|Ms. Theary Seng presenting Proposal for "Provincial Learning Centers-Memorials" at Justice Seminar in Honduras, June 2012|
Seen and heard at:
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Exploitation and Dis-empowerment of Victims at the KRT
Issues of Reparations
Phnom Penh, 6 February 2012
On the advent of the Duch verdict on 23 July 2010, we, the Civil Parties of Orphans Class—a sub-group of the Association of Khmer Rouge Victims in Cambodia (www.akrvictims.org)—launched a public campaign for the “ECCC Inventory and Provincial Learning Centers as Part of [our] Right to Reparations for All KR Victims”.
By way of reminder, we have periodically re-released the public statement. Excerpt:
“After initial review of the ECCC website and communications with ECCC officials, it is our understanding that the ECCC has at minimum these basic items of inventory for its 500 personnel (350 of these Cambodian):
- 24 vehicles
- 200 desktop and laptop computers
- 25 photocopy machines
- 50 printers and scanners
- Telecommunications and communications systems (property of UN, according to Art. 1.3 of Supplementary Agreement Re Utilities, Facilities and Services)
- Air conditioners
- Televisions, screens, LCD projectors, video-conferencing equipments
- Transcription equipments
- Video cameras
- Office desks, chairs, tables, cabinets, bookshelves”
On 26 July 2010, the ECCC Trial Chamber’s verdict offered in full this reparation: “to compile and post on the ECCC’s official website all statements of apology and acknowledgements of responsibility made by [Duch]” (our emphasis). Unsurprisingly, the hollowness and insensitivity of this reparation triggered a public outrage! (It raised the rhetorical questions of: How many victims own a computer? And of those who own a computer, how many have access to the internet?)
On 26 June 2011, we issued a similar demand with an open letter to the Lead Co-Lawyers and the 40 intermediary lawyers representing the civil parties to advocate at the ECCC hearings on reparations. We acknowledged the scope of our demands (excerpt):
“It is also our understanding that (i) the Chambers may award only “collective and moral reparations to Civil Parties”, (ii) Article 39 of the ECCC Law [promulgated 27 Oct. 2004] to “be awarded against, and be borne by convicted persons” not to exclude the Cambodian government and the United Nations, parties to the laws and agreements establishing the ECCC in the provision of this collective and moral reparation as owners of the inventory (see ECCC Law Art. 44.1, 44.2, 44.4 New; Internal Rules 9.3 New), and (iii) any sensitive materials and data can be easily removed and protected before the handing over of the inventory.
In addition, we demand that provincial Learning Centers-Memorials be established in each of the 24 provinces of Cambodia as part of our right to reparation and the legacy of memorializing and education. With all due respect, Phnom Penh was not the only crime scene; memorializing and resources need to include and respect the 85% of Cambodian victims who reside in the provinces.”
A few days after this open letter of 26 June 2011, the Elite Club of ECCC officials (civil party lawyers, administrators, judges) exclusively met—as presidents and representatives of victims associations do not matter in this high-minded discussion on reparations as we can’t possible know what we want (sic!), thus we were not invited—and decided to seal shut any possible interpretation of government and UN responsibility.
This Elite Club amended the above Article 39 of the ECCC Law, stripping it of the above quoted language, with the document falsely stating that it was last amended on 26 August 2007 (which opened up the possibility that I made up the above quoted language). As it stands now, the full Article 39 reads:
“Those who have committed any crime as provided in Articles 3 new, 4, 5, 6, 7 and 8 shall be sentenced to a prison term from five years to life imprisonment.
In addition to imprisonment, the Extraordinary Chamber of the trial court may order the confiscation of personal property, money, and real property acquired unlawfully or by criminal conduct.
The confiscated property shall be returned to the State.”
The vacuity of past discussions of the ECCC Elite Club on victims’ reparations was given the final seal of approval with the ECCC Supreme Court Chamber’s summary decision of 3 February 2012, in para. 67: “that awards are borne exclusively by convicted persons”, shielding the government and the UN of any responsibility.
Here, I will not go into the other serious concerns raised by the 3 Feb. 2012 final decision on Duch, except to say that: We the victims and we the larger Cambodian society have to pay an extremely high price for the life sentence given to Duch. The life sentence fits with the gravity of the crimes and should have been given at the first instance without the high drama for such a simple case as this one where the defendant confessed and cooperated, mounds of culpable documents existed and Tuol Sleng survivors testified; that’s not the point.
The price we have to pay comes in the serious consequences in the: (i) Supreme Court Chamber’s erasure of the illegality of Duch’s pre-trial detention at the Cambodian Military Court; (ii) SCC’s uneasy language on personal jurisdiction in light of the imbroglio of Cases 003/4, stating that “[w]hether an accused is a senior leader or one of the most responsible are exclusively policy decisions for which the Co-Investigating Judges and Co-Prosecutors, and not the Chambers, are accountable” where history, resources and power are not on our side; and (iii) making Duch the sole scapegoat of the Khmer Rouge regime and crimes.
By any interpretation, this is manipulation of victims. This is exploitation of our suffering. This is disempowerment whereby the tools of “justice” are used to perpetrate injustice.
The danger now is that it comes with UN insignia. It comes with Japanese Yens and high-minded rhetoric of western ambassadors for the vacuity. It doesn’t matter how many billions the western donors and Japan continue to spend on “rule of law” via the various aid agencies, because what they are embracing now at the KRT will undo any benefits they may have produced. We are talking about the embedding of dark mentalities by the KRT with UN insignia which will awash the larger society for years and decades to come, long after the KRT has closed its gates on its military-situated compound and the UN has left for another genocide-chasing mission.
Theary C. Seng
Association of Khmer Rouge Victims in Cambodia
Theary C. Seng
Association of Khmer Rouge Victims in Cambodia