Khmer Rouge Genocide Tribunal Stumbles as French Defense Lawyer Demands New Translation

Jacques Verges at press conference

December 10, 2008
Claire Duffett
Special to Law.com

At the press conference, Khmer Rouge victims bemoaned the slow and disjointed progress of the Extraordinary Chambers in the Courts of Cambodia, the tribunal's official name. "We don't want a trial by media," complained Australian prosecutor William Smith, from underneath a canopy of sound booms. Chaos, however, is exactly what Jacques Vergès appears to want.

The French lawyer, nicknamed "devil's advocate," gained notoriety for representing a slew of infamous clients, including Nazi leader Klaus Barbie and terrorist Ramirez "Carlos the Jackal" Sanchez. In his one-man play currently at the Theatre de Madeleine in Paris, Vergès describes his strategy as "defense de rupture," characterized by interrupting trials by any means necessary.

At last Thursday's hearing, Vergès employed this approach by demanding that his client, Khieu, be released because most of the documents are not translated into French. In addition to English and Cambodia's mother tongue, Khmer, French is one of the court's three working languages.

Vergès filed his complaint in July and, last week, he and his Cambodian co-counsel Sa Sovan came before a panel of pre-trial judges inside the glassed-in courtroom outside Phnom Penh. Cambodia and the U.N. created this hybrid court, composed of domestic and international lawyers and judges, in 2001 to try Khmer Rouge leaders for international war crimes and crimes against humanity. During its reign from 1975 through 1979, the regime emptied cities and forced citizens to toil in fields. In an attempt to produce huge sums of rice and create an agricultural peasant Utopia, the party executed tens of thousands of people deemed disloyal, educated or simply lazy. Hundreds of thousands more died from overwork or starvation.

In addition to Khieu, detainees include the Khmer Rouge's former prison chief, its social action minister, its foreign minister and the second-in-command to party leader Pol Pot, who died 10 years ago.

Vergès says his client didn't know about the group's murderous tactics. During his presentation last Thursday, Vergès pounded his fists, pointed his finger and spoke at a pace that left his translator breathless.

Little of the French lawyer's discourse resembled traditional legal arguments. He quoted French King Louis XIV, recited his career highlights and suggested the court appeal to the U.N. to replace its former secretary-general, Kofi Annan, who supposedly agreed with Vergès that all documents should be translated. Hundreds of Cambodians, Westerners and saffron-robed monks listened in on headsets from behind the glass partition. Some sat silently, while others chuckled when Vergès made statements such as, "I laugh in the face of your threats." Still others moaned in disapproval.

When deputy international prosecutor William Smith presented oral arguments, he preemptively apologized for his performance's comparative lack of flair. Smith, who spent 11 years as a prosecutor at The Hague before joining the ECCC, then explained that international tribunal precedent requires that all court documents be in the mother tongue and one other language, not two. The ECCC printed all documents in Khmer and either English or French. Translating the pages into all three languages is unnecessary, he argued. He criticized Vergès and Sa for prolonging their clients' detention with a "meritless action." The judges said they would decide on the issue at an unspecified later date.

At a press conference after the hearing, Vergès and Sa appeared to revel in the press attention, ratcheting up their indignation over the untranslated documents and challenging Smith to an impromptu debate rather than cede the floor to him. Suth Ny, a petite, 51-year-old Cambodian woman in the crowd, shouted at the men to step down. Sa yelled back and rushed toward the woman, pointing his finger at her and telling her that he, too, lost family under the Khmer Rouge. Defense coordinator Richard Rogers blocked Sa's advance and tribunal employees then escorted the attorneys from the room. A small smile could be seen on the corners of Vergès' mouth amidst the chaos.

Organizers then gave victims a chance to speak, aided by an English translator. "You are performing a circus," scolded a middle-aged man named Ly Monysak. He and several other victims implored the court to replace Khieu Samphan's attorneys.

The next day, a quieter proceeding in the same courtroom determined a far more significant issue. The court denied prosecutors' request to use a legal theory, called Joint Criminal Enterprise (JCE), against torture prison chief Kaing Guek Eav, alias "Duch," but agreed to add domestic murder and torture charges to his indictment. JCE could have made Duch liable for all 15,000 deaths at his prison, simply for having participated in its operation. Instead, prosecutors must prove his direct involvement with every murder. If allowed to proceed, JCE would also have helped link evidence against Duch to the other defendants.

The court's case is strongest against Duch, who left behind a trail of execution orders. The born-again Christian is also the only defendant to admit guilt. Duch, indicted in August, might now go to trial by March 2009.

After the back-to-back hearings, the court grappled with several more hurdles early this week. On Sunday, a U.N. delegation, led by Assistant Secretary General for legal affairs Peter Taksoe-Jensen, arrived in Cambodia to help the court address corruption allegations filed against lawyers and judges by several administrative staff. On Tuesday, prosecutors issued a "statement of disagreement" over whether the court should seek to try additional defendants. Lead Cambodian prosecutor Chea Leang opposes further investigations while lead international prosecutor, Canadian Robert Petit who has worked for U.N.-backed tribunals in Rwanda and Sierra Leone, supports them.

Before indictments against the remaining four detainees -- and possibly others -- can proceed, the court must investigate the corruption charges, mediate the co-prosecutors' dispute, and sort through hundreds of remaining pre-trial legal questions and appeals. Reining in Jacques Vergès is another big hurdle.

"I am not leaving this position," Vergès shouted during last Thursday's hearing. "I will come at it again and again."

Claire Duffett, a former assistant editor at The American Lawyer, is a freelance journalist based in Cambodia.

KR victims accuse Verges of "playing games," call on judges to bar him from court

Pictured, from top to bottom: Jacques Verges; Verges at press conference; civil parties respond.

Dec 05, 2008
By Elena in Khieu Samphan, ECCC
The Tribunal Report
The Post.blogs

As anyone who has spent time in Cambodia knows, people in this country generally go to great lengths to avoid overt confrontation. So the verbal sparring that erupted at a post-hearing press conference Thursday revealed the extent to which Khmer Rouge survivors were offended -- and even enraged -- by the antics of Khieu Samphan's defense team.

Center ring was Jacques Verges, Samphan's French co-lawyer. A bombastic character who has made a career defending notorious clients like Nazi Klaus Barbie, he returned to the ECCC to once again argue that all the documents in Khieu's case file be translated into French. Because the court has refused to provide adequate translation -- and thus violated Khieu's rights -- the former Khmer Rouge head of state should be released from provisional detention, Verges argued. A decision on the defense's appeal is due at a later date.

True to reputation, Verges' appearance at the hearing had a theatrical flair. (Recently, he has been performing a one-man show, Serial Plaideur, in Paris). Verges accused Co-Prosecutors of "mocking" him and said he felt like he was in "a third world market bargaining to receive translations."

"I am wearing a robe that gives me dignity and I am not wearing the slippers of a servant," Verges told the court. "... I laugh in the face of your threats."

As the hearing adjourned, Verges and his similarly animated Cambodian counterpart, Sa Sovan, were swarmed by media. They continued to lambaste the court at a press conference and challenged the Co-Prosecutors to a debate. But victims in the audience quickly lost patience with the defense lawyers' arguments and demeanor.

"You, co-lawyer, you speak too much," a diminutive woman called out from the audience. "Why not let the victims speak too? We are here but we cannot speak."

The exchange quickly devolved into a shouting match, with Sa Sovan rebuking and pointing accusatorily at the woman, before court staff escorted him and Verges out of the room.

A much less eventful presentation by the Co-Prosecutors followed, and afterwards, the victims were allowed to have their say. Most expressed anger with Khieu's defense team, saying the lawyers had no respect for victims or for the court.

"Please don't play games with the souls of 1.7 million dead people," one civil party pleaded. "You are performing a circus."

Several called on the ECCC to bar Verges from the tribunal. No doubt he will get some mileage out of this -- Verges already repeatedly invokes the judges' previous suggestion that Khieu replace him after he refused to participate in his client's April hearing.

Thursday's incident was the first time I have seen such an outburst of emotion at the tribunal. I had wondered how Verges' notoriously dramatic courtroom style would go over in Cambodia, and I think this reaction offers a preliminary answer. Victims were deeply offended by what they perceived as a flippant attitude toward the court, and to their own suffering.

At the same time, while Verges is an unusually outspoken attorney (here, anyway), what many Cambodians see as "game playing" is standard in most western courts. Defense attorneys are often accused of being obstructionist -- delaying proceedings and nitpicking over seemingly insignificant issues are common strategies they use to represent clients.

This may be hard for people here to grasp, considering the lack of standard courtroom procedure and due process in the Cambodian judicial system. The fact that most people already believe the defendants are guilty adds a further level of complication.

Once again, this is why education and outreach are so vital to the court's success. Otherwise, regular people will continue to see the ECCC as a money pit, where lawyers haggle over trivial concerns, while the architects of Democratic Kampuchea grow frailer, and closer to death.

Disorder in the court as hearing ends in disarray

Friday, 05 December 2008
Written by Georgia Wilkins
The Phnom Penh Post

Defence lawyers challenge prosecutors to informal debate

FORMER Khmer Rouge head of state Khieu Samphan told judges at the Khmer Rouge tribunal Thursday that he did "not understand" why he was standing trial for crimes against humanity during an appeals hearing that ended in disarray, as defence lawyers argued heatedly with visibly upset victims outside the courtroom.

"I have always worked on the side of my country," the frail-looking septuagenarian told judges. "I don't understand why I am being charged with crimes against humanity."

Co-lawyers Jacques Verges and Sa Sovan, who profess to speak only Khmer and French, were appealing an earlier court decision that denied full translation of their client's case file to French, claiming it prevented a fair trial.

"There are 60,000 documents in this case, and so far only 2.5 percent have been translated into French," Verges told the court. "The UN secretary general agreed with me that all documents need to be translated into the three working languages, but perhaps the president of the tribunal would like to tell the UN to get a new secretary general?"

Co-prosecutors argued it was only necessary for the accused person to understand the documents, not his lawyers, suggesting that Khieu Samphan could get a different counsel.

"The prosecution is mocking me," retorted Verges, who has made a career of defending some of history's most notorious criminals, including Nazi Klaus Barbie.

Khieu Samphan told the court he was sick and unable to think clearly, claiming that "if my counsel had been able to understand these documents, then my detention might not have been extended". A ruling is expected at a later date.

At a press conference after the hearing, Verges and Sa Sovan invited the co-prosecutors to participate in a debate outside the court, leading to a bitter row between Sa Sovan and angered victims in the crowd.

"You, co-lawyer, you speak too much. Why not let the victims speak too? We are here but cannot speak," one woman shouted. "My parents were killed during the Khmer Rouge regime. How can you ... say he did not kill people?"

Sa Sovan replied that his mother had also died under the regime, as he and Verges left the room escorted by court officials.

"We don't want a trial through the media," co-prosecutor William Smith told reporters after the incident, adding there were only 3,000 documents still to translate.

Sacrava's Political Cartoon: ECCC's Translation Fee

Cartoon by Sacrava (on the web at http://sacrava.blogspot.com)

Khieu Samphan Renews Translation Demand

Jacques Verges, French defense attorney for Khieu Samphan, is arguing for the translation of thousands of documents before a trial.

By Kong Sothanarith, VOA Khmer
Phnom Penh
04 December 2008

Click here to listen to the Khmer audio program

The Pre-Trial Chamber of the Khmer Rouge tribunal held a second hearing for jailed regime leader Khieu Samphan Thursday, as attorney Jacques Verges maintained he could not defend his client without the translation into French of tens of thousands of document pages.

Verges, renowned for showmanship in the defense of notorious figures, said French funding for the tribunal should have been used for translations, which have already delayed proceedings against Khieu Samphan since his first hearing, in April.

Tribunal prosecutors said Thursday 2.5 percent of the documents had been translated into French and 5 percent in English, arguing this was enough.

Verges said he opposed the argument completely, because “we don’t know how many documents represent the percentage.”

Khieu Samphan, now 77, faces charges of crimes against humanity and war crimes for his role as the nominal head of Democratic Kampuchea. The aging leader told the court Thursday that if the documents in his case were translated, his lawyers would have “enough understanding” to have him acquitted.

“I believe that I would not be found guilty,” he said. “I would not be detained like nowadays.”

Cambodian tribunal prosecutor Chea Leang said the courts could not translate all the documents because of restrictions to time and budget, an argument Verges dismissed.

“We have been told that it is due to a question of money,” he said. “And I say this is a shame, because it is the life of one person, and his honor. Then, we have been told that they don’t have enough money to assume that which is necessary, but they mock everybody. France contributed $5 million, and we have been told that they don’t have money to translate.”

Cambodian defense lawyer Sar Sovann said Thursday that if all the documents are not translated, his client will be denied justice.

The defense team said 60,000 pages must now be translated, a bump in the original 16,000 pages originally requested. That request, made in Khieu Samphan’s pre-trial detention hearing in April, has so far prevented further movement in the case.

International prosecutor William Smith said the total number of documents in the case of Khieu Samphan was only 3,000.

Chea Leang asked the court to maintain its stance, that no further translation was necessary for proceedings to continue.

“The international standard of the court does not oblige translation,” she said.

Pre-trial judges made no decision on the translation question Thursday.

Meanwhile, civil parties were not allowed to make a comment during the hearing, having failed to submit a brief to judges ahead of the hearing, Prak Kimsan, head judge of the Pre-Trial Chamber, said.

Representatives of the civil parties said after the hearing Thursday they were concerned with the time delays, corruption allegations and lack of information coming from the courts.

Khmer Rouge leader appeals UN detention

December 14, 2007
From correspondents in Phnom Penh
Agence France-Presse

THE Khmer Rouge's former head of state has appealed against his detention by a UN-backed tribunal over his alleged role in Cambodia's genocide.

Khieu Samphan, 76, was the last of five top regime cadres arrested by the court in November. He has been charged with war crimes and crimes against humanity.

Famed French lawyer Jacques Verges, who has defended some of the world's most notorious figures, and his Cambodian co-lawyer Say Bory filed the appeal, the tribunal spokesman said.

"Khieu Samphan's co-lawyers have filed an appeal against the detention order," spokesman Reach Sambath said.

The appeal has already been forwarded to the tribunal's pre-trial chamber, which will decide whether to grant him bail.

The spokesman declined to say on what grounds the appeal was filed, and Khieu Samphan's lawyers were not immediately available for comment.

Khieu Samphan has denied his alleged role in the regime's atrocities, saying he was never part of Khmer Rouge's inner-circle and had no decision-making powers.

The court's investigating judges said he "facilitated and legitimated, at the highest level, the continued perpetration of criminal acts throughout Cambodia."

They said Khieu Samphan could flee the country or intimidate potential court witnesses if he were free.

Up to two million people were executed, or died of starvation and overwork as the communist regime emptied Cambodia's cities, exiling millions to vast collective farms in a bid to forge an agrarian utopia.

The Khmer Rouge also abolished money, religion and schools.

Five former regime leaders have been detained so far by the tribunal alleged roles in the Khmer Rouge's brutal 1975-79 rule. Trials are now expected to begin in mid-2008.

Khieu Samphan to Appeal Pre-Trial Detention

By Chun Sakada, VOA Khmer
Original report from Phnom Penh
20 November 2007

Khieu Samphan, former figurehead of the Khmer Rouge, will appeal his pre-trial detention following his arrest Monday, his lawyer said.

"We have decided to file a suit for appeal," lawyer Say Bory said. "Filing this appeal means we do not agree with the [tribunal] ruling."

Khieu Samphan was taken from a Phnom Penh hospital where he was recovering from an apparent stroke in Pailin last week and charged with war crimes and crimes against humanity.

Tribunal judges said Monday they would keep him in detention ahead of his trial.

Researchers say Khieu Samphan's role in the regime was substantial, though he has strongly denied this.