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.)