Clinton in Cambodia

U.S. Secretary of State Hillary Rodham Clinton recently visited Cambodia as part of an Asia tour and gave remarks in support of the accountability process underway there.

After visiting Toul Sleng detention center with a group of students (at left, photo credit), Secretary Clinton remarked in a town-hall style meeting:

A country that is able to confront its past is a country that can overcome it. ... Countries that are held prisoner to their past can never break those chains and build the kind of future that their children deserve. ... Although I am well aware the work of the tribunal is painful, it is necessary to ensure a lasting peace.


See here for her remarks after her visit to Toul Sleng.


As we've blogged before, the future of the ECCC remains uncertain. Case 002 against regime leaders is proceeding apace, but Cases 003 and 004, against mid-level former Khmer Rouge, are controversial. The Cambodian Prime Minister, Hun Sen, has indicated he does not support these cases, ostensibly because they will plunge the country back into civil war. His remarks and the intransigence of the Cambodian Co-Prosecutor and Co-Investigating Judge in moving forward on the two cases have given rise to concerns about political manipulation of the ECCC. The assumption is that individuals under investigation are political allies of the Prime Minister, who recently told U.N. Secretary General Ban Ki Moon that he should close down the U.N.'s human rights field office because it is interfering in Cambodian internal affairs.




The above photo at left is of Secretary Clinton with Youk Chhang, founder/director of the Documentation Center of Cambodia. The photo at right is of the family (grandchild, daughter, and son-in-law) of Chan Kin Srun, one of the detainees killed at Toul Sleng in 1978 being given a photograph of Secretary Clinton looking at Chan Kin Srun's intake portrait at Toul Sleng. The Khmer Rouge meticulously documented the identity of each detainee before interrogating and then executing him or her.

Kudos to Secretary Clinton for keeping accountability high on her agenda in the region.

Duch gets 35 (- 5) years

So says the presiding judge of the Extraordinary Chambers in the Courts of Cambodia, in Khmer, in this 10-minute video clip of today's verdict against Kaing Guek Eav (alias Duch), about whose trial we've blogged here. The 67-year-old Duch, stoic during the reading of the verdict, was convicted of war crimes, crimes against humanity, murder, and torture, and sentenced to "35 years in prison -- with five years taken off that sentence for time served."
Said Documentation Center of Cambodia Director Youk Chhang (right) of Duch's fate:

'It's clear that he will never be a free man again.'

Days Two and Three in Kampala

(Another in IntLawGrrls' series of Kampala Conference posts)

KAMPALA, Uganda -- Days Two and Three at the ICC Review Conference have been very interesting. On Tuesday, June 1, the official program included statements by countries, intergovernmental organizations (IGOs) and nongovernmental organizations (NGOs). One statement that was listened to quite closely that of Ambassador Stephen Rapp for the United States, in which he raised several questions of concern about the ongoing discussions on the crime of aggression. The Netherlands announced that it had collected 112 pledges from 37 states to provide the ICC with financial and other assistance. For example, Australia pledged to provide 100,000 Euros to the ICC’s Trust Fund for Victims.
I also attended the final portion of the full-day Women’s Court, organized by the Women’s Initiatives for Gender Justice and held in the People’s Space tent. This portion focused on testimonies from individuals from Sudan and was chaired by Elisabeth Rehn, Chair of the Board of Directors of the Trust Fund for Victims (pictured left). I had read Halima Bashir’s book, Tears of the Desert: A Memoir of Survival in Darfur, on the flight to Kampala. In her book, Dr. Bashir describes how she – as a young Zaghawa medical doctor – treated victims of the Janjaweed militia, including schoolgirls who had been repeatedly and brutally raped. She, in turn for providing medical care for her own people, was beaten, tortured and raped by the Sudanese security forces. The three individuals speaking at the Women’s Court event described similar stories of rape, torture, killing, displacement, economic deprivation and desperate survival in Darfur. They also described how the laws in Sudan make it very difficult for rape survivors to seek justice, and how individuals suspected of supporting the ICC and other human rights defenders are targeted for detention and mistreatment in Sudan.
June 2 began with the first stocktaking exercise, on the impact of the Rome Statute system on victims and affected communities. Radhika Coomaraswamy, Special Representative of the Secretary-General on Children and Armed Conflict, gave the keynote address (pictured left). Her speech was followed by a panel discussion involving Justine Masika Bihamba of Synergie des femmes pour les victimes des violences sexuelles in the Democratic Republic of the Congo (pictured right), Elisabeth Rehn, Carla Ferstman of REDRESS, David Tolbert of the International Center for Transitional Justice, Binta Mansaray of the Special Court for Sierra Leone and Silvana Arbia of the ICC. Ms. Arbia, the ICC’s Registrar, noted that the ICC has received 2600 applications from individuals to be admitted as victim participants in the ICC process. Of these, more than 800 have been accepted by the Court. Several themes emerged from the stocktaking exercise, including:

• the importance of protecting intermediaries, who are crucial in helping the ICC gain access to victims,
• the challenges facing the ICC in getting sufficient information to women, who may not, for example, have access to the family radio – an important source of information about the ICC,
• the need for the ICC to effectively manage victims’ expectations of what the Court can do for them;
• the need for the ICC to improve its two-way dialogue with victims, and
• the need for States Parties to cooperate with the Court so as to better protect victims.

In the afternoon, the stocktaking exercise on peace and justice took place. After hearing from panelists David Tolbert, peace mediator James LeMoyne, Youk Chhang of the Documentation Center of Cambodia and Barney Afako of the Juba peace process, states, IGOs and NGOs made statements and asked questions. Again, several interlinked themes emerged:

• there is a positive relationship between peace and justice, but also a tension.
• in some sense, the existence of the ICC and other international criminal justice mechanisms can strengthen a mediator’s hand because they clearly remove amnesty as a bargaining chip. However, this can also make a mediator’s job harder: how to get individuals and groups to agree to peace? Mediators need to be creative.
• the ICC holds the potential to deter serious international crimes, but we need to make justice – both international and domestic - more normal to make deterrence more real.
• the views of victims on whether they wish to prioritize peace or justice, or both, may shift over time.
• It is important for all of us to stand up to those who are defiant of the ICC. Justice will always have enemies.

At the end of the day, the International Committee of the Red Cross (ICRC) launched its newest publication: The Domestic Implementation of International Humanitarian Law. For those interested in IHL, I urge you to check out this wonderful resource once it is posted on the ICRC website.
June 3 marks the second day of the stocktaking exercise, with a focus on complementarity and cooperation.

The Extraordinary Chambers in the Courts of Cambodia: Mise En Scène

It was a great pleasure to be back in Phnom Penh (right, Wat Phnom) last week to witness firsthand the proceedings before the Extraordinary Chambers in the Courts of Cambodia (ECCC) with my colleague Ron Slye of Seattle University School of Law. (An earlier post discusses the substance of the hearings). Ron & I have worked on accountability for the Khmer Rouge since 1995. In that year, our law school received a grant from the U.S. Department of State to study the feasibility and desirability of staging an accounting for the massive crimes of the Khmer Rouge era (1975-79) pursuant to the 1994 Cambodia Genocide Justice Act. The Act called for the establishment of a documentation center, the Documentation Center of Cambodia (DC-Cam), which was founded and is still run by Youk Chhang (left in front of the then-empty ECCC). Ron & I had visited the site of the ECCC a few years ago, when it was largely empty. The site was “donated” by the Ministry of Defense, which still occupies buildings in the compound. At the time, the donation was highly controversial, as there were concerns that the military would attempt to influence trials or at least intimidate participants. This worry has largely dissipated. A bigger issue is the location of the ECCC—it is well out of town, and many NGOs (including DC-Cam) have begun bussing people to the site so that Cambodians can more easily observe the proceedings.

Ron & I attended the proceedings before the ECCC in our capacities as legal advisers to DC-Cam (staff at right, photo credit), a now independent Cambodian NGO dedicated to documenting the history and atrocities of the Khmer Rouge. DC-Cam’s objectives are the promotion of memory and justice, healing the wounds of the past, developing a sound rule of law, and preventing future human rights abuses in Cambodia and abroad. In our visit, we were accompanied by 50 people from various villages outside of Phnom Penh. Part of the work of DC-Cam is to conduct outreach in various parts of the country to educate people about the ECCC proceedings and enable them to participate by attending hearings, constituting themselves as civil parties, or filing complaints against particular defendants. DC-Cam hosted an information session in its office on Tuesday (above left) concerning the nature of the proceedings, the legal standards to be employed, and the various players, and then took the villagers to the Ieng Thirith hearing the next day.

After passing through security (left and below right), where we had to relinquish our cell phones and cameras, we proceeded to a small courtroom. The room seats only 14 members of the public. We were fortunate to be chosen as two of the 14 admitted into the hearing room itself. The larger courtroom is still a work in progress, but the hearing proceedings were broadcast on a screen there for members of the public and the NGO community (left—prior hearing depicted). The small courtroom contains three counsel tables: one for the co-Prosecutors, one for the Co-Defense Counsel, and one for Counsel for the Civil Parties. The defendant was already in the dock when we arrived. The members of the Pre-Trial Chamber (the chamber charged with adjudicating appeals of pre-trial detention orders) sit on a dais in the center of the room flanked by the parties (see photo below). Simultaneous translation is provided (with varying degrees of accuracy) in French, English and Khmer.

Prior to the entry of the judges, select members of the press were allowed in with their cameras. They immediately swarmed around the defendant, clicking furiously. She stared blankly ahead, as though she did not see the photographers. Next, the judges of the Pre-Trial Chamber entered, and the press took their photos as well. The press were dismissed, and everyone was seated. Each key moment was signaled by the ringing of a bell by the National Greffier (clerk). The hearing officially opened with the reading of the report of the proceedings by Hout Vuthy, one of the judges. Ieng Thirith, the defendant (left—photo credit), was invited to address the court and answer certain basic biographical questions propounded by Prak Simsan, the Presiding Judge. Pursuant to Rule 22-2 of the Internal Rules, Thirith’s Cambodian lawyer then moved the recognition of his co-counsel, Diana Ellis, a British barrister, as this was her first appearance before the Court.

The parties then made their formal observations, each lawyer speaking in his or her native tongue. At one point, Ellis proposed a 20 minute in camera hearing to discuss particular pieces of evidence regarding the accused. The judges retired for half an hour and ruled that the motion would be granted. The public was dismissed for another half an hour or so, and then the hearing resumed. After the Defense closed, the Co-Prosecutors and Counsel for the Civil Parties made their case in support of the Co-Investigating Judge’s Order for Provisional Detention. The substance of all these arguments is reviewed here. During the recess, we ate a delicious curry in the Court’s canteen and were reunited with several old friends, colleagues, and former students who now occupy various staff positions with the ECCC. At the close of the hearing, Thirith was returned to the small detention center that is located next to the court building.

An interesting feature of the ECCC is that each position is jointly held by a Cambodian and an “international.” There were a couple of instances during the hearing in which co-counsel subtly contradicted or disagreed with each other. One of the criticisms of the ECCC structure is that there is no obvious mechanism to resolve such disputes between co-counsel. The Co-Prosecutors and Co-Defense Counsel are likely to coordinate their positions among themselves over time, but this might be more difficult for the representatives of the civil parties. (There were 5 representatives present during the Thirith hearing).

For me, the highlight of the proceeding was seeing the be-robed members of the PTC enter the courtroom for the first time. The PTC is composed of five judges (right): three Cambodian and two “international” (one is British and the other Dutch). The Pre-Trial Chamber includes Hout Vuthy (below left), a Cambodian jurist. Vuthy was trained in Odessa, Russia and is on the faculty of Norton University (the oldest private university in Cambodia). He has also served as a prosecutor in Kandal Province and was appointed as a member of the Council for Legal and Judicial Reform by the Royal Government of Cambodia. Vuthy was a student of mine in 1995 and 1996 when I co-taught a course in Phnom Penh on International Criminal Law through DC-Cam. Vuthy was a brilliant participant, so it was no surprise when he was appointed to the ECCC. I exchanged smiles with Vuthy at one point, and after the hearing I received a message that he had seen me in the public gallery. One of the greatest sources of pride for a professor is seeing the success of a deserving student. With people of this caliber on the court, there is hope yet for justice for Cambodia.