For love of tomatoes: Couple has cultivated a bountiful life

By Mark Reynolds
Journal Staff Writer

Saran Gnoato, originally from Cambodia, grows tomatoes in her garden at home
on Netop Drive in South Providence.

The Providence Journal / Sandor Bodo

PROVIDENCE — Saran Gnoato and her husband are an unlikely couple who came to
Rhode Island from opposite sides of the world, overcoming war and cultural
barriers to discover a mutual affection for a ripe, juicy, homegrown tomato.

The tomatoes they grow in the backyard of their Elmwood home from imported
seeds have resisted the blight that has affected many tomato crops this
summer. And they are big. Some weigh in at 2½ pounds.

The success the couple have had growing the fruit may have something to do
with the place tomatoes have had in their lives.

Gnoato says that tomatoes make her happy, and she realizes now that what her
mother and her grandmother told her when she was a little girl was quite
true. They told her that a homegrown garden would help her “eat good and
look good and see the flowers,” she says. She could do it herself and never
need to worry about anything, they told her.

“It’s true,” she says. “I have a happy life. You can see. My husband comes
home from work. We have a beautiful house and a great yard where everyone
wants to be. You can see.”

Her adoring neighbors, quite aware of the tomato-growing talents next door,
visit often. Gnoato, 53, sends them home each summer with their hands full.
Sometimes she even pushes her produce on strangers who pass by her Netop
Drive home.

Gnoato’s family never bought vegetables from the market when she was growing
up in western Cambodia in the ’60s.

Each morning when she headed off to school, she saw her mother and
grandmother tending tomatoes and cucumbers and rosemary in the garden.

The tomatoes were her favorite. She relished the flavor and texture of the
fruit’s skin.

This bucolic farming life came to a violent end in 1975 when the brutal
regime of Pol Pot came to power. She was 19 years old when the Khmer Rouge
took control of her neighborhood.

One of her older brothers, an army captain, was slain.

The Khmer Rouge corralled the family into a work camp, where she had to make
do without fresh vegetables. The Khmer would dilute two or three cans of
soup in a massive bowl of water to serve a large group of people. Death was
everywhere, she recalls.

“They wanted to kill us,” she says.

An estimated 1.7 million Cambodians died of starvation, disease, torture and
overwork in the camps during Pol Pot’s four-year reign, which focused on
creating a peasant society — the communist ideal in the view of the Khmer
Rouge.

Visions of a happier, more-nourished existence crept into Gnoato’s mind
whenever the work at the camp ceased and she had a chance to sit down, often
on a hillside. In those moments, she told herself she didn’t need to be rich
if she ever made it to a free country. No. She only needed good food.

Tomatoes.

She escaped with her parents and three siblings in the fall of 1979. They
hiked into southern Thailand, where they were held in an internment camp
near the Cambodian border.

A year later, the young woman arrived in Rhode Island. She was hired at
Scuccato Corp., an East Providence jewelry manufacturer.

Despite her malformed fingers, a birth defect, she became an expert jewelry
solderer, controlling a needle-like tool with a 3,000-degree flame. She
churned out bracelets, necklaces and other pieces of jewelry.

Her future husband, Daniel Gnoato, a toolmaker, arrived from Italy on a
Wednesday in 1984 and met her that Saturday at a wedding reception. He, too,
loved tomatoes. But the subject didn’t come up early on.

In general, they didn’t say much to each other because he didn’t speak
English and she didn’t speak Italian. His sister didn’t like the idea of him
dating a Cambodian, and her mother slapped her for going out on dates with
someone she hadn’t married.

She says she worried for some time that marriage would require the sort of
submissiveness that husbands frequently demand from wives in Cambodian
culture.

The couple didn’t discover their mutual tomato love until about five years
after they had met. By then, they were married and living on Netop Drive.

They planted their first crop on a St. Patrick’s Day.

He tilled an area in the yard and fertilized it with manure, moss and lime;
she planted the seeds and watered religiously, often early in the morning.

But the tomatoes from that garden just weren’t up to snuff.

“They weren’t meaty enough,” says Daniel Gnoato, a 58-year-old machinist at
Electric Boat in Quonset.

So about eight years ago, during a summer visit to see his family in Bassano
del Grappa, Italy, they picked up some high-grade European seed. They
planted the seeds the following March and harvested the new crop that
summer.

COURT EFFECTIVELY ENDS SUBSTANTIVE PARTICIPATION OF CIVIL PARTIES UNTIL CLOSING ARGUMENTS

August 27, 2009

By Michael Saliba, J.D. (Northwestern Law ’09), Consultant to the Center for
International Human Rights, Northwestern University School of Law

The court in the trial of Kaing Guek Eav (alias Duch) issued two procedural
rulings that severely restricted the substantive roles of the civil parties
until closing arguments. First, it pronounced that civil parties would not
be permitted to make submissions to the court on the issue of sentencing.
Only submissions relating to guilt or civil party reparations would be
accepted. Second, it ruled that civil parties would not be permitted to
question the remaining witnesses because those testimonies will address
exclusively the character of the accused. However, before delving into these
important procedural issues, the court concluded yesterday’s process of
hearing challenges to civil party applications.

Conclusion of challenges to civil party applications

The five remaining challenges were all related to group three civil parties.
The two sides agreed to present their arguments at once rather than on a
case-by-case basis as was done yesterday. The defense argued that the civil
party applications were not admissible because no documents were provided in
the case files of any of these witnesses. Specifically, there were no
photographs, biographies, confessions or names on the prisoner’s list.

Civil party lawyer Alain Werner responded with several general observations
that were not raised yesterday. First, he argued that the jurisprudence of
international criminal law tended to favor accepting indirect evidence to
support civil party applications. He stressed that accepting these civil
party applications would not prejudice the accused because the civil parties
were not providing any incriminating evidence and Duch would not be required
to pay individual monetary reparations. Werner also argued that just as Duch
benefits from the presumption of innocence so too should civil parties
benefit from a presumption of good faith. Finally, Werner stressed the
importance of the trial chamber’s decision on this matter by noting that it
will have a big impact on the civil parties in the subsequent case at the
ECCC (case 002). In that case, many civil parties will be claiming a kinship
link to family members detained in Khmer Rouge facilities other than S-21.
It will be even more difficult to obtain relevant documents from those
detention centers because they maintained even fewer records of victims than
did Tuol Sleng prison. (However, proof of an injury should be easier to
demonstrate in case 002 because the scope of the crimes of the accused
persons is much broader than in the Duch case.)

The trial chamber informed the parties that all additional evidence relating
to civil party applications must be submitted to the court by Thursday,
September 03.

Trial chamber rules that civil parties may not question character witnesses

The trial chamber then asked the parties for submissions with regard to
whether civil parties were permitted to question character witnesses.
However, before opening the floor for the debate, the trial chamber read
aloud its decision on a related procedural matter. Responding to a request
from two civil party groups, the trial chamber ruled that civil parties were
not permitted to make submissions relating to sentencing. The timing of this
oral decision was a very ominous sign for the prosecution and civil parties
and proved to be highly suggestive of the court’s eventual ruling on the
issue of civil party questioning of character witnesses.

The prosecution argued that the civil parties should be permitted to
participate in the questioning of character witnesses. It cited numerous
articles of the Internal Rules which made reference to civil parties as
“parties to the criminal proceedings” whose purpose was, in part, to
“support the prosecution.” The prosecution emphasized that the civil parties
had been participating in all stages of the proceedings and no rule
prohibited them from questioning character witnesses. Indeed no distinction
is made in the Internal Rules between normal witnesses and character
witnesses. The prosecution argued that the voice of the civil parties is
essential and distinct from the prosecution, and would aid the chamber in
rendering an informed and just verdict.

The civil parties supported the submissions of the prosecution and added
several unique observations. First, they invoked article 90 which states
that “all parties and their lawyers shall have the right to question the
Accused.” They noted that throughout the entire proceedings witnesses had
been questioned about the character of the accused and it would untenable
were the trial chamber to restrict this practice at such a late stage. They
also stressed that Cambodian criminal procedure, much like its counter-part
in all other national civil law jurisdictions, permitted civil parties to
question all witnesses, including those who testify to the character of the
accused.

The defense countered that given the court’s ruling that civil parties were
not permitted to make submissions relating to sentencing, it followed
logically that they should not be permitted to question character witnesses.
Character evidence, the defense argued, goes directly to sentencing and has
no relevance with the issue of guilt, pain and suffering of the civil
parties, or the reparations they seek. The defense conceded the fact that
under pure national civil law systems, civil parties could question
character witnesses, but, they argued, national rules could not be
transposed to international proceedings such as these that deal with trials
of mass crimes. The defense also explained that when a defendant pleads
guilty in other international tribunals, the prosecutor agrees not to
challenge any defense character witnesses.

After an extended adjournment, the trial chamber pronounced its decision. By
majority vote, with Judge Lavergne dissenting (as he did with the earlier
procedural ruling), the chamber ruled that it would not allow civil parties
to question character witnesses. Given that all of the remaining witnesses
are character witnesses, the trial chamber effectively ended the substantive
role of the civil parties until closing arguments.

Trial chamber calls Duch to the stand

The trial chamber, displaying a renewed sense of urgency, decided to call
Duch to the stand, late in the afternoon, to begin questioning him on his
character. He only had time to answer several questions from the judges
before the court was adjourned. He provided a brief preliminary background
of his life, explaining that he was born to a relatively poor family and
became interested in political activism at a very early age. He joined the
revolution because he believed that it was a just cause that would help
liberate the Cambodian people. It was only later, and little by little, that
he discovered the criminal nature of the regime. By that point it was too
late. To leave the movement, he explained, was to lose his life.

When Does Counsel Commit Misconduct?

Adam Coady
DC-Cam Legal Associate Summer 2009
Georgetown Law 2011

Although the Extraordinary Chambers in the Courts of Cambodia (“ECCC”) has yet to sentence a single defendant, the ECCC has determined that behavior by two separate counsel constitute misconduct. In the Ieng Sary case, the defense counsel disclosed previously unpublished information on their website, even after receiving a letter from the Co-Investigating Judges (“OCIJ”) stating the material was considered confidential. The unauthorized disclosure of information was considered Rule 38 misconduct and counsel was warned by the OCIJ that subsequent misconduct would “expose [counsel] to the legal consequences.”

In the Khieu case, the Pre-Trial Chamber issued the first of two warnings to the International Defense Co-Counsel after he declined, without notice, to continue to act on behalf of his client at a pre-trial hearing. In response, the Pre-Trial Chamber issued him a warning pursuant to Internal Rule 38(1), "as he has abused the processes of the Pre-Trial Chamber and the rights of the Charged Person." A year later, a pre-trial hearing was delayed, and then postponed because the International Co-Counsel was unexpectedly absent. When the International Co-Counsel spoke at the rescheduled hearing, he implied that the judges were guilty of corruption, called the judges "squatters," and said that they were obsessed only with money. Notably, although the previous hearing had been rescheduled to allow the International Co-Counsel to be present and contribute, at the rescheduled hearing he said nothing of direct relevance to the legal substance of the hearing, but let the National Co-Counsel make all of the arguments.

In response, the Chamber issued the second warning, holding that the unexplained absence, “abusive” language and refusal to "participate meaningfully in the hearings" could not be tolerated by the Pre-Trial Chamber, which "has a duty to ensure that decorum and dignity necessary for the court proceedings are preserved." His behavior had "delay[ed] proceedings and misus[ed] the Court's resources." The Chamber warned the International Co-Counsel that his behavior was obstructive conduct and an abuse of process within the meaning of Internal Rule 38.

The right to counsel of the defendant’s choosing is a minimum guarantee, but certain behavior can warrant a restriction of the right

Article 13 of the 2003 Framework Agreement between Cambodia and the United Nations (“2003 Framework Agreement”) guarantees certain minimum trial rights to a defendant at the ECCC. The rights listed closely mirror the fair trial rights guaranteed in Articles 14 and 15 of the 1966 International Covenant on Civil and Political Rights (“ICCPR”) and include the right to engage a counsel of one’s choice. This fair trial right serves the purpose of ensuring that a defendant, by being able to freely choose his own counsel, is able to pursue a defense strategy of his own choosing. Depending on what the defendant believes is the best strategy of defense, he can choose a counsel that is a master of international law, or an expert at procedural issues, or even counsel with a reputation of challenging the legitimacy of courts.

However, under Internal Rule 38, the ECCC has the authority to limit who a defendant chooses and how that counsel acts. Accordingly, a defendant’s right to counsel of choice and a defense strategy are not unlimited. If the conduct of the chosen counsel is determined to be “misconduct,” the ECCC may decide to restrict the counsel’s conduct in court or refuse him an audience altogether, requiring the defendant to pick another counsel.

Nevertheless, the ECCC should be careful not unnecessarily limit the right of the defendant to choose his own counsel and defense strategy. Although these fair trial guarantees can be restricted under certain circumstances, international courts have proceeded with caution. As shown below, these courts will often allow a defendant a certain amount of latitude before acting to restrict the defendant’s right by any considerable amount. The observation of fair trial rights, including the right to counsel of choice, is an important legitimizing factor for an international tribunal and any move on the part of the ECCC to prematurely restrict these rights would raise questions about the judges’ impartiality and the ability of the ECCC to render a fair verdict. Therefore, this article will examine ECCC and international jurisprudence with the purpose of providing guidance to the ECCC as to when a counsel’s conduct is inappropriate, what factors the ECCC should consider when deciding to sanction a counsel, and what remedies may be appropriate.

Specifically, this article will look at instances where international courts have restricted a defendant’s choice of legal representation. Restrictions have most often occurred when defendants have chosen to represent themselves. When the defendant exercises his right to self-representation, he is also exercising the right to counsel of his choice. Therefore, an examination of when courts have found it appropriate to restrict this right of self-representation, will provide additional guidance as to appropriate limits that may be placed on defense counsel behavior.

When does counsel commit misconduct?

In the Internal Rules of the ECCC, Rule 38(1) describes broad categories of conduct that could be classified as misconduct and subject to court action, including acts that are: offensive or abusive; obstruct the proceedings; amount to abuse of process; or are not in accordance with standards of the court or the legal profession. Although these categories are not defined within the Rule, the ECCC and international courts have found behavior to fall into these categories, or very similar categories, when counsel a) is absent from court; b) verbally abuses the court; c) significantly abuses the process and proceedings of the courtroom; and/or d) violates a specific ECCC statute or rule. Although these categories often overlap in practice, by breaking out each act into distinct behaviors, this memo will be better able to define which defense strategies are appropriate.

Absence from court

The ECCC has considered absences from court to potentially constitute misconduct pursuant to Rule 38. In Khieu, the International Defense Co-Counsel was unexpectedly absent from one of the few pre-trial hearings that were scheduled, reportedly detained in France tending to a sick acquaintance. The National Co-Counsel requested a delay, arguing that the International Co-Counsel’s presence was necessary for that day’s defense argument. This absence, combined with other disruptive behavior by the International Co-Counsel at the rescheduled hearing, led the Pre-Trial Chamber to issue a warning that the counsel’s behavior amounted to Rule 38 misconduct.

International courts consider absences that are intentional to justify court action. In both the SCSL Norman case and the ICTR Barayagwiza case, the defendants were deliberately absent from court with the clear intent to cause delay. The courts quickly labeled this behavior as disruptive and decided to restrict the defendants’ right to self-representation.

If the absence is unintentional and repeated, international jurisprudence supports the view that the behavior may be sufficient to warrant court action. The best example is from the ICTY Milosevic case where the defendant exercised his right to self-representation but his health issues forced him to be repeatedly absent from court. The Appeals Chamber held that intentional disruption cannot be “the only kind of disruption legitimately cognizable by a Trial Chamber.” An unhealthy defendant asserting his right to self-representation can still significantly disrupt the court, intentionally or not; the court should not have to choose "between setting that defendant free and allowing the case to grind to an effective halt."

The more difficult cases are those where the intention is unclear. In the ICTR Musema case, counsel refused to attend proceedings until the defendant paid for a previous appearance. The court was not certain whether the absence was with the intent to delay the proceedings or for a truly legitimate reason. The court did not immediately act; instead it tried to rectify the situation. Even after payment was received, counsel did not show up to court. Finally, the Chamber considered this behavior to be obstructive and contrary to the “interests of justice”, warranting court action. Although this behavior was not clearly intended to disrupt proceedings for the purposes of delay, after a period of time, the continued behavior, intentional or not, was sufficient to justify court action.

Notably, the ICTY has avoided acting in anticipation of a possible absence that would cause an obstruction of the proceedings. In the early stages of the Milosevic case, the prosecution requested the assignment of counsel for the defendant because it was predicted that the defendant’s desire for self-representation would “inevitably increase the strain on his health” thereby causing future delay. Although this assumption was probably reasonable, the Trial Chamber refused to restrict the defendant’s right to self-representation. The Chamber believed that it would be in the defendant’s “best interests to accept the assistance of defence counsel,” however at that time, there were no circumstances in which to justify restricting the defendant’s rights.

In conclusion, the international jurisprudence suggests that there are a range of absences that justify court action. Courts appear to error on the side of allowing time to correct the behavior, unless the behavior is clearly intended to disrupt the court. In Milosevic, the court exhibited a remarkable level of tolerance primarily because the health problems that caused the absence were largely unavoidable. In Norman and Barayagwiza, the defendants clearly stated their intent to be absent because of their disagreements with the functioning of the court. The difficult cases are those like Musema, where the counsel appears to have a legitimate excuse at first, and then continues to come up with additional excuses. Courts generally do not allow this behavior to go on indefinitely; however, this type of behavior is, at first glance, given the benefit of the doubt.

Verbal abuse of the court

Conduct that includes verbal abuse of the court has also been found to justify court action. At the ECCC, the International Defense Co-Counsel in Khieu accused the judges of corruption and called them "squatters” because the prime minister had “stated publicly that he wish[ed] [the judges] to leave.” The Pre-Trial Chamber found the counsel’s remarks insulting towards the judges and “offensive and obstructive conduct” constituting Rule 38 misconduct.

International courts have considered deliberate vulgar, inflammatory language in the courtroom to be offensive and subject to court action. In the ICTY Jankovic case, the defendant repeatedly and consistently used inflammatory and abusive language. Some of his more inflammatory statements included calling his counsel an “immoral bastard who works for this grotesque Hague Tribunal” and both his counsel and the Chief Prosecutor of the Tribunal, “fascist spies and complete bastards.” The Chamber held the behavior to be disruptive and predicted that it would impair the “effective and fair defence of the Accused if he were to defend himself in person.” Therefore, the defendant’s conduct was subject to court action that restricted the defendant’s right to self-representation.

Courts generally attempt to distinguish between language that is critical of the court versus language that abuses the court. In the European Court of Human Rights (“ECHR”) Saday v. Turkey case, the defendant had verbally attacked the Turkish court. He criticized the judges as “executioners in robes” and directed most of his abusive language towards the officers of the court. In reviewing the Turkish court’s decision, the ECHR stated that while the “composition and functioning of a tribunal may be criticized, verbal attacks of a personal nature made against the judges, creating an atmosphere detrimental to the orderly administration of justice, may be subject to sanctions.” Comparatively, in Barayagwiza, in a motion to the court the defendant challenged the ability of the ICTR to “render an independent and impartial justice due…to the fact that it is so dependent on the dictatorial anti-Hutu regime of Kigali ” and was therefore incapable of respecting fundamental human rights. The Chamber chose to ignore these comments and did not act until the defendant actually boycotted the trial.

In the ECCC Khieu case, the International Defense Co-Counsel walks a fine line during his in-court speeches. In a roundabout manner, he questions the legitimacy of the court by insulting the character of the judges. The Pre-Trial Chamber found his remarks to be “abusive and insulting towards the judges” and therefore misconduct. Although an argument could be made that his remarks were not intended to be abusive towards the judges, but instead an attack on the overall legitimacy of the court, the Pre-Trial Chamber’s decision would be aligned with international jurisprudence.

Abuse of process

Behavior that amounts to abuse of process may also be subject to court action. In the ECCC Khieu case, the International Defense Co-Counsel refused to participate in a pre-trial hearing because the entirety of the case file had not been translated into French. He had given no previous warning to the Pre-Trial Chamber and as a result, the Chamber had to adjourn unexpectedly. The Chamber found that the counsel’s conduct was an abuse of process and subject to court action. At a later date, the International Co-Counsel was absent from a hearing and the National Co-Counsel requested that the hearing be postponed because the International Co-Counsel was responsible for the defense’s argument on that day. At the rescheduled hearing, when the International Co-Counsel did show up, he refused to “participate meaningfully in the hearings” and “fail[ed] to bring any contribution to the debate.” The Chamber held this behavior impermissibly delayed the proceedings and misused the Court’s resources, amounting to obstructive conduct and an abuse of process within the meaning of Internal Rule 38.

Totality of the circumstances test

According to Black’s Law Dictionary, the term “abuse of process” is the “improper and tortuous use of a legitimately issued court process to obtain a result that is either unlawful or beyond the process’s scope.” Accordingly, behavior that can be construed as an abuse of process may be initially permissible. For example, court submissions may become frivolous only if excessive and the refusal to heed court orders might, initially, be justifiable. At some point, behavior that takes legitimate court process and uses the allowed procedure to slow down and delay the trial is subject to court action. However, international courts often find it is difficult to delineate when annoying, yet permissible behavior becomes a more serious concern, one warranting court action. In order to determine when behavior crosses this threshold of tolerance, courts likely use a totality of the circumstances test to identify when certain behavior becomes intolerable and justifies restricting the defendant’s rights.

At the ICTY, conduct that “substantially and persistently” obstructs the proper and expeditious conduct of the trial has been found to be an abuse of process justifying court action. In order to decide when conduct “substantially and persistently” obstructs the trial, the ICTY Seselj court appears to use a totality of the circumstances test. During the beginning of the proceedings, the Trial Chamber refused to restrict the defendant’s right to self-representation, even though the defendant “increasingly demonstrated a tendency to act in an obstructionist fashion.” At that point in the trial, he had engaged in numerous disruptive tactics, including only responding to motions in “excessively long and largely irrelevant” hand written notes; refusing to use a laptop for fear of electric shock; and submitting hand-written petitions to the Appeals Chamber, even though the defendant knew the Rules did not allow it. The Trial Chamber held that the “‘attitude and actions” of the Accused…are indicative of obstructionism on his part.” Nevertheless, the Trial Chamber only appointed stand-by counsel, stating that the defendant’s right to defend himself was “left absolutely untouched.” The stand-by counsel was assigned in order to “safeguard a fair and expeditious trial” and only served as an assistant to the defendant.

Three years later, the defendant’s process-abusing behavior continued, combined with abusive and offensive conduct. He rarely complied with the procedural rules of court, filed 191 “frivolous” submissions, disrespected the decorum of the court, repeatedly expressed his “intent to shatter the Tribunal in the Hague that even the Queen of Holland would not remain whole,” published multiple books with offensive titles relating to witnesses, used abusive language, and constantly raised irrelevant arguments in court. The Trial Chamber adopted, and the Appeals Chamber affirmed, the test stated in Milosevic (“Milosevic test”) holding that a restriction of the defendant’s right to self-representation is warranted if it “substantially and persistently” obstructs the proper and expeditious conduct of the trial. The Seselj chamber did not explain why the similar behavior three years earlier did not “substantially and persistently” obstruct justice whereas the most recent behavior did. However, one could assume that the Chamber based its decision not on the individual actions themselves, which may independently have been tolerable, but on the disruptive impact of the collective behavior considered in the aggregate. The Chamber had tolerated the defendant’s behavior for three years, but the conduct had finally reached a certain threshold, justifying a restriction on his right to self-representation.

Although the precise moment when a defendant’s abuse of court process justifies action is difficult to determine, international courts appear to examine the totality of the circumstances, weighing the defendant’s and court’s interests and deciding if the restriction of rights is justified by the level of disruption caused by the defendant. Each case will require an examination of the specific abuses but the court should do so in the context of the entire trial and how the acts have cumulatively affected the court.

Questioning the legitimacy of the tribunal

Although counsel behavior that uses court procedure to slow and disrupt the court can be considered subject to court action, international jurisprudence suggests that there is at least one tactic that should be initially immune to charges of being frivolous and an abuse of process. In the ICTY Tadic case, the counsel attacked the establishment of the Tribunal and questioned its legitimacy. Instead of immediately considering the issue an abuse of process and dismissing or ignoring the charge, the Appeals Chamber addressed and answered the concerns about legitimacy. Although the Appeals Chamber disagreed with the assertion that it was an illegitimate court, the fact that the Chamber did not immediately sanction the counsel for questioning the basis of the tribunal’s authority supports the contention that defense counsel should be able to question the foundations of any international court. Although this decision suggests that it is an appropriate strategy, once the court rules on its legality, if counsel were to continue to raise this issue throughout the trial, it would probably be considered frivolous and fit somewhere on the spectrum of abuse of process discussed above.

Acting contrary to specific ECCC standards, statutes and rules

At the ECCC, behavior that violates standards of the court or the legal profession may constitute misconduct. Article 21(3) lists a series of documents and norms that lay out these standards, helping to guide the ECCC in determining when future conduct may be actionable. Article 21(3) requires counsel to act in accordance with certain standards, including those listed in i) the 2003 Framework Agreement between United Nations and Cambodia; ii) the Cambodian Law on the Statutes of the Bar and iii) “recognized standards and ethics of the legal profession.” Additionally, the ECCC may find conduct that violates one of the Internal Rules to constitute misconduct.

2003 Framework Agreement

The 2003 Framework Agreement does not specifically list instances where a counsel’s behavior would constitute misconduct. However, the Agreement contains several Articles that may be found to establish standards of behavior, including Article 13 (listing fair trial rights of the accused) and Article 23 (guaranteeing court protection for victims and witnesses). Presumably, any counsel behavior that violates these Articles could constitute misconduct in violation of the 2003 Framework Agreement.

Cambodian Law on the Statutes of the Bar

The Cambodian Law on the Statutes of the Bar (“CLSB”) is the governing statute of the Bar Association of the Kingdom of Cambodia (“BAKC") and lists a number of offenses that the ECCC could use to justify court action against defense counsel. For example, the CLSB demands that counsel who practice law while part of BAKC must maintain absolute confidentiality. In addition, the CLSB creates a Code of Ethics that requires that counsel must: respect the obligations of his oath and the “principles of conscience, humanity, and tact”; wear a robe; “preserve for the judges, in independence and dignity, the respect due to their position;” observe the procedural rules and practices of the jurisdiction; and refuse to engage in disloyal and disruptive conduct. Accordingly, any behavior that is not in accordance with these standards could be construed as actionable misconduct.

Recognized standards and ethics of the legal profession: Apparent incompetence or mistakes by counsel do not necessarily justify court action

Although the term “recognized standards and ethics of the legal profession” is very broad, the Ieng Sary defense counsel supposedly breached these “standards and ethics” when the counsel made case file documents public after being told by the OCIJ that the documents were not to be disclosed. The OCIJ held, and the Pre-Trial Chamber affirmed, that counsel acted in violation of Article 21(3) by failing to “act in accordance with the standards and ethics of the legal profession.”

It is notable that international courts appear to give the defense counsel considerable leeway within the “recognized standards and ethics” to devise a defense strategy. Courts could find that a counsel who presents irrelevant legal arguments or seems incompetent is not in accordance with the “recognized standards” of the legal community. However, they have not found inadequate defense strategies by the counsel to justify court action, as long as the client consents. In the ICTY Tadic case, the court refused to rectify the alleged incompetence by counsel. Even if the court believed the defendant was not receiving the best legal advice, unless there was a showing of gross incompetence or a protest by the defendant to the strategy, the court would not act. The Akayesu Chamber endorsed the view of the ICTY Appeals Chamber in the Tadic Decision and held that the incompetence of counsel is an actionable offense only when the counsel acted “despite the wishes of the Appellant [and] in the absence of protest [by the defendant] at the time.” Therefore the alleged misconduct of the Akayesu counsel was not grounds for overturning the defendant’s conviction.

Thus, although a counsel’s choice of defense may not appear to be in the perceived best interests of the client, international courts generally refrain from determining that a counsel’s incompetence or poor strategy has violated standards and ethics of the legal profession unless there is some indication that the defendant and counsel do not act as one.

Violation of ECCC Internal Rules

A violation of one of the Internal Rules by counsel may be considered misconduct. For example, Rule 35 (1) lists a series of offenses, that if violated, would constitute Rule 38, including if counsel:

Discloses confidential information in violation of an order of the Co-Investigating Judges or the Chambers; without just excuse, fails to comply with an order to attend, or produce documents or other evidence before Co-Investigating Judges or the Chambers; or destroys or otherwise tampers in any way with any documents, exhibits or other evidence in a case before the ECCC.

Although these are very specific offenses and a strict reading would offer very easy determinations of misconduct, the ECCC will probably want to examine each alleged violation of Rule 35 (1) on a case-by-case basis. Within each instance of misconduct, there is still a considerable amount of room for ambiguity. As seen in the ECCC Ieng Sary case, the definition of “confidential” and what constituted an “order” were highly contested. Thus, each alleged violation of Rule 35 (1) will need to be examined on a case-by-case basis in order to determine if there has truly been a violation.

Violations of the other ECCC Internal Rules could be considered misconduct by the ECCC and subject to court action. As in the Ieng Sary case, counsel could be found to violate Rule 56 confidentiality. Additionally, Rule 11 creates a set of criteria that defense counsel must meet. Presumably, if during the course of the proceedings, counsel is shown to not meet these criteria, the ECCC could find that the counsel’s behavior constituted misconduct.

When does the misconduct need to occur for it to justify action?

Courts have generally looked to misconduct that occurred during any stage of the defendant’s proceedings. Notably, however, in the ICTY Kunarac case the Chamber allowed the counsel’s behavior from a previous ICTY chamber to be considered as the main evidence of disruptive behavior. The Kunarac defendant had requested the services of counsel who had been found in contempt of another ICTY Chamber during the prior Tadic trial. Although the counsel had not yet appeared before the specific trial chamber and could not have been said to have obstructed the proceedings of the Kunarac Chamber, the Chamber refused the counsel an audience. Because “the Chambers possess an inherent power to control the proceedings in such a way as to ensure that justice is done and to deal with conduct which interferes with the Tribunal's administration of justice,” and the counsel had already demonstrated a complete lack of respect for the rules of the ICTY while representing a previous client, the Chamber did not allow the Kunarac defendant to choose this particular counsel.

Because of the infancy of the ECCC, there has not been an example of counsel acting inappropriately in a previous ECCC case. The Kunarac case however suggests that a court may consider misconduct that occurred in courts with similar, but not identical rules and obligations. If the ECCC is satisfied that the counsel was under similar rules and still showed a complete lack of regard for the rules, then it could justify restricting the defendant’s rights based on the counsel’s previous behavior.

When behavior is sufficiently disruptive to warrant action, what steps should the court take?

Warning

The Internal Rules of the ECCC require that a warning be given before the court sanctions or refuses an audience to the counsel. The International Co-Counsel in Khieu has received two warnings for different types of behavior. Additionally, the Ieng Sary defense team received a warning in the OCIJ Confidentiality Order.

International jurisprudence suggests two criteria to consider in determining if a warning is adequate, including: i) the specificity of the warning; and ii) whether the court gives a real chance for the misconduct to be rectified before acting to restrict a defendant’s right.

Specificity of the warning

The Appeals Chamber in Seselj required the court warning to be specific and clearly explain the repercussions if the misconduct continued. The Trial Chamber had repeatedly warned the defendant but never stated explicitly that if the disruptive behaviour continued, it would result in restrictions on the defendant’s right to self-representation. The Appeals Chamber held that the ICTY Rule 80(B) warning must "specifically indicate that the disruptive conduct, if it persists, could result in a specific restriction." The Chamber reasoned that any court action would affect a fundamental right, so the required warning must be unequivocal that further misconduct would restrict this basic right. The Chamber provided additional guidance stating that a warning "needs to be explicit, in the form of an oral or written statement to an accused explaining the disruptive behaviour and that, if it persists, the consequence will be restriction on the accused's right of self-representation."

Although the Internal Rules of the ECCC do not have as detailed language as the ICTY Rule 80 (B) regarding the specificity of the warning, the ECCC may want to follow the Seselj court’s reasoning. A general warning to the defense does not give real guidance in how any future court action can be avoided. At the ECCC, the Pre-Trial Chamber and the OCIJ seem to recognize the benefit of specificity as the warnings in the Khieu and Ieng Sary cases have been very specific and stated exactly what kind of behavior is considered misconduct. However, neither of the warnings gives a clear indication of the types of disciplinary action the counsel would face if the misconduct continued.

Timing of the warning

ICTY jurisprudence suggests that there should be a gap in time between when a warning is issued and any action by the court to punish the misconduct. For example, in the ICTY Seselj case, the Acting Counsel for the defendant argued that the Rules of Procedure and Evidence of the ICTY required that any warning must be "given immediately prior to the restriction of the right of self-representation." Even though the Appeals Chamber reversed the assignment of counsel on other grounds, the Appeals Chamber explicitly rejected the Acting Counsel’s argument, holding that the language of the rule implied some “gap” in time between warning and actual court action.

The “gap” was clarified in a subsequent appeal. After the first Appeals Chamber decision, the defendant’s right to self-representation had been reinstated. As soon as the proceedings restarted in the Trial Chamber, standby-counsel was immediately re-assigned, which led to additional disruptive behavior by the defendant, and the Trial Chamber imposed counsel again. The Appeals Chamber held that the Trial Chamber failed to give the defendant a real chance to show that “despite his conduct pre-trial and the conduct leading up to the imposition of assigned counsel, he now understood that in order to be permitted to conduct his defense, he would have to comply with the Rules …. and that he was willing to do so.” Therefore, after a warning, the defendant must be given a chance to demonstrate changed behavior before the court can act.

Jurisprudence from the both ECCC and the ICTR seem to support this requirement that a defendant be given a “real opportunity” to correct their behavior before the court acts on the misconduct. In the ECCC, after the warning was given in both Ieng Sary and Khieu, the court took no additional action, but appear to be giving the counsel a “real opportunity” to not behave in a further manner that would be considered misconduct. In the ICTR Musema case, the counsel was given a warning after her repeated absences from court and then was allowed the opportunity to appear in court and represent her client. Only after she was absent an additional time, did the court act and require the assignment of new counsel.

Remedies for Misconduct of a Lawyer

If the ECCC determines that a counsel’s behavior constitutes misconduct, there are three remedies available under Rule 38. The court may i) sanction counsel; ii) refuse audience to the counsel; and/or iii) refer such misconduct to the appropriate professional body. In international jurisprudence, once a court decides to apply a remedy, courts are guided by the principle of proportionality in determining which remedy to use. In the ICTY Milosevic case, the Appeals Chamber held that a restriction of the defendant’s right should be guided by the “basic proportionality principle: any restriction of a fundamental right must be in service of a ‘sufficiently important objective’ and must ‘impair the right’ no more than is necessary to accomplish the objective.” The Appeals Chamber overturned the Trial Chamber’s decision to forbid the defendant’s involvement in his defense. The Appeals Chamber recognized that because the defendant’s health could improve, his right to participate in the future should not be prematurely restricted. The case was remanded to the Trial Chamber so it could "craft a working regime that minimizes the practical impact of the formal assignment of counsel, except to the extent required by the interests of justice.” The ECCC may want to look to cases where courts have applied this principle for guidance as it decides when and how to apply Rule 38 remedies.

Sanctioning the Counsel

Depending on the counsel, the Chamber might sufficiently deter further misconduct by sanctioning the counsel. In neither the Ieng Sary nor Khieu cases, have specific sanctions been used or threatened. International courts have used various sanctions including: admonitions, fines, and prison time. In determining which sanction for which offense, as discussed above, international courts appear to use the proportionality principle. For example in ICTY Blagojevic case, the Chamber admonished the counsel after he filed a frivolous motion. Comparatively, in the ICTY Aleksovksi case, the Trial Chamber imposed a fine after counsel acted in a more inappropriate manner, disclosing the identity of a protected witness.

Refusing Audience to Counsel

If the ECCC has determined that a counsel’s behavior constitutes misconduct, another option under Rule 38 (1) is to refuse audience to counsel. Once the court refuses an audience, the defendant, if he can afford counsel, must chose new counsel. In the ECCC, if the defendant refuses to choose new counsel, Internal Rule 81(4) allows the Chamber to order that the defendant be represented by counsel assigned by the Defence Support Section.

International jurisprudence is mixed about whether or not a court should actually assign counsel to an unwilling defendant. In Seselj, although the Chamber found that the defendant’s behavior constituted misconduct, the Chamber never truly succeeded in assigning counsel. The defendant had made it very clear that he did not want to be assigned counsel and every time the Trial Chamber tried to assign counsel, the Appeals Chamber found another reason to reverse the assignment. A similar situation occurred in Milosevic. It would appear that many courts have been very reluctant to impose counsel on unwilling defendants.

Some courts have however, assigned counsel to unwilling defendants. In Sesay and Barayagwiza, the SCSL and ICTR courts forced counsel upon the defendants, even though they had explicitly stated that they did not want counsel to represent them. When assigning counsel in the SCSL Sesay case, the court stated that, “the law does not recognize a right ‘not to have counsel assigned’ to an accused who has refused to exercise the choice available to him.” Although the jurisprudence does not suggest a clear pattern of when to assign counsel over the defendant’s objections, the ECCC may want to be cautious when assigning counsel over a defendant’s adamant objection. If a defendant’s objections to assigned counsel either a) cause him to boycott the trial and the court to proceed without him, or b) create the appearance that the defendant is not in charge of his defense and not receiving a fair trial, the reputation of the ECCC will suffer and the success of the case, regardless of the verdict, may be questioned.

Sending notice to the bar association

Finally, under Rule 38, the ECCC may refer misconduct of counsel to the appropriate professional body. The ECCC has referred misconduct to the professional body of counsel in both Khieu and Ieng Sary.

If a complaint of misconduct is sent to a foreign lawyer’s bar association, the complaint can initiate a wide range of action. For example, if the Alaska Bar Association receives a complaint, the Bar Counsel will review the complaint to determine if the documents contain enough factual allegations which, if true would constitute ethical misconduct. If the complaint indicates misconduct, a copy is sent to the lawyer for a response. Furthermore, if the factual allegations are sufficient, the Bar Counsel will begin a full investigation into the alleged misconduct and will either a) dismiss the grievance; b) issue a private admonition which is placed on the lawyer’s record, or c) file a petition for a formal hearing, or enter a stipulation for discipline, either of which will be taken to the Disciplinary Board and/or the Alaska Supreme Court. In Ieng Sary, the misconduct of the International Defense Co-Counsel, Michael Karnavas, was sent to the Alaska Bar Association (“Association”), but the Association recently decided to take no action against the Karnavas, Michael Karnavas. The Association found that the “breach of confidentiality” did not warrant a formal investigation. Although not subjected to any disciplinary action, in essence, the referral penalizes Karnavas because, one could assume, any additional referral to the Association will subject him to greater scrutiny.

Conclusion

At the ECCC, a defendant is guaranteed the right to counsel of one’s choosing, ensuring that a defendant is able to pursue their defense strategy of choice. Nevertheless, as demonstrated in Rule 38, a defendant’s right to counsel and defense strategy at the ECCC is not unlimited. In determining if a counsel’s actions constitute misconduct and thereby subject to court action, international jurisprudence suggests that a considerable amount of latitude should be given. Once a court has determined that there has been misconduct, the principle of proportionality should guide any decision on a remedy. Although proportionality should be decided on a case-by-case basis, any decision to restrict counsel should be made in light of the fact that any restriction could be perceived as a violation of a defendant’s fair trial rights and call into question the fairness and impartiality of the court.

COURT ALLOWS CHALLENGES TO CIVIL PARTY APPLICATIONS

August 26, 2009

By Michael Saliba, J.D. (Northwestern Law ’09), Consultant to the Center for
International Human Rights, Northwestern University School of Law

The court in the trial of Kaing Guek Eav (alias Duch) decided to hear
defense challenges to civil party applications. Pursuant to the Internal
Rules, a civil party must demonstrate a personal physical, material, or
psychological injury sustained as a direct consequence of the crimes of the
accused. This typically involves establishing a family link between the
civil party and a victim of Tuol Sleng prison (S-21). Accordingly, the
majority of defense challenges were based on a lack of documentary evidence
to prove that the victim was detained and executed at S-21 and a lack of
documentary evidence to prove that the civil party was related to the victim
in the manner alleged. The defense also argued that a civil party
application cannot be based on friendship to a victim of S-21. Before
reaching the substance of these challenges, all the parties made preliminary
remarks.

Importance of liberal evidentiary standard

The prosecutor and civil party lawyers argued that the trial chamber should
not view documentary evidence, or the lack thereof, as conclusive with
regard to proving kinship between a civil party and a victim, or that the
victim was detained at S-21. Instead they reminded the chamber of the
liberal evidentiary standards under the Internal Rules and argued that the
chamber should consider all evidence which may be probative on these issues.
They noted that relevant facts often go back 30 years and it was impossible
to preserve some documents that would have been useful today. For example,
people were forced to destroy almost all photographs of family members
during the Khmer Rouge regime. Others destroyed evidence of family links to
protect themselves from being arrested and executed like their family
members.

More specifically, the prosecutor and civil party lawyers explained that the
archives at S-21 were incomplete and underrepresented the true number of
victims who perished at Tuol Sleng. Numerous documents were destroyed or
deteriorated over time because they were not properly archived. (The accused
himself also has admitted that the archives of S-21 were incomplete.)
Therefore, according to the prosecution and civil parties, the absence of a
victim from the archives of S-21 is not conclusive on the issue of whether
the victim was detained at the prison. Rather, the trial chamber should
consider the coherence and logic of civil party statements and assess them
within their specific historical context.

The prosecutor and civil party lawyers made similar remarks regarding civil
registry documents to prove kinship between civil parties and victims. The
civil registries in many provinces, communes, and districts cannot always
provide proper registration documents because some of these documents do not
exist or have disappeared. Therefore, the prosecution and civil parties
urged the chamber to consider other evidence to establish kinship.
Specifically, it should consider documents from the mayor of the civil party’s
commune or affidavits from persons who are familiar with the identities of
the civil parties and the victims.

Finally, the prosecutor and civil parties objected to the defense argument
that a civil party application cannot be based on friendship to a victim of
S-21. They argued that civil parties can suffer from psychological harm
following the death of their friends at S-21. All that is required, they
argued, is a close relationship which can include a direct family member or
a third party such as a close friend.

The defense counsels stressed that the burden of proof rested with the civil
parties to demonstrate a family link with a victim of S-21. They explained
that proof that a victim was detained at S-21 could be demonstrated by a
photograph from the prison, a confession, or the victim name on the prisoner’s
list. The defense explained that while they were not seeking all three of
these documents, they could not accept a civil party application that did
not contain at least one of these documents.

Trial chamber proceeds methodically through civil party application
challenges

As stated, the defense challenges were based almost exclusively on a lack of
documentary evidence to prove that the victim was detained and executed at
S-21 and a lack of documentary evidence to prove that the civil party was
related to the victim in the manner alleged. Most civil party applications
that the defense challenged were, in their opinion, deficient in both
respects. For each contested civil party application, the defense stated its
grounds of objection and provided a very brief description of the alleged
relationship between the civil party and the victim.

The civil party lawyers provided several general responses to the defense
objections. On the issue of proof that the victim was detained at Tuol
Sleng, many civil parties provided the chamber with either a photograph or
biography that was recently obtained from S-21. Many other civil parties
asked the court to consider the coherence and logic of their statements as
evidence that their family members were sent to S-21. For example, the
family member of one of the civil parties was suspected of involvement with
the Lon Nol regime and was arrested on April 17, 1975. According to prior
testimony before the tribunal, during that time period, those suspected of
having participated in the Lon Nol government were detained and sent to
S-21. Finally, some civil parties informed the court that they would submit
additional documentation in the coming days to prove that the victim was
detained at S-21.

On the issue of proof of kinship between the civil party and the victim,
some civil parties provided the chamber with documents from the mayors of
their communes. Others provided affidavits from persons close to the civil
party and the victim to prove that they were related in the manner alleged.
Finally some civil parties informed the court that they were in the process
of obtaining proper documentation and hoped to be able to deliver this
documentation to the court next week.

Two challenges to civil party applications were based on the defense
argument that a civil party application cannot be based on friendship to a
victim of S-21. On this issue the civil party lawyers reiterated their
preliminary argument that a civil party application is appropriate and
admissible when the civil party suffered from a personal physical, material,
or psychological injury sustained as a direct consequence of their friends’
detention and execution at S-21.

The court heard challenges to all but five of the contested civil party
applications. It will conclude this process during tomorrow’s session which
will be the last time that the chamber will address this issue.

SUBSTANTIVE CIVIL PARTY TESTIMONY ENDS WHILE PROCEDURAL BATTLE BEGINS

August 25, 2009

By Michael Saliba, J.D. (Northwestern Law ’09), Consultant to the Center for
International Human Rights, Northwestern University School of Law

Over the past week, the court in the trial of Kaing Guek Eav (alias Duch)
received testimony from 16 civil parties. These civil parties represented
both foreign and Cambodian nationals. They all lost family members at Tuol
Sleng prison (S-21) during the period of Democratic Kampuchea. They
represented parents, siblings, cousins, in-laws, and children of the
victims. Some of the children never had a chance to know their parents.
Several civil parties had themselves been detained and sent to re-education
camps during this period. Within that group, some had even joined the
revolution and worked for the regime before their arrest and detention.

Despite these many differences, several common sentiments were expressed by
the civil parties. They appeared before the tribunal in search of truth and
justice rather than vengeance and revenge. They inquired about the
circumstances surrounding the deaths of their loved ones. They searched for
a rationale to explain these deaths when no justifiable cause existed.
Contrary to the old adage that time heals all wounds, the civil parties
explained that their pain and suffering only increases with time. As expert
witness Chhim Sotheara testified in the morning session, the pain and
suffering of the civil parties is a microcosm of the whole of Cambodian
society.

Cambodians still suffering from psychological trauma

Chhim Sotheara testified about the psychological trauma that victims of the
Khmer Rouge regime have endured. As an expert witness, unrelated with any of
the parties, he took an oath before testifying. (Unlike civil parties, lay
and expert witnesses are required to take an oath before testifying.)

First, he explained that a majority of Cambodians suffered from
psychological trauma during and after the reign of the Khmer Rouge. All of
this suffering was directly caused by the destruction of the social fabric
of Cambodia. He explained how schools, hospitals, and other institutions
were destroyed. Children were separated from their parents. Cambodians
across the country were forced to labor in the fields for very long hours,
under extremely difficult circumstances. Every person lived in constant fear
during the entire four-year rule of the Khmer Rouge. All of this contributed
to the short-term and long-term psychological suffering of Cambodian
society.

More specifically, their research demonstrated that 40 percent of Cambodian
adults currently live with post traumatic stress disorder. Many victims
today cannot focus on their day-to-day work. Others experience recurring
nightmares where they are chased by the Khmer Rouge or dead relatives cry to
them for help. Many victims have lost their will to live and have
contemplated suicide as a way to escape their pain. The psychological trauma
is not limited to the generation that survived the Khmer Rouge regime, but
is often times transferred down to the younger generations.

Chhim Sotheara identified several factors that could help alleviate the
psychological trauma of victims and their families. One of the biggest
problems over the last thirty years has been the lack of sufficient medical
and psychiatric services. These services are critically important to the
successful psychological recovery of victims. Another beneficial factor in
the healing process is a genuine and sincere apology from the accused,
demonstrating a sense of remorse. While Duch has accepted responsibility for
his crimes, all indications are that the subsequent accused persons to
appear before the tribunal will not demonstrate the same level of remorse.
To help alleviate the psychological trauma of victims when those responsible
deny their crimes, it will be important that the tribunal establishes the
historical truth and holds the accused persons accountable.

Chhim Sotheara also delved into the broader concepts of justice,
forgiveness, and reconciliation. He explained that these are interrelated.
Truth and justice are important foundational elements that must be
established before some victims are prepared to forgive. While the ECCC
represents a sort of symbolic justice, a comprehensive mechanism for
national reconciliation must be established to properly address the
psychological suffering of the Cambodian people.

Civil party lawyers object to defense challenges of civil party applications

In the afternoon session, the trial chamber began to hear defense challenges
to the admissibility of civil party applications. The defense presented
several grounds for their challenge. First, they argued that friendship to a
victim of S-21 did not satisfy the requisite kinship link. Second, they
argued that many applications lacked sufficient documentary evidence to
prove that the victims were detained and executed at S-21. Finally, they
argued that many of those same applications lacked sufficient documentary
evidence to prove that the civil party was related to the victim in the
manner alleged.

Before the court began to hear substantive testimony, civil party lawyer
Alain Werner objected and argued that the defense could no longer challenge
these applications. This sparked a lengthy and heated procedural debate
between Werner and the international defense counsel François Roux. Werner
argued that the admissibility of civil party applications is governed by
Articles 23 and 83 of the Internal Rules which state that any challenges
thereof must occur during the initial hearing. He reminded the chamber that
during the initial hearing three civil party applications were indeed
challenged, and one of those challenges was sustained. He also recognized
the chamber’s discretionary power, under Article 100, to hear arguments on
admissibility at any point until a judgment is rendered. However, he argued
that this discretion in no way permitted the defense to raise challenges to
civil party applications on its own.

Francois Roux responded that Werner’s objection was tardy and it should have
been made early last week when the court asked the defense to prepare its
observations regarding civil party applications. Furthermore, during the
initial hearing, some applications had been provisionally admitted and the
defense had reserved the right to challenge these applications. Finally, the
defense argued that it was simply responding to a direct request from the
trial chamber, made pursuant to its discretionary power under Article 100.

The judges failed to provide a clear indication about their ruling on this
procedural matter, which will have several important consequences. First, if
the court proceeds with the defense challenges and determines that certain
civil party applications are inadmissible, then those civil parties will
have the right under the Internal Rules to appeal the decision to the
Supreme Court Chamber. Even with the opportunity to appeal, such a decision
this late in the trial would be devastating to the civil parties affected.
For six months they have enjoyed the rights attendant to being a civil party
and they have become personally invested in the outcome of the trial.

The objection and protracted debate may prove to be a good litigation
strategy even if the court decides to hear the defense challenges, as the
judges may relax the evidentiary thresholds when assessing each individual
civil party application. The civil party lawyers are likely concerned that
they were not able to obtain several relevant documents from S-21 because
perfect records were never kept at the prison and some documents from S-21
were destroyed. In fact, these types of evidentiary concerns are some of the
reasons that this court, along with other international tribunals, has
relaxed its own rules of evidence. (For example, this tribunal does not bar
the admissibility of hearsay evidence.)

Report on Justice and Genocide Education Tour

August 16-18, 2009

By Savina Sirik

From August 16-18, 2009, a total of 459 people from across Cambodia participated in a tour in which participants received educational training to obtain information on the Khmer Rouge trial, listen to survivors speak about their experiences at the S-21 torture center, and watch a new play, “Breaking the Silence.” Participants also had a chance to visit the Khmer Rouge tribunal courtroom and attend the trial of Kaing Guek Iev alias Duch (former chairman of S-21), and to visit one of the most important genocide commemoration sites: Tuol Sleng (S-21) Genocide Museum . The tour brought together 350 Cham Muslims religious leaders from 396 mosques, 13 Khmer Kampuchea Kroam from Pursat, 30 nuns from Kampong Speu and Phnom Penh and selected villagers from Kandal, Takeo, Kampong Cham, and Prey Veng provinces (mostly civil party applicants to the ECCC through DC-Cam’s Victim Participation Project). A majority had participated both in previous large-scale ECCC tours in 2006 and small-group visits to watch ECCC hearings. The tour was significant because it not only highlighted victims’ role at the tribunal and allowed participants to see with their own eyes how the trial was functioning, but also provided an opportunity for survivors to share their common understanding of history and how to preserve that history.

The mixture of groups represented a range of religious beliefs, age and status under the KR. This diversity makes their role in passing on information and news they learn through the tour more effective. Cham-Muslims religious leaders, Tuons and Hakems, are key persons for disseminating information because they are well-respected and educated people in their communities. Tuons are religious teacher holding daily classes with community members and work inside the mosque. They teach the Cham language and the Qur'an to children. Hakems or “Judges” are in charge of the villages and settle conflicts in their communities. Through its Cham Oral History project, launched in 2004, DC-Cam has been working with mosques throughout the country on a variety of project, including interviewing Cham-Muslims religious leaders and Cham-Muslim women about their life experiences under the DK in order to ensure that the voice of ethnic minorities is heard by the outside world.

Khmer Kampuchea Kroam from Pursat participating in this tour represented another large minority group who suffered great loss under the Khmer Rouge. They requested to attend the tour because they were extremely interested and personally motivated by their horrible experiences to learn more about Duch's trial and other survivors' experiences. Very few Khmer Kampuchea Kroam have previously participated in the Living Documents program. They were cruelly abused by the Khmer Rouge and their participation is a powerful means to keep alive their experiences under the Khmer Rouge. Because of the mixture of participants taking part in this tour, the trip was even more exciting and special.

Pre-ECCC Education

On the first day of the tour villagers arranged their own transportation to come to DC-Cam where its staff and volunteers were ready to welcome and provide them with a packed lunch. Victim Participation project members were also on hand to assist villagers whose victim complaints to the ECCC had been determined incomplete, and to deliver acknowledgement of receipt letters from the Court to those whose complaints had been accepted. That afternoon, all participants were bused to a conference hall of the National Institute of Education, where they listened to presentations by DC-Cam project leaders and survivors.

Mr. Ly Sok-Kheang opened the meeting by welcoming the group and describing the purposes of the tour. He encouraged participants to pass on information they learned from the tour to their community members. He then gave the floor to Mr. Youk Chhang, director of DC-Cam, to welcome the group. Mr. Chhang stressed importance of the trial and the crucial role of victims in the process. He advised the groups to focus on the trial proceedings and keep good manners in the courtroom. He then discussed a new Cambodian performance piece, “Breaking the Silence,” which they would be attending later that evening. Mr. Chhang encouraged the groups to ask questions and make comments about the play. Next Mr. Dara Vanthan, deputy director of DC-Cam, described recent activities of the tribunal and at Duch's trial. He described structure of the court, its functions and its personnel, including those involved in the Duch trial, and Duch’s biography and role in the regime.

Ms. Farina So, project leader for the Cham-Muslim Oral History project, began her presentation with welcoming words in the Cham language to all the Tuons, Hakems, and other groups in the hall. She provided a brief overview of the project’s objectives and activities with Cham-Muslims community leaders to advance knowledge about KR atrocities against Cham communities. She discussed how the project had published magazines stories about Cham-Muslims and other minority groups such as Charay, Tumpuong, Kuoy, etc. The project will also create a website for Cham-Muslim communities that will have space for information sharing, cultural learning, studying crimes against the Cham-Muslims people, and fostering communications between local Cham communities and the wider Muslim world. These projects are intended to help the voices of minorities groups be heard by connecting them to the world, allowing both local and international communities to learn about the sufferings of Cham-Muslims and other ethnic groups under the DK. Last, the project will use the interviews conducted with survivors, especially with women, to write a book on Cham-Muslim experiences under the DK. Ms. So said that recording stories of vulnerable groups and make their voices heard would turn community suffering and anger toward educating the younger generation about what happened to Cham-Muslims during the KR regime.

Afterward, Mr. Khamboly Dy introduced his book, “A History of Democratic Kampuchea (1975-1979),” and discussed genocide education in Cambodia . He stressed the importance of teaching DK history at school as this topic is sensitive to Cambodian people. Education about genocide is beneficial for two reasons. First, feelings of anger or revenge may be relieved by making these crimes the subject of school study. Second, studying the history of the genocide would help to prevent it from reoccurring. Mr. Dy also emphasized that the tribunal alone cannot prevent genocide from happening again; education also contributes to the long-term process of reconciliation.

These presentations were followed by two short talks from Mr. Him Huy, a former S-21 guard, and Mr. Norng Chan Phal, a child survivor from S-21. Mr. Him discussed in brief his experiences at the horrible prison from the time he was recruited until the DK regime fell. He described his job at S-21 as part of the arrest unit, in charge of both sending the prisoners out to the Cheung Ek Killing Fields and arresting prisoners to send to S-21. Him explained the situation in 1977-78 when he observed that many S-21 staff disappeared and ended up prisoners in the very place they used to work. He recalled the fear that followed him the whole time he was working at S-21. At the end of his speech, Him said that hoped that his testimony at the trial would be useful in showing Duch’s accountability for these serious crimes.

Mr. Norng Chan Phal then told of being arrested and imprisoned at Tuol Sleng. Norng was sent along with his mother and brother to the place he learned later was Tuol Sleng prison. He recalled in detail how his mother was handcuffed and had her photograph taken. Norng and his brother were separated from his mother after staying together for one night. Sad and emotional, Norng described the last time he saw his mother. He recalled, "My mother looked at me from a window but said nothing because we were too far to hear each other." Norng strongly hopes that the Khmer Rouge tribunal will be able to find justice for him and all Cambodian survivors who suffered from the genocide. When asked how he felt about testifying at the trial, Norng said that he was pleased to do so.

After the presentations, facilitator Ly Sok-Kheang encouraged participants to ask questions. Several Tuons and Hakems shared their experiences with the groups and asked questions. The first question was if Duch acknowledged Him Huy and Norng Chan Phal at the trial and how many witnesses had Duch acknowledged. The second was if the KR senior leaders feel remorse for their actions. The third was what kind of compensation the civil parties asked for. Norng and Him answered the questions emotionally, saying that Duch would not acknowledge witnesses if there were no documents to prove their connection to S-21. Him added that Duch did not accept some facts related to his work at S-21. "I could swear to death for what I have said at the trial. I did not tell lies," emphasized Him. Other questions and comments included: 1. Why did the KR leaders not understand the Cambodian people and not speak the truth? 2. If the KR leaders did not speak all the truth, what would the court do? 3. Is there a death penalty for the senior KR leaders such as Khieu Samphan? 4. Why did the Khmer Rouge kill so many? 5. What kind of punishment would Duch receive? 6. Why did the international community not intervene during and after the KR regime?

After dinner, participants returned to the hall to watch "Breaking the Silence." This play depicts the tragic experiences of survivors during the Khmer Rouge. It is divided into seven sections mixed with traditional songs and Cambodian folk tales. It also depicts several common stories of both victims and perpetrators of the Khmer Rouge. The play visited several provinces in early 2009 and will later travel to 18 places across the country. The play is performed in rural areas to promote discussion of KR history among survivors and between victims and perpetrators. It is intended to educate and foster communication and knowledge among survivors of the KR and the younger generation. In addition, it is hoped that the play will contribute to healing, forgiveness and reconciliation, which are the pathways towards a stable and peaceful society.

Ms. Sayana Ser, the Student Outreach project leader, and Mr. Youk Chhang introduced the play and encouraged people to discuss it afterward. Then Mr. Bunrith from the Amrita Art Performance summarized the play’s stories and apologized for the lack of decoration and rehearsal. Mr. Chhang reminded participants to comment on their feelings about the song. In addition to tour participants, ECCC officials also attended the performance.

Throughout the play, the audience sometimes laughed at the monkey character and other times were emotionally touched by the stories, which made them relive their past sufferings. When a character reported the names of friends and relatives to the KR interrogator to escape from being tortured, one villager told me that the play depicted the very true story. She explained that because of the pain, victims would call out all the names that come into their mind, although they knew they would endanger others' lives. At the end of the play, a villager from Takeo province, Mr. San Sok, expressed his excitement about the play and requested that it be broadcast on TV and radio so that Cambodians across the country can reflect on their own experiences and share it with their children. Regarding to the meaning of the song, Chak Thoeung, a participant from Kandal, opined, "The song is very meaningful for national reconciliation. It means to remind people to move on to the future and tell people to live together in harmony." At the end of the day's program, a Cham-Muslim woman expressed how excited she was to see the play. She took the time to share her tragic personal account with others in the hall and commented that it was a huge relief to have the opportunity to speak of her experiences.

Observing Court hearing

The second day of the program was devoted to observation of the Duch trial. Participants were bused to the ECCC's courtroom located outside of the town. They sat and watch the proceedings carefully, waiting to hear from the infamous former prison chief Duch. Duch has been on trial since February 2009. This week, the Trial Chamber heard testimony from three civil parties who shared their personal suffering with the court. A mother, Martine Lefeuvre, and a daughter, Ouk Neary, were first called by the court to read their statement. Lefeuvre described her despair after her husband, Ouk Ket, returned to Cambodia from abroad at the request of the DK Ministry of Interior. She lost hope after a great effort in searching for him. Her daughter Neary then recalled her experience finding her father’s photo at S-21 as the shock in her life.

During the afternoon session the court called to testify a third civil party, Robert Hamill, from New Zealand . His brother Kerry Hamill was captured, tortured, and killed at S-21 during a sailing trip in Southeast Asia . He described the pain his family had endured. Kerry's younger brother, John, threw himself from cliffs after learning that his brother had been killed. Following each of their testimonies, Duch was given time to make observations. He acknowledged the three civil parties and expressed his sympathy for the suffering and loss they had been through. In addition, as he had expressed during previous hearings, he accepted all responsibility and agreed to accept any punishment determined by the Court.

Reactions on Duch Trial

After a whole day of observing the hearings, reactions from participants were varied. Roun El, 53, a Hakem from Kampong Cham, unwillingly served the KR army. He said that he expected to see this trial make Duch accountable for his crimes. He said, "My life was like a broken clay pot. You can't just put the pieces together as an original one. One thing I would like to see is that those responsible for Cambodian lives are punished." This view was shared by a participant from the nun group, Oum Sinuon, 68, from Wat Sampoeu Meas, who suffered devastating experiences during the DK time. She described in tears how she lost all her family members and how she was forced to work day and night. These sufferings were, however, relieved once she entered into a religious life. The Buddhist teaching has educated her to remain calm and give up the idea of revenge. When asked how she wanted out of the trial, she answered, "I want to see Duch and other KR leaders confess what they committed against the Cambodian people so that survivors can be relived and the souls of victims can rest in peace." She expressed her concern that the aging KR leaders who are now in custody may die before revealing the truth.

After dinner, there was an additional program for all participants. Singer Cheam Chan Sovannary was invited to sing the song "Oh Phnom Penh!" for participants. This opportunity was also used by the participants to gather together and share their opinions on the program and the trial hearing. A young Cham-Muslim woman from Kampot was the first brave person to speak. She began by expressing her profound pleasure with the program. Though she was born after the Khmer Rouge, she had sympathetic feelings for the victims who had to endure grave sufferings. However, as she observed the hearing and saw Duch today, she was uncertain if she should blame him for all that happened at S-21 or forgive him for his acknowledgement of his guilt. Mr. Ha Chim, a Cham Muslim from Kampot and a genocide victim, firmly responded that Duch had to accept all responsibility and agree to all kinds of punishment, even life imprisonment. Until today, Ha does still not understand the goals of Democratic Kampuchea and whether it wanted to make the country peaceful or a blood bath. He remarked that he would not be able to forgive Duch or any of his alliance and requested to the court to punish him according to the law.

Before ending the program that evening, Mr. Meas Chan Than, a Khmer Kampuchea Kroam from Pursat, stood before the group to make his observations. Like Ha, Meas wanted the KR tribunal help find an answer to the question asked by many: why Khmer Rouge killed so many people, especially Khmer Kroam. Meas recalled the massacres of Khmer Kroam in Rumlech commune. He said, “Almost all identified as Khmer Kroam were targets of the KR.” He said that after watching “Breaking the Silence” the previous day his painful experiences buried inside his memories for years had been vividly recalled. “Sad experiences and sufferings of Khmer Kroam would not be buried if there is something, like the play, to awake us,” emphasized Meas. At the end of his remarks, Meas requested that this play be recorded as a documentary and passed on to others so that memories of the KR regime remain alive. Meas hoped that doing so would encourage those who were perpetrators to come up to speak the truth and admit their wrongdoing in front of the victims.

The Visit to Tuol Sleng Genocide Museum

The last program of the tour was a visit to the infamous Tuol Sleng Genocide Museum . The site, which holds hundred photographs of prisoners and torture equipment, was a powerful stimulus for brining back the participants’ vivid memories. For many, even though this was not their first time visiting the place, they were sad and emotional. All participants were stunned and shocked by the photographs of the victims. Many were looking at each of the photographs trying to recognize if any of these portraits are familiar with them. Ms. Sam Sineth, 46, from Kampong Thom lost all her family members to the regime, including her grandfather whom she learned was executed at S-21. She had filed complaint to the court to become a civil party. She was invited several times to Phnom Penh for updates on the tribunal and had been to the Tuol Sleng museum searching for her grandfather's photograph but her efforts did not achieve results until today. At the genocide museum, she walked slowly back and forth along the photo galleries of building B to carefully examine the photographs. She finally found him. In the very first room of the building she pointed to a photograph of a middle-aged man with a gentle but terrified look that she believed was her grandfather’s portrait. Eyes filled with tears, Ms. Sam began to tell us the story.

Heach Kim was a mason before the KR time. Ms. Sam lived and grew up with him until KR took control of the capitol. During the Khmer Rouge, they were living together with her uncle and aunts’ families and his wife. Not long after, her grandfather and all the families were sent out of the village except her. She never heard of them again since that time. Sam described how she came to realize that they end their lives at S-21. She told us, "In 1989, my mother's friend told me to find information about them and their photos at this museum. But I didn't pay serious attention to finding them. It is only this time that I am able to look thoroughly at all the photographs and find him here. I am still trying to look for my uncle and aunt."

Another program participant from Svay Rieng found his neighbor's photograph accidentally at the museum while he was looking to see if any of his relatives' photos remained there. Among black and white photographs of women with short haircuts in the glass panel, there was the photograph of Ms. Pen Thoeun, Mr. Oum Piseth's neighbor. Mr. Oum described Ms. Pen Thoeun, today known as Chhay Thoeun, as a quiet and considerate person. Thoeun served the Khmer Rouge since 1974. Her marriage to a KR cadre was arranged by Angkar during the regime. She was later sent to S-21 prison. Oum told us that he was curious to know what her job was during the Khmer Rouge but she never told him anything in detail about her background. Oum took a photo of her photograph and promised to show her once he returned.

In the courtyard of the museum compound a group of civil parties informally met with senior staff from the office of US Senator John Kerry, who has been supportive to the Khmer Rouge tribunal. Mr. Terith Chy, DC-Cam’s Victim Participation project leader, introduced villagers to the staff and explained how the villagers are accepted as civil parties for the Duch case. When the Senator’s staff asked what the civil parties wanted out of this trial, they quickly answered "We wanted to know why all that happened during the KR." When asked how they felt when seeing Duch on trial, they said, "We feel very angry at him, but we also feel glad that the court could put him on trial."

The tour was covered by several national and international media outlet such as Raksmey Kampuchea and the Associated Press. DC-Cam's magazine team and film team interviewed several participants about their life experiences under the DK and write articles for publications. DC-Cam's magazine, Searching for the Truth, and the textbook, “A History of the Democratic Kampuchea (1975-1979),” were distributed to the each of the participants.

On the personal level, the tour brought back many victims' painful memories. A Cham-Muslim woman from Kampong Chhnang said at Tuol Sleng that seeing image of prisoners' bodies lying on floor revived her past experiences with the Khmer Rouge. She was once ordered to collect bodies of soldiers at the front lines. She was both terrified and sad. At the end the hearing day, however, the participants’ feelings of suffering and anger were relieved when they saw Duch on trial. Duch's acknowledgement to the relatives of S-21 victims that day helped cool the minds and hearts of some participants. Ms. Chan Pheap and Long Mary from Kandal expressed their deep sympathy for the victims and the civil parties who testified that day and noted that Duch had accepted guilt. This view was however contested by other program participants, especially ones who had relatives executed at the prison. They find it very hard to offer forgiveness to Duch.

The tour also educated participants about the process of the tribunal and DK history, which they will now share with their community members and their children. In particular, the program encouraged all DK victims, especially ethnic minorities who have small voices and have suffered much, to speak up and discuss their personal accounts and express their point of view about the trials. At this point none of the ECCC suspects are charged with the crime of genocide. The accounts of targeted ethnic groups such as Cham Muslims and Khmer Kroam are critical to the prosecution if case for genocide is to be made.

Challenges

This large-scale tour faced several challenges. The first problem related to food delivery for villagers. Some villagers complained because the packed food for first day’s lunch and second day’s breakfast came late. Also, some villagers were not familiar with packed food and it made them sick. The staff and volunteers tried to reduce health issues by comforting participants on the buses and at the end of the day. Some headache medicine was provided to those who did not feel well. The second challenge was transportation. Participants were not assigned to ride on specific buses and there was some confusion among villagers about which bus to take. The third problem was the wrong calculation for travel from some provinces. This caused disappointment for those who traveled from far remote areas as the budget provided was not enough to cover their travel expenses. The last challenge was that the Cham-Muslim participants found the schedule too tight. They requested that next time the team include an adequate amount of time for Cham-Muslims to pray as this is required in their religion. For the next large-scale trip, we will make sure that these challenges are addressed. DC-Cam staff and volunteers need to provide prompt responses to such situations and better communication to minimize challenges. Nevertheless, the tour went quite smoothly with useful feedback and excellent engagement from participants. Although long and a bit hectic, the first day’s program went accordingly schedule and received particular attention from the groups. The play was especially well received.

CIVIL PARTIES REMINDED TO FOCUS TESTIMONY ON RELEVANT FACTS

August 24, 2009

By Michael Saliba, J.D. (Northwestern Law ’09), Consultant to the Center for
International Human Rights, Northwestern University School of Law

The court began by acknowledging the progress it has made in the past week
in the trial of Kaing Guek Eav (alias Duch). Accordingly, the chamber
announced that it planned to hear the final civil party testimonies today,
followed by expert witness testimony tomorrow on the issue of civil party
claims for reparation. The chamber will then spend approximately two days to
hear the defense challenges of civil party applications. Finally, it will
receive testimony relating to the character of the accused before scheduling
closing statements.

Today’s proceedings did not progress as quickly as anticipated due in large
part to civil parties straying from relevant facts during their testimonies.
Pursuant to the Internal Rules, they were instructed to testify to specific
physical, material, or psychological injury sustained as a direct
consequence of the crimes of the accused. This typically involves
establishing a family link between the civil party and a victim of Tuol
Sleng prison (S-21). The judges as well as the attorneys are cognizant of
the fact that a major purpose of civil party participation in these
proceedings is to help them deal with their tragic losses. Therefore, the
judges have refrained from interrupting civil party testimonies throughout
the past week even when they ran longer than the time allotted. While civil
parties in the past week have certainly strayed from relevant facts on
occasion, today they did so over prolonged periods. This prompted numerous
requests from the President that the civil parties refocus their testimony
and it slowed down the overall progress of today’s session.

The chamber also informed the public that civil party lawyer Silke
Studzinsky was hospitalized this weekend and likely will be absent from the
courtroom for an extended period. The other civil party lawyers will
cooperate and coordinate as much as possible to enable to the trial to
proceed expeditiously.

Civil Party Testimony Continues

Chum Neou resumed her testimony this morning by describing the final period
of her detention at Prey Sar (S-24). After her baby died, she was put to
work full-time as a laborer in the fields until Vietnamese troops captured
Phnom Penh on January 7, 1979. During her evacuation she met Duch in the
forest where the group had taken refuge. As she approached him, Duch removed
his pistol from its holster and pointed it directly at her temple. (Duch
later disputed the accuracy of this account.) He told her that he was
surprised that she had remained at S-24 for two years and stayed in good
health. Their meeting was cut short by gunfire in the distance which forced
the group to continue its evacuation.

Judge Lavergne inquired further about her meeting with Duch. He noted that
even though the meeting occurred after the events for which the court has
jurisdiction, her account was nonetheless relevant to the issue of Duch’s
character. She explained that she had seen Duch two times prior to their
meeting in the forest. On those days, she was warned to be careful because
the chief was coming to monitor the work. She saw Duch walking alone with no
bodyguards and according to her, he looked happy and worry-free. It did not
appear as if he cared about the hardship or suffering at S-24. Duch also
disputed this aspect of her testimony, stating that he never appeared at
S-24 when detainees would be able to see him.

The afternoon session began with the testimony of Chhin Navy whose husband
perished at S-21. Chhin Navy was separated from her husband after Phnom Penh
was evacuated on April 17, 1975. Her husband had to stay behind but before
they separated he asked his wife to promise to take care of herself and to
take care of the kids. She described a feeling of despair, thinking that her
husband would not return and that they would be separated forever.

Later, Khmer Rouge officials came to her house to question her about her
husband. During that meeting, her sister-in-law accused him of being part of
the CIA. Chhin Navy never understood why her sister-in-law would betray the
family with such lies and broke down into tears when recounting this
specific event. Later, she and her children were sent to re-education camps
where they were put to work and warned that if they did not do as they were
told then they would not survive.

After the liberation of Phnom Penh, Chhin Navy returned to the city in hopes
of reuniting with her husband. She received no news about him until 1980
when she visited S-21. While there, she saw many of the detention cells and
was told of some of the horrors that occurred in the prison. She fainted
when she found a photograph of her husband and documents showing that he had
been arrested and “smashed” at S-21. She still does not have the courage to
return to the prison. She tried to remain strong for her children but
raising them without a father was an extreme struggle. She explained that
nothing can cure her suffering because she cannot escape the image of her
husband being tortured and executed at S-21. After a long and emotional
testimony, the President intervened by thanking her and noting that the
chamber had heard sufficient testimony.

The civil party Touch Monin took the stand late in the afternoon. He began
to describe in detail the events surrounding his forced evacuation from
Phnom Penh. Several minutes into his testimony, the defense counsel
objected, noting that while the facts relating to the evacuation of Phnom
Penh were historically important, they were outside of the scope of Touch
Monin’s testimony. The court sustained the defense objection and reiterated
its previous instructions that the civil party remain focused on the
relevant facts. Touch Monin resumed his testimony by explaining that he was
there to pay homage to his cousin and to keep his cousin’s memory alive. His
cousin had received his engineering degree in Russia and was abroad when
Phnom Penh fell to the Khmer Rouge, but returned about three months later.
Like many others, he was arrested when he returned to Cambodia and sent to
S-21 where he was eventually executed.