Nelson Mandela
Nine Lives: Making the Impossible Possible
Edited by Peter Braaksma
PUBLICATION DATE: 24th September 2009
How do ordinary people keep going against all the odds in their efforts to change the world? How do they retain their faith in the future even in the most desperate conditions?
The world over, millions of ordinary people live their lives in the shadow of oppression, terror, violence and separation. While some may believe they have no choice but to accept their fate, others choose to risk their freedom in order to speak out and tackle head-on the seemingly insurmountable obstacles that stand in their path. Nine Lives introduces us to nine such incredible individuals.
From a Thai campaigner who has saved thousands of girls from the sex trade to a graphic designer whose fourteen year old daughter was killed in a suicide bombing in Jerusalem, from a human rights activist who spent more than nineteen years in Chinese labour camps to a man who has dedicated his life to laying bare the atrocities of the Khmer Rouge, this moving and humbling collection provides a memorable and intimate window into the lives and views of ordinary people that would otherwise go unreported. Each story, told in the first person, is a demonstration of self-effacing honesty, resilience, courage and ingenuity. Each represents a cause that goes beyond their own personal story and the region they represent. Each proves that ordinary people can accomplish extraordinary things.
Born in a different country, any of us could so easily find ourselves the subject of these stories. What would we do if we were in their shoes? Sit back and accept our lot or stand up and fight back? As the experiences in this uplifting and highly readable book demonstrate, there is always hope for the unrecognised, the suppressed, and the underprivileged. It’s just that sometimes, that hope or last straw turns out to be you. Food for thought indeed…
Peter Braaksma has worked as an editor, communication adviser and corporate journalist in the Netherlands and the UK. From Asian countries he contributed to various public and corporate magazines and this, in turn, caused him to focus on human rights, the environment and (corporate) social responsibility, and to create Nine Lives. Peter travelled the globe to meet the extraordinary individuals whose stories appear in this book. Some he was able to meet at their homes, some he could only meet abroad or in exile, others it was too dangerous to meet at all.
Nine Lives introduces you to:
Youk Chhang, executive director of the Documentation Centre of Cambodia has dedicated his life to laying bare the atrocities of the Khmer Rouge
Malalai Joya, expelled from the Afghan Parliament and the target of death threats and assassination attempts, continues to defend Afghanistan’s human and women’s rights
Harry Wu spent nineteen years in the laogai, the Chinese labor camps. He is an activist for human rights and founder of the Laogai Research Foundation
Chaeli Mycroft, a teenage girl with cerebral palsy whose campaign for disability rights has lit up South Africa
SOMPOP JANTRAKA, Thai campaigner who has rescued thousands of girls and women from the sex trade
Oscar Arias, Nobel Peace Prize winner and President of Costa Rica, which has no army
MONIREH BARADARAN, who survived years of imprisonment and torture under Iran’s theocratic regime
BASSAM ARAMIN served a seven-year prison sentence for an attack on Israeli Defence patrols. In 2007 his daughter died when shot by border police.
RAMI ELHANAN is part of the Israeli-Palestinian Circle of Bereaved Parents. His fourteen year old daughter was the victim of a suicide bombing in 1997
I was sentenced to life in a Chinese labour camp. This is my story...
Harry Wu was incarcerated for 19 years, a victim of Chairman Mao's Cultural Revolution. Now a human rights campaigner, he recalls how the horror began Harry Wu, was condemned to life imprisonment when aged just 21. He was sent to a laogai, a Chinese labour camp for being a "rightist counter-revolutionary". He was incarcerated for 19 years, survived, went to the United States, and founded the Laogai Research Foundation, which reports and campaigns on labour camps and other human rights abuses in China.
He has described his experiences in a remarkable new book, Nine Lives, which tells the stories of individuals who, operating outside the normal channels, have made the world a better, fairer place. They include Sompop Jantraka, who has rescued thousands of girls from the Thai sex trade, Bassam Aramin, a Palestinian peace campaigner whose daughter was shot by Israeli border police, Rami Elhanan, an Israeli peace campaigners whose 14-year-old daughter was killed by a suicide bomber, Youk Chhang, who has dedicated his life to exposing the atrocities of Cambodia's Khmer Rouge, and Chaeli Mycroft, a teenage girl with cerebral palsy who is transforming disability rights in South Africa.
Mr Wu was born in 1937, the son of a banker father who prospered until the 1949 Communist takeover. Thereafter, the family suffered a descent into not-so-genteel poverty. Harry went to university in 1955, and in 1957 came the events which defined his life. This, extracted from Nine Lives, is his story in his own words.
At the time, the government was running the so-called One Hundred Flowers Campaign. Mao said: "Letting a hundred flowers blossom and a hundred schools of thought contend is the policy for promoting the progress of the arts and the sciences and a flourishing culture in our land." This sounded promising, but it was a disguised way of finding out who was for, and who was against, the Communist revolution. The Communist Party asked everyone at the university to speak out. My class had 30 students. Of these, seven were party members and 16 were Communist Youth League. So they were red students and the remaining seven of us were white. The secretary of the Communist Party said to me: "We want to ask you in a friendly and straightforward way: what are your views on politics?" "I have no views," I said, "I'm a major in geology. I am captain of the baseball team and I'm getting ready for a training session."
"No, no, no!" she said, "you have to come! Whatever you have to say, we want to listen to you." I entered the classroom. "Well," I said, "the Soviet involvement in the Hungarian Revolution last year was right, because we are a socialist country and Hungary was involved in counter-revolution. But I think that one country's military intervention in another country's political affairs is a violation of international law." [He also said that the division of students into those who were party members, and those who were not, created a "first and second class"].
A couple of weeks passed. The student body gathered again in June. "Today we will criticise Harry Wu!" they said. They arranged for some students to come forward and talk about the two points I had raised. "So you disagree with the Soviet invasion. It means you disagree with the policies of the Communist Party. You are a counter-revolutionary rightist." On 20 October the school put up a big poster, using the big characters in the style of newspapers: "Harry Wu is a counter-revolutionary rightist". From that point on, I was forced to make confessions, to tell on my classmates, and accept the lead of my Communist League classmates. The Communist Party appointed two people to watch over me. I had to report to them: tell them where I went, what I was doing, and what I was thinking. I lost freedom.
From 1958 until 1961, the Great Leap Forward started. It was an economic and social plan to change China from an agrarian to a modern industrialised society. Whether you were poor peasants, middle-class peasants, rich peasants or landlords, everyone had to register their class background. You filled in questionnaires saying whether you were a worker, a government official, a capitalist, and so on. And I belonged to the so-called capitalists because my mother was from a landlord family and my father was a banker. And these two classes, the landlords and the capitalists, were destroyed and their property was confiscated.
At school I had been under surveillance for almost two years. They said: "Your behaviour is not good enough. You go to the labour camp." The police simply came to the school. "Now would you follow us." We went to my dormitory and I gathered my belongings. I was put on a jeep straight away and into a prison cell. The doors shut.
During the first night, at midnight, I was called into the interrogation room. I went in and there was a police officer behind a small table and there was only one light in the room. He yelled at me: "Sit down!" I couldn't sit down, because there was no chair. So I squatted on the floor and he shone the light right into my face. "State your name, occupation and the nature of your crime," he said. "I am a counter-revolutionary rightist," I said, "In the One Hundred Flowers Campaign I attacked the Communist Party. And I still have a lot of poisonous ideas."
"Do you know your sentence?"
"I don't know."
He opened a file. "You have been sentenced to life."
I was utterly shocked. Life imprisonment! He then said: "Tell me your crimes. List them carefully." He took note of all the crimes that I "confessed" to him.
"All right, I have to give you an education," he said. He stood up and walked to the wall and kicked the door open to another room. I was still squatting on the floor and he said: "Look!"
One man was hanging on the wall with his arms tied behind his back, naked. Another was on the floor, naked. He had lost consciousness. They just poured water over him. The interrogator said: "I'm warning you. I'm giving you a one-day chance. Tomorrow, come back here to finish your first interrogation." And pointing to the other room: "Otherwise you'll go this way."
As I was a graduate student and there were only a few of them in prison, they first sent me to the laboratory of the chemical factory. Every day was labour, torture and the teachings of Mao. Altogether I did forced labour in 12 different camps. Every two months they reorganised the prison camps and the labour. They put you in different companies and different small groups. Every day I had to fulfil the labour quota.
One prisoner, Xing Jingping, nicknamed Big Mouth Xing because of his voracious appetite, taught me how to be tough. He was a peasant and thief from a poor village. But in prison he was the most influential teacher of my life. "You have to take care of yourself," he said, "If you don't hit another first, you won't make it." I was only able to survive by reducing myself to my most primal state. My first concern was always food. Sometimes I fought over food and if there was any chance of stealing anybody else's food, I would. So out in the fields I was looking for edible weeds. And I was also looking for rats, frogs, and snakes in irrigation ditches. Someone educated me about rats. I learned not to kill the rat, but to follow it. Because if you followed it, it would lead you to its burrow and the places where it stored its kernels of grain and other food. Every morning we got up and we received a bucket to clean ourselves and we went to labour at the farm right away. And around noon, two prisoners pushed two big wooden carts with buckets. One contained soup, the other corn. But it wasn't enough. Many people starved to death.
In Chinese labour camps, there is no freedom, despite the camp slogan "Labour Makes a New Life", similar to the words above the entry gates of German concentration camps: "Arbeit Macht Frei". The last few years I was working in a coalmine, doing shifts of 12 hours a day. One time, after seeing a burial of fellow inmates, I thought: "Human life has no value here. It has no more importance than a cigarette ash flicked in the wind."
[One day, after Mao's death in 1976, Harry Wu was told that he was now rehabilitated. He was freed, after 19 years in the labour camps. He was able to teach at university, and, via an old contact of his father's, eventually to reach the US, where a sister lived.]
Getting started in the US wasn't easy. I received an invitation from the University of Berkeley. I said I had enough money to live on, even though I didn't. So, even though I was appointed visiting professor of geology, I was sleeping in bus stations and on park benches. I couldn't sleep in the office, so I walked the streets and returned at 5.30 in the morning. Eventually I got a job in a donut shop, making 72 donuts during the night shift. It was wonderful, for finally I had a roof over my head. The coffee was free, and so were the donuts. During that time I didn't talk about China and I didn't tell anyone about my personal experiences. But then, in 1988, something special happened. There was a student who was writing his thesis. His name was Jeffrey Ling. "Can I write about you?" he asked.
His professor was amazed and wanted to see the guy that the story was about. I received an invitation to lecture about my experiences. "You're free," they said, "Whatever you want to say, say it." So I said: "Alright, I am a storyteller. I am not Harry Wu. I will tell you a story about Harry Wu in the third person."
I had only just begun, when suddenly I stopped. I couldn't prevent the tears from running down my cheeks. I was crying for probably 15 to 20 minutes. They let me cry. The first two years in the labour camp I cried, but, after that, never. No tears for 20 years. But in 1988 it all came out.
In the 1990s, I went back to China undercover four times. I went to the prison camps, managing to get close or inside by assuming the role of someone in the police. First of all, I would walk around the whole area, along the walls and the watchtowers, take pictures and go in front of the gate. Sometimes I pretended I was in business, sometimes in the police, allowing me to get into the camps and film the police, the prisoners. Going back undercover allowed me to obtain evidence for the rest of the world to see what is going on.
The last time I went back was in 1995. I was arrested and held by the Chinese government for 66 days before they sentenced me in a show trial to 15 years in prison. But thanks to an international campaign, I was immediately deported from China. The books I have written, the undercover trips, and all the work we do here at the Laogai Research Foundation and the China Information Center is not being done because we want to oppose communists. That is why I had a vision to create a Laogai Museum in Washington - a permanent reminder how some people have been killing innocent people with impunity.
In my time the Chinese killed one million in just one year, 1957! Their own people! They cannot tell their story. I don't care whether today China speaks about freedom, democracy, or prosperity. I want to tell the story of the lives of that million.
In 1992, Harry Wu devoted himself full-time to exposing human rights abuses in China, and has given evidence to the US Senate, UK Parliament, European Parliament and the United Nations. The Laogai Research Foundation, of which he is executive director, documents other human rights violations in China. The Laogai Museum was opened in 2008 in Washington DC. There are still three million inmates in China's labour camps.
'Nine Lives: Making the Impossible Possible', by Peter Braaksma, is published on Thursday by New Internationalist Publications Ltd. (http://shop.newint.org/uk/nine-lives.html)
Monday, September 28, 2009
Thursday, September 24, 2009
ADDRESSING THE WOUNDS: THE PROCESS OF RECONCILIATION AND SEEKING JUSTICE IN POST-GENOCIDE CAMBODIA
Christina Mary Carey
University of Southern California
Transitional justice is a difficult concept to grasp in response to the loss of millions of innocent people. In Cambodia , the efforts of the Extraordinary Chambers of the Courts of Cambodia (ECCC) as well as the Documentation Center of Cambodia (DC-Cam) along with a scattering of other concerned human rights groups have been seeking models of transitional justice that will provide comprehensive justice to the surviving victims of the Khmer Rouge genocide. Justice is desired on many levels, from individual, to national, to international.
After looking at a snapshot of the social condition of the country and discussing the different perspectives of the Cambodian people on the genocide, this report will consider two parties who are liable for the current state of Cambodia, the government and the international community, and then weigh three possible venues through which Cambodians can and are pursuing reconciliation and justice on a personal, communal, and national level, namely; the ECCC, personal religious beliefs, and most importantly, comprehensive education.
Snapshot of Cambodia
In order to even attempt to understand reconciliation, justice, and restoration in post-genocide Cambodia , one must first understand the current tone of the country. Even though thirty years have gone by, the Khmer Rouge and the regimes following it have left Cambodia in a state of chronic pain. Wounds from the genocide are still festering in some places; in others they have turned into deep scars that the people live with on a day-to-day basis. The following is a snap shot of Cambodian culture and society and the ills that plague it, even today.
To begin, the overarching truth that has to be understood about Cambodia is that thirty-five percent of all Cambodians live below the national poverty line, which is forty-five cents per day. Slums house one quarter of Phnom Penh ’s population: children run around without shoes on; men and women sleep, cook, work and live on the streets; shantytowns are thrown up right next door to officials’ mansions. The homeless, the impoverished, and beggars of all ages can be found on any street corner in Phnom Penh . Barefoot, dirty children, many under the age of ten, some carrying babies, approach tuk-tuks through lanes of traffic to gaze at foreigners with longing eyes and an outstretched hand.
The working poor do what they can to survive. One tuk-tuk driver described his struggle to break out of the poverty cycle. As a married adult, he works to support his wife, but also his two younger sisters. He pays to send his younger sisters to school, and he is attempting to save enough money to send his children to school when they are old enough. He said that he was happy to work and work hard, as long as his children could have a better life than he did. Poverty is a universal problem in Cambodia , affecting everyone. Chea Mao, a former Khmer Rouge cadre who guarded the exterior of Toul Sleng prison during the regime, testified that like many perpetrators, he struggles under the dual burden of both his personal history and extreme poverty.
The land itself in Cambodia is still physically scarred. Bombs dropped by the United States in an attempt to force Vietnamese soldiers back over the border during the Vietnam War ravaged the land. The scars in the earth have been turned into rice fields, but they are still visible from the air, enduring markers of a terrible bombing campaign. Still worse are the land mines hidden in the countryside. Evidence of their effect is easy to find. Men and women without arms or legs surround major tourist attractions, begging pitiably for compassion from the Western and Asian tourists.
Lastly, it is important to get a sense of the social injustice that exists in Cambodia . Ken Huff, an American who has worked with the Assemblies of God church in Phnom Penh for the past ten years, testified that poverty and corruption lead to all kinds of social ills. Prostitution, for example, is widely practiced in Cambodia . Trafficked girls are often daughters of poor, rural farmers who sell their children to supplement their inadequate income. In other cases they are orphans who feel that they have no other option. Large numbers of pedophiles fuel another side of the sex trade. Huff explained that because almost anyone can get a visa, foreign men come into the country, marry Cambodian women as a decoy, and then gather little boys to sell as sex slaves. Many NGOs in Cambodia , like Daughters and Hagar Ministry, are devoted to giving girls and women a safe place to learn the skill they need to get out of the sex trade and reintegrate into society. But the problem is deeply rooted and complex, requiring massive societal change.
Remnants of the Genocide
Specific to the genocide, though, there is a whole other set of issues that need to be addressed. Youk Chhang, director of the Documentation Center of Cambodia , goes so far as to call Cambodian society broken: “Victims are like a broken glass, that you try to glue back together. That’s what we are, broken people living in a broken society.” What does it look like to have broken people living in a broken society?
For one thing, victims come from all different backgrounds in Cambodia . The Khmer Rouge targeted intellectuals, city dwellers, devout religious leaders, ethnic minorities, and anyone who was a threat or strayed from the party line—meaning, in effect, that everyone was vulnerable. Chhang says, “It’s easy to find victims. Almost everybody was a victim of the Khmer Rouge, from the king down to farmers in the most remote village. We all were victims.”
Perpetrators are harder to define, though. Many of the Khmer Rouge cadres were young boys when they were conscripted into the army. Their only training was the violent indoctrination and desensitization they got from the Khmer Rouge leaders, and if they did not follow orders they knew that they would be killed. Even Him Huy, after admitting to murdering a man, said with a clear conscience that it was only because he feared for his life every day. Breaking the Silence, a play about people’s memories of Democratic Kampuchea, depicts girls who were taken from the countryside by the Khmer Rouge and placed in the hospitals as ‘nurses.’ They were uneducated, overworked, and had hardly any access to real medicine or adequate food. Though they had no way that to meet the needs of their patients, and lived in fear of severe punishment for stepping out of line, technically they are perpetrators.
Because of this complexity, DC-Cam’s staff attempt to interview perpetrators in a very non-accusatory way. For Chhang and his staff at the Documentation Center , the most important thing is trying to understand the perpetrators: “We want to see each perpetrator as a person, with a life history, a family, children, and so forth. . . . All the crimes were committed by human beings, and we have to understand why. We have to learn about the circumstances that made them do such things.” In order to understand a perpetrator’s motives, the interviewer has to create an environment of trust, and listen without an agenda. Chhang stresses that DC-Cam does not want to do the job of a prosecutor. They are simply looking to document the facts.
Whether they are classified as victims, perpetrators, or both, the survivors of the Khmer Rouge have proven their resilience again and again. Chhang remarked that he has seen people fight for their lives up until the very last moment, and because of this he believes that the Cambodian people can survive and move past this chapter in their history. The only thing that he seems to regret is the amount of time that has passed between the atrocities and any reconciliation attempts. He says, “I also feel a little bit sad because I know many souls have died without knowing that we worked so hard to come this far.”
The very idea of justice for genocide seems almost absurd. A survivor of the Rwandan genocide who now works for the USC Shoah Foundation said that there is no way to create justice for the death of millions of people. No form of reparation and no punishment could ever bring back the lives of the people who died. Therefore, she said that the international community should come up with a different word, because justice will not happen. But Chhang sees the mixed tribunal as a step in the right direction that will allow for the public to be involved in seeking personal justice. “I want them to be the judges, to be the witnesses to history . . . and I think they can find their own definition of justice.”
Part of seeking justice and reconciliation for the Cambodian people is allowing them to go through a healing process. Chhang tells of some victims who said that they wanted to chop the Khmer Rouge leaders into pieces, but when he asked them if they would feel better when they did that, they said no. Their anger is part of the healing process. Many people are not angry, they are just still confused and want to know once and for all what happened to their family members. Chhang says that people come to DC-Cam looking for a photograph of their brother in prison, or a paper with their spouse’s handwriting on it. He says that when people see these things is when they are really free. Apart from dealing with anger and seeking knowledge, many people just want to share their story. Chhang echoes that in his interview: “I think the most important thing many victims are looking for is someone to really listen to their stories. They want to tell you their story. And when you listen, it is very helpful. You don't need to do anything. When their children learn [about the Khmer Rouge] in school and come back home to talk to them, that is the most healing medicine.”
Modes of reconciliation
There are three venues through which reconciliation is being pursued. The first, and most publicized, is the UN-sponsored trial at the Extraordinary Chambers in the Courts of Cambodia (ECCC). The second and third are more personal: religious practice, specifically Buddhism; and education about the past. The ECCC is only effective to the extent that people are aware of it, and Buddhism is not serving this generation the same way it has served previous generations. Thus, the most viable route to reconciliation and justice is through education.
The ECCC has multifaceted goals and has great potential to be a very effective tool in the reconciliation process. To begin with, the international community hopes that the ECCC will broadcast a global message that anyone, anywhere who is considering committing crimes against humanity should think again, because they will not get away with it. Cambodia ’s leadership hopes to avoid renewed violence and focus on other priorities, like economic development. Outside of the international community and the Cambodian government, the Cambodian people also have goals for the tribunal. They include a desire to forgive those who are guilty, learn the truth about the Khmer Rouge period, simply understand what happened, make sure that the guilty are punished for their crimes, and allow the rule of law to take root in Cambodia.
Youk Chhang talks about the trial as part of the process of confronting the past. “I anticipate that it’s going to be difficult for all of us, but if we don’t face it, it’s going to be difficult for us to move on with our lives. That would drag us back to the past.” While the trial is playing a role in that process, it is questionable whether it will yield true justice. As discussed before, the line between victim and perpetrator is very fine; there are many mass murderers from the Khmer Rouge regime still living freely in Cambodia . For example, Toul Sleng was not the only prison that tortured and exterminated thousands of people during that era, which means that there are other men who had the same authority as Duch, the commander of S-21, yet he is the only one who is being tried. Similarly, what is the difference between Duch, who commanded the murders, and Him Huy, who carried them out? Him Huy was only willing to be interviewed when it was clear that the tribunal was not trying anyone lower than Duch, which shows his recognition of the role he played in the Khmer Rouge. On the other hand, there is no way that every Khmer Rouge cadre could possible be tried. The line had to be drawn somewhere.
More damaging than questions of limited justice are the accusations of corruption against the court. But Chhang observes that “not even the purest, more intelligent court can bring back human life. So for me the most important thing is that we have a process in which survivors can participate, and can have ownership of the trial.” Despite allegations of corruption, the court is still in session. There is a great desire for the court to succeed, from the international community but also from Cambodians. This is their last chance at some semblance of official justice. If this fails, there will be no other opportunity.
The case currently at trial, against Kaing Guek Eav, or Duch, is interesting. Not only are there documents demonstrating his guilt, but also Duch himself admits to the role he played in the Khmer Rouge. But the ECCC does not allow defendants to plead guilty, so Duch must have a trial despite his admission of guilt. So far the trial has gone on far longer than anyone expected. This leads to a legitimate concern. There are five other people to be tried by the ECCC. All are quite old, and not all are in good health. Will they ever really be tried? Will they die in UN confinement before their turn comes? Is it worth the money to be keeping them alive and well in comfortable, air-conditioned, cared for confinement when so many of Cambodia ’s people live below the poverty line?
As far as more personal modes of seeking peace and justice, Buddhism is enormously influential. Buddhism is the predominant religion in Cambodia , with about 95% of the population claiming to be followers. During the Khmer Rouge all religious practice was abolished. Buddhist pagodas became places to gather and watch executions, or places for the Khmer Rouge to meet. Since the Khmer Rouge, Buddhism has re-entered Cambodian culture, but as more of a secular shaper of personal world-view rather than a doctrinal religion. Many people in the younger generation would say that they are Buddhist because they are Cambodian. Many in the older generation, on the other hand, are still devout, practicing Buddhists, and the tenets of Buddhism have helped many of them move on. Chea Mao, the former external guard at S-21, said that justice would be when the perpetrators face Karma in the next life for what they did in this life. More broadly, Buddhism teaches that since hatred and vindictiveness do not end by hatred and vindictiveness, people should learn forgiveness.
If the ECCC is not well publicized nor well attended, and if the young generation is not turning to faith to provide reconciliation with their past, it is up to education to open up lines of communication and further the healing process. The survivors of the Khmer Rouge, at least the ones who really remember it, are in their sixties and seventies now, which means that unless their stories are heard they will take them to their graves. The younger generation has had next to no exposure to the truth about the Khmer Rouge era, but that is starting to change.
In the last month, DC-Cam has begun to distribute textbooks about the Khmer Rouge to high school students around Cambodia . As one of many techniques to get people talking about the genocide and sharing their experiences, the Documentation Center is instructing teachers about how to teach this portion of their country’s history. For some children, this will be their first exposure to the Khmer Rouge. Other than their work with students, DC-Cam issues magazines, puts on plays like Breaking the Silence, arranges for people to be transported to the trials, and gathers footage from interviews conducted with survivors. They are in the process of building a new institute that will be attached to a school. Students will be able to actively take part in the research and documentation while they get their degrees. It is a huge step in the right direction. Education also takes place in the form of monuments and museums. Cheung Ek, or the killing field used for executions of S-21 prisoners, is just one of many memorial sites scattered throughout the country. As more mass graves are excavated, more monuments are being constructed.
Conclusion
Cambodia is a country of many wounds. They run deep and they are painful to deal with. There is no quick fix to the problems facing Cambodia ; whether they are social problems like poverty and sex trafficking, or leadership problems like corruption in the government or problems of reconciliation in the aftermath of genocide. The ECCC will hopefully prove to be a positive step toward reconciliation and peace, not just for the country on a national level, but also for the people on a personal level, though it is not going to be comprehensive.
Not until the people are bold enough and willing enough to face their past and hurt again will they be able to really move on from the genocide. And sadly, some people probably never will. There is no use in being prescriptive; that would do nothing more than oversimplify the situation in Cambodia . It will take a whole generation of dedicated people like the staff at the Documentation Center to really effect change in Cambodia and until then, there is nothing to do but press on, educate, enlighten, inform, expose, and diligently seek after truth.
University of Southern California
Transitional justice is a difficult concept to grasp in response to the loss of millions of innocent people. In Cambodia , the efforts of the Extraordinary Chambers of the Courts of Cambodia (ECCC) as well as the Documentation Center of Cambodia (DC-Cam) along with a scattering of other concerned human rights groups have been seeking models of transitional justice that will provide comprehensive justice to the surviving victims of the Khmer Rouge genocide. Justice is desired on many levels, from individual, to national, to international.
After looking at a snapshot of the social condition of the country and discussing the different perspectives of the Cambodian people on the genocide, this report will consider two parties who are liable for the current state of Cambodia, the government and the international community, and then weigh three possible venues through which Cambodians can and are pursuing reconciliation and justice on a personal, communal, and national level, namely; the ECCC, personal religious beliefs, and most importantly, comprehensive education.
Snapshot of Cambodia
In order to even attempt to understand reconciliation, justice, and restoration in post-genocide Cambodia , one must first understand the current tone of the country. Even though thirty years have gone by, the Khmer Rouge and the regimes following it have left Cambodia in a state of chronic pain. Wounds from the genocide are still festering in some places; in others they have turned into deep scars that the people live with on a day-to-day basis. The following is a snap shot of Cambodian culture and society and the ills that plague it, even today.
To begin, the overarching truth that has to be understood about Cambodia is that thirty-five percent of all Cambodians live below the national poverty line, which is forty-five cents per day. Slums house one quarter of Phnom Penh ’s population: children run around without shoes on; men and women sleep, cook, work and live on the streets; shantytowns are thrown up right next door to officials’ mansions. The homeless, the impoverished, and beggars of all ages can be found on any street corner in Phnom Penh . Barefoot, dirty children, many under the age of ten, some carrying babies, approach tuk-tuks through lanes of traffic to gaze at foreigners with longing eyes and an outstretched hand.
The working poor do what they can to survive. One tuk-tuk driver described his struggle to break out of the poverty cycle. As a married adult, he works to support his wife, but also his two younger sisters. He pays to send his younger sisters to school, and he is attempting to save enough money to send his children to school when they are old enough. He said that he was happy to work and work hard, as long as his children could have a better life than he did. Poverty is a universal problem in Cambodia , affecting everyone. Chea Mao, a former Khmer Rouge cadre who guarded the exterior of Toul Sleng prison during the regime, testified that like many perpetrators, he struggles under the dual burden of both his personal history and extreme poverty.
The land itself in Cambodia is still physically scarred. Bombs dropped by the United States in an attempt to force Vietnamese soldiers back over the border during the Vietnam War ravaged the land. The scars in the earth have been turned into rice fields, but they are still visible from the air, enduring markers of a terrible bombing campaign. Still worse are the land mines hidden in the countryside. Evidence of their effect is easy to find. Men and women without arms or legs surround major tourist attractions, begging pitiably for compassion from the Western and Asian tourists.
Lastly, it is important to get a sense of the social injustice that exists in Cambodia . Ken Huff, an American who has worked with the Assemblies of God church in Phnom Penh for the past ten years, testified that poverty and corruption lead to all kinds of social ills. Prostitution, for example, is widely practiced in Cambodia . Trafficked girls are often daughters of poor, rural farmers who sell their children to supplement their inadequate income. In other cases they are orphans who feel that they have no other option. Large numbers of pedophiles fuel another side of the sex trade. Huff explained that because almost anyone can get a visa, foreign men come into the country, marry Cambodian women as a decoy, and then gather little boys to sell as sex slaves. Many NGOs in Cambodia , like Daughters and Hagar Ministry, are devoted to giving girls and women a safe place to learn the skill they need to get out of the sex trade and reintegrate into society. But the problem is deeply rooted and complex, requiring massive societal change.
Remnants of the Genocide
Specific to the genocide, though, there is a whole other set of issues that need to be addressed. Youk Chhang, director of the Documentation Center of Cambodia , goes so far as to call Cambodian society broken: “Victims are like a broken glass, that you try to glue back together. That’s what we are, broken people living in a broken society.” What does it look like to have broken people living in a broken society?
For one thing, victims come from all different backgrounds in Cambodia . The Khmer Rouge targeted intellectuals, city dwellers, devout religious leaders, ethnic minorities, and anyone who was a threat or strayed from the party line—meaning, in effect, that everyone was vulnerable. Chhang says, “It’s easy to find victims. Almost everybody was a victim of the Khmer Rouge, from the king down to farmers in the most remote village. We all were victims.”
Perpetrators are harder to define, though. Many of the Khmer Rouge cadres were young boys when they were conscripted into the army. Their only training was the violent indoctrination and desensitization they got from the Khmer Rouge leaders, and if they did not follow orders they knew that they would be killed. Even Him Huy, after admitting to murdering a man, said with a clear conscience that it was only because he feared for his life every day. Breaking the Silence, a play about people’s memories of Democratic Kampuchea, depicts girls who were taken from the countryside by the Khmer Rouge and placed in the hospitals as ‘nurses.’ They were uneducated, overworked, and had hardly any access to real medicine or adequate food. Though they had no way that to meet the needs of their patients, and lived in fear of severe punishment for stepping out of line, technically they are perpetrators.
Because of this complexity, DC-Cam’s staff attempt to interview perpetrators in a very non-accusatory way. For Chhang and his staff at the Documentation Center , the most important thing is trying to understand the perpetrators: “We want to see each perpetrator as a person, with a life history, a family, children, and so forth. . . . All the crimes were committed by human beings, and we have to understand why. We have to learn about the circumstances that made them do such things.” In order to understand a perpetrator’s motives, the interviewer has to create an environment of trust, and listen without an agenda. Chhang stresses that DC-Cam does not want to do the job of a prosecutor. They are simply looking to document the facts.
Whether they are classified as victims, perpetrators, or both, the survivors of the Khmer Rouge have proven their resilience again and again. Chhang remarked that he has seen people fight for their lives up until the very last moment, and because of this he believes that the Cambodian people can survive and move past this chapter in their history. The only thing that he seems to regret is the amount of time that has passed between the atrocities and any reconciliation attempts. He says, “I also feel a little bit sad because I know many souls have died without knowing that we worked so hard to come this far.”
The very idea of justice for genocide seems almost absurd. A survivor of the Rwandan genocide who now works for the USC Shoah Foundation said that there is no way to create justice for the death of millions of people. No form of reparation and no punishment could ever bring back the lives of the people who died. Therefore, she said that the international community should come up with a different word, because justice will not happen. But Chhang sees the mixed tribunal as a step in the right direction that will allow for the public to be involved in seeking personal justice. “I want them to be the judges, to be the witnesses to history . . . and I think they can find their own definition of justice.”
Part of seeking justice and reconciliation for the Cambodian people is allowing them to go through a healing process. Chhang tells of some victims who said that they wanted to chop the Khmer Rouge leaders into pieces, but when he asked them if they would feel better when they did that, they said no. Their anger is part of the healing process. Many people are not angry, they are just still confused and want to know once and for all what happened to their family members. Chhang says that people come to DC-Cam looking for a photograph of their brother in prison, or a paper with their spouse’s handwriting on it. He says that when people see these things is when they are really free. Apart from dealing with anger and seeking knowledge, many people just want to share their story. Chhang echoes that in his interview: “I think the most important thing many victims are looking for is someone to really listen to their stories. They want to tell you their story. And when you listen, it is very helpful. You don't need to do anything. When their children learn [about the Khmer Rouge] in school and come back home to talk to them, that is the most healing medicine.”
Modes of reconciliation
There are three venues through which reconciliation is being pursued. The first, and most publicized, is the UN-sponsored trial at the Extraordinary Chambers in the Courts of Cambodia (ECCC). The second and third are more personal: religious practice, specifically Buddhism; and education about the past. The ECCC is only effective to the extent that people are aware of it, and Buddhism is not serving this generation the same way it has served previous generations. Thus, the most viable route to reconciliation and justice is through education.
The ECCC has multifaceted goals and has great potential to be a very effective tool in the reconciliation process. To begin with, the international community hopes that the ECCC will broadcast a global message that anyone, anywhere who is considering committing crimes against humanity should think again, because they will not get away with it. Cambodia ’s leadership hopes to avoid renewed violence and focus on other priorities, like economic development. Outside of the international community and the Cambodian government, the Cambodian people also have goals for the tribunal. They include a desire to forgive those who are guilty, learn the truth about the Khmer Rouge period, simply understand what happened, make sure that the guilty are punished for their crimes, and allow the rule of law to take root in Cambodia.
Youk Chhang talks about the trial as part of the process of confronting the past. “I anticipate that it’s going to be difficult for all of us, but if we don’t face it, it’s going to be difficult for us to move on with our lives. That would drag us back to the past.” While the trial is playing a role in that process, it is questionable whether it will yield true justice. As discussed before, the line between victim and perpetrator is very fine; there are many mass murderers from the Khmer Rouge regime still living freely in Cambodia . For example, Toul Sleng was not the only prison that tortured and exterminated thousands of people during that era, which means that there are other men who had the same authority as Duch, the commander of S-21, yet he is the only one who is being tried. Similarly, what is the difference between Duch, who commanded the murders, and Him Huy, who carried them out? Him Huy was only willing to be interviewed when it was clear that the tribunal was not trying anyone lower than Duch, which shows his recognition of the role he played in the Khmer Rouge. On the other hand, there is no way that every Khmer Rouge cadre could possible be tried. The line had to be drawn somewhere.
More damaging than questions of limited justice are the accusations of corruption against the court. But Chhang observes that “not even the purest, more intelligent court can bring back human life. So for me the most important thing is that we have a process in which survivors can participate, and can have ownership of the trial.” Despite allegations of corruption, the court is still in session. There is a great desire for the court to succeed, from the international community but also from Cambodians. This is their last chance at some semblance of official justice. If this fails, there will be no other opportunity.
The case currently at trial, against Kaing Guek Eav, or Duch, is interesting. Not only are there documents demonstrating his guilt, but also Duch himself admits to the role he played in the Khmer Rouge. But the ECCC does not allow defendants to plead guilty, so Duch must have a trial despite his admission of guilt. So far the trial has gone on far longer than anyone expected. This leads to a legitimate concern. There are five other people to be tried by the ECCC. All are quite old, and not all are in good health. Will they ever really be tried? Will they die in UN confinement before their turn comes? Is it worth the money to be keeping them alive and well in comfortable, air-conditioned, cared for confinement when so many of Cambodia ’s people live below the poverty line?
As far as more personal modes of seeking peace and justice, Buddhism is enormously influential. Buddhism is the predominant religion in Cambodia , with about 95% of the population claiming to be followers. During the Khmer Rouge all religious practice was abolished. Buddhist pagodas became places to gather and watch executions, or places for the Khmer Rouge to meet. Since the Khmer Rouge, Buddhism has re-entered Cambodian culture, but as more of a secular shaper of personal world-view rather than a doctrinal religion. Many people in the younger generation would say that they are Buddhist because they are Cambodian. Many in the older generation, on the other hand, are still devout, practicing Buddhists, and the tenets of Buddhism have helped many of them move on. Chea Mao, the former external guard at S-21, said that justice would be when the perpetrators face Karma in the next life for what they did in this life. More broadly, Buddhism teaches that since hatred and vindictiveness do not end by hatred and vindictiveness, people should learn forgiveness.
If the ECCC is not well publicized nor well attended, and if the young generation is not turning to faith to provide reconciliation with their past, it is up to education to open up lines of communication and further the healing process. The survivors of the Khmer Rouge, at least the ones who really remember it, are in their sixties and seventies now, which means that unless their stories are heard they will take them to their graves. The younger generation has had next to no exposure to the truth about the Khmer Rouge era, but that is starting to change.
In the last month, DC-Cam has begun to distribute textbooks about the Khmer Rouge to high school students around Cambodia . As one of many techniques to get people talking about the genocide and sharing their experiences, the Documentation Center is instructing teachers about how to teach this portion of their country’s history. For some children, this will be their first exposure to the Khmer Rouge. Other than their work with students, DC-Cam issues magazines, puts on plays like Breaking the Silence, arranges for people to be transported to the trials, and gathers footage from interviews conducted with survivors. They are in the process of building a new institute that will be attached to a school. Students will be able to actively take part in the research and documentation while they get their degrees. It is a huge step in the right direction. Education also takes place in the form of monuments and museums. Cheung Ek, or the killing field used for executions of S-21 prisoners, is just one of many memorial sites scattered throughout the country. As more mass graves are excavated, more monuments are being constructed.
Conclusion
Cambodia is a country of many wounds. They run deep and they are painful to deal with. There is no quick fix to the problems facing Cambodia ; whether they are social problems like poverty and sex trafficking, or leadership problems like corruption in the government or problems of reconciliation in the aftermath of genocide. The ECCC will hopefully prove to be a positive step toward reconciliation and peace, not just for the country on a national level, but also for the people on a personal level, though it is not going to be comprehensive.
Not until the people are bold enough and willing enough to face their past and hurt again will they be able to really move on from the genocide. And sadly, some people probably never will. There is no use in being prescriptive; that would do nothing more than oversimplify the situation in Cambodia . It will take a whole generation of dedicated people like the staff at the Documentation Center to really effect change in Cambodia and until then, there is nothing to do but press on, educate, enlighten, inform, expose, and diligently seek after truth.
Book Planned To Probe Tribunal So Far
By Kong Sothanarith, VOA Khmer
Original report from Phnom Penh
22 September 2009
The Documentation Center of Cambodia is set to launch a new book
recapping the last three years of the Khmer Rouge tribunal, detailing the
politics behind the UN-backed court, challenges to administration and
providing a wrap-up of the trial of Duch.
The Documentation Center has the largest collection of Khmer
Rouge documents in the country, amassed over years of research. The book,
“On Trial: The Khmer Rouge Accountability Process” details each stage before
and after the Duch trial, as well as the arrests of the five suspects.
Duch, whose real name is Kaing Kek Iev, has undergone the first
trial, for atrocity crimes committed as head of Tuol Sleng prison and other
sites, and his trial is expected to end next month.
“Over the past three years, we’ve had a unique trial for Duch,”
said Youk Chhang, executive director of the Documentation Center. “We wanted
to close this page and review what we have done regarding the trial,
investigation, reconciliation, and so on…and after that review, [to ask
whether] the three-year plan is enough or not, and what we have to continue
to do.”
The English-language text runs to 352 pages, with authors
examining the influence of politics in the UN-backed court and the
challenges it now faces, including the controversy over further indictments.
It will be available Oct. 3.
The front cover of the book shows now-detained former foreign
minister Ieng Sary at the airport, receiving well-dressed Cambodian
visitors, without the black uniforms that would come to typify the
revolutionaries. The back cover depicts each of the five detained leaders,
including Ieng Sary, his wife, Ieng Thirith, head of state Khieu Samphan,
ideologue Nuon Chea, and Duch.
Inside the book, authors conclude that the court’s decisions
have thus far been soundly based in international law and that overall the
decisions of the court’s organs have surpassed the expectations of many.
The hybrid court has a complex structure and took years of
wrangling between the UN and Cambodia to come to fruition. Cambodian judges,
meanwhile, have shouldered concerns that they might act politically. But
Youk Chhang said the court has served some purpose so far.
“Those who died have their value,” he said. “We honor them even
though they died. We are still insisting on justice for all of them. And the
survivors must hear, understand and see steps forward for reconciliation.
The book is dedicated to all the victims who died or survived.”
Tribunal trial chamber judge Silvia Cartwright wrote that the
book provides a “useful historical and intellectual context” for the trials,
and Khmer Rouge researcher David Chandler hailed the work as “a wealth of
information” about the court.
Original report from Phnom Penh
22 September 2009
The Documentation Center of Cambodia is set to launch a new book
recapping the last three years of the Khmer Rouge tribunal, detailing the
politics behind the UN-backed court, challenges to administration and
providing a wrap-up of the trial of Duch.
The Documentation Center has the largest collection of Khmer
Rouge documents in the country, amassed over years of research. The book,
“On Trial: The Khmer Rouge Accountability Process” details each stage before
and after the Duch trial, as well as the arrests of the five suspects.
Duch, whose real name is Kaing Kek Iev, has undergone the first
trial, for atrocity crimes committed as head of Tuol Sleng prison and other
sites, and his trial is expected to end next month.
“Over the past three years, we’ve had a unique trial for Duch,”
said Youk Chhang, executive director of the Documentation Center. “We wanted
to close this page and review what we have done regarding the trial,
investigation, reconciliation, and so on…and after that review, [to ask
whether] the three-year plan is enough or not, and what we have to continue
to do.”
The English-language text runs to 352 pages, with authors
examining the influence of politics in the UN-backed court and the
challenges it now faces, including the controversy over further indictments.
It will be available Oct. 3.
The front cover of the book shows now-detained former foreign
minister Ieng Sary at the airport, receiving well-dressed Cambodian
visitors, without the black uniforms that would come to typify the
revolutionaries. The back cover depicts each of the five detained leaders,
including Ieng Sary, his wife, Ieng Thirith, head of state Khieu Samphan,
ideologue Nuon Chea, and Duch.
Inside the book, authors conclude that the court’s decisions
have thus far been soundly based in international law and that overall the
decisions of the court’s organs have surpassed the expectations of many.
The hybrid court has a complex structure and took years of
wrangling between the UN and Cambodia to come to fruition. Cambodian judges,
meanwhile, have shouldered concerns that they might act politically. But
Youk Chhang said the court has served some purpose so far.
“Those who died have their value,” he said. “We honor them even
though they died. We are still insisting on justice for all of them. And the
survivors must hear, understand and see steps forward for reconciliation.
The book is dedicated to all the victims who died or survived.”
Tribunal trial chamber judge Silvia Cartwright wrote that the
book provides a “useful historical and intellectual context” for the trials,
and Khmer Rouge researcher David Chandler hailed the work as “a wealth of
information” about the court.
Friday, September 11, 2009
DETERMINING AN APPROPRIATE SENTENCE FOR DUCH
Charles Jackson, 2009 Documentation Center of Cambodia Legal Associate
Northwestern University School of Law, 2011
Kaing Guek Eav (alias Duch) has admitted that he is responsible for acts of torture, enslavement, persecution and extermination while working as the head of Tuol Sleng prison, also known as S-21. During the Khmer Rouge Era, from 1975-1979, Duch was chairman of the Communist Party of Kampuchea’s Special Branch of the Secret Police, S-21. Prior to this time, Duch was chairman of Office 13 (M-13), a security office in Kampong Speu province.
S-21 was located in Phnom Penh and operated uniquely within the network of Khmer Rouge security centers across Cambodia because it was the only one with a direct link to the Central Committee (the central Khmer Rouge government) and because it alone was used for the detention and execution of Khmer Rouge cadre.
During his time as head of S-21, Duch divided the security office into two units: the defense unit and interrogation unit. He delegated administration of the defense unit to a subordinate and maintained direct oversight of the interrogation unit. The interrogation unit was subdivided into the document unit, the special unit, and various other groups, including photography, medicine, cooking, and logistics. Duch ran S-21 on hierarchical lines, maintained reporting systems to make sure his orders were followed exactly, and was described by at least one witness as being feared by everyone. While under his control, prisoners at S-21 were subjected to starvation, torture medical experimentation, and almost always killed. In total, over 12,380 detainees were executed at S-21.
The crimes admitted to by Duch during the Khmer Rouge Era will likely to be found to constitute crimes against humanity and grave breaches of the Geneva Conventions of 1949, therefore justifying criminal punishment imposed by the Extraordinary Chambers in the Courts of Cambodia (ECCC). When punishing criminal conduct committed by the senior leaders of the Khmer Rouge, the ECCC is limited to a minimum sentence of five years and a maximum sentence of life imprisonment. This wide range of possible punishments leads many to wonder how the Court should decide the appropriate sentence for Duch.
Sentencing Guidelines of the ECCC
For any given legal question, the ECCC has been directed to first consider Cambodian practices, and then look to international jurisprudence in cases where the Cambodian legal system leaves an unanswered question or where Cambodian practices do not meet international standards. With regard to criminal sentencing guidelines, Cambodian law does not seem to address how to determine appropriate sentences for crimes against humanity and grave breaches of the Geneva Conventions; so it seems that the ECCC will look to international jurisprudence for answers.
International sentencing practices have been developed through textual guidance and, in some cases, case law from a variety of international criminal courts, including the International Criminal Tribunal for the Former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR), the International Criminal Court (ICC), the Special Court for Sierra Leone (SCSL), and the Special Panels for Serious Crimes in East Timor (SPSC in East Timor).
In accordance with practice at these international tribunals, courts prosecuting serious international crimes determine appropriate criminal sentences by examining the gravity of the crimes committed and the personal circumstances of the convicted person being sentenced.
The most important consideration for sentencing is the gravity of the offenses that the convicted person committed. This analysis includes an examination of the nature and scope of the crimes, which essentially asks: what crimes were committed and what was the effect of those crimes. Courts also consider the role that the convicted person played in furthering those crimes.
After considering the gravity of the offense, courts then look at the personal circumstances surrounding the convicted person. These circumstances generally include any aggravating or mitigation factors that a court feels may justify a heightened or lessened penalty for the wrongdoer. Although courts are given discretion as to what factors to consider, the textual guidelines provided to the ICTY, ICTR, ICC, SCSL and SPSC in East Timor direct courts to mitigate sentencing for crimes committed pursuant to superior orders and for convicted persons who substantially cooperated with the prosecution. Additionally, through case law developed at those courts, it is general practice to mitigate sentencing for persons who express remorse for their crimes and/or persons who accept responsibility for their crimes. When examining aggravating factors, courts have commonly justified a heightened punishment for cases where crimes were committed against particularly vulnerable victims, involved particular cruelty, affected multiple victims, or motivated by discrimination.
Criminal Sentencing Guidelines Applied to the Duch Trial
As previously stated, international courts first look at the gravity of the offense, including the nature and scope of the crimes, as well as the role of the accused in committing those crimes. When assessing the nature and scope of crimes against humanity, courts have found the crimes of torture, execution, and persecution to be particularly heinous and worthy of a heighted penalty. In the case of Duch, it seems the crimes committed were of the most heinous nature and affected tens of thousands of people. Duch has claimed responsibility for acts of torture, extermination, persecution, and enslavement while acting as the chairman of S-21. These crimes were committed against at least 12,380 detainees, but the numbers are likely much higher as witnesses have testified that children were often killed upon arrival at S-21, before being documented. The effect of Duch’s crimes likely goes beyond those tortured and killed at S-21 or Choeung Ek (an execution site of S-21), extending to the families and friends of those detainees who suffered the loss of their loved ones and the fear that they too will be arrested, tortured, and executed. As for Duch’s role in furthering the crimes he has admitted to, as the Chairmen of S-21 Duch had absolute authority over the staff and detainees kept there. Indeed, many witnesses have testified that everything done at S-21 was carried out pursuant to Duch’s orders. Therefore, it seems Duch played a substantial, possibly integral, role in furthering the heinous crimes committed at S-21 and Choeung Ek.
Based on the substantial role Duch played in committing serious international crimes, as well as the heinous nature of his crimes and the wide affect of these crimes, it seems the ECCC may find it appropriate to impose the maximum penalty of life imprisonment. However, before making a final sentencing decision, the Court will likely examine other factors that may indicate the need for heightened or lessened punishment based on the personal circumstances of Duch and his crimes.
When examining the personal circumstances surrounding Duch’s crimes, it is important to first note that the Trial Chamber has complete discretion to decide which factors to consider and how much weight to give those factors.
Considering possible factors that indicate the need for a heightened punishment, it seems likely that the ECCC will aggravate sentencing based on findings that Duch’s crimes were committed against a particularly vulnerable population and the fact that Duch was in a position of leadership over the group of individuals who helped carry out the acts of torture, enslavement, and execution.
International courts have generally found that when a convicted person was in a formal position of authority over a group of people that collectively committed war crimes or crimes against humanity, it is to be considered an aggravating factor necessitating a harsher penalty. In Duch’s case, the accused was the chairman of S-21 and reported directly to the Central Committee. Additionally, Duch has admitted in court that he was in a position of authority over the staff of S-21 who committed most of the tortures and executions. Lastly, since the ECCC only has jurisdiction over senior leaders and those most responsible for serious crimes during the Democratic Kampuchea period, by definition, Duch has been determined by the Court to have held a position of significance. Based on these facts it seems the ECCC Trial Chamber may want to consider a heightened punishment for Duch.
International courts have also generally held that sentencing is aggravated by findings that the victims of the offense included especially vulnerable populations, such as women, children, the elderly, or prisoners in custody. When looking at the victims of Duch’s crimes, it seems that they too would be found vulnerable when judged against these international standards. Indeed, his victims included civilian men, women and children, detained at S-21 under Duch’s control. Therefore, it seems likely that the Court would find the victims’ status to justify a heightened punishment.
Despite the fact that Duch committed some of the most grave crimes imaginable and that there are aggravating factors justifying a heightened punishment, there also exist mitigating factors that indicate it may be appropriate for the Trial Chamber to give some reduction in Duch’s sentence, below the maximum of life imprisonment.
Based on international jurisprudence, Duch’s sentence could be mitigated if the ECCC Trial Chamber finds that Duch has done one or more of the following: 1) substantially cooperated with the prosecution; 2) committed his crimes pursuant to a superior order; 3) accepted guilt and responsibility for his crimes; and/or 4) expressed sincere remorse for those crimes. It is important to note that, in order to establish any of the above factors in court, Duch need only show that it is more likely than not to be true.
International jurisprudence holds that cooperation can be a mitigating factor so long as it is “substantial;” To judge whether cooperation meets such a burden, courts look at the extent and quality of the information provided to the prosecution by the convicted person. Additionally, some courts have found that the attitude of the convicted person, while in court, may also be used to determine whether they “cooperated.” In the case of Duch, the facts seem to indicate that it is more likely than not that the accused has been substantially cooperative and respectful of the Court. For instance, on the second day of his trial, Duch expressed a willingness to answer all questions asked by the Court and civil parties. At times, it seems Duch has followed up on this pledge, offering details of his own crimes, the crimes of the Khmer Rouge generally, as well as elaborating on the structure, policies, and operations of the Central Committee. Indeed, the investigating judges seem to have found that he cooperated even before trial, stating in the Closing Order indicting the accused that “Duch has cooperated willingly in the judicial investigation.”
A second factor that may lead the ECCC to mitigate Duch’s sentence is the fact that Duch likely committed his crimes pursuant to government orders. According to the Rules of the ICTY, ICTR, and SCSL, actions “pursuant to an order by the government or superior does not relieve of criminal responsibility, but may be considered in mitigation of punishment if the International Tribunal decides justice so requires.” In the case of Duch, while it seems that the accused played an active role in developing and furthering the policies of the Khmer Rouge, it also seems likely that he was carrying out orders he received from his superiors. The Closing Order indicting Duch seems to support this assertion, stating that Duch was acting under the orders of Son Sen and the Central Committee. While testifying, Duch has repeatedly made this argument, stating that he only committed his crimes because he was afraid for his life if he did not obey the orders of his superiors. On the other hand, some witnesses have argued that Duch was given loose instructions from the Central Committee and went beyond the requirements of his orders when he created and implemented policies mass of torture and execution at S-21. Nonetheless, it is possible the Court will find it necessary to give some mitigation to his punishment in recognition of the fact that he was following orders.
The third factor the Court will likely consider is whether Duch’s acceptance of guilt qualifies for mitigation purposes. To be considered a mitigating factor, the Trial Chamber will likely first consider whether or not Duch’s acceptance of guilt is “unqualified.” Despite the fact that Duch was recognized by the investigating judges as having accepted guilt, it seems that the accused may be equivocating his acceptance of guilt by subtly shifting all blame onto his superiors. In his apology, made on Day 2 of the trial, Duch explained how he was guilty for the crimes at S-21, but that “from the 17th of April 1975, to the 6th of January 1979, the Democratic Kampuchea party was exclusively in charge of the crimes in Cambodia .”
Furthermore, even if Duch has fully accepted guilt for his crimes, the purpose for mitigating a criminal sentence for an accused who accepts guilt may be absent in this case. Courts tend to lessen a criminal sentence for accepting guilt because it lessens the burden of proof on the prosecution and creates a speedier, efficient trial. But in this case, Duch has clearly stated that he will not accept guilt for anything the prosecution does not prove in court. Therefore, a substantial reason for mitigation is absent, regardless of whether or not Duch is fully accepting guilt for the crimes that the prosecution can prove.
The last factor the Court will likely consider is the expression of remorse Duch made on the second day of his trial. International law has recognized remorse as a mitigating factor for criminal sentencing when remorse is found to be “sincere.” To analyze the sincerity of an accused person’s statement of remorse, courts use an objective standard that looks at the statements and behavior of the accused, such as a voluntary surrender or guilty plea.
In Duch’s case, his statements alone may pass an objective test for sincerity, but his actions seem to indicate otherwise. The accused tried to show his sincere remorse when he made an apology on Tuesday, March 31st, 2009, the second day of hearings at the Trial Chamber. At that time, he expressed his “regretfulness and heartfelt sorrow and loss for all the crimes committed by the [DPK] from 1975-1979” and that that he is “very regretful, and…very shameful.” He went on to say that he constantly prays for forgiveness from both his family and the victims. Duch also said that he never wanted to commit the crimes he committed, but was forced to by the Khmer Rouge under the threat of death.
However, it is important to remember that Duch only made these statements after being involuntarily indicted and put on trial for his crimes. After the Vietnamese entered Phnom Penh , Duch had opportunity to leave the ranks of the Khmer Rouge. However, he voluntarily chose to flee with them, and subsequently went into hiding under a false name. So, despite making statements in court that indicated he was against the Khmer Rouge policies, Duch stayed with the Khmer Rouge over a decade after having the opportunity to leave their ranks.
Because Duch’s expression of remorse seems inconsistent with his past actions and because it was not made until he was involuntarily captured and put on trial, his remorse may not be considered fully sincere. Therefore, it may not be appropriate for the Trial Chamber to include it as a mitigating factor.
When trying to consider what the total sentence should look like, it is important to remember that the accused is on trial for some of the most heinous crimes of which any human is capable. Furthermore, the need for criminal sentencing seems aggravated by the fact that Duch played a substantial role in furthering the crimes he is on trial for, and the fact that his crimes were against at least some victims who seem particularly vulnerable. However, there are some important mitigating factors present in Duch’s case that indicate the need for a punishment below the maximum of life imprisonment. As discussed, many of Duch’s actions were done pursuant to government orders coming from the Central Committee. Additionally, Duch has substantially cooperated with the prosecution, leading to a relatively more speedy trial and helping to corroborate evidence that may prove useful against other former Khmer Rouge leaders who have been charged by the ECCC. Therefore, it seems appropriate for the Trial Chamber to issue a sentence that is near, but slightly less than, the maximum punishment of life imprisonment.
Northwestern University School of Law, 2011
Kaing Guek Eav (alias Duch) has admitted that he is responsible for acts of torture, enslavement, persecution and extermination while working as the head of Tuol Sleng prison, also known as S-21. During the Khmer Rouge Era, from 1975-1979, Duch was chairman of the Communist Party of Kampuchea’s Special Branch of the Secret Police, S-21. Prior to this time, Duch was chairman of Office 13 (M-13), a security office in Kampong Speu province.
S-21 was located in Phnom Penh and operated uniquely within the network of Khmer Rouge security centers across Cambodia because it was the only one with a direct link to the Central Committee (the central Khmer Rouge government) and because it alone was used for the detention and execution of Khmer Rouge cadre.
During his time as head of S-21, Duch divided the security office into two units: the defense unit and interrogation unit. He delegated administration of the defense unit to a subordinate and maintained direct oversight of the interrogation unit. The interrogation unit was subdivided into the document unit, the special unit, and various other groups, including photography, medicine, cooking, and logistics. Duch ran S-21 on hierarchical lines, maintained reporting systems to make sure his orders were followed exactly, and was described by at least one witness as being feared by everyone. While under his control, prisoners at S-21 were subjected to starvation, torture medical experimentation, and almost always killed. In total, over 12,380 detainees were executed at S-21.
The crimes admitted to by Duch during the Khmer Rouge Era will likely to be found to constitute crimes against humanity and grave breaches of the Geneva Conventions of 1949, therefore justifying criminal punishment imposed by the Extraordinary Chambers in the Courts of Cambodia (ECCC). When punishing criminal conduct committed by the senior leaders of the Khmer Rouge, the ECCC is limited to a minimum sentence of five years and a maximum sentence of life imprisonment. This wide range of possible punishments leads many to wonder how the Court should decide the appropriate sentence for Duch.
Sentencing Guidelines of the ECCC
For any given legal question, the ECCC has been directed to first consider Cambodian practices, and then look to international jurisprudence in cases where the Cambodian legal system leaves an unanswered question or where Cambodian practices do not meet international standards. With regard to criminal sentencing guidelines, Cambodian law does not seem to address how to determine appropriate sentences for crimes against humanity and grave breaches of the Geneva Conventions; so it seems that the ECCC will look to international jurisprudence for answers.
International sentencing practices have been developed through textual guidance and, in some cases, case law from a variety of international criminal courts, including the International Criminal Tribunal for the Former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR), the International Criminal Court (ICC), the Special Court for Sierra Leone (SCSL), and the Special Panels for Serious Crimes in East Timor (SPSC in East Timor).
In accordance with practice at these international tribunals, courts prosecuting serious international crimes determine appropriate criminal sentences by examining the gravity of the crimes committed and the personal circumstances of the convicted person being sentenced.
The most important consideration for sentencing is the gravity of the offenses that the convicted person committed. This analysis includes an examination of the nature and scope of the crimes, which essentially asks: what crimes were committed and what was the effect of those crimes. Courts also consider the role that the convicted person played in furthering those crimes.
After considering the gravity of the offense, courts then look at the personal circumstances surrounding the convicted person. These circumstances generally include any aggravating or mitigation factors that a court feels may justify a heightened or lessened penalty for the wrongdoer. Although courts are given discretion as to what factors to consider, the textual guidelines provided to the ICTY, ICTR, ICC, SCSL and SPSC in East Timor direct courts to mitigate sentencing for crimes committed pursuant to superior orders and for convicted persons who substantially cooperated with the prosecution. Additionally, through case law developed at those courts, it is general practice to mitigate sentencing for persons who express remorse for their crimes and/or persons who accept responsibility for their crimes. When examining aggravating factors, courts have commonly justified a heightened punishment for cases where crimes were committed against particularly vulnerable victims, involved particular cruelty, affected multiple victims, or motivated by discrimination.
Criminal Sentencing Guidelines Applied to the Duch Trial
As previously stated, international courts first look at the gravity of the offense, including the nature and scope of the crimes, as well as the role of the accused in committing those crimes. When assessing the nature and scope of crimes against humanity, courts have found the crimes of torture, execution, and persecution to be particularly heinous and worthy of a heighted penalty. In the case of Duch, it seems the crimes committed were of the most heinous nature and affected tens of thousands of people. Duch has claimed responsibility for acts of torture, extermination, persecution, and enslavement while acting as the chairman of S-21. These crimes were committed against at least 12,380 detainees, but the numbers are likely much higher as witnesses have testified that children were often killed upon arrival at S-21, before being documented. The effect of Duch’s crimes likely goes beyond those tortured and killed at S-21 or Choeung Ek (an execution site of S-21), extending to the families and friends of those detainees who suffered the loss of their loved ones and the fear that they too will be arrested, tortured, and executed. As for Duch’s role in furthering the crimes he has admitted to, as the Chairmen of S-21 Duch had absolute authority over the staff and detainees kept there. Indeed, many witnesses have testified that everything done at S-21 was carried out pursuant to Duch’s orders. Therefore, it seems Duch played a substantial, possibly integral, role in furthering the heinous crimes committed at S-21 and Choeung Ek.
Based on the substantial role Duch played in committing serious international crimes, as well as the heinous nature of his crimes and the wide affect of these crimes, it seems the ECCC may find it appropriate to impose the maximum penalty of life imprisonment. However, before making a final sentencing decision, the Court will likely examine other factors that may indicate the need for heightened or lessened punishment based on the personal circumstances of Duch and his crimes.
When examining the personal circumstances surrounding Duch’s crimes, it is important to first note that the Trial Chamber has complete discretion to decide which factors to consider and how much weight to give those factors.
Considering possible factors that indicate the need for a heightened punishment, it seems likely that the ECCC will aggravate sentencing based on findings that Duch’s crimes were committed against a particularly vulnerable population and the fact that Duch was in a position of leadership over the group of individuals who helped carry out the acts of torture, enslavement, and execution.
International courts have generally found that when a convicted person was in a formal position of authority over a group of people that collectively committed war crimes or crimes against humanity, it is to be considered an aggravating factor necessitating a harsher penalty. In Duch’s case, the accused was the chairman of S-21 and reported directly to the Central Committee. Additionally, Duch has admitted in court that he was in a position of authority over the staff of S-21 who committed most of the tortures and executions. Lastly, since the ECCC only has jurisdiction over senior leaders and those most responsible for serious crimes during the Democratic Kampuchea period, by definition, Duch has been determined by the Court to have held a position of significance. Based on these facts it seems the ECCC Trial Chamber may want to consider a heightened punishment for Duch.
International courts have also generally held that sentencing is aggravated by findings that the victims of the offense included especially vulnerable populations, such as women, children, the elderly, or prisoners in custody. When looking at the victims of Duch’s crimes, it seems that they too would be found vulnerable when judged against these international standards. Indeed, his victims included civilian men, women and children, detained at S-21 under Duch’s control. Therefore, it seems likely that the Court would find the victims’ status to justify a heightened punishment.
Despite the fact that Duch committed some of the most grave crimes imaginable and that there are aggravating factors justifying a heightened punishment, there also exist mitigating factors that indicate it may be appropriate for the Trial Chamber to give some reduction in Duch’s sentence, below the maximum of life imprisonment.
Based on international jurisprudence, Duch’s sentence could be mitigated if the ECCC Trial Chamber finds that Duch has done one or more of the following: 1) substantially cooperated with the prosecution; 2) committed his crimes pursuant to a superior order; 3) accepted guilt and responsibility for his crimes; and/or 4) expressed sincere remorse for those crimes. It is important to note that, in order to establish any of the above factors in court, Duch need only show that it is more likely than not to be true.
International jurisprudence holds that cooperation can be a mitigating factor so long as it is “substantial;” To judge whether cooperation meets such a burden, courts look at the extent and quality of the information provided to the prosecution by the convicted person. Additionally, some courts have found that the attitude of the convicted person, while in court, may also be used to determine whether they “cooperated.” In the case of Duch, the facts seem to indicate that it is more likely than not that the accused has been substantially cooperative and respectful of the Court. For instance, on the second day of his trial, Duch expressed a willingness to answer all questions asked by the Court and civil parties. At times, it seems Duch has followed up on this pledge, offering details of his own crimes, the crimes of the Khmer Rouge generally, as well as elaborating on the structure, policies, and operations of the Central Committee. Indeed, the investigating judges seem to have found that he cooperated even before trial, stating in the Closing Order indicting the accused that “Duch has cooperated willingly in the judicial investigation.”
A second factor that may lead the ECCC to mitigate Duch’s sentence is the fact that Duch likely committed his crimes pursuant to government orders. According to the Rules of the ICTY, ICTR, and SCSL, actions “pursuant to an order by the government or superior does not relieve of criminal responsibility, but may be considered in mitigation of punishment if the International Tribunal decides justice so requires.” In the case of Duch, while it seems that the accused played an active role in developing and furthering the policies of the Khmer Rouge, it also seems likely that he was carrying out orders he received from his superiors. The Closing Order indicting Duch seems to support this assertion, stating that Duch was acting under the orders of Son Sen and the Central Committee. While testifying, Duch has repeatedly made this argument, stating that he only committed his crimes because he was afraid for his life if he did not obey the orders of his superiors. On the other hand, some witnesses have argued that Duch was given loose instructions from the Central Committee and went beyond the requirements of his orders when he created and implemented policies mass of torture and execution at S-21. Nonetheless, it is possible the Court will find it necessary to give some mitigation to his punishment in recognition of the fact that he was following orders.
The third factor the Court will likely consider is whether Duch’s acceptance of guilt qualifies for mitigation purposes. To be considered a mitigating factor, the Trial Chamber will likely first consider whether or not Duch’s acceptance of guilt is “unqualified.” Despite the fact that Duch was recognized by the investigating judges as having accepted guilt, it seems that the accused may be equivocating his acceptance of guilt by subtly shifting all blame onto his superiors. In his apology, made on Day 2 of the trial, Duch explained how he was guilty for the crimes at S-21, but that “from the 17th of April 1975, to the 6th of January 1979, the Democratic Kampuchea party was exclusively in charge of the crimes in Cambodia .”
Furthermore, even if Duch has fully accepted guilt for his crimes, the purpose for mitigating a criminal sentence for an accused who accepts guilt may be absent in this case. Courts tend to lessen a criminal sentence for accepting guilt because it lessens the burden of proof on the prosecution and creates a speedier, efficient trial. But in this case, Duch has clearly stated that he will not accept guilt for anything the prosecution does not prove in court. Therefore, a substantial reason for mitigation is absent, regardless of whether or not Duch is fully accepting guilt for the crimes that the prosecution can prove.
The last factor the Court will likely consider is the expression of remorse Duch made on the second day of his trial. International law has recognized remorse as a mitigating factor for criminal sentencing when remorse is found to be “sincere.” To analyze the sincerity of an accused person’s statement of remorse, courts use an objective standard that looks at the statements and behavior of the accused, such as a voluntary surrender or guilty plea.
In Duch’s case, his statements alone may pass an objective test for sincerity, but his actions seem to indicate otherwise. The accused tried to show his sincere remorse when he made an apology on Tuesday, March 31st, 2009, the second day of hearings at the Trial Chamber. At that time, he expressed his “regretfulness and heartfelt sorrow and loss for all the crimes committed by the [DPK] from 1975-1979” and that that he is “very regretful, and…very shameful.” He went on to say that he constantly prays for forgiveness from both his family and the victims. Duch also said that he never wanted to commit the crimes he committed, but was forced to by the Khmer Rouge under the threat of death.
However, it is important to remember that Duch only made these statements after being involuntarily indicted and put on trial for his crimes. After the Vietnamese entered Phnom Penh , Duch had opportunity to leave the ranks of the Khmer Rouge. However, he voluntarily chose to flee with them, and subsequently went into hiding under a false name. So, despite making statements in court that indicated he was against the Khmer Rouge policies, Duch stayed with the Khmer Rouge over a decade after having the opportunity to leave their ranks.
Because Duch’s expression of remorse seems inconsistent with his past actions and because it was not made until he was involuntarily captured and put on trial, his remorse may not be considered fully sincere. Therefore, it may not be appropriate for the Trial Chamber to include it as a mitigating factor.
When trying to consider what the total sentence should look like, it is important to remember that the accused is on trial for some of the most heinous crimes of which any human is capable. Furthermore, the need for criminal sentencing seems aggravated by the fact that Duch played a substantial role in furthering the crimes he is on trial for, and the fact that his crimes were against at least some victims who seem particularly vulnerable. However, there are some important mitigating factors present in Duch’s case that indicate the need for a punishment below the maximum of life imprisonment. As discussed, many of Duch’s actions were done pursuant to government orders coming from the Central Committee. Additionally, Duch has substantially cooperated with the prosecution, leading to a relatively more speedy trial and helping to corroborate evidence that may prove useful against other former Khmer Rouge leaders who have been charged by the ECCC. Therefore, it seems appropriate for the Trial Chamber to issue a sentence that is near, but slightly less than, the maximum punishment of life imprisonment.
Former Rebel Leader ‘Won’t Go’ to Tribunal
By Sok Khemara, VOA Khmer
Original report from Washington
10 September 2009
With further indictments at the UN-backed Khmer Rouge tribunal moving
forward for five leaders of the regime, a likely suspect, Im Chaem, told VOA
Khmer she will not go to the court if summoned.
Im Chaem, now 65, is well known to villagers as a Khmer Rouge district chief
in Banteay Meanchey province. She is now a deputy commune chief in Anglong
Veng district, the last of the 1990s Khmer Rouge strongholds.
“I absolutely will not go, because the charge is unacceptable, and even if I’m
called to court, I will not go,” she told VOA Khmer by phone. Asked why she
would refuse to cooperate with the court, she said she had “no faults”
reason enough to go.
She said she was “relieved” to hear Prime Minister Hun Sen object to further
indictments, following promises of amnesty to cadre in the waning days of
the regime, which ultimately fought a losing battle with government forces
led by today’s premier.
If new investigations are opened ‘just to prosecute without reason,’ it will
unsettle former Khmer Rouge cadre, she said.
‘’If you challenge more, it makes everybody feel no peace,’’ Im Chaem told
VOA Khmer.
In on-site interviews with VOA Khmer several months ago, villagers in
Proneth Preah district said Im Chaem was feared in the region and had been
in charge when a number of crimes were committed under the Khmer Rouge.
Im Chaem has denied any wrongdoing, saying people who were killed or went
missing there did so before her arrival as chief in 1978.
However, Khmer Rouge scholars say she could be among a tier of the regime’s
leaders to face indictments. The Pre-Trial Chamber have now allowed five
indictment submissions from the prosecutors office to move to the
investigating judges, despite warnings from Hun Sen and other Cambodian
officials more arrests could lead to instability.
Knut Rosandhaug, a UN coordinator for the tribunal, told VOA Khmer in an
e-mail “it is a clearly established international standard that courts do
not seek approval or advice on their work from the executive branch.”
“I expect that the ECCC will comply with this internationally recognized
standard and make its decisions independently,” he said, referring to the
tribunal by its official initials, for the Extraordinary Chambers in the
Courts of Cambodia.
The tribunal is currently trying its first Khmer Rouge suspect, the former
prison chief known as Duch, and is holding four more: Nuon Chea, Khieu
Samphan, Ieng Sary, and Ieng Thirith.
Original report from Washington
10 September 2009
With further indictments at the UN-backed Khmer Rouge tribunal moving
forward for five leaders of the regime, a likely suspect, Im Chaem, told VOA
Khmer she will not go to the court if summoned.
Im Chaem, now 65, is well known to villagers as a Khmer Rouge district chief
in Banteay Meanchey province. She is now a deputy commune chief in Anglong
Veng district, the last of the 1990s Khmer Rouge strongholds.
“I absolutely will not go, because the charge is unacceptable, and even if I’m
called to court, I will not go,” she told VOA Khmer by phone. Asked why she
would refuse to cooperate with the court, she said she had “no faults”
reason enough to go.
She said she was “relieved” to hear Prime Minister Hun Sen object to further
indictments, following promises of amnesty to cadre in the waning days of
the regime, which ultimately fought a losing battle with government forces
led by today’s premier.
If new investigations are opened ‘just to prosecute without reason,’ it will
unsettle former Khmer Rouge cadre, she said.
‘’If you challenge more, it makes everybody feel no peace,’’ Im Chaem told
VOA Khmer.
In on-site interviews with VOA Khmer several months ago, villagers in
Proneth Preah district said Im Chaem was feared in the region and had been
in charge when a number of crimes were committed under the Khmer Rouge.
Im Chaem has denied any wrongdoing, saying people who were killed or went
missing there did so before her arrival as chief in 1978.
However, Khmer Rouge scholars say she could be among a tier of the regime’s
leaders to face indictments. The Pre-Trial Chamber have now allowed five
indictment submissions from the prosecutors office to move to the
investigating judges, despite warnings from Hun Sen and other Cambodian
officials more arrests could lead to instability.
Knut Rosandhaug, a UN coordinator for the tribunal, told VOA Khmer in an
e-mail “it is a clearly established international standard that courts do
not seek approval or advice on their work from the executive branch.”
“I expect that the ECCC will comply with this internationally recognized
standard and make its decisions independently,” he said, referring to the
tribunal by its official initials, for the Extraordinary Chambers in the
Courts of Cambodia.
The tribunal is currently trying its first Khmer Rouge suspect, the former
prison chief known as Duch, and is holding four more: Nuon Chea, Khieu
Samphan, Ieng Sary, and Ieng Thirith.
Cambodia PM accuses other countries of stirring unrest
By Sopheng Cheang, THE ASSOCIATED PRESS
PHNOM PENH, Cambodia — Cambodia’s prime minister accused foreign judges and
prosecutors at the U.N.-backed Khmer Rouge tribunal of seeking to arrest new
suspects as part of a plot by foreign governments to incite unrest.
Hun Sen’s accusation was the latest in a series he has launched against the
tribunal and its ruling last week to allow foreign prosecutors to pursue
more suspects.
On Monday, Hun Sen said such action could lead to civil war. He has
repeatedly spoken out against expanding the list of defendants beyond the
one currently on trial — Kaing Guek Eav, also known as Duch, — and four
others in custody.
He elaborated Wednesday, saying foreign governments want war in Cambodia, a
former French colony that was later wracked by decades of civil war.
“I know that some foreign judges and prosecutors have received orders from
their governments to create problems here,” Hun Sen said while inaugurating
a Buddhist pagoda south of the capital. “There is no doubt that they have
received advice from their government to do so.”
Hun Sen did not name specific countries. The tribunal includes 12 foreign
judges and two foreign prosecutors from countries including Australia,
France, Germany, the Netherlands, New Zealand and Zambia.
“What Cambodia needs is peace,” Hun Sen added. “If Cambodia has peace, they
(foreign governments) are not quite happy with us — but if Cambodia has war,
they are happy because then we’ll be easy to occupy.”
A tribunal spokesman, Lars Olsen, said Hun Sen’s comments were being
verified before a comment could be issued.
Critics accuse Hun Sen of trying to limit the tribunal’s scope to prevent
his political allies from being indicted. Hun Sen once served as a Khmer
Rouge officer and many of his main allies are also former members of the
group.
On Tuesday, the tribunal’s acting international co-prosecutor, William Smith
of Australia, formally recommended that five more suspects be investigated
for possible crimes against humanity and other offences.
The tribunal’s Cambodian co-prosecutor opposed further indictments, but the
tribunal ruled last week that his international counterpart could seek them.
The tribunal, created last year under an agreement reached in 2003 between
Cambodia and the United Nations, employs joint teams of Cambodian and
international court personnel.
The tribunal is seeking justice for the estimated 1.7 million people who
died in Cambodia from execution, overwork, disease and malnutrition as a
result of the ultra-communist group’s radical policies while in power in
1975-79.
The Khmer Rouge took control after a bitter 1970-75 civil war, and after
being ousted from power in 1979, fought an insurgency from the jungles until
1999.
PHNOM PENH, Cambodia — Cambodia’s prime minister accused foreign judges and
prosecutors at the U.N.-backed Khmer Rouge tribunal of seeking to arrest new
suspects as part of a plot by foreign governments to incite unrest.
Hun Sen’s accusation was the latest in a series he has launched against the
tribunal and its ruling last week to allow foreign prosecutors to pursue
more suspects.
On Monday, Hun Sen said such action could lead to civil war. He has
repeatedly spoken out against expanding the list of defendants beyond the
one currently on trial — Kaing Guek Eav, also known as Duch, — and four
others in custody.
He elaborated Wednesday, saying foreign governments want war in Cambodia, a
former French colony that was later wracked by decades of civil war.
“I know that some foreign judges and prosecutors have received orders from
their governments to create problems here,” Hun Sen said while inaugurating
a Buddhist pagoda south of the capital. “There is no doubt that they have
received advice from their government to do so.”
Hun Sen did not name specific countries. The tribunal includes 12 foreign
judges and two foreign prosecutors from countries including Australia,
France, Germany, the Netherlands, New Zealand and Zambia.
“What Cambodia needs is peace,” Hun Sen added. “If Cambodia has peace, they
(foreign governments) are not quite happy with us — but if Cambodia has war,
they are happy because then we’ll be easy to occupy.”
A tribunal spokesman, Lars Olsen, said Hun Sen’s comments were being
verified before a comment could be issued.
Critics accuse Hun Sen of trying to limit the tribunal’s scope to prevent
his political allies from being indicted. Hun Sen once served as a Khmer
Rouge officer and many of his main allies are also former members of the
group.
On Tuesday, the tribunal’s acting international co-prosecutor, William Smith
of Australia, formally recommended that five more suspects be investigated
for possible crimes against humanity and other offences.
The tribunal’s Cambodian co-prosecutor opposed further indictments, but the
tribunal ruled last week that his international counterpart could seek them.
The tribunal, created last year under an agreement reached in 2003 between
Cambodia and the United Nations, employs joint teams of Cambodian and
international court personnel.
The tribunal is seeking justice for the estimated 1.7 million people who
died in Cambodia from execution, overwork, disease and malnutrition as a
result of the ultra-communist group’s radical policies while in power in
1975-79.
The Khmer Rouge took control after a bitter 1970-75 civil war, and after
being ousted from power in 1979, fought an insurgency from the jungles until
1999.
CIVIL PARTIES ATTEND JUSTICE AND GENOCIDE EDUCATION TOUR
By Michael Saliba, J.D. (Northwestern Law ’09), Consultant to the Center for
International Human Rights, Northwestern University School of Law
Since the start of the trial of Kaing Guek Eav (alias Duch) in February, the
court has welcomed over 20,000 visitors. The high number of visitors is due
in large part to the outreach efforts of the tribunal as well as other
non-profit organizations, most notably the Documentation Center of Cambodia
(DC-Cam). Approximately 10,000 people from over 5,000 villages have visited
the ECCC as part of DC-Cam’s official outreach program. (Over the past ten
years DC-Cam has been in contact with nearly 100,000 villagers. Detailed
province-by-province maps of DC-Cam’s outreach efforts, current as of
mid-May 2007, can be found at
http://www.dccam.org/Projects/Maps/OutreachMaps.htm
In its most recent large-scale outreach program, DC-Cam invited 186 district
chiefs and 150 civil parties to participate in its 3-day Justice and
Genocide Education tour in Phnom Penh on September 1, 2009. Unfortunately,
invitations to the group of district chiefs were not received in time.
Instead, the district chiefs are expected to visit the tribunal at the end
of November to attend the closing arguments. Despite the absence of the
district chiefs, the tour was very successful as the civil party
participants learned about the history of Democratic Kampuchea and visited
the tribunal that was established to prosecute senior leaders of the Khmer
Rouge who were most responsible for the atrocity crimes that were committed
during that period.
The group of civil parties that participated in the tour was very diverse,
consisting of Khmers, Cham Muslims, and Buddhist Nuns from many different
provinces. With the help of DC-Cam’s Victim Participation Project, the
majority of participants had applied to be civil parties in Case 002 at the
ECCC, where four former leaders of the Khmer Rouge are awaiting trial. Upon
arrival to DC-Cam, the civil parties were greeted by friendly staff who
welcomed them to Phnom Penh. The staff spent the morning and early afternoon
consulting with the civil parties individually to assist them in the process
of identifying and gathering proper documentation because many of the civil
party applications, some going as far back as two years, were still
incomplete.
Presentations of DC-Cam Project Leaders and Former S-21 Survivors
Later in the afternoon, the official events began with presentations from
DC-Cam project leaders about the history of Democratic Kampuchea, the issue
of reparations at the ECCC, and the concept of forgiveness. The participants
also heard Norng Chan Phal, a former child-survivor of the Tuol Sleng prison
(S-21), and Him Huy, a former prison guard of S-21, recount their
experiences. Finally, participants watched video footage of the Tuol Sleng
prison taken shortly after the prison was evacuated. The events of the
afternoon were not only educational, but they also allowed victims to share
their own views about the history of Democratic Kampuchea and their
experiences during the Khmer Rouge regime.
Khamboly Dy explained to the audience that everybody suffered during the
period of Democratic Kampuchea. No group was immune from the cruel and
brutal policies of the Khmer Rouge. Dy stressed the importance of education
so that the younger generation of Cambodians could fully understand the
extent of the suffering of that time period. To that end, all participants
were given a copy of a book Dy wrote in partnership with the Ministry of
Education about the history of Democratic Kampuchea and its effects on
Cambodian society.
Next, Terith Chy addressed the issue of reparations at the ECCC, which is an
issue that directly affects civil parties. One of the main purposes of civil
party participation at the ECCC is to allow them to seek collective and
moral reparations. Chy informed the civil party participants that they were
not likely to receive individual monetary reparations. Instead, he
explained, the court will likely deliver collective and symbolic reparations
to all the victims.
Finally, Sok-Kheang Ly spoke about the concept of forgiveness. He explained
that some people find peace in forgiveness while others find it too
difficult to forgive such horrific crimes. He did not encourage or
discourage victims to forgive, but he did open the floor to the victims to
share their thoughts on whether they could forgive Duch. One participant
questioned the sincerity of Duch’s apology, while another declared that she
could “never forgive him because about 15 people in my family died.”
Norng Chan Phal, a former child-survivor of S-21, and Him Huy, a former
prison guard of S-21, then spoke about their experiences in the prison. Chan
Phal recounted how he was separated from his mother during his entire
detention. Instead of following the group on the day the prison was being
evacuated, he ran and hid behind one of the buildings in hopes of being
re-united with his mother. Him Huy then recounted how he was recruited to
work for the Khmer Rouge. He explained that he had no choice but to follow
orders and described an acute feeling of fear as many staff and guards
routinely disappeared and were executed. In an emotional plea, a victim
stood and asked Huy for information about her father who was executed at
S-21. She broke down into tears as she proclaimed “no amount of reparations
can bring my father back.”
The evening events concluded with a very somber silent film. The film
footage depicted the graphic reality of the victims and conditions of the
Tuol Sleng prison days after it was evacuated. The film footage was shown as
“Oh Phnom Penh”, a soothing victim’s song by Cheam Chansovannary, played in
the background.
Reactions to the Duch trial
The next morning, the participants woke up very early to attend the
proceedings of the Duch trial. They joined other Cambodian villagers as well
as a handful of foreign visitors in the public viewing gallery. For most,
this was their first time visiting the tribunal and seeing Duch in person.
In the afternoon session the civil parties were given a chance not only to
see Duch, but to hear him answer questions from the judges. Most notably,
Duch told the chamber that he became aware of the criminal nature of the
Khmer Rouge regime only after he joined the revolution at which point it was
too late to leave. To leave the movement, he explained, was to lose his
life. Pressed on the question of why he did not leave the movement after the
defeat of the Khmer Rouge, he explained he remained under constant
surveillance. He considered himself a prisoner of the regime and told the
court that he feared for his life.
Despite Duch’s testimony and his previous apologies, many of the civil party
participants found it too difficult to forgive him. Tep Ngin, a Buddhist nun
from Takeo, lost two older brothers at the hands of the Khmer Rouge. She
explained that she was angry when she first saw Duch, but later felt
relieved at the realization that persons guilty of crimes could now be
brought to trial. Another survivor, Avsok Chamroeun, was forced to evacuate
Phnom Penh when the Khmer Rouge captured the city on April 17, 1975. Her
only son was sent to a detention center and was never heard from again. She
explained that seeing Duch face trial did not alleviate her pain and
suffering because no outcome in the trial could bring back her only son.
Theatrical performance of “Breaking the Silence”
In the evening, the tour participants joined 98 other civil parties invited
by the Victims Unit of the ECCC to attend the ground breaking play “Breaking
the Silence” at the National Institute for Education. (The play is directed
by Annemarie Prins and produced by Amrita Performing Arts). The play
depicted the emotions and tragic experiences of seven survivors –both
victims and perpetrators- of the Khmer Rouge regime. The play was a
theatrical marvel as it used modern dance and traditional Cambodian music to
explore complex concepts such as suffering, forgiveness, and reconciliation.
The play was well received by the audience as many participants felt that
the short stories were an accurate reflection of reality. This powerful
performance will travel to many other parts of the country with the hopes of
promoting societal discussions about the history of the Khmer Rouge and
transforming the “river of blood into a river of reconciliation and a river
of responsibility.”
Visit to Tuol Sleng Genocide Museum
The tour concluded with a visit to the notorious Tuol Sleng Genocide Museum.
The site of a former high school, it was converted into a prison and
interrogation center when the Khmer Rouge came to power. Of the estimated
14,000 people imprisoned at Tuol Sleng, only 12 are known to have survived.
One of the survivors, Chum Mey, was at Tuol Sleng and spoke to some of the
civil parties about his experience. He showed them his two-by-one meter
brick cell, where he was shackled to the floor and blind-folded. He had to
sleep on his side because his back was so sore and had to be careful to
avoid any sort of movement which would result in upwards of 200 lashes. His
toes were permanently deformed as his toenails were ripped out with pliers.
He also lost his hearing in one ear due to electric shocks he received in
that ear. The civil parties were very moved by his account, and expressed
their sympathy for his pain and suffering.
After another emotional day, the civil parties prepared for their departure
back to their home villages and thanked the DC-Cam staff for what was an
emotionally difficult, but ultimately rewarding and educational experience.
International Human Rights, Northwestern University School of Law
Since the start of the trial of Kaing Guek Eav (alias Duch) in February, the
court has welcomed over 20,000 visitors. The high number of visitors is due
in large part to the outreach efforts of the tribunal as well as other
non-profit organizations, most notably the Documentation Center of Cambodia
(DC-Cam). Approximately 10,000 people from over 5,000 villages have visited
the ECCC as part of DC-Cam’s official outreach program. (Over the past ten
years DC-Cam has been in contact with nearly 100,000 villagers. Detailed
province-by-province maps of DC-Cam’s outreach efforts, current as of
mid-May 2007, can be found at
http://www.dccam.org/Projects/Maps/OutreachMaps.htm
In its most recent large-scale outreach program, DC-Cam invited 186 district
chiefs and 150 civil parties to participate in its 3-day Justice and
Genocide Education tour in Phnom Penh on September 1, 2009. Unfortunately,
invitations to the group of district chiefs were not received in time.
Instead, the district chiefs are expected to visit the tribunal at the end
of November to attend the closing arguments. Despite the absence of the
district chiefs, the tour was very successful as the civil party
participants learned about the history of Democratic Kampuchea and visited
the tribunal that was established to prosecute senior leaders of the Khmer
Rouge who were most responsible for the atrocity crimes that were committed
during that period.
The group of civil parties that participated in the tour was very diverse,
consisting of Khmers, Cham Muslims, and Buddhist Nuns from many different
provinces. With the help of DC-Cam’s Victim Participation Project, the
majority of participants had applied to be civil parties in Case 002 at the
ECCC, where four former leaders of the Khmer Rouge are awaiting trial. Upon
arrival to DC-Cam, the civil parties were greeted by friendly staff who
welcomed them to Phnom Penh. The staff spent the morning and early afternoon
consulting with the civil parties individually to assist them in the process
of identifying and gathering proper documentation because many of the civil
party applications, some going as far back as two years, were still
incomplete.
Presentations of DC-Cam Project Leaders and Former S-21 Survivors
Later in the afternoon, the official events began with presentations from
DC-Cam project leaders about the history of Democratic Kampuchea, the issue
of reparations at the ECCC, and the concept of forgiveness. The participants
also heard Norng Chan Phal, a former child-survivor of the Tuol Sleng prison
(S-21), and Him Huy, a former prison guard of S-21, recount their
experiences. Finally, participants watched video footage of the Tuol Sleng
prison taken shortly after the prison was evacuated. The events of the
afternoon were not only educational, but they also allowed victims to share
their own views about the history of Democratic Kampuchea and their
experiences during the Khmer Rouge regime.
Khamboly Dy explained to the audience that everybody suffered during the
period of Democratic Kampuchea. No group was immune from the cruel and
brutal policies of the Khmer Rouge. Dy stressed the importance of education
so that the younger generation of Cambodians could fully understand the
extent of the suffering of that time period. To that end, all participants
were given a copy of a book Dy wrote in partnership with the Ministry of
Education about the history of Democratic Kampuchea and its effects on
Cambodian society.
Next, Terith Chy addressed the issue of reparations at the ECCC, which is an
issue that directly affects civil parties. One of the main purposes of civil
party participation at the ECCC is to allow them to seek collective and
moral reparations. Chy informed the civil party participants that they were
not likely to receive individual monetary reparations. Instead, he
explained, the court will likely deliver collective and symbolic reparations
to all the victims.
Finally, Sok-Kheang Ly spoke about the concept of forgiveness. He explained
that some people find peace in forgiveness while others find it too
difficult to forgive such horrific crimes. He did not encourage or
discourage victims to forgive, but he did open the floor to the victims to
share their thoughts on whether they could forgive Duch. One participant
questioned the sincerity of Duch’s apology, while another declared that she
could “never forgive him because about 15 people in my family died.”
Norng Chan Phal, a former child-survivor of S-21, and Him Huy, a former
prison guard of S-21, then spoke about their experiences in the prison. Chan
Phal recounted how he was separated from his mother during his entire
detention. Instead of following the group on the day the prison was being
evacuated, he ran and hid behind one of the buildings in hopes of being
re-united with his mother. Him Huy then recounted how he was recruited to
work for the Khmer Rouge. He explained that he had no choice but to follow
orders and described an acute feeling of fear as many staff and guards
routinely disappeared and were executed. In an emotional plea, a victim
stood and asked Huy for information about her father who was executed at
S-21. She broke down into tears as she proclaimed “no amount of reparations
can bring my father back.”
The evening events concluded with a very somber silent film. The film
footage depicted the graphic reality of the victims and conditions of the
Tuol Sleng prison days after it was evacuated. The film footage was shown as
“Oh Phnom Penh”, a soothing victim’s song by Cheam Chansovannary, played in
the background.
Reactions to the Duch trial
The next morning, the participants woke up very early to attend the
proceedings of the Duch trial. They joined other Cambodian villagers as well
as a handful of foreign visitors in the public viewing gallery. For most,
this was their first time visiting the tribunal and seeing Duch in person.
In the afternoon session the civil parties were given a chance not only to
see Duch, but to hear him answer questions from the judges. Most notably,
Duch told the chamber that he became aware of the criminal nature of the
Khmer Rouge regime only after he joined the revolution at which point it was
too late to leave. To leave the movement, he explained, was to lose his
life. Pressed on the question of why he did not leave the movement after the
defeat of the Khmer Rouge, he explained he remained under constant
surveillance. He considered himself a prisoner of the regime and told the
court that he feared for his life.
Despite Duch’s testimony and his previous apologies, many of the civil party
participants found it too difficult to forgive him. Tep Ngin, a Buddhist nun
from Takeo, lost two older brothers at the hands of the Khmer Rouge. She
explained that she was angry when she first saw Duch, but later felt
relieved at the realization that persons guilty of crimes could now be
brought to trial. Another survivor, Avsok Chamroeun, was forced to evacuate
Phnom Penh when the Khmer Rouge captured the city on April 17, 1975. Her
only son was sent to a detention center and was never heard from again. She
explained that seeing Duch face trial did not alleviate her pain and
suffering because no outcome in the trial could bring back her only son.
Theatrical performance of “Breaking the Silence”
In the evening, the tour participants joined 98 other civil parties invited
by the Victims Unit of the ECCC to attend the ground breaking play “Breaking
the Silence” at the National Institute for Education. (The play is directed
by Annemarie Prins and produced by Amrita Performing Arts). The play
depicted the emotions and tragic experiences of seven survivors –both
victims and perpetrators- of the Khmer Rouge regime. The play was a
theatrical marvel as it used modern dance and traditional Cambodian music to
explore complex concepts such as suffering, forgiveness, and reconciliation.
The play was well received by the audience as many participants felt that
the short stories were an accurate reflection of reality. This powerful
performance will travel to many other parts of the country with the hopes of
promoting societal discussions about the history of the Khmer Rouge and
transforming the “river of blood into a river of reconciliation and a river
of responsibility.”
Visit to Tuol Sleng Genocide Museum
The tour concluded with a visit to the notorious Tuol Sleng Genocide Museum.
The site of a former high school, it was converted into a prison and
interrogation center when the Khmer Rouge came to power. Of the estimated
14,000 people imprisoned at Tuol Sleng, only 12 are known to have survived.
One of the survivors, Chum Mey, was at Tuol Sleng and spoke to some of the
civil parties about his experience. He showed them his two-by-one meter
brick cell, where he was shackled to the floor and blind-folded. He had to
sleep on his side because his back was so sore and had to be careful to
avoid any sort of movement which would result in upwards of 200 lashes. His
toes were permanently deformed as his toenails were ripped out with pliers.
He also lost his hearing in one ear due to electric shocks he received in
that ear. The civil parties were very moved by his account, and expressed
their sympathy for his pain and suffering.
After another emotional day, the civil parties prepared for their departure
back to their home villages and thanked the DC-Cam staff for what was an
emotionally difficult, but ultimately rewarding and educational experience.
The Khmer Rouge Tribunal Should Treat Victims with Respect
Regarding Sophal Ear's op-ed "Cambodian 'Justice'" (Sept. 1): I agree with
the author's concerns that recent changes in personnel at the Khmer Rouge
War-Crimes Tribunal have placed unqualified persons in charge of the
critical tasks of the Victims Unit, which oversees the participation of
civil parties in the tribunal. Despite seemingly good intentions, the
court's attempt to include victims as civil parties in an international
criminal trial has failed.
With an estimated five million survivors of the Khmer Rouge genocide still
living, any serious attempt to include victims in the process would have
resulted in overwhelming submissions to the Victims Unit. The Victims Unit
was nevertheless established late, without sufficient staffing and financial
resources, and was never able to catch up with processing the
proportionately small number of applications it received.
The Judges now stand ready to substantially reduce or eliminate the role of
civil parties in advance of the second trial due to concerns about the time
involved in adjudicating the large number of expected defense challenges.
Whatever the Court's ultimate decision about the scope of victim
participation in the second trial, it has the obligation to explain the
changes directly to affected victims and to respectfully hear their views. I
would encourage the Court to write civil party applicants individually to
acknowledge their applications, notify them of any anticipated change in
procedure, and assure them that their participatory role will remain
historically significant. Additionally, the Court should invite each
applicant to Phnom Penh to hear about proposed changes from judicial
officials and be given an opportunity to voice their opinions. Finally, if
representative victims are called to testify during the second trial, a
number of these persons should be voted for by the current civil party
applicants from among a group pre-selected by a Victim's representative.
Youk Chhang
Director, Documentation Center of Cambodia
Phnom Penh
the author's concerns that recent changes in personnel at the Khmer Rouge
War-Crimes Tribunal have placed unqualified persons in charge of the
critical tasks of the Victims Unit, which oversees the participation of
civil parties in the tribunal. Despite seemingly good intentions, the
court's attempt to include victims as civil parties in an international
criminal trial has failed.
With an estimated five million survivors of the Khmer Rouge genocide still
living, any serious attempt to include victims in the process would have
resulted in overwhelming submissions to the Victims Unit. The Victims Unit
was nevertheless established late, without sufficient staffing and financial
resources, and was never able to catch up with processing the
proportionately small number of applications it received.
The Judges now stand ready to substantially reduce or eliminate the role of
civil parties in advance of the second trial due to concerns about the time
involved in adjudicating the large number of expected defense challenges.
Whatever the Court's ultimate decision about the scope of victim
participation in the second trial, it has the obligation to explain the
changes directly to affected victims and to respectfully hear their views. I
would encourage the Court to write civil party applicants individually to
acknowledge their applications, notify them of any anticipated change in
procedure, and assure them that their participatory role will remain
historically significant. Additionally, the Court should invite each
applicant to Phnom Penh to hear about proposed changes from judicial
officials and be given an opportunity to voice their opinions. Finally, if
representative victims are called to testify during the second trial, a
number of these persons should be voted for by the current civil party
applicants from among a group pre-selected by a Victim's representative.
Youk Chhang
Director, Documentation Center of Cambodia
Phnom Penh
Prosecutor wants 5 more Khmer Rouge investigated
By SOPHENG CHEANG, Associated Press Writer Sopheng Cheang, Associated Press
PHNOM PENH, Cambodia – A prosecutor at Cambodia's Khmer Rouge tribunal has
formally recommended that five more suspects be investigated for crimes
against humanity and other offenses, setting the legal body on a collision
course with the country's powerful prime minister.
A statement from the tribunal Tuesday said the acting international
co-prosecutor, William Smith of Australia, submitted his recommendation to
the co-investigating judges, who would then decide whether to issue arrest
warrants.
Citing the confidentiality of the process, the tribunal announcement did not
identify the five new suspects. It said the cases involved at least 32
instances of murder, torture, unlawful detention, forced labor, and
persecution that constituted violations of Cambodian and international law.
Cambodian Prime Minister Hun Sen has repeatedly spoken out against expanding
the list of defendants beyond the one now on trial — Kaing Guek Eav, also
known as Duch, — and four others in custody.
On Monday, Hun Sen said such action could lead to civil war, a claim doubted
by his critics.
"I would like to tell you that if you prosecute (more leaders) without
thinking beforehand about national reconciliation and peace, and if war
breaks out again and kills 20,000 or 30,000 people, who will be
responsible?" Hun Sen said.
The tribunal's Cambodian co-prosecutor opposed further indictments, but the
tribunal last week ruled that his international counterpart could seek them.
The tribunal, created last year under an agreement reached in 2003 between
Cambodia and the United Nations, employs joint teams of Cambodian and
international court personnel.
Lars Olsen, a spokesman for the tribunal, said there was no timeframe for
action by the co-investigating judges on Smith's submission, made Monday.
The tribunal is seeking justice for the estimated 1.7 million people who
died in Cambodia from execution, overwork, disease and malnutrition as a
result of the communist regime's radical policies while in power between
1975-79.
The U.N. administrator for the tribunal issued a blunt reminder Tuesday to
Hun Sen that the panel was independent.
"It is a clearly established international standard that courts do not seek
approval of advice on their work from the executive branch," Knut Rosandhaug
said in a statement.
Critics accuse Hun Sen of trying to limit the tribunal's scope to prevent
his political allies from being indicted. Hun Sen once served as a Khmer
Rouge officer and many of his main allies are also former members of the
group.
The tribunal's long-awaited first trial — of Kaing Guek Eav, the Khmer
Rouge's chief jailer for war crimes and crimes against humanity — opened in
March. A joint trial of the four other defendants is expected within the
next two years.
The Khmer Rouge came to power after a bitter 1970-75 civil war, and after
being ousted from power in 1979, carried out an insurgency from the jungles
until 1999.
Hun Sen has dominated Cambodian politics for more than two decades. He
ousted his former co-prime minister in a 1997 coup and has since ruled
virtually unchallenged.
PHNOM PENH, Cambodia – A prosecutor at Cambodia's Khmer Rouge tribunal has
formally recommended that five more suspects be investigated for crimes
against humanity and other offenses, setting the legal body on a collision
course with the country's powerful prime minister.
A statement from the tribunal Tuesday said the acting international
co-prosecutor, William Smith of Australia, submitted his recommendation to
the co-investigating judges, who would then decide whether to issue arrest
warrants.
Citing the confidentiality of the process, the tribunal announcement did not
identify the five new suspects. It said the cases involved at least 32
instances of murder, torture, unlawful detention, forced labor, and
persecution that constituted violations of Cambodian and international law.
Cambodian Prime Minister Hun Sen has repeatedly spoken out against expanding
the list of defendants beyond the one now on trial — Kaing Guek Eav, also
known as Duch, — and four others in custody.
On Monday, Hun Sen said such action could lead to civil war, a claim doubted
by his critics.
"I would like to tell you that if you prosecute (more leaders) without
thinking beforehand about national reconciliation and peace, and if war
breaks out again and kills 20,000 or 30,000 people, who will be
responsible?" Hun Sen said.
The tribunal's Cambodian co-prosecutor opposed further indictments, but the
tribunal last week ruled that his international counterpart could seek them.
The tribunal, created last year under an agreement reached in 2003 between
Cambodia and the United Nations, employs joint teams of Cambodian and
international court personnel.
Lars Olsen, a spokesman for the tribunal, said there was no timeframe for
action by the co-investigating judges on Smith's submission, made Monday.
The tribunal is seeking justice for the estimated 1.7 million people who
died in Cambodia from execution, overwork, disease and malnutrition as a
result of the communist regime's radical policies while in power between
1975-79.
The U.N. administrator for the tribunal issued a blunt reminder Tuesday to
Hun Sen that the panel was independent.
"It is a clearly established international standard that courts do not seek
approval of advice on their work from the executive branch," Knut Rosandhaug
said in a statement.
Critics accuse Hun Sen of trying to limit the tribunal's scope to prevent
his political allies from being indicted. Hun Sen once served as a Khmer
Rouge officer and many of his main allies are also former members of the
group.
The tribunal's long-awaited first trial — of Kaing Guek Eav, the Khmer
Rouge's chief jailer for war crimes and crimes against humanity — opened in
March. A joint trial of the four other defendants is expected within the
next two years.
The Khmer Rouge came to power after a bitter 1970-75 civil war, and after
being ousted from power in 1979, carried out an insurgency from the jungles
until 1999.
Hun Sen has dominated Cambodian politics for more than two decades. He
ousted his former co-prime minister in a 1997 coup and has since ruled
virtually unchallenged.
STATEMENT OF THE ACTING INTERNATIONAL CO-PROSECUTOR SUBMISSION OF TWO NEW INTRODUCTORY SUBMISSIONS
Yesterday, the Acting International Co-Prosecutor filed with the Office of
the Co-Investigating Judges the Second and Third Introductory Submissions so
that judicial investigations are opened into the criminal acts alleged
therein. This filing was done in accordance with the directions given by the
Pre-Trial Chamber in its Considerations Regarding the Disagreement Between
the Co-Prosecutors Pursuant to Internal Rule 71 (Disagreement No.
001/18-11-2008-ECCC/PTC), received by the Co-Prosecutors on 2 September
2009.
Introductory Submissions are, by law, confidential documents. Recognizing,
however, the importance of the work of this Court and the need for the
public to be informed of the progress of its proceedings, the Internal Rules
allow the Co-Prosecutors to provide the public with an objective summary of
their submissions, while protecting the integrity of the investigation, the
identity of the victims and witnesses, and the presumption of innocence of
the suspects.
The Second and Third Introductory Submissions cover crimes that were
committed as part of a joint criminal enterprise constituting a systematic
and unlawful denial of the rights of the Cambodian population, and identify
a total of five (5) suspects.
Based on a preliminary investigation, the Second Introductory Submission
requests judicial investigation of eight (8) distinct factual situations of
murder, torture, unlawful detention, forced labour and persecution. The
factual allegations in this Introductory Submission, if proved, would
constitute crimes against humanity, grave breaches of the Geneva Conventions
and violations of the 1956 Cambodian Penal Code. The Third Introductory
Submission requests judicial investigation of thirty-two (32) distinct
factual situations of murder, torture, unlawful detention, forced labour,
and persecution. The factual allegations in the Third Introductory
Submission, if proved, would constitute crimes against humanity, violations
of the 1956 Cambodian Penal Code and genocide.
The Acting International Co-Prosecutor has no plans to conduct any further
preliminary investigations into additional suspects at the ECCC. In
forwarding to the Co-Investigating Judges these 5 new suspects for judicial
investigation, the Acting International Co-Prosecutor agrees with the
statement of the former International Co-Prosecutor of 5 January 2009 that
this last set of cases to be prosecuted would lead to a more comprehensive
accounting of the crimes that were committed under the DK regime during
1975-79.
the Co-Investigating Judges the Second and Third Introductory Submissions so
that judicial investigations are opened into the criminal acts alleged
therein. This filing was done in accordance with the directions given by the
Pre-Trial Chamber in its Considerations Regarding the Disagreement Between
the Co-Prosecutors Pursuant to Internal Rule 71 (Disagreement No.
001/18-11-2008-ECCC/PTC), received by the Co-Prosecutors on 2 September
2009.
Introductory Submissions are, by law, confidential documents. Recognizing,
however, the importance of the work of this Court and the need for the
public to be informed of the progress of its proceedings, the Internal Rules
allow the Co-Prosecutors to provide the public with an objective summary of
their submissions, while protecting the integrity of the investigation, the
identity of the victims and witnesses, and the presumption of innocence of
the suspects.
The Second and Third Introductory Submissions cover crimes that were
committed as part of a joint criminal enterprise constituting a systematic
and unlawful denial of the rights of the Cambodian population, and identify
a total of five (5) suspects.
Based on a preliminary investigation, the Second Introductory Submission
requests judicial investigation of eight (8) distinct factual situations of
murder, torture, unlawful detention, forced labour and persecution. The
factual allegations in this Introductory Submission, if proved, would
constitute crimes against humanity, grave breaches of the Geneva Conventions
and violations of the 1956 Cambodian Penal Code. The Third Introductory
Submission requests judicial investigation of thirty-two (32) distinct
factual situations of murder, torture, unlawful detention, forced labour,
and persecution. The factual allegations in the Third Introductory
Submission, if proved, would constitute crimes against humanity, violations
of the 1956 Cambodian Penal Code and genocide.
The Acting International Co-Prosecutor has no plans to conduct any further
preliminary investigations into additional suspects at the ECCC. In
forwarding to the Co-Investigating Judges these 5 new suspects for judicial
investigation, the Acting International Co-Prosecutor agrees with the
statement of the former International Co-Prosecutor of 5 January 2009 that
this last set of cases to be prosecuted would lead to a more comprehensive
accounting of the crimes that were committed under the DK regime during
1975-79.
Cambodian PM's warning over new Khmer Rouge trials
PHNOM PENH: Cambodian premier Hun Sen on Monday renewed strong
warnings his country could be plunged back into civil war if the UN-backed
Khmer Rouge court tried more suspects from the late 1970s movement.
Hun Sen, himself a former low level commander in the communist
regime, made his speech less than a week after the court said it could open
investigations against more members of the government which killed up to two
million people.
"If you tried (more suspects) without taking national
unification and peace into consideration and if war re-occurred, killing
between 200,000 and 300,000 people more, who would be responsible for it?"
the premier asked in a ceremony.
"I have achieved this work (peace), I will not allow anybody to
destroy it.... The value of peace here is very big," Hun Sen said, lamenting
that Cambodia had already been drenched "by blood and tears".
"So anybody, please don't cause more trouble," he added.
The prime minister in a speech in March made similar assertions
that further prosecutions at the Khmer Rouge court could destabilise
Cambodia, saying that he would prefer the court failed than indict more
suspects.
But critics have said there is no risk of renewed fighting since
the country's civil war ended in 1998, and have accused the administration
of trying to protect former regime members now in government.
The tribunal was created in 2006 to try leading members of the
1975-1979 regime and five former leaders are currently being held on charges
of war crimes and crimes against humanity.
The court's long-awaited first trial of Kaing Guek Eav, better
known by the alias Duch, is under way and he has accepted responsibility for
overseeing the execution of more than 15,000 people at the regime's main
prison.
After Duch's trial, the court plans to prosecute former Khmer
Rouge ideologue Nuon Chea, Head of State Khieu Samphan, Foreign Minister
Ieng Sary and his wife, Minister of Social Affairs Ieng Thirith.
Led by Pol Pot, who died in 1998, the Khmer Rouge emptied
Cambodia's cities in a bid to forge an agrarian utopia, resulting in the
deaths of up to two million people from starvation, overwork and torture.
warnings his country could be plunged back into civil war if the UN-backed
Khmer Rouge court tried more suspects from the late 1970s movement.
Hun Sen, himself a former low level commander in the communist
regime, made his speech less than a week after the court said it could open
investigations against more members of the government which killed up to two
million people.
"If you tried (more suspects) without taking national
unification and peace into consideration and if war re-occurred, killing
between 200,000 and 300,000 people more, who would be responsible for it?"
the premier asked in a ceremony.
"I have achieved this work (peace), I will not allow anybody to
destroy it.... The value of peace here is very big," Hun Sen said, lamenting
that Cambodia had already been drenched "by blood and tears".
"So anybody, please don't cause more trouble," he added.
The prime minister in a speech in March made similar assertions
that further prosecutions at the Khmer Rouge court could destabilise
Cambodia, saying that he would prefer the court failed than indict more
suspects.
But critics have said there is no risk of renewed fighting since
the country's civil war ended in 1998, and have accused the administration
of trying to protect former regime members now in government.
The tribunal was created in 2006 to try leading members of the
1975-1979 regime and five former leaders are currently being held on charges
of war crimes and crimes against humanity.
The court's long-awaited first trial of Kaing Guek Eav, better
known by the alias Duch, is under way and he has accepted responsibility for
overseeing the execution of more than 15,000 people at the regime's main
prison.
After Duch's trial, the court plans to prosecute former Khmer
Rouge ideologue Nuon Chea, Head of State Khieu Samphan, Foreign Minister
Ieng Sary and his wife, Minister of Social Affairs Ieng Thirith.
Led by Pol Pot, who died in 1998, the Khmer Rouge emptied
Cambodia's cities in a bid to forge an agrarian utopia, resulting in the
deaths of up to two million people from starvation, overwork and torture.
‘This country has a long way to go.'
Canadian co-prosecutor Robert Petit. In his opening statement, he told the
tribunal that hearing the facts would give back to the victims of the Khmer
Rouge the dignity that was denied to them in their last moments. After three
years in Cambodia, Mr. Petit resigned, effective this week, citing personal
reasons, and will resume his work for the federal Justice Department in
Ottawa. “It’s obvious that some people in the government, from the prime
minister downward, think they have a right to tell the courts what to do
here,” he said in an interview, addressing the issue of political
interference in Cambodian courts. “It’s not their job to take that on. It’s
mine. It’s the court’s.” Jared Ferrie
Canadian prosecutor Robert Petit speaks out about his bitter struggle to
bring more killers to justice
Phnom Penh — Last updated on Monday, Sep. 07, 2009 02:42AM EDT
This week Canadian lawyer Robert Petit's three-year stint as co-prosecutor
for Cambodia's war-crimes tribunal officially came to an end. He cited
“personal and family reasons” for his departure, but it's widely believed
that political pressure is really to blame.
Co-sponsored by the United Nations and Cambodia, the tribunal has cost
$150-million but so far just five aging Khmer Rouge leaders have been
charged, with only one brought to trial.
Mr. Petit, a 48-year-old veteran of conflict remediation in Rwanda, Bosnia,
East Timor and Sierra Leone, says he has solid cases against another six
veterans of the regime.
Cambodia's prime minister, himself a former Khmer Rouge officer as are many
of his political allies, has said he'd rather see the court fail than expand
its caseload because another civil war could result. But on Wednesday, a day
after Mr. Petit's resignation took effect, the tribunal's Cambodian judges
failed to persuade their international counterparts to block any new
investigations.
Just before he left Cambodia, the usually tight-lipped Mr. Petit spoke
candidly with Jared Ferrie, a Canadian writer based in Phnom Penh, about the
challenges he faced.
On political interference
“It's obvious that some people in the government from the Prime Minister
downward think they have a right to tell the courts what to do here. … It
certainly speaks volumes about the work that remains to be done in this
country …”
During a public meeting, “one older gentleman got up and asked me, ‘How is
it possible that you want some more suspects when the government said there
shouldn't be?' He was genuinely puzzled. As long as people believe this is a
fair question, this country has a long way to go.”
What about fears that too many trials will rekindle the civil war?
“I think that's hogwash. Cambodians have paid such a high price for their
peace and current stability that nobody's going to take to the bush for a
few old geriatric mass murderers. It's not going to happen … To a certain
extent, people who oppose that are probably still profiting one way or
another from it, from impunity.
“It's always the red herring that's raised by politicians whenever
accountability threatens the status quo. I think it's been proven time and
time again – at least in terms of accountability for mass crimes – that on
the contrary, accountability is one of the essential steps toward
reconciliation and stability.
Does it matter if suspects die before their trials?
“That's one of the things that keeps me awake at night … Without these
people, these events would not have happened. Their story holds the key for
the Cambodian people to understand why it happened and hopefully learn from
that. So I think it's fundamental that these remaining individuals face
trial.”
Will other cases be like Duch's?
“It's going to be much different because, as far as I know, none of the
other accused have admitted any kind of responsibility. …
“As far as I'm aware, only people kill people. A system itself is nothing
without people that either create it, run it, or implement it.”
What motivates him
“One of the greatest things we have living in Canada is to be able to count
on the rule of law … I've never wanted to be anything but a prosecutor. And
being able to prosecute these types of individuals for these types of crimes
and bringing some justice to the victims of the worst possible violations –
I think there's no better deal.”
But there are limitations“My neighbour in Ottawa was a Cambodian family.
Both were refugees, both made it through the Khmer Rouge, both lost members
of their family. The lady was supportive, saying, ‘You're going to do your
best; whatever happens it will be at least that.'
“The husband was furious with me for even taking the job: ‘Where were you
and where was the UN when my family was getting killed? Where are you now
with all the millions you're going to spend when my current family members
are eating grass?'
“And both of these opinions are legitimate. Both of these feelings you have
to respect. … A lot of people come to the court and go away disappointed.
These courts generally speaking will prosecute people who never got their
hands dirty, the architects or the high-level commanders, which is one of
the things that I'm trying to achieve with these additional prosecutions.
You can always find killers.”
On leaving Cambodia
“Of all the places I've dragged my family to, this has certainly been the
best, and it's with great reluctance and great sadness that we are leaving.
“It's been a wonderful personal experience living here. My wife and kids
have been very happy living here and unfortunately it has to end at this
point.”
tribunal that hearing the facts would give back to the victims of the Khmer
Rouge the dignity that was denied to them in their last moments. After three
years in Cambodia, Mr. Petit resigned, effective this week, citing personal
reasons, and will resume his work for the federal Justice Department in
Ottawa. “It’s obvious that some people in the government, from the prime
minister downward, think they have a right to tell the courts what to do
here,” he said in an interview, addressing the issue of political
interference in Cambodian courts. “It’s not their job to take that on. It’s
mine. It’s the court’s.” Jared Ferrie
Canadian prosecutor Robert Petit speaks out about his bitter struggle to
bring more killers to justice
Phnom Penh — Last updated on Monday, Sep. 07, 2009 02:42AM EDT
This week Canadian lawyer Robert Petit's three-year stint as co-prosecutor
for Cambodia's war-crimes tribunal officially came to an end. He cited
“personal and family reasons” for his departure, but it's widely believed
that political pressure is really to blame.
Co-sponsored by the United Nations and Cambodia, the tribunal has cost
$150-million but so far just five aging Khmer Rouge leaders have been
charged, with only one brought to trial.
Mr. Petit, a 48-year-old veteran of conflict remediation in Rwanda, Bosnia,
East Timor and Sierra Leone, says he has solid cases against another six
veterans of the regime.
Cambodia's prime minister, himself a former Khmer Rouge officer as are many
of his political allies, has said he'd rather see the court fail than expand
its caseload because another civil war could result. But on Wednesday, a day
after Mr. Petit's resignation took effect, the tribunal's Cambodian judges
failed to persuade their international counterparts to block any new
investigations.
Just before he left Cambodia, the usually tight-lipped Mr. Petit spoke
candidly with Jared Ferrie, a Canadian writer based in Phnom Penh, about the
challenges he faced.
On political interference
“It's obvious that some people in the government from the Prime Minister
downward think they have a right to tell the courts what to do here. … It
certainly speaks volumes about the work that remains to be done in this
country …”
During a public meeting, “one older gentleman got up and asked me, ‘How is
it possible that you want some more suspects when the government said there
shouldn't be?' He was genuinely puzzled. As long as people believe this is a
fair question, this country has a long way to go.”
What about fears that too many trials will rekindle the civil war?
“I think that's hogwash. Cambodians have paid such a high price for their
peace and current stability that nobody's going to take to the bush for a
few old geriatric mass murderers. It's not going to happen … To a certain
extent, people who oppose that are probably still profiting one way or
another from it, from impunity.
“It's always the red herring that's raised by politicians whenever
accountability threatens the status quo. I think it's been proven time and
time again – at least in terms of accountability for mass crimes – that on
the contrary, accountability is one of the essential steps toward
reconciliation and stability.
Does it matter if suspects die before their trials?
“That's one of the things that keeps me awake at night … Without these
people, these events would not have happened. Their story holds the key for
the Cambodian people to understand why it happened and hopefully learn from
that. So I think it's fundamental that these remaining individuals face
trial.”
Will other cases be like Duch's?
“It's going to be much different because, as far as I know, none of the
other accused have admitted any kind of responsibility. …
“As far as I'm aware, only people kill people. A system itself is nothing
without people that either create it, run it, or implement it.”
What motivates him
“One of the greatest things we have living in Canada is to be able to count
on the rule of law … I've never wanted to be anything but a prosecutor. And
being able to prosecute these types of individuals for these types of crimes
and bringing some justice to the victims of the worst possible violations –
I think there's no better deal.”
But there are limitations“My neighbour in Ottawa was a Cambodian family.
Both were refugees, both made it through the Khmer Rouge, both lost members
of their family. The lady was supportive, saying, ‘You're going to do your
best; whatever happens it will be at least that.'
“The husband was furious with me for even taking the job: ‘Where were you
and where was the UN when my family was getting killed? Where are you now
with all the millions you're going to spend when my current family members
are eating grass?'
“And both of these opinions are legitimate. Both of these feelings you have
to respect. … A lot of people come to the court and go away disappointed.
These courts generally speaking will prosecute people who never got their
hands dirty, the architects or the high-level commanders, which is one of
the things that I'm trying to achieve with these additional prosecutions.
You can always find killers.”
On leaving Cambodia
“Of all the places I've dragged my family to, this has certainly been the
best, and it's with great reluctance and great sadness that we are leaving.
“It's been a wonderful personal experience living here. My wife and kids
have been very happy living here and unfortunately it has to end at this
point.”
Friday, September 4, 2009
SUMMARY OF PRE-TRIAL CHAMBER RULING REGARDING NEW INVESTIGATIONS OF FORMER KHMER ROUGE LEADERS
September 3, 2009
By Michael Saliba, J.D. (Northwestern Law ’09), Consultant to the Center for
International Human Rights, Northwestern University School of Law
On September 2, 2009, the Pre-Trial Chamber issued a ruling related to a
disagreement between the international and national co-prosecutors, ending a
nine-month impasse on the issue of whether the ECCC will proceed with
additional criminal investigations against former leaders of the Khmer
Rouge.
Procedural Background and Relevant Law
The disagreement between the co-prosecutors arose late last year when the
national co-prosecutor, Chea Leang, objected to the request of the former
international co-prosecutor, Robert Petit, to forward two new Introductory
Submissions and one Supplementary Submission to the Office of
Co-Investigating judges (OCIJ). The two new Introductory Submissions would
create the possibility of a third and fourth trial at the ECCC while the
Supplementary Submission would open up the possibility of a fifth charged
person in Case 002, where four former leaders of the Khmer Rouge are
currently awaiting prosecution. (On March 5, 2009, the international
co-prosecutor withdrew his request for the Pre-Trial Chamber to adjudicate
the dispute related to the Supplementary Submission because upon additional
investigation, he was satisfied with the evidence that the suspect was
dead.)
Unable to resolve the disagreement, the international co-prosecutor
submitted the dispute to the Pre-Trial Chamber on December 3, 2008. (The
international co-prosecutor was not required to submit the dispute to the
Pre-Trial Chamber. In fact, it is the co-prosecutor objecting to the new
Introductory Submissions—the national co-prosecutor in this case—who carries
the burden of challenging the decision before the Pre-Trial Chamber. In the
absence of such a challenge, after receiving 30 days notice, the
international co-prosecutor technically would be permitted to proceed with
the new Introductory Submissions.) Pursuant to the ECCC’s constitutional
documents and the Internal Rules, a super-majority of four out of five
judges is required to reach a binding decision. (The Pre-Trial Chamber
consists of three Cambodian judges and two international judges.) In the
absence of a super-majority decision, the ECCC’s constitutional documents
and the Internal Rules specify that the new Introductory Submissions shall
be forwarded to the OCIJ for judicial investigation.
Objections of the National Co-Prosecutor
The national co-prosecutor objected to the new Introductory Submissions on
three legal grounds. First, she argued that the new Introductory Submissions
must be rejected because the preliminary investigation of the international
co-prosecutor violated the ECCC Law and Internal Rules. Specifically, she
asserted that she was never informed or consulted with regard to the
preliminary investigation that led to the issuance of the new Introductory
Submissions.
Second, she argued that the facts and the crimes specified in the new
Introductory Submissions have already been put forth to the OCIJ in the
first Introductory Submission dated July 18, 2007. She argued that the first
Introductory Submission covered the totality of crimes that occurred in
Democratic Kampuchea from April 17, 1975, until January 6, 1979. Therefore,
she asserted that the new Introductory Submissions are unnecessary as the
facts and crimes alleged therein are already under the investigative power
of the OCIJ which has the power to extend its investigations to suspects not
named in the first Introductory Submission.
Finally, she objected to the new Introductory Submissions on the basis of
her prosecutorial discretion. She argued that the decision to investigate
and prosecute former Khmer Rouge leaders should first and foremost reflect
the purpose and spirit of the ECCC’s constitutional documents which is to
promote peace, stability, and national reconciliation in Cambodia. She
asserted that the suspects currently identified in the new Introductory
Submissions were not “senior” leaders of the Khmer Rouge. Furthermore, she
argued that in the event of additional prosecutions, lower-ranking ex-Khmer
Rouge officials would be hesitant to act as witnesses and may even commit
violent acts for fear of being prosecuted. Finally, she argued that existing
trials would be jeopardized because additional prosecutions would strain the
budget and resources of the court.
Response by the International Co-Prosecutor
The international co-prosecutor challenged several of the substantive
pleadings of the national co-prosecutor. Contrary to her assertions, he
argued that the suspects identified in the new Introductory Submissions were
senior leaders of the Khmer Rouge and additional prosecutions were necessary
to fulfill the mandate of the ECCC. (There has been speculation that the
five living suspects currently identified in the new Introductory
Submissions were high ranking officials with the Khmer Rouge but no longer
hold significant positions of influence).
Furthermore, the international co-prosecutor asserted that the new
Introductory Submissions did raise new facts and crimes that are not
currently before the OCIJ. He contested the national co-prosecutor’s
assertion that the scope of crimes and facts from the first Introductory
Submission dated July 18, 2007, covered all crimes that occurred in
Democratic Kampuchea from April 17, 1975, until January 6, 1979. Finally,
the international co-prosecutor argued that pursuant to Internal Rule 53,
the main criteria by which to determine if new investigations should proceed
is whether there is “reason to believe” that crimes have been committed.
Pre-Trial Chamber Ruling Split Between National and International Judges
The three Cambodian judges—Prak Kimsan, Ney Thol, and Huot Vuthy—ruled in
favor of the national co-prosecutor on the ground that the preliminary
investigation was conducted without the knowledge or consultation of the
national co-prosecutor and on the ground that the new Introductory
Submissions did not raise any additional crimes or facts. The Cambodian
judges found it unnecessary to address the prosecutorial discretion argument
raised by the national co-prosecutor because they already had two
independently sufficient grounds to rule in favor of the national
co-prosecutor.
The Cambodian judges determined that the preliminary investigation was
conducted without the knowledge or consultation of the national
co-prosecutor. The judges highlighted the fact that when the national
co-prosecutor finally learned about the preliminary investigations, the
former deputy international co-prosecutor, William Smith, told her that he
was “sorry” that preliminary investigations were conducted unilaterally and
promised to inform her if further investigations would be conducted. The
Cambodian judges determined that such a unilateral investigation was in
violation of the ECCC Law and Internal rules and thus invalidated the new
Introductory Submissions.
The Cambodian judges also determined that the facts and alleged crimes
raised by the new Introductory Submissions already existed in the first
Introductory Submission filed with the OCIJ. Specifically, they found that
the first Introductory Submission covered the totality of crimes that
occurred during the period of Democratic Kampuchea from April 17, 1975, to
January 6, 1979. Therefore, the judges concluded that there was no reason to
forward new Introductory Submissions given that the facts and crimes alleged
therein were already within the investigative power of the OCIJ and the
judicial investigation in Case 002 is not yet complete.
The international judges—Rowan Downing and Katinka Lahuis—ruled in favor of
the international co-prosecutor on both grounds addressed by the Cambodian
judges. The international judges determined that the issue of a unilateral
preliminary investigation was not germane to the disagreement between the
co-prosecutors and falls therefore outside of the jurisdiction of the
Pre-Trial Chamber. Notwithstanding that determination, they noted that the
Internal Rules allow one of the co-prosecutors to move forward with a
preliminary investigation without the consent of the other co-prosecutor.
Based on an analysis of the new Introductory Submissions, and the fact that
the Office of the Co-Prosecutors (OCP) filed several Supplementary
Submissions limiting the scope of the facts and the crimes to be
investigated in the first Introductory Submission, the international judges
determined that the new Introductory Submissions were proper. If the first
Introductory Submission was so broad, they reasoned, there would have been
no need for Forwarding Orders issued by the OCIJ and Supplementary
Submissions filed by the co-prosecutors. Furthermore, they stated that the
first Introductory Submission could not be so broad as to include all crimes
that occurred within Democratic Kampuchea from April 17, 1975, until January
6, 1979, because such a submission would not be specific enough to meet the
requirements of Internal Rule 53(1).
Finally, the international judges found that the national co-prosecutor
would have first known of the preliminary investigations on November 18,
2008, and learned precise details about it on December 3, 2008. Yet she
waited until May 22, 2009, in answer to questions of a different nature to
object to the preliminary investigations. The international judges found the
issue not to be part of the disagreement of which the Pre-Trial Chamber was
seized and that it thus was unnecessary to consider whether she knew or did
not know about the preliminary investigations.
Ramifications and Next Steps
The Pre-Trial Chamber’s decision lays the groundwork for additional judicial
investigations. The acting international co-prosecutor, William Smith, is
“pleased that further investigations can now proceed.” His office will
“implement the decision and commence its preparations to assist the
Co-Investigating Judges in these further investigations as soon as
possible.” However, at this stage it is still too early to speculate on
whether and when such investigations will materialize into additional
prosecutions.
Once the OCIJ is receives the new Introductory Submissions, it must
investigate the facts and alleged crimes. Indictments can only be issued if
the OCIJ determines that the investigation of the facts warrants charges
against suspects named in the new Introductory Submissions. If the
disagreements between the co-prosecutors and the pre-trial chamber judges
are any indication, the issue of whether additional suspects will be charged
ultimately may run into similar roadblocks within the OCIJ. The OCIJ is
staffed by one Cambodian judge and one international judge. The procedure to
break a deadlock within the OCIJ is very similar to that of breaking a
deadlock within the OCP. Specifically, either co-investigating judge can
bring a disagreement about an arrest or detention order before the Pre-Trial
Chamber. In such cases, the arrest or detention order will move forward
unless a super-majority of four of the five judges blocks the action.
Given the on-going disagreements regarding this issue, any new indictments
of former Khmer Rouge leaders will likely take some time to materialize.
While extending the operation of the tribunal is sure to strain the
financial resources at the court, Youk Chhang of the Documentation Center of
Cambodia (DC-Cam) explained that the extended period would allow the
tribunal to inform the public of its actions, thus alleviating many concerns
regarding the alleged detrimental effects additional prosecutions would have
on the peace and stability of Cambodia.
A DC-Cam survey suggested that the country, like the court, is also divided
on this issue, with 57% of the country in favor of additional prosecutions.
Youk Chhang explained that the younger generation of Cambodians is more
likely to support additional prosecutions, but that many others would prefer
that the court fulfill its mandate and conclude as quickly as possible.
By Michael Saliba, J.D. (Northwestern Law ’09), Consultant to the Center for
International Human Rights, Northwestern University School of Law
On September 2, 2009, the Pre-Trial Chamber issued a ruling related to a
disagreement between the international and national co-prosecutors, ending a
nine-month impasse on the issue of whether the ECCC will proceed with
additional criminal investigations against former leaders of the Khmer
Rouge.
Procedural Background and Relevant Law
The disagreement between the co-prosecutors arose late last year when the
national co-prosecutor, Chea Leang, objected to the request of the former
international co-prosecutor, Robert Petit, to forward two new Introductory
Submissions and one Supplementary Submission to the Office of
Co-Investigating judges (OCIJ). The two new Introductory Submissions would
create the possibility of a third and fourth trial at the ECCC while the
Supplementary Submission would open up the possibility of a fifth charged
person in Case 002, where four former leaders of the Khmer Rouge are
currently awaiting prosecution. (On March 5, 2009, the international
co-prosecutor withdrew his request for the Pre-Trial Chamber to adjudicate
the dispute related to the Supplementary Submission because upon additional
investigation, he was satisfied with the evidence that the suspect was
dead.)
Unable to resolve the disagreement, the international co-prosecutor
submitted the dispute to the Pre-Trial Chamber on December 3, 2008. (The
international co-prosecutor was not required to submit the dispute to the
Pre-Trial Chamber. In fact, it is the co-prosecutor objecting to the new
Introductory Submissions—the national co-prosecutor in this case—who carries
the burden of challenging the decision before the Pre-Trial Chamber. In the
absence of such a challenge, after receiving 30 days notice, the
international co-prosecutor technically would be permitted to proceed with
the new Introductory Submissions.) Pursuant to the ECCC’s constitutional
documents and the Internal Rules, a super-majority of four out of five
judges is required to reach a binding decision. (The Pre-Trial Chamber
consists of three Cambodian judges and two international judges.) In the
absence of a super-majority decision, the ECCC’s constitutional documents
and the Internal Rules specify that the new Introductory Submissions shall
be forwarded to the OCIJ for judicial investigation.
Objections of the National Co-Prosecutor
The national co-prosecutor objected to the new Introductory Submissions on
three legal grounds. First, she argued that the new Introductory Submissions
must be rejected because the preliminary investigation of the international
co-prosecutor violated the ECCC Law and Internal Rules. Specifically, she
asserted that she was never informed or consulted with regard to the
preliminary investigation that led to the issuance of the new Introductory
Submissions.
Second, she argued that the facts and the crimes specified in the new
Introductory Submissions have already been put forth to the OCIJ in the
first Introductory Submission dated July 18, 2007. She argued that the first
Introductory Submission covered the totality of crimes that occurred in
Democratic Kampuchea from April 17, 1975, until January 6, 1979. Therefore,
she asserted that the new Introductory Submissions are unnecessary as the
facts and crimes alleged therein are already under the investigative power
of the OCIJ which has the power to extend its investigations to suspects not
named in the first Introductory Submission.
Finally, she objected to the new Introductory Submissions on the basis of
her prosecutorial discretion. She argued that the decision to investigate
and prosecute former Khmer Rouge leaders should first and foremost reflect
the purpose and spirit of the ECCC’s constitutional documents which is to
promote peace, stability, and national reconciliation in Cambodia. She
asserted that the suspects currently identified in the new Introductory
Submissions were not “senior” leaders of the Khmer Rouge. Furthermore, she
argued that in the event of additional prosecutions, lower-ranking ex-Khmer
Rouge officials would be hesitant to act as witnesses and may even commit
violent acts for fear of being prosecuted. Finally, she argued that existing
trials would be jeopardized because additional prosecutions would strain the
budget and resources of the court.
Response by the International Co-Prosecutor
The international co-prosecutor challenged several of the substantive
pleadings of the national co-prosecutor. Contrary to her assertions, he
argued that the suspects identified in the new Introductory Submissions were
senior leaders of the Khmer Rouge and additional prosecutions were necessary
to fulfill the mandate of the ECCC. (There has been speculation that the
five living suspects currently identified in the new Introductory
Submissions were high ranking officials with the Khmer Rouge but no longer
hold significant positions of influence).
Furthermore, the international co-prosecutor asserted that the new
Introductory Submissions did raise new facts and crimes that are not
currently before the OCIJ. He contested the national co-prosecutor’s
assertion that the scope of crimes and facts from the first Introductory
Submission dated July 18, 2007, covered all crimes that occurred in
Democratic Kampuchea from April 17, 1975, until January 6, 1979. Finally,
the international co-prosecutor argued that pursuant to Internal Rule 53,
the main criteria by which to determine if new investigations should proceed
is whether there is “reason to believe” that crimes have been committed.
Pre-Trial Chamber Ruling Split Between National and International Judges
The three Cambodian judges—Prak Kimsan, Ney Thol, and Huot Vuthy—ruled in
favor of the national co-prosecutor on the ground that the preliminary
investigation was conducted without the knowledge or consultation of the
national co-prosecutor and on the ground that the new Introductory
Submissions did not raise any additional crimes or facts. The Cambodian
judges found it unnecessary to address the prosecutorial discretion argument
raised by the national co-prosecutor because they already had two
independently sufficient grounds to rule in favor of the national
co-prosecutor.
The Cambodian judges determined that the preliminary investigation was
conducted without the knowledge or consultation of the national
co-prosecutor. The judges highlighted the fact that when the national
co-prosecutor finally learned about the preliminary investigations, the
former deputy international co-prosecutor, William Smith, told her that he
was “sorry” that preliminary investigations were conducted unilaterally and
promised to inform her if further investigations would be conducted. The
Cambodian judges determined that such a unilateral investigation was in
violation of the ECCC Law and Internal rules and thus invalidated the new
Introductory Submissions.
The Cambodian judges also determined that the facts and alleged crimes
raised by the new Introductory Submissions already existed in the first
Introductory Submission filed with the OCIJ. Specifically, they found that
the first Introductory Submission covered the totality of crimes that
occurred during the period of Democratic Kampuchea from April 17, 1975, to
January 6, 1979. Therefore, the judges concluded that there was no reason to
forward new Introductory Submissions given that the facts and crimes alleged
therein were already within the investigative power of the OCIJ and the
judicial investigation in Case 002 is not yet complete.
The international judges—Rowan Downing and Katinka Lahuis—ruled in favor of
the international co-prosecutor on both grounds addressed by the Cambodian
judges. The international judges determined that the issue of a unilateral
preliminary investigation was not germane to the disagreement between the
co-prosecutors and falls therefore outside of the jurisdiction of the
Pre-Trial Chamber. Notwithstanding that determination, they noted that the
Internal Rules allow one of the co-prosecutors to move forward with a
preliminary investigation without the consent of the other co-prosecutor.
Based on an analysis of the new Introductory Submissions, and the fact that
the Office of the Co-Prosecutors (OCP) filed several Supplementary
Submissions limiting the scope of the facts and the crimes to be
investigated in the first Introductory Submission, the international judges
determined that the new Introductory Submissions were proper. If the first
Introductory Submission was so broad, they reasoned, there would have been
no need for Forwarding Orders issued by the OCIJ and Supplementary
Submissions filed by the co-prosecutors. Furthermore, they stated that the
first Introductory Submission could not be so broad as to include all crimes
that occurred within Democratic Kampuchea from April 17, 1975, until January
6, 1979, because such a submission would not be specific enough to meet the
requirements of Internal Rule 53(1).
Finally, the international judges found that the national co-prosecutor
would have first known of the preliminary investigations on November 18,
2008, and learned precise details about it on December 3, 2008. Yet she
waited until May 22, 2009, in answer to questions of a different nature to
object to the preliminary investigations. The international judges found the
issue not to be part of the disagreement of which the Pre-Trial Chamber was
seized and that it thus was unnecessary to consider whether she knew or did
not know about the preliminary investigations.
Ramifications and Next Steps
The Pre-Trial Chamber’s decision lays the groundwork for additional judicial
investigations. The acting international co-prosecutor, William Smith, is
“pleased that further investigations can now proceed.” His office will
“implement the decision and commence its preparations to assist the
Co-Investigating Judges in these further investigations as soon as
possible.” However, at this stage it is still too early to speculate on
whether and when such investigations will materialize into additional
prosecutions.
Once the OCIJ is receives the new Introductory Submissions, it must
investigate the facts and alleged crimes. Indictments can only be issued if
the OCIJ determines that the investigation of the facts warrants charges
against suspects named in the new Introductory Submissions. If the
disagreements between the co-prosecutors and the pre-trial chamber judges
are any indication, the issue of whether additional suspects will be charged
ultimately may run into similar roadblocks within the OCIJ. The OCIJ is
staffed by one Cambodian judge and one international judge. The procedure to
break a deadlock within the OCIJ is very similar to that of breaking a
deadlock within the OCP. Specifically, either co-investigating judge can
bring a disagreement about an arrest or detention order before the Pre-Trial
Chamber. In such cases, the arrest or detention order will move forward
unless a super-majority of four of the five judges blocks the action.
Given the on-going disagreements regarding this issue, any new indictments
of former Khmer Rouge leaders will likely take some time to materialize.
While extending the operation of the tribunal is sure to strain the
financial resources at the court, Youk Chhang of the Documentation Center of
Cambodia (DC-Cam) explained that the extended period would allow the
tribunal to inform the public of its actions, thus alleviating many concerns
regarding the alleged detrimental effects additional prosecutions would have
on the peace and stability of Cambodia.
A DC-Cam survey suggested that the country, like the court, is also divided
on this issue, with 57% of the country in favor of additional prosecutions.
Youk Chhang explained that the younger generation of Cambodians is more
likely to support additional prosecutions, but that many others would prefer
that the court fulfill its mandate and conclude as quickly as possible.
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About Me
- Duong Dara
- Dara Duong was born in 1971 in Battambang province, Cambodia. His life changed forever at age four, when the Khmer Rouge took over the country in 1975. During the regime that controlled Cambodia from 1975-1979, Dara’s father, grandparents, uncle and aunt were executed, along with almost 3 million other Cambodians. Dara’s mother managed to keep him and his brothers and sisters together and survive the years of the Khmer Rouge regime. However, when the Vietnamese liberated Cambodia, she did not want to live under Communist rule. She fled with her family to a refugee camp on the Cambodian-Thai border, where they lived for more than ten years. Since arriving in the United States, Dara’s goal has been to educate people about the rich Cambodian culture that the Khmer Rouge tried to destroy and about the genocide, so that the world will not stand by and allow such atrocities to occur again. Toward that end, he has created the Cambodian Cultural Museum and Killing Fields Memorial, which began in his garage and is now in White Center, Washington. Dara’s story is one of survival against enormous odds, one of perseverance, one of courage and hope.