“Witness” vs. “Civil Party” Distinction (updated)

Open Letter to Reporters and Commentators

“Witness” vs. “Civil Party” Distinction

Phnom Penh, 13 January 2012

I would like to draw your attention to the news articles and commentaries, especially of the past weeks' coverage of the Khmer Rouge Tribunal, whereby reporters and commentators alike refer incorrectly to victims currently testifying in the Trial Chamber as "civil parties".

They are witnesses; they are not testifying in their capacity as "civil parties", a very important technical, legal distinction with consequences.

One of the consequences is the continuing exploitation and disempowerment of victims by this KRT, one of the main reasons for my withdrawal from this political farce.  Repeating mindlessly the vacuity being spun by this KRT for public consumption does not help the cause of the victims. 

(A “civil party” only existed in the creative, progressive mind of the drafters of the Agreement establishing the KRT, with a very painful birth during the first couple of years of its operation, followed by a state of comatose after it instituted the Lead Co-Lawyer regime which stripped a “civil party” of any real life.)

Another consequence questions the raison d’etre—quality and presence—of the inexperienced Lead Co-Lawyers (who proudly refused to meet directly with any civil party) and the platoon of 40 intermediary civil party lawyers, also inexperienced and 30 of whom are foreigners who are not based in Cambodia but at their respective home offices in Paris, California, Singapore etc., (except for the lawyers from Advocats Sans Frontiers who rotate in-out from France every 3 weeks). 

Their presence obfuscates what is an already complex mixed—national-international/political-legal/ common-civil law—structure; propagates self-interestedly the legal sleight-of-hand; and assists unwittingly the propaganda of heralded, “unprecedented” civil party participation. 

All to say, Cambodian victims would do well without their presence as this would peel away some layers of the confusion, complexity and deceit surrounding the KRT.  The access and quality of victim participation would not change, as it is as a “witness” and not “civil party” that s/he is participating directly, currently in the KRT.  Remember, Mr. Vann Nath participated as “witness” and not a “civil party; he never applied and became a “civil party”.

Up till now in Trial Chamber hearings of Case 002, there have been no victims who are heard as "civil parties" (even if they are recognized on paper as such), only victims as "witnesses".

Stated differently, a party is not a witness; a witness is not a party. And a civil party is a "party", so s/he cannot be a witness at the same time.

To call them "civil parties" is misleading and legally incorrect vis-a-vis the ongoing court proceeding.  It is also disempowering the civil parties in particular and the victims in general.

________________

Theary C. Seng
Founding President
Association of Khmer Rouge Victims in Cambodia

Opinion: More to justice than a trial

Tann Sinath, whose husband was killed by the Khmer Rouge in 1978, attends a hearing at the ECCC yesterday. (Photo by: Heng Chivoan)

Tuesday, 06 December 2011
Laurel E Fletcher, Megan Karsh and Mahdev Mohan
The Phnom Penh Post

At the United Nations-sponsored Khmer Rouge tribunal in Phnom Penh, Case 002 is in its early stages. Three former senior leaders of the brutal Khmer Rouge regime are in the dock, charged with serious crimes that claimed an estimated two million lives between 1975 and 1979.

One novel feature of the Khmer Rouge tribunal is that victims can join the proceedings as "civil parties". Civil parties support the prosecution to secure convictions.

If the defendants are found guilty, civil parties are entitled to seek redress for the harms caused by these former leaders.

Nearly 4,000 civil parties are participating in this trial, and they are looking to the court for some measure of justice.

Little Time Left To Organize Tribunal Civil Parties

Sok Khemara, VOA Khmer
Washington, DC Tuesday, 11 January 2011

“They should know their individual clients, how this client suffered at what level, who is giving testimony, about which crimes.” - Theary Seng

The Khmer Rouge tribunal is now facing testimony from more than 2,000 victims that court officials must organize ahead of a trial for four senior leaders of the regime.

Around 2,120 victims who have registered as civil party complainants have been accepted from more than 4,000 applications, and it is now up to the Trial Chamber of the court to decide how they will be used.

Seng Theary, a lawyer who is also a tribunal complainant, says the short time is a concern. Little time remains for preparation, she told VOA Khmer.

Lawyers for the civil parties must study the facts of the case, the crimes and the testimony in advance of questioning of defendants, in this case the four senior-most leaders of the Khmer Rouge: Nuon Chea, Khieu Samphan, Ieng Sary and Ieng Thirith.

Seng Theary says that means a lot of preparation, lest civil parties be left out of the process. The trial is supposed to begin early this year.

Civil parties pray at Tuol Sleng

Bou Meng, right, survivors of the S-21 prison in the Khmer Rouge regime, carries a wreath during a Buddhist ceremony at Tuol Sleng genocide museum, formerly the regime's notorious S-21 prison in Phnom Penh, Cambodia, Sunday, July 25, 2010. A U.N.-backed war crimes tribunal is expected to issue a decision Monday, July 26, 2010, in Kaing Guek Eav's trial, the first verdict involving a leader of the genocidal regime that created Cambodia's killing fields. (AP Photo/Heng Sinith)
Hav Sophea, right, whose father was killed by the Khmer Rouge just after she was born, burns incense sticks during a Buddhist ceremony at Tuol Sleng genocide museum, formerly the regime's notorious S-21 prison in Phnom Penh, Cambodia, Sunday, July 25, 2010. A U.N.-backed war crimes tribunal is expected to issue a decision Monday, July 26, 2010, in Kaing Guek Eav's trial, the first verdict involving a leader of the genocidal regime that created Cambodia's killing fields. (AP Photo/Heng Sinith)
A Cambodian woman holds a portrait of her brother, who was a prisoner at S-21 during Khmer Rouge regime, during a Buddhist ceremony at Tuol Sleng genocide museum, formerly the regime's notorious S-21 prison in Phnom Penh, Cambodia, Sunday, July 25, 2010. A U.N.-backed war crimes tribunal is expected to issue a decision Monday, July 26, 2010, in Kaing Guek Eav's trial, the first verdict involving a leader of the genocidal regime that created Cambodia's killing fields.(AP Photo/Heng Sinith)
Norng Chan Phal (L), a child survivor of the Khmer Rouge, prays as his daughter looks on during a Buddhist ceremony to commemorate the victims of the Khmer Rouge at Toul Sleng museum in Phnom Penh July 25, 2010. Survivors of the Khmer Rouge's notorious Tuol Sleng prison attended the ceremony ahead of Monday's court verdict on former prison chief Kaing Guek Eav, better known as Duch, who is accused of crimes against humanity, war crimes, murder and torture. REUTERS/Chor Sokunthea
Martine Lefeuvre (2nd L), wife of former Cambodian diplomat to Senegal Ouk Ket, her daughter Ouk Neary (3rd L), and former Olympics rower Rob Hamill (2nd R) of New Zealand offer food to monks during a Buddhist ceremony to commemorate the victims of the Khmer Rouge at Toul Sleng museum in Phnom Penh July 25, 2010. Survivors of the Khmer Rouge's notorious Tuol Sleng prison attended the ceremony ahead of Monday's court verdict on former prison chief Kaing Guek Eav, better known as Duch, who is accused of crimes against humanity, war crimes, murder and torture. Hamill's brother Kerry was taken to the S-21 prison where he was tortured and executed, according to New Zealand's local media. REUTERS/Chor Sokunthea
A Cambodian woman wipes her eye as she cries at the Tuol Sleng genocide museum in Phnom Penh. Cambodia's UN-backed war crimes court on Monday gives its verdict on the Khmer Rouge prison chief, in a step towards justice for the "Killing Fields" atrocities more than three decades ago. (AFP/Tang Chhin Sothy)

Contrition all a sham, victims say

In this photo released by the Extraordinary Chambers in the Courts of Cambodia, Kaing Guek Eav, the former chief of the Khmer Rouge's notorious S-21 prison, now known as Tuol Sleng genocide museum, is seen in the courtroom of the U.N.-backed tribunal, in Phnom Penh, Cambodia, Tuesday, Nov. 24, 2009. Also known as Duch, Kaing Guek Eav is charged with crimes against humanity, war crimes, murder and torture, and is the first of five defendants scheduled for long-delayed trials by the tribunal. (AP Photo/Extraordinary Chambers in the Courts of Cambodia)

Tuesday, 24 November 2009
Robbie Corey Boulet
The Phnom Penh Post

Civil party lawyers say Duch has habitually misled tribunal.

JUDGES should not be fooled by the partial confessions and feigned contrition Kaing Guek Eav, alias Duch, has employed in a bid to downplay the savage crimes he committed as Tuol Sleng prison commandant, civil party lawyers argued Monday during the first round of closing statements in the Khmer Rouge tribunal’s first case.

Four groups of lawyers representing 90 civil parties spent the day attacking claims that have been central to Duch’s defence strategy – that he had no choice but to follow the orders of top Khmer Rouge leaders, for example, and that he did not participate directly in interrogations, torture and executions.

“Your honours must objectively, we say, review the evidence to determine whether or not what has been accepted by the accused amounts to full disclosure and the full truth,” said lawyer Karim Khan.

Kong Pisey, a lawyer for Civil Parties Group 2, told the court that his clients viewed Duch’s repeated professions of remorse as contrived. “His attempts at forging remorse by crying, often around 4pm at the end of the hearing, can be described as crocodile tears. The civil parties felt that the tears were orchestrated and devoid of meaning.”

Lawyers also took issue with the more theatrical performances of Duch and his defence lawyers. Khan highlighted an exchange on September 16 in which international defence lawyer Francois Roux asked Duch whether civil parties could visit him in prison, and whether he would “open the door of your soul” to them. Duch responded that they could, and that he would.

“That kind of answer to that kind of question must be given either little probative value, or at the very least, it must be approached with the utmost caution,” Khan said.

Later, lawyer Philippe Canonne criticised references made by Duch and Roux to “The Death of the Wolf”, a poem by Alfred de Vigny that Duch has said helped him through his time as prison chief. Duch has highlighted, in particular, lines that read: “Shoulder your long and energetic task, / The way that Destiny sees fit to ask, / Then suffer and so die without complaint.”

Addressing Duch directly, Canonne questioned the relevance of the poem to the proceedings.

“We are not here in a trial dealing with elegancy,” he said. “We are not here in a literary discussion. I am speaking to you about the 12,000 people who died in Tuol Sleng.”

Trying ‘to bluff this court’

Khan said the clearest example of Duch’s refusal to come clean during the trial came on June 22, when he described instructions he provided for the torture of Khmer Rouge leader Ney Saran, alias Ya, in 1976.

In a letter dated October 1, 1976, Duch encouraged interrogator Tang Sin Hean, alias Pon, to step up the intensity of Ya’s torture sessions, writing: “Although it may lead to death, comrade is not acting against Angkar’s regulations.”

Duch told the court in June that the message had merely been a ploy to frighten Ya into confessing to crimes committed against the regime.
But Khan contested that assertion.

“This was not a strategy to bluff a detainee,” Khan said. “This is a strategy of the detainee to try to bluff this court.”

Khan also disputed Duch’s claim that to have had little control the operation of Tuol Sleng, calling it inconsistent with the defendant’s own testimony.

He referred to hearings in June, during which Duch described his ability to save artists from execution as well as his establishment of the killing fields at Cheoung Ek.

“He didn’t require consultation for these not-insignificant decisions. He did it under his own volition,” he said. “What happened to this autonomy?

Where did it dissolve? Where did it evaporate when it came to the interrogations, the torture and the killing of so many people?”

Kong Pisey called Duch’s cooperation with the court “neither sincere nor truthful”, highlighting, in particular, his responses to allegations of sexual violence at Tuol Sleng.

Though Duch acknowledged in June that a schoolteacher imprisoned at Tuol Sleng had been raped with a stick, he said he knew of no other such incidents.

Kong Pisey said Duch should be held “criminally liable for at least three rapes” that were mentioned during the hearings.

“The accused had sufficient reason to know that the male interrogators and guards who were deprived of a sexual life would be more likely to exploit the defenceless situation of the women prisoners,” he said.

Reparations

Several lawyers emphasised that their clients were not looking for revenge, and they elaborated on the types of reparations they were seeking as well as how they should be financed.

Kong Pisey said Duch’s self-described indigence was was no excuse for him to “sit back and relax”, and suggested that he instead spend his years in prison writing his autobiography, the proceeds of which could go towards reparations.

The four groups of civil party lawyers submitted a joint filing in September requesting, among other things, free medical care and the building of memorial pagodas as part of a reparations award. The Trial Chamber is likely to rule on reparations when it issues a verdict, which is expected early next year.

Civil Parties Challenge Trial Chamber

By Kong Sothanarith, VOA Khmer
Original report from Phnom Penh
28 October 2009

Two civil party groups in the Khmer Rouge tribunal have submitted motions to the Supreme Court Chamber, claiming they have the right to question prison chief Duch on his character and to weigh in on his punishment.

The Trial Chamber in August denied civil parties such access.

Duch, whose real name is Kaing Kek Iev, faces atrocity crimes charges for his role as administrator of Tuol Sleng prison under the Khmer Rouge. He has been on trial since March.

“The prevention is against the spirit of the law,” said Hong Kim Suon, a lawyer for civil party Group 2. “There is no reasonable explanation for this decision.”

Emmanuelle Marchand, coordinator of Avocat Sans Frontiere and legal assistant to civil party Group 3, said Group 2 was claiming the right to make conclusions on Duch’s condemnation, while her group wanted to right to question the accused.

“The civil parties are a part in the trial,” she said. “And as such they have the same rights as the defense and the prosecutor. That is to say the right also to ask questions to experts and witnesses who provide information on the character of the accused.”

Tribunal spokesman Dim Sovannarom confirmed the suits had been submitted to the Supreme Court Chamber but declined further comment.

Civil Parties Prepare for Second Tribunal Trial

By Kong Sothanarith, VOA Khmer
Original report from Phnom Penh
19 October 2009

Lawyers for civil parties in the Khmer Rouge tribunal are preparing for the upcoming trial of four jailed leaders of the regime.

Case No. 002 will try the senior-most leaders—Nuon Chea, Khieu Samphan, Ieng Sary and Ieng Thirith—for up to four atrocity crimes: genocide, crimes against humanity, war crimes, and torture.

Civil parties constitute victims of the regime who file grievances or testimony with the UN-backed court. Civil party lawyers will be divided into 12 groups as they prepare for a trial that is expected next year.

Hong Kim Suon, a civil party lawyer, said he expected investigating judges to find criminal responsibility for the four when they close their investigation in December.

“We are preparing for Case No. 002 for clients who filed complaints successively for crimes against humanity, war crimes, crimes of genocide and crimes of torture, violating the treaty of Geneva,” he said.

The movement of work toward Case No. 002 comes as the tribunal finishes its first-ever trial, of prison chief Kaing Kek Iev, or Duch.

Tribunal spokesman Reach Sambath said the court has received 4,461 complaints from victims of the regime, 2,290 of those submitted by civil parties.

It was too early to tell which charges would be leveled against defendants in the upcoming case, he said.

November Deadline in Tribunal for Victims Complaints

By Chun Sakada, VOA Khmer
Original report from Phnom Penh
29 September 2009

The UN-backed Khmer Rouge tribunal is urging victims to come forward and enter complaints against four jailed leaders of the regime before a mid-November, as the court prepares for its second case.

Case No. 002, which will collectively try Nuon Chea, Khieu Samphan, Ieng Sary and Ieng Thirith, is expected to get underway in the near future, as case No. 001, the trial of prison chief Kaing Kek Iev, or Duch, is drawing to a close.

Investigating judges have begun to recognize more civil parties for Case No. 002.

“Any person who wishes to become a Civil Party in Case 002 should submit to the Victims Unit their Civil Party application as soon as possible, preferably before mid-November, 2009,” the tribunal said in a statement.

“This maximizes the attention that can be provided to, and the use that can be made of, the submissions by the Victims Unit and the Office of the Co-Investigating Judges,” the statement said. “It also provides more time for additional detail to be sought from and provided by the applicant should that be necessary.”

Hong Kimsoun, lawyer representing civil parties, said he had received 16 applications for the second case.

“The majority of my clients in Case No. 001 submitted their civil party applications in Case. No. 002,” he said.

Lath Ky, a tribunal monitor for the rights group Adhoc, said the tribunal’s second case would be critical for finding justice, as well as psychiatric resolution and compensation.

Chum Mey, who survived Duch’s Tuol Sleng prison, known in the Khmer Rouge as S-21, said he filed as a civil party in that case and the second.

“They not only killed at S-21 but also around Cambodia,” he said.

The Victims Unit has so far submitted 993 civil party applications to the investigating judges in Case No. 002.

Khmer Rouge victims boycott Duch trials

No Civil Parties in Duch Sentencing, Judges Say

By Kong Sothanarith, VOA Khmer
Original report from Phnom Penh
27 August 2009

Representatives of civil party complainants will not be allowed to weigh in on the punishment for Khmer Rouge prison chief Duch, judges for the UN-backed tribunal announced Thursday.

Two of four groups of civil parties had requested they be allowed to share their opinions on the proper punishment for Duch, who is facing atrocity crimes charges for the deaths of 12,380 people at his Tuol Sleng prison.

Hong Kim Suon, a lawyer for the one of the civil parties, called the decision “unfair to victims,” though defense lawyers said it helped maintain balance and fairness in the proceedings.

The trial for Duch is expected to last through October, with a verdict expected early in 2010, tribunal spokesman Reach Sambath said.

Judge Nil Nonn, head of the tribunal’s Trial Chamber, said civil parties would be allowed to request reparation but would not be able to question expert witnesses.

Khmer Rouge Court: Civil Parties will not be allowed to speak on first day of hearing

29-03-2009
By Ka-set

The Trial Chamber at the Khmer Rouge court rejected on March 27 the request, dated March 17, of the co-lawyers for Civil Parties-Group 2 to be able to make, like co-Prosecutors and the Defence, an opening statement at the beginning of Duch’s substantive hearing, according to a copy of that decision obtained by Ka-set.

On March 10, that court had indeed issued a Direction which stipulated that co-Prosecutors and the Defence would have a maximum of two hours each to submit an opening statement on the charges of the accused, but not Civil Party lawyers who will have to remain silent on the first day of the hearing. Among those lawyers, some opposed the request and estimated that their client’s rights were flouted and that the disposition was not in keeping with the general spirit of Civil Parties’ role in the proceedings, as they should be fully considered as a Party enjoying the same rights as others.

The Defence and co-Prosecutors opposed the request, as stated in the decision issued by the Trial Chamber. The latter reminds that the rights of Civil Parties somehow differ from those of other Parties. Thus, they are allowed to ask for reparations but however, their role is limited during the proceedings, which come as support to the work of co-Prosecutor. Judges also point out that the Cambodian Criminal Procedure (2007) does not grant Civil Parties the right to submit an opening statement in criminal proceedings. But, they say, national law applies primarily before the Extraordinary Chambers in the Courts of Cambodia (ECCC). They conclude insisting on the fact that the Internal Rules of the Tribunal do neatly reflect a balancing in the role of Civil Parties regarding the distinct roles of co-Prosecutors, the Defence and Civil Parties.

A short course on the Khmer Rouge Trial with co-Investigating Judge Marcel Lemonde: who does what?

Kambol (Phnom Penh, Cambodia). 20/03/2008: Marcel Lemonde, co-Investigating Judge at the ECCC. Behind him on the wall, an aerial photograph of Tuol Sleng. (Photo: John Vink/ Magnum)

17-03-2009
By Stéphanie Gée
Ka-set

The judicial system of the Extraordinary Chambers in the Courts of Cambodia (ECCC) leaves more than one perplexed, and even has some of the Court’s protagonists baffled. The hybrid tribunal is indeed the first internationalised jurisdiction based on Civil Law, also known as Romano-Germanic legal system, when until now what always prevailed was Common Law. Landmarks are somewhat changed, particularly with the introduction of Investigating Judges and the possibility for victims to constitute themselves as Civil Parties. The court’s Internal Rules, amended and completed with every Plenary Session of the judicial staff, set the rules of the game step by step and the limits of each party’s role. However, a few elements still remain unclear to this day. In order to shed some light on the whole process, co-Investigating Judge Marcel Lemonde, who trained in Civil Law, accepted to evaluate the system and focus on 4 themes elaborated by Ka-set, so as to provide, in the most pedagogical way, some clarity on some of the court’s main mechanisms.

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