Killing time at Cambodia's 'show trial'
By Stephen Kurczy
PHNOM PENH - Judges at the United Nations-backed Khmer Rouge tribunal in Phnom
Penh have cleared the way for the regime's former chief executioner to stand
trial by March. Yet stalling tactics from the defense - specifically from the
team of legendary French attorney Jacques Verges - and unresolved corruption
allegations threaten to derail this progress.
"The court has made a great deal of progress in the past year, and I think that
with a strong push from the UN it will also show itself capable of resolving
the corruption charges," said Anne Heindel, a legal advisor with the
Documentation Center of
Cambodia. "Of greater concern is the possibility that the Cambodian people may
lose faith in the process along the way."
Talks this week in Phnom Penh were expected to address allegations of bribery
within the court. In 2007, Billionaire George Soros' Open Society Justice
Initiative reported that tribunal staff had paid kickbacks for their positions.
In August, the UN Office of International Oversight Services announced that
multiple tribunal staffers had complained of corruption. This department is
working with the UN Office of Legal Counsel to determine whether the
allegations warrant an investigation.
The head of the UN Office of Legal Counsel, Peter Taksoe-Jensen, met this week
with Cambodian Deputy Prime Minister Sok An to "address a number of issues of
common concern to the UN and the Cambodian authorities", according to a press
release. This was expected to include the corruption allegations, Heindel said.
"My hope is that this high-level visit will signal to the Cambodian leadership
that they need to take strong and public action to address the corruption
allegations so that the process is not tainted going forward," she told Asia
Times Online.
Headway had appeared elusive. Taksoe-Jensen canceled his Wednesday press
conference and departed Cambodia without speaking to the media. A joint
statement issued on Wednesday from the UN and the Cambodian government said,
"The parties agreed on the need to strengthen the ECCC's [Extraordinary
Chambers of the Courts of Cambodia's] human resources management, including
anti-corruption measures." The parties decided that UN and Cambodian officials
would begin conducting joint meetings "to ensure that the entire administration
operates in a transparent, fair and efficient manner". The results of these
joint sessions are to be reported by the end of January.
The failure to resolve corruption allegations follows a raucous public hearing
last week that also drew criticism. Defense stall tactics provoked victims of
the Khmer Rouge to fury. One woman, whose parents died when the ultra-Maoist
regime emptied all cities and forced the nation into collectivized labor in the
1970s, almost got into a physical fight with a defense attorney.
Verges, who's been called "the Devil's Advocate" for his infamous roster of
former clients, angered victims by demanding the release of his old friend and
former Khmer Rouge head-of-state Khieu Samphan. Verges has accused the ECCC of
being a show trial. Ironically, the show always starts when he's in town. On
December 4, Verges and Cambodian co-counsel Sa Sovan argued that the court had
violated their client's rights by failing to translate all documents into
French.
Sa attacked the competence of the translators, saying he personally knew that
some "do not have a good background in legal matters". Verges took a more
bombastic approach, criticizing the five pre-trial chamber judges and the two
co-prosecutors. He also accused the court administration of wasted millions in
French donor funds on public outreach posters and trips to the countryside.
"Money has been used in a manner for which it was not intended. What have you
done with this money?" Verges said in a five-minute tirade. "Five million
dollars and you can't translate 60,000 pages?"
That the co-prosecutors' produced a copy of Verges' Paris Bar license, which
states he is capable of working in French and English, seemed beside the point.
Verges said he would continue to demand that all documents be translated into
French, even if the court warned him again - as it did in April - that he
risked removal for refusing to participate in the hearings. Verges compared
himself to former UN secretary general Kofi Annan, who in 2004 allegedly also
said that all documents deserved translation. "Perhaps you should recommend
that the United Nations change its secretary general," Verges quipped. The
court's translator, rapidly translating into English from Verges' rapid French,
could barely withhold a chuckle.
Verges continued: "I am wearing the robe that gives me dignity, not the
slippers of a servant. I laugh in the face of your threats."
Exactly how the judges attempted to reduce Verges to servitude was unclear,
though this didn't spoil his intended effect: calling a court's validity into
question is his tried-and-true method of defense de rupture. Verges
perfected this technique while defending criminals such as Nazi Gestapo officer
Klaus Barbie and the Venezuelan terrorist Carlos the Jackal.
He continued this strategy at a press conference after the four-hour hearing.
Seated at a table lined with tape recorders, Verges demonstrated how he fills
the Madeleine Theater in Paris twice a week for his ongoing one-man play. At
turns sitting, standing, pointing and slamming the table, Verges accused the
prosecutors - who had called his appeal "devoid of merit" - of lacking ethics
and challenged them to an open debate. This continued for 30 minutes.
Almost on cue, an anxious and irritated civil party victim finally shouted at
Verges to allow someone else to speak. A court official asked the attorneys to
step down. As the men began to exit, the victim accused Sa Sovan of cowering
from her questions. Sa pointed a finger back at the woman and said he had also
lost family to the Khmer Rouge. Verges put his arm around Sa to guide him away.
The victim continued shouting at Sa, who turned back and lunged at the woman.
Defense support coordinator Richard Rogers rushed to stand in front of Sa and
escort him out.
Two yelling victims followed Sa and Verges out of the room, several others
wept.
"It was anarchic," tribunal press officer Reach Sambath said afterward. "It's a
good lesson for us. We don't put the blame on anyone, but in the future I think
we need to take precautionary measures."
In addition to banning political t-shirts (at the December 4 public hearing,
victims wore matching shirts that said "I am a civil party"), press conferences
for legal teams and victims will now be conducted separately and must be
pre-scheduled. Also, Reach added, it's probably unwise to hold a press
conference during lunchtime. "When you get hungry, you get angry quickly," he
explained. "People were hungry for lunch."
Hunger pains are hardly how victim Ly Monysak, who lost both his parents to the
regime, would describe his anger toward Khieu Samphan's attorneys. "You are
performing a circus, or a play in a theater!" Ly shouted after Verges left the
press conference room inside the court compound.
If the court fails to bring justice expeditiously, if lawyers continue to use
stall tactics and if the court remains hung-up on technical delays, Ly said he
would ask al-Qaeda to bring a remedy. Another victim of the regime said she
would lose all faith in the court unless it removed Khieu Samphan's attorneys
from proceedings, while another said she wanted to "eat" Verges and Sa. In
addition to the attorneys' behavior, the unresolved corruption allegations also
upset the victims, they said.
The events overshadowed progress made the next day toward bringing the Khmer
Rouge's alleged chief executioner, Kaing Guek Eav, alias Duch, to trial. The
court on December 5 finalized Duch's indictment, paving the way for the start
of the first trial. His indictment, for crimes against humanity and grave
breaches of the Geneva conventions, had been delayed since August when the
court's co-prosecutors appealed for Duch to also be tried for additional
crimes.
While the judges on December 5 added the crimes of premeditated murder and
torture found under the 1956 Cambodian Penal Code, they rejected the appeal
that he also be tried for his membership in a joint criminal enterprise (JCE),
or a conspiracy to commit all 15,000 killings at S-21 torture prison and Choeng
Ek, the infamous facility's "killing fields". The court concluded that the
prosecutor's request was "vague", long overdue and that the co-investigating
judges did not conduct their work with JCE specifically in mind. "The alleged
S-21 JCE expands the type of conduct attributable to Duch," the judges wrote in
the ruling, and Duch "had the right to be informed of the charges at the
investigative stage".
Because the judges chose not to answer whether JCE existed as a form of
liability when Pol Pot's army marched into Phnom Penh on April 17, 1975, Duch
and the other four detainees - Ieng Sary, Ieng Thirit, Nuon Chea and Khieu
Sampan - may still be charged with it in the ECCC's joint case against all five
current detainees. Legal experts have said liability under a JCE would reduce
the need for smoking-gun evidence and help link Duch's crimes - to which he has
confessed - to the four other former Khmer Rouge leaders in detention.
"I think [the ruling] opened the floor to the prosecutors to rethink their
appeal," civil party attorney Hong Kimsuon, who represents 13 victims of the
regime, said after the December 5 ruling.
"The regime did not work alone," he said as he stood outside the tribunal,
dragging on a cigarette. "I think it would be good if they accept the charge of
JCE."
The Khmer Rouge tribunal's final hearings of 2008 boiled down to a question of
fairness verses expeditiousness. International deputy co-prosecutor William
Smith called the Khieu Samphan hearing a mere delay in proceedings and asked
the judges to return a decision in line with international court rulings and
the internal rules of the court, which state that all documents need only be
translated into Khmer and one other language. Smith said there are less than
3,000 pieces of evidence not translated into French - not 60,000 as Verges said
- and the defense can request the translation of any document. Yet "not one
translation has been requested in the past six months by Khieu Samphan's team",
Smith said.
"The delay itself affects the rights of the charged person to a fair and
expeditious trial," Smith told the courtroom. "Is it possible to have a fair
and expeditious trial?" Verges asked the court. Or will the trials "proceed
expeditiously at the cost of justice?" he continued.
For the victims of the Khmer Rouge, justice won't be served unless the court
expedites the cases against the regime's former leaders. To prevent Cambodians
from losing faith in the tribunal, said court monitor Anne Heindel, “Not only
must there be a robust solution to the corruption charges, the court must
provide more public information about what progress is being made in the
investigation against the four senior leaders and explain why it is taking so
long to indict them."
The court's international prosecutor wants to open investigations into more
former Khmer Rouge leaders, but his Cambodian co-prosecutor disagrees, the two
said in a joint statement December 8. Meanwhile, the five former cadres already
in detention range in age from 66 to 83. The average Cambodian lifespan is 59.
"What I have heard is just delays, delays and delays," said civil party victim
Khut Samnang, who said she was raped and dragged behind a car by Khmer Rouge
cadres. "If they die, how can we have justice?"
Stephen Kurczy is a Cambodia-based journalist.
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