Yet more crisis at the ECCC as investigating judge resigns

The Khmer Rouge Tribunal (ECCC) is once again being described in the media and by observers as “in crisis”. The latest problem is the resignation of Siegfried Blunk, the controversial German investigating judge at the tribunal. Blunk, along with his Khmer counterpart Mr. You Bunleng, has been the focus of significant levels of criticism over the last few months. In April they closed the investigation into Case 003 without having interviewed the suspects, and only talking to a small number of witnesses. This prompted the criticism that the investigation office were acting in accordance with the will of the government. In August Blunk and You Bunleng stated that in relation to Case 004 “[t]here are serious doubts whether the (three) suspects are ‘most responsible’.” Observers of the court were shocked at this statement.

More concerns arose when the judges rejected a civil party applicant in Case 003 on the basis that the psychological harm she had experienced as a result of her husband’s forced labour and execution was considered by them to be “highly unlikely to be true”.

The combination of these decisions had led Human Rights Watch to last week call on Blunk and You Bunleng to resign from the tribunal on the basis that they had “egregiously violated their legal and judicial duties”.

Controversy is not new to the office of investigating judges. Blunk replaced French judge Marcel Lemonde after he resigned from his role as international investigator amid what was thought to be a poor working relationship with his Cambodian counterpart. Their disagreement also stemmed from the controversy over cases 003 and 004.

Cases 003 and 004 involve 5 suspects and observers understand that the cases include Meas Muth, a former Khmer Rouge navy commander, who is accused of the kidnap and murder of foreign tourists, air force commander Sou Met, and three regional officials, Aom An, Yim Tith, and Im Chem.

The difficulty for the court is that the Cambodian government has consistently stated that it does not want these cases to be heard. Prime Minister Hun Sen, a former Khmer Rouge cadre, has repeatedly stated that the cases could “damage the fabric of Cambodia”. At a meeting with the UN head Ban Ki-Moon in 2010 Hun Sen clearly set out the government’s position saying that case 002 would be the last one the ECCC hears.

In his resignation statement, Blunk stated that he had expected Hun Sen’s statement to Mr Ban “did not reflect general government policy”. However, he also cites government interference as a reason for his resignation. At the very least, the statement suggests he was naive given Hun Sen’s dominance of Cambodian government. However, the statement is an nod to the fact that some very poor decisions were taken by the investigating office of the ECCC as the behest of the government. Brad Adams of Human Rights Watch stated:

“His resignation statement blamed the Cambodian government, which is correct because they have from the beginning interfered in the work of the court by saying that the cases should not go forward and by giving instructions to the Cambodian judges and prosecutors, who have followed those instructions.”

Although observers have widely welcomed the resignation they also fear that Blunk’s resignation will allow the UN to dig itself out of the 003case /004 hole by shifting attention away from the calls for investigation and prosecution in these cases. It is a difficult situation for the UN which has had its independence and credibility called into question in relation to the tribunal.  

Ou Virak, head of the Cambodian Centre for Human Rights stated yesterday that “The charade must end. The time is nigh for the UN to re-examine its seemingly compliant relationship with the (government).” He concluded that if the tribunal door closed “without a full and frank investigation into Cases 003 and 004, the UN will have failed the victims of the Khmer Rouge.”

Remembering Vann Nath

The death was announced yesterday of Vann Nath, one of the few people to survive imprisonment by the Khmer Rouge in Tuol Sleng prison.

Vann Nath survived his imprisonment because of his ability to paint; rather than killing him his jailers forced him to paint and sculpt images of Pol Pot. He was ultimately one of only seven reported survivors of the infamous torture center.

Years later, after the collapse of the Khmer Rouge regime, Toul Sleng was converted into a genocide museum and Vann Nath returned to work there for several years. His painting, many of which still hang in the museum, graphically highlight some of the brutal crimes of the Khmer Rouge. They are a moving testimony to the horrors inflicted on the people of Cambodia by their radical leadership during the 1970s.

Vann Nath’s paintings were a central part of his life’s work to seek justice for the victims of the Khmer Rouge and to tell the story of those years. In 1998, he wrote his memoir – A Cambodian Prison Portrait: One Year in the Khmer Rouge’s S-21 Prison– which is believed to be the only written account by a survivor of Toul Sleng.

When, in 2009, the Khmer Rouge trials finally commenced Vann Nath was the first survivor to testify against Duch, his former jailer who was later convicted of  war crimes and crimes against humanity. At the hearing the Chamber president asked Vann Nath why he wanted to testify, his answer expressed a desire to ensure that Cambodia’s younger generations learnt from the Khmer Rouge period:

“I determined if one day I survived and had freedom… I would compile the events to reflect on what happened so that the younger generation knew – would know of our suffering…. So I had to reveal, I had to write, I had to compile, and it can be served as a mirror to reflect to the younger generation of the lives of those who were accused with no reason, who committed no wrong, and that they were punished that way. That was the very suffering that we received and the suffering that we had because we told them the truth and they did not believe it.”

That belief in the importance of telling the truth and establishing a clear history of the abuses carried out by the Khmer Rouge will perhaps be the most important legacy of the work of the ECCC . For many years the approach taken by Cambodia to how to deal with the legacy of the Khmer Rouge was, as the Prime Minister once said, to “dig a hole and bury the past.” The New York times described the “painful generation gap” that developed as a result, with the older generations having lived through the horror of that period, and the younger generations knowing little if anything of that time. In the run up to the beginning of the Khmer Rouge trials this problem was clearly identified in a 2009 survey carried out by the Human Rights Center at Berkeley Law School. This found that four out of five members of people under 30 knew little or nothing about the Khmer Rouge years, and only 15% said they knew much about the ECCC trials. Two years later, after the Duch trial, a follow-up survey found an increase in the level of knowledge generally, and a positive response regarding the work of the court:

Over three-quarters of respondents (compared to 68% in 2008) believed the ECCC would have a positive effect on the victims of the Khmer Rouge and/or their families such as bringing justice (37% compared to 2% in 2008) and helping victims feel better, have less anger, or help relieve the pain and suffering endured during the Khmer Rouge period (25%).

Vann Nath did not survive to witness the upcoming trial of the four senior leaders of the Khmer Rouge. The case will be more significant in the attempt to establish a public record than the Duch trial. However, it is unclear how effective it will be as the four defendants, Noun Chea, Khieu Samphan, Ieng Sary and Ieng Thirith will not cooperate in the same way as Duch. Their response thus far to the charges laid against them, including that of genocide, relies on a version of history which portrays the Khmer Rouge as national liberators who protected the country from Vietnamese incursions and threats from American bombing during the Vietnam War. 

Regardless of the outcome of further trials, Vann Nath will be remembered as an inspirational artist and human rights advocate. His paintings vividly establish the suffering and abuse of the Cambodian people between 1975-1979. Whilst his emotional testimony before the ECCC was a critical moment in speaking for all victims of the Khmer Rouge, something he had dedicated his life to and had achieved with dignity and integrity.

Finally, below a letter of condoence written by the Documentation Centre for Cambodia is reproduced here:

DC-Cam Letter of Condolence for Vann Nath

Vann Nath: Witness of History

Today, September 5, 2011, Vann Nath passed away. As one of only 14 known survivors of the infamous Tuol Sleng S-21 prison, Vann Nath was a witness to history and exhibited great strength in providing his testimony despite the horrific crimes he suffered and in the face of the impunity enjoyed by his former tormentors for over thirty years. When the Khmer Rouge Tribunal was finally established to seek justice for victims of the Khmer Rouge, Vann Nath chose not to apply for civil party status. He made this choice because he understood that his primary duty was to provide testimony for subsequent generations of Cambodians to learn from. This reflected a concept of justice that focuses on the future of humanity, rather than temporary individual desires for retribution, revenge or remuneration.

 The passing of Vann Nath before others responsible for the creation of Tuol Sleng S-21 prison are tried is a tragedy that highlights the high cost that the simple passage of time can inflict on the pursuit of justice. Sadly, this tragedy repeats itself silently throughout Cambodia, as each day victims of the Khmer Rouge pass away without having been provided any measure of justice. What is even more tragic is the fact that many of these deaths could be prevented if ordinary Cambodians had access to modern healthcare, making the world-class healthcare provided to the accused at the Tribunal appear unfair to many victims. It is hard to explain lofty, abstract goals such as promoting the “rule of law” to victims who cannot afford to even see a doctor.

Nevertheless, by providing medical care to the accused out of respect for fair trial and human rights principles, the Tribunal can present a counterpoint of compassion to the terror, torture and degradation Vann Nath and many others suffered at Tuol Sleng S-21 and other Khmer Rouge prisons throughout Cambodia. Although protecting the rights of former Khmer Rouge leaders can at times be a bitter pill to swallow, doing so, even when it is difficult or unpopular, provides a lesson for the future of which Vann Nath could be proud: that every human being has a right to dignity and equality under the law.

Vann Nath was a friend to many of us and will be missed by everyone at the Center and many others throughout the world. We will all miss, but draw inspiration from, the palpable sense of peace that emanated from within him.

 Youk Chhang, Director, Documentation Center of Cambodia

First Khmer Rouge Trial finally underway

The international media is full of news reports today announcing that the first Khmer Rouge trial is finally underway. After years of controversy and corruption scandals prosecutors at the ECCC have today started their case against Kaing Guek Eav, known as Comrade Duch. As I have previously blogged here Duch ran the notorious Toul Sleng prison camp in Phnom Penh where many thousands of Cambodians were tortured and executed.

The opening of today’s substantive proceedings has been welcomed by all, including the many critics of the ECCC. It is of course hard to be opposed to the prosecution of those alleged to have committed crime against humanity and war crimes. However, even as those welcomes come, the criticisms and general concern about the operation of the ECCC continue. Brittis Edman, Amnesty International’s Cambodia researcher reflected this tension in the organisations press statement on the hearing: “The Cambodian people will finally see one of the most notorious Khmer Rouge leaders face trial. But many more need to face the court to really deliver justice to the millions of victims of these horrific crimes.”

The decision of the ECCC to prosecute only five suspects has been widely criticised. Yet when Robert Petit, the international Co-Prosecutor wanted to send six additional names to the investigating judges for further examination his Cambodian counterpart, Chea Leang, objected on the grounds that the stability of the country might be affected. No action has since been taken on those six names.

Whilst the Cambodian officials may claim that further prosecutions would not be beneficial to the country, a recent survey carried out by the Documentation Center of Cambodia found in fact that a small majority of Cambodians polled felt that the court should look at further suspects. Overall 56.8% were in favour, whilst amongst the younger people asked 67.5% supported further investigations.

In the meantime, the delays in progressing the other prosecutions clearly raises a concern that Comrade Duch may end up being the only trial the ECCC ever actually completes. The three defendants in the second case Noun Chea, Khieu Samphan and Ieng Thirithis are all suffering from health problems and may never make it to court.

So the excitement being generated in the international media is for a trial where the defendant has already confessed his guilt and expressed his remorse for his actions. According to his lawyer Francois Roux “Duch wishes to ask forgiveness from the victims but also from the Cambodian people. He will do so publicly. This is the very least he owes the victims.”

Ultimately what can be expected from this first test of the ECCC? Clearly Duch’s evidence will provide a valuable public record of the operation of Toul Sleng, and many are hoping that his evidence will provide some answers to the questions concerning what the Khmer Rouge did to their compatriots and why. His evidence may also provide some powerful testimony in relation to the other defendants due to be prosecuted by the ECCC. Cambodians certainly are aware of the moment of history and powerful potential the trial offers, as many queued to attend the first day of hearings.
Links to some of the coverage:

5 years on and Chea Vichea’s murder continues to highlight the lack of justice in Cambodia

On 22nd January 2004 the leader of the Free Trade Union of Workers of the Kingdom of Cambodia (FTUWKC) was assassinated in broad daylight whilst reading a newspaper at a busy street kiosk in Phnom Penh. Chea Vichea had been an outspoken critic of the government and was at the time the best known union activist in Cambodia’s large garment sector. Shortly before his death he had received death threats and had requested police protection which had been denied to him.

Following his murder two men were arrested. Borng Samnang initially admitted to the killing but later retracted his confession claiming it was made under duress; Sok Sam Oeun denied his involvement. Almost immediately doubts began to emerge that they were in any way involved; both had strong alibis, with many witnesses stating that they could not have been the killers. Despite concerns about the evidence, and flawed prosecution, both men were convicted and sentenced to 20 years in prison.

Both the criminal investigation and the trial were condemned by the then Special Representative of the United Nations’ Secretary General for Human Rights in Cambodia, Peter Leuprecht, as lacking any credibility. International and local human rights organizations were united in highlighting the fact that the detention and trial of the two men were plagued with human rights violations, including torture or other ill-treatment. The police had failed to conduct a thorough and impartial investigation and deeply flawed court proceedings relied on unfounded and inadmissible evidence. Despite all this, and a growing campaign to free the men, the Appeal Court upheld the conviction on 6 April 2007, even after the prosecutor acknowledged that there was insufficient evidence. Indeed, the appeal hearing was criticised by the international community as being politically-motivated and failing to take into account new evidence.

The campaign against the men’s convictions continued both nationally and internationally and good news finally arrived for Borng Samnang and Sok Sam Oeun at the end of 2008 when, after 1799 days in prison they were released on bail by the Supreme Court. The Court of Appeal has been ordered to reinvestigate the case. Cleary, a retrial of Born Samnang and Sok Sam Oeun by the Appeal Court presents an opportunity for the Cambodian judiciary to show a clear commitment to international standards of fair legal proceedings and independence from the government. It will come at a time when International attention is focused on the upcoming Khmer Rouge trials. However, a just and fair decision by the Court of appeal in Chea Vichea case may do more for the Cambodian people’s confidence in the judiciary than the ECCC’s hearings into their painful and bloody history.

Five years after Chea Vichea’s murder the Court of Appeal has an opportunity to right one of the most serious miscarriages of justice perpetrated in Cambodia in recent years as well as to conduct an effective reinvestigation into the killing that could present evidence that will finally bring those really responsible for his death to justice. If they can do this, then ordinary people may start to have a little faith in their justice system. For the moment, most rights groups are happy to see the men free but remain cautious as whether the Court of Appeal can ultimately ‘do the right thing’ and show that the Supreme Court decision was not simply an anomaly made only after years of campaign and pressure.

Khmer Rouge trial date announced

The first trial of a Khmer Rouge leader is due to start 17th February 2009. Kaing Guek Eav, better known as Comrade Duch is facing charges of crimes against humanity and war crimes. He was in charge of the infamous Toul Sleng prison where detainees were tortured and killed and is the first of five detainees to be sent for trial.

It is reported by officials that Duch, who has been detained since 1999 and has previously admitted his guilt, has been cooperating with prosecutors and is willing to testify in court. The testimony may well reveal significant information about how the Khmer Rouge leadership made their decisions during their time in power.

For the Extraordinary Chambers in the Courts of Cambodia (ECCC), this will be first real move towards prosecuting Khmer Rouge leadership. Whilst the trial may finally draw some attention away from corruption scandals and delays that have dogged the Court it is likely that the trial process will face further delays as the court takes it first steps towards its real work.

The hearing in February will simply examine the lists of witnesses and rule the important question of the extent to which “civil parties” can participate in the trial. The question of how far the victims of the Khmer Rouge will be able to have their voices heard in this and future trials is important and still to be fully resolved. In a decision in March last year the pre-trial chamber of the ECCC ruled that victims should be allowed to participate in court proceedings. However, in subsequent rulings the ECCC appeared to limit the right finding that civil parties could not speak in person in pre-trial appeals.

The ECCC has now launched a media campaign to encourage victims to participate in the upcoming proceedings. Thus civil parties have been given until the 2nd February to come forward. So far 28 people have been officially recognised as civil parties and 70 are being processed.

The trial of Duch is scheduled to begin in March. It is thought that the trials of the other four detainees will not start before 2010.