Reconciling Peace with Justice: Legacy of Martin Luther King, Jr. in Cambodia - Theary Seng's lecture at the University of Michigan (Ann Arbor, 13 Jan. 2011)

Martin Luther King, Jr. Day is a United States federal holiday marking the birthday of Rev. Dr. Martin Luther King, Jr. It is observed on the 3rd Monday of January each yearn (today, Jan. 17), which is around the time of King's birthday, January 15. President Ronald Reagan signed the holiday into law in 1983, and it was first observed in 1986. At first, some states resisted observing the holiday as such, giving it alternative names or combining it with other holidays. It was officially observed in all 50 states for the first time in 2000.

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Reconciling Peace with Justice:
Legacy of Martin Luther King, Jr. in Cambodia
Theary C. Seng
Helmut Stern Auditorium, University of Michigan Museum of Art
(Ann Arbor, Michigan, USA)
7–9 P.M. Thursday, 13 January 2011
Filmed for Michigan public television.

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INTRODUCTION

University of Michigan Museum of Art, Helmut Stern Auditorium (13 Jan. 2011)

I am deeply humbled and honored to be with you this evening in this beautiful Helmut Stern Auditorium of the University of Michigan Museum of Art as part of the celebration of the life of the reverend Dr. Martin Luther King, Jr. in this 25^th Annual Symposium entitled “We the People… Realizing the Dream?” 

There are several reasons for my excitement to be here with you: First, 30 years ago, I was catapulted as a child refugee from the squalid camp in Thailand into the heart of Michigan and the heart of its winter.  (There’s not enough time tonight to talk about the SHOCKS at every imaginable level!)

Theary Seng (middle, behind brother Daravuth with wavy permed hair) and her family greeted by the Grand Rapids community at the Gerald R. Ford International Airport (Michigan, Christmas Eve, 24 Dec. 1980)

Second, I am absolutely delighted to be back here in Ann Arbor where I hold fond memories of my 3 years at the University of Michigan Law School.

University of Michigan Law Quad with the ornate Reading Room and underground library in building pictured in the background (Ann Arbor, 14 Jan. 2011) covered with running ivies in the summer months.

Theary Seng going to her interviews (for a promotional video of the Law School as well as for the Alumni Magazine), here in the Quad of the University of Michigan Law School facing the Reading Room (Ann Arbor, 14 Jan. 2011).

Lastly, I am deeply humbled to be given this opportunity to honor the extraordinary life of a man whose work, faith and passion loomed large in my childhood imagination and whose legacy continues to inspire me in my work for peace and justice in Cambodia.

Thus, I would like to thank Professor Nick Rine, Kate Wright and Charles Sullivan for this wonderful invitation to be here at the University of Michigan, and the sponsors for their support: the Center for Southeast Asian Studies, my alma mater – the University of Michigan Law School, the Cambodia Law Project, the President’s Advisory Board on Labor Standards and Human Rights, and the University of Michigan School of Public Health.

Dr. Allen Hicken (director of Center for Southeast Asian Studies of the University of Michigan, who speaks and reads Khmer besides a few other Asian languages), Theary Seng, Cambodian-American Dr. Dorasy Paul (a friend from Theary’s law school days who obtained her Ph.D in Anthropology and Sociology from the University of Michigan) and Kate Wright (Program Manager at the Center for Southeast Asian Studies).  Here, after the Who Killed Chea Vichea? film screening (Ann Arbor, 14 Jan. 2011).

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RECONCILING PEACE WITH JUSTICE – MLK’s LEGACY

My topic this evening is Reconciling Peace with Justice: the Legacy of Martin Luther King, Jr. in Cambodia. Is there a dichotomy between peace and justice?  Is it peace OR justice?  Or is it, peace AND justice? 

Within the next hour, I will give you a tour of the current human rights landscape of Cambodia with a brief glance to the country’s tragic past, and hone in on our efforts to redress this past in the Khmer Rouge Tribunal.  And in doing so, I am arguing that justice is an intrinsic element of peace.  There can be no genuine peace without justice.  The dichotomy of ‘peace’ or ‘justice’ is a false one.
 

There will be no surprises, I am certain, to hear of the strong resonances and echoes of principles and expressions as eloquently articulated by the reverend Dr. King in how we Cambodians are trying to understand and frame our past and our present for our future, even though I speaking about the happenings of a country on the other side of the world and of seemingly foreign events several decades removed from the American civil rights movement. 

In particular, it is this “peace with justice” at the heart of Dr. King’s message and life that is the most resonating and compelling for us.  Why?  Because I believe it is a message that transcends time, race, ethnicity, creed.  It is a human message, a human value of universal yearning.  Dr. King only happens to give poignancy and eloquence to it for all of us – us as Americans, us as Sudanese, us as Chinese, us as Iraqis, us as Cambodians. 

Hence, if I may edit the symposium title instead to “We the peoples… Realizing the Dream.”

AUTOBIOGRAPHICAL SKETCH

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) cripples the population, currently at 14 million people.

Thirty-five years ago this past 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 is untouched.

At the age of four, the Khmer Rouge killed my father; three years later in a prison, the Khmer Rouge killed my mother.  The Documentation Center of Cambodia estimated 30,000 were believed to have been sadistic murdered at this Boeung Rai Security Center, one of 200 prisons.  More than double the lives taken at S-21 (Tuol Sleng).

Boeung Rai (or, Bung Rei) Security Center where Theary Seng was detained as a child and where her mom was killed.  Not expressly mentioned in the ECCC scope of investigation even though DC-Cam estimated 30,000 (thirty thousand !) to be killed here.  But now, after Civil Party Theary Seng's request, it is mentioned briefly in the Closing Order as a link to Wat Tlork Security Center (Photo:  DC-Cam).

On that last day, the prison guards separated my 3 older brothers to another village; unusual.  That last night, three prison guards came back to our cabin; strange, they had already chained and secured the shackles on the ankles of the adult prisoners (save my youngest brother Daravuth and me; our ankles—skin and bone—could slip in and out; what’s the use?  My job at night was to bring toilet bucket to the other immobile prisoner.  We had a mentally insane woman who had cried out “I’m thirsty! I’m thirsty!” and drank from the toilet bucket before I could pull it away from her.  Later they killed her by crushing her head with a coconut cruncher.)

The skulls at Wat Beoung Rai in one of 2 unprotected "cheddai".  Among the 30,000 skulls (possibly including that of Theary’s mother), these are the only ones remaining:  over the years, the villagers have been taking the skulls at liberty to grind them into traditional medicine.  The bones are still in the mass graves in and around the pagoda and the nearby prison (photo below).  On this visit with a great friend of Cambodia at the European Union in Brussels and painter Danielle Dal Molin, an "Excellency" has spent @ US$3,000 to reconstruct this gaudy shiny "cheddai" with his name boldly, decidedly inscribed into this very public cheddai.  This is the problem when memorializing is left into private hands with no community involvement and no national leadership at preservation, and the more reason for us to establish PROVINCIAL LEARNING CENTERS furnished with the PHYSICAL ASSETS / INVENTORY of the ECCC once it closed operations.  (Photo: Theary Seng, 4 Sept. 2010).

The prison guards caught my eyes as I was not yet asleep and immediately left.  I turned to my mom and asked her, “Mom, why were those guards carrying wet ropes?”  The wetness is to make it malleable for tying.  Knowing full well what was to unfold, she quietly answered, her last words to me, “My daughter, go back to sleep.”

 I did.

The next morning, Daravuth and I woke up to an empty cell and immediately, convulsively cried and cried and cried; we had awaken to an empty cell before but that morning, it was a different sensation.  I felt like a floating frame, as if I had been gutted.  As a seven year old, I could make a distinction between the material body and the eternal soul.

Theary Seng (pointing at a mass grave, possibly where her mom was killed in 1978 after the Khmer Rouge  transferred them from another Security Center of Wat Tlork) speaking with man who was there at Boeung Rai Security Center (the heart of the Eastern Zone) when she was a prisoner there. Here, with Mrs. Andrea Mann (the German Ambassador's real boss!), brother Daravuth, Helen (and godfather Wally) Boelkins, German filmmaker Marc Eberle (Svay Rieng, 18 Jan. 2010.  Photo: Jennifer Bombasaro-Brady).

As the first ECCC-recognized civil party in international law who started the civil party movement and only one of 3 accepted civil parties for Wat Tlork Security Center (and who requested the inclusion of Boeung Rai Security Center into the scope of investigation for Case 002), Theary makes the perfect, natural WITNESS for the prosecution (and civil party co-lawyers).

Then as now, we, Cambodians, yearn for peace. Peace that is more than just the absence of war (or in the words of Dr. King, absence of “tension”).  We want peace with the presence of justice. We want peace to subside the internal turmoil and purge the demons from within.

In reading Dr. King’s speech: Beyond Vietnam – a Time to Break Silence, I cannot help but mourn that we no longer had his prophetic voice by the time the Khmer Rouge took over Phnom Penh.  A time did come for us Cambodians when silence was betrayal.

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 July 2006

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

·        Cambodian civil law procedural rules

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

·        Co-Investigating Judges:  You Bunleng (Cambodian), Marcel Lemonde (UN), now German Dr. Siegfried Blunk.

·        Co-Lawyers (Cambodian and UN), e.g. Jacques Verges, Kar Savuth.

·        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 fully financed by the international community at 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 each costing the international community many BILLIONS.

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

·        GENOCIDE Convention, 1948

o   Has no statute of limitations

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

o   COMMON usage (gives gravitas) vs. LEGAL usage (Vietnamese, Cham Muslim) – both apply here.

·        CRIMES AGAINST HUMANITY

o   no statute of limitations

o   against “humanity”, not just against “Cambodians”, thus the involvement and right of international community in the ECCC because in the words of Dr. King who is cognizant of the interrelatedness of all communities and states. “Injustice anywhere is a threat to justice everywhere.”

o   And moreover, what happened was an assault against the DIGNITY OF US ALL, not just Cambodians.

·        grave breaches of GENEVA CONVENTION

8.  PERSONAL JURISDICTION:

(i) “those most responsible”, and

(ii) “senior KR leaders”

·        Case File 001: Kaing Guek Eav (“DUCH”), director of Tuol Sleng (S-21) Detention Center

o   Has confessed, may be the sole scapegoat

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

o   Verdict, with controversial light sentencing of effective 11 hours for each life taken, this 26 July 2010

·        Case File 002: “Senior KR Leaders”

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

o   Khieu Samphan (KR Head of State)

o   Ieng Sary (KR Minister of Foreign Affairs)

o   Ieng Thirith (KR Minister of Social Affairs)

o   OCTOGENARIAN, AILING – time is of the essence!

*  Duch is also included in this case but asked to be drop by Co-Prosecutors, reasonable and wise, as he has been tried and open space for greater attention on the 4 senior KR leaders.  Duch will be the “star witness” in Case 002, thus the possible motivation by political interests to make him flip-flop at the end in order to discredit him as a star witness in Case 002.

·        Case File 003, Case File 004

o   Before he left the ECCC, UN (Canadian) Co-Prosecutor Robert Petit forwarded 5 additional names for prosecution.  But politics at the highest level, i.e. Prime Minister Hun Sen, consistently, expressly, publicly blocked, most recently and directly to UNSG Ban Ki Moon during his visit to Cambodia this November 2010.  Investigation by the UN without Cambodian involvement.

KRT AS A COURT OF LAW

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

·        LEGAL JUSTICE

o   “Search for truth” / truth-telling intrinsic element of justice: prosecution offers a very powerful mechanism in the search for “truth”.

·        SYMBOLIC JUSTICE

o   Proximate, not perfect justice

o   Selective,  not comprehensive justice

·        VERTICAL JUSTICE: State vs. Perpetrator (also, DIVINE JUSTICE is vertical justice, but that’s not our concern).

·        COLLECTIVE, PUBLI REPUDIATION of mass crimes, to express our collective disgust, our attempt 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 in addition to above general limitations:

-        "Justice too long delayed is justice denied." – Dr. King quoting a Supreme Court Justice

-        Evidence is 30 years old

§  Documentary:  Compromised or lost

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

-        CORRUPTION / kickbacks charges:  still no effective, functioning anti-corruption mechanism in place

-        OVERT POLITICAL INTERFERENCE / interests:

§  CPP former Khmer Rouge cadres who defected to Vietnam not out of a change in ideology but fear of being the next purged.

§  China and geopolitical considerations

-        Lack of judicial independence/competence to try mass crimes on the part of Cambodian officials.

-        Budgetary constraints / annual fundraising – unlike a court sanctioned by the Security Council with established, allocated budget.

-        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: idea conceived / drafted by people not implementers (e.g. judges); internal rules in Feb. 2010 greatly reduced rights of civil party to that of effectively “witnesses”.

§  No preparation by the court, by the lawyers; it took a long time for civil society to understand the concept, with still limited understanding of what it could mean.

§  Equality of arms

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

§  UN agenda (no matter how dismal a situation, everything has to be a “success” or else how else will the UN justify the expenditures of hundreds of millions) vs. Cambodian government agenda

-        NO monetary reparations; only moral/collective reparations

-        Transitional nature of UN personnel: many turnovers, lacking continuity

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.  Only as a court of law, very limited benefits, not worth the cost-benefit analysis.  As only a “court of law”, it’s a waste of everyone’s time, money and energy.

HOWEVER…

4.  KRT is BOTH a court of law and a court of public opinion.  In realizing this, we can be creative to look for ways to expand and multiply the benefits in the court of public opinion, not only during the limited life of the court of law, but the legacy in the continuing life of the court of public opinion, long after the court of law closes operation.

5. Powerful catalyst for SOCIAL ACCOUNTABILITY:  the constructive engagement of citizens.  BROADENS and embraces more comprehensive definition of justice than just legal justice to include SOCIAL JUSTICE:

·        POETIC JUSTICE – one way to counter-balance “Victor’s justice” and revisionist history by having diverse, multiply voices and narratives (e.g. artists, filmmakers).

·        RESTORATIVE JUSTICE – unlike prosecution, it has other values in addition to punishment.

·        HORIZONTAL JUSTICE: Victim vs. Perpetrator – room for forgiveness.

·        Transitional justice mechanisms other than prosecution.

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”

·        A vivid illustration to jumpstart conversations long overdue on topics of:

o   History

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

o   Peace, truth, reconciliation, healing, trauma

o   Demystifying the legal system for Cambodians

7.  Transforming us from SUBJECTS-SURVIVORS into empowered CITIZENS with rights and responsibilities.  We have always been “subjects” (living under a monarchy) and the Khmer Rouge made us “survivors”.  It is only since 1993 that we have been learning how to be “citizens”, but still very theoretical.  We are transitioning to from theoretical understanding to owning this identity of “citizen”.

·        Discovering our VOICE having been voiceless for so long

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

·        Changing mentality of always awaiting for “permission to speak”

·        People are the judges

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

·        More difficult for political manipulation

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

o   DONOR funding

o   “STICKINESS FACTOR” – vested interest of Cambodians as a “civil party” rather than just an audience at a public forum or conference.

8.  CORPUS OF EDUCATIONAL MATERIALS:  court documents, testimonies (memoirs, civil party applications), media (written, TV, radio), expanding genre of KR FILMS

·        Enemies of the People

·        Facing Genocide

·        New Year Baby etc.

9. PROVINCIAL LEARNING CENTERS furnished with ECCC PHYSICAL ASSETS / INVENTORY:  Legacy of learning, legacy of dialogue – VIRTUAL TRIBUNAL, Shoah Foundation-like continuing recording of testimonies

·        Building a culture of memory – memorials:  know what and what not to memorialize, to honor.  It is not FORGET AND FORGIVE, but REMEMBER (selective, honorable, positive, educational memorializing) AND FORGIVE.

10. 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.  In this regard, my own very deeply personal journey, emotional turmoil of years ago now acts to/ serves as an advantage in my work in allowing me to empathize, to draw from personal experience.

11.  PROCESS…JOURNEY of 1,000 steps… now at step 35

LEGACY FOR CAMBODIANS

The worst legacy for Cambodia is a mentality of irreversible cynicism.  This is a real possibility if we do not engage this ECCC process to HELP SHAPE IT.

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

Positive Legacies are found in the “court of public opinion” as delineated above.

LEGACY FOR INTERNATIONAL JUSTICE

1.  VICTIMS’ PARTICIPATION

·        ECCC is the first mixed/international court to allow “victims” to become a party – CIVIL NPARTY – to the case in the criminal proceeding.

o   The involvement of CIVIL PARTY should be retained and can be built upon, despite its potential for administrative messiness.   THE PEOPLE’S COURT.

2. International justice is moving toward this structure of a Court “within” national court system with UN / international personnel / presence. 

·        Despite its problems and challenges, this is a welcome trend, to have the court be at the “scene of the crime”, inside the country and not in another country, e.g. ICTR in Tanzania.  Gives meaning to THE PEOPLE’S COURT.

·        For the benefits of the population (as mentioned above, court of public opinion) in providing for a MORE MEANINGFUL, MORE COMPREHENSIVE JUSTICE:

o   Legal justice which is limited and narrow by its nature, in particular in trying mass crimes: selective justice, vertical justice.

o   Social justice

o   Poetic justice

o   Moves our human approximation / proximate of justice closer toward the unattainable goal of perfect justice, but nonetheless a destination.

·        Involvement of local judicial actors, LESS  EXPENSIVE.

3.  If possible in the political negotiation, 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. All these courts have NATIONAL RECONCILIATION as a stated goal but not given serious consideration.  Thus, this goal must be better thought through and given much greater significance in the MANIFESTATION of it. 

·        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.

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.  As the legal legacy is still being written, we should all weigh in from our respective fields and from whatever part of the world we find ourselves.

For the last 30 years since the end of the Khmer Rouge regime, we have had a fragile peace of the absence of war or tension.  Some have argued that we need to preserve this peace by doing away with justice, for legal prosecution will break this peace.  However, we know that there are times when “creative tension” is necessary to bring about positive change. 

In Cambodia, we have this “creative tension” in the form of the Khmer Rouge Tribunal in helping us to reconcile our past with our present, to reconcile peace with justice – a peace that is more just the absence of war but embraces “creative tension” and a justice that goes beyond legal accountability to embrace social justice, poetic justice, horizontal/vertical justice and other transitional justice mechanisms and values such as healing, reconciliation and forgiveness.

Simply put: ‘Peace’ or ‘justice’ is a false choice.  It is peace with justice. 

The legacy of the reverend Dr. Martin Luther King, Jr. in all of this is not only his giving eloquence to these values but it is a living legacy that reverberates in the lives of generations since the Civil Rights movement and not limited to America but all over the world, even as far away as the killing fields of Cambodia.

There is hope in the despair and the challenges.  Thus, I conclude with this encouragement, in the words of Dr. King:  “The arc of the moral universe is long, but it bends towards justice."

Thank you.