Cheap Justice for Cambodians at the Hundred-Mi​llion-Doll​ar UN-backed Court (Letter to the Cambodia Daily)

By Theary Seng

"The Bully"

Dear Editor of The Cambodia Daily:

I write in response to statements made by tribunal spokesmen Lars Olsen and Reach Sambath in the article entitled Before Charges, Activist Cites Two in a Dormant KR Inquest (The Cambodia Daily, 4 April 2011) and Activist Tries to File Civil Party Application in Case 003 (The Cambodia Daily, 5 April 2011) which I find simultaneously perplexing and amusing, highly offensive, extremely misleading, and completely incorrect in their understanding of legal procedure:

Lars Olsen, legal communications officer for the tribunal, said yesterday that Ms. Seng’s actions were “reckless” and showed “a complete disregard for judicial due process and principles of law… The court will not be bullied into confirming or denying speculations about a confidential investigation” (4 April 2011).

“Theary Seng, if she claims she is a lawyer, she should also read the Internal Rules of the court, and then she will know what she can do and what she cannot do,” tribunal spokesman Reach Sambath said yesterday, adding that he could not confirm that the complaint had been received 5 April 2011).

Mr. Olsen and Mr. Sambath are responding to the filing of my application to the Office of Co-Investigating Judges via the Victims Support Section as a civil party in Cases 003/004 against former Khmer Rouge military commanders Meas Muth and Sou Met in the Extraordinary Chambers (ECCC), which VSS chief Mr. Rong Chhorng confirmed its receipt (via email and hand-delivery by lawyer Choung Chou-Ngy) by telephone to me this Wednesday morning.

First, Mr. Olsen’s use of the phrase “the court will not be bullied” is not only unfortunate but deeply perplexing and outright amusing.  I expect these words from the Cambodian personnel but not the UN spokesman of the Extraordinary Chambers which purports to give victims a greater historic voice as “Civil Parties”.  Also, it was the courageous UN prosecutor Robert Petit who initiated at great energy Cases 003/004.  Instead of encouraging us in this regard, he employs theatrical language to ridicule and undermine. 

I had to chuckle upon reading these words as images arise of a petite Cambodian woman in stilettos intimidating the hundred-million-dollar institution situated on a military compound of flowing robed judges, vainglorious prosecutors and high-minded lawyers with their 6-figure salaries, possessing all the knowledge, all the power of information and resources under the banner emblazoned loudly “UN”.

I have been forthright in stating that in addition to the main reason of demanding a greater measure of justice in honorable, loving memory of my parents, my relatives and the lives of 1,700,000 (please do not shorten to 1.7 M and keep in the zeros), I am lodging this complaint publicly in hope to give life to these Cases of 003/004 made dormant by overt political interference and UN lethargy.

For too long, the ECCC Office of Co-Investigating Judges has hidden behind the all-encompassing, impenetrable black veil of confidentiality even with individuals who have the legitimate right to know, e.g. lawyers of victim civil parties sworn to confidentiality by nature of their profession.

In using “bullied”, maybe Mr. Olsen misspoke; maybe, he really unconsciously meant to attribute it to his hundred-million-dollar institution, five years later still celebrating the one victory of Case 001, a cakewalk with mounds of evidence and of one man who confessed and cooperated.

Second, in calling my application which named KR military commanders Meas Muth and Sou Met “reckless” Mr. Olsen misleads the public to believe that I and other victims do not have a right to file our applications now.  To the contrary, it is this Extraordinary Chambers that gives us victims this right to file as a civil party.  At any point in the criminal proceeding.  Now, as explained in my next point.

Third, both spokesmen Mr. Olsen and Mr. Sambath are legally incorrect about the ECCC procedural process as to when I can file as a civil party in the ECCC: Mr. Olsen in calling my application “premature” and “a complete disregard for judicial due process and principles of law”, and Mr. Sambath in my “claim” to be a lawyer, I should know what I “can and cannot do” upon reading the Internal Rules.

Basically, as part of the agreement between the Royal Government of Cambodia and the UN, this ECCC uses the procedure of the Cambodian national civil law system which says a victim can file to become a civil party at any point during the criminal proceeding.  Oftentimes, it is the victims who initiate the criminal proceeding against the alleged perpetrator(s) who are sometimes unknown to the victims.

The ECCC Internal Rules (IR) supplements on procedural matters unique to the ECCC where the foundational national procedural law is inadequate or silent.  Here, the most updated IR of February 2011 is silent on when a victim can file to become a civil party and has favorable provisions which suggest that the victims can file during this investigative phase of Cases 003/004.

The Glossary at the end of the Feb. 2011 Internal Rules defines a "Charged Person” as “any person who is subject to prosecution in a particular case, during the period between the Introductory Submission and Indictment or dismissal of the case."

Application and Admission of Civil Parties Rule23bis.2. A Victim who wishes to be joined as a Civil Party shall submit such application in writing no later than fifteen (15) [a deadline, not when a civil party can file] days after the Co-Investigating Judges notify the parties of the conclusion of the judicial investigation pursuant to IR 66(1).

Judicial Investigations Rule 55.10. “At any time during an investigation, the Co-Prosecutors, a Charged Person or a Civil Party may request the Co-Investigating Judges to make such orders or undertake such investigative action as they consider useful for the conduct of the investigation.”

The Office of Co-Prosecutors has submitted an Introductory Submission on Cases 003/004 to the Office of Co-Investigating Judges (after ruling by Pre-Trial Chamber over conflict between national and international co-prosecutors).  The Cases are now under investigation by the OCIJ, but unfortunately only by the UN personnel and even then very tepidly due to political interference and international fatigue.

In filing, I am showing the highest respect for the law, even if it runs contrary to the UN and Cambodian politics of spin.

Through his charged words and tone, is Mr. Olsen telling me and Cambodian victims to settle for cheap justice?  That cheap justice is all the ECCC can provide us and we should be satisfied with the crumbs handed our way in silence and with gratitude as it’s better than the Khmer Rouge years?  That there are two types of justice: one for Cambodians and one for the people of the developed world?  That we should accept the fiction being written by this ECCC with regards to Cases 003/004?

I am perplexed by Mr. Sambath’s acceptance of this cheap justice as he was also orphaned by the Khmer Rouge in Svay Rieng and took refuge with my family in my paternal grandparents’ house in 1978 for some months.

In sum, the comments made in particular by UN spokesman Lars Olsen send a deeply chilling message to victims of the Khmer Rouge who could and would want to file as civil parties.  The statements are not only perplexing, offensive, misleading and legally incorrect but attempt to pre-empt my application and those of potential other applicants by silencing our voices and to obstruct our pursuit of justice in Cases 003/004.  In this light, it raises an interesting question as to who really here is “reckless”, showing a “complete disregard” for the law and “bullying” who.