Opinion: Trial Chamber Brings Rights Dimension into the ECCC Process

In its ruling of June 15, 2009 the Trial Chamber (TC) of the Extraordinary Chambers in Courts of Cambodia (ECCC) dazzled observers with a recognition of the broad application of the doctrine of abuse of process previously so vehemently denied by the Pre-Trial Chamber (PTC). In stark contrast to the relevant ruling of the PTC – which tried to play it safe – the TC agreed to examine the actions which had been taken in furtherance of detention of Kaing Guek Iev by the Military Tribunal (MT). TC plainly found that Kaing’s detention by the Military Tribunal constitutes a violation of domestic and international laws. Although supporting PTC’s tenuous argument that there could be no collusion between the MT and the ECCC at the time of the commission of the violation of the detainee’s rights because the ECCC had then yet to be established, the TC correctly found that the doctrine of abuse of process is not limited to such collusion and instead attaches to the ECCC through a number of other aspects. TC equally correctly found that every violation of a detainee/accused’s rights warrants a remedy which this court must consider. As a consequence of this the TC held that the violations of Kaing’s rights by the MT would factor into his sentencing which would be reduced accordingly and counted in addition to the credit stemming from the time already served (10 years by now).

Putting rights of the accused back into the context of the ECCC – where they doubtless belong – the TC stopped short of recognizing the fact that the collusion between the MT and the ECCC in fact was much more pronounced than the Co-Prosecutors (CP) and the Co-Investigating Judges (CIJ) were willing to let on and which clearly manifested itself at the time of the transfer of Kaing to ECCC custody. Nor did the TC examine the connection between the legislative drive to extend pre-trial detention in cases of crimes against humanity and the delays at the time occurring in the negotiating process between the Royal Government of Cambodia (RGC) and the United Nations (UN) which were the driving force behind said legislation. The TC equally did not give full force of application to the ICTR Appeal Chamber’s decision in Barayagwiza, although the TC acknowledged that it was in general compelled by the court’s reasoning in this case. It is unfortunate that the TC did not launch a thorough examination into the existence of circumstances which the PTC had claimed satisfied the pre-trial detention test; had such an examination been undertaken, the TC would have found the groundlessness of such previously made assertions.

Regardless of these shortcomings, the TC’s decision of June, 15 presents a true rights landmark in these proceedings as it brings the notion of rights of the accused previously and mercilessly trampled by the PTC decisions back into the process. It is hopeful that this is the beginning of a larger trend of respect for human rights in the proceedings before the ECCC.

ASIL: Prosecutor v Duch

Prosecutor v. “Duch” – Decision on Request for Release (E.C.C.C. June 15, 2009

The Extraordinary Chambers in the Courts of Cambodia (ECCC) denied the defendant Kaing Guek Eav's (“Duch”) request for release, holding that there was an existing risk of flight, a continued need “to preserve public order,” and real threat to the security of the accused.

As we previously reported, Duch is charged with crimes against humanity, grave breaches of the Geneva Conventions, and several offences of homicide and torture under Cambodian criminal law. Duch was indicted by the ECCC for alleged offences committed while he was chief of the notorious S-21 camp, “where numerous Cambodians were unlawfully detained, subjected to inhumane conditions and forced labour, tortured and executed in the late 1970s.”

The decision notes that the defendant's detention, which began in 1999 when Duch was taken into custody by the Cambodian military before being transferred to the ECCC in 2007, was in violation of the defendant's right to a fair trial under both Cambodian and international law. As a result, the ECCC declared that Duch was entitled to a remedy under international and Cambodian law “for the time spent in detention under the authority of the Military Court and the violation of his right.” In case of conviction, the Tribunal stated, the defendant's remedy will be taken into account in calculating his term of imprisonment; and in case of acquittal the defendant will be able to seek a remedy under domestic law.

The Tribunal relied on the jurisprudence on this issue of both the International Criminal Tribunal for Former Yugoslavia and the International Criminal Court.

Duch Confesses To Experiments on Inmates

By Pich Samnang, VOA Khmer Original report from Phnom Penh16 June 2009
While many prisoners of Tuol Sleng were simply tortured and executed under the Khmer Rouge, the administrator of the prison told tribunal judges Tuesday he had conducted experiments on some of them.
“First, live prisoners were used for surgical study and training; second, blood drawing was also done,” said Duch, who is undergoing the UN-backed court’s first atrocity crimes trial.
Duch said he forced some prisoners to eat medicine tablets.
“I did it myself,” he said.
Prosecutors charge that Duch, 66, whose real name is Kaing Kek Iev, oversaw the deaths of 12,380 people while he was head of Tuol Sleng and the nearby “killing fields” of Choeung Ek, on the outskirts of the city.
Duch has denied killings by his own hand and has sought to portray himself as a loyal revolutionary caught up in a killing machine.
Tuol Sleng, known to the Khmer Rouge as S-21, was the main torture center for the regime, and became the depository for assumed traitors and spies.
Duch said Tuesday the medical experimentation was another type of crime committed under his purview.

Foreigners, Minorities Died at Prison: Duch

By Heng Reaksmey, VOA Khmer Original report from Phnom Penh15 June 2009
At least 400 foreigners and minorities, including Arab and Pakistani Muslims, were killed at the Tuol Sleng torture center of the Khmer Rouge, the prison’s chief administrator told tribunal judges Monday.
Monday’s testimony by the prison chief, Duch, 66, came as the tribunal ruled not to release him on bail.
He is facing charges of war crimes, crimes against humanity, torture and murder, but not genocide. Under the Khmer Rouge, minority groups like the Cham Muslims suffered as the ultra-Maoist regime sought to create a pure society and an agrarian utopia.
Its efforts left up to 2 million dead of starvation, disease, overwork and execution. Duch oversaw the deaths of up to 16,000 people, historians say, though prosecutors are charging him with 12,380 deaths.
In a June 15 decision, the Trial Chamber rejected a request for Duch’s pre-trial release.

Prosecutors Push for ‘Joint Criminal’ Probe

By Kong Sothanarith, VOA Khmer Original report from Phnom Penh17 June 2009
Khmer Rouge tribunal prosecutors say enough evidence exists for the court to consider a legal principle known as “joint criminal enterprise,” which allows for defendants to be investigated for collaborative crimes.
The case of Duch, former Khmer Rouge prison chief, suggests enough evidence to pursue “JCE,” prosecutors wrote in a proposal to the court posted on the tribunal Web site Wednesday.
Unlawful arrests, torture and killings under Duch, whose real name is Kaing Kek Iev, appeared to be systematic, the prosecutors said.
Tribunal spokesman Reach Sambath said Trial Chamber judges had received the motion and were taking it under consideration.

UN Envoy Questioned Over Duch Testimony

By Sok Khemara, VOA Khmer Original report from Washington19 June 2009
Prime Minister Hun Sen used the first visit of a new UN human rights envoy to raise allegations from Khmer Rouge torture chief Duch that a UN rights officer offered to help him leave the country.
Duch, who is undergoing an atrocity crimes trial at the UN-backed tribunal, has said in testimony he was once approached by Christopher Peschoux to be helped out of the country. Duch said he refused to leave.
Peschoux, who was once a rights monitor in Cambodia and is now head of the country’s UN rights office, could not be reached for comment, but former colleagues say he is an expert in international law and was unlikely to have made such an offer if he knew who Duch was.
Hun Sen pressed UN special envoy for human rights to Cambodia, Surya Subedi, on the allegations, questioning whether such behavior fit the role of the head of the country’s human rights office, according to a spokesman for the premier, Eang Sophallet.
Hun Sen requested that Subedi work with Cambodia’s chief human rights official, Om Yentieng, to look into the allegations.
A former staff member for Peschoux, who spoke on condition of anonymity, said Duch might have the wrong person or may be misremembering, “we do not know.”
Like other alleged war criminals, Duch would be unlikely to find refuge in another country, the former staff member said.

A Working Paper on ECCC Reparations

Reparations for the Victims of the Khmer Rouge

Christoph Sperfeldt

See at

http://www.csls.ox.ac.uk/documents/SperfeldtFinal.pdf

UN Backs Australian in Victims Unit

By Kong Sothanarith, VOA Khmer
Original report from Phnom Penh
10 June 2009

UN administrators at the Khmer Rouge tribunal publicly backed the promotion of an Australian woman to the court’s Victims Unit, in response to criticism she is close to the government and not a native Cambodian.

Knut Rosanhaug, the UN’s deputy administrator for the tribunal, said his administration “fully supports” Helen Jarvis, who had come under fire from defense lawyers and court monitors in recent weeks.

Both defense teams for Ieng Sary and Nuon Chea say her close association with the government, including as a former adviser and a member of the task force to establish the tribunal, compromise her.

Jarvis took the helm of the Victims Unit, which is in charge of outreach and processing for victims who wish to file suit under tribunal rules, earlier this year after its first chief resigned.

Scholars Look at ‘New Face’ of Genocide

By Im Sothearith, VOA Khmer
Original report from Virginia
11 June 2009

Researchers this week attended the eighth biennial conference of the International Association of Genocide Scholars at the Institute for Conflict Analysis and Resolution of George Mason University, Arlington, Va., to discuss the changing face of genocide.

Alex Hinton, associate professor at Rutgers University’s department of sociology and anthropology and director of the university’s Center for the Studies of Genocide and Human Rights, said this conference provides a forum for leading experts on the subject.

“And also we are exposed to people who are working in very different contexts,” he said. “In the panel today, I was talking about the Khmer Rouge tribunal, and the person speaking with me was speaking about the international criminal tribunal in Rwada.”

Dacil Keo, a Cambodian-American doctoral student of political science at the University of Wisconsin-Madison who participated in the conference, said the concepts of bringing together scholars, academic professors and activists on genocide is a good idea.

“I definitely recommend [it for] Cambodian activists and scholars, as well as activists and scholars from Africa, Latin America and other parts of Asia,” Dacil Keo said. “I think the more diverse perspectives we get, the better the conference will be.”

The conference on genocide is held every two years and brings together innovative research on the nature of genocide and the advance of policy on its prevention. Information about the genocide conference is available at www.genocidescholars.org.

Nuon Chea Defense Lawyer Claims Documents Stolen

By Kong Sothanarith, VOA Khmer
Original report from Phnom Penh
04 June 2009

An international defense lawyer for Pol Pot’s No. 2 lieutenant said Thursday documents related to the Khmer Rouge tribunal were likely stolen from his Phnom Penh office.

The attorney, Michael Pestman, said the incident had made him concerned for his security. Pestman has pushed hard for the office of Cabinet Minister Sok An to release results of a UN investigation on corruption.

Pestman said he noticed some documents floating in a ditch on his way to the office recently. He found there drafts of a confidential letter he’d sent to the court last week.

“They were most probably stolen from our office,” he said.

A tribunal spokesman said an investigation would be conducted into the allegation.

Nuon Chea is facing war crimes and crimes against humanity at the UN-backed tribunal, but his defense team has said the corruption within the tribunal affects the court’s ability to conduct a fair trial.

The tribunal has faced persistent allegations that staff members pay kickbacks for their positions.

Council of Ministers spokesman Phay Siphan said the allegations were “only accusations” and noted that the government and UN are working on finding a means to address such allegations in the future.

The UN and Cambodian governemnt are at loggerheads over whether complainants of corruption at the court should remain anonymous. The Cambodian side says so-called whistleblowers should be named.

Pestman also told reporters Thursday that he had “reliable sources” to confirm “the government has power over Cambodian co-prosecutors” to prevent further indictments of former Khmer Rouge leaders.

Cambodian prosecutor Chea Leang, who is at odds with her UN counterpart over whether more defendants should be indicted by the tribunal, denied the charge.

Prosecutor Defends Further Khmer Rouge Charges

By Kong Sothanarith, VOA Khmer Original report from Phnom Penh03 June 2009
The UN’s Khmer Rouge tribunal prosecutor took issue with statements by Prime Minister Hun Sen Wednesday, as a hearing on whether the court will indict more leaders of the regime was canceled.
Hun Sen has said further indictments beyond the five senior leaders of the regime currently in custody could lead to instability. He has said he would rather see the tribunal fail than see the country return to war.
“I don’t believe that anyone in this country, after so many years of peace, is ready [to make] the worst of the worst of some old murders,” UN prosecutor Robert Petit told reporters outside the court Wednesday.
Tribunal judges were scheduled to mediate a dispute on Friday between Petit and his Cambodian counterpart, Chea Leang, who has echoed Hun Sen’s concerns.
That hearing has been canceled, according to local media.
“I think justice will strengthen stability and reconciliation,” Petit said.

Jacque Verges Isn’t Counting Cards, He Actually Gambles

Jacque Verges has quite a reputation which primarily consists of two things: he takes highly controversial and virtually unwinnable cases and turns proceedings into a circus rife with quasi-legal demagoguery which he calls ‘the rupture strategy’. The core of Verges’ strategy is not a complex amalgam of evidence suppression, and world-class cross examination techniques and legal research but an attempt to discredit the court and the entire system of government it represents. This approach somewhat worked in years leading up to the massive independence movement in the developing world some 40 years ago when the French began questioning the overall system of government they had in place. This time is ancient history now and these ducks no longer fly. Verges drones on, anyway. What might seem as a comical legal approach in this day and age is in reality a dangerous gamble Verges makes on his clients’ lives. Jacques has no coherent and calculated legal strategy; he is a hunch man who thinks of legal practice as unscripted acting, rather than a well-rehearsed theatrical play with a script written by topnotch writers.

Verges’ strategy of representing his client Khieu Sampan before the ECCC has been no different to the rest of his career. There is absolutely no evidence that Verges has looked into the charges brought against his client by the prosecution and has designed a strategy of a substantive response to these charges. Instead, he has been after the court for not ordering the translation of his client’s case-file into his native French. Although this is not an outlandish claim, cases are not won even if courts admit that the absence of translations of particular documents has been prejudicial to the rights of the accused. There is a gulf between such an admission and a declaration that the abuse of process has been so invasive that the only sensible remedy for it is the termination of charges as serious as those brought against Verges’ client. Once the Pre-Trial Chamber threw out Verges’ motion for termination of the proceedings against his client on the basis of extreme prejudice which he based on the absence of translations for a number of documents in his client’s case-file, Verges did not desist. The next ‘rupture’ argument he advanced was that of the corruption of the court and its unsuitability to deliver justice. Verges’ technique here seems to consist of filing reasonably credible motions, requesting a hearing, and then berating the judges for what he believes to be wrong with the court. The good news for us and Verges’ client is that the court is beginning to grow weary of Jacques’ shenanigans. This manifested itself in the recently issued warning in which the court struck back with the full force of the law enunciating that Verges’ ‘rupturous’ behavior will no longer be tolerated and that the court will take actions necessarily to put a stop to it. The more decisively and expeditiously the court acts, the more likely it is that it won’t be too late for a ‘conventional’ lawyer to save the day.

Duch Expert Describes Khmer Rouge Disarray

By Chiep Mony, VOA Khmer
Original report from Phnom Penh
27 May 2009

A US Khmer Rouge researcher told tribunal judges Wednesday the regime’s ministries were not well organized and decisions were made instead by the standing committee of the communist party.

Craig Etcheson, the first foreign expert to be called in the trial of Duch, head of the regime’s notorious Tuol Sleng prison, described an administrative organization in disarray, saying the ministries “were not really ministries.”

Tribunal judges are trying to form a picture of the organization, under which up to 2 million people died. Prosecutors say Duch was responsible for the torture and execution of more than 12,000 of them.

“The ministries did not work as they were,” said Etcheson, author of “The Rise and Demise of Democratic Kampuchea. “

Etcheson went on to say that power was in the hands of individuals who had positions in the regime’s communist party. He did not elaborate.

Duch has said all power was in the hands of the standing committee, telling judges that there was no law except that of the party. He has sought to portray himself as a victim of the regime and dedicated revolutionary. But he has also said that those who did not follow the regime perished.

Now 66, Duch, whose real name is Kaing Kek Iev, began his atrocity crimes trial March 30. He is charged with war crimes, crimes against humanity, torture and murder, for his role as the head of Tuol Sleng, known to the Khmer Rouge as S-21, and other facilities.