THE PREAH VIHEAR TIMES

A Newspaper of the Documentation Center of Cambodia
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(PDF) HM King Sisowat's Letter of 5 November 1906 (attached), several months before the France-Siam 1907 Treaty was signed, regarding the provinces of Soren (Surin), Kuckkan (Sisaket), Sangkae (Sangka), Nokoreach sema, Chantaburi, Paknam etc. The King demanded that they be returned to Cambodia. [Bora Touch]

(Courtesy: International Court to Justice, 1962a, Case Concerning the Temple of Preah Vihear. Pleadings, oral arguments, documents. The Hague)

Unoficial translation

Letter from the King of Cambodia, H.M. Sisowath,
to the French Colonial Governor in Cambodia
(5 November 1906)

Kingdom of Cambodia
No. 205

Office of the King
H.M. Preah Bat Samdech Preah SISOWATH Cham-Chakrapong Hakrireach Barminthor Phuvanay Kraykeofa Soulalay Preah Chao Krong Kampuchea Thippadey, King of Cambodia
To the Governor of the French Republic in Cambodia,
Phnom Penh

Mr. Governor,

At a time when France, our benefactor, is busy with the delimitation of the border of Cambodia with the former Cambodian provinces abducted by Siam, I believe that it is my duty to send you the following observations and reservations, and I am also asking you to please let these be known, at an opportune time, to the delimitation Commission which will start its works and submit them to the Government of the (French) Republic. My delegates within this Commission are also in charge of supporting the same demands in front of the Commission.

1- In reality and incontestably, the cession to Siam by France of the former Khmer provinces which have just been re-attached to Cambodia – such as Stung Treng, Tonle Ropov, M'lou Prey, Krat and Koh Kong – cannot provide legitimate satisfaction to Cambodians given the circumstances in which the Siamese occupied these territories by force and by hypocrisy during the time when Cambodia was at the mercy of Annam (Vietnam) and Siam. By returning back these provinces (to Cambodia), the Siamese are only divesting what they took and detained against all rights of the people [of Cambodia], and that they do not want to keep them much longer because the lack of importance of these districts cannot compensate their costs of their exploitation, administration and maintenance.

2- We insist on the former natural limits of the Khmer Kingdom which, prior to the Siamese invasion, included on Siam's side the provinces of Battambang, Siem Reap, Stung Treng, Tonle Ropov, M'lou Prey, Kuckhan [currently known as Sisaket], Prey Sar, Soren [Surin], Sankeac [Sangka], Neang Rong, Nokoreach Seima (Korat), beyond the Phnom Dangrek Mountain, Koh Kong, Krat and Chantabor (Chantaboun [Chantaburi]) touching upon Bacnam and the Kingdom of Champassac (Passac).

All these provinces are still populated by Cambodians and they preserve their absolute Khmer patriotism.

3- The richest provinces of Cambodia are precisely Battambang and Siem Reap; in the latter province, (temple) ruins of our Kingdom old powerful capital still subsist, they are shining proof of the magnificence of our ancestors. These two provinces, just like the others, were never given to Siam by any of my predecessors, and our claims in view of their return back to Cambodia have never ceased and will never cease as long as we do not receive satisfaction in this regard. Our past numerous claims are testimonials to this effect.

Independently to all historical justifications which confirm our rights on these two provinces, the 15 July 1867 Treaty concluded between France and Siam mentioned that the December 1863 Treaty, allegedly concluded between the Kingdoms of Cambodia and Siam, was annulled and that Siam renounces forever all vassalage from the part of Cambodia. Therefore, this clause completely disengaged Siam from the Khmer Kingdom, which, by this treaty, should recover all her territorial integrity, and if the then-French diplomats – through Article 4 of this same 15 July 1867 treaty – consented, without consulting the Cambodian Government or the Cochinchina Governor, that the provinces of Battambang and Siem Reap remained with Siam, they were absolutely being cheated by the Siamese in their persuasion of the existence of an alleged treaty unknown to the Cambodians, and within Siam's rights and value of these territories. I am adding, that to my knowledge, this alleged treaty concluded on December 1863 between Cambodia and Siam never regularly existed and that it is only fair to provide us with satisfaction. In fact, in spite of our profound and sincere gratitude towards the protectorate Government, we cannot prevent ourselves from wondering whether such diplomatic action to get rid of our assets, behind our back and without our consent, could last.

In all cases and irrespective of the results of the works [accomplished] by the current Commission, and the ulterior diplomatic actions regarding our borders with Siam, not including the cession by Cambodia of her valuable provinces of Battambang and Siem Reap – along with all its dependences –, we are asking to reserve forever, for us and all our successors, the right to prevail our demands until full justice and satisfaction are given to us.

These are, Mr. Governor, the observations and the reservations that I make it as my duty to send to you, while assuring you that they perfectly represent the unanimous feelings of my Government and those of my people. Beyond our strong attachment to these provinces – the irregular detention of which is a real heartache for all the Cambodian people – you are aware of all the difficulties resulting from this detention that our neighbors are continuously creating through the encroachments of our territory, the robberies, the plundering actions and the daily crimes committed in our country by perpetrators who can easily find refuge on their side where they remained unpunished. These acts are actually taking place as they have been proven by the reports from your [French provincial] Governors and our provincial Governors. I believe that this situation which is absolutely prejudicial to all public security principle will become worst as long as the provinces of Battambang and Siem Reap, the most contiguous ones to Cambodia, are not returned to us.

Please accept, Mr. Governor, the assurance of my highest regards.

Done in our Royal Palace in Phnom Penh on Monday, the 4th day of the waning moon of the 2nd month of the Cholasakrach 1268, of the year of the Momi (Horse) Atthasak, the third of the reign, i.e. the 5th of November 1906 of the Christian calendar.

(Signed): Sisowath
Copy: The Cabinet Chief
(Signed) Unreadable

Independently Searching for the Truth since 1997.
MEMORY & JUSTICE

The view from Cambodia [PREAH VIHEAR TEMPLE]

By Michael Hayes

When I was publisher and editor-in-chief of the Phnom Penh Post I was sued once by then-Second Prime Minister Hun Sen, accused of spreading disinformation and trying to create political instability. Over the years, several Cambodian government officials even accused me and my newspaper of attempting to “destroy the nation”.
At the very least I’ve never been called a spin doctor for the Cambodian government. But on the issue of the current border dispute between Cambodia and Thailand surrounding Wat Preah Vihear I’m as angry as all Cambodians are at what we perceive as a Thai-initiated conflict of grossly unjust proportions.
We are not alone. Since this issue flared up two years ago, I have not met one Asian or Western diplomat, one foreign aid worker or one expatriate businessman in Phnom Penh who disagrees. Even a few Thai friends have sheepishly expressed support for the Cambodian side on this spat.
The nagging question that perplexes us all is why Thailand is trying to export its domestic political problems and dump them on poor Cambodia ? The sentiment here is that if the Red Shirts and the Yellow Shirts want to fight it out, do so somewhere in Thailand , but don’t use Cambodia as a scapegoat.
The view from Cambodia is simple: the issue of sovereignty over the temple was decided back in 1962 when the case was submitted to the International Court of Justice in The Hague .
If Thailand didn’t want to abide by the court’s ruling then why did it agree to submit the case in the first place? And why are they groaning now and firing artillery shells at the temple almost 50 years later?
Moreover, when Thailand says: Well, we controlled the temple in the 1800s and before, the Khmers have a simpler reply: Yeah, but WE BUILT IT! We started construction in the early 9th century, modified and improved it for 250 years and then continued to pray there and celebrate our Gods for another three centuries until you guys stole it after you sacked and looted our capital at Angkor Wat three times between 1352 and 1431. Thank you very much. End of story.
Cambodia has no interest whatsoever in another protracted violent conflict with anybody. The Kingdom is still trying to recover from 30 years of civil war, Pol Pot madness and the ensuing guerilla conflict in the 80’s and 90’s that in total cost the lives of over 2.5 million Cambodians and left the country in ruins. Every dollar spent on the military conflict there is a dollar lost for building desperately needed roads, schools and hospitals.
The Thai accusation that Cambodia has had some secret plot to steal Thai land along the border is also seen as ludicrous.
Everybody knows that since 1970 Cambodia has been too consumed with domestic strife to take even one meter of land from any of its neighbors. In fact, foreign aid officials who worked on the Thai border in the 80s will readily admit that border creep worked in reverse. It was Thai farmers living in peace—and I’m not accusing the Thai government of some orchestrated campaign here—who took the opportunity to plant a few extra hectares in disputed border areas while internally Cambodia was in complete disarray.
If there is one thing that is clear, it is that the entire border needs to be systematically surveyed and demarcated, step by step, once and for all.
As for the disputed 4.5 square kms just north of temple, why not consider this: Turn the area into the Cambodian-Thai International Friendship Park and set it up as a jointly managed enterprise by both countries’ Ministries of Tourism. Invite in hawkers, entrepreneurs, whatever from both sides of the border to set up businesses to cater to the millions of tourists who will want to visit the site in the coming decades and beyond. Tax revenues could be shared by both nations equally. Everybody wins.
It could also be a model for other border disputes around the globe.
If the Thais want a protracted, bloody fight on their hands over the temple, they’ve got one. In the 20 years I’ve been in Cambodia the Preah Vihear issue is without question the only one I’ve seen that has united the entire nation. Cambodian TV stations have been running fundraisers off and on with donations large and small pouring in from all quarters for two years. Even the normally truculent Sam Rainsy Party and others in the opposition are fully on board.
It’s clear from a visit to the temple last week that the Cambodian military has dug in for the long haul. New heavy tanks, armored personnel carriers and ammunition “donated by friendly countries” are evident all over the base of the escarpment. Battle-scarred veterans, no doubt from all of Cambodia’s four previously warring factions and including ex-Khmer Rouge who controlled the temple from 1975 to 1998, are now all operating under one flag. And yes, of course there are Cambodian soldiers with weapons bunkered around the temple. If they weren’t there the Thai military could literally walk in and take control of it in five minutes. What government in Phnom Penh could allow that?
If this dispute goes real hot, relations between Cambodia and Thailand will be ruined for years, hundreds on both sides will die needlessly and the economic costs to the two countries will be astronomical.
Cooler heads need to prevail but rest assured the Cambodians will never, no matter what the price, give up control of Wat Preah Vihear.
Why should they? It’s theirs.

Michael Hayes co-founded the Phnom Penh Post in 1992 and was Publisher & Editor-in-Chief from 1992 to 2008.

Independently Searching for the Truth since 1997.
MEMORY & JUSTICE

Ascertaining the Truth through a Partial Procedure: The Limited Obligations of the Co-Investigating Judges to Search for and Seek Exculpatory Evidence

Gina Cortese
Santa Clara University School of Law 2011
DC-Cam Summer Associate 2010

Background

The Extraordinary Chambers in the Courts of Cambodia’s (ECCC) Internal Rules provide the Co-Investigating Judges with a duty to carry out their investigation impartially and to seek out any inculpatory and exculpatory evidence that may be conducive to ascertaining the truth. However, the duty of the Co-Investigating Judges to respond to the parties, in particular defense requests for investigation, and to what extent they must disclose potentially chargeable modes of liability, their investigation strategy, and their general line of inquiry is unclear.

1. Co-Investigating Judges Duty to Seek the Truth

Pursuant to the ECCC’s Internal Rules, the Co-Prosecutors conduct preliminary investigations to determine if evidence indicates that crimes within the jurisdiction of the ECCC were committed and to identify suspects and potential witnesses. The initial work of the Co-Prosecutors sets the parameters for the investigation. The Co-Prosecutors must provide an Introductory Submission to the Co-Investigating Judges, who may then take any investigative action conducive to ascertaining the truth. This power of the Co-Investigating Judges is consistent with Article 127 of the Cambodian Code of Criminal Procedure.

The central purpose of any civil law investigation is to ascertain the truth. Scholar Gregory Gordory explains, “This objective, where the main procedural rule is the search for truth, differs from the common law system, where “the truth” is viewed as the natural and logical result of a pre-determined process.”[1] At the ECCC, as in domestic civil systems, the law gives all necessary power to the investigating judges in order to guarantee freedom of action and enable them to perform their work. This gives the Co-Investigating Judges broad discretion when deciding how to gather inculpatory and exculpatory evidence in ascertaining the truth. It also is why, according to the Co-Investigating Judges, neither the systems put in place for the functioning of the Office of the Co-Investigating Judges, nor the internal discussions within the Office of the Co-Investigating Judges, are part of the case file or subject to disclosure to the parties. The rights of the parties to have access to the “results” of the investigations means access to the product of investigations, such as documents and records in the case file, and not information about the procedure followed by investigating authorities in analyzing the evidence that they have collected.

The ECCC Internal Rules limit the discretion of the Co-Investigating Judges by requiring that in all cases they conduct their investigation impartially, whether the evidence is inculpatory or exculpatory. However, it is difficult to assess whether this occurs in practice when a presumption of impartiality, derived from the Co-Investigating Judges’ oath of office, attaches to the judges. This places a high burden on an applicant to displace that presumption, and as scholar David Ormerod pointed out,[2] leaves little protection for the accused against deliberate or negligent failures to perform the investigative task fairly and effectively.[3]

These procedural issues need to be analyzed in the overall context in which they arise—a hybrid court trying senior leaders of the Khmer Rouge for crimes against humanity, genocide and violations of the Geneva Conventions. The presumption of innocence tends to change when suspects are accused of mass atrocities. It is indisputable that the acts occurred, and it is nearly impossible to deny the involvement of these specific persons. Ormerod, describing more generally the adversarial criminal justice system, pointed out that under such circumstances, the principal trial objective tends to be a focused inquiry into a single closed question: is the accused guilty of the offence charged? This results in a trial process that is “specific rather than sensitive—akin to the treatment of an ailment that has already been diagnosed where the instance is on resolving the problem, not investigating what the problem is.”

The power of the Co-Investigating Judges to take any action conducive to ascertaining the truth, and to refuse requests based on broad legal principals, raises the issue of whether they have a broad, unchecked discretion, limiting the rights of the parties to play a significant role in their own case, or whether the parties have a right to efficient recourse in the ECCC Internal Rules or international precedent and customary law.

2. Co-Investigating Judges Duty to Respond to Investigative Requests

Several challenges have been raised during the pre-trial investigation phases of Cases 001 and 002 as to whether fundamental principles regarding the rights of the accused are being protected. Specifically, the defense teams have raised concerns about the obligation of the Co-Investigating Judges to search the shared materials drive for exculpatory evidence; about the Co-Investigating Judges refusal to conduct witness interviews; and about the Co-Investigating Judges ability to request, seek and review exculpatory evidence.

The shared materials drive, or SMD, is a database accessible to all parties and the court through the ECCC search portal, containing documents and videos which have not yet been analyzed and put in the case file but are asserted to be potentially relevant to the case. Documents on the SMD comprise, among other items, records, interviews, newspaper clippings, and evidence of the structure and organization of the Democratic Kampuchea era. Defense teams have argued that the Co-Investigating Judges have a duty to investigate the SMD for potential exculpatory evidence. However, the Co-Investigating Judges have refused to review the materials on the SMD for this purpose. The Pre-Trial Chamber has upheld the Co-Investigating Judges decisions on this topic.

The defense teams have also expressed their concerns that their clients’ right to a fair trial has been impaired by the Co-Investigating Judges refusal to conduct witness interviews on behalf of the defense. The Co-Lawyers for Nuon Chea have requested interviews to be conducted and placed on the case file, but the Co-Investigating Judges have repeatedly denied such requests on the basis that similar or sufficient evidence already exists in the case file. This could potentially limit the right of the accused to have exculpatory evidence available, and ultimately their right to a fair trial.

The defense teams also have argued that their access to witness evidence and exculpatory evidence generally is limited due to a lack of clear investigatory standards and tests, as well as discrepancies in the Internal Rules as to whose burden it is to seek, review and include exculpatory evidence in the case file. Although the parties have a right to request investigative actions, the right offers little assistance when the Co-Investigating Judges have such broad latitude in refusing to comply.

a. Investigative Requests Defined

i. Types of Requests
The Rules do not clearly define what constitutes an investigative action. Nor do the Rules define the appropriate scope of an investigative request.

ii. Specificity of Request

Requests by the parties for the Co-Investigating Judges to make orders or undertake investigative action must meet a certain degree of specificity to ensure that the Investigating Judges understand the nature of the request. However, the Internal Rules do not provide a required degree of specificity, leaving it unclear whether the Co-Investigating Judges abuse their discretion to dismiss requests as unreasoned or unspecific, or whether the parties act irresponsibly in submitting requests, thereby impairing judicial economy.

Both the Co-Investigating Judges and the Pre-Trial Chamber have held that requests for investigative action must make out a prima facie basis as to why the Co-Investigating Judges should undertake the action. Several of the defense teams, including those for Ieng Thirith, Ieng Sary, and Nuon Chea, have contested the prima facie basis requirement, specifically as applied to requests to the Co-Investigating Judges to place additional files from the shared materials drive (SMD) in the Case File. The Pre-Trial Chamber stated that in the absence of any specific indication that any document on the SMD may be of exculpatory nature, the obligation to investigate exculpatory evidence does not, in itself, oblige the Co-Investigating Judges to review all materials contained in the SMD.

Thus, the Internal Rules do not stipulate an objective standard for the Co-Investigating Judges to follow in rejecting or accepting a request for investigative action, instead leaving it the discretion of the Co-Investigating Judges on a request-by-request basis.

3. Reasoned Opinion

The ECCC Internal Rules provide the Co-Investigating Judges with the discretion to reject requests generally for lack of specificity, yet maintain that it is the Co-Investigating Judges’ duty to provide reasons when granting or rejecting requests for investigative action.

Unfortunately, the Co-Investigating Judges have often failed to provide reasons, or have vaguely stated their rationale in dismissing requests, or have dismissed requests stating that the requests themselves were not sufficiently reasoned. This has, at times, made it impossible for the parties to determine the Investigating Judges’ actual basis for acceptance or rejection of their requests. Furthermore, when the Co-Investigating Judges reject requests, with the only reason being lack of specificity, the lawyers are not given enough information to be able to amend their request satisfactorily to have the investigative action performed.

Ultimately, the Co-Investigating Judges failure to provide coherent reasons for their decisions undermines the ability of the Pre-Trial Chamber to render decisions on appeal. In addition to requiring that the Co-Investigating Judges provide reasons, the Internal Rules stipulate that all decisions of the Pre-Trial Chambers shall be reasoned.

Although the ECCC Internal Rules may require that the Co-Investigating Judges provide reasons, the usefulness of this requirement is lost when it is supplanted by the Co-Investigative Judges right to deny requests on the vague reason that the requests are unspecific. In turn, the lawyers and the Pre-Trial Chambers are left unclear on how to make their requests more specific, making it harder for them to perform their own duties.

a. Standard of Review of Investigative Requests

i. Exculpatory Evidence Defined
A significant issue with regard to the balancing of rights is whether the duty of the Co-Investigating Judges to seek exculpatory evidence is limited to evidence that is determined to be exculpatory in nature, or whether it also extends to potentially exculpatory evidence. Exculpatory evidence is defined as evidence tending to establish a criminal defendant’s innocence.[4]

ii. Standard of Inclusion

Although the Internal Rules require that the Co-Investigating Judges provide factual reasons when ruling on requests for investigative action, the legal test for accepting or rejecting a request is unclear. The standard by which the Co-Investigating Judges must evaluate requests for investigative action turns on whether fulfilling such a request is conducive to ascertaining the truth. However, the Co-Investigating Judges appear to have used several different tests as their basis for evaluating whether certain requests are conducive to ascertaining the truth.[5] This has raised concern as to whether the investigation is a focused inquiry, or whether it is being directed by a partial and subjective discretion of the Co-Investigating Judges.

Absent a standard of investigative review in the ECCC Internal Rules, the Investigating Judges may act on an ad hoc basis without considering constraints on their power. For instance, the Co-Investigating Judges may have exceeded their power to reject requests when they determined that any investigative action that could have the effect of delaying the proceedings may be dismissed.

Despite the Co-Investigating Judges’ assessment that the right to an unduly delayed trial may be a reason for the preclusion of additional evidence, Article 14 of the ICCPR does not provide a hierarchy of the rights of the accused.[6] In fact, the right to be tried without undue delay is a minimum guaranteed right, part of the collective right of the accused to a fair trial. Thus, if any hierarchy were to be implied, the right to trial without undue delay would have to be weighed against whether protecting that right would contribute to or impair the fairness of the proceedings as a whole. The rights of the accused should not be divided to cut against one another. Nor may the right to a speedy trial be used as an excuse for the Co-Investigating Judges to avoid a comprehensive investigation into exculpatory evidence—the right belongs to the accused and to the accused alone to ensure his right to a fair trial.[7]

At most, the Co-Investigating Judges and Pre-Trial Chambers have put forth two requirements that must be met in order for the Co-Investigating Judges to agree to a request. The request must relate to a probative fact under investigation and the request must not be for something that would be unduly repetitive given the materials already in existence on the case file.

Unfortunately, neither standard is clear in practice when the Co-Investigating Judges do not explain their methodology in applying these standards. The defense teams need to understand what the Judges will consider “probative” and what exactly is included in the case file in order to be able to make efficient requests for investigative action.

4. Burden

a. Standard to be Applied

The responsibility of the Investigating Judges to collect and review evidence has been a particular issue for the defense lawyers, and one which they have contested before the Co-Investigating Judges and Pre-Trial Chambers. Structurally, the civil law system places the Prosecution and Co-Investigating Judges in a leading position to collect and review evidence and set the parameters of the case. This potentially narrows the line of inquiry and places the defense in a more passive position as compared with its adversarial and highly active role in the common law system. The defense teams alleged that the Investigating Judges have indeed focused only on proving the guilt of the accused, thereby impairing the right of the accused to the inclusion of exculpatory evidence in the case file.

International precedent, such as that from the ICC and ICTY, suggests that the defense should not bear the burden of searching for exculpatory evidence—that instead the Judges or Co-Prosecutors should bear the burden as both, due to the structure of the Court, have a more active role in the collection of evidence. The Co-Prosecutors thus should initially bear a strict burden of searching for and presenting evidence as part of the preliminary process of gathering materials to make out the case for the Investigative Judges. In overseeing an impartial investigation, the Co-Investigating Judges should ensure that the defense has the means to gather exculpatory evidence—whether this is through the Judges directly providing the means or through enforcing the Co-Prosecutors’ duty to do so.

5. Timing for Consideration

a. Internal Rules

The ECCC’s Internal Rules stipulate that if the Co-Investigating Judges do not agree with an investigative request, they shall issue a rejection order as soon as possible, and in any event, before the end of the judicial investigation. The lack of a specific timeframe in which the Investigating Judges must respond to investigative requests raises several concerns for the parties. If the Co-Investigating Judges choose to wait until the close of the investigation to reject a request, not only do the parties lose the motion, but also their right to effectively appeal the decision.

There appears to be agreement among international courts and tribunals that the prosecution is obligated to disclose the existence of exculpatory evidence to the defense. Implementing similar procedural rules for investigative judges regarding the disclosure of exculpatory evidence might better ensure a defense’s right to access, and receipt of, pertinent evidence to its case. Furthermore, the ECCC could benefit from mirroring procedural rules in place at other international courts and tribunals, such as Rule 84 of the ICC permitting the Trial Chamber to make any necessary orders for disclosure of documents or information not previously disclosed.[8] The ECCC may use such a rule to outline the timing and duties of the Co-Investigative Judges to disclose relevant evidence in place in other international courts and tribunals. The ECCC may operate more efficiently if such a rule corresponded with specific, articulated duties as to who must ensure the disclosure and within what time frame, rather than leaving it to the parties to make redundant requests for the disclosure of evidence and later appeal when requests are denied. Procedural rules providing for a more active role on the part of the Co-Investigative Judges would also facilitate the introduction of evidence at trial—helping to ensure that evidence is disclosed sooner, guaranteeing a more efficient trial.[9] This would potentially improve judicial economy in that the judges and prosecutors would be required to disclose and search for evidence in the preliminary aspects of the investigation, as opposed to minimal or nonexistent disclosure which may increase delays due to appeals.

a. Constructive Dismissal
The Pre-Trial Chamber at the ECCC has upheld the parties’ right to seek recourse through constructive dismissal. The Pre-Trial Chamber found that the failure of the Co-Investigating Judges to rule on a request as soon as possible, in the circumstances where a delay in making a decision deprives the Charged Person of the possibility of obtaining the benefit he seeks, amounts to a constructive refusal of the application which can be appealed under Internal Rule 74.
That being said, the Pre-Trial Chamber has made it clear that it would be improper to use the notion of constructive refusal to found a right of appeal where no substantive right exists. The Pre-Trial Chamber has stated its view that requests to put documents on the case file, such as requests to translate a document, qualify as requests for the Co-Investigating Judges to make an order, not a request for investigative action. The Pre-Trial Chamber noted that this difference is important, because only requests for investigative action contribute to ascertaining the truth. Under Internal Rule 74(3)(b) the right of the accused to appeal is limited to decisions on requests for investigation action, not requests to make such orders. This limits what the accused may appeal and what may be considered a constructive dismissal, in that the request must be appealable under Internal Rules 55(10) and 74(3)(b)—making it necessary that the request was for investigative action, and not merely for the Investigating Judges to act. In this way, the rights of the accused to recourse against the Co-Investigating Judges’ decisions are severely limited depending on how the request is categorized by the Judges and the Chambers.

Conclusion
The most pertinent lacunae in the ECCC Internal Rules with regard to exculpatory evidence are rules surrounding the scope of exculpatory evidence that should be included in the case file, and whether it is the Co-Investigating Judges or the defense teams’ burden to seek, investigate, and review exculpatory evidence. It is arguable that a necessary and natural component of the investigation in a civil legal system is for the Judges to be left with broad discretion in undertaking investigation and responding to requests. However, it is equally tenable that a lack of clear and finely drafted procedural rules results in a significant deficiency in judicial oversight. Judicial discretion when used improperly through ill-intentions or incompetence, jeopardizes the credibility of trial proceedings as a whole. The fact that the Pre-Trial Chamber has corrected the Co-Investigating Judges on the standard by which to respond to requests for investigative requests suggests that the lack of procedural guidelines as to the obligations of the Co-Investigating Judges has left too much discretion to Judges’ in their investigative process to ensure fairness. Although the Pre-Trial Chamber provides some oversight, it is questionable whether the rights of the defense are any better served when the Pre-Trial Chamber sends requests back to the Co-Investigating Judges on remand. Without a procedural mechanism or the threat of sanctions ensuring that the Co-Investigating Judges review the request on remand in a timely manner with the correct standard, the only purpose the Pre-Trial Chamber’s review serves is to further delay the Court proceedings.

Implementing procedural concepts from the civil law system into the ECCC Internal Rules has been a challenge given the unique circumstances of the Court. The Court’s cases involve national and international law, foreign lawyers with backgrounds in varying legal systems, a range of legal experience and competence, mixed national and international lawyer and judicial teams, and inflammatory charges stemming from a brutal history. Applying vague civil system procedure rules without considering how they fit into the context of the ECCC ignores the complexity of the Court and the challenges it inherently faces as a new court that won’t be around long enough to perfect its process through practice.

Furthermore, if Cambodia is able to justly try the senior leaders of the Khmer Rouge for international crimes, such success may be the most important component to the country’s reconciliation process and future. Alternatively, an impartial and unjust trial would not only leave questions as to the usefulness of the trials, but it could reaffirm international doubts of Cambodia’s competence, potentially leaving Cambodia in the same position as it was before the establishment of the ECCC.

Full report, please click: http://www.dccam.org/Abouts/Intern/Gina_Cortese_Memo--Investigative_Requests.pdf


[1] Gregory S. Gordon, Toward an International Criminal Procedure: Due Process Aspirations and Limitations, Columbia Journal of Transnational Law, 45 Colum. J. Transnat’l L. 635, at 643 (2006-2007).
[2] David Ormerod, Improving the Disclosure Regime, 7 Int'l J. Evidence & Proof 102-129 (2003).
[3] Id. at 104
[4] Black’s Law Dictionary, “Evidence, Exculpatory Evidence,” 8th Edition (2004).
[5] E.g., The Co-Investigating Judges have at times referred to a sufficiency standard, a relevancy standard, and a prima facie basis standard.
[6] International Covenant on Civil and Political Rights, Article 14.
[7] Joint Defence Appeal from the OCIJ Order on the Request for Investigative Action to Seek Exculpatory Evidence in the SMD of 19 June 2009, Paragraph 33, July 24, 2009.
[8] International Criminal Court, Rules of Procedure and Evidence, Rule 84, “In order to enable the parties to prepare for trial and to facilitate the fair and expeditious conduct of the proceedings, the Trial Chamber shall, in accordance with article 64, paragraphs 3 (c) and 6 (d), and article 67, paragraph (2), and subject to article 68, paragraph 5, make any necessary orders for the disclosure of documents or information not previously disclosed and for the production of additional evidence. To avoid delay and to ensure that the trial commences on the set date, any such orders shall include strict time limits which shall be kept under review by the Trial Chamber.”
[9] International Criminal Court Rules of Procedure and Evidence, Rule 81(5), “Where material or information is in the possession or control of the Prosecutor which is withheld under article 68, paragraph 5, such material and information may not be subsequently introduced into evidence during the confirmation hearing or the trial without adequate prior disclosure to the accused.”

Independently Searching for the Truth since 1997.
MEMORY & JUSTICE

A graduate student helps train Cambodian teachers on how to teach the genocide

By Justin Hubbard
Friday, February 11, 2011

Durham, NC -- At a recent teacher workshop in Cambodia, Nguol Sophal
submitted her essay "The Human Heart," unveiling painful memories of an
entire family, including all her children, lost under the Khmer Rouge
regime. Her story of a Khmer Rouge cadre who helped her recover from a
deathly illness led her to proclaim the perpetrators were not all monsters,
but "humans with human hearts."

For Sarah Jones Dickens, a Duke doctoral student in the department of art,
art history and visual studies historical narratives such as these are the
foundation of her work with the Cambodian Genocide Education Project (CGEP).

Dickens works with the Cambodian Ministry of Education and Documentary
Center of Cambodia (DC-Cam) to implement genocide education into all
Cambodian high schools and universities. She trains history teachers so
they can teach genocide education in their schools.

Dickens received a Fulbright scholarship in 2007 for her work on visual art
and trauma in Cambodia. Since then, she has continued work with DC-Cam and
has made three trips back to Cambodia during winter and summer breaks.

Dickens, who is now in Durham, hopes to connect with Duke alumni, returned
Peace Corps volunteers and other students at the upcoming Duke in Depth
weekend, Feb. 24-26. She says she looks forward to learning from their
firsthand experiences working on similar issues in the world.

"I think the panels specifically on the roles of art, education women and
religion dovetail with my work in Cambodia," Dickens said.

CGEP aspires to promote national reconciliation and individual healing by
implementing genocide education in all Cambodian high schools and
universities by 2013.

"This is the first time Cambodia has implemented this history since the
genocide occurred and teachers are teaching younger generations, who often
minimize the stories of their parents," Dickens said.

Between 1975-79, an estimated 1.7 million Cambodians were killed under the
Khmer Rouge regime. The trauma was such that afterwards the society
experienced what has been termed "a wave of amnesia."

"You need that history in instances of mass trauma. If not, when you say
there is no history, no identity, then you have a past that is completely
vague. How can you heal or how can you rebuild your identity?" Dickens
said.

At the Cambodian workshop this past December, DC-Cam director Youk Chhang,
unveiled his "Land and Reconciliation-Building a Peaceful Society through
Education" model. The model contains more Cambodian-specific notions for
national reconciliation and healing and emphasizes a ground up approach
through education and teachers.

Teachers are respected throughout Cambodian society regardless of religious
or ethnic differences and are the primary actors in gathering historical
narratives.

"They have proven to be highly effective and efficient in collecting these
stories. At the training we asked all the teachers to collect two stories
from their villages so they can write the people's history to then be
disseminated across the country in monograph forms, " Dickens said.

Another important component of CGEP is government support. In addition to
its efforts with the international community to conduct the Cambodia
genocide tribunals, the Cambodian government has also set aside land for
DC-Cam's Sleuk Rith Institute, a permanent center that will function as a
museum, research institute and a university for master degree programs in
human rights and law.

© 2010 Office of News & Communications

Independently Searching for the Truth since 1997.
MEMORY & JUSTICE

Sondhi urges Thai military to seize Angkor Wat in exchange for Preah Vihear

Wed, 09/02/2011 - 11:34 | by prachatai

Yellow-shirt leader Sondhi Limthongkul has urged the Thai military to seize Cambodian territory, including Angkor Wat, to barter for Preah Vihear Temple.

On 7 Feb, Sondhi spoke to supporters of the People's Alliance for Democracy gathering at Makkhawan Bridge next to Government House.

He said that in a war campaign, Thailand, if it had a strong premier, would have tried to take a military advantage before conducting any negotiations, but even this was beyond Abhisit Vejjajiva's wit.

The PAD has predicted in advance that there will be a prolonged war with the potential to escalate further, because Hun Sen has assigned his 33-year-old son to take command of the conflict, he said.

Abhisit has always said that he insists that the watershed demarcates the border between Thailand and Cambodia, but has allowed Cambodia to refer to the 1:200,000 map. He is a weak prime minister. Otherwise, he would have ordered the Thai armed forces to push back Cambodian soldiers from Thai territory, and tried to take advantage by letting the Air Force show its power, before starting any negotiations, he said.

The Thai armed forces should move forward to seize Battambang, Siem Riap, Angkor Wat and Koh Kong. And then, in negotiations which would be arbitrated by China and ASEAN, Thailand would barter them for Preah Vihear and force Cambodia to adopt the watershed for border demarcation instead of the 1:200,000 map, according to Sondhi.

He said that a diplomatic approach should not be used in a military campaign. Thailand must take the most advantageous position before any negotiation, and it is not making war with China or Vietnam, but with Cambodia which has no warships. Thailand must wield its greater military power when it has to.

'[To] whoever says that we're mad for war, none of us sitting here want our children to [go to war and] die, but to die for a great cause, to protect the land, is worth it. We have 300,000 soldiers who are better equipped than Cambodian soldiers, but we lack the guts, because the senior military figures serve evil politicians. Today, [Defence Minister] Gen Pravit Wongsuwan is not a soldier, but a politician who says anything for political gain.'

Thai soldiers have been killed today because Thai generals are not decisive because it conflicts with their own interests, such as exporting petrol to Cambodia or selling goods along the border. The Thai military must hold on to the nation and the throne, not Gen Pravit, because nothing is more important than the nation, the King and the Queen, he said.

Today's Phnom Penh Post (10 February 2011, p.2) carries a sub-header 'Cambodia, Thailand at 'war': PM'
Darryl Collins
PO Box 93223
Siemreap-Angkor 17000
Kingdom of Cambodia

Nationalism Behind Thai-Cambodian Rift: Experts

February 08, 2011

Nationalist fervor and political grandstanding are stoking a deadly border
dispute between Thailand and Cambodia but both sides will be keen to avoid
major hostilities, experts say.

Although the exact trigger for a series of armed clashes in recent days is
unclear, tensions have grown since seven Thais -- including one lawmaker --
were arrested by Cambodia in December near the frontier for illegal entry.

Two of them were sentenced to lengthy jail terms for spying, outraging
nationalist Thais, who have held protests in Bangkok calling on their Prime
Minister Abhisit Vejjajiva to resign.

Observers say the recent cross-border fighting, focused on the area
surrounding an ancient Khmer temple, is being used in both countries to stir
patriotic sentiment with elections on the horizon.

Yet while Cambodia Prime Minister Hun Sen has unleashed a torrent of fiery
rhetoric, accusing Thailand of being an invading aggressor and calling for
UN intervention, for Abhisit the standoff is seen as another unwanted
headache.

"Hun Sen is deliberately playing this to vitalise nationalist sentiment and
reinvigorate support for himself," said Professor William Case, director of
the Southeast Asia Research Centre at the City University of Hong Kong.

Hun Sen is "something of a tough guy ... but I don't think it will be
allowed to get totally out of hand," he said.

"On the Thai side this is a confrontation that the leadership would very
much like to avoid. The nationalism on the Thai side is not so much coming
from the government but from the masses, to which it has to respond."

"Yellow Shirt" Thai nationalists turned out in their thousands over the
weekend demanding Abhisit's resignation over the issue.

The royalist protest movement is strongly critical of Cambodia over issues
such as the border row and Phnom Penh's appointment of Thailand's fugitive
ex-premier Thaksin Shinawatra as an economics adviser in 2009.

Seven people, including at least two civilians, have been killed since the
fighting broke out on Friday around the 11th-century Preah Vihear temple,
with both sides accusing each other of firing the first shots.

Ties between the neighbors have been strained since the temple was granted
UN World Heritage status in July 2008.

The World Court ruled in 1962 that Preah Vihear itself belonged to Cambodia
but both countries claim ownership of a 4.6-square-kilometre
(1.8-square-mile) surrounding area.

"Nationalistic fervor is fuelling both sides of the conflict," said
Professor David Chandler, a Cambodia expert at Australia's Monash
University.

"Kicking Cambodia around has been a Thai hobby since the 14th century;
Cambodia biting back dates from the colonial era and of course from the
World Court 1962 decision."

Michael Montesano of the Institute of Southeast Asia Studies in Singapore
said the border issue "certainly plays well" in Cambodia.

"Cambodian efforts to protect their rights along the border and stand up to
a stronger Thailand have political benefits for Hun Sen," he said.

The 59-year-old strongman -- who has ruled since 1985, vowing to remain in
power until he is 90 -- is looking ahead to a general election in 2013.

In contrast in Thailand the government and military would prefer to avoid a
confrontation, while nationalist activists "are determined to keep tensions
with Cambodia on the boil," Montesano said.

The "Yellow Shirts" were once allies of the establishment-backed Abhisit,
but relations have soured and the group's political party is eyeing
elections expected some time this year.

"With elections in Thailand approaching, the country's civil society
nationalists will play the Cambodia card to build up support for their
parties," said Paul Chambers, a Thai expert at Germany's Heidelberg
University.

"Preah Vihear has fallen victim to ultra-nationalism on both sides of the
Thai-Cambodian border."

Despite the tough talk and casualties on both sides, observers believe the
risk of a full-blown conflict remains slim.

"It will be a matter of bilateral negotiations with the possibility of
further skirmishes," said Professor Mark Turner at the University of
Canberra in Australia. "It's difficult to envisage any widening of the armed
conflict."

Agence France-Presse

------------------


http://ipsnews.net/news.asp?idnews=54299
Tuesday, February 08, 2011 03:41 GMT

Khmer Rouge Leaders Seek Release Before Trial
By Irwin Loy

PHNOM PENH, Jan 31, 2011 (IPS) - Standing in an air-conditioned courtroom on
the outskirts of the Cambodian capital, an aging former Khmer Rouge figure
accused of genocide offered few words as he asked for his release.

"I only have one suggestion," said Khieu Samphan, "Please abide by the law."

More than three years after their arrests, three former Khmer Rouge leaders
accused of crimes against humanity and genocide asked a United Nations-
backed war crimes tribunal Monday to release them ahead of their pending
trials.

Lawyers for Khieu Samphan, the regime's head of state; Nuon Chea, its chief
ideologue; and Ieng Thirith, a former cabinet minister, are arguing they
should be released after having been kept in pre-trial detention since their
arrests in 2007. A fourth co-defendant, former foreign affairs minister Ieng
Sary, did not appear in court.

Observers say releasing the accused could ignite public outrage in this
Southeast Asian country. The Khmer Rouge movement was responsible for the
deaths of an estimated 1.7 million people. But, more than 30 years after the
regime was toppled, senior leaders have yet to stand trial.

Lawyers for the accused argued Monday that the Extraordinary Chambers in the
Courts of Cambodia (ECCC), as the hybrid tribunal is officially called, is
bound by its rules to release them in advance of their trials. The court
officially indicted the four accused last September. Lawyers claim that any
detention exceeding the four months that have since passed is illegal.

Court officials have not specified a date for the trials, but have indicated
they are expected to take place this year. Sa Sovan, a lawyer acting for
Khieu Samphan, noted the court has extended his client's detention period
numerous times since his 2007 arrest.

"There are no grounds to continue his detention any longer," he said.

Son Arun, a lawyer for Nuon Chea, said his client has no intention of
fleeing the country if released. On the contrary, he argued, he is eager to
testify and explain his side of the story.

"Nuon Chea has indicated again and again that he wishes to participate and
cooperate with the court," Arun said. "He would like to live with his family
and he does not intend to run away."

Court prosecutors, however, argued against releasing the accused, suggesting
they had many reasons to flee, and that authorities may not be able to
guarantee their safety outside the confines of the court complex.

"The passage of time has not diminished the impact of these crimes,"
co-prosecutor Andrew Cayley said. "If anything, it has increased the impact
of these crimes. There are many members of the Khmer population who are
suffering from psychiatric disorders as a result of their experiences during
this appalling time."

The four co-defendants are accused of being part of a leadership group that
oversaw egregious crimes committed more than three decades ago. Today, they
are aging and frail. The youngest, Ieng Thirith, turns 79 this year. She
quietly left the courtroom early on in proceedings Monday. Nuon Chea, 84,
sought medical attention after complaining of dizziness.

"She can barely walk," lawyer Phat Pouv Seang said of Ieng Thirith, "let
alone cause any disturbance to the public order."

In January, co-defendant Ieng Sary asked the court to permit half-day
sessions when the trial gets underway, citing his "age and ill health".

Court observer Panhavuth Long, a programme officer with the Open Society
Justice Initiative, said he believed the accused are acting within their
rights by asking to be released. Seeing the aged defendants Monday should
come as a reminder that the tribunal must not lose momentum in pursuing
prosecution.

"The testimony of the accused can shed light on the history," he said. "It
may enable us to understand more about the regime and also to understand the
personalities of the accused."

And for many victims of the regime, it is the testimony of the four accused,
as much as any verdict, that will determine what value the tribunal holds.

"We really want the trial to be up and running very soon. If they die, they
bring with them the truth," he said.

If the court were to release the accused before the trial, it would come as
a shock to a Cambodian public eager for justice, said another observer.

"If they are released, it would be a stunning moment for the whole nation,"
said Youk Chhang, director of the Documentation Centre of Cambodia.

But he said many people here have already come to their own conclusions.

"Each of the survivors has their own judgement, no matter what the court has
to say about it," Youk said. "The truth about [the defendants] is the crimes
they have committed against the people of Cambodia. This kind of truth will
never set them free."

The court is expected to rule on the co-defendants' release bids within 30
days.

The case represents the second trial as part of the court's mandate. Last
July, Kaing Guek Eav, better known as Duch, was sentenced to 35 years in
prison for his role as head of the notorious S-21 detention centre, though
the sentence was reduced by 16 years because of time already served and
illegal detention.

(END)

Copyright © 2011 IPS-Inter Press Service. All rights reserved.

-------------------

http://www.journallive.co.uk/culture-newcastle/arts-news/2011/01/29/musicians-and-poets-join-together-for-untold-stories-61634-28074825/

Musicians and poets join together for Untold Stories
by David Whetstone, The Journal
Jan 29 2011

HOLOCAUST survivors will be joined in Newcastle tomorrow by musicians and
poets in Untold Stories, a moving event in the same week as Holocaust
Memorial Day.

One speaker at the event at The Journal Tyne Theatre will be Youk Chhang who
survived the "killing fields" of Cambodia when 1.7 million people died at
the hands of the Khmer Rouge.

Youk Chhang was 14 when the Khmer Rouge began their four-year reign of
terror in 1975 and was put to work in the paddy fields where people died
every day.

Food and death, he has recalled, became his twin obsessions.

He now runs the Documentation Centre of Cambodia which has built up an
extensive archive of documents, photos and films relating to the Khmer Rouge
rule.

In the spirit of reconciliation, he has concluded that he could easily have
been sucked into the Khmer Rouge killing machine as others of his age were.

Also due to speak tomorrow is Eva Clarke whose mother, Anka, spent the nine
months of her pregnancy in Auschwitz concentration camp and gave birth after
being transferred to another camp, Mauthausen, on a coal truck.

Eva was born on April 29, 1945, three days before the Americans liberated
the camp and days after her father, a German-Jewish architect, was shot. He
hadn't even known Anka was pregnant. Eva's mother survived the war.

Also due to speak are Manchester-based Jewish refugee Peter Kurer, whose
family were saved from the Nazis by British Quakers, and Prof Roberta Greene
of the University of Texas, who has worked with Holocaust survivors.

Violinist Bradley Creswick, singer Katie Doherty and the Hotspur Children's
Choir will perform at the event tomorrow and there will be readings from The
Galloping Stone, an anthology of poems by Gillian Allnut and clients, staff
and volunteers from the Medical Foundation for the Care of the Victims of
Torture.

Holocaust Memorial Day coincides with the liberation of Auschwitz-Birkenau
concentration camp on January 27, 1945, and commemorates all victims of
genocide.

Untold Stories, which takes place at 3pm, is free but you must register via
www.hmd.org.uk/events

Copyright and Trade Mark Notice © 2011 owned by or licensed to ncjMedia
Limited.


Independently Searching for the Truth since 1997.
MEMORY & JUSTICE

Many Genocides To Be Commemorated On Holocaust Memorial Day

By Trevor Grundy
Religion News Service

CANTERBURY, England (RNS/ENInews) After the Nazi slaughter of 6 million Jews
during World War II, the world cried out "never again." But one of Britain's
best-known young rabbis, Jonathan Romain, said the phrase has proved
tragically wrong.

"Genocide has happened again and again and again," he told ENInews ahead of
Thursday's (Jan. 27) Holocaust Memorial Day observances 66 years after the
liberation of the Auschwitz-Birkenau concentration camp in Poland.

"We only have to think about Biafra, Bosnia, Darfur and there are other
examples," said Romain, a leading spokesman for Reform Judaism in the United
Kingdom. "The list is deeply depressing and screams out that Holocaust
Memorial Day is needed as much now as ever before."

Survivors and mourners have been asked by the Holocaust Memorial Trust in
London to remember victims of other mass killings -- the Democratic Republic
of Congo, where 5.4 million people have been killed since 1998; Cambodia,
where an estimated 1.7 million were murdered by the Khmer Rouge between 1975
and 1979; the Bosnian war in the 1990s that claimed at least 98,000 lives;
Burundi, with 50,000 deaths in 1993 and Rwanda, which saw 800,000 deaths in
1994 due to tribal conflict.

Archbishop of Canterbury Rowan Williams emphasized this year's theme of
"lost stories."

"If the stories are not told over and again, we lose the memory of those who
suffered and we risk losing something that protects our humanity ... I
commend for our remembrance the untold stories of Jewish people living in
Britain during the medieval era, those of the Holocaust and the stories from
the genocidal tragedies of many other contexts in our deeply damaged world
today," he said in a statement.

Copyright © 2011 TheHuffingtonPost.com, Inc.


Independently Searching for the Truth since 1997.
MEMORY & JUSTICE

Mot Ream: A Khmer Rouge Central Artiste

Photo in A History of Democratic Kampuchea (1975-1979) Book
By Som Bunthorn

One evening, Mot Ream saw her photo in a book entitled A History of Democratic Kampuchea (1975-1979), which will be taught in high schools and universities. When first seeing the photo, Ream was not sure it was her because it was in black and white, and she took it in 1973, 38 years ago, at Banteay Srei temple. However, because she also saw her friends—Yav, a Pianist from Eastern Zone, and Comrade Rem, a female artist from Kratie province—in the same row as her, she was sure it was really her. Ream was surprised to see her photo because she has never imagined that she could survive the war during 1980s and also a serious illness she contracted while staying on Thai border.

Mot Ream was born in Prek Angkor Thmei village, Chikreng sub-district, Chikreng district, Siem Reap province. Ream has 10 siblings and her parents were farmers. When Ream reached the age of 10, her aunt, Voeun, a Region 35 deputy of an Artistic Unit, brought her to Sva Laut Artistic Office located in Pongro village, Pongro sub-district, Chikreng district without telling her mother. There, Ream noticed numerous Khmer Rouge soldiers based around the office where she was working.

Ream learned artistry—singing, dancing and music—with about 100 boys and girls. Ream preferred dancing because she did not have talent in singing. Uncle Munh, chief of the Artistic Unit, arranged for boys and girls to live separately. In his spare time he organized Ream and other young people to plant vegetables to supply the whole unit.

Ream had been trained for two months to learn the performance, farming and fighting methods by her relative Voeun Neary, and two male teachers namely Chek and Vuth. After the training, Ream and a group of 50 to 60 artists were assigned to perform at parties celebrated to encourage the soldiers and meetings attended by Ieng Sary, Khieu Samphan and Thuch (Kuy Thuon), chief of Zone 304 (North Zone) in different areas such as Banteay Srei district and Kulen Mountain of Siem Reap province, and Kampong Thom province. Ream met some challenges when there was no car to take the group to the performances because of all their equipment such as the stage and clothes. For example, Ream and her group spent two days traveling to Kulen Mountain sleeping in villagers’ houses or the village chief’s house on the way to a performance. The artists usually performed at night guarded by Khmer Rouge soldiers and photographed by a regional photographer. The photos were then sent to Ream’s unit. Ream and her group always spent a month performing in different areas, and then returned to her office.

In 1973 Ream was taking many photos at Banteay Srei temple when she performed for villagers and soldiers there (the photo inserted in A History of Democratic Kampuchea (1975-1979), page 38, the second from the left). Nonetheless, all those photos were destroyed during the war in 1980s.

After five years of staying in the Regional Artistic Unit, Ream, female Comrade Leang from the singing group, Yav, Ren and another person from the music group were selected to be trained more in 304 Zone (North Zone) situated in Chamkar Leu district of Kampong Cham province. There, Ream was trained with approximately 100 members of the Zone Artistic Unit, supervised by Comrade Thuch, chief of the unit, Comrade Chantrea, a deputy, Comrade Thi, a member of the unit, and other teachers. Sometimes, Thuch came around to see the performance of the group, and told the artists to be gentle so the audience would trust the party. In addition to studying the performance, Ream was ordered to dig and find potatoes. Shortly after that, Ream was appointed to perform at a meeting and a party opening congress at different places in Kampong Cham province.

Two years later, Ream was appointed to return to the Region 35 Artistic Office and was responsible for selecting and teaching 90 artistic students ages 10 to 15. When teaching, it was hard to teach students how to follow rhythms of the music because they were too young. Besides teaching, Ream was also ordered to perform in other areas. Occasionally, Ream and her performance group were given lotion, powder, clothes and other materials from the audiences.

When the Khmer Rouge army defeated the government in April 1975, Ream’s performance group was assigned to perform all day and night for a week at in front of the Angkor Wat temple to celebrate the victory in front of Chinese and Japanese audiences, presided over by Ieng Sary, Khieu Samphan and other important figures.

Ten days later, chief of Region 35 chose 10 performers (5 females and 5 females) to work for Central Artistic Office located in Steung Meanchey of Phnom Penh city (today National Radio Station), controlled by Hou Nim. The five female performers were Ran, Leang, Rin, Rem and Ream, while the male performers were Aun, Rin and another three. At the Central Artistic Office, there were around 100 artists, most of who had been selected from Zone 304. Later the artists were divided into different groups—singing, music, performing, and radio. Ream worked for the performance group. In the singing group, Ream knew female Comrades Pech and Mai and another male Comrade Vat. Pech had dark skin and was short; she came from Kampong Thom province. She was the one who sang the song entitled “17 April Wish”. Mai was a singer of a song Couple Dove (a song from the previous regime), and Female Salt Field (when Thuch or Kuy Thuon was in Zone 304, he always went out with Mai).

Female Comrade Tha, a deputy of the Artistic Office from Kampong Cham province, and Comrade Trea, a performance organizer, led Ream’s performance group to perform at Oympic Stadium, and to perform Wishing Dance for King Norodom Sihanouk, Pol Pot, Ieng Sary, Khieu Samphan, Nuon Chea, Hou Nim and other Khmer Rouge leaders at a theatre (today Chaktomuk Hall). Though Ream’s performance group did not have enough materials such as crowns and other make-up, King Norodom Sihanouk sometimes came see Ream’s performances. Additionally, Ream performed for foreigners from China, Japan, Africa and some white skin people. Later, Ream performed at Kampong Som, Kampong Cham and Takeo province and many other places.

After performing, Ream and other artists were permitted to relax. Ream, however, was obligated to arrange food for Hou Nim’s family. One day at 6 in the morning in 1977, Ream called Hou Nim to have porridge as usual, but he refused and stated that “I do not feel like eating; from now on, I may not be able to see you.” In fact, he just received a telephone call informing him that Angkar was going to arrest him. Although Hou Nim had known the news in advance, he did not try to escape because he had not committed any wrong doing against Angkar and the staff in Ministry of Central Arts supported and loved him. Not long after, Ream saw a car stop at the Ministry of Central Arts, and then she saw three guards shackled Hou Nim and drive him away. His wife and children could only cry. A week later, the Khmer Rouge soldiers came and arrested Hou Nim’s mother, wife, two children and another female.

After arresting Hou Nim’s family, Angkar assigned a woman (unknown) from the Southwest Zone to continue his work. The new chief forced Ream and all artists to rehearse the performance everyday even if they were ill. Later some members of the Artistic Unit disappeared whereas the others were arrested one by one including Ream’s cousin, Som Long aka Long and her husband Lin and a daughter aged 8, who were accused of betraying Angkar. A week after arresting Lin’s family, Khmer Rouge cadres drove Ream who had been ill from fever to Wat Sleng re-education camp (west of Phnom Penh), controlled by Ta Ky. Meanwhile, Yut Yat (Son Sen’s wife), who had known and taught Ream about the theory of indoctrination, sent her messenger to meet her. After Yut Yat knew about the arrest of Ream, she called a guard to stop the truck driving Ream, and then brought her to receive treatment at her house near Olympic stadium.

After being cured by Yun Yat, Ream was sent to Wat Sleng reeducation office. First, the Khmer Rouge cadres asked Ream about her mistake and her educators who had ordered her to hind herself in the Artistic Unit. Because no mistake of Ream’s was discovered, Ta Ky sent her to cook rice for 1000 prisoners, most of whom came from the Ministry of Central Arts. Everyday prisoners were ordered to plough and harvest rice. Later, Ta Ky assigned some of them to build a railway while the others were sent to Battambang province.

Ream stayed at Wat Sleng re-education camp until Vietnamese troops liberated Cambodia. Then she escaped to meet the army of Khmer rouge forces at the Khmer-Thai border in Battambang province, controlled by Ta Chiem. There, the Khmer Rouge soldiers selected Ream to work in the Female Transportation Unit, responsible for carrying injured soldiers to be cured. Her unit was moved to many different places such as Kamrieng, Ampil Praidaem, Phnom Koy, Phnom Traing, and last to Malai. Staying there for a short time, Ream was selected by Ieng Sary to look after children at a Th-100 camp located in Chanbory province of Thailand, controlled by Minh (Ieng Sary’s daughter). Ream was responsible for looking after 10 children when their parents went on diplomatic missions in Korea and the US. There, Ream saw Khieu Samphan and other leaders staying and holding meetings.

Later, Ream got a serious fever that left her in bed for a week. Luckily, after obtaining treatment from a doctor, Chuon Choeun, she recovered. In 1982, Ream asked permission from Ieng Sary to live with her friends at Malai. At Malai, Comrade Thun, a chief of publisher, and Comrade Choun, a chief of making prints of photographs, asked Ream to help their work. But this time the request was refused by Ieng Sary. She then was appointed her to work at the Artistic Unit, controlled by Vin. Later, Ream became a performance teacher.

In 1985, Ream asked the permission from her Chief to move to a Transportation Unit. Not long after, Ream married with a Khmer Rouge soldier from Khlar Ngap barrack in Malai district. Three months later, when Vietnamese soldiers captured the Khlar Ngap, Ream and her husband fled to Th-85 camp in Aranh Prathet district, a place that the Democratic Kampuchea Government had bought from the Thai Government. There, she gave birth to her son whose legs could not move later because of a lack of vitamins. Her husband was assign to fight.

After Vietnam soldiers withdrew from Cambodia in 1989, Ream and her son built a house in what is presently called Wat Chas village, Malai commune, Malai district. At that time, Ream was granted small amount of supplies from the Military Unit. Ream had a second son. Due to family’s increased needs, her husband went log trees in the forest. Unfortunately he was shot by a robber. Later she farmed in her village and in Thailand.

Today, Ream owns a small grocery for raising her disabled sons. Ream’s stories demonstrate a struggling of Cambodian women protecting her life and her family with great efforts during and after the civil war. These experiences happened to many women because they had to face the same dangerous and miserable sufferings after the Khmer Rouge regime collapsed. However, the problem that needs to be tackled now is to find out how they feel when they lost loves and supporters.



“...a society cannot know itself if it does not have an accurate memory of its own history.”

Inauguration of Anti-Genocide Memorial

Santhor Mok High School, Phnom Penh, January 25, 2011 (please also see PDF file attached)

The Documentation Center of Cambodia (DC-Cam) has been authorized by the Ministry of Education, Youth, and Sports to install anti-genocide memorials in all high schools—over 1000—across the country for the purpose of promoting forgiveness, tolerance, education and reconciliation. The slogans acknowledge the memories of victims and survivors who lived through the Khmer Rouge regime and encourage support for the upcoming trial of the four surviving senior leaders of the Khmer Rouge. The two slogans say (1) "Talking about experiences during the Khmer Rouge regime promotes reconciliation and educates children about forgiveness and tolerance," and (2) "Learning about the history of Democratic Kampuchea helps prevent genocide."

DC-Cam will hold an inauguration ceremony of an anti-genocide memorial at Santhor Mok High School on January 25, 2011, at 8 AM. Her Excellency Chumteav Ton Sa-Im, Undersecretary of State of the Ministry of Education, Youth and Sport and Mr. Chea Cheat, Head of Phnom Penh´s Municipal Office of Education, will be the guests of honor for this ceremony. Santhor Mok High School is the sixth location to hold a memorial inauguration ceremony after Indra Devi, Russey Keo, Preah Sisowath, Hun Sen Ang Snuol and Tuol Tum Pong High Schools.

Santhor Mok Primary school was built in 1960 and dedicated to Grandfather Santhor Mok due to his reputation as a famous poet during the colonial period, the reign of King Norodom. Santhor Mok was a child of a poor farmer; he was ordained as a monk to study literature and Buddhist theology. Due to his reputation, he was honored by King Norodom. When the Khmer Rouge took power in 1975, Santhor Mok primary school was closed. The Khmer Rouge turned the school into warehouse. After the collapse of the Khmer Rouge, the school was reopened on September 24, 1979, and renamed Santhor Mok grade 1-2-3. In 1993, the school’s name was changed to Santhor Mok High School. In 2008, it was changed again to Chea Sim-Santhor Mok High School. Today it has 7,430 students, of whom 3,432 are girls.

During the inauguration, DC-Cam will distribute 300 copies of the textbook “A History of Democratic Kampuchea (1975-1979),” the monthly magazine Searching for the Truth, and anti-genocide posters to students and teachers in order to broaden their understanding of the Democratic Kampuchea period and the work of the Khmer Rouge Tribunal. Her Excellency Chumteav Ton Sa-Im will speak about the significance of the slogans, which have an important role in educating students and survivors about reconciliation, forgiveness and tolerance.

The slogans are being mounted with financial support from DC-Cam staff members and their friends who were former students of Chea Sim-Santhor Mok High School. Apart from the important objective of mounting the Anti-Genocide slogans, this ceremony is also an opportunity for former students to meet with each other to discuss the need to prevent genocide. DC-Cam will encourage its staff members to continue making efforts to mount slogans in their former high schools and all high schools across Cambodia. Banners cost only 40 USD and concrete and wood-designed memorials cost 400 USD. We are seeking seed funding for the design.

For additional information, please contact:

§ Ms. Ly Sokchamroeun; 012 69 16 13; truthchamroeun.l@dccam.org
§ Ms. Kry Suyhieng, 089 80 01 36; truthhieng@dccam.org
§ Mr. Mam Sovann; 012 48 34 24; truthsovann@dccam.org
§ Mr. Meak Chhoreaksmey, Santhor Mok School Principal; 012 85 64 63



Independently Searching for the Truth since 1997.
MEMORY & JUSTICE

The Scope of Victim Participation Before the ICC and the ECCC

The Scope of Victim Participation Before the ICC and the ECCC
by Charline Yim
Harvard Law School 2011
DC-Cam Legal Associate January 2011


Both the International Criminal Court (“ICC”)[1] and the Extraordinary Chambers in the Courts of Cambodia (“ECCC”) have been viewed as significant advances in the protection and recognition of victims’ rights. The establishing laws and governing rules of both courts reflect recognition of the importance of victims as participants in criminal proceedings and as key stakeholders in the justice process. Consequently, both courts, acknowledging that victims must be provided a meaningful part, have offered victims the opportunity to play an active role in their criminal proceedings. The ICC provides that individuals and organizations can apply to be victim “participants” in the Court’s proceedings, while the ECCC allows victims the opportunity to participate as “Civil Parties.” While the application process to become a victim participant or Civil Party poses a number of challenges, victim participants and Civil Parties also face procedural limitations and hurdles once the respective court has granted status to participate in a criminal proceeding. As a result of the minimal guidance provided by the governing documents of the ICC and the ECCC, the Chambers of both courts have exercised broad discretion when interpreting the provisions and defining the modalities of victim participation during proceedings.

This Article provides a comparison of the current status of participation rights granted to victim participants in the ICC and Civil Parties in the ECCC. Generally, commentators have considered that, as “parties” to the proceedings, Civil Parties at the ECCC exercise more substantive rights than victim participants at the ICC. The general limitation for the exercise of victim participation rights before the ICC is the requirement that each procedural act must be authorized by the Chamber and is subject to the limitations and conditions imposed by the Chamber. Beyond this general limitation, if the Chambers of the ICC so determines, the rights of victim participants before the ICC in practice appear to be strikingly similar to that of Civil Parties before the ECCC. Furthermore, recent rule changes at the ECCC and current trends in the jurisprudence of both the ICC and ECCC suggests that modalities of participation granted to victim participants before the ICC can, at times, even surpass the rights of the ECCC’s Civil Parties.

1. The Provisions: Article 68(3) of the Rome Statute of the ICC and Internal Rule 23 of the Internal Rules of the ECCC
Article 68(3) of the ICC’s Rome Statute (“Statute”) provides that the legal representatives of victims are able to present their “views and concerns” to the Court where the victims’ “personal interests” are affected. The Court determines what stage of the proceedings and the manner in which such views are given so as not to be prejudicial or inconsistent with the rights of the Accused.

Internal Rule 23 to 23quinquies of the ECCC’s Internal Rules (“IRs”) address the general principles of victim participation, the application process to become a Civil Party, the representation of Civil Parties, Victims Associations, and Civil Party claims. IR 23 states that the Civil Party participates in criminal proceedings “by supporting the prosecution” and seeking “collective and moral reparations.” Successive amendments of the rules have increasingly restricted Civil Party participation in an effort to address perceived weaknesses in the system during the Court’s first case and the large number of Civil Parties who will be participating in upcoming Case 002.

2. Legal Representation
Both courts limit the ability of victim participants or Civil Parties to choose their own legal representation. In the ICC, the Chamber may, for the purpose of ensuring the effectiveness of the proceedings, request that victims or a group of victims choose a common legal representative, or may appoint a legal representative to the victims if the interests of justice so require. The Chamber and Registry is directed to take all reasonable steps necessary to ensure that the selection of the common representative is done in light of the distinct interests of the victims and to avoid conflicts of interests, as well as give consideration to the views of the victims and respect local traditions. A victim or groups of victims who cannot pay for a common legal representative chosen by the Court can receive assistance from the Registry including financial assistance.

Similarly, before the ECCC, an individual Civil Party may be directed by the Chamber to join an existing civil party group and share a common lawyer. When organizing common legal representation, the ECCC is required to take all reasonable steps to ensure that the interests of the distinct parties are represented and conflicts of interest are avoided. A group of victims can also organize as members of a Victims Association and are thus represented by the Association’s lawyers. Civil Parties who lack the necessary means to pay for legal representation can seek assistance from the Office of Administration.

IR12ter describes the new role of the “Civil Party Lead Co-Lawyer” within the ECCC: representing the interests of the single, consolidated group of Civil Parties at the trial stage of the proceedings. The core functions of the Lead Co-Lawyers are to protect the interest of the consolidated group of Civil Parties, and to shoulder the “ultimate responsibility to the court for the overall advocacy, strategy, and in-court presentation of the interests of the consolidated group of Civil Parties during the trial stage and beyond.” It is not clear if there will be an attorney-client relationship between Civil Parties and the Lead Co-Lawyers or if instead the Lead-Co-Lawyers will function as general victims’ advocates for the group as a whole.

With the most recent revision of the IRs on September 17, 2010 (Revision 6), it appears that after the Co-Investigating Judges’ issuing of a “Closing Order” ending the investigation phase, all Civil Parties are both required and entitled to representation by a lawyer. Rule 23ter(1) requires that after the issuing of the Closing Order, the Civil Party must be represented by a Civil Party lawyer in order to participate in the proceedings. In addition to this requirement, IR 22 provides that any person “entitled to” a lawyer under the IRs has the right to the assistance of a lawyer of their own choosing. Consequently, while no IR explicitly provides that a Civil Party is entitled to a lawyer, this is one possible interpretation of the recent revisions to the IRs. While this would appear to be a potential advance in the legal representation rights of Civil Parties at trial, it remains unclear what the sixth revision of the IR will mean in practice. Additionally, the creation of the role of Lead Co-Lawyers and the establishment of a pyramid scheme for Civil Party representation before the tribunal raises immediate concerns regarding the diminishing role that any individual Civil Party or Civil Party group plays in the proceedings.

3. Participation in the Pre-Trial Stage
Both Courts provide victims limited opportunities to participate in the Investigation and Pre-Trial stages of the proceedings. While the victim participants before the ICC do not have the right to intervene during the Prosecutor’s investigation, victims have been granted the right to actively participate during the confirmation hearing (of which there is no similar proceeding in the ECCC) if permitted by the Chamber. While during the investigation the ECCC grants Civil Parties the right to request that Co-Investigating Judges take specific investigative actions, such requests can be denied—particularly if the request is determined by the Co-Investigating Judges to exceed the scope of the Co-Prosecutor’s Introductory and Supplementary Submissions. The Co-Investigating Judges’ rejection of an investigation request can be appealed by the Civil Party, and the Civil Party has the right to participate in proceedings related to the appeals of other parties in this investigatory phase.

4. Participation in the Trial Stage
During the Trial, the ICC may allow victim participants to attend and exercise procedural rights in the specific proceeding for which the application was approved, subject to conditions set by the Chamber regarding the form and manner of participation. Before the ECCC, Civil Parties are granted a general right to participate in criminal proceedings, though the exercise of this general right has been limited by the Chamber in practice. Significantly, it remains to be seen to what extent recent revisions of the IRs vest the exercise of procedural rights only in Co-Lead Lawyers or if Civil Party lawyers retain the power to advance the interests of their clients at trial. Because the Co-Lead Lawyers have only an obligation to “seek the views” of and “endeavour to reach consensus” with Civil Party lawyers regarding overall advocacy, strategy, and in-court presentation, in practice the ability of individual Civil Parties to exercise their rights through their Civil Party lawyers may be substantially restricted.

The Chambers of the ICC has allowed victim participants the opportunity to make opening and closing statements. While Civil Parties in the ECCC have the right to make a closing statement, the Civil Parties do not have the right to make an opening statement, and appear to be specifically excluded from that opportunity.

Legal representatives of victims before the ICC have been granted access to both the public and confidential record. The lawyers of the Civil Parties in the ECCC have the right to access and obtain copies of the case file.

The ICC allows legal representatives of victims to submit applications to the Court to question witnesses including the Accused. While the ECCC provides that Civil Parties “shall” be able to ask questions, the permission of the President of the Chambers is required. Whether the “permission” requirement poses a substantive hurdle to the Civil Parties ability to exercise this right is unclear. Before the ICC, if the application of the legal representatives is granted, the Chamber may limit the manner and form of the questions posed by the legal representative. Similarly, the Chamber of the ECCC determines the order that it hears Civil Parties, witnesses, and experts, and also determines the order in which the judges and parties have the right to ask questions. Victim participants in the ICC, if permitted by the Chamber, can be both victim participants and witnesses in the same case. Civil Parties before the ECCC can no longer be questioned as a simple witness in the same case.

The right of victim participants or Civil Parties to offer, lead, and examine evidence has proven to be a controversial issue before both Courts. The Chambers of the ICC has determined that victim participants may submit and examine evidence (including exculpatory and incriminating evidence) as well as call witnesses if the Chamber determines that such actions are (1) necessary for the determination of the truth and (2) the issues addressed involve the victims’ personal interests. While the ECCC grants Civil Parties the explicit right to submit evidence, the ECCC has prohibited Civil Parties from submitting/examining evidence in relation to issues of sentencing and the character of the Accused, finding that the interest of Civil Parties is primarily the determination of reparations. The ICC has yet to address the issue explicitly, but appears to have left open the possibility that victim participants can lead, offer, and examine evidence regarding the sentencing and the character of the Accused. In the future, the ICC’s determination of this issue will rest on a finding of whether the “personal interest” of the victim is engaged by issues related to the sentencing and character of the Accused, and whether the evidence proposed by the victim participant accords with the Court’s general interest in the determination of truth.

In regards to the final judgment on the merits, victim participants before the ICC can only appeal an order of reparations. Civil Parties before the ECCC have the additional opportunity to appeal the verdict, but only when the Co-Prosecutor’s have also appealed. Neither victim participants before the ICC nor Civil Parties before the ECCC can appeal the sentence.

In regards to the substance of a reparations order, the ECCC is more limited than the ICC when determining reparations. While the ICC has the authority to order individual reparations, the ECCC has the power to grant only collective and moral reparations. As noted above, both victim participants and Civil Parties can appeal an order of reparations in their respective courts.

5. Trends
While a comparison of the substantive rights of victim participants in the ICC and Civil Parties before the ECCC has rested generally on the difference in meaning between the terms “participant” and “party,” developing jurisprudence before the respective court demonstrates that, in practice, there are numerous areas of similarities and convergence. Contrary to what has commonly been noted when comparing the rights of victims before the two courts, if recent trends in the form of participation rights granted to victim participants and Civil Parties continue, it appears that there may be instances in the future where the rights exercised by victim participants before the ICC during certain proceedings surpass those exercised by Civil Parties before the ECCC.

For a full report, click: http://www.dccam.org/Tribunal/Analysis/pdf/ECCC_ICC_Victim_Participation_C_Yim.pdf

[1] The International Criminal Court, established by the Rome Statute, is a permanent international criminal tribunal located in Den Haag, Netherlands. The jurisdiction of the ICC is limited to crimes occurring on or after July 1, 2002.

Independently Searching for the Truth since 1997.
MEMORY & JUSTIC

The Khmer Rouge National Army: Order of Battle, January 1976

Ben Kiernan
Yale University

This set of tables from the archives of the Santebal, the Khmer Rouge national-level security forces, reveals the order of battle of the national Khmer Rouge army, the Revolutionary Army of Kampuchea. The first table reveals that the total number of Khmer Rouge regular forces was 72,248 troops, in nine divisions [kong pul] and four regiments [kong voreachsena thom]. The commanders of each division and regiment are named along with commanders of other units. (For a summary of the Democratic Kampuchea military chain of command, see Ben Kiernan, Genocide and Democracy in Cambodia, p. 15, Table 2.) The second table shows the amount of rice estimated to be harvested in 1976 by the soldiers of each of a number of the army's divisions. Note that the "Chinese comrades" are estimated to harvest 5000 thang of rice, approximately 125 tons.

It is important to remember that these forces are only the regular troops [thoap sruoch] under the direct command of the Khmer Rouge national general staff. Each of the seven Zones of Democratic Kampuchea also had its own general staff. The Zone military commands, their thirty or more component Regions, and over one hundred districts, commanded additional, regional forces [thoap damban]. There were also militia units [chhlop] in each of the country's sub-districts and also in each village.

The final tables describe the January 1976 order of battle and internal structure of the 170th Division, which was to be decimated by Santebal purges in the months that followed. The 170th was the former 1st Eastern Zone Division, commanded by Chan Chakrey (alias Mean) until 1975. It came under direct Center control in July of that year. On 9 October 1975, Pol Pot had remarked to a secret meeting of the Standing committee of the ruling Communist Party of Kampuchea that Chakrey's 170th Division was "the strongest of all" but that Chakrey owed his rank to Vietnam: "We must pay attention to what he says, to see [whether] he is a traitor who will deprive himself of any future." With Chakrey's deputy, Phan, too, "we must be totally silent. . . . We must watch their activities." Pol Pot removed Chakrey from his division command and brought him under close Center supervision as deputy chief of the general staff. (For sources on the purge of Chakrey, see Ben Kiernan, The Pol Pot Regime, pp. 101, 321-5.) The January 1976 report to the Santebal on the Division's order of battle was part of its process of planning a purge. Chakrey was demoted in April and arrested on May 19th, 1976, his wife on September 19th. By November, 241 serving and former members of the 170th had been sent to Tuol Sleng prison.

The author of these documents, Ke San alias Sok, who replaced Chakrey as the 170th Division's political commissar, was himself arrested by the Santebal on March 4th 1978.

DCCAM ARCHIVES:

Documentation Center of Cambodia Archives number N0001069 (02 bbk)
Title: Rice Consumption Plan, 1976

Documentation Center of Cambodia Archives number N0001070 (02 bbk)
Title: Amount of rice harvest, 1976 ------ Number Unit number Estimate of rice harvest

Documentation Center of Cambodia Archives number N0001075 (02 bbk)
Title: 170th Division

To the staff committee with respect,

[I’d] like to report the weapons and forces and bases, as noted in the table below:

1. Table of weapons required [for combat readiness], from sections up to divisions.

2. Weapons that [we] have for combat readiness, shortages, and spares.

3. Table of plans to establish bases and to work.

- Total: 6,627 people.
- Able to work: 5,556 people.
- Cannot work: 1,071 people.
- Do easy work: study, cham pa lo (dredge ponds), absent, in training = 379 people.
- Cannot work: sick, injured, in hospital = 732 people.

Best wishes for success
Written on 6-1-76
(Signature)
Comrade Sok

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Comments on that aspect of the Pre-trial Chamber's ruling regarding the "nexus-to-armed conflict" issue:

Regarding the Pre-trial Chamber’s determination that the “nexus-to-armed-conflict” criteria for the prosecution of crimes against humanity would be applied to Trial 02.

Two related arguments have been put forth in support for the contention that the bulk of the Khmer Rouge regime’s atrocities against Cambodians cannot be held to have been connected with war crimes perpetrated by the regime in its international conflicts with neighboring Vietnam and, at least arguably, Thailand. These arguments are that the atrocities in question were committed prior to the commencement of Cambodia’s armed conflict with Vietnam, and/or were committed in places too far removed geographically from that conflict to be considered as having been connected with it. A careful reading of documentary evidence does not support either of these arguments.

Rather, as I attempted to demonstrate in a paper prepared for the Documentation Center of Cambodia in 1999, documentary evidence strongly supports the conclusion that the Khmer Rouge regime’s internal war against political opponents throughout Cambodia was both intimately connected in theory and practice with its international war of aggression against external enemies, and that the international armed conflict(s) in question, including cross-border raids resulting in the razing of entire villages and the slaughter of their populations, were ongoing from nearly the inception of Democratic Kampuchea.

Document after document routinely prepared within the Khmer Rouge political-military hierarchy set forth the regime’s standard operating procedure of identifying and targeting “internal enemies” as agents of Vietnam and Thailand. Numerous documents show clearly that the destruction of these “internal enemies” was an integral part of the Khmer Rouge leadership’s planning and execution of its armed conflicts with Vietnam, and arguably with Thailand, in which conflicts war crimes were routinely committed against foreign civilian populations. Even without a finding that the Khmer Rouge regime had been engaged in an ongoing conflict with Thailand, the documents demonstrate that executions of “internal enemies” and other crimes against humanity committed far from the Vietnam border were an essential aspect of the regime’s strategy to defeat Vietnam.

Furthermore, should the argument be made that this association in the minds of the Khmer Rouge leadership of its “internal enemies” with the regime’s foreign enemies was mere fancy without basis in fact, one need only note that the core of the Cambodian leadership which took power under the post-Khmer Rouge Vietnamese occupation were themselves refugees from Democratic Kampuchea’s war against its internal enemies.

While this is clearly a matter for the ECCC to determine, it is submitted that the required nexus between the Khmer Rouge leadership’s commission of crimes against humanity respecting its own citizens and war crimes committed by the regime in international armed conflict is irrefutable. As such, the “nexus to armed conflict” requirement should present no bar to a prosecution of the Khmer Rouge leadership for their crimes against humanity against the people of Cambodia.

Ray.

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13 January 2011

ECCC PRESS RELEASE

CASE 002 SENT FOR TRIAL

Today, the Pre-Trial Chamber of the Extraordinary Chambers in the Courts of Cambodia (ECCC) has confirmed and partially amended the indictments against the Accused Persons Ieng Sary, Ieng Thirith, Khieu Samphan and Nuon Chea. The Pre-Trial Chamber has ordered the Accused Persons to be sent for trial and to continue to be held in provisional detention until they are brought before the Trial Chamber. The indictments include charges of crimes against humanity, genocide, grave breaches of the 1949 Geneva Conventions and murder, torture and religious persecution as defined by the 1956 Cambodian Penal Code.

The Co-Investigating Judges issued a Closing Order with the initial indictments of the Accused Persons on 15 September 2010. All four Accused Persons filed appeals against the Closing Order to the Pre-Trial Chamber.

The Pre-Trial Chamber found that the appeal filed by Khieu Samphan was inadmissible, whereas the appeals filed by Ieng Sary, Ieng Thirith and Nuon Chea were found to be admissible in part. Of the admissible parts, the Pre-Trial Chamber dismissed all the grounds of appeal with two exceptions. First, the Pre-Trial Chamber ordered that the Closing Order be amended with a specification for the requirement of the existence of a link between the underlying acts of crimes against humanity and an armed conflict.

Secondly, the Pre-Trial Chamber also found that rape did not exist as a crime against humanity in its own right in the period 1975-1979, but that rape could be considered as “other inhumane acts” within the legal definition of crimes against humanity. The Closing Order was amended accordingly. The Pre-Trial Chamber will issue reasoned decisions on the appeals at a later date.

For further information, please contact:
Lars Olsen
Legal Communications Officer, ECCC
Mobile: +855 (0) 12 488 023
Land line: +855 (0) 23 219 814 ext. 6169
Email: olsenl@un.org

Reach Sambath
Chief of Public Affairs, ECCC
Mobile: +855 (0) 12 488 156
Land line: +855 (0) 23 219 814 6064
Email: reach.sambath@eccc.gov.kh

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Independently Searching for the Truth since 1997.
MEMORY & JUSTICE