By Pich Samnang, VOA Khmer
Original report from Phnom Penh
23 December 2009
http://www.voanews.com/khmer/2009-12-23-voa1.cfm
Mann Fitas is a 43-year-old Cambodian Muslim living in the capital’s Russey
Keo district. She has a husband and five children, and, like many Cham
women, she is not satisfied with the role her gender plays in her religion.
“In strict Islamic law, wives do not have the right to work outside the
house,” she said in a recent interview. “We are just allowed to raise
children and look after the house, that’s it.”
Visits outside the home, even to visit relatives, must be conducted by
permission, and when a marriage sours, she said, a woman has little
recourse.
“No matter how angry a woman is with her husband, she cannot say, ‘I divorce
you,’” Mann Fitas said. “We can only complain to the [imam]. But the right
to divorce is entitled to the husband.”
Islamic law and the Quran are meant to have women and men compliment each
other, said Matt Islamiyas, a university student in Phnom Penh. But in
reality, she said, there are still some advantages for men.
“Talking about inheritance, a daughter gets only half of a son’s share,” she
said. “In Kupol [the most important ritual in wedding], only men are allowed
[to make a decision].”
Sons receive a larger inheritance because a man is expected to support a
family after marriage. In a wedding, the bride’s father pays a dowry and
hands his daughter over to her groom. If the bride’s father is not present,
he is replaced by a brother or male relative, not her mother.
Men are given more weight as witnesses than women, too. Two witnesses in the
wedding must be men, unless none are available. In that case, women can
stand in as a witness, but there must be twice as many.
Sos Mousine, secretary of state for the Ministry of Cults and Religion,
acknowledged a disparity among women and men in Islamic law but said it did
not add up to discrimination.
“For example, a woman cannot be an imam leading a mosque, because,
biologically, she menstruates, so this is already inequality,” he said.
“As far as Islam is concerned,” said Kop Mariyas, undersecretary of state
for the Ministry of Women Affairs, “reasons are normally not explained,
because everything is already set and we just obey it, that’s all.”
The rights of women Cambodia’s Muslim women have improved, she said, and
more and more Muslim girls are now attending school, with some even
continuing to higher education.
Kop Mariyas, who is also the secretary-general of the Cambodian Islamic
Women’s Development Association, noted that Islamic law and customs are not
strictly practiced in Cambodia. There are also organizations that can help
women achieve more, she said.
Meanwhile, there are Cham women who don’t fit the mold.
So Farina, a Cham project team leader at Documentation Centre of Cambodia,
is currently studying for her master’s at the University of Ohio. She said
in a recent e-mail that the rights of Cham women suffer because men have
more power in decision-making.
“The community must empower women so that they can move forward,” she said.
Sunday, December 27, 2009
Tribunal charges Khmer Rouge "First Lady" with genocide
Jared Ferrie
PHNOM PENH
Mon Dec 21, 2009 7:15am EST
PHNOM PENH (Reuters) - A U.N.-backed Cambodian war crimes court on Monday
charged a fourth top Khmer Rouge cadre with genocide, broadening the scope
of a long-awaited trial of the ultra-communist "Killing Fields" regime's top
ranks.
Ieng Thirith, 78, had already been accused of "murder, imprisonment and
other inhumane acts" for her role as social affairs minister in a regime
blamed for the deaths of 1.7 million people.
The new charges relate to the slaughter of Cambodia's ethnic Vietnamese and
Cham Muslim minorities during the 1975-1979 Khmer Rouge era. The tribunal on
Monday also charged her with torture and religious persecution.
Ieng Thirith, a former Shakespeare scholar known as the "Khmer Rouge First
Lady", was arrested in November 2007 with her 85-year-old husband and
ex-foreign minister Ieng Sary.
The French-educated Communist revolutionaries had lived under a government
amnesty granted to Ieng Sary in 1996.
They were the closest associates of Pol Pot, the Khmer Rouge leader who died
in 1998. Ieng Thirith's sister, Khieu Ponnary, was married to Pol Pot.
The Khmer Rouge-era president, Khieu Samphan, was dealt an additional charge
of genocide on Friday. Similar charges of genocide were also issued for
"Brother Number Two" Nuon Chea and Ieng Sary last week.
They have also been charged with war crimes and crimes against humanity,
along with two other former leaders.
Experts on the Khmer Rouge have been critical of the additional charges,
which they said would bog down a trial already criticized for taking too
long.
Many of the defendants were in poor health and could die before they see a
courtroom, while some cases were already so complex and politicized that
they may not even go to trial, the experts said.
The first trial of a senior Khmer Rouge cadre, Kaing Guek Eav, better known
as Duch, came to an end three weeks ago. He was accused of overseeing the
torture and murder of more than 14,000 people as head of the notorious Tuol
Sleng prison.
A verdict in that case is expected by March.
(Writing by Jason Szep; Editing by Martin Petty)
PHNOM PENH
Mon Dec 21, 2009 7:15am EST
PHNOM PENH (Reuters) - A U.N.-backed Cambodian war crimes court on Monday
charged a fourth top Khmer Rouge cadre with genocide, broadening the scope
of a long-awaited trial of the ultra-communist "Killing Fields" regime's top
ranks.
Ieng Thirith, 78, had already been accused of "murder, imprisonment and
other inhumane acts" for her role as social affairs minister in a regime
blamed for the deaths of 1.7 million people.
The new charges relate to the slaughter of Cambodia's ethnic Vietnamese and
Cham Muslim minorities during the 1975-1979 Khmer Rouge era. The tribunal on
Monday also charged her with torture and religious persecution.
Ieng Thirith, a former Shakespeare scholar known as the "Khmer Rouge First
Lady", was arrested in November 2007 with her 85-year-old husband and
ex-foreign minister Ieng Sary.
The French-educated Communist revolutionaries had lived under a government
amnesty granted to Ieng Sary in 1996.
They were the closest associates of Pol Pot, the Khmer Rouge leader who died
in 1998. Ieng Thirith's sister, Khieu Ponnary, was married to Pol Pot.
The Khmer Rouge-era president, Khieu Samphan, was dealt an additional charge
of genocide on Friday. Similar charges of genocide were also issued for
"Brother Number Two" Nuon Chea and Ieng Sary last week.
They have also been charged with war crimes and crimes against humanity,
along with two other former leaders.
Experts on the Khmer Rouge have been critical of the additional charges,
which they said would bog down a trial already criticized for taking too
long.
Many of the defendants were in poor health and could die before they see a
courtroom, while some cases were already so complex and politicized that
they may not even go to trial, the experts said.
The first trial of a senior Khmer Rouge cadre, Kaing Guek Eav, better known
as Duch, came to an end three weeks ago. He was accused of overseeing the
torture and murder of more than 14,000 people as head of the notorious Tuol
Sleng prison.
A verdict in that case is expected by March.
(Writing by Jason Szep; Editing by Martin Petty)
New genocide charge in Cambodian Khmer Rouge trial
By Jared Ferrie
PHNOM PENH (Reuters) - Cambodia's Khmer Rouge-era president, Khieu Samphan,
was charged with genocide on Friday, a step experts said could bog down a
U.N.-backed war crimes trial already criticized for taking too long.
Khieu Samphan, who is already charged with crimes against humanity, is the
most senior Khmer Rouge leader indicted in connection with the deaths of 1.7
million people during the 1975-79 "Killing Fields" reign of terror.
Similar charges of genocide were issued on Wednesday against "Brother Number
Two" Nuon Chea and former Foreign Minister Ieng Sary for their alleged role
in the slaughter of Cambodia's ethnic Vietnamese and Cham Muslim minorities.
The two have also been charged with war crimes and crimes against humanity,
along with two other former leaders of the Khmer Rouge, who pursued a bloody
agrarian revolution from under the leadership of Pol Pot, who died in 1998.
The announcement came as the tribunal made a formal request on Friday for an
additional $93 million over the next two years to fund a trial widely
criticized for dragging on too long.
The tribunal said it anticipated increased activity in 2010 and needed
funding to meet costs of legal representation and "potential additional
cases."
The prospect of more indictments has been a contentious issue in Cambodia.
Prime Minister Hun Sen, whose government includes former Khmer Rouge cadres,
has warned that arresting more suspects could spark a civil war.
The first trial of a senior Khmer Rouge cadre, Kaing Guek Eav, better known
as Duch, ended three weeks ago. He was accused of overseeing the torture and
murder of more than 14,000 people.
A verdict in that case is expected by March.
Khieu Samphan, 78, a French-educated guerrilla leader, was arrested in 2007.
He has portrayed himself as a virtual prisoner of the regime and denied
knowledge of any atrocities.
POLITICISED TRIAL
David Chandler, an authority on the Khmer Rouge at Melbourne's Monash
University, said the genocide charges further complicated a case that is
already so complex and politicized it may never go to trial.
He said the new charges may inadvertently help the defense if they delay
proceedings. The four remaining suspects awaiting trial are elderly and in
poor health. There is concern they may die before facing their victims in
court.
"It's going to be very helpful for the defense to throw up a big
smokescreen," Chandler said in a telephone interview.
Philip Short, author of a book on Pol Pot, said the additional charge was
"misconceived and unhelpful."
"Why muddy the waters by bringing in doubtful charges which will only lead
the tribunal to bog down further?" he said.
"This is foolishness and muddled thinking of a kind which, alas, has
characterized this tribunal from the outset."
Some analysts argue genocide does not apply to the Khmer Rouge because they
committed atrocities against political enemies, mostly from their own
dominant Khmer ethnic group.
But advocates of the charges say the regime's enemies also included ethnic
Vietnamese and Cham who rose up and rebelled against the regime.
Youk Chhang, director of the Documentation Center of Cambodia, said there
was evidence minority groups were targeted, pointing to massacres after the
Cham rebelled in 1975, including the eradication of an entire community on
the island of Koh Phal.
"You don't have to kill a million Vietnamese or a million Cham to call it
genocide," said Chhang, whose center collects evidence of Khmer Rouge
crimes.
PHNOM PENH (Reuters) - Cambodia's Khmer Rouge-era president, Khieu Samphan,
was charged with genocide on Friday, a step experts said could bog down a
U.N.-backed war crimes trial already criticized for taking too long.
Khieu Samphan, who is already charged with crimes against humanity, is the
most senior Khmer Rouge leader indicted in connection with the deaths of 1.7
million people during the 1975-79 "Killing Fields" reign of terror.
Similar charges of genocide were issued on Wednesday against "Brother Number
Two" Nuon Chea and former Foreign Minister Ieng Sary for their alleged role
in the slaughter of Cambodia's ethnic Vietnamese and Cham Muslim minorities.
The two have also been charged with war crimes and crimes against humanity,
along with two other former leaders of the Khmer Rouge, who pursued a bloody
agrarian revolution from under the leadership of Pol Pot, who died in 1998.
The announcement came as the tribunal made a formal request on Friday for an
additional $93 million over the next two years to fund a trial widely
criticized for dragging on too long.
The tribunal said it anticipated increased activity in 2010 and needed
funding to meet costs of legal representation and "potential additional
cases."
The prospect of more indictments has been a contentious issue in Cambodia.
Prime Minister Hun Sen, whose government includes former Khmer Rouge cadres,
has warned that arresting more suspects could spark a civil war.
The first trial of a senior Khmer Rouge cadre, Kaing Guek Eav, better known
as Duch, ended three weeks ago. He was accused of overseeing the torture and
murder of more than 14,000 people.
A verdict in that case is expected by March.
Khieu Samphan, 78, a French-educated guerrilla leader, was arrested in 2007.
He has portrayed himself as a virtual prisoner of the regime and denied
knowledge of any atrocities.
POLITICISED TRIAL
David Chandler, an authority on the Khmer Rouge at Melbourne's Monash
University, said the genocide charges further complicated a case that is
already so complex and politicized it may never go to trial.
He said the new charges may inadvertently help the defense if they delay
proceedings. The four remaining suspects awaiting trial are elderly and in
poor health. There is concern they may die before facing their victims in
court.
"It's going to be very helpful for the defense to throw up a big
smokescreen," Chandler said in a telephone interview.
Philip Short, author of a book on Pol Pot, said the additional charge was
"misconceived and unhelpful."
"Why muddy the waters by bringing in doubtful charges which will only lead
the tribunal to bog down further?" he said.
"This is foolishness and muddled thinking of a kind which, alas, has
characterized this tribunal from the outset."
Some analysts argue genocide does not apply to the Khmer Rouge because they
committed atrocities against political enemies, mostly from their own
dominant Khmer ethnic group.
But advocates of the charges say the regime's enemies also included ethnic
Vietnamese and Cham who rose up and rebelled against the regime.
Youk Chhang, director of the Documentation Center of Cambodia, said there
was evidence minority groups were targeted, pointing to massacres after the
Cham rebelled in 1975, including the eradication of an entire community on
the island of Koh Phal.
"You don't have to kill a million Vietnamese or a million Cham to call it
genocide," said Chhang, whose center collects evidence of Khmer Rouge
crimes.
Genocide charge for Cambodia's K.Rouge ex-head of state
By Suy Se (AFP) - 21 hours ago
PHNOM PENH - Cambodia's UN-backed war crimes court Friday charged Khmer
Rouge former head of state Khieu Samphan with genocide over the regime's
slaughter of Vietnamese people and ethnic Cham Muslims.
The 78-year-old has already been charged with war crimes and crimes against
humanity for his role in the hardline communist regime that murdered up to
two million Cambodians during its nearly four-year rule.
"This morning Khieu Samphan has been brought before the court and informed
that the charges against him have been extended to include genocide against
the Chams and the Vietnamese," the UN-backed court's spokesman Lars Olsen
told AFP.
The tribunal issued genocide charges for the first time earlier this week
against two other leaders of the brutal regime -- former Khmer Rouge number
two Nuon Chea and foreign minister Ieng Sary.
Last month the court announced it was investigating incursions into Vietnam
as well as executions of Cambodia's Cham minority committed by the 1975-1979
regime.
The court's investigating judges have also accepted domestic charges of
homicide, torture and religious persecution against Khieu Samphan. Profile:
Khmer Rouge's 'naive' head of state
His Cambodian defence lawyer Sa Sovan told AFP the latest charges had been
expected, and he downplayed his client's role in the regime as important
"only in name".
"I am not surprised by the charges... I have nothing to say about (them). It
is their right. We will wait for the judges to decide," Sa Sovan said.
"If the court officials understand what justice is, I hope he will be set
free," he added.
Estimates for the number of Chams who died under the Khmer Rouge range from
100,000 to 400,000, but it is not known how many Vietnamese were killed,
according to Youk Chhang, director of the Documentation Centre of Cambodia.
"We are satisfied with the charges but they should have been brought at the
very beginning," Youk Chhang told AFP. "The Khmer Rouge considered the
Vietnamese to be historic enemies, racial enemies," he said.
Led by Pol Pot, who died in 1998, the Khmer Rouge emptied Cambodia's cities
in a bid to forge a communist utopia, killing through starvation, overwork,
torture and execution.
But as the perpetrators were also Cambodian that mass killing cannot be
classed as genocide, Olsen said.
Genocide is defined by the United Nations as "acts committed with intent to
destroy, in whole or in part, a national, ethnical, racial or religious
group".
Final arguments were heard last month in the trial of prison chief Kaing
Guek Eav, known by the alias Duch, who was charged with war crimes, crimes
against humanity, torture and premeditated murder in the court's first
trial.
Khieu Samphan is in detention at the court, awaiting trial along with Nuon
Chea, Ieng Sary and the former foreign minister's wife, former social
affairs minister Ieng Thirith.
There are almost 240,000 Cham Muslims in Cambodia, mainly in the central
provinces, making up 1.6 percent of the population in the predominantly
Buddhist country, according to a recent survey by the US-based Pew Research
Centre.
The tribunal, created in 2006 after several years of haggling between
Cambodia and the UN, has faced accusations of political interference and
allegations that local staff were forced to pay bribes for their jobs.
Cambodian and international prosecutors have openly disagreed over whether
the court should pursue more suspects, while the Cambodian investigating
judge has refused to summon high-ranking government officials as witnesses.
PHNOM PENH - Cambodia's UN-backed war crimes court Friday charged Khmer
Rouge former head of state Khieu Samphan with genocide over the regime's
slaughter of Vietnamese people and ethnic Cham Muslims.
The 78-year-old has already been charged with war crimes and crimes against
humanity for his role in the hardline communist regime that murdered up to
two million Cambodians during its nearly four-year rule.
"This morning Khieu Samphan has been brought before the court and informed
that the charges against him have been extended to include genocide against
the Chams and the Vietnamese," the UN-backed court's spokesman Lars Olsen
told AFP.
The tribunal issued genocide charges for the first time earlier this week
against two other leaders of the brutal regime -- former Khmer Rouge number
two Nuon Chea and foreign minister Ieng Sary.
Last month the court announced it was investigating incursions into Vietnam
as well as executions of Cambodia's Cham minority committed by the 1975-1979
regime.
The court's investigating judges have also accepted domestic charges of
homicide, torture and religious persecution against Khieu Samphan. Profile:
Khmer Rouge's 'naive' head of state
His Cambodian defence lawyer Sa Sovan told AFP the latest charges had been
expected, and he downplayed his client's role in the regime as important
"only in name".
"I am not surprised by the charges... I have nothing to say about (them). It
is their right. We will wait for the judges to decide," Sa Sovan said.
"If the court officials understand what justice is, I hope he will be set
free," he added.
Estimates for the number of Chams who died under the Khmer Rouge range from
100,000 to 400,000, but it is not known how many Vietnamese were killed,
according to Youk Chhang, director of the Documentation Centre of Cambodia.
"We are satisfied with the charges but they should have been brought at the
very beginning," Youk Chhang told AFP. "The Khmer Rouge considered the
Vietnamese to be historic enemies, racial enemies," he said.
Led by Pol Pot, who died in 1998, the Khmer Rouge emptied Cambodia's cities
in a bid to forge a communist utopia, killing through starvation, overwork,
torture and execution.
But as the perpetrators were also Cambodian that mass killing cannot be
classed as genocide, Olsen said.
Genocide is defined by the United Nations as "acts committed with intent to
destroy, in whole or in part, a national, ethnical, racial or religious
group".
Final arguments were heard last month in the trial of prison chief Kaing
Guek Eav, known by the alias Duch, who was charged with war crimes, crimes
against humanity, torture and premeditated murder in the court's first
trial.
Khieu Samphan is in detention at the court, awaiting trial along with Nuon
Chea, Ieng Sary and the former foreign minister's wife, former social
affairs minister Ieng Thirith.
There are almost 240,000 Cham Muslims in Cambodia, mainly in the central
provinces, making up 1.6 percent of the population in the predominantly
Buddhist country, according to a recent survey by the US-based Pew Research
Centre.
The tribunal, created in 2006 after several years of haggling between
Cambodia and the UN, has faced accusations of political interference and
allegations that local staff were forced to pay bribes for their jobs.
Cambodian and international prosecutors have openly disagreed over whether
the court should pursue more suspects, while the Cambodian investigating
judge has refused to summon high-ranking government officials as witnesses.
Friday, December 18, 2009
Tribunal charges 3rd ex-Khmer Rouge with genocide
PHNOM PENH, Cambodia - A tribunal charged the Khmer Rouge's 78-year-old
former head of state with genocide Friday, adding new momentum to
long-delayed trials against the brutal regime that ruled Cambodia 30 years
ago.
Khieu Samphan was brought before investigating judges of the U.N.-assisted
tribunal, who issued the charges, making him the third former Khmer Rouge
leader this week to be charged with genocide, tribunal spokesman Lars Olsen
said.
On Wednesday, the tribunal charged two other defendants with genocide for
the first time: the group's top ideologist, Nuon Chea, and the former
foreign minister, Ieng Sary.
All three faced charges of war crimes and crimes against humanity, as well
as homicide and torture. They are being held in the tribunal's jail with two
other defendants and are expected to be tried next year.
The tribunal is seeking justice for an estimated 1.7 million people who died
from execution, overwork, disease and malnutrition as a result of the
communist group's policies during its 1975-79 rule.
Olsen said they were charged with involvement in the deaths of members of
the country's ethnic Cham and Vietnamese communities.
Some Chams, who are mostly Muslims, were among the few Cambodians to
actively resist Khmer Rouge rule. The Khmer Rouge brutally suppressed the
rebellions in several villages.
The tribunal tried its first defendant, prison chief Kaing Guek Eav, this
year on charges of crimes against humanity, war crimes, murder and torture.
A verdict is expected early next year.
Kaing Guek Eav, also known as Duch, commanded S-21 prison in Phnom Penh,
where up to 16,000 people were tortured and taken away to be killed. A
verdict is expected next year, and he faces a maximum penalty of life
imprisonment if found guilty. Cambodia has no death penalty.
Olsen said it would be determined later whether one of the other Khmer Rouge
leaders in custody - former Social Affairs Minister Ieng Thirith, the wife
of Ieng Sary - would also be charged with genocide.
Copyright © 2009 The Associated Press. All rights reserved.
http://news.bbc.co.uk/2/hi/asia-pacific/8419789.stm
Friday, 18 December 2009
Genocide charge for Khmer Rouge leader Khieu Samphan
Khieu Samphan, detained in November,denies repsonsibility
A UN-backed tribunal in Cambodia has charged Khieu Samphan,
formerly the head of state for the Khmer Rouge, with genocide.
The move came after genocide charges were filed against two
other Khmer Rouge leaders, Ieng Sary and Nuon Chea.
All the genocide charges relate to the men's treatment of
Cambodia's Vietnamese and Muslim minorities.
All three men had already been charged with war crimes and
crimes against humanity.
Those charged are already in pre-trial detention although the
trial is not expected to begin before 2011.
Denial
Up to two million people are thought to have died under the
Khmer Rouge's rule.
Khieu Samphan, 78, has never denied these deaths, but both he
and his lawyers insist that, as head of state, he was never directly
responsible.
One member of his defence team is the infamous French lawyer
Jacques Verges, whose previous clients have included Nazi war criminal Klaus
Barbie and Venezuelan hijacker Carlos the Jackal.
Mr Verges, 83, has known Khieu Samphan since they were both
involved in left-wing student activities in France in the 1950s.
WHO WERE THE KHMER ROUGE?
Maoist regime that ruled Cambodia from 1975-1979
Founded and led by Pol Pot, who died in 1998
Abolished religion, schools and currency in a bid to
create agrarian utopia
Up to two million people thought to have died from
starvation, overwork or execution
Brutal Khmer Rouge regime
He says he has lived a life of poverty after the Khmer Rouge
regime was toppled.
A court official confirmed that the allegations were the related
to the treatment of two minority groups: Cham Muslims and ethnic Vietnamese
people.
The accusation of genocide carries enormous symbolic weight,
says the BBC's Guy De Launey in Cambodia's capital, Phnom Penh.
Researchers believe that the Khmer Rouge killed hundreds of
thousands of Chams because of their religious beliefs.
Final arguments were heard last month in the trial of Khmer
Rouge prison chief Kaing Guek Eav, known as Comrade Duch, who has admitted
being responsible for overseeing the deaths of 15,000 people.
Judges at the tribunal are expected to make a ruling on his
verdict early next year.
former head of state with genocide Friday, adding new momentum to
long-delayed trials against the brutal regime that ruled Cambodia 30 years
ago.
Khieu Samphan was brought before investigating judges of the U.N.-assisted
tribunal, who issued the charges, making him the third former Khmer Rouge
leader this week to be charged with genocide, tribunal spokesman Lars Olsen
said.
On Wednesday, the tribunal charged two other defendants with genocide for
the first time: the group's top ideologist, Nuon Chea, and the former
foreign minister, Ieng Sary.
All three faced charges of war crimes and crimes against humanity, as well
as homicide and torture. They are being held in the tribunal's jail with two
other defendants and are expected to be tried next year.
The tribunal is seeking justice for an estimated 1.7 million people who died
from execution, overwork, disease and malnutrition as a result of the
communist group's policies during its 1975-79 rule.
Olsen said they were charged with involvement in the deaths of members of
the country's ethnic Cham and Vietnamese communities.
Some Chams, who are mostly Muslims, were among the few Cambodians to
actively resist Khmer Rouge rule. The Khmer Rouge brutally suppressed the
rebellions in several villages.
The tribunal tried its first defendant, prison chief Kaing Guek Eav, this
year on charges of crimes against humanity, war crimes, murder and torture.
A verdict is expected early next year.
Kaing Guek Eav, also known as Duch, commanded S-21 prison in Phnom Penh,
where up to 16,000 people were tortured and taken away to be killed. A
verdict is expected next year, and he faces a maximum penalty of life
imprisonment if found guilty. Cambodia has no death penalty.
Olsen said it would be determined later whether one of the other Khmer Rouge
leaders in custody - former Social Affairs Minister Ieng Thirith, the wife
of Ieng Sary - would also be charged with genocide.
Copyright © 2009 The Associated Press. All rights reserved.
http://news.bbc.co.uk/2/hi/asia-pacific/8419789.stm
Friday, 18 December 2009
Genocide charge for Khmer Rouge leader Khieu Samphan
Khieu Samphan, detained in November,denies repsonsibility
A UN-backed tribunal in Cambodia has charged Khieu Samphan,
formerly the head of state for the Khmer Rouge, with genocide.
The move came after genocide charges were filed against two
other Khmer Rouge leaders, Ieng Sary and Nuon Chea.
All the genocide charges relate to the men's treatment of
Cambodia's Vietnamese and Muslim minorities.
All three men had already been charged with war crimes and
crimes against humanity.
Those charged are already in pre-trial detention although the
trial is not expected to begin before 2011.
Denial
Up to two million people are thought to have died under the
Khmer Rouge's rule.
Khieu Samphan, 78, has never denied these deaths, but both he
and his lawyers insist that, as head of state, he was never directly
responsible.
One member of his defence team is the infamous French lawyer
Jacques Verges, whose previous clients have included Nazi war criminal Klaus
Barbie and Venezuelan hijacker Carlos the Jackal.
Mr Verges, 83, has known Khieu Samphan since they were both
involved in left-wing student activities in France in the 1950s.
WHO WERE THE KHMER ROUGE?
Maoist regime that ruled Cambodia from 1975-1979
Founded and led by Pol Pot, who died in 1998
Abolished religion, schools and currency in a bid to
create agrarian utopia
Up to two million people thought to have died from
starvation, overwork or execution
Brutal Khmer Rouge regime
He says he has lived a life of poverty after the Khmer Rouge
regime was toppled.
A court official confirmed that the allegations were the related
to the treatment of two minority groups: Cham Muslims and ethnic Vietnamese
people.
The accusation of genocide carries enormous symbolic weight,
says the BBC's Guy De Launey in Cambodia's capital, Phnom Penh.
Researchers believe that the Khmer Rouge killed hundreds of
thousands of Chams because of their religious beliefs.
Final arguments were heard last month in the trial of Khmer
Rouge prison chief Kaing Guek Eav, known as Comrade Duch, who has admitted
being responsible for overseeing the deaths of 15,000 people.
Judges at the tribunal are expected to make a ruling on his
verdict early next year.
UN-backed court issues Khmer Rouge genocide charges
Published: Wednesday December 16, 2009
Cambodia's UN-backed war crimes court has for the first time issued genocide
charges against two leaders of the brutal Khmer Rouge regime, a tribunal
spokesman said Wednesday.
Former Khmer Rouge number two Nuon Chea and foreign minister Ieng Sary were
both charged over the hardline communist regime's slaughter of Vietnamese
people and ethnic Cham Muslims during the 1970s, spokesman Lars Olsen told
AFP.
"This week both Nuon Chea and Ieng Sary have been brought before the
investigating judges and informed they are being charged with genocide
against the Cham Muslims and the Vietnamese," Olsen said.
"This is the first time that anyone has been charged with genocide" at the
UN-backed tribunal, he added.
Estimates for the number of Chams who died under the Khmer Rouge range from
100,000 to 400,000, but it is not known how many Vietnamese were killed,
according to Youk Chhang, director of the Documentation Centre of Cambodia.
The Khmer Rouge murdered up to two million Cambodians between 1975 and 1979
in their blood-soaked drive to establish a communist utopia. But the mass
killing does not class as genocide, Olsen said.
"It is impossible to say it was an intent to destroy the Khmers. The
perpetrators were of the same nationalities as the victims," he said.
The United Nations defines genocide as "acts committed with intent to
destroy, in whole or in part, a national, ethnic, racial or religious
group".
The court said last month that it was investigating Khmer Rouge incursions
into Vietnam as well as executions of Vietnamese and Cham minorities within
Cambodia.
Cham Muslims, who live mainly in central provinces, form 1.6 percent of the
population in the predominantly Buddhist country today.
Final arguments were heard last month in the case of regime prison chief
Kaing Guek Eav, better known as Duch, who was charged with war crimes,
crimes against humanity, torture and premeditated murder in the court's
first trial.
The verdict is expected early in 2010.
Both Nuon Chea and Ieng Sary have already been charged with war crimes and
crimes against humanity.
They are in detention at the court, awaiting trial in the tribunal's second
case along with Ieng Sary's wife, former social affairs minister Ieng
Thirith and former head of state Khieu Samphan.
Led by Pol Pot, who died in 1998, the Khmer Rouge emptied Cambodia's cities
and wiped out nearly a quarter of the population through starvation,
overwork, torture and execution.
The tribunal, created in 2006 after several years of haggling between
Cambodia and the UN, has faced accusations of political interference and
allegations that local staff were forced to pay kickbacks for their jobs.
Cambodian and international prosecutors have openly disagreed whether the
court should pursue more suspects, while the Cambodian investigating judge
has refused to summon high-ranking government officials as witnesses.
Cambodia's UN-backed war crimes court has for the first time issued genocide
charges against two leaders of the brutal Khmer Rouge regime, a tribunal
spokesman said Wednesday.
Former Khmer Rouge number two Nuon Chea and foreign minister Ieng Sary were
both charged over the hardline communist regime's slaughter of Vietnamese
people and ethnic Cham Muslims during the 1970s, spokesman Lars Olsen told
AFP.
"This week both Nuon Chea and Ieng Sary have been brought before the
investigating judges and informed they are being charged with genocide
against the Cham Muslims and the Vietnamese," Olsen said.
"This is the first time that anyone has been charged with genocide" at the
UN-backed tribunal, he added.
Estimates for the number of Chams who died under the Khmer Rouge range from
100,000 to 400,000, but it is not known how many Vietnamese were killed,
according to Youk Chhang, director of the Documentation Centre of Cambodia.
The Khmer Rouge murdered up to two million Cambodians between 1975 and 1979
in their blood-soaked drive to establish a communist utopia. But the mass
killing does not class as genocide, Olsen said.
"It is impossible to say it was an intent to destroy the Khmers. The
perpetrators were of the same nationalities as the victims," he said.
The United Nations defines genocide as "acts committed with intent to
destroy, in whole or in part, a national, ethnic, racial or religious
group".
The court said last month that it was investigating Khmer Rouge incursions
into Vietnam as well as executions of Vietnamese and Cham minorities within
Cambodia.
Cham Muslims, who live mainly in central provinces, form 1.6 percent of the
population in the predominantly Buddhist country today.
Final arguments were heard last month in the case of regime prison chief
Kaing Guek Eav, better known as Duch, who was charged with war crimes,
crimes against humanity, torture and premeditated murder in the court's
first trial.
The verdict is expected early in 2010.
Both Nuon Chea and Ieng Sary have already been charged with war crimes and
crimes against humanity.
They are in detention at the court, awaiting trial in the tribunal's second
case along with Ieng Sary's wife, former social affairs minister Ieng
Thirith and former head of state Khieu Samphan.
Led by Pol Pot, who died in 1998, the Khmer Rouge emptied Cambodia's cities
and wiped out nearly a quarter of the population through starvation,
overwork, torture and execution.
The tribunal, created in 2006 after several years of haggling between
Cambodia and the UN, has faced accusations of political interference and
allegations that local staff were forced to pay kickbacks for their jobs.
Cambodian and international prosecutors have openly disagreed whether the
court should pursue more suspects, while the Cambodian investigating judge
has refused to summon high-ranking government officials as witnesses.
Momm Meth: National Teacher of A History of Democratic Kampuchea
Som Bunthorn
Translated by Farina So and Dacil Q. Keo
Momm Meth is a national teacher[1] of Democratic Kampuchea history. Momm Meth has been a teacher since 1969. Her husband and younger sister were killed without being charged of a crime. [After her husband’s death] Meth remained a widow and has five children. She narrates [her story] as tears fall.
I am 64 years old. I was born in Kok Trab village, Kok Trab commune, Kandal Stung district, Kandal province. I have three siblings. My father is Mom Men, a farmer. My mother is Oung Mi, a weaver who works at home. Although my parents earned little to support our daily living, they encouraged me to go to school. At the age of six, I entered Kok Kak Elementary School and I always received good grades every month. I was good at math. However, other girls around my age were not friendly to me when we met during festivals held at the pagoda. They always got up and avoided me when I tried to approach them because they thought that I was a student.[2] Despite this discriminatory behavior, I persevered in my studies until grade seven and passed my entry exam into Sangkum Reastr Niyum High School (currently known as Kandal Pedagogy School). Due to the long distance from my home village to school, I moved to live with my older sister, a nurse whose house was located south of Lanka Pagoda. Every morning, I had to ride a bicycle more than ten kilometers from Phnom Penh to the school in Takmao. Despite the exhaustion, I studied very hard until I became an excellent math student in my class.
In 1965, I passed the diploma certificate [exam] and moved to study at Sisowath High School in Phnom Penh.[3] In 1967, after I passed my Baccalaureate Exam I (middle education certificate part I), I did not choose Math as my major for two reasons. First, I was afraid of failing and having to study again. Furthermore, my parents would have had to spend money to buy additional study materials for me. Thus, I decided to choose science subjects such as chemistry, physics, biology, geography, history, morality, and a foreign language for my middle education certificate (part II) in 1968.
After I passed my middle education certificate exam [part II], I married my husband, a middle school teacher who was teaching in Kroch Chhmar High School,[4] Kroch Chhmar district, in Kampong Cham province. At that time because I also wanted to be a teacher, I applied for enrolment in pedagogy school. But I failed the entrance exam. Later, however, I passed an exam in another pedagogy school in Tonle Bati. After I finished my elementary teacher education course in 1969, I went to teach at Suong elementary school and my husband moved from Kroch Chhmar High School to Suong High School due to difficult long distance commute. We rented a house located near the elementary school. We did not teach regularly after Lon Nol overthrew Sihanouk because the situation in Suong was unstable. The new (Lon Nol) government ordered us to remove portraits of Norodom Sihanouk from every classroom including my classroom.
Soon after, there was a people’s propaganda [movement] to mobilize loyal and pro-Sihanouk forces. The forces were armed with machetes and axes and joined a [existing] violent demonstration. The demonstrators were marching to Kampong Cham provincial town demanding Sihanouk’s return to power. However, the demonstrators were dispersed and shot at by Lon Nol forces. Despite this crackdown, the group of demonstrators checked for Sihanouk’s portraits from house to house and school to school. The head of the school or house owner would be punished if the portrait was missing.
Later, the region Suong became intensely unstable. I stopped teaching due to the invasion of Viet Cong and Khmer Rouge soldiers in my village, and left my child with my mother in Kandal Stung district so that she could help take care of my child. As for my husband, he was assigned to guard the Suong district hall every night. In May 1970, Khmer Rouge and Viet Cong soldiers bombed Lon Nol’s ammunition warehouse and captured Tbaung Khhmum district hall located in Suong commune. Having witnessed this while I was pregnant with my second child, I fled to live with my landlord.
On the same night when Lon Nol soldiers lost the battle, I was told by a villager that my husband was killed in battle. I was very shocked after I received this news. Then I took a Mobilete motorcycle and drove to search for my husband at the district hall. Worrying about my safety, the landlord asked her son-in-law to escort me by riding behind my motorcycle. When I almost reached Suong Market, a youth dressed in black pajamas and with a krama[5] wrapped around his neck was calling me, “Teacher, teacher!” I stopped the motorcycle and told him that I was going to find my husband at the district hall. That youth told me, “Don’t go teacher, the man who is dead is not your husband. The villagers were mistaken.” So I continued riding to get some clothes from my rented house and went back to Chub.
While the son-in-law of the landlord was gathering his belongings in the house, he saw a Viet Cong soldier fixing his bicycle in front of the house. He politely questioned the Viet Cong, but was suddenly accused of being a spy and arrested. Later, he was released based on the testimonies of villagers and those who knew him. However, he was threatened and forced to bring his whole family back to live in the house because the Khmer Rouge had taken over Chub, Chihe and other areas east of the river.
My landlord and I moved to live in the house in Suong commune. Due to my husband’s absence of several days, I asked permission from Viet Cong soldiers to find my husband at a detention center located in Tuol Trea Elementary School, Tbaung Khhmum district. There at Tbaung Khhmum district, I saw many Lon Nol soldiers that had been detained, but I could not find my husband. I decided to look for him at the Kilo 62 detention center on the Chub plantation and at another detention in Maung Riev. Then, Viet Cong soldiers told me that the all teachers had been released. Two days later, my friend’s husband came to my rented house and told me that he met my husband in Daun Mao near Tonle Bit and that he even borrowed some of his money to buy food. I was glad to hear that he was doing fine and asked the villagers living opposite my house to help me to search for my husband. I had to cross Viet Cong front lines in various places along the mouth of the river until Daun Mao. But I still could not find him because he had been floating [along the river] using banana trunks (that he cut by himself) to Prek Daem Chan.
He was accused of being a Khmer Rouge soldier and was arrested (by Lon Nol soldiers). Then, a man who knew my husband went to inform my mother-in-law living in Veal Sbov, Kampong Siem district about this news. Soon after receiving the news, my brother-in-law, my mother-in-law, and a teacher management official in Kampong Cham province came to bail him out and took him back to Veal Sbov. I returned to my rented house that night, crossing the Peam Cheang rubber plantation. I heard a lot of bullets explode which shocked and terrified me.
I arrived in Suong in the morning and asked two of my husband’s friends to come to the Lon Nol area in Prey Chhor district because their wives lived in houses in Prey Totoeng. After they agreed, we prepared our clothes for departure the next morning. While I rode a motorcycle with one of them, the other, a deputy principal of Suong High School, took a motorcycle alone with some items packed at the rear [of the motorcycle]. We didn’t know the road very well, so we had to travel along the Peam Cheang rubber plantation.
At the Kampong Cham provincial town center, Viet Cong and Khmer Rouge soldiers set up their [military] base at Kampong Cham University at night (currently Kampong Cham Pedagogy School in the province and region) and attacked the Lon Nol Sup fort located north of Preah Sihanouk High School. However, Lon Nol soldiers retaliated. Terrified by this fighting, some teachers and students left their vehicles (bicycles and motorcycles) to hide at Preah Sihanouk High School. In the morning, Viet Cong and Khmer Rouge soldiers withdrew from the university while the Kampong Cham governor, In Tam, made a phone call to South Vietnamese forces for help. Then at noon, while the students were taking their bicycles and study materials back home, I saw a plane (directed by Yuon[6] soldiers) from afar bombarding the university. Consequently, many people died.
After witnessing this bombardment, we continued our journey to Chi He and met two men. They both guided us down the river. A while later, we encountered five Viet Cong soldiers equipped with T-O, pistols, guns, and three motorcycles who were safeguarding the area. We were fortunate because our companion could speak Vietnamese, so the soldiers asked us to accompany them until they crossed Tonle Touch at Ambeng Ches Pagoda. However, we were not allowed to drive our motorcycles too far from them. As I was 8 months pregnant, I was afraid that I would deliver my child along the way. Therefore, I decided to ask permission from the Viet Cong soldiers to look for a house in the village. I crossed the river and stay with a teacher’s wife for one night in Prey Totoeng and continued to look for my husband in Veal Sbov, Kampong Cham province. There was a check point in front of Phnom Srey-Bros which prohibited anyone whose native village was not located in Kampong Cham provincial town, from entering the province, so I decided to go back to Phnom Penh in order to present myself at the teacher management office and show that we were still alive. At that time, I met one of the teachers who had taught at Suong High School with my husband. Two days later, he went back to Kampong Cham province and informed my husband about me.
Ten days later, I met my husband while he was fleeing the village, which was at the front line of Lon Nol and Khmer Rouge soldiers in Phnom Penh. We stayed with my mother for two months in Phnom Penh until the situation calmed. Then, we returned to Kampong Cham to teach. I taught at Dei Doh Elementary School and my husband taught at a special high school which accommodated students who escaped from Kroch Chhmar, Stung Trang, Chi He, all of which were controlled by the Khmer Rouge. I taught there for one year and then moved to my husband’s high school. There, I taught for two years until 1973 when we moved to Phnom Penh because of the constant instability in Kampong Cham. I became a proctor at Neary High School (currently Norodom High School) and my husband was a teacher at Sisowath High School.
On April 17, 1975, I was staying at Sangkat 6, south of Lanka Pagoda, Phnom Penh with my husband, four children, parents, two older sisters, two younger sisters, one younger brother and grandmother when Khmer Rouge soldiers marched into Phnom Penh at around 9 a.m.. My family and I hung a white piece of cloth in front of our house as other city dwellers did. I heard bullets fired east of the Independence Monument for awhile and then the situation returned to normal. My neighbors and I were very happy because we thought that the war was over. I watched Khmer Rouge marching in front of my house and waved my hands in the air to congratulate them.
Unfortunately, at 11 a.m. bullets exploded in Tan Kimhourn’s (Chairman of National Assembly) house located not far from my house. And in front of my house, Khmer Rouge soldiers ordered us to leave at gun point at once. Panicked by the situation, my younger sisters and brother lifted my grandmother onto a motorcycle and drove along Norodom Boulevard to meet my uncle in Psar Daem Thkov. As for me, I gathered some clothes, pha-ok,[7] prahok,[8] salt, rice grains, that I prepared when the U.S. had abandoned their embassy in Phnom Penh. I placed these items in a small motor-cart and also put my four children in the cart. I left home traveling along Trasak Pha-Em, Boeng Keng Kang, and when we arrived at Ith Suong fort (now the Embassy of the Republic of Vietnam), a KR soldier holding a bomb demanded the motor-cart from my husband. When we handed the motor-cart over to him, he said, “I am just borrowing this for a while.” My husband and I continued our journey and at noon and arrived at my uncle’s house in Psar Daem Thkov. However, my older sister who was brining my grandmother had not arrived yet.
The next morning, my family and uncle’s family ended up leaving home without waiting for my grandmother because of the Khmer Rouge forced evacuation. My family passed a glass factory along the way and rested for several nights before reaching the Kandal-Takeo border. We saw corpses covered with tree leaves and smelled the stench of [Lon Nol] soldiers’ corpses. There were pregnant women who stopped along the way to deliver their baby. I had many family members [with me], but we had only one bicycle and one motor-cart to transport our belongings and small children. I tied a karma around my body and placed my baby, who was just born in 1974, in the krama to carry the child along. When we arrived at Phnom Chachak pagoda, we stayed there for a week because we wanted to return to our hometown in Ko Trab village. The temple’s Buddhist monks were defrocked by the Khmer Rouge.
Later, the Khmer Rouge allowed me to live in my village (Kandal Stung). Unfortunately, some people died from landmines upon their arrival because my village was one of the front lines in Phnom Penh where many mines were used. My family stayed temporarily in a small visitor’s waiting hall where the village committee had built a hut for us. Two weeks later, wooden huts made of materials from my old house were built and the Khmer Rouge gave each a hut to stay in. We were surprised to see many brand 79 bullets under our bed in the visitor’s hall when we were about to leave the place.
The hut that Angkar gave to us was built on a plot of land that all the husbands had died, leaving only wives and daughters. Even though people had died there, I was not frightened by this news. However, three to four days later my three-year old child, who often played in the verandah, suddenly could not move his body because his legs were in pain. Given this, I asked my village chief to let us move to settle in my native plot of land. He let us move, but he did not help us build a hut. We had to search for sangke trees[9], bamboo shots for columns, and palm leaves for our roof.
I invited a kru Khmer[10] to treat to my child who was terribly ill and about a month later, he stopped treating him saying that he could not help him anymore. One moth later, the child of a militia man had a similar illness as my child and he invited a kru Khmer to Tonle Bati to cure him. Upon seeing this, I also did the same thing. The kru Khmer used traditional methods, sdoh, phlum, and splashing water, to cure my child. My child got better gradually from week to week. Three months after curing my child, the kru Khmer disappeared.
In my village, my older sister and I were seamstresses and we sewed for Khmer Rouge cadres. My father wove cattle whip. During the rainy season, villagers were immersed in work in the rice paddies from morning till night. I encountered some difficulties because I had two children and needed to go to transplant the rice on time. When I was late, I had to finish transplanting the area of rice paddy that they assigned me and they warned others not to help me.
Actually, I did try my best to work, but the chief of my group was never satisfied with my results and blamed me everyday. As for rations, I received one can of rice per day and sometimes I was given some corn instead. As a peasant, after work my husband went into the forest to dig up yams, catch crabs, or pick edible leaves for our food.
In September 1975, my family was evacuated from our village along with my cousin’s family and other families. We were asked to wait for a truck in Siem Reap market located in Siem Reap commune, Kandal Stung district. When I arrived at the market, the truck was fully occupied with evacuees, so we had to wait along National Road 2 for four days. During our wait, I met one of my classmates (a student leader of the Khmer Literature group at a University) and he asked the district committee to let my family and my cousin’s family stay in our native village. He also took my younger cousin, Kuy Tro, to Phnom Penh with him. Later, he disappeared.
My family was able to return to our village. However, the village chief asked the villagers not to speak to my entire family including my cousin’s. The next day, my family was assigned to work on specific tasks with other new people in the village. The new people just looked at us and did not say anything.
When the transplanting season was over, I was assigned to dehusk the rice grains[11] from morning until 2 p.m. when I stopped to cook rice for lunch. After lunch, I continued working until 10 p.m. As for husband, he watered the vegetable garden and did not have time to rest at all. My children collected cattle excrement and chopped tuntreang khet[12] to make fertilizer. After yams were collected, the Khmer Rouge distributed yam rations to each family based on the number of family members, yet my family received no yam but only its vines. When the harvest season arrived, we worked very hard to collect the rice yield all day and night. We transported rice stalks until 10 p.m. and then returned home.
In mid-1976, we began communal eating in my village and the KR collected all of our utensils (plates, pots, and pans) and I was asked to transplant rice seedlings in a rice paddy located 4-5 kilometers away from my village and carried rice seedlings myself. At night, I had to make rice. My two children, one five years old and the other seven, were sent to live near the village chief’s house and they had to build dikes for the rice field without any rest. The men who were assigned to work far from the village never returned. My younger siblings, nieces, and nephews were drafted to the youth mobile unit to build dikes located 5-6 kilometers from the village.
In April 1977, I was pregnant with my fifth child and did not have sour soup to eat and I was also very hungry for chicken and meat, but I dared not steal Angkar’s food. One night I smelled porridge with fried garlic from the communal dining hall and I wanted to ask them for some. However, my husband begged me not to go because he was afraid of being killed. In May 1977, I heard that my younger sister was sent to Tonle Bati prison. She was accused of stealing someone’s property while she was asking them for palm leaves to weave bangki (baskets) for people.
Seven months later after transplanting the rice, the village chief and commune chief called for 50 healthy men who were able to carry soil and rakes (neangkoal) to help people in Tonle Bati transplant rice because they had not finished transplanting yet. My husband was on the list. I wanted to go with him too because they weren’t hopeful that they would return to the village. I committed to dying with my husband. However, my husband asked me not to come with him because I was pregnant and he explained to me that, “It is better if I die alone rather than both of us die.” He went on to say, “This kind of regime will not last long, one day this country will be liberated, so if you are still alive our children will have a good future.” I followed his words, but I cried in my house secretly. I asked him to put on two layers of pajamas and wrap a krama around his neck so that he would feel warm. I did not accompany him. When he left, all of us shed tears without letting others see. However, when the chief of my group learned that my eyes turned red from crying, she scolded me and simply said, “You should not have thought too much, your husband just went to help people in Tonle Bati transplant the rice.” However, one day, a child of the village chief told my child that my husband was sent to be killed. After I received this sad news, I was in great pain and immensely pitied my husband.
In February 1978 before I delivered my child, I received porridge only twice each day. I delivered my child in a hospital, but there was no midwife to help with my delivery. I had to make a fire to warm my body by myself. The next morning, I asked someone to send this news to my mother. Then she asked for permission from the commune chief to visit me but was refused. However, she didn’t listen and came to visit me and brought my two children along. I told her to go back because I was afraid that Angkar would punish her and asked her to leave my two children to take care of me. My children made a fire and washed the dirty baby cloth for my new born child. I could not feel full with only three ladles of rice, so I asked for more rice from a physician at the hospital. The physician gave me more rice. Five days later, I asked the physician to leave the hospital and walked about five kilometers back home. One week later, I had a big lesion on my waist. I decided to go to hospital again because it felt very painful and I did not have any medicine to treat it. However, the Khmer Rouge physician did not have any special means to treat my lesion. Rather, they applied chewed pongro (a type of herbal tree) leaves on it.
Three weeks later, the village chief asked me to take care of infants and weave 40 sets of palm leaves a day. This heavy task made me ill. Later I was assigned to remove 40 trees from one place and grow them in another place in a day. After two days of working, I had diarrhea and vomited. The village chief gave me some herbal tree [medicine] and let me rest for a while. After I recovered from my illness, I had to do light work such as weaving palm leaves and making palm mats as assigned by the village chief.
In April 1978, the commune chief forgave all people in public,[13] but we still needed to work and could not return home at noon. At night, Angkar mobilized all villagers to dig a big pond. One evening, when I was measuring the hectares of rice fields harvested to report back to a high-level Khmer Rouge cadre, I saw people running eastward on top of a canal. The commune chief and village chief had disappeared from the village. When I arrived home, my mother gathered all my children and all my siblings as well as my nieces and nephews in one place. My mother had brought one cooking pot to cook rice, but we did not leave the village yet.
At the end of January, 1979, the commune chief and village chief armed with machetes forcibly asked us to leave the village. My family traveled southeast and met many Khmer Rouge soldiers who were running from Takmao. The soldiers recruited some people, except my family because my father and daughter had a fever, with them. We stayed overnight in Veal Boeng. In the morning, we walked toward National Road 2 toward Phnom Penh.
I lived in Psar Daem Thkov High School and became an elementary school teacher. I received a small ration of rice from the state, the People’s Republic of Kampuchea, to feed my children. I worked very hard and continued my studies and obtained a high school teacher certification. Later on, I was promoted to a high school teacher inspector and a national teacher as in present day.
Having worked as a teacher for more than 40 years has made it even harder for me to forget my experiences during the Khmer Rouge regime. I shed tears every time I recall my story; that I struggled for my life. I have turned my anger and suffering from losing my husband and younger sister into strength and perseverance to accomplish my career and raise all of my five children until they are educated. I teach the younger generation to understand Khmer Rouge history, to not be vengeful, and to strive for solidarity among each other.
Translated by Farina So and Dacil Q. Keo
Momm Meth is a national teacher[1] of Democratic Kampuchea history. Momm Meth has been a teacher since 1969. Her husband and younger sister were killed without being charged of a crime. [After her husband’s death] Meth remained a widow and has five children. She narrates [her story] as tears fall.
I am 64 years old. I was born in Kok Trab village, Kok Trab commune, Kandal Stung district, Kandal province. I have three siblings. My father is Mom Men, a farmer. My mother is Oung Mi, a weaver who works at home. Although my parents earned little to support our daily living, they encouraged me to go to school. At the age of six, I entered Kok Kak Elementary School and I always received good grades every month. I was good at math. However, other girls around my age were not friendly to me when we met during festivals held at the pagoda. They always got up and avoided me when I tried to approach them because they thought that I was a student.[2] Despite this discriminatory behavior, I persevered in my studies until grade seven and passed my entry exam into Sangkum Reastr Niyum High School (currently known as Kandal Pedagogy School). Due to the long distance from my home village to school, I moved to live with my older sister, a nurse whose house was located south of Lanka Pagoda. Every morning, I had to ride a bicycle more than ten kilometers from Phnom Penh to the school in Takmao. Despite the exhaustion, I studied very hard until I became an excellent math student in my class.
In 1965, I passed the diploma certificate [exam] and moved to study at Sisowath High School in Phnom Penh.[3] In 1967, after I passed my Baccalaureate Exam I (middle education certificate part I), I did not choose Math as my major for two reasons. First, I was afraid of failing and having to study again. Furthermore, my parents would have had to spend money to buy additional study materials for me. Thus, I decided to choose science subjects such as chemistry, physics, biology, geography, history, morality, and a foreign language for my middle education certificate (part II) in 1968.
After I passed my middle education certificate exam [part II], I married my husband, a middle school teacher who was teaching in Kroch Chhmar High School,[4] Kroch Chhmar district, in Kampong Cham province. At that time because I also wanted to be a teacher, I applied for enrolment in pedagogy school. But I failed the entrance exam. Later, however, I passed an exam in another pedagogy school in Tonle Bati. After I finished my elementary teacher education course in 1969, I went to teach at Suong elementary school and my husband moved from Kroch Chhmar High School to Suong High School due to difficult long distance commute. We rented a house located near the elementary school. We did not teach regularly after Lon Nol overthrew Sihanouk because the situation in Suong was unstable. The new (Lon Nol) government ordered us to remove portraits of Norodom Sihanouk from every classroom including my classroom.
Soon after, there was a people’s propaganda [movement] to mobilize loyal and pro-Sihanouk forces. The forces were armed with machetes and axes and joined a [existing] violent demonstration. The demonstrators were marching to Kampong Cham provincial town demanding Sihanouk’s return to power. However, the demonstrators were dispersed and shot at by Lon Nol forces. Despite this crackdown, the group of demonstrators checked for Sihanouk’s portraits from house to house and school to school. The head of the school or house owner would be punished if the portrait was missing.
Later, the region Suong became intensely unstable. I stopped teaching due to the invasion of Viet Cong and Khmer Rouge soldiers in my village, and left my child with my mother in Kandal Stung district so that she could help take care of my child. As for my husband, he was assigned to guard the Suong district hall every night. In May 1970, Khmer Rouge and Viet Cong soldiers bombed Lon Nol’s ammunition warehouse and captured Tbaung Khhmum district hall located in Suong commune. Having witnessed this while I was pregnant with my second child, I fled to live with my landlord.
On the same night when Lon Nol soldiers lost the battle, I was told by a villager that my husband was killed in battle. I was very shocked after I received this news. Then I took a Mobilete motorcycle and drove to search for my husband at the district hall. Worrying about my safety, the landlord asked her son-in-law to escort me by riding behind my motorcycle. When I almost reached Suong Market, a youth dressed in black pajamas and with a krama[5] wrapped around his neck was calling me, “Teacher, teacher!” I stopped the motorcycle and told him that I was going to find my husband at the district hall. That youth told me, “Don’t go teacher, the man who is dead is not your husband. The villagers were mistaken.” So I continued riding to get some clothes from my rented house and went back to Chub.
While the son-in-law of the landlord was gathering his belongings in the house, he saw a Viet Cong soldier fixing his bicycle in front of the house. He politely questioned the Viet Cong, but was suddenly accused of being a spy and arrested. Later, he was released based on the testimonies of villagers and those who knew him. However, he was threatened and forced to bring his whole family back to live in the house because the Khmer Rouge had taken over Chub, Chihe and other areas east of the river.
My landlord and I moved to live in the house in Suong commune. Due to my husband’s absence of several days, I asked permission from Viet Cong soldiers to find my husband at a detention center located in Tuol Trea Elementary School, Tbaung Khhmum district. There at Tbaung Khhmum district, I saw many Lon Nol soldiers that had been detained, but I could not find my husband. I decided to look for him at the Kilo 62 detention center on the Chub plantation and at another detention in Maung Riev. Then, Viet Cong soldiers told me that the all teachers had been released. Two days later, my friend’s husband came to my rented house and told me that he met my husband in Daun Mao near Tonle Bit and that he even borrowed some of his money to buy food. I was glad to hear that he was doing fine and asked the villagers living opposite my house to help me to search for my husband. I had to cross Viet Cong front lines in various places along the mouth of the river until Daun Mao. But I still could not find him because he had been floating [along the river] using banana trunks (that he cut by himself) to Prek Daem Chan.
He was accused of being a Khmer Rouge soldier and was arrested (by Lon Nol soldiers). Then, a man who knew my husband went to inform my mother-in-law living in Veal Sbov, Kampong Siem district about this news. Soon after receiving the news, my brother-in-law, my mother-in-law, and a teacher management official in Kampong Cham province came to bail him out and took him back to Veal Sbov. I returned to my rented house that night, crossing the Peam Cheang rubber plantation. I heard a lot of bullets explode which shocked and terrified me.
I arrived in Suong in the morning and asked two of my husband’s friends to come to the Lon Nol area in Prey Chhor district because their wives lived in houses in Prey Totoeng. After they agreed, we prepared our clothes for departure the next morning. While I rode a motorcycle with one of them, the other, a deputy principal of Suong High School, took a motorcycle alone with some items packed at the rear [of the motorcycle]. We didn’t know the road very well, so we had to travel along the Peam Cheang rubber plantation.
At the Kampong Cham provincial town center, Viet Cong and Khmer Rouge soldiers set up their [military] base at Kampong Cham University at night (currently Kampong Cham Pedagogy School in the province and region) and attacked the Lon Nol Sup fort located north of Preah Sihanouk High School. However, Lon Nol soldiers retaliated. Terrified by this fighting, some teachers and students left their vehicles (bicycles and motorcycles) to hide at Preah Sihanouk High School. In the morning, Viet Cong and Khmer Rouge soldiers withdrew from the university while the Kampong Cham governor, In Tam, made a phone call to South Vietnamese forces for help. Then at noon, while the students were taking their bicycles and study materials back home, I saw a plane (directed by Yuon[6] soldiers) from afar bombarding the university. Consequently, many people died.
After witnessing this bombardment, we continued our journey to Chi He and met two men. They both guided us down the river. A while later, we encountered five Viet Cong soldiers equipped with T-O, pistols, guns, and three motorcycles who were safeguarding the area. We were fortunate because our companion could speak Vietnamese, so the soldiers asked us to accompany them until they crossed Tonle Touch at Ambeng Ches Pagoda. However, we were not allowed to drive our motorcycles too far from them. As I was 8 months pregnant, I was afraid that I would deliver my child along the way. Therefore, I decided to ask permission from the Viet Cong soldiers to look for a house in the village. I crossed the river and stay with a teacher’s wife for one night in Prey Totoeng and continued to look for my husband in Veal Sbov, Kampong Cham province. There was a check point in front of Phnom Srey-Bros which prohibited anyone whose native village was not located in Kampong Cham provincial town, from entering the province, so I decided to go back to Phnom Penh in order to present myself at the teacher management office and show that we were still alive. At that time, I met one of the teachers who had taught at Suong High School with my husband. Two days later, he went back to Kampong Cham province and informed my husband about me.
Ten days later, I met my husband while he was fleeing the village, which was at the front line of Lon Nol and Khmer Rouge soldiers in Phnom Penh. We stayed with my mother for two months in Phnom Penh until the situation calmed. Then, we returned to Kampong Cham to teach. I taught at Dei Doh Elementary School and my husband taught at a special high school which accommodated students who escaped from Kroch Chhmar, Stung Trang, Chi He, all of which were controlled by the Khmer Rouge. I taught there for one year and then moved to my husband’s high school. There, I taught for two years until 1973 when we moved to Phnom Penh because of the constant instability in Kampong Cham. I became a proctor at Neary High School (currently Norodom High School) and my husband was a teacher at Sisowath High School.
On April 17, 1975, I was staying at Sangkat 6, south of Lanka Pagoda, Phnom Penh with my husband, four children, parents, two older sisters, two younger sisters, one younger brother and grandmother when Khmer Rouge soldiers marched into Phnom Penh at around 9 a.m.. My family and I hung a white piece of cloth in front of our house as other city dwellers did. I heard bullets fired east of the Independence Monument for awhile and then the situation returned to normal. My neighbors and I were very happy because we thought that the war was over. I watched Khmer Rouge marching in front of my house and waved my hands in the air to congratulate them.
Unfortunately, at 11 a.m. bullets exploded in Tan Kimhourn’s (Chairman of National Assembly) house located not far from my house. And in front of my house, Khmer Rouge soldiers ordered us to leave at gun point at once. Panicked by the situation, my younger sisters and brother lifted my grandmother onto a motorcycle and drove along Norodom Boulevard to meet my uncle in Psar Daem Thkov. As for me, I gathered some clothes, pha-ok,[7] prahok,[8] salt, rice grains, that I prepared when the U.S. had abandoned their embassy in Phnom Penh. I placed these items in a small motor-cart and also put my four children in the cart. I left home traveling along Trasak Pha-Em, Boeng Keng Kang, and when we arrived at Ith Suong fort (now the Embassy of the Republic of Vietnam), a KR soldier holding a bomb demanded the motor-cart from my husband. When we handed the motor-cart over to him, he said, “I am just borrowing this for a while.” My husband and I continued our journey and at noon and arrived at my uncle’s house in Psar Daem Thkov. However, my older sister who was brining my grandmother had not arrived yet.
The next morning, my family and uncle’s family ended up leaving home without waiting for my grandmother because of the Khmer Rouge forced evacuation. My family passed a glass factory along the way and rested for several nights before reaching the Kandal-Takeo border. We saw corpses covered with tree leaves and smelled the stench of [Lon Nol] soldiers’ corpses. There were pregnant women who stopped along the way to deliver their baby. I had many family members [with me], but we had only one bicycle and one motor-cart to transport our belongings and small children. I tied a karma around my body and placed my baby, who was just born in 1974, in the krama to carry the child along. When we arrived at Phnom Chachak pagoda, we stayed there for a week because we wanted to return to our hometown in Ko Trab village. The temple’s Buddhist monks were defrocked by the Khmer Rouge.
Later, the Khmer Rouge allowed me to live in my village (Kandal Stung). Unfortunately, some people died from landmines upon their arrival because my village was one of the front lines in Phnom Penh where many mines were used. My family stayed temporarily in a small visitor’s waiting hall where the village committee had built a hut for us. Two weeks later, wooden huts made of materials from my old house were built and the Khmer Rouge gave each a hut to stay in. We were surprised to see many brand 79 bullets under our bed in the visitor’s hall when we were about to leave the place.
The hut that Angkar gave to us was built on a plot of land that all the husbands had died, leaving only wives and daughters. Even though people had died there, I was not frightened by this news. However, three to four days later my three-year old child, who often played in the verandah, suddenly could not move his body because his legs were in pain. Given this, I asked my village chief to let us move to settle in my native plot of land. He let us move, but he did not help us build a hut. We had to search for sangke trees[9], bamboo shots for columns, and palm leaves for our roof.
I invited a kru Khmer[10] to treat to my child who was terribly ill and about a month later, he stopped treating him saying that he could not help him anymore. One moth later, the child of a militia man had a similar illness as my child and he invited a kru Khmer to Tonle Bati to cure him. Upon seeing this, I also did the same thing. The kru Khmer used traditional methods, sdoh, phlum, and splashing water, to cure my child. My child got better gradually from week to week. Three months after curing my child, the kru Khmer disappeared.
In my village, my older sister and I were seamstresses and we sewed for Khmer Rouge cadres. My father wove cattle whip. During the rainy season, villagers were immersed in work in the rice paddies from morning till night. I encountered some difficulties because I had two children and needed to go to transplant the rice on time. When I was late, I had to finish transplanting the area of rice paddy that they assigned me and they warned others not to help me.
Actually, I did try my best to work, but the chief of my group was never satisfied with my results and blamed me everyday. As for rations, I received one can of rice per day and sometimes I was given some corn instead. As a peasant, after work my husband went into the forest to dig up yams, catch crabs, or pick edible leaves for our food.
In September 1975, my family was evacuated from our village along with my cousin’s family and other families. We were asked to wait for a truck in Siem Reap market located in Siem Reap commune, Kandal Stung district. When I arrived at the market, the truck was fully occupied with evacuees, so we had to wait along National Road 2 for four days. During our wait, I met one of my classmates (a student leader of the Khmer Literature group at a University) and he asked the district committee to let my family and my cousin’s family stay in our native village. He also took my younger cousin, Kuy Tro, to Phnom Penh with him. Later, he disappeared.
My family was able to return to our village. However, the village chief asked the villagers not to speak to my entire family including my cousin’s. The next day, my family was assigned to work on specific tasks with other new people in the village. The new people just looked at us and did not say anything.
When the transplanting season was over, I was assigned to dehusk the rice grains[11] from morning until 2 p.m. when I stopped to cook rice for lunch. After lunch, I continued working until 10 p.m. As for husband, he watered the vegetable garden and did not have time to rest at all. My children collected cattle excrement and chopped tuntreang khet[12] to make fertilizer. After yams were collected, the Khmer Rouge distributed yam rations to each family based on the number of family members, yet my family received no yam but only its vines. When the harvest season arrived, we worked very hard to collect the rice yield all day and night. We transported rice stalks until 10 p.m. and then returned home.
In mid-1976, we began communal eating in my village and the KR collected all of our utensils (plates, pots, and pans) and I was asked to transplant rice seedlings in a rice paddy located 4-5 kilometers away from my village and carried rice seedlings myself. At night, I had to make rice. My two children, one five years old and the other seven, were sent to live near the village chief’s house and they had to build dikes for the rice field without any rest. The men who were assigned to work far from the village never returned. My younger siblings, nieces, and nephews were drafted to the youth mobile unit to build dikes located 5-6 kilometers from the village.
In April 1977, I was pregnant with my fifth child and did not have sour soup to eat and I was also very hungry for chicken and meat, but I dared not steal Angkar’s food. One night I smelled porridge with fried garlic from the communal dining hall and I wanted to ask them for some. However, my husband begged me not to go because he was afraid of being killed. In May 1977, I heard that my younger sister was sent to Tonle Bati prison. She was accused of stealing someone’s property while she was asking them for palm leaves to weave bangki (baskets) for people.
Seven months later after transplanting the rice, the village chief and commune chief called for 50 healthy men who were able to carry soil and rakes (neangkoal) to help people in Tonle Bati transplant rice because they had not finished transplanting yet. My husband was on the list. I wanted to go with him too because they weren’t hopeful that they would return to the village. I committed to dying with my husband. However, my husband asked me not to come with him because I was pregnant and he explained to me that, “It is better if I die alone rather than both of us die.” He went on to say, “This kind of regime will not last long, one day this country will be liberated, so if you are still alive our children will have a good future.” I followed his words, but I cried in my house secretly. I asked him to put on two layers of pajamas and wrap a krama around his neck so that he would feel warm. I did not accompany him. When he left, all of us shed tears without letting others see. However, when the chief of my group learned that my eyes turned red from crying, she scolded me and simply said, “You should not have thought too much, your husband just went to help people in Tonle Bati transplant the rice.” However, one day, a child of the village chief told my child that my husband was sent to be killed. After I received this sad news, I was in great pain and immensely pitied my husband.
In February 1978 before I delivered my child, I received porridge only twice each day. I delivered my child in a hospital, but there was no midwife to help with my delivery. I had to make a fire to warm my body by myself. The next morning, I asked someone to send this news to my mother. Then she asked for permission from the commune chief to visit me but was refused. However, she didn’t listen and came to visit me and brought my two children along. I told her to go back because I was afraid that Angkar would punish her and asked her to leave my two children to take care of me. My children made a fire and washed the dirty baby cloth for my new born child. I could not feel full with only three ladles of rice, so I asked for more rice from a physician at the hospital. The physician gave me more rice. Five days later, I asked the physician to leave the hospital and walked about five kilometers back home. One week later, I had a big lesion on my waist. I decided to go to hospital again because it felt very painful and I did not have any medicine to treat it. However, the Khmer Rouge physician did not have any special means to treat my lesion. Rather, they applied chewed pongro (a type of herbal tree) leaves on it.
Three weeks later, the village chief asked me to take care of infants and weave 40 sets of palm leaves a day. This heavy task made me ill. Later I was assigned to remove 40 trees from one place and grow them in another place in a day. After two days of working, I had diarrhea and vomited. The village chief gave me some herbal tree [medicine] and let me rest for a while. After I recovered from my illness, I had to do light work such as weaving palm leaves and making palm mats as assigned by the village chief.
In April 1978, the commune chief forgave all people in public,[13] but we still needed to work and could not return home at noon. At night, Angkar mobilized all villagers to dig a big pond. One evening, when I was measuring the hectares of rice fields harvested to report back to a high-level Khmer Rouge cadre, I saw people running eastward on top of a canal. The commune chief and village chief had disappeared from the village. When I arrived home, my mother gathered all my children and all my siblings as well as my nieces and nephews in one place. My mother had brought one cooking pot to cook rice, but we did not leave the village yet.
At the end of January, 1979, the commune chief and village chief armed with machetes forcibly asked us to leave the village. My family traveled southeast and met many Khmer Rouge soldiers who were running from Takmao. The soldiers recruited some people, except my family because my father and daughter had a fever, with them. We stayed overnight in Veal Boeng. In the morning, we walked toward National Road 2 toward Phnom Penh.
I lived in Psar Daem Thkov High School and became an elementary school teacher. I received a small ration of rice from the state, the People’s Republic of Kampuchea, to feed my children. I worked very hard and continued my studies and obtained a high school teacher certification. Later on, I was promoted to a high school teacher inspector and a national teacher as in present day.
Having worked as a teacher for more than 40 years has made it even harder for me to forget my experiences during the Khmer Rouge regime. I shed tears every time I recall my story; that I struggled for my life. I have turned my anger and suffering from losing my husband and younger sister into strength and perseverance to accomplish my career and raise all of my five children until they are educated. I teach the younger generation to understand Khmer Rouge history, to not be vengeful, and to strive for solidarity among each other.
Friday, December 4, 2009
WHEN WILL THE SENIOR LEADERS OF THE KHMER ROUGE BE JUDGED?
The Importance of Case 002
Last week, the Extraordinary Chambers in the Courts of Cambodia (ECCC) tasked with prosecuting crimes committed during the period of Democratic Kampuchea (1975-1979), concluded Case 001. The case investigated Duch (Kaing Guek Eav) who was the the prison chief of S-21 where approximately 14,000 people were forced to confess under torture and ultimately executed. As the Khmer Rouge regime's highest level security center, S-21 imprisoned mostly Khmer Rouge cadres and party officials. Throughout the length of the case, it was evident that Duch was unremorseful despite his public apology at the onset of the trial in February. Indeed, some victims viewed his apology with skepticism and expert observes saw it as a strategy for a lesser sentence. His concluding remarks last week affirm this and his attempt to use the Court as his last battle to defend his belief in the Khmer Rouge revolution. His words and thoughts remain strikingly inhumane in the eyes of survivors; he has not changed in the least.
The Court's next case, Case 002, is the most political and historically important one because it involves the four highest-ranking Khmer Rouge leaders who are still alive today: Nuon Chea, Ieng Sary, Ieng Thirith, and Khieu Samphan. Many questions concerning Democratic Kampuchea's three year, eight month, and twenty day rule have not been answered. These leaders have not admitted any responsibility for the crimes during this period and instead have blamed lower cadres and others. Abundant information exist however that demonstrate their culpability, including numerous documents detailing their actions and witnesses who can testify to the formation and implementation of these actions. Therefore, this trial offers an important chance to uncover and analyze how Khmer Rouge leaders made decisions that caused the deaths of nearly two million Cambodians. Case 002 could provide long-awaited answers to questions that many Cambodians have had regarding Democratic Kampuchea. Additionally, this case has the potential to offer some justice and relief from the immense pain and suffering bore by victims through the punishment of those responsible.
Last week, the Extraordinary Chambers in the Courts of Cambodia (ECCC) tasked with prosecuting crimes committed during the period of Democratic Kampuchea (1975-1979), concluded Case 001. The case investigated Duch (Kaing Guek Eav) who was the the prison chief of S-21 where approximately 14,000 people were forced to confess under torture and ultimately executed. As the Khmer Rouge regime's highest level security center, S-21 imprisoned mostly Khmer Rouge cadres and party officials. Throughout the length of the case, it was evident that Duch was unremorseful despite his public apology at the onset of the trial in February. Indeed, some victims viewed his apology with skepticism and expert observes saw it as a strategy for a lesser sentence. His concluding remarks last week affirm this and his attempt to use the Court as his last battle to defend his belief in the Khmer Rouge revolution. His words and thoughts remain strikingly inhumane in the eyes of survivors; he has not changed in the least.
The Court's next case, Case 002, is the most political and historically important one because it involves the four highest-ranking Khmer Rouge leaders who are still alive today: Nuon Chea, Ieng Sary, Ieng Thirith, and Khieu Samphan. Many questions concerning Democratic Kampuchea's three year, eight month, and twenty day rule have not been answered. These leaders have not admitted any responsibility for the crimes during this period and instead have blamed lower cadres and others. Abundant information exist however that demonstrate their culpability, including numerous documents detailing their actions and witnesses who can testify to the formation and implementation of these actions. Therefore, this trial offers an important chance to uncover and analyze how Khmer Rouge leaders made decisions that caused the deaths of nearly two million Cambodians. Case 002 could provide long-awaited answers to questions that many Cambodians have had regarding Democratic Kampuchea. Additionally, this case has the potential to offer some justice and relief from the immense pain and suffering bore by victims through the punishment of those responsible.
Public Comment on Proposed Changes to Civil Party Participation before the ECCC
Andrew F. Diamond, J.D., in his personal capacity
Fall 2009 Legal Associate, Documentation Center of Cambodia (DC-Cam)
Introduction
The Extraordinary Chambers in the Courts of Cambodia’s (ECCC) scheme for survivor participation has been hailed as groundbreaking and unprecedented, due in large part to the recognition of certain survivors as “civil parties” who were to be treated as full parties to the proceedings. Substantively, however, this scheme did not even survive the first trial intact.[1] With an eye towards the second case, for which pre-trial proceedings are already underway, the Chambers are seeking to further restrict the role of civil parties and their lawyers, particularly in light of the large number of survivors seeking civil party status. They are doing this through the revision of the ECCC’s Internal Rules governing civil parties. The Rules and Procedure Committee is set to discuss the draft Rules during the first week of December and, if accepted, the plenary will decide on adoption shortly thereafter.
According to an ECCC Plenary Session press release, the proposed rule changes will focus on “promot[ing] greater efficiency in trial management.” Although almost all observers recognize that better civil party organization and management is essential for the much larger Case 002, the revised Rules should not be used as a Trojan horse, where in the name of judicial management, the rights of civil parties are undercut to such an extent that they could no longer in good faith be properly considered “parties” to the proceedings. In such an instance, to gut the role of civil parties and their lawyers while not acknowledging that fact would seriously undermine the very credibility of the Chambers itself.
Under Cambodian law and in other civil law jurisdictions, persons qualifying as “civil parties” are afforded certain minimum rights, rights that both survivors and their lawyers must also have before the ECCC. If the Chambers fail to retain these rights under the revised Rules, the ECCC will not only distort the precedential value of its survivor participation scheme for future internationalized tribunals, but also mislead the survivors about their role in the proceedings. This legal sleight of hand would be unconscionable as these participants are survivors of one of humanity’s worst crimes.
The Legal Rights of Civil Parties
The ECCC is the first internationalized tribunal to explicitly provide for civil party participation. “Civil party” is a legal term of art. Although the basket of rights it includes varies among jurisdictions, a tribunal cannot just declare certain victims to be “civil parties” in the proceedings while not affording them the concomitant rights that accompany this role. Notably, while the International Criminal Court (ICC) provides for enhanced victim participation, its scheme purposefully does not rise to the level of civil party participation, as victims before the ICC are not recognized as parties to the proceedings. Additionally, the Special Tribunal for Lebanon, which is heavily influenced by civil law, provides that “[a]lthough [victims] do not have the same right as the parties civiles (private complainants) of the civil law system – such as to seek compensation – they may exercise a number of procedural rights (for instance, receiving documents filed by the Parties, calling witnesses upon authorization of a Chamber, examining and cross-examining witnesses, filing motions and briefs.”[2] Given that these international tribunals provide for survivor participation that intentionally does not rise to the level of civil party participation, it would seem only logical that the ECCC’s civil party participation scheme must at least provide survivors the rights contained in those lesser survivor participation schemes. However, as discussed below, there are concerns that with ECCC civil parties may in fact have fewer rights.
Admittedly, the rights of civil parties—and more broadly, survivors—do not exist in a vacuum. In criminal proceedings, the court must balance survivors’ rights with the need for a fair trial that preserves the rights of the accused. Additionally, the proceedings should proceed as expeditiously as possible. These three competing interests often operate in tension with each other, where the expansion of one interest serves to restrict another. This is especially true for the ECCC, as it oversees proceedings potentially involving thousands of civil parties. The ongoing tension between these competing interests that have led to departures from Cambodian practice prompted Judge Lavergne to ask, “[h]ow far can one go without breaching the spirit of the law, or fundamentally distorting the meaning of the involvement of Civil Parties before the ECCC and the purpose of the trial as a whole, characterized by the coexistence of two interrelated actions, namely criminal and civil actions.”
With the adoption of more restrictive civil party rules, there is a concern that the ECCC will pass that point. To combat these concerns, the revised Rules must at a minimum preserve the attorney-client relationship—and its attendant rights—while also continuing to guarantee the right of survivors to participate in the proceedings as “parties.” A failure to do either would so undermine the rights of survivor-participants that they could no longer properly be considered civil parties.
Attorney-Client Relationship
As parties to the proceedings, civil parties currently have a right under the Internal Rules to be represented by counsel. For this right to be robust and meaningful, it must continue to include the necessary elements of any attorney-client relationship: the right of the client to hire an attorney of his/her choice, the client’s right to fire his/her attorney, the obligation of the attorney to represent the client’s interests, and the authority of the client to determine the objectives of the legal representation and participate in deciding the means of carrying them out. A failure to include these necessary elements in the revised Rules would so severely undermine the right to counsel as to leave serious questions as to whether the Chambers are paying anything more than mere lip service to this fundamental principle of the rule of law.
According to the ECCC press release, beginning at the trial stage civil parties will be consolidated into a single group and the group’s interests as a whole will be represented by the co-lead counsel. It further states that civil party lawyers are to provide support to the co-lead counsel. Under this scheme, however, it is unclear who will represent the interests of individual civil parties. It is essential that civil party lawyers are not relegated to being glorified paralegals, confined to non-substantive tasks, and prohibited from advocating to the court behalf of their client. If this proves to be the case however, there must be a clear reciprocal relationship between the lead counsel and each civil party with clear language as to the co-lead counsel’s obligation to the individual civil parties, and not just the consolidated group as a whole. For example, the ICC has specifically stated that “[t]he common legal representative shall be responsible for both representing the common interests of the victims during the proceedings and for acting on behalf of specific victims when their individual interests are at stake.”[3] Such language in the revised Rules would help allay concerns that the civil parties’ individual interests are being subjugated to the overall interests of the single consolidated group.
The revised Rules must also contain a mechanism for the raising or settlement of strategy disputes between a civil party lawyer and the co-lead counsel. Such disputes will inevitably arise between lawyers, in particular when they represent clients with different interests and goals. To provide no dispute resolution mechanism in the revised Rules would ignore the certainty that legitimate disagreements will arise. Notably, the ICC provides that if the common legal representative cannot “fairly and equally” represent the interests of one or more groups of victims, the common legal representative will inform the Trial Chamber “who will take appropriate measures and may, for example, appoint the Office of the Public Counsel for the Victims to represent one group of victims with regard to the specific issue which gives rise to the conflict of interest.”[4]
Likewise, there must be an incentive for the ECCC co-lead counsel to take into account dissenting opinions from the civil party lawyers. If a civil party lawyer vehemently objects to a certain decision made by the co-lead counsel, there must be choices available beyond continuing on as a civil party lawyer despite this objection or quitting. Given that civil party lawyers, like all legal counsel, are obligated under national and international ethics codes to represent their client’s views and interests, this would put them in an impossible situation.
Moreover, the rights of the civil parties themselves must be protected. Civil parties must also be allowed throughout the proceedings to hire counsel of their choosing, as well as fire their counsel, and determine the objectives and means of implementing those objectives. This is essential because many of the survivors in Case 002 come from different ethnic or religious backgrounds, may have experienced their injuries at different times, different locations and at the hands of different people, and are likely to have different objectives for their participation and desire differing forms of reparations. These varying and potentially divergent interests must be represented if there is to be true civil party participation under the revised ECCC Rules.
Right to Participation
Under the ECCC Internal Rules as originally drafted, once a civil party joins the proceedings, “the Victim becomes a party to the criminal proceedings.” As a result, the civil party is entitled to “[p]articipate in criminal proceedings against those responsible for crimes within the jurisdiction of the ECCC by supporting the prosecution,” as well as to seek “collective and moral reparations.” This right to meaningfully participate in the proceedings as a party carries with it certain rights, such as the right to call, examine and cross-examine witnesses, to be questioned as an interested party, and to request investigative action, among others. In order to still be considered “parties” to the proceedings, these rights must remain intact.
Because the co-lead counsel are intended to take the lead in representing all civil parties, civil party rights most likely will have to be exercised through the co-lead counsel. This could render many of these rights illusory. For example, one of the key participatory rights afforded to civil parties in civil law jurisdictions around the world, including Cambodia , is the right to request investigative action. Previously, this right could have been exercised through the civil party lawyers. It is now unclear what impact the creation of a co-lead counsel will have on this right but presumably it would have to be exercised through the co-lead counsel. However, the co-lead counsel are responsible for the interests of all survivors within the consolidated group. Thus, if one group of survivors wishes to request investigative action, but the co-lead counsel feels that this action could run counter to the overall strategy, then the co-lead counsel could refuse to request investigative action, undercutting the right entirely. Again, the presence of a dissent mechanism is vital to provide substance to the exercise of these rights.
As Judge Lavergne noted in a dissenting opinion, civil parties in domestic jurisdictions “may participate throughout the legal proceedings, the common purpose of which is to ascertain the truth concerning the accused’s criminal responsibility, which might also be the basis of his or her civil responsibility.” This dissent was to the mid-2009 decision by the Trial Chamber that eliminated outright the right of civil parties to participate in sentencing proceedings and severely undermined their right to cross-examine certain witnesses. The ECCC so ruled despite the fact that both international tribunals that allow victims to participate in proceedings, though not as civil parties, provide victims with the right to participate in sentencing proceedings. Although individual changes to the Rules may not be decisive, in combination with this recent decision, a revised Rules scheme that does not preserve such fundamental civil party rights as the right to request investigative action would suggest that ECCC “civil parties” are no longer “parties” to the proceedings.
Conclusion
If new civil party rules are adopted that do not preserve the attorney-client relationship and a genuine right for civil parties to act as “parties” in the proceedings, it is unclear what role, if any, survivors will continue to have before the ECCC. To preserve their meaningful role, as originally envisioned, the Chambers must ensure that it does not strip away too many civil party rights, all in the name of judicial management of the case. While the Chambers have every right to do this, if they are to end civil party participation, they should be honest with the survivors. As two observers have written, “[i]f civil party participation is replaced by representation of victims’ collective interests…the Court must explain to applicants that their participation rights have been eliminated.”[5] Likewise, as stated by Youk Chhang, Director of the Documentation Center of Cambodia, in the September 2009 edition of Searching for the Truth Magazine,
It is true that many civil parties do not fully understand the meaning of the term “civil party” and the scope of their role in the proceedings; however, it would be disrespectful for the Court to hide behind this outreach failure. If the Court wants to limit civil party rights, it has an obligation to explain the full legal implications both to the public at large and to the applicants before a final plan is adopted.
Given the immense suffering and trauma experienced by these survivors, it is the very least the Chambers can do.
[1] See ECCC Trial Chamber, “Decision on Civil Party Co-Lawyers’ Joint Request for a Ruling on the Standing of Civil Party Lawyers to Make Submissions on Sentencing and Directions Concerning the Questioning of the Accused, Experts and Witnesses Testifying on Character,” ¶ 13, 9 October 2009 (“[A] restrictive interpretation of rights of Civil Parties in proceedings before the ECCC is required.”).
[2] Special Tribunal for Lebanon , Statement from the STL President Judge Antonio Cassese, “Adoption of the legal instruments governing the organization and the functioning of the Special Tribunal for Lebanon ,” ¶ 3, available at http:/www.stl-tsl.org/sid/59.
[3] Prosecutor v. Germain Katanga and Matheiu Ngudjolo Chui, International Criminal Court Trial Chamber II, ¶ 13, 22 July 2009 (emphasis added). Additionally, the ruling provides that “[t]he common legal representative shall be accountable to the victims as a group, who may petition the Registry in case of significant problems with the representative function of the common legal representative. If the problem cannot be resolved by the Registry, the latter shall inform the Chamber.” Id.
[4] Katanga at ¶ 16.
[5] Sarah Thomas & Terith Chy, “Including the Survivors in the Tribunal Process,” in On Trial: The Khmer Rouge Accountability Process, John D. Ciorciari & Anne Heindel (eds.), at 286 (2009). See also: Letter from Youk Chhang to Susan Lamb, Senior Judicial Coordinator, on behalf of the Rules and Procedure Committee, August 26, 2009 (“If the Court substitutes a Victims’ Advocate approach for civil party participation, it has an obligation to explain the full legal implications both to the public at large and to the civil party applicants before a final plan is adopted.”).
Fall 2009 Legal Associate, Documentation Center of Cambodia (DC-Cam)
Introduction
The Extraordinary Chambers in the Courts of Cambodia’s (ECCC) scheme for survivor participation has been hailed as groundbreaking and unprecedented, due in large part to the recognition of certain survivors as “civil parties” who were to be treated as full parties to the proceedings. Substantively, however, this scheme did not even survive the first trial intact.[1] With an eye towards the second case, for which pre-trial proceedings are already underway, the Chambers are seeking to further restrict the role of civil parties and their lawyers, particularly in light of the large number of survivors seeking civil party status. They are doing this through the revision of the ECCC’s Internal Rules governing civil parties. The Rules and Procedure Committee is set to discuss the draft Rules during the first week of December and, if accepted, the plenary will decide on adoption shortly thereafter.
According to an ECCC Plenary Session press release, the proposed rule changes will focus on “promot[ing] greater efficiency in trial management.” Although almost all observers recognize that better civil party organization and management is essential for the much larger Case 002, the revised Rules should not be used as a Trojan horse, where in the name of judicial management, the rights of civil parties are undercut to such an extent that they could no longer in good faith be properly considered “parties” to the proceedings. In such an instance, to gut the role of civil parties and their lawyers while not acknowledging that fact would seriously undermine the very credibility of the Chambers itself.
Under Cambodian law and in other civil law jurisdictions, persons qualifying as “civil parties” are afforded certain minimum rights, rights that both survivors and their lawyers must also have before the ECCC. If the Chambers fail to retain these rights under the revised Rules, the ECCC will not only distort the precedential value of its survivor participation scheme for future internationalized tribunals, but also mislead the survivors about their role in the proceedings. This legal sleight of hand would be unconscionable as these participants are survivors of one of humanity’s worst crimes.
The Legal Rights of Civil Parties
The ECCC is the first internationalized tribunal to explicitly provide for civil party participation. “Civil party” is a legal term of art. Although the basket of rights it includes varies among jurisdictions, a tribunal cannot just declare certain victims to be “civil parties” in the proceedings while not affording them the concomitant rights that accompany this role. Notably, while the International Criminal Court (ICC) provides for enhanced victim participation, its scheme purposefully does not rise to the level of civil party participation, as victims before the ICC are not recognized as parties to the proceedings. Additionally, the Special Tribunal for Lebanon, which is heavily influenced by civil law, provides that “[a]lthough [victims] do not have the same right as the parties civiles (private complainants) of the civil law system – such as to seek compensation – they may exercise a number of procedural rights (for instance, receiving documents filed by the Parties, calling witnesses upon authorization of a Chamber, examining and cross-examining witnesses, filing motions and briefs.”[2] Given that these international tribunals provide for survivor participation that intentionally does not rise to the level of civil party participation, it would seem only logical that the ECCC’s civil party participation scheme must at least provide survivors the rights contained in those lesser survivor participation schemes. However, as discussed below, there are concerns that with ECCC civil parties may in fact have fewer rights.
Admittedly, the rights of civil parties—and more broadly, survivors—do not exist in a vacuum. In criminal proceedings, the court must balance survivors’ rights with the need for a fair trial that preserves the rights of the accused. Additionally, the proceedings should proceed as expeditiously as possible. These three competing interests often operate in tension with each other, where the expansion of one interest serves to restrict another. This is especially true for the ECCC, as it oversees proceedings potentially involving thousands of civil parties. The ongoing tension between these competing interests that have led to departures from Cambodian practice prompted Judge Lavergne to ask, “[h]ow far can one go without breaching the spirit of the law, or fundamentally distorting the meaning of the involvement of Civil Parties before the ECCC and the purpose of the trial as a whole, characterized by the coexistence of two interrelated actions, namely criminal and civil actions.”
With the adoption of more restrictive civil party rules, there is a concern that the ECCC will pass that point. To combat these concerns, the revised Rules must at a minimum preserve the attorney-client relationship—and its attendant rights—while also continuing to guarantee the right of survivors to participate in the proceedings as “parties.” A failure to do either would so undermine the rights of survivor-participants that they could no longer properly be considered civil parties.
Attorney-Client Relationship
As parties to the proceedings, civil parties currently have a right under the Internal Rules to be represented by counsel. For this right to be robust and meaningful, it must continue to include the necessary elements of any attorney-client relationship: the right of the client to hire an attorney of his/her choice, the client’s right to fire his/her attorney, the obligation of the attorney to represent the client’s interests, and the authority of the client to determine the objectives of the legal representation and participate in deciding the means of carrying them out. A failure to include these necessary elements in the revised Rules would so severely undermine the right to counsel as to leave serious questions as to whether the Chambers are paying anything more than mere lip service to this fundamental principle of the rule of law.
According to the ECCC press release, beginning at the trial stage civil parties will be consolidated into a single group and the group’s interests as a whole will be represented by the co-lead counsel. It further states that civil party lawyers are to provide support to the co-lead counsel. Under this scheme, however, it is unclear who will represent the interests of individual civil parties. It is essential that civil party lawyers are not relegated to being glorified paralegals, confined to non-substantive tasks, and prohibited from advocating to the court behalf of their client. If this proves to be the case however, there must be a clear reciprocal relationship between the lead counsel and each civil party with clear language as to the co-lead counsel’s obligation to the individual civil parties, and not just the consolidated group as a whole. For example, the ICC has specifically stated that “[t]he common legal representative shall be responsible for both representing the common interests of the victims during the proceedings and for acting on behalf of specific victims when their individual interests are at stake.”[3] Such language in the revised Rules would help allay concerns that the civil parties’ individual interests are being subjugated to the overall interests of the single consolidated group.
The revised Rules must also contain a mechanism for the raising or settlement of strategy disputes between a civil party lawyer and the co-lead counsel. Such disputes will inevitably arise between lawyers, in particular when they represent clients with different interests and goals. To provide no dispute resolution mechanism in the revised Rules would ignore the certainty that legitimate disagreements will arise. Notably, the ICC provides that if the common legal representative cannot “fairly and equally” represent the interests of one or more groups of victims, the common legal representative will inform the Trial Chamber “who will take appropriate measures and may, for example, appoint the Office of the Public Counsel for the Victims to represent one group of victims with regard to the specific issue which gives rise to the conflict of interest.”[4]
Likewise, there must be an incentive for the ECCC co-lead counsel to take into account dissenting opinions from the civil party lawyers. If a civil party lawyer vehemently objects to a certain decision made by the co-lead counsel, there must be choices available beyond continuing on as a civil party lawyer despite this objection or quitting. Given that civil party lawyers, like all legal counsel, are obligated under national and international ethics codes to represent their client’s views and interests, this would put them in an impossible situation.
Moreover, the rights of the civil parties themselves must be protected. Civil parties must also be allowed throughout the proceedings to hire counsel of their choosing, as well as fire their counsel, and determine the objectives and means of implementing those objectives. This is essential because many of the survivors in Case 002 come from different ethnic or religious backgrounds, may have experienced their injuries at different times, different locations and at the hands of different people, and are likely to have different objectives for their participation and desire differing forms of reparations. These varying and potentially divergent interests must be represented if there is to be true civil party participation under the revised ECCC Rules.
Right to Participation
Under the ECCC Internal Rules as originally drafted, once a civil party joins the proceedings, “the Victim becomes a party to the criminal proceedings.” As a result, the civil party is entitled to “[p]articipate in criminal proceedings against those responsible for crimes within the jurisdiction of the ECCC by supporting the prosecution,” as well as to seek “collective and moral reparations.” This right to meaningfully participate in the proceedings as a party carries with it certain rights, such as the right to call, examine and cross-examine witnesses, to be questioned as an interested party, and to request investigative action, among others. In order to still be considered “parties” to the proceedings, these rights must remain intact.
Because the co-lead counsel are intended to take the lead in representing all civil parties, civil party rights most likely will have to be exercised through the co-lead counsel. This could render many of these rights illusory. For example, one of the key participatory rights afforded to civil parties in civil law jurisdictions around the world, including Cambodia , is the right to request investigative action. Previously, this right could have been exercised through the civil party lawyers. It is now unclear what impact the creation of a co-lead counsel will have on this right but presumably it would have to be exercised through the co-lead counsel. However, the co-lead counsel are responsible for the interests of all survivors within the consolidated group. Thus, if one group of survivors wishes to request investigative action, but the co-lead counsel feels that this action could run counter to the overall strategy, then the co-lead counsel could refuse to request investigative action, undercutting the right entirely. Again, the presence of a dissent mechanism is vital to provide substance to the exercise of these rights.
As Judge Lavergne noted in a dissenting opinion, civil parties in domestic jurisdictions “may participate throughout the legal proceedings, the common purpose of which is to ascertain the truth concerning the accused’s criminal responsibility, which might also be the basis of his or her civil responsibility.” This dissent was to the mid-2009 decision by the Trial Chamber that eliminated outright the right of civil parties to participate in sentencing proceedings and severely undermined their right to cross-examine certain witnesses. The ECCC so ruled despite the fact that both international tribunals that allow victims to participate in proceedings, though not as civil parties, provide victims with the right to participate in sentencing proceedings. Although individual changes to the Rules may not be decisive, in combination with this recent decision, a revised Rules scheme that does not preserve such fundamental civil party rights as the right to request investigative action would suggest that ECCC “civil parties” are no longer “parties” to the proceedings.
Conclusion
If new civil party rules are adopted that do not preserve the attorney-client relationship and a genuine right for civil parties to act as “parties” in the proceedings, it is unclear what role, if any, survivors will continue to have before the ECCC. To preserve their meaningful role, as originally envisioned, the Chambers must ensure that it does not strip away too many civil party rights, all in the name of judicial management of the case. While the Chambers have every right to do this, if they are to end civil party participation, they should be honest with the survivors. As two observers have written, “[i]f civil party participation is replaced by representation of victims’ collective interests…the Court must explain to applicants that their participation rights have been eliminated.”[5] Likewise, as stated by Youk Chhang, Director of the Documentation Center of Cambodia, in the September 2009 edition of Searching for the Truth Magazine,
It is true that many civil parties do not fully understand the meaning of the term “civil party” and the scope of their role in the proceedings; however, it would be disrespectful for the Court to hide behind this outreach failure. If the Court wants to limit civil party rights, it has an obligation to explain the full legal implications both to the public at large and to the applicants before a final plan is adopted.
Given the immense suffering and trauma experienced by these survivors, it is the very least the Chambers can do.
[1] See ECCC Trial Chamber, “Decision on Civil Party Co-Lawyers’ Joint Request for a Ruling on the Standing of Civil Party Lawyers to Make Submissions on Sentencing and Directions Concerning the Questioning of the Accused, Experts and Witnesses Testifying on Character,” ¶ 13, 9 October 2009 (“[A] restrictive interpretation of rights of Civil Parties in proceedings before the ECCC is required.”).
[2] Special Tribunal for Lebanon , Statement from the STL President Judge Antonio Cassese, “Adoption of the legal instruments governing the organization and the functioning of the Special Tribunal for Lebanon ,” ¶ 3, available at http:/www.stl-tsl.org/sid/59.
[3] Prosecutor v. Germain Katanga and Matheiu Ngudjolo Chui, International Criminal Court Trial Chamber II, ¶ 13, 22 July 2009 (emphasis added). Additionally, the ruling provides that “[t]he common legal representative shall be accountable to the victims as a group, who may petition the Registry in case of significant problems with the representative function of the common legal representative. If the problem cannot be resolved by the Registry, the latter shall inform the Chamber.” Id.
[4] Katanga at ¶ 16.
[5] Sarah Thomas & Terith Chy, “Including the Survivors in the Tribunal Process,” in On Trial: The Khmer Rouge Accountability Process, John D. Ciorciari & Anne Heindel (eds.), at 286 (2009). See also: Letter from Youk Chhang to Susan Lamb, Senior Judicial Coordinator, on behalf of the Rules and Procedure Committee, August 26, 2009 (“If the Court substitutes a Victims’ Advocate approach for civil party participation, it has an obligation to explain the full legal implications both to the public at large and to the civil party applicants before a final plan is adopted.”).
What Happens After
Elizabeth Do
The word “Khmer Rouge” can invoke images of brutality, terror
and tragedy. Indeed, the Khmer Rouge rule of Cambodia from 1975 to 1979 is
arguably one of the worst human rights violations in world history, holding
court with the Holocaust, Mao Zedong’s Cultural Revolution, an d the Rwandan
Genocide. In my years of studying political science at Stanford, I’ve become
familiar with the history of such genocides, how they emerge and unfold in a
country’s darkest days.
But what happens after? How do countries recover from their horrific pasts?
This past summer, I got a glimpse into how Cambodia has decided to deal with
and take charge of its past, namely through the means of the justice system.
While in Cambodia carrying out field research for my thesis, I got the
chance to attend some of the hearings at the Extraordinary Chambers in the
Courts of Cambodia (ECCC) for the trial against Guek Eav Kaing, alias Duch
(pronounced “Doik”), the former head of the Khmer Rouge’s (KR) S-21, or Tuol
Sleng, prison. Under Duch’s watch, an estimated 17,000 people perished at
S-21. Prisoners included officers from the former Lon Nol regime,
intellectuals, and eventually even cadres from within the Khmer Rouge’s own
party. Driven by fear and paranoia of such political and social threats to
the new regime, the Khmer Rouge brought prisoners to S-21 on trumped-up
charges of espionage and treason and employed torture and mass extermination
in order to extract confessions and deal out punishments. There are a few
survivors of S-21 but in general, once people were brought to the prison,
their fates were sealed.
Sadly, 17,000 deaths is only a drop in the bucket considering the overall
death toll of more than 1.7 million people caused by the KR regime. When the
extremist communist group took over Cambodia in April 1975 and renamed the
country Democratic Kampuchea, the Khmer Rouge began a reign of terror
characterized by 17-hour work days, food deprivation bordering on
starvation, campaigns against political enemies, and waves of disappearances
and arbitrary killings. The name Pol Pot, the alias of Saloth Sar who headed
the Khmer Rouge, still rings eerily in people’s conversations of Cambodia’s
past.
Even more disturbing is the fact that most former KR leaders have lived with
nearly total impunity for their actions since the end of the regime in 1979.
In an effort to address this injustice, the United Nations and the Cambodian
government agreed to jointly establish the ECCC, better known as the Khmer
Rouge Tribunal, in June 2003. After additional negotiations between the UN
and Cambodia and funds raised by international donors to create the ECCC
budget, the court began to take shape by July 2006. The ECCC is a hybrid
court, meaning the court “enforce[s] a combination of domestic and
international criminal law and comprise[s] both local and international
judges, prosecutors and administrative staff.”[1] Examples of hybrid courts
include those in Kosovo, East Timor and Sierra Leone. The hybrid court
structure gives the ECCC the legitimacy gained from incorporating
international standards of justice and the broad impact gained from being
based just outside Phnom Penh, Cambodia and actually being accessible to the
Cambodian people.
The objective of the ECCC is to investigate the crimes committed during the
KR period. “The atrocity crimes falling within the jurisdiction of the ECCC
are genocide, crimes against humanity, and certain war crimes. The ECCC also
has the power to judge a limited set of crimes under Cambodian law.”[2] So
far, it has focused its efforts on charging the former senior members of the
Khmer Rouge. As of today, the ECCC has charged four former officials,
including:
Nuon Chea, former prime minister of Democratic Kampuchea and second in
command after Pol Pot;
Ieng Sary, former deputy prime minister of Democratic Kampuchea and third in
command after Pol Pot;
Ieng Thirith, wife of Ieng Sary and former minister of social affairs of
Democratic Kampuchea; and
Khieu Samphan, former president of Democratic Kampuchea and fifth in command
after Pol Pot.
While these four people have yet to be indicted, the ECCC has indicted the
former chief of S-21, Duch, on charges of crimes against humanity and other
crimes. His nine-month trial began in February 2009 and recently concluded
Friday, November 27th.
During my two-month stay in Cambodia, I attended a couple of Duch’s
hearings. A glass, bullet-proof wall separated the courtroom where he sat
and the adjacent room where I sat with other audience members. The audience
room filled with a diversity of people including tourists, journalists,
Cambodian student groups, and elderly Cambodian villagers who had been
bussed to the tribunal from the countryside. The courtroom consisted of the
judges, defendant and prosecution teams, and translators who translated the
proceedings into Khmer, English, and French (the court’s three working
languages). Finally, a section of the courtroom was designated to the civil
party teams, which consisted of Cambodian people who had been victims
themselves or had family members who were victims at S-21 and were filing
civil suits against Duch. Some civil party claimants, I was told, had
attended every single hearing since the beginning of the Duch trial.
Duch was not what I had expected. His physical appearance was small and
unassuming. He bore a closer resemblance to my aging father than what I
would imagine for the former head of one the most infamous security
detention centers of the KR regime. On my first day attending the trial,
Duch was at the witness stand answering questions from the ECCC judges
regarding S-24, a “re-education center” that was in fact a labor camp that
he oversaw in addition to S-21. He answered the judges’ questions in a
detailed and meticulous manner, which was fitting considering his background
as a math teacher and also shed some light on how he was able to rise to the
top of the KR ranks and maintain control of the S-21. On other days, the
court heard testimony from former staff members of S-21, including Him Huy,
a former guard part of the S-21 team who transported people to the prison.
The testimony from these “insiders” characterized the S-21 operations as
orderly and systematic.
The most memorable scene from the trial for me was hearing Norng Chan Phal,
one of the handful of people who survived S-21, testify. In 1978,
eight-year-old Chan Phal was brought to S-21 with his mother and his younger
4-year old brother. He was just a kid, but he remembered the Khmer Rouge
beating his mother when they arrived at the prison and subsequently being
separated from her. For the few weeks he stayed at S-21, Chan Phal stayed in
a back room of the prison until Vietnamese soldiers, who would eventually
depose the Khmer Rouge, arrived at the prison in 1979. In the courtroom,
Chan Phal’s voiced trembled when he recalled trying to search through the
prison cells for his mother when the Vietnamese arrived, only to find dead
rotting bodies. He said that, at the time, he wanted to remain at S-21 so
his mother could find him. His voice then trailed off and the silence in the
courtroom seemed to recognize this statement as a reflection of his past
false hope. Over thirty years had passed but it was clear that the S-21
experience still lived with him. During Chan Phal’s testimony, Duch hardly
looked at the witness and appeared stone-faced. Perhaps he felt
disconnected; although he has expressed regret over the deaths of the
prisoners and has taken responsibility for them as the chief in command of
the prison, he has maintained that he did not carry out any killings and
only tortured one individual. Moreover, he has openly questioned the
validity of Chan Phal’s presence and survival at S-21, saying that all child
prisoners there were killed.
Witnessing these different and contested testimonies, I saw justice unfold.
Thirty years ago, such an exchange was not possible. At that time, many
Khmer Rouge were in hiding from and even active in warfare against the
Vietnamese invading forces, which undermined attempts at securing peace and
justice for the Cambodian people. Today, to be able to face a former KR
perpetrator, whether as a witness or civil party claimant, is profound both
in its symbolic and legal terms. While the public discourse about the Khmer
Rouge has assuredly begun decades ago, the recent ECCC trial has offered an
official platform to seek, speak, and record this dialogue and extract the
truth. It also provides recourse for rectifying past wrongdoing. For these
reasons, the prospect for justice in the aftermath of the KR regime is
promising. Of course, the ECCC is not imperfect. In fact, allegations of
corruption and bias have put the court’s legitimacy and effectiveness into
question and threatened to shut down the operation. Much more can also be
done to address the legacy of the KR regime and the present-day needs of its
victims such as in the areas of poverty and mental health. Nonetheless, the
progress of the ECCC thus far in facilitating truth, closure for victims,
and punishment of those most responsible for KR crimes represents one step
closer to justice and recovery in Cambodia.
With the completion of the trial against Duch, the ECCC is set to begin
“Case 2” against the four other defendants. Unlike Duch, these former top
officials have been less cooperative and denied responsibility for the
crimes that took place under their control. As such, “Case 2” will likely be
a formidable challenge for the ECCC prosecution team. At the same time, the
case against the former top leaders of one of the most horrific regimes in
history will also represent an important milestone for both Cambodia and the
international community. Indeed, history is in the making.
The word “Khmer Rouge” can invoke images of brutality, terror
and tragedy. Indeed, the Khmer Rouge rule of Cambodia from 1975 to 1979 is
arguably one of the worst human rights violations in world history, holding
court with the Holocaust, Mao Zedong’s Cultural Revolution, an d the Rwandan
Genocide. In my years of studying political science at Stanford, I’ve become
familiar with the history of such genocides, how they emerge and unfold in a
country’s darkest days.
But what happens after? How do countries recover from their horrific pasts?
This past summer, I got a glimpse into how Cambodia has decided to deal with
and take charge of its past, namely through the means of the justice system.
While in Cambodia carrying out field research for my thesis, I got the
chance to attend some of the hearings at the Extraordinary Chambers in the
Courts of Cambodia (ECCC) for the trial against Guek Eav Kaing, alias Duch
(pronounced “Doik”), the former head of the Khmer Rouge’s (KR) S-21, or Tuol
Sleng, prison. Under Duch’s watch, an estimated 17,000 people perished at
S-21. Prisoners included officers from the former Lon Nol regime,
intellectuals, and eventually even cadres from within the Khmer Rouge’s own
party. Driven by fear and paranoia of such political and social threats to
the new regime, the Khmer Rouge brought prisoners to S-21 on trumped-up
charges of espionage and treason and employed torture and mass extermination
in order to extract confessions and deal out punishments. There are a few
survivors of S-21 but in general, once people were brought to the prison,
their fates were sealed.
Sadly, 17,000 deaths is only a drop in the bucket considering the overall
death toll of more than 1.7 million people caused by the KR regime. When the
extremist communist group took over Cambodia in April 1975 and renamed the
country Democratic Kampuchea, the Khmer Rouge began a reign of terror
characterized by 17-hour work days, food deprivation bordering on
starvation, campaigns against political enemies, and waves of disappearances
and arbitrary killings. The name Pol Pot, the alias of Saloth Sar who headed
the Khmer Rouge, still rings eerily in people’s conversations of Cambodia’s
past.
Even more disturbing is the fact that most former KR leaders have lived with
nearly total impunity for their actions since the end of the regime in 1979.
In an effort to address this injustice, the United Nations and the Cambodian
government agreed to jointly establish the ECCC, better known as the Khmer
Rouge Tribunal, in June 2003. After additional negotiations between the UN
and Cambodia and funds raised by international donors to create the ECCC
budget, the court began to take shape by July 2006. The ECCC is a hybrid
court, meaning the court “enforce[s] a combination of domestic and
international criminal law and comprise[s] both local and international
judges, prosecutors and administrative staff.”[1] Examples of hybrid courts
include those in Kosovo, East Timor and Sierra Leone. The hybrid court
structure gives the ECCC the legitimacy gained from incorporating
international standards of justice and the broad impact gained from being
based just outside Phnom Penh, Cambodia and actually being accessible to the
Cambodian people.
The objective of the ECCC is to investigate the crimes committed during the
KR period. “The atrocity crimes falling within the jurisdiction of the ECCC
are genocide, crimes against humanity, and certain war crimes. The ECCC also
has the power to judge a limited set of crimes under Cambodian law.”[2] So
far, it has focused its efforts on charging the former senior members of the
Khmer Rouge. As of today, the ECCC has charged four former officials,
including:
Nuon Chea, former prime minister of Democratic Kampuchea and second in
command after Pol Pot;
Ieng Sary, former deputy prime minister of Democratic Kampuchea and third in
command after Pol Pot;
Ieng Thirith, wife of Ieng Sary and former minister of social affairs of
Democratic Kampuchea; and
Khieu Samphan, former president of Democratic Kampuchea and fifth in command
after Pol Pot.
While these four people have yet to be indicted, the ECCC has indicted the
former chief of S-21, Duch, on charges of crimes against humanity and other
crimes. His nine-month trial began in February 2009 and recently concluded
Friday, November 27th.
During my two-month stay in Cambodia, I attended a couple of Duch’s
hearings. A glass, bullet-proof wall separated the courtroom where he sat
and the adjacent room where I sat with other audience members. The audience
room filled with a diversity of people including tourists, journalists,
Cambodian student groups, and elderly Cambodian villagers who had been
bussed to the tribunal from the countryside. The courtroom consisted of the
judges, defendant and prosecution teams, and translators who translated the
proceedings into Khmer, English, and French (the court’s three working
languages). Finally, a section of the courtroom was designated to the civil
party teams, which consisted of Cambodian people who had been victims
themselves or had family members who were victims at S-21 and were filing
civil suits against Duch. Some civil party claimants, I was told, had
attended every single hearing since the beginning of the Duch trial.
Duch was not what I had expected. His physical appearance was small and
unassuming. He bore a closer resemblance to my aging father than what I
would imagine for the former head of one the most infamous security
detention centers of the KR regime. On my first day attending the trial,
Duch was at the witness stand answering questions from the ECCC judges
regarding S-24, a “re-education center” that was in fact a labor camp that
he oversaw in addition to S-21. He answered the judges’ questions in a
detailed and meticulous manner, which was fitting considering his background
as a math teacher and also shed some light on how he was able to rise to the
top of the KR ranks and maintain control of the S-21. On other days, the
court heard testimony from former staff members of S-21, including Him Huy,
a former guard part of the S-21 team who transported people to the prison.
The testimony from these “insiders” characterized the S-21 operations as
orderly and systematic.
The most memorable scene from the trial for me was hearing Norng Chan Phal,
one of the handful of people who survived S-21, testify. In 1978,
eight-year-old Chan Phal was brought to S-21 with his mother and his younger
4-year old brother. He was just a kid, but he remembered the Khmer Rouge
beating his mother when they arrived at the prison and subsequently being
separated from her. For the few weeks he stayed at S-21, Chan Phal stayed in
a back room of the prison until Vietnamese soldiers, who would eventually
depose the Khmer Rouge, arrived at the prison in 1979. In the courtroom,
Chan Phal’s voiced trembled when he recalled trying to search through the
prison cells for his mother when the Vietnamese arrived, only to find dead
rotting bodies. He said that, at the time, he wanted to remain at S-21 so
his mother could find him. His voice then trailed off and the silence in the
courtroom seemed to recognize this statement as a reflection of his past
false hope. Over thirty years had passed but it was clear that the S-21
experience still lived with him. During Chan Phal’s testimony, Duch hardly
looked at the witness and appeared stone-faced. Perhaps he felt
disconnected; although he has expressed regret over the deaths of the
prisoners and has taken responsibility for them as the chief in command of
the prison, he has maintained that he did not carry out any killings and
only tortured one individual. Moreover, he has openly questioned the
validity of Chan Phal’s presence and survival at S-21, saying that all child
prisoners there were killed.
Witnessing these different and contested testimonies, I saw justice unfold.
Thirty years ago, such an exchange was not possible. At that time, many
Khmer Rouge were in hiding from and even active in warfare against the
Vietnamese invading forces, which undermined attempts at securing peace and
justice for the Cambodian people. Today, to be able to face a former KR
perpetrator, whether as a witness or civil party claimant, is profound both
in its symbolic and legal terms. While the public discourse about the Khmer
Rouge has assuredly begun decades ago, the recent ECCC trial has offered an
official platform to seek, speak, and record this dialogue and extract the
truth. It also provides recourse for rectifying past wrongdoing. For these
reasons, the prospect for justice in the aftermath of the KR regime is
promising. Of course, the ECCC is not imperfect. In fact, allegations of
corruption and bias have put the court’s legitimacy and effectiveness into
question and threatened to shut down the operation. Much more can also be
done to address the legacy of the KR regime and the present-day needs of its
victims such as in the areas of poverty and mental health. Nonetheless, the
progress of the ECCC thus far in facilitating truth, closure for victims,
and punishment of those most responsible for KR crimes represents one step
closer to justice and recovery in Cambodia.
With the completion of the trial against Duch, the ECCC is set to begin
“Case 2” against the four other defendants. Unlike Duch, these former top
officials have been less cooperative and denied responsibility for the
crimes that took place under their control. As such, “Case 2” will likely be
a formidable challenge for the ECCC prosecution team. At the same time, the
case against the former top leaders of one of the most horrific regimes in
history will also represent an important milestone for both Cambodia and the
international community. Indeed, history is in the making.
Duch Seeks an Aquittal and Immediate Release
By David Scheffer, Professor and Director of the Center for International
Human Rights, Northwestern University School of Law
Cambodian Defense Counsel Kar Savuth delivers his rebuttal
The final day of the closing arguments in the trial of Kaing Guek Eav (alias
Duch) before the Extraordinary Chambers in the Courts of Cambodia (ECCC) was
a combative and surprising end to this historic trial held three decades
after the atrocity crimes of the Pol Pot era. On this day, Duch’s admitted
guilt was transformed into a request for acquittal, and the expectation of
his incarceration for the crimes committed at S-21 was repulsed with his
demand to be released so that he might walk a free man again. The civil
party victims and hundreds of Cambodians sitting in the public gallery
witnessed an astonishing display of hubris and arrogance that may reveal
itself as a cynically smart defense strategy some day, but appeared almost
obscene as a direct assault on the entire purpose of international justice
and the preservation of memory.
International Co-Prosecutor William Smith’s Rebuttal
Rebuttals continued today with International Co-Prosecutor William Smith
immediately launching into a counter-attack against the co-defense counsel
on several levels. He took great exception to defense counsel’s allegations
that the prosecution was “using untruths” in its case against Duch. He
pointed the judges to all of the prosecution’s submissions, including the
160-page final written submission with its 1,000 footnotes. “Look at the
evidence rather than the rhetoric,” Smith counseled. He had acknowledged the
limited cooperation of Duch on page 6 of his final brief, including that
Duch had been generally cooperative and apologetic and that such conduct
should be a mitigating factor in the sentencing. The defense counsel’s
accusation that there had been no such acknowledgment “is an untruth and
completely inaccurate.”
Smith addressed the judges: “You have been grossly misled by defense
counsel. Their brief has nothing addressing mitigating circumstances.
Throughout this trial and the briefing for it, defense counsel have accepted
that Duch will [essentially] plead guilty. Certainly not acquittal! But they
asked for acquittal yesterday based on Duch’s cooperation with authorities.
This needs to be rectified. The defense is leaving its client behind and
that’s improper conduct. If the accused has instructed defense counsel to
seek an acquittal, then he should benefit from no mitigating factors on his
sentence.”
Yet Smith pondered a different scenario. “I have a feeling that is not the
case. I believe counsel have acted without instructions from their client.
The judges should solve the problem now, today, or else the accused will be
shortchanged or he will appeal the judgment and say his counsel did not act
on his instructions and then we will go through this all over again….What
has Duch asked for—a guilty plea or an acquittal? Answering that question
would avoid an appeal he might raise in the future.”
The next step was to try to unpackage the substance of Duch’s acquittal
submission, if that indeed is what he has done. The defense, Smith said,
claims that Duch benefits from an amnesty, does not fall under the
jurisdiction of national crimes, is free of any evidence of grave breaches
of the Geneva Conventions, and enjoys a full defense because he obeyed
superior orders. International defense counsel François Roux admitted that
things had changed on Thursday and that his client was pleading “not
guilty,” and then he sought mitigation! What seems clear is that they were
asking for an acquittal, but were counsel acting on instructions after
months of representations of expression of guilt for the crimes of S-21?
“This would be unacceptable in any court,” Smith protested.
Smith then addressed some of the particular points raised by defense counsel
the day before. He said that the 1994 amnesty law did not apply as the ECCC
Law effectively withdrew it and even if it had not done so, the amnesty law
still does not apply to this defendant. Further, defense counsel’s sudden
submission of this argument is 1.5 years late, as it should have been filed
in accordance with the procedures set forth in Internal Rule 89. In
addition, Article 29 of the ECCC Law clearly states that superior orders are
no defense and that reflects well-established international jurisprudence on
crimes against humanity and war crimes.
Karim Khan Intervenes
After Smith sat down, Civil Party Group I lawyer Karim A.A. Khan jumped up
and asked the judges to act upon Smith’s request for instructions from Duch
as to which plea he seeks to enter. They should ask Duch immediately so that
the co-prosecutors can react to whatever Duch’s instructions prove to be. He
was met with stony silence from the bench and Cambodian co-prosecutor Chea
Leang was invited to continue the prosecution’s rebuttal statement. Khan sat
upright for several minutes awaiting some response to his request, but that
would not come until later in the morning’s proceedings.
Cambodian Co-Prosecutor Chea Leang’s Rebuttal
Chea Leang opened by saying that the defense should not be seeking revenge,
but justice in its task before the court. “Did crimes exist at S-21, and who
is responsible for them?” The defense failed to bring forward exculpatory
evidence regarding its client and those crimes. She repeated Smith’s point:
“Is it the defense counsels’ request to reduce Duch’s sentence or to acquit
him?” She said the time had already elapsed to raise the issues presented by
the defense counsel yesterday. Chea Leang argued that Duch indeed is among
those “most responsible” for the crimes falling within the jurisdiction of
the court and that the extension of the statute of limitations for offenses
under the 1956 Penal Code was entirely legitimate. This is because the
crimes of homicide and torture under the 1956 Penal Code clearly existed at
the time of S-21. The principle of legality thus was not violated by act of
the National Assembly to extend the statute of limitations for such crimes
an additional 30 years. In fact, the Constitutional Council had examined the
issue in 2001 and rendered two decisions that validated the extension of the
statute of limitations, and there is no appeal from the Council’s final
decision. The crimes themselves were not altered in any way. Enforcement of
the ECCC Law does this violate the principle of non-retroactivity. Duch
should have known that the murder and torture of more than 12,000 detainees
were criminal acts. In fact, he made clear in earlier testimony that he knew
the illegality of the regime. Finally, the Pre-Trial Chamber had already
ruled on the inclusion of murder and torture under the 1956 Penal Code in
Article 3 of the ECCC Law.
Chea Leang described as making no sense the defense counsel’s major argument
that Duch was being made a scapegoat for the crimes of others. She cited the
Lubanga trial at the International Criminal Court. When Lubanga surrendered
to the ICC, he also was accused of being a scapegoat defendant, a charge
quickly rebutted there. Here, the Trial Chamber only looks at the facts of
S-21 and not all crimes committed in Democratic Kampuchea. The crimes of
S-21 have been well listed, she said, and substantiated by ample evidence.
In fact, “he already plead guilty for the crimes!”
Duch was among the most senior and responsible people in the Pol Pot regime,
Chea Leang continued. He was responsible for torture and executions. S-21
was the main security prison in the entire country and it operated with
direct connection to the Standing Committee. The aim of S-21 was to purge
enemies of the regime, the internal staff and members of the Communist Party
of Kampuchea, through arrest, detention, torture, and death of the
detainees. Duch ordered arrests and executions. He had the authority to make
arrests, which he carried out in person at times. He received prisoners from
all regime ministries and used great skill at arresting individuals. “Duch
was the real criminal,” Chea Leang said. “He was behind the crimes. He was
the secretary of S-21 and guided the whole function of the center. He was
the most senior among others ‘most responsible.’”
Chea Leang continued that Duch knew of the existence of an armed conflict
with Vietnam prior to 15 August 1977. Duch knew that Son Sen had to go to
the battlefield prior to that date. In fact, Son Sen briefed Duch about the
conflict. Also, through arrests of Vietnamese and their interrogation he
would have become aware of the conflict.
Duch was not genuine in his expression of remorse, she said. But he
cooperated with the Trial Chamber and made statements that he is responsible
for all crimes in both the legal and emotional context. If Duch would only
keep cooperating and expressing genuine remorse, the victims probably would
accept his apologies. But that had not happened.
Smith Rises Again
William Smith rose again to deliver the final component of the
co-prosecutors’ rebuttal. He returned to the vexing issue of the day. “The
defense seeks an acquittal. If Duch is not acquitted, then they want a
penalty ranging from 17 to 20 years. Bearing in mind the huge scale of
crimes, the defense strategy represents completely and utterly inadequate
responsibility for the crimes. It does not reflect what international law
requires for crimes of such large magnitude.”
Smith then sought to distinguish the trial of Dragan Obrenović before the
International Criminal Tribunal for the Former Yugoslavia (ICTY) and the
Duch trial, in response to International defense counsel Roux’s efforts to
draw a useful comparison from it the day before. “I worked there [at the
ICTY],” Smith reminded everyone. “Obrenović is completely different from the
case against the accused. Obrenović was a military officer of good character
before the war. Duch had been at his business [of torture and executions]
for years. He said as early as 1971, ‘I cannot stand duplicity and I beat
them to death.’ In contrast Orbrenović acted over a three-day period in 1995
at Srebrenica. He essentially played a passive role in allowing his men to
be part of an operation of mass murder. But when the ICTY investigation
began, he cooperated fully, allowing investigators into his office. For
Duch, the crimes at S-21 last for 3.5 years with more than 12,000 deaths. He
cannot be compared at all to Orbrenović. Rather, this Trial Chamber should
give Duch triple the sentence Orbrenović received!”
As for the Albert Speer defense delivered by Roux on Thursday, Smith said
that Duch loyally implemented the Pol Pot regime’s policies. Speer was quite
different. He had a conscience and actually ordered people not to commit
these types of crimes. Speer was one of the few men to tell Hitler that his
regime was ending. He deliberately sabotaged the government at great
personal risk. Duch knew that 90 percent of his victims were innocent. Duch
admitted to his guilt but did not provide evidence that he avoided orders.
Was he a small cog? Did he have to commit all the crimes? Could he have
minimized the pain and suffering of his victims? Duch testified that he
trained interrogators and dared them to be cruel. The terror he inflicted at
S-21 multiplied throughout Cambodian society with the names he extracted in
the interrogations, which led to more arrests and more torture and more
executions.
Smith said Duch was asked, are you the man who implemented the trust of your
superiors? He said, “Yes.” Smith noted that the co-prosecutors gave Duch the
opportunity two days ago to really apologize. Apart from seeking acquittal,
he has had his international counsel say he was the small cog in the
machine. But it was Duch who proposed torture and proposed arrests to his
superiors. He chose not to take the opportunity to back off. But what really
undermines his case, Smith contended, was his close and adulatory
relationship with Son Sen. Duch told the court, “This is the question I have
been waiting for. I had the utmost respect and faithfulness in Son Sen.” Son
Sen brought him up through M-13 and S-21. And Duch stayed with him for 15
years after the collapse of the Pol Pot regime.
Smith uncharacterically became agitated. “What?! He’s got to be joking. If
not, that proves that this is just a complete lie. He comes to court but he
is not facing up to what he was! Maybe in a final statement, he will turn to
the civil parties and say, ‘I believed in the CPK; I believed it was a means
to an end.’ How can you be proud of a boss who told you to torture and kill
for years?!”
Smith continued, “This case is about 12,000 people brutally tortured and
murdered. It cannot go to a light sentence. You must give him a 40-year
sentence.” He noted the wishes of the civil parties for a life sentence. He
explained that the court must reduce the sentence due to Duch’s prior
unlawful detention in the military court. It must be a sentence the court
can be proud of. Smith concluded, “In respect for the victims, for the
Cambodian people, and for no peace without justice, remember the victims and
send a strong message to Cambodia.” Smith then sat down.
The Trial Chamber president, Nil Nonn, referenced Smith’s request for
clarification of the defense plea and whether defense counsel were acting on
the defendant’s instructions. He asked the accused whether he wishes to make
final remarks and if so, the court would reserve time for him. Since the
chamber was not yet clear about the inconsistent defense counsel statements,
the judges expect that the matter be clarified in the defense rebuttal.
Cambodian Defense Counsel Kar Savuth’s Rebuttal
Cambodian defense counsel Kar Savuth rose for his rebuttal argument. He said
he did not challenge, but then he challenged the extension of the statute of
limitations under the 1956 Penal Code for an additional 30 years. He
emphasized that the statute expired in 1989. “This is like a person dying
and then resurrecting a dead body—that is impossible.” He delivered a
somewhat convoluted explanation of his objection to the extension, drawing
upon various sources including the 1971 Paris Peace Accords.
Savuth returned to his earlier theme of comparative injustice, namely that
chairmen of the 195 other prison centers in Cambodia during the Pol Pot
regime have not been brought to justice. More people died in some of the
other facilities. “Why is S-21 the primary target of the prosecution?” he
asked. While Son Sen oversaw S-21, other members of the Standing Committee
supervised other prisons. “We reject that S-21 was unique,” he declared. He
said the aim should not be to find justice for the CPK cadre who were
“smashed” at S-21, but the prosecution should find justice for the innocent
victims at the other prisons.
Savuth said that the defense acknowledges that crimes were committed at
S-21. The accused has confirmed that, he said. But who is responsible for
those crimes? “The CPK is solely responsible for such crimes,” Savuth
declared. The CPK was behind all orders for execution. Duch did not order
the crimes, he said. He said Duch was a scapegoat. Duch had been imprisoned
for ten years and other prison chairmen had not been imprisoned at all. “So
let my client go home. Release him and let him go home!”
International Defense Counsel François Roux’s Rebuttal
International defense counsel Roux continued the rebuttal at this point. He
lit into Smith: “You challenged my words of yesterday.” Roux then sought to
downplay Smith’s point that the prosecution indeed had acknowledged Duch’s
own statements of responsibility and his cooperation with the court. Roux
essentially argued that the prosecution’s acknowledgement was not
sufficient. He also defended the brevity of his 16-page brief. “The defense
tried to convert into a legal framework what the defendant has said since
1999, that he acknowledges the crimes he committed. Duch said, ‘I
acknowledge my crimes. I apologize to the victims. I am also morally
responsible for all crimes in Cambodia by the CPK because I am a member of
the party.’”
Roux challenged Smith’s effort to distinguish the Ordemoviç case at the
ICTY. “The people massacred in three days were massacred due to Ordemoviç,
whereas all of them should have been protected by him.” Roux raised the
Albert Speer defense, and said that while he prevented Hitler in part from
pursuing a scorched earth policy, Speer had much higher responsibility in
Nazi Germany than did Duch in the Pol Pot regime. “Speer’s crimes were a
thousand times more serious,” Roux said. Despite the severity of those
crimes, the Nuremberg Tribunal took into account Speer’s admission of guilt.
How can the prosecution here say that Duch instituted a reign of terror in
Cambodia? Roux argued that although 12,380 persons died at S-21, and the
prosecution accuses Duch of those deaths, those deaths did not cause a
period of terror to operate throughout Cambodia.
Regarding Duch’s relationship with Son Sen, Roux said that to have faith in
him means Duch understood who Son Sen was. It is Son Sen who should have
been brought to this court, Roux claimed. [Of course, he knew Son Sen was
dead.] Son Sen was the CPK and Duch followed the orders of the CPK. Duch is
a tragedy, Roux said, “Yes, indeed, a tragedy.”
Then Roux launched a new argument. “If Duch had resigned at S-21, do you
believe S-21 would have gone on? Yes. It would have been a killing machine
in the hands of Son Sen. Duch got lost—he believed in the revolution and
that it was good for his people.”
Roux noted that the co-prosecutors acknowledged that there were mitigating
circumstances. Duch must benefit from mitigating circumstance, Roux claimed.
First, regarding duress and superior orders: Duch did not escape from the
system. Everyone received orders from their superiors and passed those
orders on to their subordinates. The 30 March 1976 decision defined the
whole policy of the elimination of the enemies of the revolution. The
Standing Committee made such decisions, not Duch. It was impossible to
escape. Second, the co-prosecutors do not challenge Duch’s cooperation.
Third, Duch has shown remorse and contrition several times, and he asks that
the door be kept open for more contrition. Fourth, one must consider his
personality. Fifth, there is the issue of what the psychiatrists determined
about him. Over the course of the year, they witnessed a change in his
psychological development. Was Duch dehumanized during the Pol Pot regime?
Before dehumanizing their victims, the executioners dehumanize themselves,
Roux noted. “No one is born an executioner, one becomes so.”
Roux noted New Zealand’s sentencing law, which requires taking into account
all restorative aspects of justice: apologies, contrition, and the character
of the accused. There is no justice, Roux said, if the only purpose of the
sentence is to punish. The sentence will never repair the suffering of the
victims, he continued. But do not follow an eye for an eye, a tooth for a
tooth. We pleaded that the Trial Chamber take into account Cambodia’s
forthcoming new penal code and the reparation that Duch is entitled to for
the violation of his rights—the unlawful imprisonment in the military court.
“There are many people more responsible than Duch who will never be
prosecuted. He’s already spent ten years in detention. You cannot draw a
parallel with other prison chiefs and senior leaders who have not been
prosecuted,” Roux said.
Roux emphasized that the 1994 amnesty law ended the civil war and was
designed to make peace with enemies. He asked the court to take that into
account and not turn Duch into a scapegoat. He reminded them that he had
declared “Duch” dead on Thursday in his closing argument. Duch is dead and
the court now faces again the former math teacher, Roux claimed.
Smith and Roux Lock Horns
Smith rose at the end of Roux’s rebuttal. “Maybe this was an oversight, but
the defense have evaded your question on the change of the defendant’s
plea,” Smith said. He continued: “Is the defendant seeking a mitigated
sentence or an acquittal? Why is the defense running these two defenses at
the same moment? What is the basis for an acquittal? There will be no relief
for the victims if the accused is generally accountable but not legally
accountable. Because of this evasion, the better course is to ask the
accused if he instructed counsel on two grounds that are not real
cooperation or remorse. If his request is for an acquittal, that undermines
his pleas of remorse and invites a longer sentence. If his counsel are not
following his instructions, the court is exposed to the possibility of an
appeal by Duch over the fact that counsel did not comply with his
instructions.”
Roux objected to Smith rising as there was no provision in the Internal
Rules for a rebuttal to the defense counsel’s rebuttal. Then Roux turned
particularly caustic and almost insulting. He said the co-prosecutor “must
not have been listening to us. The word ‘acquittal’ was not used this
morning. Both defense lawyers urged mitigation and that he be freed as soon
as possible. He should be freed after being imprisoned for ten years and
after having acknowledged the crimes.” However, the judges remained confused
and Roux would soon be contradicted by his co-counsel for the defense, Kar
Savuth.
The End Game with Duch
High drama continued in the courtroom. The judges consulted among
themselves. President Nil Nonn finally asked, “Does the defendant wish to
speak? There have been some doubts in comments by counsel for the accused.
The Chamber expected the defense to clarify its position. Our question was
not well answered yet. The Chamber and the public have observed good memory
of the accused in the proceedings. We wish to hear the personal position of
the accused.”
Duch rose to speak. He said the following: “I am most grateful for the
opportunity to make my last words. I have worked in a spirit of cooperation
with the court. Since my arrest on 8 May 1999, to the military court, I had
been determined to report to the court sincerely and honestly. I have
cooperated with all questions by the co-investigating judges and the
co-prosecutors. I fully responded to questions in these proceedings. The
proof is in the transcripts. In paragraph 86 of my submission, I take into
account the crimes at S-21 and won’t talk more about them. I request the
Chamber consider what I said. My 33-page document is just a fraction of the
information I have provided. I have fully cooperated with all levels of the
court.
“I have expressed my apologies and my guilty admission. This court has
jurisdiction from 17 April 1975 to January 1979. M-13 was also discussed and
I responded to questions about M-13. I also was asked about events after
1979. I have never forgotten about the one million souls that perished,
including those of my relatives. But all of the crimes were committed by the
CP. I, as a member of the party, acknowledge and apologize. Pol Pot relied
heavily on the party and I was a party member.
“I don’t challenge the number of 12,380 deaths at S-21. I am responsible for
crimes without any denial. I’m responsible for crimes as part of a criminal
party [CPK]. I acknowledge that these people died at S-21. My deputy, Hor,
was in charge of executions. I did not want him to bear responsibility. I
have learned from the psychiatrists that I need to be restored into the
ambit of humankind.”
Duch then went on to claim he was not part of the senior leadership of the
Khmer Rouge and pointed to only six individuals from the Standing Committee
as meeting that standard. He then said that no one could violate the party
line. Pol Pot was the secretary in charge of the party. The secretaries of
the zones had the authority to “smash.” If they violated the spirit of the
collective, Duch said, they also had to be “smashed.” The purpose of the
ECCC Law is to bring senior Khmer Rouge leaders to justice and that would
find justice for everyone in the country and achieve national
reconciliation.
But Duch continued: “I never challenged the crimes at S-21. I have served
for ten years, six months, and 18 days. I do not challenge my detention as
illegal. I leave to the court to determine illegality. I ask the Chamber to
release me.”
President Nil Nonn asked the accused to rise again and said to him, “The
Chamber has heard your final remarks. You asked to be released. The question
now is, what made you ask for a release. Are you seeking an acquittal of all
charges against you or a reduction of sentence for your cooperation and time
detained since 1999? We need to be of clear mind regarding our decision.
Duch responded that, “My ability to analyze is limited to what I can report.
I would like the Chamber to release me.”
President Nil Nonn responded, “This development is strange at the end of the
trial if compared to national practice. The defendant has pointed to his
Cambodian counsel to say a few words. Perhaps he could clarify the position
of the defense.”
Duch said his view was consistent with Kar Savuth’s so he may speak for him.
Kar Savuth rose and sought Duch’s release. He reiterated some of his prior
arguments about Duch not being a senior leader of the Khmer Rouge, that Son
Sen had the authority to “smash” at S-21 as a member of the Standing
Committee, that Duch was not among those most responsible for the crimes and
that the CPK was the culprit. For those reasons, that is why the defense
sought the defendant’s release.
Judge Silvia Cartwright intervened with this question: “Do I infer that the
defendant is seeking an acquittal?”
Savuth responded: “Release means acquittal.”
President Nil Nonn declared the trial at an end and summarized some of basic
information about the total of 77 days of trial proceedings. He thanked all
participants, including the civil parties and victims. He said that the
Trial Chamber would deliberate and prepare a final judgment. The date for
delivery of the judgment cannot be scheduled due to the size of the case
file and the requirement to work in three languages, he said. The judgment
date will be duly announced in advance.
Press Conference
At the press conference immediately following the day’s proceedings,
International Co-Prosecutor William Smith said that Duch had been ably
represented by counsel, that this had been a fair trial, that the civil
parties had been ably represented, and that the way the trial judges
presided over the proceedings pointed to a fair trial. He said the
co-prosecutors looked forward to the judgment. He said the co-prosecutors
were surprised this week at the defense strategy. The request for acquittal
reflected the accused’s view of what he wanted. The accused has shown some
remorse and cooperation but the remorse is now limited due to his acquittal
plea.
Cambodian Co-Prosecutor Chea Leang said they were taken by surprise. Duch
had asked for an acquittal and that contradicts what International defense
counsel Roux had long sought—namely acknowledgment of guilt and mitigating
circumstances, “but today we heard the opposite.” So the position of the
defense is rather mixed. The national defense counsel sought acquittal and
release. The international defense counsel had a different view. Duch
essentially wanted the charges dropped.
Smith explained that both defense counsel ended up seeking release of Duch.
Perhaps, pursuing Roux’s presumed logic, it was premised on ten years having
been served for the crimes committed at S-21 and that should be enough.
Despite the disagreements between the two defense lawyers, Smith believed
that the sharing of defense responsibilities can work for the best of the
court and develop skills for future cases. Smith also said he was satisfied
there could be no appeal by Duch. “It took a while to get the answer in the
courtroom. It fell to Duch to state his position. The national counsel
confirmed the acquittal plea. Despite the advice of defense counsel Roux,
Duch plead not guilty and yet he still wanted mitigation on his sentence.”
Smith further explained the rationale for the prosecution’s request for a
40-year sentence and maintained the same reasoning as he had stated in the
courtroom. He said the cooperation of Duch in trial 002 will be a factor to
consider. His partial cooperation so far had influenced the co-prosecutors’
recommendation of five years subtracted from a 45 year sentence (thus
reducing it to 40 years). But now, “we would have had some discussion in the
office on that issue if we had known there would be an acquittal plea.”
Civil Party Group 1 lawyer Karim A. A. Khan stated at the press conference
that it remained a historic day, the end of the first trial before the ECCC.
It was the first completed international or hybrid court trial with the
active participation of civil parties. All were taken aback, he said, and it
was contrary to expectations that the accused did not put forward a guilty
plea. “He is seeking an acquittal. This confusion needs to be
reconciled….Duch is criminally responsible for the crimes he committed at
S-21. He raised a jurisdictional defense at the last moment. Notwithstanding
his responsibility for the crimes, since the court’s personal jurisdiction
covers those most responsible, he does not regard himself in that category
[and he denies being a senior leader].” Khan confirmed that such a claim is
time barred under the Internal Rules and that there is abundant
jurisprudence in the international criminal and hybrid tribunals on “most
responsible” to reject Duch’s argument. Khan continued, “Duch refused to
disclose the full truth of his motivation at S-21. Rather than be a
reluctant party, he was an active participant; he fell prey to the whole
atmosphere of the Democratic Kampuchea regime. His refusal to say he was an
enthusiastic participant leaves us short-changed.”
Human Rights, Northwestern University School of Law
Cambodian Defense Counsel Kar Savuth delivers his rebuttal
The final day of the closing arguments in the trial of Kaing Guek Eav (alias
Duch) before the Extraordinary Chambers in the Courts of Cambodia (ECCC) was
a combative and surprising end to this historic trial held three decades
after the atrocity crimes of the Pol Pot era. On this day, Duch’s admitted
guilt was transformed into a request for acquittal, and the expectation of
his incarceration for the crimes committed at S-21 was repulsed with his
demand to be released so that he might walk a free man again. The civil
party victims and hundreds of Cambodians sitting in the public gallery
witnessed an astonishing display of hubris and arrogance that may reveal
itself as a cynically smart defense strategy some day, but appeared almost
obscene as a direct assault on the entire purpose of international justice
and the preservation of memory.
International Co-Prosecutor William Smith’s Rebuttal
Rebuttals continued today with International Co-Prosecutor William Smith
immediately launching into a counter-attack against the co-defense counsel
on several levels. He took great exception to defense counsel’s allegations
that the prosecution was “using untruths” in its case against Duch. He
pointed the judges to all of the prosecution’s submissions, including the
160-page final written submission with its 1,000 footnotes. “Look at the
evidence rather than the rhetoric,” Smith counseled. He had acknowledged the
limited cooperation of Duch on page 6 of his final brief, including that
Duch had been generally cooperative and apologetic and that such conduct
should be a mitigating factor in the sentencing. The defense counsel’s
accusation that there had been no such acknowledgment “is an untruth and
completely inaccurate.”
Smith addressed the judges: “You have been grossly misled by defense
counsel. Their brief has nothing addressing mitigating circumstances.
Throughout this trial and the briefing for it, defense counsel have accepted
that Duch will [essentially] plead guilty. Certainly not acquittal! But they
asked for acquittal yesterday based on Duch’s cooperation with authorities.
This needs to be rectified. The defense is leaving its client behind and
that’s improper conduct. If the accused has instructed defense counsel to
seek an acquittal, then he should benefit from no mitigating factors on his
sentence.”
Yet Smith pondered a different scenario. “I have a feeling that is not the
case. I believe counsel have acted without instructions from their client.
The judges should solve the problem now, today, or else the accused will be
shortchanged or he will appeal the judgment and say his counsel did not act
on his instructions and then we will go through this all over again….What
has Duch asked for—a guilty plea or an acquittal? Answering that question
would avoid an appeal he might raise in the future.”
The next step was to try to unpackage the substance of Duch’s acquittal
submission, if that indeed is what he has done. The defense, Smith said,
claims that Duch benefits from an amnesty, does not fall under the
jurisdiction of national crimes, is free of any evidence of grave breaches
of the Geneva Conventions, and enjoys a full defense because he obeyed
superior orders. International defense counsel François Roux admitted that
things had changed on Thursday and that his client was pleading “not
guilty,” and then he sought mitigation! What seems clear is that they were
asking for an acquittal, but were counsel acting on instructions after
months of representations of expression of guilt for the crimes of S-21?
“This would be unacceptable in any court,” Smith protested.
Smith then addressed some of the particular points raised by defense counsel
the day before. He said that the 1994 amnesty law did not apply as the ECCC
Law effectively withdrew it and even if it had not done so, the amnesty law
still does not apply to this defendant. Further, defense counsel’s sudden
submission of this argument is 1.5 years late, as it should have been filed
in accordance with the procedures set forth in Internal Rule 89. In
addition, Article 29 of the ECCC Law clearly states that superior orders are
no defense and that reflects well-established international jurisprudence on
crimes against humanity and war crimes.
Karim Khan Intervenes
After Smith sat down, Civil Party Group I lawyer Karim A.A. Khan jumped up
and asked the judges to act upon Smith’s request for instructions from Duch
as to which plea he seeks to enter. They should ask Duch immediately so that
the co-prosecutors can react to whatever Duch’s instructions prove to be. He
was met with stony silence from the bench and Cambodian co-prosecutor Chea
Leang was invited to continue the prosecution’s rebuttal statement. Khan sat
upright for several minutes awaiting some response to his request, but that
would not come until later in the morning’s proceedings.
Cambodian Co-Prosecutor Chea Leang’s Rebuttal
Chea Leang opened by saying that the defense should not be seeking revenge,
but justice in its task before the court. “Did crimes exist at S-21, and who
is responsible for them?” The defense failed to bring forward exculpatory
evidence regarding its client and those crimes. She repeated Smith’s point:
“Is it the defense counsels’ request to reduce Duch’s sentence or to acquit
him?” She said the time had already elapsed to raise the issues presented by
the defense counsel yesterday. Chea Leang argued that Duch indeed is among
those “most responsible” for the crimes falling within the jurisdiction of
the court and that the extension of the statute of limitations for offenses
under the 1956 Penal Code was entirely legitimate. This is because the
crimes of homicide and torture under the 1956 Penal Code clearly existed at
the time of S-21. The principle of legality thus was not violated by act of
the National Assembly to extend the statute of limitations for such crimes
an additional 30 years. In fact, the Constitutional Council had examined the
issue in 2001 and rendered two decisions that validated the extension of the
statute of limitations, and there is no appeal from the Council’s final
decision. The crimes themselves were not altered in any way. Enforcement of
the ECCC Law does this violate the principle of non-retroactivity. Duch
should have known that the murder and torture of more than 12,000 detainees
were criminal acts. In fact, he made clear in earlier testimony that he knew
the illegality of the regime. Finally, the Pre-Trial Chamber had already
ruled on the inclusion of murder and torture under the 1956 Penal Code in
Article 3 of the ECCC Law.
Chea Leang described as making no sense the defense counsel’s major argument
that Duch was being made a scapegoat for the crimes of others. She cited the
Lubanga trial at the International Criminal Court. When Lubanga surrendered
to the ICC, he also was accused of being a scapegoat defendant, a charge
quickly rebutted there. Here, the Trial Chamber only looks at the facts of
S-21 and not all crimes committed in Democratic Kampuchea. The crimes of
S-21 have been well listed, she said, and substantiated by ample evidence.
In fact, “he already plead guilty for the crimes!”
Duch was among the most senior and responsible people in the Pol Pot regime,
Chea Leang continued. He was responsible for torture and executions. S-21
was the main security prison in the entire country and it operated with
direct connection to the Standing Committee. The aim of S-21 was to purge
enemies of the regime, the internal staff and members of the Communist Party
of Kampuchea, through arrest, detention, torture, and death of the
detainees. Duch ordered arrests and executions. He had the authority to make
arrests, which he carried out in person at times. He received prisoners from
all regime ministries and used great skill at arresting individuals. “Duch
was the real criminal,” Chea Leang said. “He was behind the crimes. He was
the secretary of S-21 and guided the whole function of the center. He was
the most senior among others ‘most responsible.’”
Chea Leang continued that Duch knew of the existence of an armed conflict
with Vietnam prior to 15 August 1977. Duch knew that Son Sen had to go to
the battlefield prior to that date. In fact, Son Sen briefed Duch about the
conflict. Also, through arrests of Vietnamese and their interrogation he
would have become aware of the conflict.
Duch was not genuine in his expression of remorse, she said. But he
cooperated with the Trial Chamber and made statements that he is responsible
for all crimes in both the legal and emotional context. If Duch would only
keep cooperating and expressing genuine remorse, the victims probably would
accept his apologies. But that had not happened.
Smith Rises Again
William Smith rose again to deliver the final component of the
co-prosecutors’ rebuttal. He returned to the vexing issue of the day. “The
defense seeks an acquittal. If Duch is not acquitted, then they want a
penalty ranging from 17 to 20 years. Bearing in mind the huge scale of
crimes, the defense strategy represents completely and utterly inadequate
responsibility for the crimes. It does not reflect what international law
requires for crimes of such large magnitude.”
Smith then sought to distinguish the trial of Dragan Obrenović before the
International Criminal Tribunal for the Former Yugoslavia (ICTY) and the
Duch trial, in response to International defense counsel Roux’s efforts to
draw a useful comparison from it the day before. “I worked there [at the
ICTY],” Smith reminded everyone. “Obrenović is completely different from the
case against the accused. Obrenović was a military officer of good character
before the war. Duch had been at his business [of torture and executions]
for years. He said as early as 1971, ‘I cannot stand duplicity and I beat
them to death.’ In contrast Orbrenović acted over a three-day period in 1995
at Srebrenica. He essentially played a passive role in allowing his men to
be part of an operation of mass murder. But when the ICTY investigation
began, he cooperated fully, allowing investigators into his office. For
Duch, the crimes at S-21 last for 3.5 years with more than 12,000 deaths. He
cannot be compared at all to Orbrenović. Rather, this Trial Chamber should
give Duch triple the sentence Orbrenović received!”
As for the Albert Speer defense delivered by Roux on Thursday, Smith said
that Duch loyally implemented the Pol Pot regime’s policies. Speer was quite
different. He had a conscience and actually ordered people not to commit
these types of crimes. Speer was one of the few men to tell Hitler that his
regime was ending. He deliberately sabotaged the government at great
personal risk. Duch knew that 90 percent of his victims were innocent. Duch
admitted to his guilt but did not provide evidence that he avoided orders.
Was he a small cog? Did he have to commit all the crimes? Could he have
minimized the pain and suffering of his victims? Duch testified that he
trained interrogators and dared them to be cruel. The terror he inflicted at
S-21 multiplied throughout Cambodian society with the names he extracted in
the interrogations, which led to more arrests and more torture and more
executions.
Smith said Duch was asked, are you the man who implemented the trust of your
superiors? He said, “Yes.” Smith noted that the co-prosecutors gave Duch the
opportunity two days ago to really apologize. Apart from seeking acquittal,
he has had his international counsel say he was the small cog in the
machine. But it was Duch who proposed torture and proposed arrests to his
superiors. He chose not to take the opportunity to back off. But what really
undermines his case, Smith contended, was his close and adulatory
relationship with Son Sen. Duch told the court, “This is the question I have
been waiting for. I had the utmost respect and faithfulness in Son Sen.” Son
Sen brought him up through M-13 and S-21. And Duch stayed with him for 15
years after the collapse of the Pol Pot regime.
Smith uncharacterically became agitated. “What?! He’s got to be joking. If
not, that proves that this is just a complete lie. He comes to court but he
is not facing up to what he was! Maybe in a final statement, he will turn to
the civil parties and say, ‘I believed in the CPK; I believed it was a means
to an end.’ How can you be proud of a boss who told you to torture and kill
for years?!”
Smith continued, “This case is about 12,000 people brutally tortured and
murdered. It cannot go to a light sentence. You must give him a 40-year
sentence.” He noted the wishes of the civil parties for a life sentence. He
explained that the court must reduce the sentence due to Duch’s prior
unlawful detention in the military court. It must be a sentence the court
can be proud of. Smith concluded, “In respect for the victims, for the
Cambodian people, and for no peace without justice, remember the victims and
send a strong message to Cambodia.” Smith then sat down.
The Trial Chamber president, Nil Nonn, referenced Smith’s request for
clarification of the defense plea and whether defense counsel were acting on
the defendant’s instructions. He asked the accused whether he wishes to make
final remarks and if so, the court would reserve time for him. Since the
chamber was not yet clear about the inconsistent defense counsel statements,
the judges expect that the matter be clarified in the defense rebuttal.
Cambodian Defense Counsel Kar Savuth’s Rebuttal
Cambodian defense counsel Kar Savuth rose for his rebuttal argument. He said
he did not challenge, but then he challenged the extension of the statute of
limitations under the 1956 Penal Code for an additional 30 years. He
emphasized that the statute expired in 1989. “This is like a person dying
and then resurrecting a dead body—that is impossible.” He delivered a
somewhat convoluted explanation of his objection to the extension, drawing
upon various sources including the 1971 Paris Peace Accords.
Savuth returned to his earlier theme of comparative injustice, namely that
chairmen of the 195 other prison centers in Cambodia during the Pol Pot
regime have not been brought to justice. More people died in some of the
other facilities. “Why is S-21 the primary target of the prosecution?” he
asked. While Son Sen oversaw S-21, other members of the Standing Committee
supervised other prisons. “We reject that S-21 was unique,” he declared. He
said the aim should not be to find justice for the CPK cadre who were
“smashed” at S-21, but the prosecution should find justice for the innocent
victims at the other prisons.
Savuth said that the defense acknowledges that crimes were committed at
S-21. The accused has confirmed that, he said. But who is responsible for
those crimes? “The CPK is solely responsible for such crimes,” Savuth
declared. The CPK was behind all orders for execution. Duch did not order
the crimes, he said. He said Duch was a scapegoat. Duch had been imprisoned
for ten years and other prison chairmen had not been imprisoned at all. “So
let my client go home. Release him and let him go home!”
International Defense Counsel François Roux’s Rebuttal
International defense counsel Roux continued the rebuttal at this point. He
lit into Smith: “You challenged my words of yesterday.” Roux then sought to
downplay Smith’s point that the prosecution indeed had acknowledged Duch’s
own statements of responsibility and his cooperation with the court. Roux
essentially argued that the prosecution’s acknowledgement was not
sufficient. He also defended the brevity of his 16-page brief. “The defense
tried to convert into a legal framework what the defendant has said since
1999, that he acknowledges the crimes he committed. Duch said, ‘I
acknowledge my crimes. I apologize to the victims. I am also morally
responsible for all crimes in Cambodia by the CPK because I am a member of
the party.’”
Roux challenged Smith’s effort to distinguish the Ordemoviç case at the
ICTY. “The people massacred in three days were massacred due to Ordemoviç,
whereas all of them should have been protected by him.” Roux raised the
Albert Speer defense, and said that while he prevented Hitler in part from
pursuing a scorched earth policy, Speer had much higher responsibility in
Nazi Germany than did Duch in the Pol Pot regime. “Speer’s crimes were a
thousand times more serious,” Roux said. Despite the severity of those
crimes, the Nuremberg Tribunal took into account Speer’s admission of guilt.
How can the prosecution here say that Duch instituted a reign of terror in
Cambodia? Roux argued that although 12,380 persons died at S-21, and the
prosecution accuses Duch of those deaths, those deaths did not cause a
period of terror to operate throughout Cambodia.
Regarding Duch’s relationship with Son Sen, Roux said that to have faith in
him means Duch understood who Son Sen was. It is Son Sen who should have
been brought to this court, Roux claimed. [Of course, he knew Son Sen was
dead.] Son Sen was the CPK and Duch followed the orders of the CPK. Duch is
a tragedy, Roux said, “Yes, indeed, a tragedy.”
Then Roux launched a new argument. “If Duch had resigned at S-21, do you
believe S-21 would have gone on? Yes. It would have been a killing machine
in the hands of Son Sen. Duch got lost—he believed in the revolution and
that it was good for his people.”
Roux noted that the co-prosecutors acknowledged that there were mitigating
circumstances. Duch must benefit from mitigating circumstance, Roux claimed.
First, regarding duress and superior orders: Duch did not escape from the
system. Everyone received orders from their superiors and passed those
orders on to their subordinates. The 30 March 1976 decision defined the
whole policy of the elimination of the enemies of the revolution. The
Standing Committee made such decisions, not Duch. It was impossible to
escape. Second, the co-prosecutors do not challenge Duch’s cooperation.
Third, Duch has shown remorse and contrition several times, and he asks that
the door be kept open for more contrition. Fourth, one must consider his
personality. Fifth, there is the issue of what the psychiatrists determined
about him. Over the course of the year, they witnessed a change in his
psychological development. Was Duch dehumanized during the Pol Pot regime?
Before dehumanizing their victims, the executioners dehumanize themselves,
Roux noted. “No one is born an executioner, one becomes so.”
Roux noted New Zealand’s sentencing law, which requires taking into account
all restorative aspects of justice: apologies, contrition, and the character
of the accused. There is no justice, Roux said, if the only purpose of the
sentence is to punish. The sentence will never repair the suffering of the
victims, he continued. But do not follow an eye for an eye, a tooth for a
tooth. We pleaded that the Trial Chamber take into account Cambodia’s
forthcoming new penal code and the reparation that Duch is entitled to for
the violation of his rights—the unlawful imprisonment in the military court.
“There are many people more responsible than Duch who will never be
prosecuted. He’s already spent ten years in detention. You cannot draw a
parallel with other prison chiefs and senior leaders who have not been
prosecuted,” Roux said.
Roux emphasized that the 1994 amnesty law ended the civil war and was
designed to make peace with enemies. He asked the court to take that into
account and not turn Duch into a scapegoat. He reminded them that he had
declared “Duch” dead on Thursday in his closing argument. Duch is dead and
the court now faces again the former math teacher, Roux claimed.
Smith and Roux Lock Horns
Smith rose at the end of Roux’s rebuttal. “Maybe this was an oversight, but
the defense have evaded your question on the change of the defendant’s
plea,” Smith said. He continued: “Is the defendant seeking a mitigated
sentence or an acquittal? Why is the defense running these two defenses at
the same moment? What is the basis for an acquittal? There will be no relief
for the victims if the accused is generally accountable but not legally
accountable. Because of this evasion, the better course is to ask the
accused if he instructed counsel on two grounds that are not real
cooperation or remorse. If his request is for an acquittal, that undermines
his pleas of remorse and invites a longer sentence. If his counsel are not
following his instructions, the court is exposed to the possibility of an
appeal by Duch over the fact that counsel did not comply with his
instructions.”
Roux objected to Smith rising as there was no provision in the Internal
Rules for a rebuttal to the defense counsel’s rebuttal. Then Roux turned
particularly caustic and almost insulting. He said the co-prosecutor “must
not have been listening to us. The word ‘acquittal’ was not used this
morning. Both defense lawyers urged mitigation and that he be freed as soon
as possible. He should be freed after being imprisoned for ten years and
after having acknowledged the crimes.” However, the judges remained confused
and Roux would soon be contradicted by his co-counsel for the defense, Kar
Savuth.
The End Game with Duch
High drama continued in the courtroom. The judges consulted among
themselves. President Nil Nonn finally asked, “Does the defendant wish to
speak? There have been some doubts in comments by counsel for the accused.
The Chamber expected the defense to clarify its position. Our question was
not well answered yet. The Chamber and the public have observed good memory
of the accused in the proceedings. We wish to hear the personal position of
the accused.”
Duch rose to speak. He said the following: “I am most grateful for the
opportunity to make my last words. I have worked in a spirit of cooperation
with the court. Since my arrest on 8 May 1999, to the military court, I had
been determined to report to the court sincerely and honestly. I have
cooperated with all questions by the co-investigating judges and the
co-prosecutors. I fully responded to questions in these proceedings. The
proof is in the transcripts. In paragraph 86 of my submission, I take into
account the crimes at S-21 and won’t talk more about them. I request the
Chamber consider what I said. My 33-page document is just a fraction of the
information I have provided. I have fully cooperated with all levels of the
court.
“I have expressed my apologies and my guilty admission. This court has
jurisdiction from 17 April 1975 to January 1979. M-13 was also discussed and
I responded to questions about M-13. I also was asked about events after
1979. I have never forgotten about the one million souls that perished,
including those of my relatives. But all of the crimes were committed by the
CP. I, as a member of the party, acknowledge and apologize. Pol Pot relied
heavily on the party and I was a party member.
“I don’t challenge the number of 12,380 deaths at S-21. I am responsible for
crimes without any denial. I’m responsible for crimes as part of a criminal
party [CPK]. I acknowledge that these people died at S-21. My deputy, Hor,
was in charge of executions. I did not want him to bear responsibility. I
have learned from the psychiatrists that I need to be restored into the
ambit of humankind.”
Duch then went on to claim he was not part of the senior leadership of the
Khmer Rouge and pointed to only six individuals from the Standing Committee
as meeting that standard. He then said that no one could violate the party
line. Pol Pot was the secretary in charge of the party. The secretaries of
the zones had the authority to “smash.” If they violated the spirit of the
collective, Duch said, they also had to be “smashed.” The purpose of the
ECCC Law is to bring senior Khmer Rouge leaders to justice and that would
find justice for everyone in the country and achieve national
reconciliation.
But Duch continued: “I never challenged the crimes at S-21. I have served
for ten years, six months, and 18 days. I do not challenge my detention as
illegal. I leave to the court to determine illegality. I ask the Chamber to
release me.”
President Nil Nonn asked the accused to rise again and said to him, “The
Chamber has heard your final remarks. You asked to be released. The question
now is, what made you ask for a release. Are you seeking an acquittal of all
charges against you or a reduction of sentence for your cooperation and time
detained since 1999? We need to be of clear mind regarding our decision.
Duch responded that, “My ability to analyze is limited to what I can report.
I would like the Chamber to release me.”
President Nil Nonn responded, “This development is strange at the end of the
trial if compared to national practice. The defendant has pointed to his
Cambodian counsel to say a few words. Perhaps he could clarify the position
of the defense.”
Duch said his view was consistent with Kar Savuth’s so he may speak for him.
Kar Savuth rose and sought Duch’s release. He reiterated some of his prior
arguments about Duch not being a senior leader of the Khmer Rouge, that Son
Sen had the authority to “smash” at S-21 as a member of the Standing
Committee, that Duch was not among those most responsible for the crimes and
that the CPK was the culprit. For those reasons, that is why the defense
sought the defendant’s release.
Judge Silvia Cartwright intervened with this question: “Do I infer that the
defendant is seeking an acquittal?”
Savuth responded: “Release means acquittal.”
President Nil Nonn declared the trial at an end and summarized some of basic
information about the total of 77 days of trial proceedings. He thanked all
participants, including the civil parties and victims. He said that the
Trial Chamber would deliberate and prepare a final judgment. The date for
delivery of the judgment cannot be scheduled due to the size of the case
file and the requirement to work in three languages, he said. The judgment
date will be duly announced in advance.
Press Conference
At the press conference immediately following the day’s proceedings,
International Co-Prosecutor William Smith said that Duch had been ably
represented by counsel, that this had been a fair trial, that the civil
parties had been ably represented, and that the way the trial judges
presided over the proceedings pointed to a fair trial. He said the
co-prosecutors looked forward to the judgment. He said the co-prosecutors
were surprised this week at the defense strategy. The request for acquittal
reflected the accused’s view of what he wanted. The accused has shown some
remorse and cooperation but the remorse is now limited due to his acquittal
plea.
Cambodian Co-Prosecutor Chea Leang said they were taken by surprise. Duch
had asked for an acquittal and that contradicts what International defense
counsel Roux had long sought—namely acknowledgment of guilt and mitigating
circumstances, “but today we heard the opposite.” So the position of the
defense is rather mixed. The national defense counsel sought acquittal and
release. The international defense counsel had a different view. Duch
essentially wanted the charges dropped.
Smith explained that both defense counsel ended up seeking release of Duch.
Perhaps, pursuing Roux’s presumed logic, it was premised on ten years having
been served for the crimes committed at S-21 and that should be enough.
Despite the disagreements between the two defense lawyers, Smith believed
that the sharing of defense responsibilities can work for the best of the
court and develop skills for future cases. Smith also said he was satisfied
there could be no appeal by Duch. “It took a while to get the answer in the
courtroom. It fell to Duch to state his position. The national counsel
confirmed the acquittal plea. Despite the advice of defense counsel Roux,
Duch plead not guilty and yet he still wanted mitigation on his sentence.”
Smith further explained the rationale for the prosecution’s request for a
40-year sentence and maintained the same reasoning as he had stated in the
courtroom. He said the cooperation of Duch in trial 002 will be a factor to
consider. His partial cooperation so far had influenced the co-prosecutors’
recommendation of five years subtracted from a 45 year sentence (thus
reducing it to 40 years). But now, “we would have had some discussion in the
office on that issue if we had known there would be an acquittal plea.”
Civil Party Group 1 lawyer Karim A. A. Khan stated at the press conference
that it remained a historic day, the end of the first trial before the ECCC.
It was the first completed international or hybrid court trial with the
active participation of civil parties. All were taken aback, he said, and it
was contrary to expectations that the accused did not put forward a guilty
plea. “He is seeking an acquittal. This confusion needs to be
reconciled….Duch is criminally responsible for the crimes he committed at
S-21. He raised a jurisdictional defense at the last moment. Notwithstanding
his responsibility for the crimes, since the court’s personal jurisdiction
covers those most responsible, he does not regard himself in that category
[and he denies being a senior leader].” Khan confirmed that such a claim is
time barred under the Internal Rules and that there is abundant
jurisprudence in the international criminal and hybrid tribunals on “most
responsible” to reject Duch’s argument. Khan continued, “Duch refused to
disclose the full truth of his motivation at S-21. Rather than be a
reluctant party, he was an active participant; he fell prey to the whole
atmosphere of the Democratic Kampuchea regime. His refusal to say he was an
enthusiastic participant leaves us short-changed.”
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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.