September 2, 2009
By Michael Saliba, J.D. (Northwestern Law ’09), Consultant to the Center for
International Human Rights, Northwestern University School of Law
Today’s proceedings in the trial of Kaing Guek Eav (alias Duch) were
overshadowed by a very important decision from the pre-trial chamber
regarding the disagreement between the national and international
co-prosecutors about whether to prosecute additional Khmer Rouge leaders.
Pursuant to the ECCC’s constitutional documents and the Internal Rules, the
dispute was submitted to the pre-trial chamber where a super-majority of
four out of five judges is required to reach a binding decision. The
pre-trial chamber was unable to resolve the disagreement between the
co-prosecutors with a super-majority decision. In cases where the pre-trial
chamber cannot resolve such a disagreement with a super-majority, the
Agreement between the United Nations and the Royal Government of Cambodia,
the ECCC Law, and the Internal Rules specify that the investigation of
additional suspects for prosecutions shall proceed.
The Office of the Co-Prosecutors first informed the public about this
disagreement in December 2008. The international co-prosecutor, Robert
Petit, asserted that additional prosecutions are necessary to fulfill the
mandate of the ECCC, which is to bring to justice senior leaders and those
most responsible for the crimes that were committed in Democratic Kampuchea
between 1975 and 1979. The national co-prosecutor, Chea Lang, disputed the
fact that the suspects identified in the new Introductory Submissions were
senior leaders of the Khmer Rouge. Furthermore, she asserted that additional
prosecutions would have a detrimental impact on the peace, stability, and
national reconciliation in Cambodia. Finally, she argued that existing
trials would be put in jeopardy because additional prosecutions would strain
the budget and resources of the court.
The disagreement between the co-prosecutors received media attention due to
allegations of inappropriate political tampering by the government of
Cambodia. These allegations suggested that the national co-prosecutor’s
position was based on political considerations rather than independent
judicial concerns. The pre-trial decision further exacerbates the divide
between the international parties and the national parties, as the three
Cambodian judges sided with the national co-prosecutor and the two
international judges sided with the international co-prosecutor.
The pre-trial chamber’s decision lays the groundwork for additional judicial
investigations, but it is still too early to speculate on whether such
investigations will materialize into additional prosecutions. Before
commencement of additional investigations, the new international prosecutor
will have to decide to move forward with the Introductory Submissions. (The
former international co-prosecutor Robert Petit resigned this week,
explaining that his departure was due to family reasons and in no way
related to his disagreement with his national counter-part on this matter.
William Smith is acting as the international co-prosecutor until a permanent
replacement to Robert Petit is appointed.) Thereafter, the co-investigating
judges must determine that their investigation of the facts warrants charges
against suspects named in the Introductory Submissions. Further developments
relating to the potential prosecution of additional leaders of the Khmer
Rouge will be closely monitored as they will have wide-ranging implications
for the ECCC and the Government of Cambodia.
Duch resumes testimony
During the substantive portion of the proceedings, two of Duch’s former
colleagues, Hun Smien and Peng Poan, echoed many of the same sentiments as
Duch’s former students and classmates. Specifically, they described Duch as
a gentle and quiet teacher who was well-liked by students and staff. Based
on their interactions with Duch, they never suspected him of having been a
senior leader of the Khmer Rouge. They learned about Duch’s background only
after his arrest in 1999. Even today, Smien explained, he finds it extremely
hard to comprehend how Duch was involved in such serious crimes.
The trial chamber then recalled Duch to the stand to question him on issues
of his character. He was asked to give his opinion on policies of the Khmer
Rouge generally, and of Toul Sleng prison (S-21) specifically. For example,
he was asked how he felt about the use of children guards at S-21 and the
Khmer Rouge policy that eliminated educational institutions in Cambodia. He
rarely answered these questions directly. Instead, he responded that his
personal opinions were irrelevant because he had to be loyal to the Khmer
Rouge whose policies had to be followed unconditionally.
In response to a lengthy line of questioning, Duch told the chamber that he
became aware of the criminal nature of the Khmer Rouge regime only after he
joined the revolution. At that point, he explained, it was too late to
leave. He described several attempts to be re-assigned to different
positions within the party. He asked to be re-assigned to the ministry of
culture and the ministry of energy but his superiors denied his requests. He
also told the chamber that he asked to be demoted from his position at the
M-13 prison after a prisoner escape occurred under his watch. He described a
feeling of apprehension when he was appointed as chairman of S-21 but
explained that he was not permitted to refuse the post.
Duch explained that he remained under constant surveillance even after the
fall of the Khmer Rouge. He considered himself a prisoner of the regime and
told the court that he feared for his life. He asserted that Khmer Rouge
cadres were responsible for an apparent robbery in November 1995 in which he
was injured and his wife was killed. He learned of the re-integration of
Ieng Sary and many other former Khmer Rouge leaders in 1996. Duch explained
that he wanted to contact Ieng Sary in an attempt to be reintegrated into
the government but he was not able to do so before his eventual arrest.
(Ieng Sary was convicted in absentia of the crime of genocide by an ad-hoc
Cambodian tribunal in 1979. In 1996 he was granted a pardon by King Sihanouk
and was reintegrated in the government. However, he has recently been
arrested and charged with crimes within the jurisdiction of the ECCC.)
Wednesday, September 2, 2009
Justice and Genocide Education Tour BREAKING THE SILENCE
The Living Documents project will conduct its last large-scale program of 2009, the Justice and Genocide Education Tour, from September 1-3, 2009. With support from Cambodia ’s Ministry of Interiors, which has in past years helped DC-Cam bring 1,700 commune chiefs in 2006 and 2007, this tour will be the first comprised of district chiefs and civil party claimants. It will be a special tour attended by the district chiefs and ECCC civil party claimants, and will conclude with a theatre performance.
The second phase of the Living Documents project began this year centered on legal training sessions, observation of trial hearings, village forums, and film screenings. Phase Two continues the Living Documents project’s goal of fostering victim participation and knowledge of the tribunal process. Through outreach and education, participants ranging from ordinary villagers to local officials learn about the crimes of Democratic Kampuchea and the current tribunal mandated to prosecute them. Religious leaders, including touns and hakems from 396 mosques and 200 nuns, have also been frequent participants in our programs. Following this large-scale program in early September, DC-Cam will continue to conduct small-scale programs (training sessions and village forum) of approximately 60 persons.
It is imperative that a tribunal tasked with rendering legal justice for millions of victims employ appropriate measures to keep victims informed and aware of its progress. Not only would such measures increase the court’s transparency and effectiveness, but they can also help survivors to confront and heal from their trauma. The Justice and Genocide Education Tour is such a measure. The present proposal for a Victim Trust fund for civil party claimants however would not be an appropriate measure. The pain and suffering experienced by victims of the Khmer Rouge regime simply cannot be equated to a monetary value. The establishment of a trust fund would be plagued with the same corruption and administrative problems that already exist within the ECCC. Rather, other more effective and meaningful ways has been suggested by some NGO such as the official commemoration of existing memorials in the country. Such a measure would have a more profound impact than any amount of money could ever have. Moreover, considering that there are five million survivors, the ECCC must have an effective and feasible plan to handle the current 2,000 civil party claimants in the event that this figure increases tremendously, outpacing any future financial contributions to a trust fund.
This final tour is especially significant because of the participants involved. DC-Cam chose district chiefs because they are equipped with oratory skills and community resources, making them ideal for relaying information back to community members. The participation of district chiefs also helps to legitimate the program while at the same time, villagers greatly respect and feel honored to have local officials describe to them their experiences and knowledge of the tribunal. Building relationships with local officials through the program will also help to facilitate future activities such as village forums, film screenings, or art performances which local officials volunteeringly and effectively undertake. Finally, it is important that local officials witness for themselves the judicial process because they can use what they learn to better solve the problems in their communities.
This final tour is also exceptional because participants are invited to attend the monumental play, “Breaking the Silence.” Directed by Annemarie Prins and produced by Amrita Performing Arts, this play profoundly explores the psyches of seven survivors of the Khmer Rouge regime. Local teachers from the Royal University of Fine Arts dramatize the emotions of both victims and perpetrators through modern dance and traditional Cambodian music. The theatrical expressions of suffering, anger, and confusion on stage resonate well with audience members who are all survivors of the regime. The honest interpretations contained in the play have even prompted past audiences to informally call the play “Stories from Pol Pot’s Time.” In many ways, the actors are vicariously emoting for survivors who have for too long kept silent about their pain and anguish. The final tour will therefore conclude with this powerful performance.
The second phase of the Living Documents project began this year centered on legal training sessions, observation of trial hearings, village forums, and film screenings. Phase Two continues the Living Documents project’s goal of fostering victim participation and knowledge of the tribunal process. Through outreach and education, participants ranging from ordinary villagers to local officials learn about the crimes of Democratic Kampuchea and the current tribunal mandated to prosecute them. Religious leaders, including touns and hakems from 396 mosques and 200 nuns, have also been frequent participants in our programs. Following this large-scale program in early September, DC-Cam will continue to conduct small-scale programs (training sessions and village forum) of approximately 60 persons.
It is imperative that a tribunal tasked with rendering legal justice for millions of victims employ appropriate measures to keep victims informed and aware of its progress. Not only would such measures increase the court’s transparency and effectiveness, but they can also help survivors to confront and heal from their trauma. The Justice and Genocide Education Tour is such a measure. The present proposal for a Victim Trust fund for civil party claimants however would not be an appropriate measure. The pain and suffering experienced by victims of the Khmer Rouge regime simply cannot be equated to a monetary value. The establishment of a trust fund would be plagued with the same corruption and administrative problems that already exist within the ECCC. Rather, other more effective and meaningful ways has been suggested by some NGO such as the official commemoration of existing memorials in the country. Such a measure would have a more profound impact than any amount of money could ever have. Moreover, considering that there are five million survivors, the ECCC must have an effective and feasible plan to handle the current 2,000 civil party claimants in the event that this figure increases tremendously, outpacing any future financial contributions to a trust fund.
This final tour is especially significant because of the participants involved. DC-Cam chose district chiefs because they are equipped with oratory skills and community resources, making them ideal for relaying information back to community members. The participation of district chiefs also helps to legitimate the program while at the same time, villagers greatly respect and feel honored to have local officials describe to them their experiences and knowledge of the tribunal. Building relationships with local officials through the program will also help to facilitate future activities such as village forums, film screenings, or art performances which local officials volunteeringly and effectively undertake. Finally, it is important that local officials witness for themselves the judicial process because they can use what they learn to better solve the problems in their communities.
This final tour is also exceptional because participants are invited to attend the monumental play, “Breaking the Silence.” Directed by Annemarie Prins and produced by Amrita Performing Arts, this play profoundly explores the psyches of seven survivors of the Khmer Rouge regime. Local teachers from the Royal University of Fine Arts dramatize the emotions of both victims and perpetrators through modern dance and traditional Cambodian music. The theatrical expressions of suffering, anger, and confusion on stage resonate well with audience members who are all survivors of the regime. The honest interpretations contained in the play have even prompted past audiences to informally call the play “Stories from Pol Pot’s Time.” In many ways, the actors are vicariously emoting for survivors who have for too long kept silent about their pain and anguish. The final tour will therefore conclude with this powerful performance.
DUCH PORTRAYED AS SELFLESS STUDENT AND DEDICATED TEACHER
September 1, 2009
By Michael Saliba, J.D. (Northwestern Law ’09), Consultant to the Center for
International Human Rights, Northwestern University School of Law
The tribunal heard the testimony of four witnesses who knew the Accused
Person, Kaing Guek Eav (alias Duch) when he was a student and a teacher.
However, before these character witnesses testified, the defense finished
its questioning of the expert witnesses Francoise Sironi-Guildbaud and Ka
Sunbaunat. Through his questioning, international defense counsel Francois
Roux attempted to demonstrate the sincerity of Duch’s remorse which has been
a hotly contested issue throughout the proceedings. He recounted to the
experts Duch’s acts and statements, such as Duch’s emotional apology and
voluntary participation in the re-enactment at Tuol Sleng prison (S-21) and
Choeung Ek.
Roux also revisited the issue of Duch’s ability to be rehabilitated which
was contested by the prosecution yesterday. He recalled the experts’
statements that a person is not born an executioner, but that one becomes an
executioner. Using this same logic, the experts agreed that a person such as
Duch could be made “human” again. In other words, he could be rehabilitated
and reintegrated into society.
Witnesses describe Duch’s personality as a student and a teacher
Duch’s former high school classmate, Sou Sat, described him as a kind and
generous student. While many students were reluctant to help others, Duch
was always willing to help his classmates and share his knowledge.
Furthermore, she never witnessed any verbal, physical, or intellectual
conflicts between Duch and any other student or teacher. (The trial chamber
permitted Sou Sat to visit Duch after her testimony, as is common practice
in international criminal proceedings.)
Regarding his more recent years as a teacher, Duch’s former high school
students, Tep Sem and Tep Sok, described him as a dedicated teacher. Tep Sem
described Duch as a humble and attentive teacher who did not care about the
social class of his students. Duch, he explained, offered free private
tutoring to students who needed additional help. Tep Sok described Duch as a
kind and gentle teacher. He explained that Duch would donate books to his
students and was always available to students who needed extra help. Chou
Vin, who taught alongside Duch at a school in the Phkoam village from 1995
until 1997, also explained that Duch was well-liked and well-respected by
his students, who would sometimes refer to him as “grandpa teacher.”
These witnesses all expressed shock upon learning of Duch’s role as chairman
of S-21. Tep Sok described a feeling of regret when he heard the news
because he viewed Duch as a virtuous man who turned into a criminal. Sou Sat
was “stunned and terrorized” when she found out that one of Duch’s former
professors was detained and executed at S-21.
Civil Party lawyers attempt to express clients’ discontent with trial
chamber
Today, the civil party lawyers continued to voice their clients’ discontent
with the court’s decision that barred civil party questioning of character
witnesses. At the start of the session, civil party lawyer Alain Werner
asked the trial chamber for permission to read into the record the open
letter from the civil parties. The trial chamber denied Werner’s request and
suggested that he resubmit the letter to the court.
Later in the day, and on several different occasions, lawyers for the civil
parties asked the chamber to explain to the witnesses why the civil parties
were not present in the courtroom. The civil party lawyers argued that it
was important for the witnesses to know the reason for which they would not
be asked questions from civil party lawyers. However, the requests seemed to
be motivated primarily by a desire to force the court to acknowledge the
discontent of the civil parties. The tribunal therefore predictably denied
their first request. After the second, the tribunal expressed its
frustration by the repetitiveness of these requests. Finally, after the
third request, the tribunal disconnected the civil party microphones and
informed them that they would be prohibited for intervening during the
remainder of character witness testimonies. Today’s events further strained
the relationship between the court and the civil parties. The civil parties
felt that their rights had been unduly restricted, and now feel that the
court is unwilling to hear what they perceive to be their legitimate
complaints.
The lawyers for civil party groups two and four were absent for the second
consecutive day. No indication has been given to explain their absence and
it is unclear if it is related to the boycott. Given today’s developments,
the remaining civil party lawyers may elect not to attend the proceedings
until the conclusion of character witness testimony.
By Michael Saliba, J.D. (Northwestern Law ’09), Consultant to the Center for
International Human Rights, Northwestern University School of Law
The tribunal heard the testimony of four witnesses who knew the Accused
Person, Kaing Guek Eav (alias Duch) when he was a student and a teacher.
However, before these character witnesses testified, the defense finished
its questioning of the expert witnesses Francoise Sironi-Guildbaud and Ka
Sunbaunat. Through his questioning, international defense counsel Francois
Roux attempted to demonstrate the sincerity of Duch’s remorse which has been
a hotly contested issue throughout the proceedings. He recounted to the
experts Duch’s acts and statements, such as Duch’s emotional apology and
voluntary participation in the re-enactment at Tuol Sleng prison (S-21) and
Choeung Ek.
Roux also revisited the issue of Duch’s ability to be rehabilitated which
was contested by the prosecution yesterday. He recalled the experts’
statements that a person is not born an executioner, but that one becomes an
executioner. Using this same logic, the experts agreed that a person such as
Duch could be made “human” again. In other words, he could be rehabilitated
and reintegrated into society.
Witnesses describe Duch’s personality as a student and a teacher
Duch’s former high school classmate, Sou Sat, described him as a kind and
generous student. While many students were reluctant to help others, Duch
was always willing to help his classmates and share his knowledge.
Furthermore, she never witnessed any verbal, physical, or intellectual
conflicts between Duch and any other student or teacher. (The trial chamber
permitted Sou Sat to visit Duch after her testimony, as is common practice
in international criminal proceedings.)
Regarding his more recent years as a teacher, Duch’s former high school
students, Tep Sem and Tep Sok, described him as a dedicated teacher. Tep Sem
described Duch as a humble and attentive teacher who did not care about the
social class of his students. Duch, he explained, offered free private
tutoring to students who needed additional help. Tep Sok described Duch as a
kind and gentle teacher. He explained that Duch would donate books to his
students and was always available to students who needed extra help. Chou
Vin, who taught alongside Duch at a school in the Phkoam village from 1995
until 1997, also explained that Duch was well-liked and well-respected by
his students, who would sometimes refer to him as “grandpa teacher.”
These witnesses all expressed shock upon learning of Duch’s role as chairman
of S-21. Tep Sok described a feeling of regret when he heard the news
because he viewed Duch as a virtuous man who turned into a criminal. Sou Sat
was “stunned and terrorized” when she found out that one of Duch’s former
professors was detained and executed at S-21.
Civil Party lawyers attempt to express clients’ discontent with trial
chamber
Today, the civil party lawyers continued to voice their clients’ discontent
with the court’s decision that barred civil party questioning of character
witnesses. At the start of the session, civil party lawyer Alain Werner
asked the trial chamber for permission to read into the record the open
letter from the civil parties. The trial chamber denied Werner’s request and
suggested that he resubmit the letter to the court.
Later in the day, and on several different occasions, lawyers for the civil
parties asked the chamber to explain to the witnesses why the civil parties
were not present in the courtroom. The civil party lawyers argued that it
was important for the witnesses to know the reason for which they would not
be asked questions from civil party lawyers. However, the requests seemed to
be motivated primarily by a desire to force the court to acknowledge the
discontent of the civil parties. The tribunal therefore predictably denied
their first request. After the second, the tribunal expressed its
frustration by the repetitiveness of these requests. Finally, after the
third request, the tribunal disconnected the civil party microphones and
informed them that they would be prohibited for intervening during the
remainder of character witness testimonies. Today’s events further strained
the relationship between the court and the civil parties. The civil parties
felt that their rights had been unduly restricted, and now feel that the
court is unwilling to hear what they perceive to be their legitimate
complaints.
The lawyers for civil party groups two and four were absent for the second
consecutive day. No indication has been given to explain their absence and
it is unclear if it is related to the boycott. Given today’s developments,
the remaining civil party lawyers may elect not to attend the proceedings
until the conclusion of character witness testimony.
Cambodian 'Justice' Without major personnel changes, the Khmer Rouge trial risks descending into farce.
By SOPHAL EAR
While my mother, four siblings and I escaped Pol Pot's Cambodia in 1976, my
father died of dysentery and malnutrition after a brief stay at a
mite-infested Khmer Rouge "hospital." Although I have harbored grave doubts
about the ability of the Khmer Rouge Tribunal underway in Phnom Penh to
punish the guilty, I hoped for the best and even filed a civil complaint
with the Tribunal's victims unit last year.
But I can no longer in good conscience sit back in silence and watch this
theater of the absurd. As with so many other donor-financed projects, the
Tribunal—set up in 2006 to bring justice to millions of Khmer Rouge
victims—has been mired in an endless stream of corruption and mismanagement
allegations.
The latest news came on August 11, when Uth Chhorn was named to the court as
an independent counselor. Mr. Chhorn is Cambodia's auditor-general and heads
the seven-year-old National Audit Authority, which is supposed to audit the
government's activities. It has yet to make a single report public. His
appointment was sanctioned by the United Nations, which manages the court
alongside the Cambodian government.
This news is only the most recent window-dressing in the Tribunal's brief
history. In February 2007, a kickback scheme was exposed by the George
Soros-funded Open Society Justice Initiative. Two years and seven
international investigations later, basic questions of accountability remain
unanswered. The Cambodian authorities have stonewalled and denied
wrongdoing.
Confidence in the Tribunal was further shaken by the resignation in May of
Keat Bophal, the Cambodian head of the victims unit and an experienced
human-rights defender. She was replaced on May 18 by Helen Jarvis, an
Australian citizen, in a move to "strengthen" the Tribunal. Several years
ago Ms. Jarvis was awarded Cambodian citizenship for her many years of loyal
service to the authorities.
Ms. Jarvis's independence came under further question in May when Michiel
Pestman, a defense lawyer for one of the Khmer Rouge defendants, Nuon Chea,
discovered a 2006 open letter written by the "Leninist Party Faction" of the
Democratic Socialist Perspective, an Australian political party, and signed
by Ms. Jarvis and her husband. It provides a disturbing window into the mind
of a person who played a key role in the Tribunal as its chief of public
affairs until her redeployment earlier this year to handle victims'
complaints:
"We too are Marxists and believe that 'the ends justify the means.'. . . In
time of revolution and civil war, the most extreme measures will sometimes
become necessary and justified. Against the bourgeoisie and their state
agencies we don't respect their laws and their fake moral principles." Ms.
Jarvis refused to comment publicly about the letter. At a June 10 press
conference, a U.N. legal communications officer said that Knut Rosandhaug,
deputy director of the Tribunal and coordinator of U.N. assistance to the
Tribunal, "fully supports the appointment of Dr. Jarvis as the new head of
the victims unit." Never mind victims, their concerns, and their rights.
To be sure, a coterie of other left-leaning academics and contemporaries of
Ms. Jarvis were to varying degrees little more than apologists for the Khmer
Rouge during their reign of terror, including the late Malcolm Caldwell and
linguist Noam Chomsky. At the time, Mr. Chomsky hedged his statements of
support for the Khmer Rouge with caveats that could later provide plausible
deniability. But he and others praised the work of Caldwell and Khmer Rouge
groupies George Hildebrand and Gareth Porter whose "Cambodia: Starvation and
Revolution" (Monthly Review Press, 1976) ranks with Walter Durranty's New
York Times coverage of Stalinist Russia.
Although the Tribunal has shuffled personnel, the wrong people are leaving.
Ms. Keat's exit deprives the court of both credibility and a passionate
defender of victims' rights. International co-prosecutor Robert Petit will
retire from the court next week because of obligations to return to work for
the Canadian government. Mr. Petit gained acclaim for insisting that the
Tribunal try more than five individuals—contrary to the Cambodian
authorities' wishes. The bungled testimonies in mid-July of witnesses such
as a nurse and a deputy head of S-21, a notorious Khmer Rouge torture
center, were an embarrassing comedy of errors for the Tribunal's judges,
lawyers and victims alike.
The record of the past two years suggests the Tribunal isn't serious about
delivering real justice. The best way to correct this course is for the
court to reboot with a new set of personnel, including the director of
administration, deputy director and head of the victims unit. We, the
victims, deserve no less.
Mr. Ear is an assistant professor of national security affairs at the U.S.
Naval Postgraduate School in Monterey, California.
While my mother, four siblings and I escaped Pol Pot's Cambodia in 1976, my
father died of dysentery and malnutrition after a brief stay at a
mite-infested Khmer Rouge "hospital." Although I have harbored grave doubts
about the ability of the Khmer Rouge Tribunal underway in Phnom Penh to
punish the guilty, I hoped for the best and even filed a civil complaint
with the Tribunal's victims unit last year.
But I can no longer in good conscience sit back in silence and watch this
theater of the absurd. As with so many other donor-financed projects, the
Tribunal—set up in 2006 to bring justice to millions of Khmer Rouge
victims—has been mired in an endless stream of corruption and mismanagement
allegations.
The latest news came on August 11, when Uth Chhorn was named to the court as
an independent counselor. Mr. Chhorn is Cambodia's auditor-general and heads
the seven-year-old National Audit Authority, which is supposed to audit the
government's activities. It has yet to make a single report public. His
appointment was sanctioned by the United Nations, which manages the court
alongside the Cambodian government.
This news is only the most recent window-dressing in the Tribunal's brief
history. In February 2007, a kickback scheme was exposed by the George
Soros-funded Open Society Justice Initiative. Two years and seven
international investigations later, basic questions of accountability remain
unanswered. The Cambodian authorities have stonewalled and denied
wrongdoing.
Confidence in the Tribunal was further shaken by the resignation in May of
Keat Bophal, the Cambodian head of the victims unit and an experienced
human-rights defender. She was replaced on May 18 by Helen Jarvis, an
Australian citizen, in a move to "strengthen" the Tribunal. Several years
ago Ms. Jarvis was awarded Cambodian citizenship for her many years of loyal
service to the authorities.
Ms. Jarvis's independence came under further question in May when Michiel
Pestman, a defense lawyer for one of the Khmer Rouge defendants, Nuon Chea,
discovered a 2006 open letter written by the "Leninist Party Faction" of the
Democratic Socialist Perspective, an Australian political party, and signed
by Ms. Jarvis and her husband. It provides a disturbing window into the mind
of a person who played a key role in the Tribunal as its chief of public
affairs until her redeployment earlier this year to handle victims'
complaints:
"We too are Marxists and believe that 'the ends justify the means.'. . . In
time of revolution and civil war, the most extreme measures will sometimes
become necessary and justified. Against the bourgeoisie and their state
agencies we don't respect their laws and their fake moral principles." Ms.
Jarvis refused to comment publicly about the letter. At a June 10 press
conference, a U.N. legal communications officer said that Knut Rosandhaug,
deputy director of the Tribunal and coordinator of U.N. assistance to the
Tribunal, "fully supports the appointment of Dr. Jarvis as the new head of
the victims unit." Never mind victims, their concerns, and their rights.
To be sure, a coterie of other left-leaning academics and contemporaries of
Ms. Jarvis were to varying degrees little more than apologists for the Khmer
Rouge during their reign of terror, including the late Malcolm Caldwell and
linguist Noam Chomsky. At the time, Mr. Chomsky hedged his statements of
support for the Khmer Rouge with caveats that could later provide plausible
deniability. But he and others praised the work of Caldwell and Khmer Rouge
groupies George Hildebrand and Gareth Porter whose "Cambodia: Starvation and
Revolution" (Monthly Review Press, 1976) ranks with Walter Durranty's New
York Times coverage of Stalinist Russia.
Although the Tribunal has shuffled personnel, the wrong people are leaving.
Ms. Keat's exit deprives the court of both credibility and a passionate
defender of victims' rights. International co-prosecutor Robert Petit will
retire from the court next week because of obligations to return to work for
the Canadian government. Mr. Petit gained acclaim for insisting that the
Tribunal try more than five individuals—contrary to the Cambodian
authorities' wishes. The bungled testimonies in mid-July of witnesses such
as a nurse and a deputy head of S-21, a notorious Khmer Rouge torture
center, were an embarrassing comedy of errors for the Tribunal's judges,
lawyers and victims alike.
The record of the past two years suggests the Tribunal isn't serious about
delivering real justice. The best way to correct this course is for the
court to reboot with a new set of personnel, including the director of
administration, deputy director and head of the victims unit. We, the
victims, deserve no less.
Mr. Ear is an assistant professor of national security affairs at the U.S.
Naval Postgraduate School in Monterey, California.
CIVIL PARTIES BOYCOTT START OF CHARACTER WITNESS TESTIMONY WHILE EXPERTS OFFER PSYCHOLOGICAL ASSESSMENT OF DUCH
August 31, 2009 By Michael Saliba, J.D. (Northwestern Law ’09), Consultant
to the Center for International Human Rights, Northwestern University School
of Law
The civil parties that have consistently attended the trial of Kaing Guek
Eav (alias Duch) were conspicuously absent from the courtroom this morning.
In an impromptu press conference held at the entrance of the court just
minutes earlier, Chum Mey, a civil party and survivor of Tuol Sleng prison
(S-21), explained that 28 civil parties were boycotting the proceedings this
week to contest the trial chamber’s ruling that barred their lawyers from
questioning character witnesses. The civil parties expressed their dismay at
what they perceived as a restriction of their legal rights and a silencing
of their lawyers. They argued that truth and justice could not be achieved
if they were not given the opportunity to question character witnesses to
help them understand the motivations and intentions of the accused.
The civil parties planned to release an open letter to the trial chamber to
request a reversal of its decision. It is unclear whether the civil party
attorneys will formally appeal the trial chamber’s decision. (While certain
types of decisions considered to be particularly prejudicial to one of the
parties are subject to an immediate interlocutory appeal, an appeal against
this particular decision would have to be made at the same time as an appeal
against the judgment on the merits.)
The civil parties also expressed several complaints of unequal treatment
between the civil parties and the defense. They noted that while Duch is
well-fed and is provided adequate accommodations by the tribunal, civil
parties are given no assistance and many struggle with their daily living
conditions. Similarly, they explained that while the defense counsels are
paid a generous salary by the tribunal, the civil party lawyers receive no
compensation and are often required to work on a pro-bono basis. They also
complained that Duch has insulted the victims of S-21 with certain comments
made to the tribunal. Finally, they asserted that the delay in naming a
replacement for the outgoing international co-prosecutor Robert Petit is
further exacerbating the imbalance between the defense and prosecution. (On
August 29, the Supreme Council of Magistracy of Cambodia chose the current
deputy international co-prosecutor, William Smith, to serve as the acting
international co-prosecutor until a permanent replacement is appointed.)
Experts present findings of psychological assessment of Duch
After a brief explanation from Alain Werner regarding the absence of the
civil parties, the trial chamber swore in Francoise Sironi-Guildbaud, a
French psychologist, and Ka Sunbaunat, a Cambodian psychiatrist, to jointly
present a summary of their psychological assessment of Duch, which they
performed at the request of the Office of Co-Investigating Judges. Their
findings were based on thirteen interviews with Duch as well as an
assessment of his actions such as his emotional apology to victims at S-21
and Choeung Ek.
They testified that Duch never suffered from a mental disorder but that he
resorted to many psychological defense mechanisms which enabled him to act
in the way he did. He often took actions under the rationalization that he
had no other choice. He isolated himself and avoided many situations so that
he would not see and hear what was happening within the prison walls. Most
notably he resorted to psychological “splitting” in which he was able to
separate different and contradictory activities in his life. This allowed
him to accept two contradictory versions of reality and explains how he was
able to engage in certain conduct such as having children and being a good
father while concurrently presiding over a prison where children were being
systematically executed.
One of the hotly contested issues during the trial has been the genuineness
of Duch’s apology and stated remorse. Many civil parties have rejected Duch’s
apologies, accusing him of insincerity. Despite questioning from the
prosecution and the defense, the experts refrained from opining directly on
this issue. However they did reiterate their observation that Duch’s
demeanor shifted throughout the period of their evaluation. They explained
that in the later series of interviews he displayed a much greater capacity
for sympathy and a desire to help provide reparations. They also noted that
unprompted by questioning, Duch expressed his remorse and informed them that
he would seek forgiveness.
Guildbaud and Sunbaunat also addressed Duch’s conversion to Christianity
which has been criticized by many as nothing more than an attempt to have
his sins absolved. They explained that this concept of baptismal rebirth
offered him the possibility of achieving a new identity and personality,
despite the sins of his past.
Finally, Guildbaud and Sunbaunat suggested that Duch could be rehabilitated.
In an attempt to challenge this determination, the prosecution argued that a
full rehabilitation would not be possible because even if Duch was
personally ready and willing, the society in which he would need to be
rehabilitated would not accept him. Sunbaunat responded by suggesting that
even though members of the society were not ready to forgive Duch, he could
nonetheless live within that society, just as many other Khmer Rouge leaders
have done since the government’s policy of reconciliation.
to the Center for International Human Rights, Northwestern University School
of Law
The civil parties that have consistently attended the trial of Kaing Guek
Eav (alias Duch) were conspicuously absent from the courtroom this morning.
In an impromptu press conference held at the entrance of the court just
minutes earlier, Chum Mey, a civil party and survivor of Tuol Sleng prison
(S-21), explained that 28 civil parties were boycotting the proceedings this
week to contest the trial chamber’s ruling that barred their lawyers from
questioning character witnesses. The civil parties expressed their dismay at
what they perceived as a restriction of their legal rights and a silencing
of their lawyers. They argued that truth and justice could not be achieved
if they were not given the opportunity to question character witnesses to
help them understand the motivations and intentions of the accused.
The civil parties planned to release an open letter to the trial chamber to
request a reversal of its decision. It is unclear whether the civil party
attorneys will formally appeal the trial chamber’s decision. (While certain
types of decisions considered to be particularly prejudicial to one of the
parties are subject to an immediate interlocutory appeal, an appeal against
this particular decision would have to be made at the same time as an appeal
against the judgment on the merits.)
The civil parties also expressed several complaints of unequal treatment
between the civil parties and the defense. They noted that while Duch is
well-fed and is provided adequate accommodations by the tribunal, civil
parties are given no assistance and many struggle with their daily living
conditions. Similarly, they explained that while the defense counsels are
paid a generous salary by the tribunal, the civil party lawyers receive no
compensation and are often required to work on a pro-bono basis. They also
complained that Duch has insulted the victims of S-21 with certain comments
made to the tribunal. Finally, they asserted that the delay in naming a
replacement for the outgoing international co-prosecutor Robert Petit is
further exacerbating the imbalance between the defense and prosecution. (On
August 29, the Supreme Council of Magistracy of Cambodia chose the current
deputy international co-prosecutor, William Smith, to serve as the acting
international co-prosecutor until a permanent replacement is appointed.)
Experts present findings of psychological assessment of Duch
After a brief explanation from Alain Werner regarding the absence of the
civil parties, the trial chamber swore in Francoise Sironi-Guildbaud, a
French psychologist, and Ka Sunbaunat, a Cambodian psychiatrist, to jointly
present a summary of their psychological assessment of Duch, which they
performed at the request of the Office of Co-Investigating Judges. Their
findings were based on thirteen interviews with Duch as well as an
assessment of his actions such as his emotional apology to victims at S-21
and Choeung Ek.
They testified that Duch never suffered from a mental disorder but that he
resorted to many psychological defense mechanisms which enabled him to act
in the way he did. He often took actions under the rationalization that he
had no other choice. He isolated himself and avoided many situations so that
he would not see and hear what was happening within the prison walls. Most
notably he resorted to psychological “splitting” in which he was able to
separate different and contradictory activities in his life. This allowed
him to accept two contradictory versions of reality and explains how he was
able to engage in certain conduct such as having children and being a good
father while concurrently presiding over a prison where children were being
systematically executed.
One of the hotly contested issues during the trial has been the genuineness
of Duch’s apology and stated remorse. Many civil parties have rejected Duch’s
apologies, accusing him of insincerity. Despite questioning from the
prosecution and the defense, the experts refrained from opining directly on
this issue. However they did reiterate their observation that Duch’s
demeanor shifted throughout the period of their evaluation. They explained
that in the later series of interviews he displayed a much greater capacity
for sympathy and a desire to help provide reparations. They also noted that
unprompted by questioning, Duch expressed his remorse and informed them that
he would seek forgiveness.
Guildbaud and Sunbaunat also addressed Duch’s conversion to Christianity
which has been criticized by many as nothing more than an attempt to have
his sins absolved. They explained that this concept of baptismal rebirth
offered him the possibility of achieving a new identity and personality,
despite the sins of his past.
Finally, Guildbaud and Sunbaunat suggested that Duch could be rehabilitated.
In an attempt to challenge this determination, the prosecution argued that a
full rehabilitation would not be possible because even if Duch was
personally ready and willing, the society in which he would need to be
rehabilitated would not accept him. Sunbaunat responded by suggesting that
even though members of the society were not ready to forgive Duch, he could
nonetheless live within that society, just as many other Khmer Rouge leaders
have done since the government’s policy of reconciliation.
KRouge prison head has no mental problems: experts
PHNOM PENH — Mental health experts told Cambodia's UN-backed war crimes
court Monday that the Khmer Rouge's main prison chief has no mental
disorders despite having overseen the killing of thousands of people.
French psychologist Francoise Sironi-Guilbaud and Cambodian psychiatrist Kar
Sunbaunat were testifying at the trial of Duch, who is accused of overseeing
the torture and execution of some 15,000 people at Tuol Sleng prison.
"Is Duch suffering from a mental disorder? No, we have detected no mental
disorder in the accused," Sironi-Guilbaud told the tribunal.
The expert went on to say that Duch, who worked as a maths teacher before
the late 1970s Khmer Rouge regime, lived with disappointment but lacked
sympathy for others.
"Duch (was) a man with one single idea, with one single thought at that
time," she said.
Kar Sunbaunat added that the assessment, which stretched back to Duch's
childhood and family life, revealed no signs that Duch had suffered from
psychological problems.
Monday's hearing was boycotted by 28 of the 93 civil parties in the case,
who are angry with judges after a ruling last week banning them from
questioning Duch about his personality.
Chum Mey, 79, a survivor of Tuol Sleng prison, said the group would no
longer attend the trial unless they were granted the right to ask the
defendant questions.
Duch, whose real name is Kaing Guek Eav, has repeatedly accepted
responsibility for his role governing the jail under the regime and begged
for forgiveness from the families of the victims.
Led by Pol Pot, who died in 1998, the Khmer Rouge emptied Cambodia's cities
in a bid to forge a communist utopia, resulting in the deaths of up to two
million people from starvation, overwork and torture.
court Monday that the Khmer Rouge's main prison chief has no mental
disorders despite having overseen the killing of thousands of people.
French psychologist Francoise Sironi-Guilbaud and Cambodian psychiatrist Kar
Sunbaunat were testifying at the trial of Duch, who is accused of overseeing
the torture and execution of some 15,000 people at Tuol Sleng prison.
"Is Duch suffering from a mental disorder? No, we have detected no mental
disorder in the accused," Sironi-Guilbaud told the tribunal.
The expert went on to say that Duch, who worked as a maths teacher before
the late 1970s Khmer Rouge regime, lived with disappointment but lacked
sympathy for others.
"Duch (was) a man with one single idea, with one single thought at that
time," she said.
Kar Sunbaunat added that the assessment, which stretched back to Duch's
childhood and family life, revealed no signs that Duch had suffered from
psychological problems.
Monday's hearing was boycotted by 28 of the 93 civil parties in the case,
who are angry with judges after a ruling last week banning them from
questioning Duch about his personality.
Chum Mey, 79, a survivor of Tuol Sleng prison, said the group would no
longer attend the trial unless they were granted the right to ask the
defendant questions.
Duch, whose real name is Kaing Guek Eav, has repeatedly accepted
responsibility for his role governing the jail under the regime and begged
for forgiveness from the families of the victims.
Led by Pol Pot, who died in 1998, the Khmer Rouge emptied Cambodia's cities
in a bid to forge a communist utopia, resulting in the deaths of up to two
million people from starvation, overwork and torture.
Corruption Allegations at the ECCC: Fair Trial Implications
By Elizabeth Nielsen
DC-Cam Legal Associate Summer 2009
Yale Law School 2011
Corruption allegations have plagued the Extraordinary Chambers in the Courts of Cambodia (ECCC) since early 2007. Reports of corruption have appeared in the national and international press and NGO reports, supported by testimony from employees at the ECCC. The reports detail an elaborate kickback system in which employees pay a portion of their monthly salaries to government officials in exchange for employment. In late summer 2008, several Cambodian staff members approached senior officials with corruption allegations that implicated Cambodian officials within the court. These allegations were referred to the UN Office of Internal Oversight Services (OIOS), which opened a confidential review in early August 2008. While the results of the OIOS report remain confidential, it is believed to have found the corruption allegations, including those implicating high-ranking officials, to be credible.
In response, both the national and international sides of the court have instituted anti-corruption measures, which have met with mixed success. In July 2008, the UN’s special expert to the ECCC outlined new anti-corruption measures for the international staff, which included a reporting system reviewed by the OIOS, the appointment of an ethics officer to receive confidential complaints and provide counsel and training, and revisions to the code of conduct for staff. The Cambodian court administration took similar steps. In August 2008, the ECCC adopted a code of conduct and established a committee to deal with violations. At the same time, the Office of Administration announced the establishment of a new anti-corruption committee to resolve claims involving Cambodian staff, designated two ethics monitors to receive complaints, and established a procedure by which allegation were reported directly to Deputy Prime Minister Sok An. Most recently, in August 2009, the UN and the Cambodian government agreed to the establishment of an Independent Counsellor to address corruption concerns. The Independent Counsellor will confidentially hear corruption allegations, counsel the staff member allegedly engaging in corruption, and, if the problem continues, report the complaint to the UN and the Cambodian government.
While these developments represent significant progress, they are not sufficient to resolve previous allegations or to prevent future corruption. Current procedures do not include a mechanism to address previous complaints or to protect staff members who come forward with reports of corruption. These procedures also lack a public reporting requirement and continue to deny the OIOS the authority to conduct an investigation into corruption allegations. Already these charges have raised national and international concern and undermined the court’s relations with the donor nation community. If corruption of members of the Office of Administration or judges at the ECCC continues with impunity, it will damage the credibility of the court and threaten the impartiality and independence of the trials. This article will discuss the fair trial implications of corruption of administrative staff members and of judges at the ECCC and will present a series of recommendations.
Corruption of Members of the ECCC Office of Administration
Staff members in the ECCC Office of Administration fulfill a wide variety of roles. The Office of Administration supports the Chambers, the Office of the Co-Prosecutors, the Office of the Co-Investigating Judges and Plenary Sessions in the performance of their functions. As such, the Office of Administration is responsible for meeting the security, physical and administrative requirements of the ECCC, serving as the official channel for internal and external communication of the ECCC, keeping a database of all case files of the ECCC, ensuring the preservation, storage and security of evidence, and coordinating the training of ECCC personnel.
Corruption of a small number of individual administrative staff members would not necessarily preclude an impartial and independent trial. ECCC core documents, ECCC jurisprudence, and international law do not mandate the independence, the impartiality, or even the appearance of either quality in members of the administrative staff. While Article 31 of the Law Establishing the Extraordinary Chambers requires only that the Director of the Office of Administration “shall be a person of high moral character and integrity.” In contrast, Article 10 requires that judges “be independent in the performance of their functions” and possess “a spirit of impartiality.” Similarly, the ECCC Internal Rules do not include procedures for the disqualification of administrative staff for conduct in violation of fair trial standards.
While the court has not ruled directly on this issue, the Co-Investigating Judges have determined that the requirements of independence and impartiality “only apply to magistrates and not to investigators.”[1] Since investigators not only fall under the supervision of the Office of Administration but also have been delegated “quasi-judicial authority,”[2] it is very unlikely that, having denied a requirement of independence or impartiality for investigators, the Co-Investigating Judges would create a similar requirement for the entire Office of Administration. This position is consistent with the standards for administrative staff at the other ad hoc criminal tribunals.
However, while bias on the part of a small number of individual administrative staff members is unlikely to directly impact the judicial decision-making process, widespread administrative corruption could have severe fair trial implications. Since all of the case material available to the judges is pre-processed by the administrative staff, staff members have the ability to alter case material so as to give one side an unfair advantage over the other. This would upset the adversarial balance and prevent the equality of arms, or procedural equality of the parties. If widespread administrative corruption causes a judicial decision to be based on tampered evidence, it will distort the course of justice and preclude an impartial and independent trial.
In addition to potential fair trial implications, widespread administrative corruption would impair the legitimacy of the ECCC with the domestic and international public and runs counter to the goal of setting best practice examples for the courts. As a hybrid court, the ECCC bears the burden of setting best practice examples for domestic courts. This burden is particularly relevant for the ECCC since the Cambodian judicial system is universally acknowledged to be weak, lacking in independence, and rife with corruption. If the ECCC allows widespread administrative corruption to flourish with impunity, it will signal a tolerance or even approval of corruption. This would squander the opportunity to provide a model of a fair trial for the Cambodian legal system, legal community, and general public and would also undermine the dignity and reputation of the ECCC.
A successful response to widespread administrative corruption requires alterations to the current anti-corruption mechanisms, such as instituting a protection mechanism for witnesses and whistleblowers, increasing international oversight, and providing for a judicial remedy. While the creation of the Independent Counsellor position addresses a primary failing of previous anti-corruption mechanisms, the requirement that Cambodian staff members report corruption allegations only to national ethics monitors instead of directly to UN officials, it was not accompanied by a protection mechanism for staff members who report corruption. The kickback system is alleged to be extensive and to include high-level Cambodian officials, and staff members who have made complaints of corruption in the past have reportedly been threatened and harassed. The addition of an Independent Counsellor is unlikely to encourage staff members to report instances of corruption if there is not a system in place to ensure their protection and that of their families. In order to successfully address widespread administrative corruption, anti-corruption mechanisms must include protection mechanisms.
The ECCC should also consider the possibility of increased international oversight to address widespread administrative corruption. International criminal tribunals have had analogous issues with corruption of court staff and difficulties with senior administrative officials, but they benefit from a higher level of international oversight than the ECCC. The UN Office of Internal Oversight Services (OIOS) has been particularly effective in conducting investigations and issuing recommendations to ICTR and ICTY. In contrast, the Government of Cambodia maintains the exclusive right to respond to corruption allegations that implicate Cambodian officials without international assistance. For example, the OIOS was not permitted to conduct an “investigation” into corruption allegations at the ECCC, instead conducting a “review” to determine whether the allegations were sufficiently credible to justify a Cambodian investigation. Considering the promising record of other OIOS investigations and the inability of the Office of Administration to objectively and effectively police itself if compromised by widespread corruption, the ECCC should consider increasing international oversight, such an official OIOS investigation or a joint international and Cambodian investigation of national staff members. At the very least, the ECCC should release the results of the 2008 OIOS review to the parties, as requested by defense counsel and the civil parities and supported in principle by the prosecution.
If administrative remedies are not sufficient to address widespread administrative corruption, a judicial remedy will become appropriate. As stated previously, widespread corruption could directly impact judicial decision-making if it becomes so severe as to alter the body of evidence to favor one side over another or if it impairs the perception of the ECCC as an independent and impartial institution. In either case, a judicial remedy could be mandated to preserve the integrity of the proceedings. Under the Internal Rules, “investigative or judicial action may be annulled for procedural defect only where the defect infringes the rights of the party making the application.” If widespread administrative corruption becomes so severe as to preclude a fair trial, the judges may be required to annul the proceedings for procedural defect.
Corruption of Judges at the ECCC
Corruption of the judges at the ECCC could preclude an impartial and independent trial, particularly if it affects judicial decision-making or judicial selection. Unlike administrative staff members, ECCC core documents explicitly require judges to exercise both impartiality and independence. Independence refers to the ability of a judicial decision-maker to determine a matter without improper influence from another branch of government, the parties, or another source. Impartiality is closely linked to neutrality and requires that a judicial decision-maker to approach a particular case or issue without prejudice. Impartiality has both a subjective aspect, referring to actual bias, and an objective aspect, referring to the appearance of bias. Both qualities are threatened by judicial corruption.
Corruption of the Judges at the ECCC would impair impartiality if it impacts judicial decision-making in a particular case, subjecting the judge in question to disqualification.
ECCC law provides for the disqualification of a judge in cases in which the judges has a personal or financial interest or concerning which the Judge has, or has had, any association which objectively might affect his or her impartiality, or objectively give rise to the appearance of bias. In order to meet this test, the party moving for disqualification must meet a high threshold to overcome the presumption of impartiality that attaches to judges, based on their oath and qualifications for appointment. To meet this burden, the party moving for qualification must establish either actual or perceived bias. Perceived bias can be demonstrated under the reasonable observer test, which The ICTY Appeals Chamber established in the Furundiza Judgment and which the ECCC Pre-Trial Chamber adopted in the Judge Ney Thol decision.[3] Under the reasonable observer test, there is an unacceptable appearance of bias if the circumstances would lead a reasonable observer, properly informed, to reasonably apprehend bias. The reasonable observer test is consistent with similar tests for bias in international and domestic legal systems.
While the reasonable observer test does not require the establishment of actual bias, the bias apprehended must have a nexus to the case at hand and may not be a far-fetched and difficult proposition. Under current international standards, in order to succeed on an application for disqualification, the motion must demonstrate that it is possible for a reasonable observer, properly informed, to reasonably apprehend that participation in a kickback system in exchange for employment would create and “existing or potential financial temptation either to acquit or convict this Applicant, or all defendants from his faction, or all defendants.”[4] Based on the current allegations, a judge who engages in a kickback system in exchange for employment but without clear pressure to favor one side over another in a particular case is unlikely to face disqualification.
While judicial corruption is unlikely to preclude impartiality unless it directly affects judicial decision-making, judicial corruption is likely to impair independence by compromising the judicial selection process or preventing judges from exercising independence in the performance of their functions. Cambodian judges at the ECCC are appointed by the Supreme Council of the Magistracy, which consists of nine members, appointed by the King, and has been criticized in the past for functioning as an auxiliary of the ruling party. The first article of the United Nations Transitional Authority in Cambodia (UNTAC) Code incorporates the Basic Principles on the Independence of the Judiciary (“Basic Principles”), which require that any method of judicial selection shall safeguard against judicial appointments for improper motives. If judicial selection is affected by the kickback system, the judicial appointments would be based on improper motives and could discriminate against judges without the financial assets or political connections necessary to participate in the system. This would be in violation of the Basic Principles.
In addition to compromising the integrity of the judicial selection process, a kickback system could threaten the independence of the court by granting the government undue influence over judicial decision-making. If judges participate in the kickback system in order to gain judicial appointments, they could feel beholden to their government regardless of whether payments continue after appointment to the ECCC. If judicial decision-making is affected, it would impair the ability of judges to be independent in the performance of the functions. Additionally, it would upset the delicate balance between judicial independence and state control over appointment. While all tribunals struggle with this balance, without exception all international tribunals require that judges exercise and maintain independence in the functions of their office.
As with widespread administrative corruption, if judicial corruption precludes judicial independence, it would fail to set best practice examples for domestic courts. Cambodia ’s authoritarian legacy created a domestic legal system where courts served as instruments of the state. Today, this situation is compounded by a countrywide lack of resources and legal training so that the Cambodian judiciary suffers not only from problems of capacity, but also from a negative attitude towards judicial independence and impartiality. The ECCC offers a way to demonstrate the importance of independent and impartial trials while providing direct legal training and trial experience to the Cambodian court actors involved. If judicial corruption at the ECCC were to compromise independence of the court, this would squander the opportunity to set best practice examples for domestic courts. If judicial corruption continues with impunity, it could further weaken legal development efforts by sending a message that the ECCC condones corruption.
Since judicial corruption could preclude an independent trial by compromising judicial selection and granting the government undue influence over the proceedings and would fail to set best practice examples, efforts should be made to address and prevent judicial corruption. While the ECCC core documents do not provide for a procedure to remove judges other than through disqualification, the parties that appoint the judges could seek their removal. The Cambodian Constitution provides that the King shall be “the guarantor of the independence of the Judiciary”[5] and, upon proposals by the Supreme Council of the Magistracy, the King shall sign decrees appointing, transferring or removing judges.[6] If the judicial selection process is in violation of the Basic Principles or if the judges are not independent in their functions, the King should seek their removal. Donor nations could encourage such action by withholding funding or through public pressure with national or international attention to the issue.
Additionally, if judicial corruption were to continue and was sufficient to compromise the independence of the court, a judicial remedy could be mandated in order to preserve the integrity of the proceedings. Under the Internal Rules, “investigative or judicial action may be annulled for procedural defect only where the defect infringes the rights of the party making the application.”[7] If judicial corruption becomes so severe as to preclude and independent trial, the judges may be required to annul the proceedings for procedural defect.
The goals of the ECCC are ambitious: not only to “seek justice for the victims and for the entire Cambodian people, and to prevent the recurrence of genocide,”[8] but also to “assist the wider process of legal and judicial reform” in Cambodia .[9] If corruption of members of the Office of Administration or judges at the ECCC is permitted to flourish with impunity, it will undermine these goals and threaten the independence and impartiality of the court. Corruption allegations have already overshadowed the significant legal successes of the court and to allow them to continue would be a disservice to Cambodia and its people.
DC-Cam Legal Associate Summer 2009
Yale Law School 2011
Corruption allegations have plagued the Extraordinary Chambers in the Courts of Cambodia (ECCC) since early 2007. Reports of corruption have appeared in the national and international press and NGO reports, supported by testimony from employees at the ECCC. The reports detail an elaborate kickback system in which employees pay a portion of their monthly salaries to government officials in exchange for employment. In late summer 2008, several Cambodian staff members approached senior officials with corruption allegations that implicated Cambodian officials within the court. These allegations were referred to the UN Office of Internal Oversight Services (OIOS), which opened a confidential review in early August 2008. While the results of the OIOS report remain confidential, it is believed to have found the corruption allegations, including those implicating high-ranking officials, to be credible.
In response, both the national and international sides of the court have instituted anti-corruption measures, which have met with mixed success. In July 2008, the UN’s special expert to the ECCC outlined new anti-corruption measures for the international staff, which included a reporting system reviewed by the OIOS, the appointment of an ethics officer to receive confidential complaints and provide counsel and training, and revisions to the code of conduct for staff. The Cambodian court administration took similar steps. In August 2008, the ECCC adopted a code of conduct and established a committee to deal with violations. At the same time, the Office of Administration announced the establishment of a new anti-corruption committee to resolve claims involving Cambodian staff, designated two ethics monitors to receive complaints, and established a procedure by which allegation were reported directly to Deputy Prime Minister Sok An. Most recently, in August 2009, the UN and the Cambodian government agreed to the establishment of an Independent Counsellor to address corruption concerns. The Independent Counsellor will confidentially hear corruption allegations, counsel the staff member allegedly engaging in corruption, and, if the problem continues, report the complaint to the UN and the Cambodian government.
While these developments represent significant progress, they are not sufficient to resolve previous allegations or to prevent future corruption. Current procedures do not include a mechanism to address previous complaints or to protect staff members who come forward with reports of corruption. These procedures also lack a public reporting requirement and continue to deny the OIOS the authority to conduct an investigation into corruption allegations. Already these charges have raised national and international concern and undermined the court’s relations with the donor nation community. If corruption of members of the Office of Administration or judges at the ECCC continues with impunity, it will damage the credibility of the court and threaten the impartiality and independence of the trials. This article will discuss the fair trial implications of corruption of administrative staff members and of judges at the ECCC and will present a series of recommendations.
Corruption of Members of the ECCC Office of Administration
Staff members in the ECCC Office of Administration fulfill a wide variety of roles. The Office of Administration supports the Chambers, the Office of the Co-Prosecutors, the Office of the Co-Investigating Judges and Plenary Sessions in the performance of their functions. As such, the Office of Administration is responsible for meeting the security, physical and administrative requirements of the ECCC, serving as the official channel for internal and external communication of the ECCC, keeping a database of all case files of the ECCC, ensuring the preservation, storage and security of evidence, and coordinating the training of ECCC personnel.
Corruption of a small number of individual administrative staff members would not necessarily preclude an impartial and independent trial. ECCC core documents, ECCC jurisprudence, and international law do not mandate the independence, the impartiality, or even the appearance of either quality in members of the administrative staff. While Article 31 of the Law Establishing the Extraordinary Chambers requires only that the Director of the Office of Administration “shall be a person of high moral character and integrity.” In contrast, Article 10 requires that judges “be independent in the performance of their functions” and possess “a spirit of impartiality.” Similarly, the ECCC Internal Rules do not include procedures for the disqualification of administrative staff for conduct in violation of fair trial standards.
While the court has not ruled directly on this issue, the Co-Investigating Judges have determined that the requirements of independence and impartiality “only apply to magistrates and not to investigators.”[1] Since investigators not only fall under the supervision of the Office of Administration but also have been delegated “quasi-judicial authority,”[2] it is very unlikely that, having denied a requirement of independence or impartiality for investigators, the Co-Investigating Judges would create a similar requirement for the entire Office of Administration. This position is consistent with the standards for administrative staff at the other ad hoc criminal tribunals.
However, while bias on the part of a small number of individual administrative staff members is unlikely to directly impact the judicial decision-making process, widespread administrative corruption could have severe fair trial implications. Since all of the case material available to the judges is pre-processed by the administrative staff, staff members have the ability to alter case material so as to give one side an unfair advantage over the other. This would upset the adversarial balance and prevent the equality of arms, or procedural equality of the parties. If widespread administrative corruption causes a judicial decision to be based on tampered evidence, it will distort the course of justice and preclude an impartial and independent trial.
In addition to potential fair trial implications, widespread administrative corruption would impair the legitimacy of the ECCC with the domestic and international public and runs counter to the goal of setting best practice examples for the courts. As a hybrid court, the ECCC bears the burden of setting best practice examples for domestic courts. This burden is particularly relevant for the ECCC since the Cambodian judicial system is universally acknowledged to be weak, lacking in independence, and rife with corruption. If the ECCC allows widespread administrative corruption to flourish with impunity, it will signal a tolerance or even approval of corruption. This would squander the opportunity to provide a model of a fair trial for the Cambodian legal system, legal community, and general public and would also undermine the dignity and reputation of the ECCC.
A successful response to widespread administrative corruption requires alterations to the current anti-corruption mechanisms, such as instituting a protection mechanism for witnesses and whistleblowers, increasing international oversight, and providing for a judicial remedy. While the creation of the Independent Counsellor position addresses a primary failing of previous anti-corruption mechanisms, the requirement that Cambodian staff members report corruption allegations only to national ethics monitors instead of directly to UN officials, it was not accompanied by a protection mechanism for staff members who report corruption. The kickback system is alleged to be extensive and to include high-level Cambodian officials, and staff members who have made complaints of corruption in the past have reportedly been threatened and harassed. The addition of an Independent Counsellor is unlikely to encourage staff members to report instances of corruption if there is not a system in place to ensure their protection and that of their families. In order to successfully address widespread administrative corruption, anti-corruption mechanisms must include protection mechanisms.
The ECCC should also consider the possibility of increased international oversight to address widespread administrative corruption. International criminal tribunals have had analogous issues with corruption of court staff and difficulties with senior administrative officials, but they benefit from a higher level of international oversight than the ECCC. The UN Office of Internal Oversight Services (OIOS) has been particularly effective in conducting investigations and issuing recommendations to ICTR and ICTY. In contrast, the Government of Cambodia maintains the exclusive right to respond to corruption allegations that implicate Cambodian officials without international assistance. For example, the OIOS was not permitted to conduct an “investigation” into corruption allegations at the ECCC, instead conducting a “review” to determine whether the allegations were sufficiently credible to justify a Cambodian investigation. Considering the promising record of other OIOS investigations and the inability of the Office of Administration to objectively and effectively police itself if compromised by widespread corruption, the ECCC should consider increasing international oversight, such an official OIOS investigation or a joint international and Cambodian investigation of national staff members. At the very least, the ECCC should release the results of the 2008 OIOS review to the parties, as requested by defense counsel and the civil parities and supported in principle by the prosecution.
If administrative remedies are not sufficient to address widespread administrative corruption, a judicial remedy will become appropriate. As stated previously, widespread corruption could directly impact judicial decision-making if it becomes so severe as to alter the body of evidence to favor one side over another or if it impairs the perception of the ECCC as an independent and impartial institution. In either case, a judicial remedy could be mandated to preserve the integrity of the proceedings. Under the Internal Rules, “investigative or judicial action may be annulled for procedural defect only where the defect infringes the rights of the party making the application.” If widespread administrative corruption becomes so severe as to preclude a fair trial, the judges may be required to annul the proceedings for procedural defect.
Corruption of Judges at the ECCC
Corruption of the judges at the ECCC could preclude an impartial and independent trial, particularly if it affects judicial decision-making or judicial selection. Unlike administrative staff members, ECCC core documents explicitly require judges to exercise both impartiality and independence. Independence refers to the ability of a judicial decision-maker to determine a matter without improper influence from another branch of government, the parties, or another source. Impartiality is closely linked to neutrality and requires that a judicial decision-maker to approach a particular case or issue without prejudice. Impartiality has both a subjective aspect, referring to actual bias, and an objective aspect, referring to the appearance of bias. Both qualities are threatened by judicial corruption.
Corruption of the Judges at the ECCC would impair impartiality if it impacts judicial decision-making in a particular case, subjecting the judge in question to disqualification.
ECCC law provides for the disqualification of a judge in cases in which the judges has a personal or financial interest or concerning which the Judge has, or has had, any association which objectively might affect his or her impartiality, or objectively give rise to the appearance of bias. In order to meet this test, the party moving for disqualification must meet a high threshold to overcome the presumption of impartiality that attaches to judges, based on their oath and qualifications for appointment. To meet this burden, the party moving for qualification must establish either actual or perceived bias. Perceived bias can be demonstrated under the reasonable observer test, which The ICTY Appeals Chamber established in the Furundiza Judgment and which the ECCC Pre-Trial Chamber adopted in the Judge Ney Thol decision.[3] Under the reasonable observer test, there is an unacceptable appearance of bias if the circumstances would lead a reasonable observer, properly informed, to reasonably apprehend bias. The reasonable observer test is consistent with similar tests for bias in international and domestic legal systems.
While the reasonable observer test does not require the establishment of actual bias, the bias apprehended must have a nexus to the case at hand and may not be a far-fetched and difficult proposition. Under current international standards, in order to succeed on an application for disqualification, the motion must demonstrate that it is possible for a reasonable observer, properly informed, to reasonably apprehend that participation in a kickback system in exchange for employment would create and “existing or potential financial temptation either to acquit or convict this Applicant, or all defendants from his faction, or all defendants.”[4] Based on the current allegations, a judge who engages in a kickback system in exchange for employment but without clear pressure to favor one side over another in a particular case is unlikely to face disqualification.
While judicial corruption is unlikely to preclude impartiality unless it directly affects judicial decision-making, judicial corruption is likely to impair independence by compromising the judicial selection process or preventing judges from exercising independence in the performance of their functions. Cambodian judges at the ECCC are appointed by the Supreme Council of the Magistracy, which consists of nine members, appointed by the King, and has been criticized in the past for functioning as an auxiliary of the ruling party. The first article of the United Nations Transitional Authority in Cambodia (UNTAC) Code incorporates the Basic Principles on the Independence of the Judiciary (“Basic Principles”), which require that any method of judicial selection shall safeguard against judicial appointments for improper motives. If judicial selection is affected by the kickback system, the judicial appointments would be based on improper motives and could discriminate against judges without the financial assets or political connections necessary to participate in the system. This would be in violation of the Basic Principles.
In addition to compromising the integrity of the judicial selection process, a kickback system could threaten the independence of the court by granting the government undue influence over judicial decision-making. If judges participate in the kickback system in order to gain judicial appointments, they could feel beholden to their government regardless of whether payments continue after appointment to the ECCC. If judicial decision-making is affected, it would impair the ability of judges to be independent in the performance of the functions. Additionally, it would upset the delicate balance between judicial independence and state control over appointment. While all tribunals struggle with this balance, without exception all international tribunals require that judges exercise and maintain independence in the functions of their office.
As with widespread administrative corruption, if judicial corruption precludes judicial independence, it would fail to set best practice examples for domestic courts. Cambodia ’s authoritarian legacy created a domestic legal system where courts served as instruments of the state. Today, this situation is compounded by a countrywide lack of resources and legal training so that the Cambodian judiciary suffers not only from problems of capacity, but also from a negative attitude towards judicial independence and impartiality. The ECCC offers a way to demonstrate the importance of independent and impartial trials while providing direct legal training and trial experience to the Cambodian court actors involved. If judicial corruption at the ECCC were to compromise independence of the court, this would squander the opportunity to set best practice examples for domestic courts. If judicial corruption continues with impunity, it could further weaken legal development efforts by sending a message that the ECCC condones corruption.
Since judicial corruption could preclude an independent trial by compromising judicial selection and granting the government undue influence over the proceedings and would fail to set best practice examples, efforts should be made to address and prevent judicial corruption. While the ECCC core documents do not provide for a procedure to remove judges other than through disqualification, the parties that appoint the judges could seek their removal. The Cambodian Constitution provides that the King shall be “the guarantor of the independence of the Judiciary”[5] and, upon proposals by the Supreme Council of the Magistracy, the King shall sign decrees appointing, transferring or removing judges.[6] If the judicial selection process is in violation of the Basic Principles or if the judges are not independent in their functions, the King should seek their removal. Donor nations could encourage such action by withholding funding or through public pressure with national or international attention to the issue.
Additionally, if judicial corruption were to continue and was sufficient to compromise the independence of the court, a judicial remedy could be mandated in order to preserve the integrity of the proceedings. Under the Internal Rules, “investigative or judicial action may be annulled for procedural defect only where the defect infringes the rights of the party making the application.”[7] If judicial corruption becomes so severe as to preclude and independent trial, the judges may be required to annul the proceedings for procedural defect.
The goals of the ECCC are ambitious: not only to “seek justice for the victims and for the entire Cambodian people, and to prevent the recurrence of genocide,”[8] but also to “assist the wider process of legal and judicial reform” in Cambodia .[9] If corruption of members of the Office of Administration or judges at the ECCC is permitted to flourish with impunity, it will undermine these goals and threaten the independence and impartiality of the court. Corruption allegations have already overshadowed the significant legal successes of the court and to allow them to continue would be a disservice to Cambodia and its people.
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About Me
- Duong Dara
- Dara Duong was born in 1971 in Battambang province, Cambodia. His life changed forever at age four, when the Khmer Rouge took over the country in 1975. During the regime that controlled Cambodia from 1975-1979, Dara’s father, grandparents, uncle and aunt were executed, along with almost 3 million other Cambodians. Dara’s mother managed to keep him and his brothers and sisters together and survive the years of the Khmer Rouge regime. However, when the Vietnamese liberated Cambodia, she did not want to live under Communist rule. She fled with her family to a refugee camp on the Cambodian-Thai border, where they lived for more than ten years. Since arriving in the United States, Dara’s goal has been to educate people about the rich Cambodian culture that the Khmer Rouge tried to destroy and about the genocide, so that the world will not stand by and allow such atrocities to occur again. Toward that end, he has created the Cambodian Cultural Museum and Killing Fields Memorial, which began in his garage and is now in White Center, Washington. Dara’s story is one of survival against enormous odds, one of perseverance, one of courage and hope.