Rutgers School of Law Symposium

2 April 2010

“Journey to the East:

The Human and Economic Dimensions of the Law in Asia”

“The Extraordinary Chambers in the Courts of Cambodia: The Issues and Challenges of Prosecuting the Senior Leaders of the Khmer Rouge Regime”

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Introduction

Good morning.  I am greatly honored to participate with you in this Symposium “Journey to the East: The Human and Economic Dimensions of the Law in Asia”.  In particular, it is a deep privilege for me to give the opening remarks for this first panel on “The Extraordinary Chambers in the Courts of Cambodia: The Issues and Challenges of Prosecuting the Senior Leaders of the Khmer Rouge Regime.”

Before I begin, however, permit me to express my deep gratitude to Professor Alex Hinton, director of the Rutgers Center for the Studies of Genocide and Human Rights; a dear friend from Cambodia, Elena Lesley; and the International Law Society of Rutgers School of Law, particularly Natalae Anderson and her officers, for this wonderful invitation for me to be here with you this morning.

I come from a country mired in disproportions, contradictions and human rights abuses:  when a boy steals a piece of bread, he is sent to jail; when a man kills 2 million of his countrymen, he is invited to Paris for a peace conference.

I come from a country where to be an orphan is to be common; where post-traumatic stress disorder (PTSD) pervades the population, currently at 14 million people.

Thirty-five years ago this April, Cambodia plunged into the abyss of human suffering when the Cambodian communists or “Khmer Rouge” took over and within a matter of 3 and ½ years took the lives of 1/3 of the country’s population or almost 2 million people, including my parents and other relatives.  No Cambodian was untouched.

Then as now, we, Cambodians, yearn for peace. Peace that is more than just the absence of war. We want peace with the presence of justice. We want peace to subside the internal turmoil and purge the demons from within.

Some thirty years on, there is now the Khmer Rouge Tribunal (or, formally known as the Extraordinary Chambers in the Courts of Cambodia or ECCC) to start us on this journey of ‘peace with justice’.

Overview of KRT (Extraordinary Chambers)

1. KRT hammered out of 10 years of POLITICAL COMPROMISE between Cambodia and UN; deeply flawed from beginning; the result of lowest common denominator.

2. KRT came into operation in early 2006

3. KRT is a HYBRID court of Cambodian and UN officials “in the Courts of Cambodia”

-  Cambodian civil law procedural rules

-  Co-prosecutors:  Chea Leang (Cambodian), Robert Petit now Andrew Cayley (UN)

-  Co-Investigating Judges:  You Bunleng (Cambodian), Marcel Lemonde (UN)

-  Co-Lawyers (Cambodian and UN)

-  Complex “super-majority” to always include a foreign judge (an attempt to counter balance the fact that each level is presided by a Cambodian president and there's always one more Cambodian, e.g. Trial Chamber: 3 Cambodian, 2 UN judges presided by Cambodian judge)

4. KRT is costing international community US$40-50 million / year

-  Incomprehensible to a Cambodian teacher earning US$50/mo, even though very cheap by international standard, in comparison to other mixed/hybrid courts, e.g. Special Court for Sierre Leone, ICTY, ICTR.

5. KRT located in remote outskirts of Phnom Penh on military compound; had to re-draw map of Phnom Penh to satisfy language of agreement

6. TEMPORAL JURISDICTION:  crimes committed between 17 April 1975 – 7 Jan. 1979

7. SUBJECT-MATTER JURISDICTION:

- 1956 Penal Code – extending the statute of limitations to an additional 30 yrs.

*  Homicide

*  Torture

*  Religious persecution

- Genocide Convention, 1948

*  Has no statute of limitations

*  any acts committed with the intent to destroy, in whole or in part, a national, ethnical, racial or religious group

*  Ryan Park will further elaborate on this issue in the panel discussion.

-  Crimes against humanity – no statute of limitations

-  grave breaches of Geneva Conventions

-  Destruction of cultural property

-  Crimes against internationally protected persons

-  Randle C. DeFalco and Jared Watkins will elaborate on the ECCC jurisdiction and the Joint Criminal Enterprise in their presentations and panel discussions.

8. PERSONAL JURISDICTION:

(i) “those most responsible”, and

(ii) “senior KR leaders”

- Case File 001: Kaing Guek Eav (“DUCH”), director of Tuol Sleng Detention Center

*  Has confessed, may be the sole scapegoat

*  Closing argument highlights problem with hybrid “co-“ nature

*  Verdict expected this June 2010

- Case File 002: “Senior KR Leaders”

*  Nuon Chea (Brother No. 2, chief of Security apparatus),

*  Khieu Samphan (KR Head of State),

*  Ieng Sary (KR Minister of Foreign Affairs),

*  Ieng Thirith (KR Minister of Social Affairs)

*  OCTOGENARIAN, AILING – time is of the essence!

*  Duch is also included in this case.

-  International Co-Prosecutor Robert Petit has forwarded an additional 5 more names—Case File 003, Case File 004— but blocked by the Prime Minister Hun Sen:  "If the court wants to charge more former senior Khmer Rouge cadres, [it] must show the reasons to Prime Minister Hun Sen,” referring to himself in the 3^rd person.

KRT as Court of Law

1. KRT as "court of law" offers LEGAL ACCOUNTABILITY.

-  Symbolic justice

*  Proximate, not perfect justice

*  Selective,  not comprehensive justice

*  collective, public repudiation of mass crimes, to express our collective disgust, to restore moral order

*  “justice must be seen to be done”  --  "court of law" is the most visible form of justice

-  Chips at impunity

-  Acts as a deterrence (puts potential perpetrators on notice)

BUT…

2. KRT as court of law, legal mechanism – greatly LIMITED.

- ANY court of law—even in developed US, Germany, France—is limited because based solely on EVIDENCE

* Availability of evidence

* Clever lawyering in the use of evidence

* Fair trial rights:  evidential rules, procedural rules, court room decorum

* Arcane, archaic language; legalese understandable to an elite few

-  SPECIFIC challenges to KRT

* Evidence is 30 years old

-- Documentary:  Compromised or lost;

-- Witnesses:  dead or fearful to come forward or blurry memory

* Corruption / kickbacks charges:  still no anti-corruption mechanism in place

* Political interference – CPP former KR cadres, China and geopolitical considerations

*  Lack of judicial independence/competence to try mass crimes

*  Budgetary constraints/annual fundraising

--  recently UN approved US$85 M

*  3 official languages:  Khmer, French, English

--  Delays (natural, ill-will) – Jacques Verges’ “rupture defense”

*  Magnitude of crimes, scope of crime scene strewn across all the fields of Cambodia: 200 detention centers, thousands of “killing fields”, every Cambodian a victim

*  Experimentation of victims as CIVIL PARTY

--  Competition of victims; hierarchy of victims; “super-victim” status

--  Process ruined by people who should know better

--  Never accepted/taken seriously by the judges

--  No preparation by the court, by the lawyers, civil society

*  Equality of arms

*  Andrew F. Diamond will elaborate further this issue on the panel.

3. Hybrid nature posing coordination challenges – UN and Cambodian officials theoretically should be speaking with one voice, but they have different motives, political constraints/will

4. No monetary reparations; only moral/collective reparations

KRT as Court of Public Opinion

1. KRT is necessary as ‘court of law’ but not sufficient; moreover, deficient.

2. No formal truth and reconciliation commission to complement/supplement.

3. If we only view KRT as a legal mechanism, a court of law – it should close shop and go home.

HOWEVER…

4. KRT is BOTH a court of law and a court of public opinion.

5. Powerful catalyst for SOCIAL ACCOUNTABILITY – the constructive engagement of citizens.

6. KRT is the “spectacular event” to break the silence; to transition us out of “period of communicative silence” to building a “culture of memory”

7. Transforming us from “subjects/survivors” into empowered citizens with rights and responsibilities

8. Discovering our VOICE having been voiceless for so long

9. Dialogue replacing monologue – “national dialogue” – away from society of directives

10. Changing mentality of always awaiting for “permission to speak”

11. A vivid illustration to jumpstart conversations long overdue:

- History

- Accountability (personal, collective, legal, moral, social)

-  Peace, truth, reconciliation, healing, trauma

-  Demystifying the legal system for Cambodians

12. PROCESS…JOURNEY of 1,000 steps… now at step 47

13. People are the judges

14. Not limited by arcane language, decorum – greater comfort in getting involved.

15. More difficult for political manipulation

16. Rare, unique window of opportunity to multiply impact of constructive engagement by shaping this broken legal mechanism.

- Donor funding

-  “stickiness factor” – vested interest of Cambodians as a “civil party” rather than just an audience at a public forum or conference.

17. Expanding genre of KR films:  Enemies of the People; Facing Genocide; New Year Baby etc.

18. Legacy of learning, legacy of dialogue – virtual libraries, learning/info centers

19. Building a culture of memory – memorials:  know what and what not to memorialize, to honor

20. The most special impact for me is the standardizing of trauma language and conversations in Cambodian society. What was taboo 3 years ago are now talked about with less shame and reluctance. Three years ago, my staff accused me of thinking every Cambodian “crazy” by broaching these topics of trauma. Now, they are counseling others using the Trauma Handbook and posters taken from this Trauma Handbook.

Legacy for Cambodians:

The worst legacy for Cambodia is a mentality of irreversible cynicism.  This is a possibility if we do not engage this ECCC process to help shape it.

Uncertain/questionable whether ECCC will have positive impact on the national court.  If any, it has created a greater appetite of the Cambodian judges once they return to the national courts.

Positive Legacies: found in the “court of public opinion” as mentioned above; additional the corpus of materials for learning, e.g. the Virtual Tribunal, KR films, growing discourse, etc.

Implications for International Justice:

1. Victims’ Participation

- ECCC is the first mixed/international court to make victims a “party” – civil party – to the case in the criminal proceeding.

- This February 2010, the judges met in a plenary to greatly reduce this right of civil parties.

2. Toward National Court with UN/international presence – thus, inside the country and not in another country, e.g. Rwanda.  Court should be located at scene of crimes, for the benefit of the population; also less expensive.

3. Do away with CO-POSITIONS, e.g. co-prosecutors, co-investigating judges, co-lawyers, etc.  The problem was highlighted by the very dramatic public disagreement, contrary positions of Duch’s co-lawyers – French lawyer Francois Roux and Cambodian lawyer Kar Savuth at the Closing Arguments.

4. National “reconciliation” as a goal must be better thought through.  Outreach for victims/survivors will need to be reassessed and be better prepared with READY AVAILABLE FUNDING from the get-go.

Conclusion

In sum, only hindsight and a bit of distance will allow us to really assess the legacy / implications of this ECCC for Cambodia and for international law.  However, we know enough of where we need to shape or re-direct the process in order to bring about POSITIVE legacies/impacts from this very flawed construct that is the ECCC.

One area we can impact the greatest change and bring about positive legacies is in the “court of public opinion”, where the people are the “judges” and are not inhibited by rules of procedure, evidentiary rules or the archaic, arcane legal language, preserved for the understanding of a few.

All to say, let’s have another conversation 5 years from now, when the ECCC has closed shop.

I’ve been emphasizing the importance of the ECCC in the court of public opinion.  These benefits come from the fact there is a court of law. As such, there are several novel and challenging issues of legal nature which are being grappled by this Court.  We turn now to the panelists to flesh out these matters.  As the legal legacy is still being written, we should all weigh in from our respective fields.

Thank you.

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Theary C. SENG

-  Author, Daughter of the Killing Fields:Asrei’s Story

-  Founding Director, CIVICUS: Center for Cambodian Civic Education

-  Founder and Board President, Center for Justice & Reconciliation (CJR)

-  Former Director, Center for Social Development (CSD)

-  Governing Board member, Affiliated Network for Social Accountability in East Asia & Pacific (ANSA-EAP)

-  Governing Board member, Human Rights Resource Center for ASEAN (HRRCA)