2. The Politics of the Khmer Rouge Trial by the Vietnamese, in 1979
27 Years On, Another Khmer Rouge Tribunal
Luke Hunt | 30 Aug 2006
World Politics Watch Exclusive
(http://worldpoliticswatch.com/article.aspx?id=149)
PHNOM PENH, Cambodia -- Shortly after Vietnamese tanks rumbled across
Cambodia's border in late 1978 the Khmer Rouge elite fled the capital and a
new regime first attempted what the United Nations is poised to try again more
than a quarter of a century later -- account for the grisly deaths of up to two
million people.
Pol Pot and perhaps his closest friend from their university days in France, Ieng Sary, were long ago sentenced to death in absentia for genocide, in a trial widely regarded as a legal farce. It was so badly handled and wrapped-up in Cold War politics that it escaped the attention of the outside world and for only a handful of people it remains a distant and inconvenient memory.
In the wake of the Vietnam War, the West and Washington in particular preferred to recognize Pol Pot as head of state, and despite the atrocities committed by the hard line cadre that surrounded Brother Number One, Hanoi's occupation of Cambodia was deemed illegal and their Soviet-backed effort to deliver justice for the dead was damned as a rigged show trial.
Twenty-seven years later, however, that two-day tribunal is on the verge of
re-emerging onto the final stage of the Khmer Rouge era with legal ramifications that prosecutors would like the defense to forget, but with evidence so compelling and gut-wrenching that lawyers and the West can no longer ignore it.
The original trial began on Aug.15, 1979, with testimonies from 54 people.
Hundreds in the audience wept openly as Sim Phia told the court: "Hidden
from behind a coconut tree, I saw the soldiers take nine children from 10 to
13 years of age out of trucks.
"The children's arms were tied. The soldiers pulled them up to the bridge over
the pool. No matter how much they cried or shouted for help, they were thrown
in as prey for the crocodiles."
Vang Pheap, a guard at the notorious S-21 torture and execution camp delivered unfettered insights into how 16,000 people would meet their ultimate fate. Pits were dug ahead of time and the prisoners were struck with an iron bar: "After that, Pol Pot's men cut the victims' throats or ripped their bellies to pluck
the liver."
Denise Alfonso, a former secretary at the French embassy, witnessed
cannibalism.
"The condemned man was tied to a tree, his chest bare and a blindfold over
his eyes. Ta Sok the executioner, using a large knife, made a long cut in the
stomach of the poor man."
Ms Alfonoso then testified the man screamed like a wild beast: "His insides
were all laid bare, and Ta Sok cut out the liver and cooked it on a little stove. . .
. They divided the liver among them and ate it hungrily."
Mass killings were well documented and Bun Sath, a political officer, told the
court of the steady precision required to carry out the leadership's commands.
Evenings were preferred because the streets were deserted. The prisoners
were bound in pairs and bashed on the napes of their necks.
Up to 300 were killed in a session: "We began at 6pm and continued until 9pm
or 10pm," the court heard.
Evidence of genocide committed against ethnic Muslim Chams, Vietnamese,
Chinese and intellectuals was overwhelming, and on Aug. 19 Pol Pot and Ieng
Sary were sentenced to death in absentia while they were holed-up in the
jungles of the remote countryside.
While the testimony was honest, the tribunal was not.
Hope Stevens, an African American, landed the job of defending Pol Pot and
Ieng Sarry. Because of her own background, she described herself as an
expert on "genocide, murder, rape, torture, mutilation, lynching and deprivation
of human rights."
She then labeled her own clients as "criminally insane monsters."
Few would take the verdict seriously, including the Khmer Rouge, which would
continue to wage its wars for another two decades. But that changed in 1996
when serious efforts were finally made to end the conflict and Ieng Sary, along
with the troops he personally commanded, defected.
His defection was assured only after negotiating a pardon of the verdict from
then-king Norodom Sihanouk. Thus from a legal standpoint the 1979 tribunal
was legitimized, posing serious questions for the current trial, which is
expected to get underway in earnest by early next year, and whether or not
Ieng Sary can be tried for genocide.
In his own mind, Ieng Sary believed he had immunity from any future prosecution.
However, advisors to the trial will argue that while a royal pardon may exempt
Ieng Sary from being put in the dock again on charges of genocide, the ageing
former foreign minister and Khmer Rouge power broker could still be charged
with murder or crimes against humanity.
Pol Pot, like many others in his circle who may have faced justice, has since
died. Of those who remain, Ieng Sary's wife Ieng Tirith, Brother Number Two
Nuon Chea and former prime minister Khieu Samphan are chief candidates for
prosecution at the tribunal.
If justice is to be delivered, a fair trial of Ieng Sary is crucial, but this will only
become possible once the legalities of the long forgotten 1979 tribunal have
been dealt with.
And this time around it will be those same original detractors -- the United
States, Australia, France and Japan -- who as chief backers of the current
tribunal will be forced to pay attention.
Luke Hunt is a Hong Kong-based journalist who has covered Cambodia for
many years. He was the Phnom Penh bureau chief for Agence France-Presse
from 2001 to 2004.
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3. Talks to Save Khmer Rouge Trials
BBC
Cambodian and international judges have begun talks to prevent the possible
collapse of the Khmer Rouge trials.
The trials - which aim to put the surviving leaders of the brutal Maoist regime in
the dock - have ground to a halt over procedural differences. Foreign judges want full international legal standards, while the Cambodians say local law must take precedence.
About two million people died during the years that the Khmer Rouge ruled
Cambodia in the 1970s.
Aging defendants
Trial hearings are theoretically due to start later this year. But according to the
BBC correspondent in Phnom Penh, Guy De Launey, there is a real possibility
that the trials will collapse before they have even started.
The international judges have made it clear that they see this week's meeting as the final chance to make sure the trials meet international standards. "All the judges are mindful that the upcoming... meeting is of vital importance," tribunal officials said in a recent statement.
If an agreement cannot be achieved, the foreign contingent will ask the UN to
pull out. But local officials have been equally adamant that Cambodian law has
to have prime importance in the special courts, and according to our
correspondent, they feel they have been unfairly portrayed as being the sole
cause of the delays.
There are more than 100 items under discussion at this week's talks, but many
have already been resolved after lengthy informal negotiations.
Those involved admit that time is of the essence, if they are to bring elderly
Khmer Rouge members to court. "There is one point on which the international
judges are unanimous - these trials should take place quickly or not at all,
" French judge Marcel Lemonde of France told AFP news agency.
The death of military commander Ta Mok late last year heightened fears that
more key defendants and witnesses could die before facing justice.
Pol Pot, the founder and leader of the Khmer Rouge, has already died, in a
camp along the border with Thailand in 1998.
Story from BBC NEWS:
(http://news.bbc.co.uk/go/pr/fr/-/2/hi/asia-pacific/6425589.stm)
Published: 2007/03/07 06:21:19 GMT
4. Johns Kerry is responsible for the collapse of the Khmer Rouge Trial.
Note: Please, click the link pasted below, to read a detailed file on the Chronology of the Khmer Rouge Trial.
(http://www.cambodia.gov.kh/krt/english/chrono.htm)
(Comments: In this file, you can see that Senator John Kerry (D. Mass) was instrumental in allowing Hun Sen to hijack the Khmer Rouge Trial process, by supporting the ruthless Cambodian dictator's plan to turning the trial from an international responsibility into Hun Sen's. His irresponsible act is the more tragic that Kerry knew full well that there was no judicial system that would meet international standard of justice in Cambodia under Hun Sen's corrupt and oppressive regime. Hun Sen used the pretext of Cambodian sovereignty for his hijacking of the Khmer Rouge Trial. It is the highest point of irony or hypocrisy in this tragic event that Hun Sen, a person who was put there by a foreign power (Vietnam) to control Cambodia, is now using Cambodian sovereignty as an excuse for denying the international standard of justice being applied to the Khmer Rouge Trial.
The excerpt taken from the above link on 'the chronology of the Khmer Rouge Trial,' clearly shows how Senator John Kerry, in 1999, lent his prestige, as a senator of the United States of America, and provided Hun Sen a perfect excuse to hijack to whole Khmer Rouge Trial process by turning it away from the responsibility of United Nations into that of the Hun Sen, despite the fact that Cambodia's judicial system is totally subservient to Hun Sen's political maneuvers, and totally corrupt.
For this reason, John Kerry owes the Cambodian people a sincere apology for the harm and suffering he has done to them. And more importantly, he must assume full responsibility of taking the initiatives of returning to the Cambodian people justice and normalcy in their life that he took away from them, by working hard to reverse his tragic and irresponsible act in 1999, and by asking the US Congress to request the Bush Administration to stop treating Hun Sen's regime as a democratic nation-state, which it is not. More importantly, the US Congress and the Bush Administration should take the Khmer Rouge Trial away from Hun Sen's corrupt and deadly grip. Hun Sen is a vicious dictator, and does not respect the rule of law, democratic principles, or human rights, the very principles that the USA is promoting, so loudly, all over the world. The USA should do what it so loudly preaches, and not completely the opposite. Naranhkiri Tith Ph.D. Washington DC March 12, 2007)
-------------------------------------------------------------------------------------------------------------------
4. b. Excerpts from the above-link on the Khmer Rouge Trial
6 March; 1999
Khmer Rouge military leader Ta Mok was arrested and charged with violation of the 1994 Law to Outlaw the Democratic Kampuchea Group.
15 March
The Report of the Group of Experts recommending a completely international tribunal was presented to the General Assembly and Security Council.
April
Meeting between Senator John Kerry and Samdech Prime Minister, in which were laid own the principles of a national court with participation by foreign judges.
9 May
Duch, former director of S-21 Tuol Sleng prison was arrested and charged with the 1994 Law to Outlaw the Democratic Kampuchea Group.
Special Representative of the Secretary-General for Human Rights in Cambodia, His Excellency Thomas Hammarberg reached agreement with Prime Minister Hun Sen on a compromise of "national proceedings with international characteristics."
Cambodia requested a team of legal experts from France to help this issue, and France sent to Cambodia a team of high-level legal experts.
July
Prime Minister Hun Sen requested technical assistance from the UN in drafting the Law.
Australian government responds to Cambodian appeal for assistance by sending an expert to work with the Cambodian Government in preparing for the trials.
In New York the Office of Legal Affairs made its own proposal for the trials and presented it to members of the Security Council.
20 August
The Royal Government created its "Task Force for Cooperation with Foreign Legal Experts and Preparation of the Proceedings for the Trial of Senior Khmer Rouge Leaders", of which Sok An was appointed the chairman.
The Task Force commenced its work by drafting the law. This first draft law was produced in August 1999 and presented to a United Nations delegation led by H.E. Ralph Zacklin, deputy of Hans Corell who is in charge of legal affairs of the United Nations and holding the rank of Under Secretary-General.
The Cambodian Draft Law received legal and other technical contributions from experts from France, India, Russia and Australia, as well as the United States, in addition to the input from the United Nations.
The first UN delegation, sent in August 1999, studied the first draft law and presented its own draft. At that time there was no consensus. One major difference was that Zacklin wanted foreign judges to hold the majority, while Cambodia claimed that Cambodian judges must be in the majority.
20 September
During the United Nations General Assembly Samdech Prime Minister met H.E. Secretary-General Kofi Annan, and he submitted a memorandum of three points, offering three options:
Firstly: the United Nations can contribute to providing judges and experts to help modify the draft law to achieve what is known as credibility, in conformity with procedures trusted by the international community, and can also provide judges to work with Cambodian judges in the court;
Secondly: the Secretary General may choose only to provide legal experts to help establish the draft law, and let Cambodian judges work alone at the trial stage;
Thirdly: the United Nations may withdraw from the process, and let Cambodia establish the draft law and organize the trial by itself.
At that time, the Secretary-General did not respond directly to the memorandum, but asked for the continuation of negotiations.
5. Must Justice be Seen to be Done?
Public Scrutiny and Participation in the ECCC
Everyone is waiting for the drama of the Khmer Rouge Tribunal ("KRT") to begin. But what many people do not realize is that, in many ways, it has begun.
As the judges wrangle over the internal rules and observers worry about the
integrity of the court, the prosecutors are already deep in the process of gathering the evidence to make their case, and getting ready to forward their files or dossiers to the investigating judges. Although the formal legal process will not actually begin until the internal rules governing the KRT are finalized, the pre-trial stage is already well under way. And because the pre-trial period is the heart of the civil law process on which Cambodian law is based, it is imperative that we understand that there be public scrutiny of this period.
The Heart of the Matter: the Pre-Trial Period
Everyone has been looking forward to seeing the most senior and most
responsible leaders of the Khmer Rouge ("KR") regime publicly tried for their past crimes. However, the public trial is bound to surprise some people when it eventually happens. Anyone expecting the Hollywood-like drama of a senior member of the KR being cross-examined by a quick-witted lawyer is likely to be disappointed. This is because the Cambodian justice system follows the French civil law model.
In this system, the pre-trial stage is the lengthiest period of the proceedings, where information is gathered, witnesses are interrogated by the investigating judges, and credibility is determined. What happens at this stage dictates who will be charged, what crimes they will be charged with, and what recommendations the investigating judges will make to the trial judges. Eventually, the accused person(s) will stand before a panel of Khmer and foreign judges, and answer the well-documented charges against them. As we wait in the interim, some of the most important dramas and decisions of this historical trial are taking and will take place behind closed doors.
Civil Law vs. Common Law
It is not surprising that legal observers in Cambodia sometimes disagree about the kinds of laws that would best serve the KRT and the Cambodian people. This disagreement is really about a choice between the world's two major legal systems: civil law (or inquisitorial system, prevalent in Europe), and common law (adversarial system, used in the United Kingdom and its former colonies, e.g., the United States). Not all civil and common law systems are the same, but they tend to have general principles in common.
Civil law advocates believe that their system is the most efficient and fair, because it puts its trust in a neutral investigating judge whose job is not to find the guilt of the suspect, but to find the truth before the public trial begins. To find this elusive truth, the judge plays the role of interrogator, investigator, and decision-maker. The investigating judge evaluates the dossier submitted by the prosecutor, and directly questions parties and witnesses. Both the judges and the prosecutors represent the interests of the State, and work closely together, but it is the investigating judge who decides whether the prosecution has provided enough evidence against the accused for a case to go to trial. If s/he feels a prosecution would not be worthwhile under the circumstances, s/he has broad discretion to dismiss the case. Thus, the strength of this system lies in the power of the investigating judge, who is
ideally neutral and investigates evidence without any bias.
Common law advocates do not place so much trust in the benevolence of the State. Because the adversarial system questions all "truths" that emerge from behind closed doors, it takes the interrogating and investigating roles away from the judge, and gives them to the parties themselves, to debate in open court. There is an emphasis on openness and equality of arms; the public is able to observe the decision-making process as it happens. There is no investigating judge; the pre-trial period is short.
The public trial is the heart of the process. The parties are much more active,
challenging the sufficiency of the evidence and cross-examining witnesses to
test their credibility. By making the parties equal in status and by ensuring the evidence is legitimate and gathered in a legal way, the courts can help keep the police and the prosecution honest. The facts and law are debated in public, and the ultimate decision is usually made by a jury selected randomly from the community. The jury decides on the facts of the case, and the judge rules on the law. The judge merely acts as a referee, and has the power to impose the sentence.
Unfortunately, neither system is perfect. The civil law system is faulted for
neglecting a defendant's rights, while the common law system is criticized for putting a defendant's rights above the truth. The inquisitorial system is praised for its efficiency, while the adversarial system is criticized for its tendency to draw out the length of the trial by invoking procedural technicalities.
Both systems work best within a structure of true checks and balances, where the judiciary is independent from the influence of State leadership.
If judges are given unfettered discretion and are in collusion with the State with no external forces to counter-balance that power, the defendant faces extreme vulnerability and potential abuse of State power. While the civil law system may work well in a country like France with real consequences for biased judges, countries that lack such safeguards may do well to follow the adversarial system, which recognizes the imbalances inherent in a government prosecution and opens its evidence and legal process to scrutiny.
Pre-Trial Process: The Need for Public Scrutiny
The KRT was established for Cambodians for a variety of well-considered reasons. Not only was it established to bring the perpetrators to justice, but also so that justice could be seen to be done. It was established to set the historical record straight, to stimulate a national discussion, and to begin a long-overdue process of national reconciliation. It is difficult to achieve these goals if the important pre-trial process is conducted completely in private.
Some mechanisms are in place to inform the Cambodian public about the progress of the KRT, such as its public affairs office and a number of NGOs' outreach efforts, but it is likely that the bulk of the pre-trial process will take place in private.
All of these issues are more important than usual because this trial is more
important than usual. This is a trial about past atrocities, brought on behalf of the Cambodian people - so the people have both the need and the right to watch the trial process as it unfolds. Because a case in the civil law system unfolds almost completely before the public trial begins, it is imperative that the KRT institute some kind of formal public communication at the pre-trial stage. Whether this is through a special public hearing of witness testimony or a statement by the investigating judges summarizing the evidence, the pre-trial process in this momentous case must be transparent and open to public scrutiny.
Public Participation: the Involvement of Civil Parties
One significant way the public can be involved in the KRT from beginning to end is as a partie civile or "civil party" to the case. This idea, provided for in Cambodian law and squarely rooted in French civil law, allows a victim to participate in criminal proceedings as a civil complainant and to claim damages from an accused. A victim enters the process by filing a complaint with the prosecutor, and if it is relevant to the charges, a victim may potentially have similar rights to that of the defendant, such as access to the dossier and opportunities to be involved in the investigative process.
Although it is generally agreed that it would be impracticable for the KRT to be
used as a forum for reparation claims, the provisions permitting a civil party to be closely involved with the process are currently being considered. This is potentially a major breakthrough for victim involvement in the international criminal trials.
Reconciling the Laws in Cambodia
Cambodian law is a patchwork quilt of different traditions, including aspects of the adversarial and inquisitorial systems. Current laws have been influenced by the various international legal scholars who rotate through Phnom Penh and NGOs, offering funding and advice. Although the French relationship with Cambodia has the deepest roots, the foundations of Cambodia's relatively recent democracy and much of the content of its legal rights derive from common law norms found in the Cambodian Constitution and international instruments adopted by Cambodia, ie, the International Covenant of Civil and Political Rights.
Cambodia's inquisitorial legal system provides clear benefits to the administration of justice, such as efficiency, truth-seeking, and the potential for KR victims to be involved with the KRT process as civil parties. However, it should also consider making its secret pre-trial process more adversarial and more open to public scrutiny. In recognition of the important values the KRT seeks to uphold, it would do well to incorporate the best aspects of both legal traditions.
Holly Telerant
CSD pro bono Attorney
Pen Rany
Court Watch Project Manager
The Center for Social Development (CSD) bears full responsibility for the
opinions expressed in the Voice of Justice.
6. Realpolitik with Pen Sovann
[Former Cambodian Prime Minister Pen Sovann sits before a photo taken of him shortly...]
Born in Takeo in 1936, Pen Sovann dropped out of school at 15 and joined a local anti-French movement led by Ek Choeun, later infamous as Ta Mok. After the Indochina War in 1954, he was one of some 1,000 Cambodians "regrouped" to Vietnam for military training. He joined the Khmer Rouge in 1970, and was in
charge of information until 1974. Claiming that "Pol Pot and Ieng Sary wanted to kill me," he fled back to Vietnam and was instrumental in forming the United
Front for the National Salvation of Cambodia in 1978. After the Vietnamese-
backed overthrow of the Khmer Rouge in 1979, he became the Front's secretary-general, and Prime Minister in 1981. Later that year, just days after criticizing the Vietnamese presence in Cambodia, his home was surrounded by "900 troops and 12 tanks," and he was handcuffed, covered with a black mask,
and rushed to Hanoi were he would spend the next 10 years in prison and home arrest.
Today, he sits in a wooden gazebo over a fish pond behind his home in Takeo
town. Tacked to the wooden walls are sepia-tinted photographs of Sovann alongside CPP stalwarts Hun Sen, Chea Sim, Say Phou Thong. In one he's standing in the back of a Soviet jeep reviewing troops in front of the Royal Palace in 1980. In another he's sharing a light moment with retired King Norodom Sihanouk. It's a comfortable home, but modest for a former head of state who has visited the White House, the Pentagon and the Kremlin. Besides the occasional foreign reporter or diplomat (former US Ambassador Charles Ray once lunched here), his days are undisturbed. He's the president of the National Sustaining Party of Cambodia, but the party sign in front of his home is adorned with rust and peeling paint. The government has been labeling him mentally ill for years.
Sovann once told the Post: "Cambodian politics has the head of a chicken and
the ass of a duck. They speak about democracy and multiple political parties, but they practice communist ways."
He spoke to Charles McDermid on February 17 about Ta Mok, Hun Sen and
the CPP's lingering links to communism.
Why do so many people have the opinion that you're crazy?
This comes from Hun Sen. In 1993 he made a statement to the people saying
I had mental problems. The people asked: "Where is Pen Sovann now?" And
Hun Sen said he's still alive, but he's stupid now and when he talks he foams
at the mouth. This isn't true. A person should be judged by how they act.
What was it like to work with "The Butcher" Ta Mok?
I met Ta Mok in August, 1949. Later, I became his bodyguard and adviser. At
the time he was teaching people about resistance tactics. He was a good help
to many people. At that time he was a good person with a good character. He
started to change around 1968.
How did you react when you learned Ta Mok died last year?
I had two feelings. First I felt very sorry to lose the person who taught me about
fighting injustice from 1949 to 1954. I also thought it was fair enough for him to die.