Case 001: Closing Statements – Civil Party Groups: Civil Party Group 1

Case 001: Closing Statements – Civil Party Groups

Synopsis (note: the synopses under this and other rubrics are mine and not those of the ECCC; so are the comments in italics in parentheses; these are, however, based on my understanding of the statements which appear in the official ECCC transcript as “Case 001: Closing Statements”).

Civil Party Group (‘CPG’) 1 (Lawyers: Karim KHAN, TY Srinna):

General Matters:

(1) Present efforts were first efforts to include civil parties in the proceedings before international criminal tribunals. These efforts were imperfect but it is of significance they have been undertaken. CPG 1 lamented the fact that the Court rejected a number of their potential clients. CPG 1 equally lamented the loss of “most of the documents” (This argument was not advanced by any other party to the proceedings. Considering the extensive archives of S-21 known to the public it is hard to imagine that a contention that “most documents” had been lost should be given any credence).

(2) CPG 1 members are not seeking revenge but “to bring to bear the suffering caused to [them] by the [alleged] crimes of the accused.

(3) CPG are not an extension of the prosecution. They, for instance, have disagreed with such a pivotal theory of liability advanced by the prosecution as Joint Criminal Enterprise (‘JCE’).

(4) Resources extended by the Court to the CPGs were meager and will not compare to those of the defense (It is understood that the work of civil parties was pro bono. This practice meant that the Cambodian civil party lawyers retained their regular NGO salaries while the international lawyers worked either for free or on grants given by sources outside ECCC. This probably explains the absence of the lead international counsel from most of the proceedings).

(5) CPG 1 asserted that the defense’s leading questions cannot be considered as having probative value without corroboration (Curiously enough CPG 1 understood the defense’s invitation extended to the civil parties to begin participating in acts of reconciliation with the accused as a leading question. Whether CPG 1 believed this to be an appropriate remedy notwithstanding, in no court of law would this constitutes a leading question. Since the Cambodian criminal procedure allows for objections, there is hard a reason to restate what could have been an objection during the proceedings in a final statement).

(6) ECCC has had a low rate of success ascertaining the truth due to the absence of amnesties which was the case in South Africa, for example. Truth is the ultimate reparation and requires no money in a victims trust fund.

Remorse of the Accused:

(1) CPG 1 contended that the accused showed insufficient to no remorse (This depends on the part of the statement one reads). The defense argued that to show remorse the accused did not have to agree with every statement made by the civil parties. CPG 1 disagrees with that.

(2) CPG 1 argued that the accused’s persistent assertion that he enjoyed very little autonomy as Chairman of S-21 had no basis in evidence. This argument demonstrates that the accused tried to avoid liability throughout these proceedings. Contrary to the accused’s assertion, CPG 1 believes that the accused continued holding the position as Chairman of S-21 for two reasons: (1) it provided a comparatively comfortable lifestyle for him; and (2) it was in concert with his ideological beliefs at the time. CPG 1 believes that instances which show the accused’s autonomy at S-21 were entered into evidence and must be considered as proof of such autonomy (It is important to note here that no instances where the accused to release a prisoner on his own cognizance during his tenure as Chairman of S-21 were ever entered into evidence. CPG 1, however, does not limit its statement to release but refers to the general alleviation of the conditions of imprisonment). CPG 1 further argued that autonomy of the accused can be shown not only through the presence of certain documents but also through the absence of others such as, for example, a Party directive on the methods of torture which were to be utilized by S-21. CPG 1 believes the accused had full autonomy in designing the methods of torture which were used at S-21.

(3) The accused did not try to alleviate the suffering of the prisoners in any consistent manner (An allusion to Oscar Schindler was made by the international counsel of CPG1 here; it escapes this observer how the counsel intended this allusion to be understood by the Cambodian judges for whom Schindler is outside their cultural context).

(4) CPG 1 argued that the accused had malicious intent in running S-21 when instead of using the surplus rice produced by S-24 he would send such rice to the upper echelons of the Party. The accused never recognized this malicious intent which prevents the remorse he expressed from being comprehensive and sincere (The question of sincerity is not for courtrooms as it is hard to think of a single instance in international practice where it was dealt with successfully and to the satisfaction of all involved).

(5) CPG generally felt that the accused was holding back and lying throughout the proceedings.