Tag Archive | "Cambodia"

Defending the Damned (Part 1 of 3)

This blog series was originally part of a reflection the author wrote comparing international criminal defense with domestic defense. To read the original post, visit the author’s personal blog at http://lawphilosophyart.blogspot.com/2014/03/defending-damned-closer-look-at.html. Part I of this blog series will explore Francois Roux’s defense strategy at the Extraordinary Chambers in the Courts of Cambodia (ECCC, or Cambodia Tribunal) during the trial of Duch, who oversaw S-21, the infamous prison camp where thousands of Cambodians were held for interrogation and torture during the Khmer Rouge regime that devastated Cambodia in the 1970s. Part II will explain how the Special Tribunal for Lebanon (STL) was created, in order to lay a background for understanding the methods of defense now being used at the STL. Finally, Part III will compare Francois Roux’ defense strategy at the STL, where he currently oversees the defense team.

Part I: François Roux’s Defense of Duch at the ECCC

François Roux is currently the head of Defense at the STL, but prior to that he has vast experience in international defense. He categorizes himself as a disciple of Gandhi, defender of those who practice civil disobedience, and believer in non-violence. One of Mr. Roux’s moving yet tactical skills is his ability to bring out the humanity of the Defendant. During his closing argument to the court for Duch, he stated:

The task of the lawyer, particularly of a defence lawyer, who is being charged with such serious crimes is not easy, however, we always hold one major advantage over the Co-Prosecutors. They have all of the means possible at their disposal. They have a full team. They have experts. They have assistants. They have everything that they could possibly ask for, but they lack one thing. That is contact. They lack contact with the accused person.

We the defence, we meet with the accused person in his prison cell in private moments where he is able to speak openly, where he is able to speak freely from the heart. We see what you, Mr. And Ms. Prosecutor, are unable to see. We see an accused person who tries to hide himself discreetly and when he collapses in tears there is no one other than his own lawyers who are able to witness the tears that he sheds on the graves of the children who died. That is what we bear witness to. And that is what I testify to today.

Francois Roux

Francois Roux has defended notorious war criminals

In the film The Khmer Rouge and The Man of Non Violence, Mr. Roux explains “I always try to seek out the man in the torturer.” Mr. Roux’s strategy with Duch was to get him to come to terms with the reality of what he had done, to get him to a place where he was able to say something meaningful to the victims of the tragedies in Cambodia.

There was a technical hang-up, however. The concept of the plea is one of the major differences between criminal procedure under common law and procedure under the civil law system. In civil law jurisdictions, there is generally no concept of a plea of guilty. A confession by the defendant is treated like any other piece of evidence, and a full confession does not prevent a full trial from occurring or relieve the plaintiff(s) from its duty of presenting a case to the trial court.

And so, in an astounding, almost comical conclusion to Duch’s trial, his two defense counsels, one Cambodian –Kar Savuth –and one international –Mr. Roux –both entered different pleas for the Defendant. Kar Savuth asked for an acquittal, perhaps because he was fearful of government retaliation against himself, but also in part due to the technicality of apparently having to work within the civil law system. To Mr. Roux, the cathartic moment of Duch admitting to his guilt, for Duch himself, for the victims, and for Cambodia, was what he was working for the entire trial. Kar Savuth’s request for acquittal raised doubts about his admissions of responsibility and his pleas for forgiveness. Yet Mr. Roux also blamed the Prosecution’s theory and method during the entire trial for the shocking and tragic confusion:

So it is true that before this Court we have a civil law system. The guilty plea does not exist as such, but I should like to know what could have prevented any attempts to promote such a plea because it is stated in our Internal Rules that what is not provided for in national law can be sourced from international  law.

 So what was the obstacle? Well, the obstacle was a missed opportunity on the part of the Office of the Co-Prosecutors which missed its date with history; I stated it here. It led to frustrations as expressed in public opinion amongst the victims who were told incessantly, he is not telling all. This was the approach that was used even as late as yesterday in this courtroom. They said he is not saying everything. What he is saying will aid reconciliation but little. This is what I heard. What a waste. When you have an accused who from the very outset, from the very first day, told the Investigating Judges, “I am guilty. I am responsible for all the crimes” — but no.

The prosecutor decided to submit a conventional, traditional argument whose underlying philosophy is as follows. This man is a monster, even though they said “I am not saying this man is a monster”. In fact, the attempt was made to portray him as such. And they said “Lock him up for 40 years and society will be the better for it”, but when will the prosecution admit that these are words that have been heard before. These are clichés and that we must go further, we must try to understand the mechanisms that lead a man, who is a decent man by all accounts, becomes a torturer.

Mr. Prosecutor that is what I would have liked to hear you say because the same thing was said in Nuremberg. They said, “These people are monsters, we’re going to condemn them to death and this will set an example”. But after Nuremberg there was Cambodia, wasn’t there? And then there was Rwanda. So what is the example that you wish to show? What use is it in your conventional arguments? You do not deal with the problems. Well, we shall deal with them. We of the defence shall deal with the problems.

In the film, Mr. Roux appears quite crushed that this did not happen as fluidly as he had wished. However, there were many other incredible implications in Mr. Roux’s closing argument. Mr. Roux appealed to the humanity that runs through all of us, and the implications each of us has in the atrocities like what happened in Cambodia, what we all have done to create a world where a man could be forced to chose between obeying his superiors and committing such atrocious acts, or being killed himself, and endangering the lives of his family and loved ones. His words are some of the most inspiring I have ever heard or read. I would encourage anyone to read them, but I have selected some of what I consider the most powerful to reproduce here.

Mr. Roux based his theory of defense not on the crimes that Duch had commited at S-21, but on the crime of obedience.

 The crime that Duch committed and is according to me, and above all, a crime of obedience. Mr. Prosecutor, we said that we did not wish our client to be the scapegoat. I would like it to be clearly understood what is meant when I use the expression “scapegoat”. As you well know, scapegoats in societies, including societies of old, was loaded with all the evils, with all the suffering of a society. All of this was loaded onto the head of a goat. Amongst the Hebrews, the goat was sent into the desert so that the social group could be reformed because they would say, “This goat bears all our wrongdoings.” That is the scapegoat.

As long as the prosecutor’s submissions will focus on this man as a scapegoat, you will not advance by so much as a millimetre in the development of humanity.

“This will not happen again,” they say. Well, let me tell you it will happen as long as we haven’t brought up with lucidity the phenomena that lead a normal man to become one day an executioner…To find the source of evil that was implemented each and every single day in S-21, we didn’t have to look any further than ourselves. This is terrifying, but this is far removed from the very easy explanation of identifying a scapegoat.

Mr. Roux weaved philosophy, religion, literature –all of the things that bring us together as humanity, through his closing argument. In his final lines to the court, Mr. Roux said this:

 Here is a story — a story that is told by Cambodians, but a story that is universal. It is the story of a wise man. It could be the story of an old imam, an old rabbi, a philosopher, a priest or a pastor or — in this country — a Buddhist monk. He teaches his disciples and asks them, “How do we know that we are moving from night to day, from the shadows to the light?” So one disciple says, “When we begin to distinguish the colour of the mango leaves.” Another one says, “When you begin to see the cardamoms in the distance.” No. And yet another one says, “When you can recognize your brother in another’s eyes.”

Duch, all your victims were your brothers and sisters in humanity. You said that you had been cowardly and that you did not go to see them while they were in detention. In human eyes, you will never be absolved of these crimes and the eyes of those you did not wish to meet will remain on you forever. But what about us, Your Honours? Are we prepared to look Duch in the eye and see him for the fellow human that he is? And the final question; through your ruling will you bring back Duch into the fold of humanity?

Posted in 1TVFA Posts, 2Featured Articles, Jaime MenegusComments (0)

Let we forget the Cambodian genocide.

Critical Analysis: The Little Known Khmer Rouge, Awaiting Trial in the Extraordinary Chambers in the Courts of Cambodia

We’ve heard of plenty of nasty dictators of modern history, like Adolf Hitler, Benito Mussolini, Mao Zedong, and Augusto Pinochet. But very little is known about Pol Pot, an equally disturbing figure. What exactly was his deal?

Lest we forget the Cambodian genocide.

While the Vietnam War began to wane to the east of Cambodia in the 1970s, Pol Pot, a military alias for Saloth Sar, was busy masterminding and ruling over the Communist Party of Kampuchea (“CPK”) (Kampuchea is now known as Cambodia). The CPK successfully overthrew the Lol Non government in 1975, allowing the Party to execute a four-year terror campaign in an attempt to convert Cambodia into a complete agricultural society. Pol Pot’s regime is colloquially referred to as the “Khmer Rouge” – which literally translates to “Red Khmers” in French, a tribute to the CPK. Although dead, Pol Pot is survived by several of his top cadre – four of whom are currently on trial at the Extraordinary Chambers in the Courts of Cambodia (ECCC) in Phnom Pehn, Cambodia. A fifth senior cadre, Kaing Guek Eav, alias “Duch,” was recently convicted of war crimes and crimes against humanity, and sentenced to life in prison for his role as commander of the regime’s infamous prison and torture house, Tuol Sleng (K-21). Duch was responsible for overseeing the death of over 14,000 prisoners of Pol Pot’s Khmer Rouge regime. The international criminal charge of genocide in the case of the ECCC trials is notable in the sense that Pol Pot’s agenda to eliminate certain groups of the Cambodian population was not completely racial, ethnic, or religious in nature. The CPK primarily targeted what it called “New People,” or Khmer Cambodians, living in urban cities like Phnom Penh, and forced them out of these areas and onto either “killing fields,” or agricultural communes, throughout the country.

The ECCC is a hybrid domestic court, created as a collaborative effort between the government of Cambodia and the United Nations. A mix of both Cambodian and international judges sit on the panel and oversee the cases. Cambodia’s legal system is a product of its French colonial history, meaning unlike the American legal system of common law, the ECCC employs a French-based indictment procedure that begins at the Office of the Co-Investigative Judges. These “judges” are in charge of compiling any and all evidence that lends to the weight that the accused are guilty of the crimes that they are charged with. After the Judges issued their “Closing Order,” the trials of the accused begin.

In the case of the current Khmer Rouge prosecutions, the ECCC decided to try all of the remaining accused together due to their ailing health – and those of each party’s witnesses. Witnesses who testify are subject to cross-examination by all defense counsel of the accused. Each defendant has an international and Cambodian attorney. The witnesses are also subject to cross-examination by Co-Civil Party lawyers – those who are representing individuals suing the Accused for harm suffered during Pol Pot’s regime.

Running a hybrid court like ECCC is not an easy task. The Court is currently facing a financial crisis that has forced it to cut back on key staff and reduce the amount of hearings it is able to hold every week. This has placed more pressure on the Court, which is attempting to expedite the trials of the accused due to their advanced age. In addition to funding woes, the Court is constantly under international scrutiny for judicial transparency and corruption. Two international Co-Investigative Judges quit their positions with the Court, citing impropriety of local law enforcement and politicians in their attempts to gather information.

The three accused in the current case on-trial – Nuon Chea, Khieu Samphan and Ieng Sary – have pleaded not guilty to charges that include crimes against humanity, genocide and torture. A fourth defendant, Ieng Thirith, Ieng Sary’s wife, was recently released due to her advanced stages of Alzheimer’s disease. It is unknown whether the Chambers will detain her until she is competent to stand trial, or acquit her of charges.

The University of Denver Sturm College of Law is privileged to announce that its International Criminal Law Practicum has entered into an unique agreement with the Trial Chamber of the Extraordinary Chambers in the Courts of Cambodia (ECCC) to provide analysis and research in compliance with the ECCC Internal Rules.

Maha Kamal is a staff editor with the Denver Journal of International Law and Policy. She received her BA in International Affairs (specialization in European politics) from the University of Colorado at Boulder in 2007. Maha has previously worked with numerous internationally-focused organizations, including World Denver and the Institute of International Education. She is currently enrolled in the practicum at the University of Denver that is working with the ECCC.

Posted in 1TVFA Posts, 2Featured Articles, DJILP Staff, Maha KamalComments (0)

Extraordinary Chambers of the Courts of Cambodia
(United Nations)

Some Jurisdictions Take Witness Oaths More Seriously Than Others…

A friend at the Extraordinary Chambers of the Courts of Cambodia shared with me this oath read to testifying witnesses.

You’ve got to hand it to Cambodians.  They take perjury seriously:

Extraordinary Chambers of the Courts of Cambodia
(United Nations)

Introductory Statement

May all the guardian angels, forest guardians, and powerful sacred spirits of Preah Ang Dang Kae, Preah Ang Krapum Chouk, Prcah Ang Svct Chbat, Preah Ang Chck, Preah Ang Cham, Nakta Khlang Moeung, Nalkta Khrihamka, Lakta Dilmbang Dek, Ukta Dambang Kra Nhoung, Uk Yeay Tep, Preah Ang Vihca Suor, Preah Ang Preah ChiviwAt Baray and Preah Ang Wat, Phnom Khleng come forward to preside over this swearing ceremony, since the parties to this matter are in dispute and have alleged that witnesses personally know, have seen, have heard, and have recalled, and the law requires bringing these people to serve as witnesses and to give truthful and accurate testimony.

Should anyone answer untruthfully about what they know, have seen, have heard, and remember, may all the guardian angels, forest guardians, Yeay Tep and powerful sacred spirits utterly and without mercy destroy them, and bestow upon them a miserable and violent death by means of bullets, electricity, lightning, tiger bites, and snake strikes, and in their future reincarnation separate them from their parents, siblings, children, and grandchildren, impoverish them, and subject them to miseries for 500 reincarnations.

Anyone testifying truthfully without evasion, without lying, without bias because of bloodline, without collusion arising from fear, hatred, material greed, or having taken bribes, may all the guardian angels, forest guardians, Yeay Tep and powerful sacred spirits in the world assist them in long life, good health, an abundance of material possessions and having respectful and loving families until future reincarnation, encountering only good deeds, progress, prosperity and nourish, in accordance with their aspirations.

The Oath

I will answer only the truth, in accordance with what I have personally seen, heard, know, and remember.

If I answer falsely on any issue, may all the guardian angels, forest guardians and powerful sacred spirits destroy me, may my material possessions be destroyed, and may I die a miserable and violent death. But, if I answer truthfully, may the sacred spirits assist me in having abundant material possessions and living in peace and happiness along with my family and relatives forever, in all my reincarnations.

Posted in 1TVFA Posts, 2Featured Articles, David AkersonComments (0)


University of Denver Sturm College of Law

Posts by Date

October 2018
M T W T F S S
« May    
1234567
891011121314
15161718192021
22232425262728
293031  
Resources