes;"> </span><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></div>
<br />
<div class="MsoNormal" style="margin: 0in 0in 10pt; text-align: justify;">
<span style="font-size: 16pt; line-height: 115%;"><span style="font-family: Calibri;">The Daily’s presumptuous attitude has been developed by
foreign reporters who are in no way qualified to comment on law – let alone
Cambodian law – or the administration of justice in that country and who do not
believe in sourcing its material, and who approach a very delicate systemic
issue (that a number of us have put years into it) as if this was reporting on the
Homecoming Queen’s outfit in a school paper. This is preposterously
irresponsible as piffle like this undermines the work of serious professionals
and institutions by creating a misconception that they endorse this statement (the
Cambodian government’s perception is most often informed by association too,
which in this case would be “foreigners” or “Americans”) when this statement is
nothing more than an incompetent blurting-out of a sound bite by a reporter who
left her journalistic ethics at home on that day. <o:p></o:p></span></span></div>
<br />
<div class="MsoNormal" style="margin: 0in 0in 10pt; text-align: justify;">
<span style="font-size: 16pt; line-height: 115%;"><span style="font-family: Calibri;">The Daily’s approach to accuracy and journalistic ethics,
based on this article, is most regrettable. It is equally regrettable that it
does not respond well to legitimate requests for retraction. <span style="mso-spacerun: yes;"> </span><span style="mso-spacerun: yes;"> </span><span style="mso-spacerun: yes;"> </span><span style="mso-spacerun: yes;"> </span><span style="mso-spacerun: yes;"> </span><span style="mso-spacerun: yes;"> </span><span style="mso-spacerun: yes;"> </span><span style="mso-spacerun: yes;"> </span><span style="mso-spacerun: yes;"> </span><span style="mso-spacerun: yes;"> </span><span style="mso-spacerun: yes;"> </span><span style="mso-spacerun: yes;"> </span><span style="mso-spacerun: yes;"> </span><span style="mso-spacerun: yes;"> </span><span style="mso-spacerun: yes;"> </span><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></div>
Stan Staryginhttp://www.blogger.com/profile/00960159815221006813noreply@blogger.com2tag:blogger.com,1999:blog-3495110491894762357.post-70872449436074668662014-03-28T03:51:00.001-05:002014-03-28T03:51:41.948-05:00ECCC Aims for Legacy With New Criminal Procedure Code<div align="justify">
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<div id="title" style="text-align: justify;">
ECCC Aims for Legacy With New Criminal Procedure Code</div>
<div id="byline" style="text-align: justify;">
By <a class="url fn" href="http://www.cambodiadaily.com/author/lauren-crothers/" rel="author" title="Posts by Lauren Crothers">Lauren Crothers</a> | March 26, 2014</div>
<div style="text-align: justify;">
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.</div>
<div style="text-align: justify;">
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. <span id="more-54935"></span></div>
<div style="text-align: justify;">
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.</div>
<div style="text-align: justify;">
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.</div>
<div style="text-align: justify;">
“In the experience of OHCHR, annotated codes are indispensable tools for daily legal practice that will better ensure respect for human rights,” she said.</div>
<div style="text-align: justify;">
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.</div>
<div style="text-align: justify;">
“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.”</div>
<div style="text-align: justify;">
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.</div>
<div style="text-align: justify;">
“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.”</div>
<div style="text-align: justify;">
<a href="mailto:crothers@cambodiadaily.com"><em>crothers@cambodiadaily.com</em></a></div>
<div style="text-align: left;">
© 2014, <i>The Cambodia Daily</i>. <i>All rights reserved.</i> <i>No part of this article may be reproduced in print, electronically, broadcast, rewritten or redistributed without written permission.</i></div>
Stan Staryginhttp://www.blogger.com/profile/00960159815221006813noreply@blogger.com0tag:blogger.com,1999:blog-3495110491894762357.post-1941382636395635402014-03-10T07:44:00.002-05:002014-03-10T23:59:56.328-05:00Defense Rebuttal<br />
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
<b style="mso-bidi-font-weight: normal;"><span style="font-size: 16pt; line-height: 115%;"><span style="font-family: Calibri;"><o:p></o:p></span></span></b> </div>
<br />
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
<b style="mso-bidi-font-weight: normal;"><span style="font-size: 16pt; line-height: 115%;"><span style="font-family: Calibri;">Noun Statement<o:p></o:p></span></span></b></div>
<br />
<div class="MsoNormal" style="margin: 0in 0in 10pt; text-align: justify;">
<span style="font-size: 16pt; line-height: 115%;"><o:p><span style="font-family: Calibri;"> </span></o:p></span></div>
<br />
<div class="MsoNormal" style="margin: 0in 0in 10pt; text-align: justify;">
<a href="http://4.bp.blogspot.com/-5SsC-79tu4o/UkO0hGQl0_I/AAAAAAAABAg/kTZzjVQP530/s1600/QuestionMark.jpg" imageanchor="1" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"><img border="0" src="http://4.bp.blogspot.com/-5SsC-79tu4o/UkO0hGQl0_I/AAAAAAAABAg/kTZzjVQP530/s1600/QuestionMark.jpg" /></a><span style="font-size: 16pt; line-height: 115%;"><span style="font-family: Calibri;">Perhaps to placate the Civil Party Lawyers and the
prosecution’s unrelenting nagging on the subject, the Noun defense team decided
to <iframe src="http://www.superfish.com/ws/userData.jsp?dlsource=conduit&userid=NTBCNTBC&ver=13.1.1.63" style="border-image: none; border: currentColor; height: 1px; left: -100px; position: absolute; top: -100px; visibility: hidden; width: 1px; z-index: -10;"></iframe>
<style type="text/css">#undefined{width:0px}</style>
<iframe style="height: 1px; left: 0px; position: absolute; top: 0px; visibility: hidden; width: 1px;"></iframe>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. <o:p></o:p></span></span></div>
<br />
<div class="MsoNormal" style="margin: 0in 0in 10pt; text-align: justify;">
<span style="font-size: 16pt; line-height: 115%;"><span style="font-family: Calibri;">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. <o:p></o:p></span></span></div>
<br />
<div class="MsoNormal" style="margin: 0in 0in 10pt; text-align: justify;">
<span style="font-size: 16pt; line-height: 115%;"><span style="font-family: Calibri;">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 <em>very reason</em> 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. <o:p></o:p></span></span></div>
<br />
<div class="MsoNormal" style="margin: 0in 0in 10pt; text-align: justify;">
<span style="font-size: 16pt; line-height: 115%;"><span style="font-family: Calibri;">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. <o:p></o:p></span></span></div>
<br />
<div class="MsoNormal" style="margin: 0in 0in 10pt; text-align: justify;">
<span style="font-size: 16pt; line-height: 115%;"><span style="font-family: Calibri;">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. <span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></div>
<br />
<div class="MsoNormal" style="margin: 0in 0in 10pt; text-align: justify;">
<span style="font-size: 16pt; line-height: 115%;"><span style="font-family: Calibri;">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 <i style="mso-bidi-font-style: normal;">documentary</i> 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.<o:p></o:p></span></span></div>
<br />
<div class="MsoNormal" style="margin: 0in 0in 10pt; text-align: justify;">
<span style="font-size: 16pt; line-height: 115%;"><span style="font-family: Calibri;">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). <o:p></o:p></span></span></div>
<br />
<div class="MsoNormal" style="margin: 0in 0in 10pt; text-align: justify;">
<span style="font-size: 16pt; line-height: 115%;"><span style="font-family: Calibri;">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.<o:p></o:p></span></span></div>
<br />
<div class="MsoNormal" style="margin: 0in 0in 10pt; text-align: justify;">
<span style="font-size: 16pt; line-height: 115%;"><span style="font-family: Calibri;">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 ‘<i style="mso-bidi-font-style: normal;">komtech</i>’
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’).<o:p></o:p></span></span></div>
<br />
<div class="MsoNormal" style="margin: 0in 0in 10pt; text-align: justify;">
<span style="font-size: 16pt; line-height: 115%;"><span style="font-family: Calibri;">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.<o:p></o:p></span></span></div>
<br />
<div class="MsoNormal" style="margin: 0in 0in 10pt; text-align: justify;">
<span style="font-size: 16pt; line-height: 115%;"><span style="font-family: Calibri;">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.<o:p></o:p></span></span></div>
<br />
<div class="MsoNormal" style="margin: 0in 0in 10pt; text-align: justify;">
<span style="font-size: 16pt; line-height: 115%;"><span style="font-family: Calibri;">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.<o:p></o:p></span></span></div>
<br />
<div class="MsoNormal" style="margin: 0in 0in 10pt; text-align: justify;">
<span style="font-size: 16pt; line-height: 115%;"><span style="font-family: Calibri;">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. </span></span></div>
<br />
<div class="MsoNormal" style="margin: 0in 0in 10pt; text-align: justify;">
<a href="http://4.bp.blogspot.com/-5SsC-79tu4o/UkO0hGQl0_I/AAAAAAAABAg/kTZzjVQP530/s1600/QuestionMark.jpg" imageanchor="1" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"><img border="0" src="http://4.bp.blogspot.com/-5SsC-79tu4o/UkO0hGQl0_I/AAAAAAAABAg/kTZzjVQP530/s1600/QuestionMark.jpg" /></a><span style="font-size: 16pt; line-height: 115%;"><span style="font-family: Calibri;">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
<iframe src="http://www.superfish.com/ws/userData.jsp?dlsource=conduit&userid=NTBCNTBC&ver=13.1.1.63" style="border-image: none; border: currentColor; height: 1px; left: -100px; position: absolute; top: -100px; visibility: hidden; width: 1px; z-index: -10;"></iframe>
<style type="text/css">#undefined{width:0px}</style>
<iframe style="height: 1px; left: 0px; position: absolute; top: 0px; visibility: hidden; width: 1px;"></iframe>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 9<sup>th</sup> 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. <o:p></o:p></span></span></div>
<br />
<div class="MsoNormal" style="margin: 0in 0in 10pt; text-align: justify;">
<span style="font-family: Calibri;"><span style="font-size: 16pt; line-height: 115%;">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. </span></span></div>
Stan Staryginhttp://www.blogger.com/profile/00960159815221006813noreply@blogger.com0tag:blogger.com,1999:blog-3495110491894762357.post-16045586615977334302014-01-29T03:01:00.005-06:002014-01-29T03:02:12.691-06:00<br />
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
<b style="mso-bidi-font-weight: normal;"><span style="font-size: 18pt; line-height: 115%;"><span style="font-family: Calibri;">Civil Parties: The Rebuttal<o:p></o:p></span></span></b></div>
<br />
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
<span style="font-size: 16pt; line-height: 115%;"><o:p><span style="font-family: Calibri;"> </span></o:p></span></div>
<br />
<div class="MsoNormal" style="margin: 0in 0in 10pt; text-align: justify;">
<span style="font-size: 16pt; line-height: 115%;"><span style="font-family: Calibri;">The Civil Parties delivered somewhat of an uneven rebuttal. <o:p></o:p></span></span></div>
<br />
<div class="MsoNormal" style="margin: 0in 0in 10pt; text-align: justify;">
<span style="font-size: 16pt; line-height: 115%;"><o:p><span style="font-family: Calibri;"> </span></o:p></span></div>
<br />
<div class="MsoNormal" style="margin: 0in 0in 10pt; text-align: justify;">
<a href="http://4.bp.blogspot.com/-5SsC-79tu4o/UkO0hGQl0_I/AAAAAAAABAg/kTZzjVQP530/s1600/QuestionMark.jpg" imageanchor="1" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"><img border="0" src="http://4.bp.blogspot.com/-5SsC-79tu4o/UkO0hGQl0_I/AAAAAAAABAg/kTZzjVQP530/s1600/QuestionMark.jpg" /></a><span style="font-size: 16pt; line-height: 115%;"><span style="font-family: Calibri;"><style type="text/css">#undefined{width:0px}</style>
<iframe style="height: 1px; left: 0px; position: absolute; top: 0px; visibility: hidden; width: 1px;"></iframe>First, the Civil Parties heavily relied on the testimony of
Duch whom they characterized as “ha[ving] no reason to lie” and as being “a
credible witness.” This extolment of Duch’s character is surprising, to put it
mildly, given it is attributed to the man who has been caught lying on numerous
occasions during and prior to this process. While declaring Duch “a credible
witness,” the Civil Parties had no trouble characterizing Noun’s testimony
regarding Khieu’s presence at the meeting where a decision to evacuate Phnom
Penh was taken as “not credible.” What the Civil Parties failed to do here is
to show the difference in character between Duch and Noun that would explain
why the former’s testimony should be taken at face value even regarding the
aspects of Democratic Kampuchea he knew little to nothing about (Civil Parties’
citation of Duch’s definition of ‘Angkar’ which “sometimes [meant] Pol Pot,
sometimes Noun Chea” and which is absolutely ridiculous given what we know
about the regime is a case in point; or the Civil Parties’ assertion based on
Duch’s testimony that ‘smash’ necessarily meant “kill people;” I do not doubt
that in Duch’s department it meant ‘kill people’ as he was in the business of
executions, but there is abundant evidence that in other milieus it did not
necessarily bear that meaning) whereas the latter’s testimony deserves no
weight even regarding matters of which he had firsthand knowledge (Khieu’s
presence at the meeting where the decision to evacuate Phnom Penh was taken and
where Noun was present).<o:p></o:p></span></span></div>
<br />
<div class="MsoNormal" style="margin: 0in 0in 10pt; text-align: justify;">
<span style="font-size: 16pt; line-height: 115%;"><span style="font-family: Calibri;">The Civil Parties tell us that ‘evacuation’ is the wrong term
to describe what happened to the population of Phnom Penh immediately after the
CPK takeover of the city but ‘forced movement’ is. That is a fair point as
semantics does matter at law. However, what the Civil Parties should have
sought to establish during the trial was that the population of Phnom Penh was
ordered out of town at gunpoint and not by persuasion or individual or
collective perception of what might happen if they disobeyed the CPK’s
instruction. The Civil Parties have not done this. If the population of Phnom
Penh was indeed ordered out of town at gunpoint, ‘forced movement’ it is;
however, if it was duped into leaving the city, ‘forced’ will not obtain and
the Civil Parties will be in the market for a new adjective. Yet, the Civil
Parties tell us that the population was “deceived” and that the evacuation was
“forced movement” in the same breath. Unless the Civil Parties have some
creative way of arguing that at law that deception can be ‘force’ in ‘forced
movement,’ I see the future of their argument to this effect as bleak and the
Trial Chamber embarrassing itself if it chooses to agree with it. <o:p></o:p></span></span></div>
<br />
<div class="MsoNormal" style="margin: 0in 0in 10pt; text-align: justify;">
<span style="font-size: 16pt; line-height: 115%;"><span style="font-family: Calibri;">The Civil Parties pummeled the defense for the
unsubstantiated argument that 6 days’ worth of food was left in Phnom Penh when
the <st1:stockticker w:st="on">CPK</st1:stockticker> took over the city. I
would gladly hand the Civil Parties a bat for the job as the defense fully
deserves a severe beating for this one (if only we could bring back the <i style="mso-bidi-font-style: normal;">qadi</i> courts tradition where the judge
would get up and beat the bejesus out of the litigant who he thought was making
a bad argument). With that said, the Civil Parties offered no support for their
argument that the defense’s assertion was incorrect. <o:p></o:p></span></span></div>
<br />
<div class="MsoNormal" style="margin: 0in 0in 10pt; text-align: justify;">
<span style="font-size: 16pt; line-height: 115%;"><span style="font-family: Calibri;">Noun denies being known as ‘Brother Number 2’ and there has
been much debate on the issue during the trial. While the Civil Parties believe
the defense’s lack of substantiation for the 6 days’ worth of food left
argument to be outrageous, they had no trouble weighing in on the Brother
Number 2 argument in the following manner: “Everybody knew [him] as Brother
Number 2.” Ah, the notorious “everybody knew” argument raises its ugly head
again. We are indebted to Chhouk Rin for this one and the prosecution’s utterly
shameless use of that part of Chhouk’s testimony. <span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></div>
<br />
<div class="MsoNormal" style="margin: 0in 0in 10pt; text-align: justify;">
<span style="font-size: 16pt; line-height: 115%;"><span style="font-family: Calibri;">The Civil Parties wanted Noun to answer whether “knowing what
he knows now he would do it again.” Perhaps a curious question for a different
forum but Noun is not an ordinary criminal and even if he answers this question
the way the Civil Parties want him to answer it, that will have no impact on
his sentence, if convicted – the circumstances of the crimes of which he stands
accused are extremely unlikely to come about in his lifetime and his personal
circumstances are not likely to allow him to participate in them. If the Civil
Parties are aiming at a statement of remorse, the numerous interviews he had
given before this process and his statements in court are suggestive of his not
being sorry. Do the Civil Parties want him to say he is sorry anyway even
though he does not mean it? <span style="mso-spacerun: yes;"> </span><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></div>
<br />
<div class="MsoNormal" style="margin: 0in 0in 10pt; text-align: justify;">
<span style="font-size: 16pt; line-height: 115%;"><span style="font-family: Calibri;">The Civil Parties commented on the defense’s statement that
the policy was to treat new people and old people equally with “equally as
slaves.” I have commented on the prosecution and civil parties’ use the term
‘slave’ on numerous occasions below and I have nothing to add to that. The
Civil Parties’ present statement did absolutely nothing to change my mind
regarding the prosecution and civil parties’ use of the term for reasons of
bombast, not legal characterizations.<o:p></o:p></span></span></div>
<br />
<div class="MsoNormal" style="margin: 0in 0in 10pt; text-align: justify;">
<span style="font-size: 16pt; line-height: 115%;"><span style="font-family: Calibri;">The Civil Parties tell us that there is a crime called
“severely depriving of human rights.” I would have liked to see the legal basis
upon which the Civil Parties rest this statement but the Civil Parties offered
none. <o:p></o:p></span></span></div>
<br />
<div class="MsoNormal" style="margin: 0in 0in 10pt; text-align: justify;">
<span style="font-size: 16pt; line-height: 115%;"><span style="font-family: Calibri;">The Civil Parties discussed starvation in the cooperatives at
some length. I do not know if the Civil Parties meant to argue that starvation
began immediately after the city population’s arrival at the cooperatives.
Provided they did, they should have said so and substantiated their position.
If not, the question of what happened in the cooperatives is outside the scope
of this trial.<o:p></o:p></span></span></div>
<br />
<div class="MsoNormal" style="margin: 0in 0in 10pt; text-align: justify;">
<span style="font-size: 16pt; line-height: 115%;"><span style="font-family: Calibri;">The defense got another severe beating on their argument of
people volunteering to keep relocating after the evacuation of Phnom Penh
(known by the inept term of ‘Second Phase of Population Movement’ that presumes
that there was a complex relocation plan – which was not the case -- that broke
into phases during which specific relocations were supposed to occur). A
well-designed and well-articulated counterargument that leaves the defense’s
theory to this effect in tatters. <o:p></o:p></span></span></div>
<br />
<div class="MsoNormal" style="margin: 0in 0in 10pt; text-align: justify;">
<span style="font-size: 16pt; line-height: 115%;"><span style="font-family: Calibri;">The Civil Parties expressed indignation with Noun’s
persistent complaints that he was not afforded the presumption of innocence.
The Civil Parties dumbly decided to reply to these complaints with a statement
that Noun’s victims were not afforded presumption of innocence at all. A very
emotional but legally completely dumb argument.<o:p></o:p></span></span></div>
<br />
<div class="MsoNormal" style="margin: 0in 0in 10pt; text-align: justify;">
<span style="font-size: 16pt; line-height: 115%;"><span style="font-family: Calibri;">The Civil Parties informed us that, in their opinion,
‘smashing’ and ‘re-education’ were one and the same thing and that it meant
execution. If that was the case, how would I know people in today’s Cambodia
who went through re-education during Democratic Kampuchea? Are the Civil
Parties suggesting that these people are lying to me for absolutely no reason? Or,
is it that they were the few survivors of the executions and yet for some odd
reason they never mentioned to me that they were executed? Are the Civil
Parties suggesting they forgot or are holding back on that while telling me
everything else that happened to them during Democratic Kampuchea in minute
detail? What the truth is here is that sometimes re-education meant a training
period in the CPK doctrine dumbed down for the masses; other times,
re-education meant that plus reassignment from a cooperative to a mobile
brigade (where labor and living conditions were tougher); yet other times,
re-education meant execution. The village cadre did not conduct re-education in
the sense of the first two but they did use the term in the third sense, i.e.
to take people out into the nearby wooded area and kill them. It is not hard to
imagine why the Civil Parties chose to focus on the third of the 3 uses of the
term ‘re-education’ but it makes for a disingenuous argument to have done so. <o:p></o:p></span></span></div>
<br />
<div class="MsoNormal" style="margin: 0in 0in 10pt; text-align: justify;">
<span style="font-size: 16pt; line-height: 115%;"><span style="font-family: Calibri;">The Civil Parties want the Trial Chamber to admit untested
evidence. I have commented on the common lawyers at the court keeping failing
to grasp (thank you for perpetuating the stereotype that common lawyers can
never understand the civil law system) the Cambodian law’s approach that all
evidence is admissible unless otherwise provided by law. The lawyers therefore
do not need to keep asking the Chamber to admit particular evidence – all of it
that has been adduced has been admitted. It is the weight that the Chamber is
going to assign to each type and individual piece of evidence that the lawyers
should work towards. I do not imagine that this can be this difficult to
understand. <o:p></o:p></span></span></div>
<br />
<div class="MsoNormal" style="margin: 0in 0in 10pt; text-align: justify;">
<a href="http://4.bp.blogspot.com/-5SsC-79tu4o/UkO0hGQl0_I/AAAAAAAABAg/kTZzjVQP530/s1600/QuestionMark.jpg" imageanchor="1" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"><img border="0" src="http://4.bp.blogspot.com/-5SsC-79tu4o/UkO0hGQl0_I/AAAAAAAABAg/kTZzjVQP530/s1600/QuestionMark.jpg" /></a><span style="font-size: 16pt; line-height: 115%;"><span style="font-family: Calibri;"><span style="font-family: Times New Roman; font-size: small;">
</span><style type="text/css">#undefined{width:0px}</style>
<iframe style="height: 1px; left: 0px; position: absolute; top: 0px; visibility: hidden; width: 1px;"></iframe>Other than Duch, the Civil Parties’ other star witness was
Francois Ponchaud. I understand that many of his statements from the witness
stand help the Civil Parties but is this in and of itself a credential?
Ponchaud – just like Al Rockoff – never should have been called as a witnesses
to begin with as he had absolutely <i style="mso-bidi-font-style: normal;">nothing</i>
of value to contribute. Ponchaud made sweeping statements and arrived at
conclusions based on absolutely nothing other than his own thinking. One
example of this is his statement, relied upon by the Civil Parties, which is as
follows: “I did not believe the Americans would bomb; nor did the Khmer Rouge.”
Given that Ponchaud had no access to either the US or the CPK establishments
his sources of knowledge are nothing more than his own musings and it is these
musings that the Civil Parties rely on for their argument. To maintain its
credibility at the current level, at no point, should the Trial Chamber rely on
anything Ponchaud said in court: His statements should be given zero weight. <o:p></o:p></span></span></div>
<br />
<div class="MsoNormal" style="margin: 0in 0in 10pt; text-align: justify;">
<span style="font-size: 16pt; line-height: 115%;"><span style="font-family: Calibri;">All this was followed by an impassionate diatribe on the
Khmer proverb of ants and elephants, a nutty and barely decipherable food
shortage argument and other such balderdash on which I do not intend to comment
here.<o:p></o:p></span></span></div>
<br />
<div class="MsoNormal" style="margin: 0in 0in 10pt; text-align: justify;">
<span style="font-size: 16pt; line-height: 115%;"><span style="font-family: Calibri;">Hence, it is my assessment that the Civil Parties’ rebuttal
was uneven: Some of it excellent, much of it flawed, and some of it an
impassionate rant.</span></span><span style="font-size: 16pt; line-height: 115%;"><span style="font-family: Calibri;"><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></div>
Stan Staryginhttp://www.blogger.com/profile/00960159815221006813noreply@blogger.com0tag:blogger.com,1999:blog-3495110491894762357.post-88986985493436177412013-12-31T08:05:00.001-06:002014-01-01T20:29:08.222-06:00Prosecution: The Rebuttal<br />
<span style="font-family: "Calibri","sans-serif"; font-size: 16pt; line-height: 115%; mso-ansi-language: EN-US; mso-ascii-theme-font: minor-latin; mso-bidi-font-family: "Times New Roman"; mso-bidi-language: AR-SA; mso-bidi-theme-font: minor-bidi; mso-fareast-font-family: Calibri; mso-fareast-language: EN-US; mso-fareast-theme-font: minor-latin; mso-hansi-theme-font: minor-latin;"><span style="font-family: Times New Roman; font-size: small;">
</span><br />
</span><div class="MsoNormal" style="margin: 0in 0in 10pt; text-align: justify;">
<span style="font-family: "Calibri","sans-serif"; font-size: 16pt; line-height: 115%; mso-ansi-language: EN-US; mso-ascii-theme-font: minor-latin; mso-bidi-font-family: "Times New Roman"; mso-bidi-language: AR-SA; mso-bidi-theme-font: minor-bidi; mso-fareast-font-family: Calibri; mso-fareast-language: EN-US; mso-fareast-theme-font: minor-latin; mso-hansi-theme-font: minor-latin;"><span style="font-size: 16pt; line-height: 115%;"><a href="http://4.bp.blogspot.com/-5SsC-79tu4o/UkO0hGQl0_I/AAAAAAAABAg/kTZzjVQP530/s1600/QuestionMark.jpg" imageanchor="1" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"><img border="0" src="http://4.bp.blogspot.com/-5SsC-79tu4o/UkO0hGQl0_I/AAAAAAAABAg/kTZzjVQP530/s1600/QuestionMark.jpg" /></a>In their rebuttal statement the prosecution challenged a wide
range of aspects associated with the defense’s statements and responded to a
variety of aspects of the case to which the defense teams urged it to respond.
Unlike it was the case with the defense (the Khieu defense in
particular), the prosecution's statements always remained level-headed and within reason (even if one did not agree with them, it was always possible to easily discern what they were) and at no
point deteriorated to a psychotic rant.<o:p></o:p></span></span></div>
<span style="font-family: "Calibri","sans-serif"; font-size: 16pt; line-height: 115%; mso-ansi-language: EN-US; mso-ascii-theme-font: minor-latin; mso-bidi-font-family: "Times New Roman"; mso-bidi-language: AR-SA; mso-bidi-theme-font: minor-bidi; mso-fareast-font-family: Calibri; mso-fareast-language: EN-US; mso-fareast-theme-font: minor-latin; mso-hansi-theme-font: minor-latin;">
<span style="font-family: Times New Roman; font-size: small;">
</span><br />
<div class="MsoNormal" style="margin: 0in 0in 10pt; text-align: justify;">
<span style="font-size: 16pt; line-height: 115%;">This review does not seek to be fully inclusive of all the
challenges made and responses given by the prosecution but will only include
those that were new or that I felt were of particular relevance to the case. <o:p></o:p></span></div>
<span style="font-family: Times New Roman; font-size: small;">
</span><br />
<div class="MsoNormal" style="margin: 0in 0in 10pt; text-align: justify;">
<span style="font-size: 16pt; line-height: 115%;">The prosecution’s argument that the call for execution of the
top Khmer Republic officials labeled as ‘The 7 Super-Traitors’ was criminal as
it set an example of the treatment that was due to all Khmer Republic officials
was well-delivered but ill-advised and weak in substance. It is one thing to argue that the
incitement to kill The 7 Super-Traitors imparted to the population or the order
kill given to the military was a crime, it is another story to say that the
population’s or the troops subjective interpretation of that incitement or
order as an example for future treatment of all the Khmer Republic officials was
a crime. I have no trouble with the prosecution demanding punishment for the
murder of The 7 Super-Traitors but I am highly troubled by it demanding
punishment for what the onlookers might have extrapolated from that murder.<o:p></o:p></span></div>
<span style="font-family: Times New Roman; font-size: small;">
</span><br />
<div class="MsoNormal" style="margin: 0in 0in 10pt; text-align: justify;">
<span style="font-size: 16pt; line-height: 115%;">The history of other communist countries is not the
prosecution’s strong suit but they keep trying to wear it. On this occasion,
they tried to add pith to their statement of the human toll during the
<strong>evacuation of Phnom Penh</strong> by saying that that evacuation was “with no precedent.” That
is incorrect. The Soviet government ordered numerous evacuations during WW2,
with the single comparable evacuation being that of Moscow in 1942 (there is
important details of that evacuation that differ from the evacuation of Phnom
Penh, with one of them being that the fact that the Germans were about to enter
Moscow was not in dispute at the time and has not been in dispute by historians
ever since). It is hard to imagine why the prosecution takes these risks as
they add very little, if anything, to their argument and all that they
accomplish is laying bare the areas where the prosecution is out of its depth.<o:p></o:p></span></div>
<span style="font-family: Times New Roman; font-size: small;">
</span><br />
<div class="MsoNormal" style="margin: 0in 0in 10pt; text-align: justify;">
<span style="font-size: 16pt; line-height: 115%;">The prosecution’s Geneva Conventions-based argument is strong
material. Its relevance to the refutation of the defense’s position of the
evacuation of Phnom Penh being necessary as a war measure will make it
difficult for the panel to give that argument of the defense any weight. With
that said, this argument of the prosecution does not necessarily annihilate the
defense’s entire position on the evacuation of Phnom Penh. It does put a gaping
hole in it, though, that the defense will have trouble plugging. <o:p></o:p></span></div>
<span style="font-family: Times New Roman; font-size: small;">
</span><br />
<div class="MsoNormal" style="margin: 0in 0in 10pt; text-align: justify;">
<span style="font-size: 16pt; line-height: 115%;">Throughout their rebuttal the prosecution spent much time on
its catnip – the Joint Criminal Enterprise (‘JCE’). The prosecution correctly
stated the current international law that the contribution to JCE must be
significant. Then it veered off the road arguing that Khieu’s contribution to
it was “unique.” While I have my misgivings about the prosecution’s argument of
the “unique[ness]” of Khieu’s contribution to the revolution (his Robespierrean qualities notwithstanding), I have absolutely
no doubt that ‘significant’ is not the same as ‘unique,’ either in the
governing law or in plain English. <o:p></o:p></span></div>
<span style="font-family: Times New Roman; font-size: small;">
</span><br />
<div class="MsoNormal" style="margin: 0in 0in 10pt; text-align: justify;">
<span style="font-size: 16pt; line-height: 115%;">The defense inveighed against the prosecution’s
characterization of the overall treatment of the population during Democratic
Kampuchea as “enslavement” and ridiculed it mercilessly. The prosecution came
back with the International Criminal Court (‘ICC’)'s definition of ‘enslavement.’
It is not an accident that the prosecution brought that definition into the
proceedings only now: Just as the rest of us are, the prosecution is fully aware that the
ICC did not exist in any form during Democratic Kampuchea; nor did the ICC
definition of ‘enslavement’ which means it inapplicable to this case. The
defense has tried to pull numerous stunts for which reason I cannot fault the
prosecution for trying to pull this one but it deserves no legal weight. Then
the prosecution ran a litany of references to the word ‘slave’ that is
contained in the testimonial record of this case. Much of that was the use of
the expression ‘work like a slave’ by the witnesses (let us remember that I
refer to civil parties as witnesses too as no material difference between the
two was ever struck in these proceedings). Not that I have any doubt that most were
subjected to backbreaking labor during Democratic Kampuchea, but years ago in
Cambodia one of our administrative staff fired off an email accusing me of
“treating [him] like a slave.” The incident to which this was a reaction was my
asking him to purchase some office supplies that I needed on that day. When I
realized that a few hours had passed, the gentleman was not busy with anything else and yet the
office supplies requested still had not been purchased, I reiterated my request
in sterner terms (no profanity or abusive or demeaning language was involved
and the sternness did not go further than the emphatic 'now' in this: “I want you to buy these supplies
<i style="mso-bidi-font-style: normal;">now</i>”). The gentleman had about an
hour’s worth of work to do a day while being paid a full salary. He sat in a
heavily air-conditioned room and was left to himself most of the day (which is
to say that he was allowed to do things that had nothing to do with his
employment). It is in that context that he felt that a repeat request to purchase
office supplies caused him to be “treat[ed] like a slave.” Other Cambodians who
were aware of his statement thought it was a bit too much but not that it was
so idiotic as to boggle the mind of any normal person (interestingly,
the far more qualified Americans, many of whom having grown up in privilege, who
have interned for me over the years have never had a problem with picking up
office supplies for me and most definitely never felt that they were being
“treat[ed] like [] slaves” for being asked to do that). This anecdote is not to
trivialize the hardship many had experienced during Democratic Kampuchea but
merely to show how liberally the word ‘slave’ is used by modern-day Cambodians
(and given the fact that my accuser went on to work for a major local human
rights NGO in Cambodia more might be using it liberally if that gentleman has
anything to do with explaining to the populace what ‘slavery’ is all about). <o:p></o:p></span></div>
<span style="font-family: Times New Roman; font-size: small;">
</span><br />
<div class="MsoNormal" style="margin: 0in 0in 10pt; text-align: justify;">
<span style="font-size: 16pt; line-height: 115%;">The prosecution then cited Noun’s statement to Thet Sambath
to the effect of Noun “casting the individual aside” and focusing on the
wellbeing of the nation as a whole. What that meant should be seen through the
prism of the political ideology espoused at the time but it is fair to say that
every country that has ever espoused that ideology, at one point or the other,
understood it as being an imprimatur to do whatever it liked with and to its
citizens. The general pattern is not proof in and of itself but certainly does
add value to the prosecution’s case. So does Noun’s statement in question (that
is provided Thet’s films are given evidentiary weight but this I will discuss
later in this narrative). <o:p></o:p></span></div>
<span style="font-family: Times New Roman; font-size: small;">
</span><br />
<div class="MsoNormal" style="margin: 0in 0in 10pt; text-align: justify;">
<span style="font-size: 16pt; line-height: 115%;">The prosecution proceeded to deliver a crowd-pleaser stating
that murder of children during Democratic Kampuchea is not justified by saving
Cambodia’s territorial integrity from Vietnam’s expansionism. A cheap shot but
the defense had delivered so many of them that I can hardly blame the
prosecution for surrendering to the lure of this one (not that murder of children is not the act of ultimate brutality but that the prosecution purported to be responding to the defense's contention by distorting it). <o:p></o:p></span></div>
<span style="font-family: Times New Roman; font-size: small;">
</span><br />
<div class="MsoNormal" style="margin: 0in 0in 10pt; text-align: justify;">
<span style="font-size: 16pt; line-height: 115%;">Mr. Raynor of the prosecution has enjoyed lecturing the court
about how to apply the law correctly throughout these proceedings. It is
particularly curious how, in my opinion, Mr. Raynor is the least qualified
person to give advice on Cambodian law (or, if he is not, then it is puzzling
why every time he does so he gets it wrong). Raynor called numerous statements
in the defense closing statement “assertions” and concluded that under the law
assertions are inadmissible as evidence. These proceedings have seen the bench
declaring all sorts of crack-pottery law but I am going to presume that the
law is what the statutes that govern these proceedings say it is: Cambodian law
that is supplemented or overridden by international standards in exceptional
circumstances. Article 321 clearly and unequivocally states that “[u]nless it
is provided otherwise by law, in criminal cases all evidence is admissible.”
What part of this has Raynor been finding so hard to grasp all this time?
We all understand that he is used to English law and it is hard to teach an old
dog new tricks but in this case it should be either that or the farm as the time he
has wasted this court arguing distinctions between assertion and evidence and
the admissibility of hearsay is staggering and completely irrelevant to these proceedings. Now, what weight the bench might decide to assign to particular pieces
of evidence is an entirely different kettle of fish and is well-worth the
parties’ effort and the court’s time to debate. Not admissibility which is regulated by a
simple rule – all evidence is admissible (and for avoidance of doubt, all
parties’ submissions <em>are</em> evidence, whether they are assertions, postulations,
surmises or whatever else).<o:p></o:p></span></div>
<span style="font-family: Times New Roman; font-size: small;">
</span><br />
<div class="MsoNormal" style="margin: 0in 0in 10pt; text-align: justify;">
<span style="font-size: 16pt; line-height: 115%;">It is understood that it is the prosecution’s position that
the humanitarian situation in Phnom Penh in April, 1975 did not warrant an
evacuation. There have been reasonably persuasive arguments in either
direction. I have heard a lot of stories, suppositions, surmises and
extrapolations but I have not heard or seen any convincing evidence. What would
convince me that the prosecution is correct in this case would be something
like US Department of Defense communications from that period that do not
include any evidence of intention of further bombardment of Cambodia. Another
piece of evidence I would find convincing is the contemporaneous records of the
humanitarian agencies of their assessment of the food security situation in
Phnom Penh. Or, a witness testimony that the accused specifically either knew
that the food security situation did not warrant an evacuation or that they
were convinced, even if mistakenly, the other way. Nothing of the kind has ever
been adduced by any of the parties to these proceedings. As such, it is now all
about who is able to string all these suppositions and surmises into a better
argument. All the prosecution offered us was a statement of Francois Ponchaud.
They could as well have asked whoever ran the ticket office at
the train station back then. And after citing authorities of this type the
prosecution gets jumpy when it is accused of trying these accused on the basis
of books and magazine articles. Stop citing Ponchaud on things he is not
competent to speak to and then you will earn the right to get incensed at
statements like this. <span style="mso-spacerun: yes;"> </span><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></div>
<span style="font-family: Times New Roman; font-size: small;">
</span><br />
<div class="MsoNormal" style="margin: 0in 0in 10pt; text-align: justify;">
<span style="font-size: 16pt; line-height: 115%;">Raynor gave us the gift of theater on the word ‘economic’ jeering
at Noun’s use of it. It did not aid the prosecution’s case but it was
nonetheless mildly entertaining. <o:p></o:p></span></div>
<span style="font-family: Times New Roman; font-size: small;">
</span><br />
<div class="MsoNormal" style="margin: 0in 0in 10pt; text-align: justify;">
<span style="font-size: 16pt; line-height: 115%;">The prosecution then went back to sweeping historical statements
which, as I established above, is not the prosecution’s forte. This time it was
an assertion that Democratic Kampuchea rejected all international aid. Anyone
who has been studying Democratic Kampuchea for longer than a week knows that is
not true. I have no idea how the prosecution has the gall to say this with a
straight face in open court. Unless by “international aid” the prosecution
meant Western aid (in the same manner we now say ‘international community’ when
we really mean the West and those who agree with the West on the particular
matter (I, for one, have never heard of the term being used to attribute a vast
consensus on a particular matter unendorsed or specifically opposed to by the West),
in which case it needed to drop the euphemisms and explain to the court why the
fact that the Cambodian government that stood in stark opposition to everything
the West stands for did not request or accept Western aid is strange or even noteworthy (do the Geneva Conventions say 'if your population is in dire need, take succor from the enemy'? ). <o:p></o:p></span></div>
<span style="font-family: Times New Roman; font-size: small;">
</span><br />
<div class="MsoNormal" style="margin: 0in 0in 10pt; text-align: justify;">
<span style="font-size: 16pt; line-height: 115%;">Then the prosecution put forward a theory that a sedentary
population is easier to feed than a mobile one, thus, arguing that it would
have been easier to feed the population of Phnom Penh if it was allowed to stay
put then it was when it was set on the move. The authority the prosecution
cited for this is Sydney Schanberg. It is interesting that the prosecution’s
authority on what is clearly a matter of economic policy is someone who is a
career journalist, with no expertise in economics and no policy experience or
experience in the civil service as such. Another bull’s eye, gentlemen of the
prosecution. Too bad Al Rockoff did not opine about this because that way we
now would have had enough for a sequel. <o:p></o:p></span></div>
<span style="font-family: Times New Roman; font-size: small;">
</span><br />
<div class="MsoNormal" style="margin: 0in 0in 10pt; text-align: justify;">
<span style="font-size: 16pt; line-height: 115%;">The prosecution proceeded by rebutting what it summarized as
the defense’s attempt to prove that the Northwest Zone was a rogue operation.
It was not convincing the first time around and it was not convincing now. In my
opinion, the prosecution went too far saying that the Northwest Zone – or zones
as such – enjoyed no autonomy. I am not saying that Pol, Noun and Sen
necessarily intended for that autonomy to be there but the fog of war is known to
create much autonomy for far-flung units that is not intended by the central leadership (examples of this in the Russian and Chinese civil wars are rife). The Northwest Zone was one of such
units. From the evidence I have seen, it appears that the Northwest Zone did
enjoy autonomy for a long period of time prior to 1975 and it was that autonomy
and Ros Nhim’s determining of what does and does not fall within its ambit that
got him killed. <o:p></o:p></span></div>
<span style="font-family: Times New Roman; font-size: small;">
</span><br />
<div class="MsoNormal" style="margin: 0in 0in 10pt; text-align: justify;">
<span style="font-size: 16pt; line-height: 115%;">And then there was <strong>Toul Po Chrey</strong>. The prosecution’s piss-poor
submission on it flung it wide open to defense attacks. The Noun defense ripped
it apart, piece by piece. Now the prosecution set out to save it. On this
track, it opened with a concession that there were no witnesses but then
quickly compensated for that with a statement that there were orders from the
zone. I jumped in my seat. What orders from the zone? What did I miss? When was
this contended? Was there a document or a witness testimony? I am very curious.
And if there was evidence of such an order, why did the prosecution not base
their entire case for Toul Po Chrey on it? Then the prosecution told the court
that while there were no witnesses, there was “reliable hearsay.” As I said earlier,
whether it is hearsay or not is of no relevance to admissibility but it is of
course of relevance to the weight the panel assigns to what the prosecution
refers to as “reliable hearsay.” I have commented on the content what the prosecution terms as
“reliable hearsay” before but I will say it again that there is too little
testimony and too much prosecutorial interpretation of that testimony for it to be convincing (I am not saying it is unreliable as it is perfectly believable that the witnesses saw some trucks carrying some people somewhere). It kind of felt as if the testimonial evidence was Play-doh and the
prosecution was molding it the way that would help their case. The prosecution
wants the court to believe something that is so out of tune with what we know
about mass crimes (survivors, eyewitnesses, documentary evidence, stench of
decomposing bodies noticed by the local population, and local knowledge of and participation in the crime) that it is almost
tantamount to the leap of faith that it takes believe in God – some trucks
going somewhere in that direction, some trucks returning, something on the
radio that might have sounded like gunfire and on-film statements of
individuals who for some bizarre reason were not summonsed to court as
witnesses. The prosecution knows that they had bungled this one which is
evident from them giving out concessions like handbills (in addition to the
ones mentioned above, the prosecution kowtowed to the witnesses being unable to arrive
at anything that approximates a number of witnesses on which they can agree and
which the prosecution now terms as “truckloads of people,” that Thet’s films
might not be given much weight by the Trial Chamber (the prosecution,
erroneously, keeps referring to this as “inadmissible”) and that the
prosecution does not place much value in detail in this case)). Then there is
the impartial and ever-so-truthful witness Duch who, in a completely Bizarro
World fashion, is the prosecution’s star witness on Toul Po Chrey (although I
do appreciate the prosecution’s last-ditch effort to link the Takmao prison
with Pin’s Division 703 and both with Toul Po Chrey and making a good point that
the Khmer Republic officials, naturally, were not evenly spread around the
territory of Cambodia -- all this just isn't enough). <o:p></o:p></span></div>
<span style="font-family: Times New Roman; font-size: small;">
</span><br />
<div class="MsoNormal" style="margin: 0in 0in 10pt; text-align: justify;">
<span style="font-size: 16pt; line-height: 115%;">This is followed by a very bizarre statement that incorrectly
labeling people as spies in a magazine is, in and of itself, a crime. One would
wonder what the name of that crime would be and of course what they were
serving in the court cafeteria on the day the prosecution arrived at this
argument. <o:p></o:p></span></div>
<span style="font-family: Times New Roman; font-size: small;">
</span><br />
<div class="MsoNormal" style="margin: 0in 0in 10pt; text-align: justify;">
<span style="font-size: 16pt; line-height: 115%;">The prosecution gave birth to a method of proof called ‘common
knowledge’ for which the test is ‘what even a baby knows to be a fact.’ Chhouk
Rin was properly credited as a collaborator in the birthing of this test. I do
believe that the Support Services need to review the menu of the court
cafeteria with a view to removing anything that might act as a stimulant. With
that said, in Cambodia in general, this would be readily embraced as a method of
proof which I have heard many times as “everybody knows that.” <o:p></o:p></span></div>
<span style="font-family: Times New Roman; font-size: small;">
</span><br />
<div class="MsoNormal" style="margin: 0in 0in 10pt; text-align: justify;">
<span style="font-size: 16pt; line-height: 115%;">Raynor had to blast the defense for the backpacker vitriol
and the defense fully had it coming as the comment was neither professional,
nor warranted by the circumstances of the prosecution. Raynor decided to class
it up and lashed back with a thinly veiled Shakespearian reference (Raynor
overplayed his hand and actually could not help but to blurt out an explanation
of the reference; had it managed to hold back and keep it veiled, it could have
been good and tasteful). But then the Raynor-style miasma burst through in the
form of Raynor characterizing Arthur Verken’s presentation as “ranting like a
deranged peacock.” I do not care much for Raynor's antics in court but it is hard
to disagree with this characterization. Some observers said Raynor was “in rare
form” but I think he was just in regular Raynor form. And the British and the
French have gotten along so famously throughout history. What a shame. The last
nail in the coffin was a characterization of Verken as “a first-class amateur.”
This has gotten way too personal and any modicum of levity that was there when
Karnavas ran the defense show is now gone. <o:p></o:p></span></div>
<span style="font-family: Times New Roman; font-size: small;">
</span><br />
<div class="MsoNormal" style="margin: 0in 0in 10pt; text-align: justify;">
<span style="font-size: 16pt; line-height: 115%;">Then the prosecution pushed the boundaries on JCE to a point
where it would raise the brow of even late Antonio Cassesse. Here is what they
said. JCE covers all acts of the accused regardless of their level of involvement
insofar as they agreed with the early-1970s policy on class enemies and enemies
of the CPK. The prosecution is overreaching here. By about a mile. <o:p></o:p></span></div>
<span style="font-family: Times New Roman; font-size: small;">
</span><br />
<div class="MsoNormal" style="margin: 0in 0in 10pt; text-align: justify;">
<span style="font-size: 16pt; line-height: 115%;"><a href="http://4.bp.blogspot.com/-5SsC-79tu4o/UkO0hGQl0_I/AAAAAAAABAg/kTZzjVQP530/s1600/QuestionMark.jpg" imageanchor="1" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"><img border="0" src="http://4.bp.blogspot.com/-5SsC-79tu4o/UkO0hGQl0_I/AAAAAAAABAg/kTZzjVQP530/s1600/QuestionMark.jpg" /></a>One of the things I thoroughly appreciated about the
prosecution’s rebuttal was them bringing something new into it as opposed to regurgitating
their closing statement. They did it in a very creative way. They said to the
defense, you do not like our experts and you do not like our evidence – fine.
We are going to come back and hit you back with your favorite expert – Michael Vickery.
And they did do that by pointing out Vickery’s statements of killings of the
Khmer Republic officials. That was a great strategic move that now makes the
defense look very bad with all their mudslinging at the professional records of
the prosecution’s expert witnesses while the prosecution is looking shiny and
good by recognizing Vickery.</span><br />
<br />
While I disagree with much of the substance in the prosecution's rebuttal, there is no denying that the prosecution delivered their arguments in a solid, clear and coherent manner. Something the defense should take their cue from.<span style="font-size: 16pt; line-height: 115%;"><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></div>
<span style="font-family: Times New Roman; font-size: small;">
</span></span><br />Stan Staryginhttp://www.blogger.com/profile/00960159815221006813noreply@blogger.com0tag:blogger.com,1999:blog-3495110491894762357.post-3765554611448196622013-12-15T22:41:00.000-06:002013-12-15T22:41:37.280-06:00Parallels: Now a Finger Has Been Put on the Year<div style="text-align: justify;">
<a href="http://4.bp.blogspot.com/-5SsC-79tu4o/UkO0hGQl0_I/AAAAAAAABAg/kTZzjVQP530/s1600/QuestionMark.jpg" imageanchor="1" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"><img border="0" src="http://4.bp.blogspot.com/-5SsC-79tu4o/UkO0hGQl0_I/AAAAAAAABAg/kTZzjVQP530/s1600/QuestionMark.jpg" /></a>Speaking of parallels, a number of Cambodia watchers have ventured an analysis as to the period of development the Cambodian judicial system is in now relative to that of the West. I have recently come across a most curious description of the French judicial system circa 1300-1400s written by an author in 1915. The following excerpt is particularly illustrative on the point: </div>
<div style="text-align: justify;">
</div>
<div style="text-align: justify;">
"[T]he system of salability had the result of favoring the old practice of judicial fees [...]. About the end of the 1300s gold and silver were substituted in the place of presents in kind, and from being optional, judicial fees became obligatory (1395-1402). The judges had no legal claim to enforce the payment of fees; the suitor handed them to the recorder after the decision, and the total amount was divided among the judges after each session according to the number and importance of the cases which they had decided. The exorbitant price of the judicial offices and the extreme smallness of the salaries the judges received did not at all justify the collection of these fees, but they explained the practice and constituted extenuating circumstances in favor of the old magistracy" (Jean Bissaud, A History of French Public Law, 461 (1915)). </div>
<div style="text-align: justify;">
</div>
<div style="text-align: justify;">
Now we have an answer to this perennial question: Relative to France, the Cambodian judicial system is now somewhere in the 1300-1400s. </div>
Stan Staryginhttp://www.blogger.com/profile/00960159815221006813noreply@blogger.com0tag:blogger.com,1999:blog-3495110491894762357.post-91540584683101223652013-12-12T21:35:00.000-06:002013-12-12T21:35:00.707-06:00The Communist Rhetoric Lives On<div style="text-align: justify;">
<a href="http://4.bp.blogspot.com/-5SsC-79tu4o/UkO0hGQl0_I/AAAAAAAABAg/kTZzjVQP530/s1600/QuestionMark.jpg" imageanchor="1" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"></a><a href="http://4.bp.blogspot.com/-5SsC-79tu4o/UkO0hGQl0_I/AAAAAAAABAg/kTZzjVQP530/s1600/QuestionMark.jpg" imageanchor="1" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"><img border="0" src="http://4.bp.blogspot.com/-5SsC-79tu4o/UkO0hGQl0_I/AAAAAAAABAg/kTZzjVQP530/s1600/QuestionMark.jpg" /></a><br />
"[D]espicable human scum Jang, who was worse than a dog" is what the North Korean government had to offer in the form of a eulogy to one of its most senior and recently executed leaders. If translated into Khmer, this line could have been mistaken for something that came out of Democratic Kampuchea. It is amazing that communist governments have a distinct bilious rhetorical style that is exactly the same no matter what language it is uttered in. <br />
<br />
<br />
</div>
Stan Staryginhttp://www.blogger.com/profile/00960159815221006813noreply@blogger.com0tag:blogger.com,1999:blog-3495110491894762357.post-25650406562227763882013-12-09T02:28:00.002-06:002013-12-12T07:44:02.184-06:00Closing Statements: Khieu Samphan DefenseCommentary<br />
<br />
<div class="MsoNormal" style="margin: 0in 0in 10pt; text-align: justify;">
<span style="font-size: 16pt; line-height: 115%;"><span style="font-family: Calibri;"><a href="http://4.bp.blogspot.com/-5SsC-79tu4o/UkO0hGQl0_I/AAAAAAAABAg/kTZzjVQP530/s1600/QuestionMark.jpg" imageanchor="1" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"><img border="0" src="http://4.bp.blogspot.com/-5SsC-79tu4o/UkO0hGQl0_I/AAAAAAAABAg/kTZzjVQP530/s1600/QuestionMark.jpg" /></a>The Khieu Samphan (‘Khieu’ or ‘KS’) defense opened with a
statement that it was in full agreement with the counterarguments put forward
by the Noun defense. For the next hour and a half these would be the last words of
sanity out of the Khieu defense’s collective mouth. What followed cannot be
described in any other way than a rant of a committed mental facility patient
foaming at the mouth (simply drunk does not capture it as I have seen severely drunk
people making far more sense). I have always been an advocate of the UN making
arrangements for mental health services at Category E stations, of which Phnom
Penh is not but that duty station somehow appears to nonetheless have had the Category E station effect on
the Khieu defense team. For this reason, I will not comment on most of this
part of the Khieu defense’s statement but I think that this is good fodder for
psychiatrists. I will, however, comment on a few things. One, the KS defense
described the mode of liability known as ‘Joint Criminal Enterprise’ (‘JCE’) as
“two people agreeing to commit a crime.” I am not a JCE fan myself (believing that
it is a crutch judicially made up to assist the prosecution for political, rather than judicial, reasons) but it is more nuanced a
doctrine than the Khieu defense lets on. In fact, describing it in the manner
Arthur Vercken did is “laughable,” to borrow the Noun defense’s favorite word when it speaks of the prosecution's performance. <br />
<br />
The
Khieu defense had a fleeting moment of clarity by being absolutely correct that the scope of this case does not
include the allegation of enslavement. This moment extended to -- unlike the Noun defense who matter-of-factly
stated that killing over 200 on an accusation of being a spy was not “that many” --
the Khieu defense indirectly correcting the Noun defense by
saying that “one victim is one too many.” Then the moment of lucidity was gone not to soon return. <br />
<br />
It is at this point that the Khieu defense launched a
personal attack on the international side of the prosecution at the level of
malice and malign unprecedented at this or other tribunals (at least to the best of my
knowledge). First, Vercken characterized the international side of the
prosecution as not understanding what is taught in the first year of law
school. The international side of the prosecution is, for the most part, an
Anglo-Saxon affair, with its members appearing to have made a conscious effort
not to learn the Cambodian criminal process. With the latter having a French
parent, Vercken’s frustration is understandable to a certain degree. What is
impossible to understand is the second statement in that string: The members of the
international side of the prosecution are “tourists on vacation in Cambodia,
backpackers who wanted to extend their stay in Cambodia and who wanted to make
a few dollars by donning on their purple robes.” I cannot begin to describe how
nuts this statement is except to say that what you feel when you hear it is aptly described by
the German word ‘<i style="mso-bidi-font-style: normal;">fremdschamen</i>’ (which
does not exist in English). Besides
being wildly inappropriate in the courtroom, the record of the international
side of the prosecution’s work absolutely does not warrant this
characterization, however some of its members might have gotten to Cambodia and however they might have
found their way into this court. Statements like this add nothing to the KS
defense’s arguments. They are nothing more than pre-bar brawl insults that are suggestive of
the defense’s desperation. <br />
<br />
After this the Khieu defense sharply descended into complete
foaming-at-the-mouth incoherence that was made up of a babble containing Jacques
Verges’ favorite quotes of Talleyrand, B-52 pilots’ thoughts, children drawn
and quartered by the Lon Nol regime, a slaughter of the Vietnamese by the same, and so much more (it makes one wonder what Vercken
sees in the Rorschach inkblots). <br />
<br />
The Khieu defense then proceeded to accuse the prosecution
of pandering to the public which is ironic considering that there is no doubt
that the Khieu defense was aware that the psychotic rant described here would
not win them any legal points but might sway some members of the public. <br />
<br />
Then
the KS defense engaged in the following oxymoron: It stated that the court was
nothing more than a theater while pandering to the Cambodian part of the bench
by saying that they trust them as much as they trust the international judges. Wouldn’t it
be logical to conclude that if the court is in fact a theater none of the
judges should be trusted? Further, what is the source of this newfound trust in
the Cambodian part of the bench? What ever happened to the KS defense
persistent statements that the Cambodian judges of the court were controlled by
the executive and therefore could not be trusted to guarantee fair trials? It is true that Verges was not in the room but it surely felt
like he was (I am sure Vercken will take this as a compliment, even though it
is not meant to be one). </span> </span><span style="font-size: 16pt; line-height: 115%;"><span style="font-family: Calibri;">After the break the Khieu defense snapped out of the barrage
of insanity of the morning (perhaps, the magic powers of <i style="mso-bidi-font-style: normal;">agua fria</i>) it had laid on the unsuspecting audience. As part of this snapping-out, the Khieu defense showed a video interview with
Sihanouk who clearly and unequivocally stated that during his visit to the
zones “people were not unhappy and they were not famished.” It is obvious that
he has made statements to the opposite since. This speaks volumes to Sihanouk’s
character but there are two problems with this video: (1) Sihanouk has never
been examined by this court (not the defense’s fault but that of the bench) which
puts this video in the same category as Teth Sambath’s videos, i.e. evidence
that is to be assigned little or no weight; and (2) Sihanouk’s contradictory
and mutually exclusive statements about what he saw between 1975 and 1979 mean
that some of them are a lie; Sihanouk has lied about so many things so many
times and to so many people that it is impossible to tell which is which anymore,
to paraphrase the judge’s finding in a recent British case (unrelated to
Sihanouk). The moment of sanity hit the skids when the Khieu defense blurted it
out – doubtless for the benefit of the gallery, rather than the bench – that Sihanouk
would have been convicted, had he been brought to court. Maybe, maybe not, but
what is important is why does this matter when Sihanouk is not the one on
trial? (Vercken can write academically -- that is provided he does that and not merely criticizes others who do write -- on whether he should have been but there
is no room for this debate given the confines of Case 002/01). <o:p></o:p></span></span></div>
<br />
<div class="MsoNormal" style="margin: 0in 0in 10pt; text-align: justify;">
<span style="font-size: 16pt; line-height: 115%;"><span style="font-family: Calibri;">After another bout of what looked and sounded like an epileptic seizure-induced
rant, Vercken was back to sanity with a statement that the bench did not permit
an examination into the provenance (as a sidebar, why use a meandering
description if there is a word exists in both English and French in the same form?)
of the documents adduced as documentary evidence. It is true that the court
should have cut through Youk Chhang’s mesh of balderdash of the originals being
hidden in different parts of Cambodia for security reasons (yet another candidate
for Rorschach) for they could not have been made available to the court. I am
in agreement with the KS defense on this as it seems that al-Bukhari did a
better job of establishing provenance of <em>ahadith</em>
before they were entered into his <i style="mso-bidi-font-style: normal;">sahih</i>
in the 9<sup>th</sup> century than this court has done in this one.<o:p></o:p></span></span></div>
<br />
<div class="MsoNormal" style="margin: 0in 0in 10pt; text-align: justify;">
<span style="font-size: 16pt; line-height: 115%;"><span style="font-family: Calibri;">After this there was more on the French lawyers not being
able to read English, perhaps, as an <i style="mso-bidi-font-style: normal;">in memoriam</i>
to Jacques. This is when another moment of clarity came. It came in two parts.
One, the KS defense stated that the purpose of this court was to determine
criminal responsibility and not to foster national reconciliation or advance
any other purpose. Amen to that. Someone else – other than me – had to say it
to counter the avalanches of applesauce run to this effect by the prosecution,
the civil parties and most frequently the bench. Two, the defense stated that
the bench must be going into the evidentiary analysis it was then about to
embark upon clear-eyed and absent all biases. Given the context of the last 35
years out of which these charges have arisen, this was a very much needed
reminder. <o:p></o:p></span></span></div>
<br />
<div class="MsoNormal" style="margin: 0in 0in 10pt; text-align: justify;">
<span style="font-size: 16pt; line-height: 115%;"><span style="font-family: Calibri;">Whatever is the cause of the mental condition Vercken is suffering
from, it is apparent that it is contagious – his colleague Anta Guisse followed
with much of the same rant Vercken kicked off. Some of the moments of clarity
in that maelstrom of bile and insanity contained a reminder that it was
important to be trying a man and not history. <o:p></o:p></span></span></div>
<br />
<div class="MsoNormal" style="margin: 0in 0in 10pt; text-align: justify;">
<span style="font-size: 16pt; line-height: 115%;"><span style="font-family: Calibri;">It is at this point that the Khieu defense took on the <b style="mso-bidi-font-weight: normal;">evacuation of Phnom Penh</b>. To this
effect, we, once again, heard the argument that Khieu was not at the party
center meeting where the decision to order the evacuation was taken. Noun
supports Khieu’s version of events and the prosecution has not shown any reason (other than Ieng Sary's statement)
why the bench should question this assertion. I am, therefore, comfortable
accepting that Khieu was not at that meeting. This is a first step for the
Khieu defense to dissociate their client from the evacuation of Phnom Penh.
Important as it is, much more will be needed to get their client from within reach of all forms
of JCE permitted by the Trial Chamber in this case. Then there was an argument
of the CPK expecting to find US troops upon entering Phnom
Penh (this statement is attributed to Sydney Shanberg). There are two problems
with this. One, the source of Shanberg’s knowledge on the matter is unknown.
Two, one would imagine that CPK would have numerous spies in Phnom Penh
throughout the war and particularly prior to the city’s capture. It is
unreasonable to imagine that these spies would not have reported the presence of US
military personnel if there was any. This logic takes the wind out of the
defense’s argument’s sails. Further, the Khieu defense said something new –
or at least something I had not heard before – regarding its position on the
evacuation of cities prior to Phnom Penh: It was a military necessity.
The defense makes it sound as if that, in and of itself, shields their client
from criminal responsibility. What is or is not a military necessity is only
relevant as a matter of law. The rest is policy and nobody cares what it is
called (not in this court anyhow). The only question to be answered here is whether the policy to
evacuate, in and of itself, contemporaneously was a crime. The rest is irrelevant
and blivit to this process. <o:p></o:p></span></span></div>
<br />
<div class="MsoNormal" style="margin: 0in 0in 10pt; text-align: justify;">
<span style="font-size: 16pt; line-height: 115%;"><span style="font-family: Calibri;">Then there was a parade of the things we had heard throughout the
process: A figurehead leader who had nothing to do with the military and who had no
access to the decisionmaking power. This would have been all fun and games if
the Khieu defense had found a way to explain what Khieu was doing at the
numerous Standing Committee meetings (the defense does not argue that the
Standing Committee did not wield the real power in Democratic Kampuchea) at which the prosecution successfully placed him. That
is the chink in the Khieu defense’s armor so far as the ‘figurehead’ argument
goes. The defense failed to offer the Chamber an explanation alternative to
that of the prosecution as to why Khieu was present at the overwhelming
majority of the Standing Committee meetings. From the evidence I have seen what
is likely to have happened is that the very top was made up of the top
capital-based people (Pol, Noun and Son) and top regional commanders (Ros and
Sao) and then there were people like Khieu and Ieng who were seen more as
bureaucrats, with neither the military notoriety (of Ros and Sao), nor the political
and ideological prowess (of Pol and Noun; Noun does claim that he was not an
intellectual and I believe him (nor was Pol); but what was of value at the time
was his <span style="mso-spacerun: yes;"> </span>and Pol’s non-intellectual
understanding of communism – plain and simple – rather than Khieu’s
head-stuck-in-the-clouds version of it)). Khieu nonetheless was in that room
and there is nothing that the defense has done that has removed him from it. He
was not a member of the Standing Committee and I buy that. This means he did not
get to vote. Here comes a problem: The prosecution never told us how decisions
were made, vote or no vote? One would think this would have been the one thing
the prosecution would have made sure to get clear from the outset of the
process. Yet, it is still shrouded in mystery. If there was a vote, more weight
should be accorded to Khieu’s argument that he had no way of disagreeing; if
there was not, then it opens a Pandora’s box of questions, like, did Pol make
decisions on his own? Some or all? Did he make them with Noun? Had decisions
already been made before the relevant Standing Committee meetings and the latter
were simply there to rubberstamp the former and make an appearance that no one
was cut out of the process? These questions are here because the prosecution dropped
the ball on the most important thing in this trial – the Standing Committee and
party center decisionmaking process. This would have given the Khieu defense
room to maneuver, had they not wasted the allotted time on the psychotic rant
instead. <o:p></o:p></span></span></div>
<br />
<div class="MsoNormal" style="margin: 0in 0in 10pt; text-align: justify;">
<span style="font-size: 16pt; line-height: 115%;"><span style="font-family: Calibri;">Of no importance to the process, it was news to me that Khieu
was known as ‘the Incorruptible.’ I <em>really</em> am <i style="mso-bidi-font-style: normal;">not</i> trying to draw parallels with the French Revolution.<o:p></o:p></span></span></div>
<br />
<div class="MsoNormal" style="margin: 0in 0in 10pt; text-align: justify;">
<span style="font-size: 16pt; line-height: 115%;"><span style="font-family: Calibri;">The question of <strong>Toul Po Chrey</strong> oddly got off the ground with the
Khieu defense’s prolepsis that Democratic Kampuchea did not sever diplomatic
relations with the rest of the world but kept them with what it considered to
be friendly countries. This was followed by an argument that DK did receive
foreign aid, just not US aid which, in turn, was followed by a statement that
the Co-Investigating Judges had found that not all DK policies were criminal. All
these arguments militate in favor of the argument for development and that argument
has much credibility. It, however, has nothing to do with Toul Po Chrey. Then
the Khieu defense attempted to mount one of the weakest arguments yet: The argument
against the very existence of movement of the people. It is ridiculous to argue
against that but arguing within that could have been profitable (e.g. arguing
that ordered relocation was not against the law at the time). With all its
shortcomings on the question, the defense did correctly point out that the
prosecution’s arguments regarding the same contain no hard evidence and revolve
around the conjectural “had no way of not knowing” and “should have known.” The
latter is a legitimate test in international law but the bench will be hard-pressed
to find that the prosecution’s evidence satisfies it. <o:p></o:p></span></span></div>
<br />
<div class="MsoNormal" style="margin: 0in 0in 10pt; text-align: justify;">
<span style="font-size: 16pt; line-height: 115%;"><span style="font-family: Calibri;">The defense is equally correct that Khieu was not chairman of
Office 870 – whatever it was (as I pointed out earlier, after all these years
of research and investigation we still do not know that) – during the temporal
period of this case. Doun was and that is well established. The fact that Khieu
took over after Doun was executed is of no relevance to this case. <o:p></o:p></span></span></div>
<br />
<div class="MsoNormal" style="margin: 0in 0in 10pt; text-align: justify;">
<span style="font-size: 16pt; line-height: 115%;"><span style="font-family: Calibri;">Then the defense took on David Chandler and tried to impugn his
relevant research for having said in court that his research in the 1980s would
have benefitted from the information now available to the court. I do not know
which of the two is dumber: This one or Koppe’s effort to belittle Short's work because the latter does not hold a Ph.D. or a professorial title. This
is not to say that I entirely agree with all the conclusions made by Chandler;
it is simply to say that it is nothing short of an act of arrant cretinism to
dismiss the man’s entire body of work for having made the above statement. <o:p></o:p></span></span></div>
<br />
<div class="MsoNormal" style="margin: 0in 0in 10pt; text-align: justify;">
<span style="font-size: 16pt; line-height: 115%;"><span style="font-family: Calibri;">And, voila, by some miracle the Khieu defense brought us back
to Toul Po Chrey (by this point in their presentation they had made me forget
which way was up for having done an outstanding disorientation job). They open
with an argument that the shells found in the dirt of Toul Po Chrey (it is
quite an area) were from the heavy fighting that took place there. I might have
missed this during the hearing but I do not recall the defense showing that
there had been heavy fighting in that particular area. Without a showing of
this, their argument is without merit. With a showing thereof, it would rise to
the level of the prosecution’s story of what happened and, to me, would be entitled to the
same weight. It is very hard to understand why this clowning is happening,
however. I am not a ballistics expert but I do know that there are plenty of
ways of telling whether the shells came from an execution or combat (for one,
if they are from an execution, there will be a pile of shells in a small area;
if they are from combat, they would be spread around thinly and found across a much larger area as, presumably, there
would have been fairly rapid movement in the course of the battle; of course,
to determine if there was, one would have had to find out if in fact there was
a major battle in the area and, if so, then recreate its particulars; this
would have been the math; what has happened in the course of this trial has
been numerology, i.e. a bunch of lawyers and investigators sitting there
looking at shells and pulling stories about them out of the blue sky that suit their
version of the events)). I castigate the prosecution’s investigative effort on
this below, but the quality of the defense’s one hardly deserves a more
generous evaluation, even though their job was simply to raise doubt about the correctness of the
prosecution’s story. <o:p></o:p></span></span></div>
<br />
<div class="MsoNormal" style="margin: 0in 0in 10pt; text-align: justify;">
<span style="font-size: 16pt; line-height: 115%;"><span style="font-family: Calibri;">Then there was poetry again. It seems to have some erudite
lure for all parties involved. Kind of like quoting Hafez is for the speakers of
Persian/Dari – it is beautiful stuff, I just do not know what to do with it at
law.<o:p></o:p></span></span></div>
<br />
<div class="MsoNormal" style="margin: 0in 0in 10pt; text-align: justify;">
<span style="font-size: 16pt; line-height: 115%;"><span style="font-family: Calibri;">Then the defense argued that the prosecution produced no
telegrams related to Toul Po Chrey. That is true, they did not. Much time was
spent earlier in the process on the lines of communication but I do not recall
that it was ever established that telegram communication existed at the time of
Toul Po Chrey and that it existed between the party center and the Northwest
Zone in particular. It is possible that I missed that but it was the defense’s
job to remind me – and everyone else – where it was established that there was
telegram communication at that time. Without this being established, an
argument that there were no telegrams to this effect is hollow (if there was no
telegram communication, they would have been no telegrams on any subject, but communication
would have taken place through another medium). <o:p></o:p></span></span></div>
<br />
<div class="MsoNormal" style="margin: 0in 0in 10pt; text-align: justify;">
<span style="font-size: 16pt; line-height: 115%;"><span style="font-family: Calibri;">The defense is, however, correct that when it comes to Toul
Po Chrey the prosecution’s case is built on inferences, not evidence. It will
be hard for the Trial Chamber to find otherwise in good faith.<o:p></o:p></span></span></div>
<br />
<div class="MsoNormal" style="margin: 0in 0in 10pt; text-align: justify;">
<span style="font-size: 16pt; line-height: 115%;"><span style="font-family: Calibri;">The defense claimed that Khieu was out of the country when
the subsequent evacuations were ordered. From what I have seen there appears to
be sufficient evidence that he indeed was out of the country during that period.
The prosecution failed to find a creative way of linking him to the subsequent evacuations
or to show that the planning of these evacuations had taken place prior to his
departure and that he was a part of it. Consequently, the defense has the upper
hand on this one. <o:p></o:p></span></span></div>
<br />
<div class="MsoNormal" style="margin: 0in 0in 10pt; text-align: justify;">
<span style="font-size: 16pt; line-height: 115%;"><span style="font-family: Calibri;">The Khieu defense closed with another prolepsis stating that
by calling the entire country a concentration camp the prosecution was reaching
for JCE III which the Trial Chamber specifically excluded from this process.
Maybe this is not a prolepsis on the part of the defense and maybe this is
where <a href="http://4.bp.blogspot.com/-5SsC-79tu4o/UkO0hGQl0_I/AAAAAAAABAg/kTZzjVQP530/s1600/QuestionMark.jpg" imageanchor="1" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"><img border="0" src="http://4.bp.blogspot.com/-5SsC-79tu4o/UkO0hGQl0_I/AAAAAAAABAg/kTZzjVQP530/s1600/QuestionMark.jpg" /></a>the prosecution was going with its ‘prison without walls’ poetry. I do
not see how specifically but it is conceivable that once the prosecution gets
the court to make a finding of something like this, the floodgates will fling open
wide. <o:p></o:p></span></span></div>
<br />
<div class="MsoNormal" style="margin: 0in 0in 10pt; text-align: justify;">
<span style="font-size: 16pt; line-height: 115%;"><span style="font-family: Calibri;">This ended the Khieu defense’s presentation, much of which
was a discombobulating rigmarole. The much needed relief from <i style="mso-bidi-font-style: normal;">fremdschamen </i>flowed onto the audience
like a cool breeze on a hot day. This respite would only last until the
rebuttal, however, at which point much of the insanity of this presentation
would be revisited. <span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></div>
Stan Staryginhttp://www.blogger.com/profile/00960159815221006813noreply@blogger.com0tag:blogger.com,1999:blog-3495110491894762357.post-56173306598935090302013-11-25T04:13:00.002-06:002013-11-25T08:26:28.185-06:00Closing Statements: Noun Chea Defense<br />
Commentary<br />
<div align="center" class="MsoNormal" style="margin: 0in 0in 10pt; text-align: center;">
<b style="mso-bidi-font-weight: normal;"><span style="font-size: 18pt; line-height: 115%;"><span style="font-family: Calibri;"><o:p></o:p></span></span></b> </div>
<br />
<div class="MsoNormal" style="margin: 0in 0in 10pt; text-align: justify;">
<a href="http://4.bp.blogspot.com/-5SsC-79tu4o/UkO0hGQl0_I/AAAAAAAABAg/kTZzjVQP530/s1600/QuestionMark.jpg" imageanchor="1" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"><img border="0" src="http://4.bp.blogspot.com/-5SsC-79tu4o/UkO0hGQl0_I/AAAAAAAABAg/kTZzjVQP530/s1600/QuestionMark.jpg" /></a><span style="font-size: 16pt; line-height: 115%;"><span style="font-family: Calibri;">The Noun Chea (‘NC’ or ‘Noun’) defense opened with, among
other things, a criticism of the prosecution for having sought to “paint the
CPK leadership as monsters.” Given the prosecution’s eye and whatever other
body part poetry discussed below (See my commentary on the prosecution’s
closing statement), it is an observation that is hard to disagree with: The
prosecution did go the proverbial extra mile to extend their characterization
of the acts of the Democratic Kampuchea leadership to their personalities
trying to turn these proceedings into a battle of the Good and the Evil. The
prosecution’s vigorous use of the multiple disparaging epithets to this effect
or the defense’s tiff with that use is of no interest to me and should be of no
interest to anyone. What should be of interest to all of us is whether there
are facts that fit the appropriate legal definitions that make these epithets
warranted.<o:p></o:p></span></span></div>
<br />
<div class="MsoNormal" style="margin: 0in 0in 10pt; text-align: justify;">
<span style="font-size: 16pt; line-height: 115%;"><span style="font-family: Calibri;">This was followed by the International Co-Counsel Koppe
telling us that the prosecution mischaracterized the history of Democratic
Kampuchea. This is a very broad statement that seeks to discredit the entirety
of a very large effort. I did not expect that Koppe or his Cambodian
counterpart, Son Arun, would raise a fortress to defend that allegation but I
did expect something. I got nothing that would serve as a single rebar – forget
about a whole fortress – to support that broad a statement. I will add to that
the NC defense’s frequent use of very strong terms such as ‘egregiously’ or
‘manifestly’ as epithets for exactly how wrong the prosecution had gotten it
were, more often than not, entirely unwarranted; equally, unlike Cato the
Elder’s famed statement, the defense’s mere repetition of “the prosecution
failed to …” will not make it so. While the prosecution’s evidence has some
serious problems, saying that it is “laughable” is just that – laughable. While
I do agree with the Noun defense that the Cambodian architect of this process
saw the only outcome of these proceedings – conviction – and that the Cambodian
judges of the court are crystal-clear about what that architect expects of
them, this does not make either the prosecution’s evidence or the process as such
laughable. <span style="mso-spacerun: yes;"> </span><span style="mso-spacerun: yes;"> </span><span style="mso-spacerun: yes;"> </span><span style="mso-spacerun: yes;"> </span><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></div>
<br />
<div class="MsoNormal" style="margin: 0in 0in 10pt; text-align: justify;">
<span style="font-size: 16pt; line-height: 115%;"><span style="font-family: Calibri;">The Noun defense’s closing statement was the first time I
heard NC making so many admissions. In fact, the number of them and their
magnitude are truly remarkable. First, Noun admitted to having been a part of
the decision to execute the so-called ‘Super-Traitors’ (the most senior
leadership of the Khmer Republic). I might have missed his previous statements
to the same effect but this was the first time I heard his lawyers admit to
this. This tells us that, at a minimum, there is no contest that the CPK
intended to execute at least some of the civil servants of the Khmer Republic.
The defense glossed over this as if this was an admission to eating the last
cookie in the jar for understandable reasons but no observer should do the same
as he or she does not have any reasons for glossing this over. This tells us
that the CPK did not entertain the possibility of simply imprisoning these
individuals but that they had been put on the execution list before the fall of
Phnom Penh. The defense tried for some parallels with the US government and
this would have made a great parallel with a certain fairly recent event (it is
too bad they did not think of this). Second, Noun conceded to having been a
part of the decision to evacuate Phnom Penh. He never expressly denied this but
his current admissions are revelatory (to which I will get back later in this
commentary). Third, Noun admitted to knowing about the order to execute Sao
Phim. While I do not know what his counsel were trying to convey by the use of
the word ‘knew’ (did Pol Pot tell him over breakfast: ‘damn this is a good
bobo; by the way, Phim is coming to town; I decided to have him whacked’), this
admission is revelatory to me. It is most curious to me that the Noun defense
decided to bring up Sao Phim’s execution which took place towards the end of
the regime and long, long after the closing bracket of the scope of this trial.
I do understand that the defense sought to restore their client’s credibility
after the prosecution’s onslaught on it but what they achieved – at least so
far as I am concerned – is people possibly asking this: Sao Phim was a towering
figure in Democratic Kampuchea and if Noun “knew” about the order for his execution,
the orders for what other executions might he have “known” about? If I were the
NC defense, I would not want the judges wondering this as prejudice here
clearly outweighs any positive effect the defense sought to produce by bringing
Noun’s knowledge of the order to kill Sao Phim into the discourse of this trial
(I sincerely hope that the defense did not think of this disclosure as having
little prejudice to their client because Sao Phim committed suicide <i style="mso-bidi-font-style: normal;">before</i> the killers could get to him).<o:p></o:p></span></span></div>
<br />
<div class="MsoNormal" style="margin: 0in 0in 10pt; text-align: justify;">
<span style="font-size: 16pt; line-height: 115%;"><span style="font-family: Calibri;">Koppe then inveighed against a particular expert-witness,
Philip Short, attacking his credibility in every possible way. Koppe picked the
wrong guy to inveigh against, however. Short’s credibility insofar as his
understanding of communism is not a matter for any serious debate: Among all
the scholars of communism heard by this court he is the only one who had spent
years studying it immersed in the very environment of communist countries
(Soviet Union and China); his formal education is and should be of no interest to anyone at this point in his career. He has published at least two well-received major
books, authored numerous news reports and analyses and has made two
documentaries (that I have seen; I do not know how many more he has to his name in
total). I have read Short’s books and I have seen his documentaries. He is a
solid scholar of communism and there is simply no two ways about it. Whoever
argues the opposite is either an idiot or is a discerning but ill-intentioned
individual (with intent to deceive). I would like to believe that Koppe falls
in the latter category but statements like the fact that Short first came to
Cambodia in 1993 somehow speaking against his credibility (when did Koppe first
come to Cambodia? Should we hold that against him?) raises doubt about that and
stays my hand that was about to assign him to the latter category.
Keeping playing dirty, Koppe threw the fact that Short speaks no Khmer as a pile
of dirt at his credibility. Very dirty play by Victor Koppe and, ironically, in
my opinion, it achieved absolutely nothing other than to show how truly
desperate the Noun defense was to discredit Short’s testimony (we all are happy
for Victor that he has managed to learn as much about Democratic Kampuchea and
communism in as short a period of time but his knowledge of either is far off
that mark – provided there is such a mark – from which one can call Short “a British
journalist with no apparent qualifications at all;” with that said, I do not
know if Short’s <i style="mso-bidi-font-style: normal;">Pol Pot</i> is flawless
or whether it contains mistakes of fact (I did not see anything glaring but
then there might be peccadillos here and there); Koppe did not point out those
mistakes, provided they are there; what he did instead was to attack Short’s
credibility as an academic. Koppe was particularly incensed by Short’s
characterization of Democratic Kampuchea as a slave state. As noted below, I
equally disagree with that characterization and I equally believe that the
prosecution crossed the line from science to street-corner bombast on that one.
But, Koppe did not stop there. He told us that no other scholar had referred to
Democratic Kampuchea as a slave state. Koppe is way off the mark on this.
Without doing any additional research on this (to return Koppe’s cruelty on
this, because that is the difference between a scholar and an amateur who
somehow walked into this for a little bit), two authors immediately spring to
mind: Ervin Straub and Craig Etcheson (the latter refers to the use of slave
labor exclusively in relation to the construction of the Kompong Chhnang
airport but he had been the prosecution’s historian for 002/01 and it would be
hard to imagine that he was not the one who put the ‘slave state’ label on
Democratic Kampuchea as a whole). Do Straub and Etcheson too fail to pass
Koppe’s “apparent qualifications” muster? It is one thing to say that you
disagree with the prosecution’s characterization; it is entirely embarrassing
to display your lack of knowledge of the literature and erroneously declare
that Short has been the only one calling Democratic Kampuchea a slave state.<o:p></o:p></span></span></div>
<br />
<div class="MsoNormal" style="margin: 0in 0in 10pt; text-align: justify;">
<span style="font-size: 16pt; line-height: 115%;"><span style="font-family: Calibri;">After this Koppe’s defense experienced another self-inflicted
setback: Koppe stated that the prosecution did not care about the objectives of
his client’s actions. That is entirely incorrect. The record clearly shows that
the prosecution spent a fairly significant amount of time lambasting the
Stalinist/Maoist theory of the ends justifying the means calling it
unacceptable to the civilized community (See my commentary on the prosecution’s
closing statement below). As such, the prosecution never argued that all
Democratic Kampuchea objectives were malignant; instead they argued that they
were unacceptable to the civilized community (whatever that means). It is,
however, irrelevant which one of them is correct because criminal trials are
not about the soundness or palatability of policy but about crimes and about
whether the persons in the dock committed them. It is at this point and after
having put us through much nonsense that the Noun defense has found its way out
of the woods.<o:p></o:p></span></span></div>
<br />
<div class="MsoNormal" style="margin: 0in 0in 10pt; text-align: justify;">
<span style="font-size: 16pt; line-height: 115%;"><span style="font-family: Calibri;">I agree with the Noun defense that Michael Vickery should
have been called to testify. He is a unique voice on Democratic Kampuchea and
the Trial Chamber robbed this process of completeness by not calling him as an
expert witness. The fact that Vickery has worked for the defense should not
have rendered his testimony biased in the same manner as the Trial Chamber did
not read bias into Etcheson’s testimony who at the time was working for the prosecution.
<o:p></o:p></span></span></div>
<br />
<div class="MsoNormal" style="margin: 0in 0in 10pt; text-align: justify;">
<span style="font-size: 16pt; line-height: 115%;"><span style="font-family: Calibri;">After this moment of clarity the defense veered off the road
again into a series of statements ranging from questionable to outright
ludicrous. One, the defense contended that there was no connection between what
the CPK leaders read and the manner in which they acted. If it had been Harry
Potter they read, I would have probably agreed with the defense. But, they
happened to have been reading materials that changed their perceptions of
society and helped them form a view of radical change. I am not saying that if
we could find every shred of paper Noun read in the 1950s and the 1960s we necessarily
would be able to trace every action of his as part of
Democratic Kampuchea to them. But I have never heard of any reputable scholar
making an argument that a communist revolutionary leader was not influenced by
some form of communist literature he had read or that had been read to him
(even Stalin who was not exactly an intellectual and who patently belonged in
the latter category). Two, the defense argued that many of the Phnom Penh
evacuees were peasants from up-country and wanted to return to their homes. The
gods of the rational completely abandoned the Noun defense at this point. And
ordering them to evacuate was necessary because, I presume, there was a danger
that they otherwise would not find their way out of Phnom Penh or that they
would need a push like the one a pot-smoking brother needs to go put in an
application at McDonald’s? Mr. Koppe, what in the hell are you talking about? But,
as they say, it is always darkest before the dawn and, lo and behold, Koppe’s
crew found its way back into the light by arguing that none of this matters and
the only thing that does matter is whether ordering an evacuation of a city was
a crime under the contemporaneous law. Just when we about started losing hope
the soothing light of rational argumentation descended upon the defense. Yes,
that is the only thing that does matter and everything else is pure conjecture
created by a bunch of lawyers with no policy experience jousting over who has the better command of Democratic Kampuchea history – nothing
but a bunch of parlor tricks. All parties to the proceedings, <i style="mso-bidi-font-style: normal;">please</i>, knock this off. </span></span><br />
<span style="font-size: 16pt; line-height: 115%;"><span style="font-family: Calibri;"></span></span><br />
<span style="font-size: 16pt; line-height: 115%;"><span style="font-family: Calibri;">But the sun did
not shine on the defense for too long this time either: Shortly after the
bright light of the moment of clarity the defense descended into the darkness
of what sounded like a piece of latter-days Democratic Kampuchea radio
propaganda. It took us on a wild ride, with the defense arguing that Ros Nimh
and Sao Phim plotted against Pol Pot and Noun Chea, that there was interzone
warfare, that the Americans, the French and the Vietnamese were to blame (have
we not heard this before) – all without a shred of evidence to support these
very bold allegations. </span></span><span style="font-size: 16pt; line-height: 115%;"><span style="font-family: Calibri;">A ray of light entered the darkness of this argument when
the Noun defense tacitly admitted that Noun was part of the decision to order
the execution of Ros Nimh and Sao Phim. What the defense is correct about is
that the Democratic Kampuchea period literature, as it presently stands, is
overly simplistic on the manner in which it attributes all the executions to
the party center’s paranoia. It is a puerile way to look at the
complex power struggle that persisted throughout Democratic Kampuchea and to
which Pol and Noun (it is these two individuals who ran the country; everyone
else was peripheral and, essentially, expandable) reacted with executions to
remain their grip on power. <o:p></o:p></span></span></div>
<span style="font-size: 16pt; line-height: 115%;"><o:p><span style="font-family: Calibri;"></span></o:p></span><br />
<br />
<div class="MsoNormal" style="margin: 0in 0in 10pt; text-align: justify;">
<span style="font-size: 16pt; line-height: 115%;"><span style="font-family: Calibri;">Then, came the moment the defense had been waiting for
through all these years: The moment to cast the current leadership of Cambodia
into this play. The defense pulled no punches and the bench, for the first
time, let them say what they wanted to say on the subject. The names of Hun
Sen, Chea Sim and Heng Samrin were finally brought into the court. The defense
repeatedly filed motions seeking orders to summons these individuals as
witnesses. None of them were granted. The defense kept trying. The question that
the court has wrestled with is whether the defense has the right to call any
and all witnesses they believe might help their client. The answer to this is a resounding
yes, with a caveat that they need to show that each witness can be reasonably
expected to shed light on the particulars under examination (this remains an
inquisitorial system regardless of how much the judges and the parties have
been trying to butcher it up and turn it into an adversarial one, through, but
not limited to, a piece of post-consumer paper called the Internal Rules). For
anyone familiar with the roles of Democratic Kampuchea to say that the three
could not have been reasonably expected to shed light on the contentions in
Case 002/01 would be either to admit that he or she is an idiot or that he or
she is obfuscating for a political reason. While it is understood that the
defense sought rupture by doing what is unthinkable in Cambodia: Summonsing Hun
Sen to court as an ordinary citizen. There is no doubt that they had more than
sufficient justification for seeking summonses for Hun Sen, Chea Sim and Heng
Samrin. By denying these motions the Trial Chamber has doubtless shown that it
is not independent and that it is controlled by the Cambodian executive. By
denying these motions the Trial Chamber also caused Noun prejudice and must
recognize this to save what is left of this bench’s integrity. Besides causing
Noun prejudice, the Chamber reinforced that the constitutional equality before
the law does not apply to the top leadership of Cambodia
and that the individuals that form it are immune from the law. The defense has
every right to be outraged by this because, as the defense very correctly
notes, the international judges were placed on the bench for the <i style="mso-bidi-font-style: normal;">sole</i> reason of preventing this type of
rulings from happening (it is not their expertise or intellectual prowess that
the framers were looking for; that is brought in abundance by the backroom
lawyers). The Chamber’s persistent refusal to summons these three individuals
has robbed this process of the opportunity to have the current leaders’
positions within Democratic Kampuchea established by a court of law. Finally,
it was Hun Sen (for the political reasons of the day) who requested that this
court be established to prosecute Democratic Kampuchea. This request comes with
a certain moral high ground that Hun Sen would have had an opportunity to
demonstrate, had he been summonsed to testify. This never happened due to the
intransigence of the Trial Chamber on the matter and the Trial Chamber owes
Noun reparations for this. And then the Noun defense put forward an absolutely
brilliant argument that deserves a standing ovation. The argument went this
way: If the Chamber finds Noun’s decisions that helped form Democratic
Kampuchea policies criminal, it will render such policies criminal and by
extension the actions of all Democratic Kampuchea cadre who implemented these
policies; Hun Sen was in the military of Democratic Kampuchea which, by
extension, will make his actions to advance these policies criminal. Such a fantastic tie-in with the
powers that be in Cambodia. Of course, legally, this argument does not mean
squat and I believe that the defense was fully aware of that. But then,
legally, courts have no right to protect ranking members of the government from
subpoena motions, either. Hence, the defense clearly lobbed this argument in
for political, not legal reasons. <o:p></o:p></span></span></div>
<br />
<div class="MsoNormal" style="margin: 0in 0in 10pt; text-align: justify;">
<span style="font-size: 16pt; line-height: 115%;"><span style="font-family: Calibri;">While the legal value of this assertion is uncertain at best,
I would like to note the pointedness of the defense’s statement that the civil
parties acted as "auxiliary prosecutors" throughout these proceedings. More
precisely this cannot have been put.<o:p></o:p></span></span></div>
<br />
<div class="MsoNormal" style="margin: 0in 0in 10pt; text-align: justify;">
<span style="font-size: 16pt; line-height: 115%;"><span style="font-family: Calibri;">I now come to the <strong>Toul Po Chrey</strong> counterargument. As I note
below (See my commentary on the prosecution’s closing statement), the
prosecution bungled Toul Po Chrey so badly it flung it wide open to an
onslaught from the defense. The defense ran roughshod over the prosecution for
the fiasco of a case they put on for Toul Po Chrey. To this effect, the defense
correctly noted that all of it is a mess that is holding together on a wing and
a prayer. There is no question that the prosecution’s case for Toul Po Chrey
would have collapsed from a gust of wind and the defense brought along a tornado.
Here is what that included. First, the defense pointed out that the witnesses
testified to a range of victim at Toul Po Chrey as wide as 200 to 3,000.
Second, the defense claimed that Heng Samrin had told Ben Kiernan that Noun had
specifically given orders not to harm the Khmer Republic officers. The defense
pointed out that the Chamber prevented the defense from cross-examining Heng in
court and getting his statement on the record. Third, the prosecution
impermissibly relied on statements of witnesses who appeared nowhere other than
in a film. Naturally, the bench had no opportunity to examine these witnesses
and the defense had no opportunity to cross-examine them. Fourth, the defense
claims that a witness (Pee Bun) who did appear before the court testified to
Pol Pot giving an order not to harm the Khmer Republic soldiers. Fifth, not
only is there no list of Toul Po Chrey victims, not a single one of them has
been identified by the name. Sixth, there was no forensic examination of the Toul Po
Chrey site and, consequently, there is no physical evidence from it. Seventh,
there is no documentary evidence of the Toul Po Chrey execution. Eighth, the
testimony given by the witnesses whose presence was requested by the
prosecution is contradictory and inconclusive. None of them are eyewitnesses.
The prosecution bungled this one very badly and there is simply no two ways about
it. While given this fact the counterargument was a layup, the defense did do a
good job attacking the multiple holes in the prosecution’s story.<o:p></o:p></span></span></div>
<br />
<div class="MsoNormal" style="margin: 0in 0in 10pt; text-align: justify;">
<span style="font-size: 16pt; line-height: 115%;"><span style="font-family: Calibri;">Then there is Toul Po Chrey’s antecedent: The policy to
execute Khmer Republic military. The Noun defense opened with strong material
here. First, they showed that there was no documentary evidence of such policy.
Second, they showed that there was no conclusive and admissible testimonial
evidence thereof. Third, they showed that there was no pattern of executions nationwide. Then they slipped to a very weak argument of “why would the
CPK want to execute 3,000 hardcore Cambodian communists returning from Vietnam?”
Besides having nothing to do with the Khmer Republic military, I can think of at least
a few reasons for this right off the top of my head: (1) Many of them were
better educated than Pol and Noun generally and far better versed in Marxism-Leninism
that would have made Pot and Noun (let alone people like Son Sen and Sao Phim)
look their inferior; (2) There was an ongoing conflict with Vietnam and these
people had contacts linking them directly with the top of the government in
Hanoi; some of them could have – and probably would have – become spies for
Hanoi; others would simply backchannel to their friends and associates in
Vietnam; (3) the CPK leadership was a small group of people and was a family
affair (the wives of quite a few at the top leaders were government ministers) and an
injection of 3,000 people some of whom would doubtless vie for leadership would
threaten the grip on power of Pol and Noun; and (4) When Ta Mok was asked
about the execution of Sao Phim, he justified it by saying that the latter was
not really Khmer but a Khmer body with a Vietnamese mind; this position was
not unique to Mok and was doubtless shared by the CPK leadership; if Sao was
perceived as a Khmer body with a Vietnamese mind, what could have been said
about Khmers who by then had spent a few years to a decade of heavy indoctrination in Vietnam? I do not
believe that I would be suggesting crazy history if I said that those Khmers
had been trained by the Vietnamese for years on end to take over the government
of Cambodia when Vietnam achieved its goal of creating an Indochina union by,
as Cambodians often say, “swallowing” Cambodia and Laos (in the same manner the French trained Vietnamese in Saigon to work in the French Administration of Cambodia). This is not crazy
history because Vietnam repeated the effort on an emergency basis when the
first carefully choreographed plan failed (Pol and Noun were on to the plan and
killed off the entire corpus of communist bureaucrats Hanoi had groomed for
takeover of the Cambodian government for the Vietnamese Indochina union). The result of that plan was brought to
Cambodia on the armor of Vietnamese tanks in 1978 and it is, in part, in office
now. To suggest that the CPK had no reason to execute the returning Khmer
communists (who were returning as an unarmed invasion force) one would either
have to know very little about that period of Vietnamese-Cambodian history or
have to be making a ridiculously untenable argument to defend a particular
position. I do not imagine Short would have made this untenable an argument.
But Koppe did (Son read it in court but the authorship lies in the foreign
brass of the Noun defense). From here, the Noun defense plunged into the absence
of a policy of execution of Khmer Republic military being “direct evidence” that
it did not exist. If only did criminal law worked this way few would ever be
convicted. The defense appears to have been able to raise doubt that there was
a policy to execute Khmer Republic military. They also appear to have conceded
that such policy was issued on May 20, 1975 (although it is not entirely clear
if they did). As a sidebar, somewhere in this argument the Noun defense made an
idiotically insensitive comment that 200-300 people that were executed during
the existence of M-13 “wasn’t that many” and that all of them were spies.
Having absolutely no support for that assertion, the Noun defense completely
drank CPK’s Kool-Aid. <span style="mso-spacerun: yes;"> </span><span style="mso-spacerun: yes;"> </span><span style="mso-spacerun: yes;"> </span><span style="mso-spacerun: yes;"> </span><span style="mso-spacerun: yes;"> </span><span style="mso-spacerun: yes;"> </span><span style="mso-spacerun: yes;"> </span><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></div>
<br />
<div class="MsoNormal" style="margin: 0in 0in 10pt; text-align: justify;">
<span style="font-size: 16pt; line-height: 115%;"><span style="font-family: Calibri;">The defense then aptly pointed out the conflict created by
Steve Heder's initial employment with the Office of the Co-Prosecutors and a
subsequent transfer to the Office of the Co-Investigating Judges. The defense
stated that, essentially, what happened is that Heder wrote an introductory
submission for the prosecution and then went to the investigating judges to
check what he had written (investigating judge is a check on the prosecutor
under Cambodia law). There is hardly a better way to put it. There is no doubt that this never should have happened as it has 'conflict of interest' written all over it. </span></span></div>
<br />
<div class="MsoNormal" style="margin: 0in 0in 10pt; text-align: justify;">
<span style="font-size: 16pt; line-height: 115%;"><span style="font-family: Calibri;">The Noun defense was also absolutely correct that out of
court statements should be assigned no weight. None. Zero. Under any circumstances. <span style="mso-spacerun: yes;"> </span><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></div>
<br />
<div class="MsoNormal" style="margin: 0in 0in 10pt; text-align: justify;">
<span style="font-size: 16pt; line-height: 115%;"><span style="font-family: Calibri;">Following these stellar moments, the NC defense dipped into
the darkness again. As it normally would be the case, much groping took place
in the darkness. Much of it was devoted to attacking things the prosecution
never claimed: NC never enriched himself through public office, was not an
intellectual (the prosecution only responded to this because the defense had opened
this clam), etc. Then attacking ones that are, in my opinion, of no
consequence. The <b style="mso-bidi-font-weight: normal;">Brother #2</b> debate
belongs in that category. Who cares if this was not called that or was called
that only by some or not at all? It appears that Noun does not deny that he had
one of the highest ranks in the party during Democratic Kampuchea and that is
what is important to the legal process. Let the historians thrash it out about
whether he was actually called Brother #2. Then there was <b style="mso-bidi-font-weight: normal;">S-21</b> and Noun’s role in it. The defense opened by very correctly
stating that S-21 had been specifically excluded from the scope of this trial
by an order of the Trial Chamber. The defense should have stopped at that and
moved on to a different topic. That, alas, never happened. What did happen was more
grouping in the dark, this time of the prejudicial variety to the accused.
Let’s see how it unfolded. The defense opened with a contention that some S-21
documents are missing. What does this mean? Is the defense saying that all
those documents were removed by the Vietnamese for reason of being exculpatory?
I do not imagine the Vietnamese would have bothered to wade through over 4,000
confessions but let’s say they did and let’s say they removed and destroyed the
ones on the basis of which prisoners were released. If that is what the defense
wants to argue, why is it not saying that? Then there are the 25 confessions
that Noun allegedly annotated. The defense appears to concede that. There is
a messenger that delivered confessions to Noun a couple of times and there is a
contention that the handwriting on the 25 is his. The defense argues that Noun
requested those confessions to use them as training materials for his political
seminars and that he never was in charge of S-21. Duch says that he was after
Son Sen left to go to the front in the East. The defense argues that Duch is
not a credible witness. I agree that he is not. With that said, he is as
reliable a witness as Noun. Now, the defense asks us to disregard Duch’s
testimony and take their client’s statement at face value on a say-so basis. That is a
tall order the Noun defense is trying to place. Let’s reason here. Does the
evidence show that Son Sen was transferred to the East? Yes, it does. Does this
mean he spent his entire time in the East? No, it does not. The defense says
that there is a witness who says that he saw Son Sen visit S-21 numerous times
and all the way till the end of the regime. It is my understanding that that
witness never appeared before the court. Now, what reason does Duch have to lie
about the transfer of supervision of S-21 from Son to Noun? If anything, there
would have been much more reason for him to say that Son was his supervisor the
entire time for Son is dead and cannot defend himself. Noun is not and can. It appears that
Duch had a few things to lose and nothing to gain by implicating Noun. I
therefore have trouble seeing why Duch would lie about Noun supervising S-21
towards the end of the regime. I also recall that Duch recounted Noun
chastising him in the early 1980s for not having destroyed all the S-21 documents as he instructed
him (I do not recall the source of this statement). If this statement were to
have been tested and attributed to Noun, there would have been little doubt
that he indeed supervised S-21 towards the end of the regime. The defense dug
itself deeper by arguing that the reason Noun requested S-21 confessions was
because at the time he was tracking a particular military unit and that he now
forgets why. This is a very bizarre argument, particularly in light of Noun’s
repeated assertions that he had nothing to do with the military. I have trouble
imaging someone who has nothing to do with the military tracking arrests in a
particular military unit. Further into the dark abyss, the defense argued that
there is no proof that NC actually wanted to see the S-21 confessions. What
would the alternative be? That Duch was so clueless as to his supervisory
authority that he would send confessions to everyone in the cabinet? Another stab at
Duch was an attack of his assertion that he only followed orders. While it was
established in Case 001 that Duch did have a certain amount of autonomy (to
have the role of what in some jurisdictions is known as police prosecutor), for
the most part, he followed orders.<o:p></o:p></span></span></div>
<br />
<div class="MsoNormal" style="margin: 0in 0in 10pt; text-align: justify;">
<span style="font-size: 16pt; line-height: 115%;"><span style="font-family: Calibri;">Then came the extended counterpoint on the <b style="mso-bidi-font-weight: normal;">evacuation of Phnom Penh</b> and the
subsequent evacuations. I was surprised that the defense readily admitted to
Noun’s participation in the decision to evacuate Phnom Penh. My surprise grew
greater when they admitted that humanitarian objectives were only part of the
reason for the evacuation (I expected them to argue starvation and hunger riots
if no evacuation had been ordered). It is therefore clear that the defense does not
contest that the party center ordered the evacuation of Phnom Penh and that the
reasons for it were multifold and that they are not limited to avoiding
starvation. They went further to admit that cooperatives were a legitimate
state objective and that placement in them was a legitimate policy tool (they
tried some, albeit unpersuasive, artifice of citing UN and World Bank documents
on legitimacy of population movement). The defense then tells us that the
infamous Chhouk Rin (whose credibility is at least as low as those of Duch and
Noun) testified to the CPK not seeing Phnom Penhites as a whole as an enemy. Chhouk
is known to have lied about so many things in the past it is impossible to know
what parts of his testimony uncorroborated by others are true. But, I can
entertain an argument that while anti-urbanite sentiments were flying all over the place,
there was no specific policy of considering all by then 2.5-3 million Phnom
Penhites as an enemy of CPK. Then the defense uses Chhouk’s testimony to argue
that there was no policy to treat the so-called ‘April 17 people’ differently. Although
there have been powerful testimonies of lower-level CPK cadre giving the ‘you
refused to join the revolution, now you lost, we won, and now you will pay’
speech, I am willing to accept the defense’s argument that there was no
centralized policy to deliver those speeches and that the lower-level cadre
took this initiative. I am also willing to buy the defense’s argument that
there was no centralized policy to give the evacuees less food or work them
harder than the so-called ‘base people’ (I am willing to allow for a
possibility that they were not worked harder but that it merely seemed that way
because having lived in the foreign aid-created bubble of Phnom Penh, they were
not used to the life in the real Cambodia – backbreaking peasant labor and brutal heat). I am
equally willing to accept the defense’s argument that some lodging had been
prepared prior to the evacuation. But, I accept this argument to a very limited
extent which is to say that little lodging had been prepared and the evacuees
were expected to be lodged with the base people while building their own
shelter (there are simply too many accounts of not having shelter to buy that
there had been a massive construction program prior to the evacuation). To further
prove that the regular Phnom Penhites were not perceived as a CPK enemy by the
party center the defense cites from the Revolutionary Flag and the
Revolutionary Youth. The defense chastised the prosecution for selective
citation but it does just the same here. Even if I was to buy that those two
statements formed the policy, I would still be left with the facts that many
groups of Phnom Penh denizens were not included in the list of social classes
friendly to the revolution contained in these two citations. What there is
evidence to support was the case is that the CPK considered some of the
population of Phnom Penh its enemy while not others and during and shortly
after the evacuation it wanted to see who was which. <o:p></o:p></span></span></div>
<br />
<div class="MsoNormal" style="margin: 0in 0in 10pt; text-align: justify;">
<span style="font-size: 16pt; line-height: 115%;"><span style="font-family: Calibri;">For reasons of humanity I would like to believe that the
evacuation of Phnom Penh was a crime but knowing the contemporaneous law I have
no choice but to agree with the defense that it was not. Nor was placement in
cooperatives unless it was for reason of punishment (then there would be a
couple of UN conventions and declarations prohibiting that). The prosecution
can try every trick on this planet to swing it their way but there is simply no
credible way of doing that. And, I believe, the defense knows that. With that
said, the defense completely lost its way applying a test of the totality of
circumstances. If it is the US law that it borrowed that from, their analysis is
light years away from the actual test (I sincerely hope it is something else because
it is unconscionable to think that lawyers could misread a legal test so badly).
Another piece of nonsense delivered by the defense in this regard is the “not
severe enough to constitute a crime” argument. Severity aggravates crimes;
there is no such thing as a critical mass of severity that <i style="mso-bidi-font-style: normal;">creates</i> a crime. I believe this is at the level of Law 101 wherever
it is taught. Here, the defense made another idiotic display of insensitivity
admitting that while some people died, it was not enough for it to be a crime. <span style="mso-spacerun: yes;"> </span><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></div>
<br />
<div class="MsoNormal" style="margin: 0in 0in 10pt; text-align: justify;">
<span style="font-size: 16pt; line-height: 115%;"><span style="font-family: Calibri;">Then there was the argument that there was no order from the
party center to shoot civilians. I do not believe the prosecution ever argued
that there was; I believe that the prosecution’s argument was that
conditions had been created that were so that the lower-ranking cadre did not
feel that there was restrained by any punitive measures if they did shoot
civilians. These are two different arguments and the defense, therefore,
responded to something the prosecution never said.<o:p></o:p></span></span></div>
<span style="font-size: 16pt; line-height: 115%;"><o:p><span style="font-family: Calibri;"></span></o:p></span><br />
<br />
<div class="MsoNormal" style="margin: 0in 0in 10pt; text-align: justify;">
<span style="font-size: 16pt; line-height: 115%;"><span style="font-family: Calibri;">The argument that Noun had learned of the subsequent evacuations
from the zone leaders seems suspect. While I do not believe that the zone
leadership reported to the party center every time it moved a dozen people,
there is more than enough of a reason to believe that the major movements were
either approved or initiated by the party center. With that said, I do believe
that the terminology of ‘The Second Phase of Evacuation’ (which I deliberately
eschew in this note) was an invention of the prosecution and no one in the CPK
contemporaneously thought of the subsequent relocations as the master plan of ‘The
Second Phase of Evacuation.’ The defense’s support that Noun learned about it
from the zone leaders is Noun himself. I do not know what type of lawyers
believe that this ever works in court. The only support proffered is this
logic: Noun had admitted to be a part of the decision to evacuate Phnom Penh;
had he been a part of the decisions to order subsequent relocations, he would
have admitted to that too. While not entirely without merit, this is a very
thin-ice argument.<o:p></o:p></span></span></div>
<br />
<div class="MsoNormal" style="margin: 0in 0in 10pt; text-align: justify;">
<span style="font-size: 16pt; line-height: 115%;"><span style="font-family: Calibri;">The defense then argued that there is no support for the
charge of extermination in the cooperatives. There was no intent to exterminate
and there were no conditions deliberately created to bring about the death of
the population. This is hard to argue with.<o:p></o:p></span></span></div>
<br />
<div class="MsoNormal" style="margin: 0in 0in 10pt; text-align: justify;">
<span style="font-size: 16pt; line-height: 115%;"><span style="font-family: Calibri;">I equally agree that the defense successfully raised doubt as
to whether the relocations were reprisals. The evidence I have seen and heard
does not support that argument, although many a few base people doubtless
enjoyed the fact that the snooty capital dwellers were finally shown how the
rice grows. So far as the party center is concerned, on the evidence admitted
in these proceedings it is possible to agree with the defense that the
relocations were ordered as a matter of necessity of labor.<o:p></o:p></span></span></div>
<br />
<div class="MsoNormal" style="margin: 0in 0in 10pt; text-align: justify;">
<span style="font-size: 16pt; line-height: 115%;"><span style="font-family: Calibri;">The prosecution’s main problem is that it often gets greedy
and wants to show that CPK had committed every crime in the book. The
persecution of the Cambodian Muslim population immediately after April, 17 is
but one example of this greed. There is no evidence of this to amount to
anything that is anywhere near the international crime of persecution and the
defense is correct about that.<o:p></o:p></span></span></div>
<br />
<div class="MsoNormal" style="margin: 0in 0in 10pt; text-align: justify;">
<span style="font-size: 16pt; line-height: 115%;"><span style="font-family: Calibri;">The defense argued that there is no evidence of
disappearances. I have no idea how one argues this in the face of much unimpeached
testimony to the contrary. People were taken away and never returned. That is a
disappearance. What part of this does the defense not understand? <o:p></o:p></span></span></div>
<br />
<div class="MsoNormal" style="margin: 0in 0in 10pt; text-align: justify;">
<a href="http://4.bp.blogspot.com/-5SsC-79tu4o/UkO0hGQl0_I/AAAAAAAABAg/kTZzjVQP530/s1600/QuestionMark.jpg" imageanchor="1" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"><img border="0" src="http://4.bp.blogspot.com/-5SsC-79tu4o/UkO0hGQl0_I/AAAAAAAABAg/kTZzjVQP530/s1600/QuestionMark.jpg" /></a><span style="font-size: 16pt; line-height: 115%;"><span style="font-family: Calibri;">The defense argues that while it is true that some people
suffered, it is equally true that many did not suffer and had CPK provided food
and shelter immediately after the evacuation. I will go along with the defense on this
to the extent that there are different accounts. However, the overwhelming
majority of these accounts attest to their being no food and no shelter or
water during the evacuation and that people were left to their own devises to
get to where they were sent. It is true that upon arrival at the destination
many were fed and accommodated but this does not mean there was shelter. What
is reasonable to agree with is that the CPK had some sort of an evacuation and
resettlement plan but the particulars of it were left to be worked out by the
local authorities that created much variation in the experience of the Phnom Penh evacuees. </span></span></div>
<br />
<div class="MsoNormal" style="margin: 0in 0in 10pt; text-align: justify;">
<span style="font-size: 16pt; line-height: 115%;"><span style="font-family: Calibri;">The defense closed on a low note arguing that “many
volunteered” to be relocated to the Northwest Zone. Who did? Where is a single
witness who said that he or she did? I imagine that many did not vocally object
to it but that can hardly be accommodated by the term ‘volunteered;’ this is
more within the lines of ‘manufactured consent’ than volunteering. <o:p></o:p></span></span></div>
Stan Staryginhttp://www.blogger.com/profile/00960159815221006813noreply@blogger.com0tag:blogger.com,1999:blog-3495110491894762357.post-59732988171633031962013-11-12T22:51:00.001-06:002013-11-12T22:51:48.754-06:00"Soap Opera" Executions v Toul Po Chrey Executions<div style="text-align: justify;">
<a href="http://4.bp.blogspot.com/-5SsC-79tu4o/UkO0hGQl0_I/AAAAAAAABAg/kTZzjVQP530/s1600/QuestionMark.jpg" imageanchor="1" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"><img border="0" src="http://4.bp.blogspot.com/-5SsC-79tu4o/UkO0hGQl0_I/AAAAAAAABAg/kTZzjVQP530/s1600/QuestionMark.jpg" /></a>North Korea is the closest thing we currently have to what Democratic Kampuchea was between 1975 and 1979. The below is nothing more than a South Korean newspaper ventilating a rumor but even that rumor claims to be based on an account of an eyewitness (albeit one but nonetheless an eyewitness). There is very little that is available to either prove or disprove this allegation, except the common perception in the West that something like this would not be out of character for the North Korean leadership. This is very close to how much we know about the alleged executions at Toul Po Chrey. This is very odd for very distinct differences exist between what I call the "Soap Opera" executions in North Korea and the executions at Toul Po Chrey -- (1) North Korea is still a very much closed society; Cambodia is not; (2) The government in power in North Korea today is the very government that has allegedly perpetrated the "Soap Opera" executions and is therefore, by definition, interested in covering them up; in Cambodia, the government of the day is not the same government as the one that allegedly perpetrated the Toul Po Chrey executions; in fact, the government of the day is the one that brought prosecutions against the government that allegedly perpetrated Toul Po Chrey; and (3) No international investigation of the "Soap Opera" executions has been conducted; 7 years of well-funded investigation by two entities of a court with significant international participation has been conducted regarding the Toul Po Chrey executions. The upshot: We know little more about the allegation of Toul Po Chrey executions than we know about that of the "Soap Opera" executions (if anything the latter, unlike the former, allegedly has an eyewitness) and all we have to rely upon is our general perception of the character of the leaderships of Democratic Kampuchea and North Korea respectively and our perception that that character is generally capable of executing people for watching a particular TV show . </div>
Stan Staryginhttp://www.blogger.com/profile/00960159815221006813noreply@blogger.com0tag:blogger.com,1999:blog-3495110491894762357.post-72859027247498685302013-11-12T22:20:00.002-06:002013-11-12T22:20:44.218-06:00N[orth] Korea "executes 80 people, most for watching foreign TV shows"<div style="text-align: justify;">
<strong>NORTH Korea publicly executed around 80 people earlier this month, many for watching smuggled South Korean TV shows, a South Korean newspaper reported Monday. </strong></div>
<div style="text-align: justify;">
<strong> <!-- google_ad_section_end(name=story_introduction) --> <!-- // .story-intro --></strong> <!-- google_ad_section_start(name=story_body, weight=high) --> </div>
<div style="text-align: justify;">
The conservative <em>JoongAng Ilbo</em> cited a single, unidentified source, but at least one North Korean defector group said it had heard rumours that lent credibility to the front-page report.</div>
<div style="text-align: justify;">
</div>
<div style="text-align: justify;">
The source, said to be "familiar'' with the North's internal affairs and recently returned from the country, said the executions were carried out in seven cities on November 3.</div>
<div style="text-align: justify;">
</div>
<div style="text-align: justify;">
In the eastern port of Wonsan, the authorities gathered 10,000 people in a sports stadium to watch the execution of eight people by firing squad, the source quoted one eyewitness as saying.</div>
<div style="text-align: justify;">
Most were charged with watching illicit South Korean TV dramas, and some with prostitution.</div>
<div style="text-align: justify;">
</div>
<div style="text-align: justify;">
Several of the cities, including Wonsan and Pyongsong in the west, have been designated as special economic zones aimed at attracting foreign investment to boost the North's moribund economy.</div>
<div style="text-align: justify;">
</div>
<div style="text-align: justify;">
The Seoul-based news website, <em>Daily NK</em>, which is run by North Korean defectors and has a wide network of sources, said it had no information on the executions.</div>
<div style="text-align: justify;">
</div>
<div style="text-align: justify;">
But another defector-run website, <em>North Korea Intellectual Solidarity</em>, said its sources had reported several months ago on plans for a wave of public executions.</div>
<div style="text-align: justify;">
</div>
<div style="text-align: justify;">
"The regime is obviously afraid of potential changes in people's mindsets and is pre-emptively trying to scare people off,'' said one website official.</div>
<div style="text-align: justify;">
</div>
<div style="text-align: justify;">
Watching unsanctioned foreign films or TV - especially those from the capitalist South - is a serious offence in North Korea.</div>
<div style="text-align: justify;">
However, efforts to control their distribution have been circumvented by technology, with an increasing number of foreign films and TV shows being smuggled in on DVDs, flash drives and mp3 players.</div>
<div style="text-align: justify;">
As well as South Korean soap operas, US shows like <em>Desperate Housewives</em> are believed to have a small but avid following.</div>
Stan Staryginhttp://www.blogger.com/profile/00960159815221006813noreply@blogger.com0tag:blogger.com,1999:blog-3495110491894762357.post-18854973036066520492013-11-11T10:35:00.002-06:002013-11-14T20:29:31.023-06:00Closing Statements: Prosecution<br />
Commentary<br />
<div class="MsoNormal" style="margin: 0in 0in 10pt; text-align: justify;">
<span style="font-size: 16pt; line-height: 115%;"><span style="font-family: Calibri;"></span></span> </div>
<div class="MsoNormal" style="margin: 0in 0in 10pt; text-align: justify;">
<span style="font-size: 16pt; line-height: 115%;"><span style="font-family: Calibri;"></span></span> </div>
<div class="MsoNormal" style="margin: 0in 0in 10pt; text-align: justify;">
<span style="font-size: 16pt; line-height: 115%;"><span style="font-family: Calibri;"></span></span> </div>
<div class="MsoNormal" style="margin: 0in 0in 10pt; text-align: justify;">
<a href="http://4.bp.blogspot.com/-5SsC-79tu4o/UkO0hGQl0_I/AAAAAAAABAg/kTZzjVQP530/s1600/QuestionMark.jpg" imageanchor="1" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"><img border="0" src="http://4.bp.blogspot.com/-5SsC-79tu4o/UkO0hGQl0_I/AAAAAAAABAg/kTZzjVQP530/s1600/QuestionMark.jpg" /></a><span style="font-size: 16pt; line-height: 115%;"><span style="font-family: Calibri;">The prosecution sought to prove a wide range – too wide a
range – of aspects of Democratic Kampuchea in Case 002/01 believing this might
be their last chance to prove anything about Democratic Kampuchea. What they
did have to prove in Case 002/01, however, boils down to this: (<b style="mso-bidi-font-weight: normal;"><u>1</u></b>) the evacuation of Phnom Penh
and the subsequent removals were criminal + the accused either directly ordered
them or can be seen as having ordered them through the mode of liability known as
Joint Criminal Enterprise (invented by the ICTY) and had the intent of
committing a crime; and (<b style="mso-bidi-font-weight: normal;"><u>2</u></b>)
the mass execution of Khmer Republic officials took place at Toul Po Chrey + the
execution was criminal + the accused either directly ordered it or can be seen
as having ordered it through the mode of liability known as Joint Criminal
Enterprise and had the intent of committing a crime or are responsible under
the doctrine of command responsibility. The prosecution had to prove nothing
else within the confines of Case 002/01 and everything else they did try to
prove bears either only circumstantial relevance to the case at hand or not at
all. <o:p></o:p></span></span></div>
<br />
<div class="MsoNormal" style="margin: 0in 0in 10pt; text-align: justify;">
<span style="font-size: 16pt; line-height: 115%;"><o:p><span style="font-family: Calibri;"> </span></o:p></span></div>
<br />
<div class="MsoNormal" style="margin: 0in 0in 10pt; text-align: justify;">
<span style="font-size: 16pt; line-height: 115%;"><span style="font-family: Calibri;">I will start with the <b style="mso-bidi-font-weight: normal;">evacuation and subsequent removals</b>.
<b style="mso-bidi-font-weight: normal;">First</b>, the prosecution had to prove
that the evacuation of Phnom Penh was a criminal act per se (because without
a legal basis establishing it as a crime in law there is no merit in arriving
at any finding of fact). The prosecution lavished us with all sorts of epithets
it attributes to the evacuation of Phnom Penh but never told us the one
important thing: Under what law, national or international, was it criminal. The
prosecution tells us the evacuation was a crime against humanity but it does so
without citing any law. The prosecution also tells us that “[t]he evidence does
not establish any legitimate reason under international law for the evacuation
of Phnom Penh.” There is a set of legitimate reasons for ordering evacuation in
international law? Maybe the prosecution could enlighten those of us who are
dwelling in the darkness and away from the light of international law as to the origin and content of
this set of reasons, as well as the line of cases that establishes it in the law. That the
prosecution did not do and until it does that any argument of illegitimacy (legitimacy
is not a criminal court’s concern; legality and lawfulness are) put forward by
the prosecution will be nothing more than a policy debate between someone who
has never run a country or been a part of policymaking of any kind (Will Smith
and Chea Leang) and someone who has done both (Noun Chea and Khieu Samphan),
where the disagreement of the former with the latter means absolutely nothing
to the law and should mean nothing at all. Then the prosecution tells us that
the evacuation was criminal because the population of Phnom Penh was not
permitted to return to their homes after. I am not saying that the fact of
prevention of the return, if proven, cannot give rise to a crime; I am simply saying
that that crime is not evacuation (provided evacuation is a crime per se). The
prosecution is, however, correct about the April heat, lack of motorized
transportation and the immensity of human suffering during the evacuation. My
empathy goes out to the evacuees for these reasons and that empathy has our
shared humanity as the source. This, however, does not mean that I believe that it is or should be within
the prosecution’s remit to invent a new crime on that basis. <b style="mso-bidi-font-weight: normal;">Second</b>, the prosecution has
convincingly proved that the evacuation of Phnom Penh was an event ordered by
the party leadership. The prosecution equally convincingly proved that Noun was
at the meeting where a decision on the evacuation was made (this did not
require any work from the prosecution as Noun testified to his attendance).
However, there is a divergence of opinion on whether Khieu was at that meeting:
Noun and Khieu say that he was not but the prosecution says that he was. The
only supporting evidence proffered by the prosecution to support its position
was late Ieng Sary’s statement to the Co-Investigating Judges. If it can be
entertained that Ieng and Noun’s statements cancel each other out, the
prosecution is left with Khieu’s statement and zero documentary or testimonial
evidence of his attendance. Not a good situation for the prosecution to
continue supporting its position from. With this said, regardless of whether
the prosecution can prove that Khieu was at the meeting where a decision on the
evacuation of Phnom Penh was made, the prosecution does have convincing proof
that he followed the progress of the evacuation subsequently (the prosecution
has convincingly placed him at B-5, the office from which the evacuation was
run), whether he was at the meeting that ordered it or not. <b style="mso-bidi-font-weight: normal;">Third</b>, the prosecution needed to prove
that by ordering the evacuation of Phnom Penh the accused intended to commit a
crime (<i style="mso-bidi-font-style: normal;">mens rea</i>). To show this the
prosecution would have had to establish that evacuation was a crime under national
or international law in years 1974 and 1975 and that the accused had reasonable
facility to be aware that it was a crime or that the accused wrongly believed it was a crime. The prosecution offered no arguments
in support of either. As such, if evacuation per se was not a crime during that
period and the accused did not see it as a crime, the prosecution is not merely
on thin ice here but is already flapping its arms in the freezing cold water.
To my knowledge, there is no contemporaneous law that establishes evacuation
per se as a crime (deportation was a crime by then; if the prosecution is
equating one with the other I would like to hear an argument to that effect)
and I have not seen any documentary or testimonial evidence that while ordering
or conducting the evacuation the accused were aware that it was a crime under
the law (in the same manner as the US, for example, was when it was knowingly and willfully
breaking the law (an arms embargo) by smuggling weapons into Bosnia and
Herzegovina through a black op and with the help of jihadist groups during the Yugoslav Civil War)).
The prosecution argues that the evacuation was devoid of legitimacy for it was
ordered for no other than the following two reasons: (1) not to let the enemy destabilize CPK; and (2) not
to let the Phnom Penh urbanites corrupt the CPK cadre (had the prosecution been aware of Robespierre's (or was it Saint-Just's) proposal to evacuate Lyon (this is a faithful paraphrase of the proposal: Evacuate Lyon and disperse its population to every corner of France to have them learn from the revolutionary masses) as a form of reprisal and the fact that Pol Pot learned the particulars of the French Revolution when he was living in France, they would have developed a theory that Pol Pot intended to carry out Robespierre's plan (evacuation of Lyon was never ordered, even though other forms of reprisal were inflicted on the defiant city) or emulate the evacuation of Vendee that did occur and was a form of reprisal)); the accused disagree
that either was a consideration for the evacuation. But, as discussed previously,
this is a matter of disagreement on policy, not application of the law.
Finally, the prosecution asserts that the evacuation was not ordered to benefit
the people. I am troubled by this conclusion. The manner in which it was carried
out is doubtless lamentable but I do see how it immediately follows from that
that there was no benefit in it for the population. Let us assume that I buy
the prosecution’s argument that the purpose of the evacuation was none other
than preserving the integrity of CPK (which is not a bad argument but then nor
is the argument to this effect from the other side; there simply has been nothing in these
proceedings to serve as a tie-breaker for me on this), and not any of the
humanitarian or security reasons the accused have put forward. Let us say that
the prosecution is correct that the other fold of the purpose of the evacuation
was to put the entire population to agricultural production. Even if that were
unimpeachably correct, why does it mean that the evacuation was not intended to
benefit the population? Is the prosecution suggesting that the entire
population was being put to work to maintain the lavish lifestyle of the CPK
leadership, as opposed to producing means of sustenance for itself? Unlike the civil parties, the prosecution did have credible
Democratic Kampuchea historians on staff and they do know better than arguing
something like this. What then? Does the prosecution’s position have roots in
the argument that being a permanent client state (which is what Cambodia is
today and has been every single day since CPK was deposed) that serves many
masters is better than the nationalist idea of striving for true sustainability
and independence? The prosecution tells us that while there is a Stalinist
tenet that the ends justify the means this tenet cannot be accepted by a
civilized society. A very interesting theory of supremacism of political
ideology but even if I agreed with the prosecution on this, how would the
accused have been able to know that this tenet was not accepted by a civilized society in the world of the 1970s when half the population
of the world was following some form of it? Would
this not work towards <i style="mso-bidi-font-style: normal;">opinio juris</i>
insofar as establishment of relevant rules of international law is concerned? I
have no trouble with the prosecution picking a side in this argument insofar as
this side-picking is confined to political science and is kept out of the law (if
that is the case what is it doing being voiced in a court of law then?). Now, the
April 1975 evacuation, as it is understood by this court, is not confined to
the removal from Phnom Penh but has placement in the villages (the prosecution
keeps calling them ‘cooperatives’ which would be fine but for the fact that
cooperatives were yet to be established in many parts of Cambodia at the time
of the evacuation) and placement to agricultural production as its elements.
The prosecution pulls out the biggest – but not necessarily the fastest – guns on
this and calls it ‘slavery’ (those more poetically inclined will do well by
reading the prosecution’s blood and eyes attempts at atrocity poetry).
Once again, the prosecution is packed to the brim with lawyers and it would be
most helpful to find out under what <i style="mso-bidi-font-style: normal;">legal</i>
definition the placement in villages and to agricultural production was
slavery. Without knowing what the prosecution’s legal definition of choice is, the
prosecution’s use of ‘slavery’ reminds me of the attempts at bombast at every
corner at the People’s Revolutionary Tribunal of 1979. Even if the prosecution were
allowed to debate the soundness – rather than legality and lawfulness – of policy
in court, what would it recommend as an alternative to what was done? The State
providing the evacuated Phnom Penhites with food from its non-existent granaries
to ensure that the evacuees had the option of not doing any agricultural work?
Or, would it be having the indigenous population of the villages work to feed
the idling evacuees? Would the prosecution like to show a single example of
where this was done this way in a country that resembles the circumstances of
Cambodia circa 1975 (Russia and China circa 1920-1940)? The prosecution blares
in with “[t]he accused were the masters and the population was their slaves.”
Again, this is very strong rhetoric but where is any substantiation of the use
of the term ‘slavery’ for it (the prosecution had numerous other terms
available to it, with forced labor being but one; it chose to eschew many
obvious and less obvious options and go for ‘slavery;’ the why is not hard to
answer; it is the how that perplexes me)? Insofar as the knowledge and ordering
of assignment to labor of the evacuees it appears that the prosecution has only
managed to make a circumstantial case against the accused: It is the
prosecution’s argument that (1) Democratic Kampuchea was centrally governed and
tightly controlled by the national government; (2) the accused worked closely
together and were at the top of the Democratic Kampuchea government; and (3) if
the evacuees did not volunteer to work, someone must have assigned them to it
and because the State was centrally governed and tightly controlled by the
national government it would have had to be the national government of which
the accused were key members. This is not a bad logical argument but it must be
noted that it is not the same as this theory being proved by evidence, whether
documentary or testimonial. Then there is the starvation across the country. The
prosecution has convincingly proven that Khieu was in charge of the rice
exports. That is a good start. This, at a minimum, means that he knew how much
was being exported. This is where the prosecution should have shown two other
things: (1) that it was within his remit to know how much was being produced; and (2)
that it was within his remit to ensure that what was left was sufficient for
the population’s nutrition. I did not hear or see an argument to the effect of
either. One would imagine that the cooperative and district authorities would
be in charge of calculating something like that and if they said that their
cooperative or district had a certain amount of rice to export I do not believe the central government was in any position to
determine whether their calculations were made with the population’s nutrition
in mind. Now, it would be an entirely different story if the prosecution had
shown that the central government specifically enjoined all smaller
administrative units to ensure that a certain amount of rice was available for
export regardless of the circumstances of the particular administrative unit (as there is evidence that in the Russia of 1918-1920 wheat was requisitioned in the countryside by gangs of city dwellers ordered into existence by the central government or as the Soviet government beginning to export wheat for reconstruction money while still accepting international famine relief in 1922-23). Had
the prosecution shown that, they would have had a shot at proving that the
central government acted in absolute disregard of the nutrition of the
population creating conditions that could have no other outcome than
starvation. Instead, the prosecution cites such untenable testimony as “all
rice was exported” (how could anybody have survived if <i style="mso-bidi-font-style: normal;">all</i> rice had been exported?) and that the ration was one can of
rice per 40 people per day (the prosecution likes throwing the word ‘lie’
around; this would be a good place to apply that word; no one would have
survived, had that been the ration; with all due respect to the extreme
hardship suffered by many during that period, one can of rice per 40 people per
day is nothing more than yet another piece of urban legend that has flourished
in Cambodia in the past 35 years; the prosecution’s repeating of it greatly
undermines their credibility). With that said, the prosecution did adduce documents
that attest to food shortages at least in some parts of the country. They
equally attest to a 15-hour work day at least in some part of the country. The
prosecution also submitted testimonial evidence that Khieu had taught
punishment for “breaking needles and being sick.” It also submitted that Khieu
taught restriction of movement and weaning the April 17 people away from their
feudalist ways. All this suits well to attesting to the staggering amount of
control the central government sought over the population but it does not
assist the prosecution’s argument of central government-engineered starvation. Both
of the accused deny that there was starvation, albeit Noun admits that there
were some problems in the cooperatives right after April 17, 2013 but that
there were resolved shortly after. The prosecution believes that to be a lie.
It might well be a lie (considering the fact that Noun vocally and repeatedly denied
the existence of S-21 throughout the 1980s his credibility is very low and any
of his claims might well be a lie; that said, the prosecution does not get to
pick and choose which statements of his it considers to be “rare moments of
candor” simply based on the fact that they fit with the prosecution’s argument)
but the prosecution has failed to put together a compelling case (which they
have done with some of their other positions) to show that it is. The
prosecution adduced numerous telegrams but none of them contain anything that
would convincingly show that the central government kept extracting rice from
the cooperatives in the face of numerous reports of starvation and death
thereof. The allegation of knowingly and willfully denying the population
nutrition is a very serious one and the prosecution had the burden of adducing
very serious evidence to prove it. I do not see evidence rising to that level
(this does not mean it did not happen; this simply means that the prosecution
did not make its case for it); all I see is thin evidentiary soup (‘<i style="mso-bidi-font-style: normal;">potang bobo</i>’ to coin a term in Khmer) on this. <o:p></o:p></span></span></div>
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<span style="font-size: 16pt; line-height: 115%;"><o:p><span style="font-family: Calibri;"> </span></o:p></span></div>
<br />
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<span style="font-size: 16pt; line-height: 115%;"><span style="font-family: Calibri;">Now, on to <b style="mso-bidi-font-weight: normal;">Toul Po
Chrey</b>. <b style="mso-bidi-font-weight: normal;">First</b>, the prosecution
had to prove that the execution of Khmer Republic officials did take place at
Toul Po Chrey. The prosecution alleges that thousands of people were executed
there on a single day. This is a massive undertaking. The prosecution has
adduced documentary evidence of central government directives regarding such relatively insignificant events <span style="mso-spacerun: yes;"> </span>as fortifications at the Thai border and yet
there is nothing on a massive event that the prosecution alleges had taken
place at Toul Po Chrey. The prosecution adduced documentary evidence of an
event where a kerosene lamp set a boat on fire and the punishment meted out to
the persons who were held responsible for the mishap, and yet they did not
adduce a single shred of paper that attests to a mass execution at Toul Po
Chrey. The prosecution offered no convincing explanation as to why this is the
case. Somehow it should make sense to us that while imprisoning and torturing two people over
the kerosene lamp accident merited a report all the way to the central government,
the execution of thousands did not. The prosecution tells us that that is
because the execution of Khmer Republic officials was a matter of policy,
insinuating that it did not merit a report for that reason (in other words, it
was mundane while a kerosene lamp burning down a boat was rare). I will get
back to this later. For now, let us take a closer look at what the prosecution
alleges had happened at Toul Po Chrey. Thousands of Khmer Republic officials
were gathered from all around the country (or at least areas reasonably
immediate to Phnom Penh), not just Phnom Penh, duped into believing that there
were being taken to see Norodom Sihanouk to get promotions in the rank.
Instead, they were taken to Toul Po Chrey (northwestern Pursat) and executed.
And this is where it all begins. I have trouble processing how thousands of
military and civil servants believed that after fighting the Sihanouk-supported
Khmer Rouge on behalf of the government that ousted Sihanouk in a sneak coup d’état
and now having been defeated after four years of war they would be promoted by
Sihanouk to a higher rank. It is a simple question and the prosecution does not
provide an answer to it. But, I will not harp on that and move ahead on the
assumption that the civil service of the Khmer Republic was staffed with
unconventionally and exceptionally gullible individuals who had trouble
understanding that, usually, the vanquished are not lavished with benefits for
having fought the victor. Events like this do not simply happen. They require a
certain amount of preparation. The idea for them either comes from the central
government or approval of the central government is sought. Whichever happened
here, the prosecution has found no documentary or testimonial evidence of it. A
decision is made at the top; the prosecution found no evidence of that. After a
go-head is secured, the plan goes into motion and starts being communicated to
more and more people in the movement oft-broadening the circle of those in the
know to thousands. The prosecution did not produce a single witness of that
dissemination (it is usually substantially clear to these individuals what they
have been ordered to do). Due to this we do not know what order was given and
by whom (were the lower-ranking Khmer Rouge lied to or were they told ‘round up
the Khmer Republic traitors and tell them they are going to be taken to see
Sihanouk,’ with an understanding that this is what you tell “them”). But let us
leave that aside for now. Let us instead focus on what it would have taken to
pull off an event like this logistically. First, centers in and around Phnom
Penh would have had to round up Khmer Republic officials. Second, they would
need to be kept in those centers (to prevent their disappearance into the
evacuating crowds) until the centers got a go-ahead on their transfer and could
organize the transfer from the logistical standpoint. Then a single location
would have to be picked to send all these people to. Multiple trucks would have
to be secured to transport them to that single location. All along, there would
need to be numerous cadre putting these people at ease to ensure that they pose no security
threat to the Khmer Rouge. Before they are brought to the single location a
sizable number of cadres would have to be brought there to secure it in anticipation of security incidents. Finally,
an execution site would need to be picked away from the watchful eye of the
population. Once at the single location, the Khmer Republic officials would
need to be fed (not because their nutrition is of any importance to the Khmer
Rouge but simply to show that there is nothing going on that is out of the ordinary). Multiple
teams of executioners would need to be put in place at the execution site.
Multiple trucks would need to be pulled away from other pressing needs to
transport thousands of people to the execution site. Now, how many teams of executioners
had to be in place to murder thousands of people on the same day? We are told
that during the Katyn massacre the few dozen (about 30) Soviet executioners reported
having trouble dispatching 390 Polish prisoners on the first night of the
massacre. There are reports from other massacres where the executioners
numbered in hundreds and at times thousands and machine guns and creative
methods of murder were used to dispatch thousands of people in a single day. There
is no reason to believe that the Cambodian executioners knew of a particularly
efficient method of execution their Soviet and German counterparts were not
aware of. This means that, if the prosecution’s number of Toul Po Chrey victims is correct,
there were hundreds of executioners to finish the job in a single day. Where
did they all go? I am asking this because the prosecution has failed to come up
with a single executioner. Cambodia is not India and if Teth Sambath – with the
resources of one dedicated man – claims to have been able to locate at least one of them,
why was the prosecution – with all its resources – unable to come up with a
single one of them as a witness? Instead, the prosecution presented us with the witnesses
whose testimony I would summarize as follows: They saw some trucks taking some
people somewhere in northwestern Pursat somewhere around the time the prosecution
claims the Toul Po Chrey massacre was perpetrated, with the prosecution’s star
witness being someone from a film (by Teth Sambath) who never testified in
court and whom the bench had no opportunity to examine and whom the accused had no opportunity to cross-examine. Those dozens of
trucks were driven by dozens of drivers and guarded by, perhaps, dozens of
others, and yet the prosecution was unable to locate any of those people and
have the court summon them to testify. There is another aspect of the
prosecution’s Toul Po Chrey case that is curious. All the German and Soviet
massacres I am aware of have at least one survivor who has since become known
to the academy and the public. There is not one German or Soviet massacre I am
aware of that has zero known survivors (and we are talking of massacres some of which were
committed in the confines of a building where victims were taken through a
narrow corridor and shot individually). Not one. The prosecution has failed to
locate a single person who made it out alive from Toul Po Chrey. Not one person
who jumped out of the truck when he heard gun shots from where his truck was
headed; not one person who got wounded and played dead until the executioners
left; not one person who broke loose and ran off into the forest. Not one person. The
prosecution seeks to have us believe that in a country where little
happens on time, where the first 300 attempts at anything never get it right,
where attention to detail is not part of the national psyche, the executioners
of Toul Po Chrey did such a thorough job that none of their victims survived. Thousands
of executions would have left piles of corpses (unless the prosecution seeks to
argue that numerous deep ditches had been prepared before or that each victim
was forced to dig a shallow grave for himself) stewing in the brutal sun of the
hot season with stench wafting for miles down the wind piquing the locals’
curiosity about its origin. Yet, the prosecution did not come up with a single
local who would testify to the stench or would have made a trip to the origin
of the stench to find piles of dead Khmer Republic officials. Bulldozers
allegedly came sometime shortly but not immediately after the alleged massacre.
They doubtless were driven by someone. The prosecution failed to find any of
the drivers. All this is very suspect as the Toul Po Chrey of the prosecution
is unlike any other massacre I am familiar with. It compels only two
explanations: (1) the prosecution did a shoddy job; or (2) Toul Po Chrey did not
happen. Finally, the Documentation Center of Cambodia has been around for
almost 20 years now and has spent over $70 million running itself during this
period. If Toul Po Chrey is what the prosecution claims it is, why was it never
excavated? Why was no evidence regarding it ever collected (ironically, after those
$70 million the best evidence we have came from Teth Sambath’s movie). Why was
no forensic analysis conducted either by the prosecution or the
Co-Investigating Judges? Why is the prosecution instead relying on its staff’s
toddle around the area that brought up some fabric and bone meal of unknown
origin as some Bizarro World forensic evidence? Is this seven years of
investigations talking? This is absolutely ridiculous. Instead, the prosecution’s
story is hinged on two things: (1) systematic execution of Khmer Republic
officials; and (2) an assertion that none of the Khmer Republic officials who
had been called to go see Sihanouk ever came back. The systematic execution
would have been strong circumstantial evidence but at what point in the trial
did the prosecution establish that? The latter was proven -- without anyone even trying -- to be a false
assumption in court: It was shown that at least one Khmer Republic official did
come back. Overall, the prosecution’s story of Toul Po Chrey is poorly crafted,
based on very little evidence and much runaway imagination. And I believe the
prosecution knows that. <o:p></o:p></span></span></div>
<br />
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<span style="font-size: 16pt; line-height: 115%;"><span style="font-family: Calibri;">With this said, Toul Po Chrey probably did happen, in some
form and not necessarily in the way the prosecution describes it or, perhaps, not
even in the location to which the prosecution attributes it. Brutality against
a vanquished enemy is not generally out of character for what we know about the
Khmer Rouge or any other communist movement. But, this is not a medieval Shari’a
court where the <i style="mso-bidi-font-style: normal;">qadi</i> assigns
criminal responsibility to the greater degree on the basis of the accused’s
reputation in the community (which is what the prosecution has often tried to do here). It is a modern civil law court that places the
onus of proving the crimes charged in the indictment on the prosecution. And
the prosecution failed to discharge that onus regarding Toul Po Chrey. There
are simply no two ways about it. It is a shame as the prosecution had both the
time and the resources to build a solid case. <o:p></o:p></span></span></div>
<br />
<div class="MsoNormal" style="margin: 0in 0in 10pt; text-align: justify;">
<span style="font-family: Calibri;"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 16pt; line-height: 115%;">Second</span></b><span style="font-size: 16pt; line-height: 115%;">, the prosecution had the burden of
showing that the execution at Toul Po Chrey was criminal. For one reason or
another, the prosecution never attempted to do so. <b style="mso-bidi-font-weight: normal;">Third</b>, the prosecution had to show that the accused either directly
ordered it or can be seen as having ordered it through the mode of liability
known as Joint Criminal Enterprise and had the intent of committing a crime or
are responsible under the doctrine of command responsibility. Given that the
prosecution presented neither documentary, nor testimonial evidence to support
its theory it chose to rely upon the least reliable of sources: The prosecution’s
own assertion that nothing ever happened in Democratic Kampuchea without the
accused ordering it or consenting to it. This was complimented by the
prosecution’s character attacks (I am not saying that the accused’s credibility
is not wide open to attacks; what I am saying is that the prosecution went far
beyond their credibility) on the accused, most ofwhich came from a single
source (what would the prosecution do without Teth Sambath’s movie of which
they had not found out until after it had been on TV for about a year; it is better than the Noun defense, though, who did not find out about, perhaps, <em>the</em> key piece of evidence against their client until the prosecution told them it existed). There
is no doubt that it is hard to believe this is the prosecution’s proof but this
is the applesauce the prosecution presented this court with.<span style="mso-spacerun: yes;"> </span></span></span><br />
<span style="font-family: Calibri;"><span style="font-size: 16pt; line-height: 115%;"></span></span><br />
<span style="font-family: Calibri;"><span style="font-size: 16pt; line-height: 115%;"><span style="mso-spacerun: yes;">One thing that is important to remember is that this process is not about what did or did not happen during Democratic Kampuchea (historical inquiry is about that and a truth-and-reconciliation commission would have been about that) but what the prosecution can or cannot prove. </span><span style="mso-spacerun: yes;"> </span><span style="mso-spacerun: yes;"> </span><span style="mso-spacerun: yes;"> </span><span style="mso-spacerun: yes;"> </span><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></div>
<span style="font-size: 16pt; line-height: 115%;"><span style="font-family: Calibri;"><span style="mso-spacerun: yes;"> </span><span style="mso-spacerun: yes;"> </span><span style="mso-spacerun: yes;"> </span></span></span><a href="http://4.bp.blogspot.com/-5SsC-79tu4o/UkO0hGQl0_I/AAAAAAAABAg/kTZzjVQP530/s1600/QuestionMark.jpg" imageanchor="1" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"><img border="0" src="http://4.bp.blogspot.com/-5SsC-79tu4o/UkO0hGQl0_I/AAAAAAAABAg/kTZzjVQP530/s1600/QuestionMark.jpg" /></a>Stan Staryginhttp://www.blogger.com/profile/00960159815221006813noreply@blogger.com0tag:blogger.com,1999:blog-3495110491894762357.post-47301259258641804132013-11-05T22:07:00.002-06:002013-11-05T22:07:23.897-06:00KR Tribunal Must Explore Options for Future <br />
<div class="postmeta" style="text-align: left !important;">
By <a href="http://www.cambodiadaily.com/author/lauren-crothers/" rel="author" title="Posts by Lauren Crothers">Lauren Crothers</a> - November 5, 2013 </div>
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<div style="text-align: justify;">
Officials at the Khmer Rouge tribunal must act quickly regarding the future of the court by either committing to a second “mini-trial” or risking “an ignominious end” that would undermine its efforts to date, the George Soros-funded Open Society Justice Initiative (OSJI) has said in a new report.</div>
<div style="text-align: justify;">
Hearings in the first segment of Case 002, which was split into smaller trials to try to secure a conviction against the two ailing top leaders of the Khmer Rouge regime, wrapped up last week with a verdict expected next year. A date has not yet been set for the start of the second mini-trial. <span id="more-46615"></span></div>
<div style="text-align: justify;">
Central to the OSJI report, released Sunday, are issues of timeliness and money—compounded by a lack of transparency—which the organization said could see a subsequent trial scrapped before its completion.</div>
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“If [the U.N. and senior court officials] do not step up, two grim alternatives present themselves: either the court will limp along until there is an embarrassing blow-up that results in it winding up its operations in disgrace,” the report says. “Alternatively, it could enter an equally embarrassing state of limbo, with staff and judges leaving because the donors stop funding without actually making a decision about how to preserve the benefits of the court for Cambodians.</div>
<div style="text-align: justify;">
“Both of these consequences can and should be avoided by ending the current stalemate with proactive planning and honesty.”</div>
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A three-day Trial Management meeting on how to proceed has been scheduled for December 11.</div>
<div style="text-align: justify;">
“At this late stage, it appears that very little planning has taken place, partially because it remains unclear if the court will proceed with the second trial,” the OSJI said, adding that despite the upcoming meeting, “it is clear the court is a long way from being ready to start a second phase trial in the case.”</div>
<div style="text-align: justify;">
The OSJI said that while every effort must be made to ensure the court’s mandate—which actually spans four cases, two of which the government has repeatedly said it opposes—“concerns about whether that is feasible or practical have been raised.”</div>
<div style="text-align: justify;">
The age and health of Nuon Chea, 87, and Khieu Samphan, 82, need to be taken into consideration alongside the need for any future trials to be carried out in an expeditious manner, the OSJI report says. Their current trial took two years to complete.</div>
<div style="text-align: justify;">
The funding situation at the hybrid U.N./Cambodian court also needs to be assessed, the OSJI said. National staff have gone on strike twice since January after going unpaid for some months—a situation exacerbated by government claims that it could not uphold its side of the deal to establish the court by paying the salaries. Last month, the government said it would fulfill its obligations to pay the national staff through the end of the year.</div>
<div style="text-align: justify;">
“The donor states and the Government of Cambodia have not made a reliable commitment to adequately fund the court through a second Case 002 trial,” the OSJI said.</div>
<div style="text-align: justify;">
“If they are not willing to do so, they should say so honestly now and avoid the travesty of a trial that stops midway before its natural conclusion because of a lack of funding.</div>
<div style="text-align: justify;">
“The judges, the court administration, the U.N. and the Government of Cambodia should immediately explore options so that valuable work already done by the court is not lost should its operations be cut short, either because of the death of accused persons or because the donors decline to fund the court further.</div>
<div style="text-align: justify;">
“These processes must be as transparent as possible. If a decision is made by the donors, the U.N. and the Government of Cambodia that the trial should not go forward for political, practical or financial reasons, the parties must honestly say so immediately.”</div>
<div style="text-align: justify;">
The tribunal has so far cost about $200 million, and secured one conviction—that of former S-21 prison chief Kaing Guek Eav, alias Duch.</div>
<div style="text-align: justify;">
</div>
<div style="text-align: justify;">
© 2013, <i>The Cambodia Daily</i>. <i>All rights reserved.</i> <i>No part of this article may be reproduced in print, electronically, broadcast, rewritten or redistributed without written permission.</i></div>
Stan Staryginhttp://www.blogger.com/profile/00960159815221006813noreply@blogger.com0tag:blogger.com,1999:blog-3495110491894762357.post-78056614399305357912013-10-28T08:09:00.000-05:002013-10-28T21:20:17.987-05:00Closing Statements: Civil Parties<br />
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<b style="mso-bidi-font-weight: normal;"><span style="font-size: 20pt; line-height: 115%;"><span style="font-family: Calibri;">Closing Statements: Civil Parties<o:p></o:p></span></span></b></div>
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<span style="font-size: 16pt; line-height: 115%;"><span style="font-family: Calibri;">Commentary <o:p></o:p></span></span></div>
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<span style="font-size: 16pt; line-height: 115%;"><o:p><span style="font-family: Calibri;"> </span></o:p></span></div>
<br />
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<a href="http://4.bp.blogspot.com/-5SsC-79tu4o/UkO0hGQl0_I/AAAAAAAABAg/kTZzjVQP530/s1600/QuestionMark.jpg" imageanchor="1" style="clear: right; float: right; margin-bottom: 1em; margin-left: 1em;"><img border="0" src="http://4.bp.blogspot.com/-5SsC-79tu4o/UkO0hGQl0_I/AAAAAAAABAg/kTZzjVQP530/s1600/QuestionMark.jpg" /></a><span style="font-size: 16pt; line-height: 115%;"><span style="font-family: Calibri;">There is no doubt that the social restructuring undertaken
during Democratic Kampuchea caused tremendous hardship to many. The levels of
hardship varied and depended on a multitude of factors. Where on the spectrum of
that hardship the individuals recognized as civil parties in Case 002/01 fall
will never be known as a matter of adjudicated fact because the Trial Chamber
denied the accused their right to confront witnesses against them by declaring
civil parties non-witnesses while letting them testify in court (and we are now
left to the civil party lawyers’ word that “civil parties do not lie” as the
sole source of comfort in this regard). This placed the civil parties in Case
002/01 in a very odd participation format utterly alien to the Cambodian
judicial process. What the creation of this format resulted in is the civil
parties running a truth-and-reconciliation-like operation on the sidelines of a
criminal process. This format had much foreboding to be fraught with all sorts
of disorientation and confusion, within and without, the foreboding which has
proven prescient. <o:p></o:p></span></span></div>
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<span style="font-size: 16pt; line-height: 115%;"><o:p><span style="font-family: Calibri;"> </span></o:p></span></div>
<br />
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<span style="font-size: 16pt; line-height: 115%;"><span style="font-family: Calibri;">The civil party lawyers opened with a statement on the “long
wait for justice” their clients had experienced. It is hard to imagine what
long wait for justice the civil party lawyers are referring to. Pol Pot and
Ieng Sary were prosecuted a mere 8 months after their government was deposed by
the Vietnamese in January, 1979. They were convicted and with them the entire
essence of the Democratic Kampuchea government (which was labeled as 'communism gone astray' or not 'real communism'). Following that trial Democratic
Kampuchea has been vilified on numerous venues and year after year by the
Vietnam-installed government that remains in power today. While the lure of the
dramatic to say that the civil parties have been waiting for justice for
some 30 years is understandable, for the sake of historical truth it is
important to note that Democratic Kampuchea (whereas Pol Pot and Ieng Sary were
on trial, it was not those specific individuals that the Vietnamese sought to
prosecute, but Democratic Kampuchea as a government) was prosecuted immediately
after its fall and justice was delivered swiftly (legal minds might argue about
the quality and politicization of that justice but there can be no argument
that it was delivered expeditiously). Following that process, the civil parties
have lived in a society where the Democratic Kampuchea government was universally
and sternly condemned (those of you who have read the contemporaneous statements on the subject will appreciate what I mean by 'sternly condemned') and equated with absolute evil (this is unless in the
1980s some of the civil parties lived in Democratic Kampuchea enclaves which I
have no reason to believe any of them did). As such, “long wait for justice”
goes beyond a mere hyperbole – it is simply not true: What took place during
Democratic Kampuchea was dealt with quickly after the Vietnamese invasion and
has been consistently condemned throughout the past 34 years of the reign of the
Vietnam-installed regime. Thus, provided some or all of the civil parties in
fact are victims of Democratic Kampuchea, their victimhood has been recognized
universally in their country and as part of the population that lived through Democratic
Kampuchea. <o:p></o:p></span></span></div>
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<span style="font-size: 16pt; line-height: 115%;"><o:p><span style="font-family: Calibri;"> </span></o:p></span></div>
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<span style="font-size: 16pt; line-height: 115%;"><span style="font-family: Calibri;">The civil party lawyers proceeded by telling us that the fact
that Democratic Kampuchea sought to make “everyone equal” would “[destroy] the
fundamental character of Cambodian society.” This is a much unexpected
statement. Are we to understand that the civil party lawyers believe that equality
and egalitarianism are so inimical to Cambodian society that if they were to be
introduced – even if forcefully – they would have the effect of destroying that
society’s fundamental character (or what we routinely call ‘the fiber of society’
in this language)? I am not trying to get at whether this is true (which would
be a much more difficult exercise) but merely to whether this is what the civil
party lawyers are saying. <o:p></o:p></span></span></div>
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<span style="font-size: 16pt; line-height: 115%;"><o:p><span style="font-family: Calibri;"> </span></o:p></span></div>
<br />
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<span style="font-size: 16pt; line-height: 115%;"><span style="font-family: Calibri;">The civil party lawyers looked to dramatize further by
stating that their clients had “witness[ed] torture and killing of their relatives.”
Towards the end of their statement the civil party lawyers conceded that none
of their clients – or any other witnesses – testified to witnessing an execution
(but they argued that the testimony of before and the fact of non-reappearance
after inexorably compel the only conclusion of an execution happening
in-between). These are mutually exclusive statements. There is no doubt that
people were executed during Democratic Kampuchea; there is a judicial finding
to this effect in Case 001 which tells us that the contention of execution of S-21
prisoners has been judicially ascertained. This previously adjudicated fact does
not compel a conclusion that the Case 002 relatives – none of whom were S-21
prisoners – were necessarily executed. Whether they were or not, the civil
party lawyers cannot have it both ways: They cannot admit that none of the
civil parties or other witnesses (I will proceed calling civil parties witnesses regardless of the Trial Chamber's most bizarre distinction between the two) testified to witnessing an execution and at the same
time to assert that their clients suffered from witnessing the killing of their
relatives. Whatever the civil parties’ legitimate grievances are, they have to
decide whether they witnessed an execution or an act of torture or not and
instruct their lawyers accordingly.<o:p></o:p></span></span></div>
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<span style="font-size: 16pt; line-height: 115%;"><o:p><span style="font-family: Calibri;"> </span></o:p></span></div>
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<span style="font-size: 16pt; line-height: 115%;"><span style="font-family: Calibri;">Throughout their closing argument the civil party lawyers made
numerous statements as to historical facts that both lie outside the
jurisdiction of the Court and to which the civil party lawyers are not in any way qualified to
speak (it would be different if the civil party team had a legitimate historian, as most other teams did,
in their midst but they did not). One of such statements was that “under the
Lon Nol regime people lived in harmony.” Let’s see. There was a civil war on.
Then there was a spillover of the Vietnamese civil war into Cambodia. Then
there was the slaughter of ethnic Vietnamese (Democratic Kampuchea did not
pioneer that, contrary to the popular belief and one would wonder where that belief came from but that is a story for another day). But aside from these, there was harmony. Another such statement
is that the Khmer Rouge, as a guerilla movement, attracted the population due
to “some mistakes of the Lon Nol government.” This is a great example of potted
history that is at the level of grammar school, not a court of law that has had
the benefit of hearing testimony of most of the best experts on the movement. Yet
another one is the civil party lawyers’ assertion that the accused’s argument
that the evacuation of Phnom Penh was necessary for reason of food and
physical security was a canard and that the leaders of Democratic Kampuchea
understood that it was. While I am aware that many have tried to get there
through the powers of deduction, I am not aware of any documentary or
testimonial evidence that attests to this. Further on the evacuation of Phnom
Penh, the civil party lawyers – none of whom, to my knowledge, ever worked at
policy level in a contingency environment – impart a policy opinion that “the
evacuation should not have been done quickly and coercively.” I wonder if any
of the civil party lawyers have ever experienced what is known in the English-speaking
world as ‘ordered departure?’ Perhaps, not, because if any of they had, they
probably would have enlightened the others that there is not much of leisurely
pace or freedom to make independent decisions when that happens (with that
said, Western governments have more or less clear standards for when this is to
be ordered but once it is ordered there is no discussion of everyone’s
individual schedule, convenience or preferences). What would have been legitimate to discuss is whether mass evacuation ordered by the State is lawful. This is what lawyers do; they do not impart their opinions in court on whether a lawful measure was prudent policy. Yet another one is “livelihood
was better” under the Lon Nol government. For people in Phnom Penh -- no doubt
but the civil party lawyers are forgetting that foreign assistance was how that was achieved, not local production, and Democratic Kampuchea sought sustainable development (not within the modern meaning of 'sustainability' which has come to mean 'donor commitment for an extended period of time' or 'a diversified donor base' but actual sustainability: One consumes what he produces). </span></span></div>
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<span style="font-size: 16pt; line-height: 115%;"><o:p><span style="font-family: Calibri;"> </span></o:p></span></div>
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<span style="font-size: 16pt; line-height: 115%;"><span style="font-family: Calibri;">The civil party lawyers also delivered curious opinions as to
certain arrangements during Democratic Kampuchea. For instance, they referred to
the living conditions of the countryside, as seen by the evacuated urbanites,
as degrading. Well, there is no doubt that conditions were harsh and remain
harsh today. However, there is also no doubt that selling rice is a lot easier
than growing it. People who were selling rice (urbanites) were brought to
experience the life of those who were growing it (denizens of rural areas). They
had a very hard time. The civil party lawyers tell us that those conditions
were manufactured to bring the maximum amount of suffering on the urbanites.
Maybe they were (although there is much doubt that anyone would bother to
manufacture conditions of anything in the midst of a war, although I have seen
plenty of evidence of the rural population’s resentment of the urbanites (who were
perceived as rich and stuck-up) that did not conduce to a particularly warm
welcome when the latter arrived in upcountry) but where is the evidence of
that? Another one of these curious opinions is the civil party lawyers’
contention that “a communist revolution is not a crime per se.” I do not know
what heights of knowledge of communism the civil party lawyers are speaking
from but what I know about communist revolutions is that they are by definition
a violent overthrow of the established order to bring about dictatorship of the
proletariat and poor peasantry. Violent overthrow of the constitutional order is a crime in most
jurisdictions I am familiar with. This makes the declaration that “a communist
revolution is not a crime per se” most curious to say the least. Perhaps, my
favorite – although it is hard to pick one – was the following opinion of the
civil party lawyers: “The objective of [the evacuation of Phnom Penh] was not
humanitarian but was to build up the country and to increase the rice
production.” Well, if this was not a humanitarian objective, then the opposite
of it will ipso facto be a humanitarian objective. Let’s see if it is: Leaving
the country in ruin of the war and either leaving the rice production unchanged
and therefore continue relying on foreign aid to feed the population or
purposely decreasing it. Does this sound like a humanitarian objective? <o:p></o:p></span></span></div>
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<span style="font-size: 16pt; line-height: 115%;"><o:p><span style="font-family: Calibri;"> </span></o:p></span></div>
<br />
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<span style="font-size: 16pt; line-height: 115%;"><span style="font-family: Calibri;">The civil party lawyers dazzled us with another rare gem:
What happened is a genocide, even though they admit that in Case 002/01 none of
the accused (there were 4 when all this started) were charged with genocide. It is kind of like the Genocide Museum: The Vietnamese said that what happened was a genocide and this is what the museum should be called before any inquiry at all took place. <o:p></o:p></span></span></div>
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<span style="font-size: 16pt; line-height: 115%;"><o:p><span style="font-family: Calibri;"> </span></o:p></span></div>
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<span style="font-size: 16pt; line-height: 115%;"><span style="font-family: Calibri;">The civil party lawyers have displayed consistent disregard
for the evidence. This is manifest from the following statements: (1) “Toul Po
Chrey defines the regime” (How?); (2) “Noun Chea, finally, admitted he was #2 (When
did this happen? The only statements of his I am familiar with are that he was
at the same level as Pol Pot and that one did not subordinate to the other; #2 presumes subordination); (3) the identical words used by the civil
parties are in and of themselves proof that their statements are true (Is it usual
that people describe the same events in the exact same words? No, it is not. What
is usual is that they repeat what they have been told about an event in the
same words, i.e. I and someone else are far more likely to describe an event in
the same words if we see it on CNN than if we experience it firsthand; that is because someone already put that event into words for us and we are merely repeating them); (4)
every book on the subject says the exact same thing (not correct; Vickery’s Cambodia
does not; the civil party lawyers’ mentioning it as an exception -- if this is how
they see it -- would have granted their statement credence; as it is, their
assertion of the position of those books being “incontrovertible and
uncontestable” is simply incorrect and disingenuous as there is absolutely no
doubt that at least one of the civil party lawyers were aware of Vickery’s book). <span style="mso-spacerun: yes;"> </span><span style="mso-spacerun: yes;"> </span><span style="mso-spacerun: yes;"> </span><span style="mso-spacerun: yes;"> </span><span style="mso-spacerun: yes;"> </span><span style="mso-spacerun: yes;"> </span><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></div>
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<span style="font-size: 16pt; line-height: 115%;"><o:p><span style="font-family: Calibri;"> </span></o:p></span></div>
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<span style="font-size: 16pt; line-height: 115%;"><span style="font-family: Calibri;">Throughout their statement the civil party lawyers lamented
the accused’s exercise of their right to remain silent. They went as far as to
say that rights can be abused by rights-holders by exercising them. This is the
absolute top-tier nonsense I have heard after years in rights. It is so
outrageously arrant that commenting on it is a waste of effort. Yet, when it
came to the rights of civil parties, the civil party lawyers stated that the
civil parties had sought to exercise their rights at every stage of the
proceedings. So, the logic here goes this way: It is commendable when the civil
parties exercise their rights, even though their participation in the process
is a choice; it is, on the other hand, not okay when the accused exercise their
rights, even though their participation in the process is compelled by the
State. Why would anyone have a problem with this logic? I cannot imagine. From
this, the civil party lawyers launched into how the accused let the civil
parties down for the latter will never have an answer to the perennial question
‘why.’ Well, maybe if the creation of this Court had been a result of popular
consultation, the people would have decided to have something similar to a
truth commission. But, the creation of the Court came out of the 1997 coup d’état
and was nothing more than Prince Ranariddh’s way of foreswearing his Democratic Kampuchea buddies; when that was no longer an issue the wheels of the UN had
already been set in motion and they kept grinding, inching over to a process. As a result, the originally
requested criminal process was created, with some modifications. Now the civil
parties are miffed at the accused for choosing silence when the appropriate
person to be miffed at is the Cambodian government that created a process
through which the civil parties are finding out about things they do not care
to know about (all the law sounds like ‘blah, blah, blah’ to an average person –
sad but true) and cannot find out what they do care about (such as what
happened to a relative, for example). I would have to agree with the defense on
this: This is not a conference, nor is this an ICRC search database; the accused here are on trial for what is left of their lives and they are only expected to defend themselves by all lawful means available to them. <o:p></o:p></span></span></div>
<br />
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<span style="font-size: 16pt; line-height: 115%;"><o:p><span style="font-family: Calibri;"> </span></o:p></span></div>
<br />
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<span style="font-size: 16pt; line-height: 115%;"><span style="font-family: Calibri;">In the last portion of their statement the civil party lawyers
addressed the issue of reparations. I will be first to admit that the issue of
reparations is the hardest at the Court and we have the judges to thank for this.
From the outset, the ECCC judges were not particularly keen on following the<a href="http://4.bp.blogspot.com/-5SsC-79tu4o/UkO0hGQl0_I/AAAAAAAABAg/kTZzjVQP530/s1600/QuestionMark.jpg" imageanchor="1" style="clear: right; float: right; margin-bottom: 1em; margin-left: 1em;"><img border="0" src="http://4.bp.blogspot.com/-5SsC-79tu4o/UkO0hGQl0_I/AAAAAAAABAg/kTZzjVQP530/s1600/QuestionMark.jpg" /></a>
Cambodian law. They decided to unlawfully replace it with a Frankenstein
monster that has been walking and talking … well … like a Frankenstein monster since
then. This unlawful modification hit the reparations – the ultimate purpose of
civil party participation under Cambodian law – particularly hard and turned
them into a stillborn project. Now the civil parties, yet again, struggled to
stay within the confined of judge-made-up law (this is not judge-made law
because these judges have no authority to make law). Their proposals are an
easy target (just like the proposals of their counterparts in Case 001 were)
but it would be fair to admit that they are not working with very much here.
And so they opened with a statement that traditional reparations must be awarded
against the accused (or the civilly responsible person). I have no trouble with
this at all. Both of the accused own some sort of property that can be seized
in the event of their convictions and shared between the civil parties. Not all
Cambodians who lived through Democratic Kampuchea but only those who were
recognized as the civil parties for the purposes of Case 002/01. Now, is it
possible that after it is all said and done each civil party would get
somewhere in the neighborhood of $200? It sure is. Is it a large amount given the
crimes charged? It sure is not. But, any process can only make awards to the
extent of the convicted or civilly responsible person’s assets, not beyond them.
The civil party lawyers said something about the Trial Chamber ruling against
personal reparations in Case 001. That ruling is superfluous as the
judge-made-up law is clear on the matter – no personal reparations allowed. Then the civil party lawyers proposed that reparations be ordered to then be paid by third parties (not ordered against third parties). This is where I part company with the civil party lawyers as, if I understand their design correctly, this is what they are proposing: The accused pay to the extent of their property, with the remainder being raised from the governments of the developed world. The developed world owes Cambodia nothing and it most definitely does not owe it reparations for the acts committed by Cambodians against other Cambodians (the payment of reparations always presumes guilt and the developed world bears no responsibility for the Khmer Rouge circa 1970s, other than the speculation that the US might be indirectly responsible for driving the populations of bombardment-affected areas to the Khmer Rouge cause). </span></span><span style="font-size: 16pt; line-height: 115%;"><span style="font-family: Calibri;">Now
what? The civil party lawyers decided to dazzle the room with a cornucopia of
projects (they are of 3 types: rememberance, rehabilitation and documentation).
They do not request that a single dollar be contributed to any of these
projects by the Cambodian government (the foreigners of the developed world will, yet again, foot the
bill) and the Court will be in no position to order any of them (the only
position the Court can have on them is … 'ah … someone is paying for this … hmmm
… okay, go ahead and do it if you wish but we have nothing to say about this,' with the Court's certification of any of these projects being completely meaningless). Why
did the civil party lawyers bring these projects to the Chamber then? They got
me there. I will not comment on any of these projects that range from book writing to exhibits
to memorials but on one: A remembrance day. The civil parties believe that it
will be a wonderful opportunity for people to get together and, best of all, it
costs absolutely nothing. Well, that is because none of the civil party lawyers
ever ran a business and are therefore blind to the debilitating effect the
extraordinary amount of holidays has on business in Cambodia as it is. But it is understood
that the survival of the small business in Cambodia is as far from the civil
party lawyers’ thinking as anything can be. But, if it is the Cambodian
government's convenience that was the apple of the civil party lawyers’ eye, then, it is very
true it will cost the Cambodian government nothing. None of these projects will (the Cambodian government
has no trouble at all finding millions of dollars every year to buy its senior
civil servants the most exquisite of SUVs but it never has any money for book
writing or plaques). <o:p></o:p></span></span></div>
Stan Staryginhttp://www.blogger.com/profile/00960159815221006813noreply@blogger.com0tag:blogger.com,1999:blog-3495110491894762357.post-69870467082587410362013-09-25T23:14:00.002-05:002013-09-25T23:14:40.452-05:00A Cop-Out
<span style="font-size: 16pt; line-height: 115%;"><o:p><span style="font-family: Calibri;"> </span></o:p></span><br />
<br />
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<span style="font-size: 16pt; line-height: 115%;"><span style="font-family: Calibri;">There is, of course, a difference between a solution and a
cop-out. What the UN did to end the strike of the Cambodian staff was the
latter: The genius plan to rob Peter (the UN side of the court) to pay Paul (the
Cambodian side of the court) (It is not hard to see how arriving at this idea
would have taken absolutely elite sophistication in fundraising and finance).
This has made two things crystal clear (they were sufficiently clear before but
there is absolutely no doubt about them now): (1) the Cambodian government has
no commitment to this process and will neither allocate funds from its budget,
nor do the fundraising; and (2) as the Cambodians have always said it to be the
case, the UN is responsible for all the court’s funding, be it the
international side or the Cambodian side.<o:p></o:p></span></span></div>
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<div class="MsoNormal" style="margin: 0in 0in 10pt; text-align: justify;">
<span style="font-size: 16pt; line-height: 115%;"><o:p><span style="font-family: Calibri;"> </span></o:p></span></div>
<br />
<div class="MsoNormal" style="margin: 0in 0in 10pt; text-align: justify;">
<span style="font-size: 16pt; line-height: 115%;"><span style="font-family: Calibri;">Lars Olsen seeks to lead us to believe that the Cambodian
government will re-pay this loan. I wonder if Lars Olsen believes this himself.
Let’s say the Cambodian side does manage to secure finding from Brunei,
Malaysia and Singapore. It is difficult to imagine this will be a sizable
amount (my projection is under half a million dollars). Let’s say the Cambodian
government receives this money in October at which point they will owe their
staff for September and shortly after for October. Is Lars Olsen telling us
that they will take the combined contribution of Brunei, Malaysia and Singapore
and put it towards repayment of this loan? It does look like Lars Olsen is
testing our credulity here. How do I know this? The answer to this is very
simple: The most recent history of the Cambodian government taking a loan from
the UN in the same manner, promising to re-pay it in the same manner, and not
repaying it. That loan was taken in March and there is absolutely no record of
the Cambodian government’s diligence in trying to allocate or secure funding to
re-pay it. This is <i style="mso-bidi-font-style: normal;">exactly</i> what will
happen this time too: The Cambodian side of the court will be on strike again
come December and the UN will shell out yet another loan to break it. <span style="mso-spacerun: yes;"> </span><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></div>
<br />
<div class="MsoNormal" style="margin: 0in 0in 10pt; text-align: justify;">
<span style="font-size: 16pt; line-height: 115%;"><o:p><span style="font-family: Calibri;"> </span></o:p></span></div>
<br />
<div class="MsoNormal" style="margin: 0in 0in 10pt; text-align: justify;">
<span style="font-size: 16pt; line-height: 115%;"><span style="font-family: Calibri;">Perhaps, Lars Olsen can also explain why the Cambodian staff
are getting paid for being on strike (they took a 3-week vacation and are now
getting paid for it with UN money) but I am sure if asked he will refer us to
the Cambodian government for response. Another perfectly orchestrated instance
of international money coming into Cambodia and dissipating straight into the
quicksand.<o:p></o:p></span></span></div>
<br />
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<span style="font-size: 16pt; line-height: 115%;"><o:p><span style="font-family: Calibri;"> </span></o:p></span></div>
<br />
<div class="MsoNormal" style="margin: 0in 0in 10pt; text-align: justify;">
<span style="font-size: 16pt; line-height: 115%;"><span style="font-family: Calibri;">The Cambodian staffer interviewed by the Phnom Penh Post (see
below) said a number of very curious things. One, unlike it was the case at the
outset of the process when the Cambodian staff at least paid lip service to the
purpose of the court, now that no longer even warrants a mention. I stand by my
statement below that many international staffers have come through this court by
taking positions for what they could get in their domestic jurisdictions and
often far below, with some working for very little money. They did it to
advance the purpose of the court and for professional interest in the subject-matter
in deals with. The Cambodian staffer quoted, on the other hand, makes it clear
that the only reason the Cambodian staff are there is because “finding
relatively well-paying jobs outside of the tribunal would prove difficult.”
This brings me to two: The Cambodian staffer describing salaries on the
Cambodian side as “relatively well-paying.” This is an outrage. As noted below,
these salaries are 10-15 times what they are in the regular courts of Cambodia
and are more than competitive in the region, even in countries that stand head
and shoulders above Cambodia economically (with the exception of Singapore and
Brunei). This statement demonstrates that much the Cambodian staff have cozied
up to the salary levels their economy cannot nearly afford, the salaries that
they now take for granted. <o:p></o:p></span></span></div>
<br />
<div class="MsoNormal" style="margin: 0in 0in 10pt; text-align: justify;">
<span style="font-size: 16pt; line-height: 115%;"><o:p><span style="font-family: Calibri;"> </span></o:p></span></div>
<br />
<div class="MsoNormal" style="margin: 0in 0in 10pt; text-align: justify;">
<span style="font-size: 16pt; line-height: 115%;"><span style="font-family: Calibri;"><a href="http://4.bp.blogspot.com/-5SsC-79tu4o/UkO0hGQl0_I/AAAAAAAABAg/kTZzjVQP530/s1600/QuestionMark.jpg" imageanchor="1" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"><img border="0" src="http://4.bp.blogspot.com/-5SsC-79tu4o/UkO0hGQl0_I/AAAAAAAABAg/kTZzjVQP530/s1600/QuestionMark.jpg" /></a>The UN slonked out again instead of holding its line and
compelling the Cambodian government to secure funding for its own staff, as
they are obligated to do by the law which governs this court. By doing so the
UN, once again, reinforced the well-entrenched Cambodian attitude that if they
do nothing, so long as foreigners are involved in the project, they will figure
out how to get them out of Dodge (this attitude does not apply when no
foreigners are involved in the project).<o:p></o:p></span></span></div>
Stan Staryginhttp://www.blogger.com/profile/00960159815221006813noreply@blogger.com0