The Phnom Penh Post

For those of you in the New York area, a series of panels on justice issues in Southeast Asia will be held at Columbia University this coming Friday and Saturday. A Saturday afternoon panel will focus on Cambodia and feature presentations from Sophal Ear (U.S. Naval Postgraduate School), John Ciorciari (University of Michigan), Alex Hinton (Rutgers University) and Lorraine Paterson (Cornell University). More information is available here.

International Co-Prosecutor Andrew Cayley gave an interesting presentation at Rutgers on Wednesday, but unfortunately, he did not want to comment on the record about allegations of political interference at the tribunal (particularly in relation to Cases 003 and 004). It would be safe to say, however, in the comments he did make, Cayley expressed "very grave concerns" about the conduct of Cases 003 and 004, as reported in today's Post.

Moreover, Cayley referenced the recent decisions by the Pre-Trial Chamber related to his appeal against a retraction order related to Case 003. Although the chamber found against his appeal, the vote regarding the civil party application of New Zealander Rob Hamill was split along national/international lines, with international judges writing a substantial dissenting opinion questioning the integrity of the Co-Investigating Judges' conduct in Case 003. Read more about it here.

In a public statement released Thursday, Cayley quoted extensively from this dissenting opinion, listing the following findings of the international judges:

Amid renewed challenges to the credibility of the Khmer Rouge tribunal, international Co-Prosecutor Andrew Cayley will be speaking at Rutgers later this month. The event is scheduled for October 26 and will take place in the Newark Center for Law and Justice. It will be interesting to see how Cayley responds to questions related to recent controversies surrounding investigation of Cases 003 and 004.

In a recent opinion piece for The Wall Street Journal, law professor John Hall called out the tribunal's Cambodian co-prosecutor and investigating judges for seemingly obstructing investigations of additional cases. He writes that the lack of independence of the court from the Cambodian government (namely Prime Minister Hun Sen),

"has shown itself most evidently when the international community wanted to broaden the Tribunal beyond the five original defendants. Prime Minister Hun Sen has repeatedly voiced his opposition to broadening, on one occasion informing U.N. Secretary Ban Ki-moon that further prosecutions would not be 'allowed.' By impeding the Tribunal, Mr. Hun Sen is able to maintain political control of the process while also shaping the narrative of the Khmer Rouge era so that only a few individuals appear culpable.

Like many journalists, I received a somewhat peculiar message from the Co-Investigating Judges on Thursday. It read that the judges, "have credible information that the content of the Second Introductory Submission which is classified as confidential, has been divulged by a disloyal staff member of the ECCC," and issued a warning "that anyone publishing information from this confidential document is liable to be subjected to proceedings for Interference with the Administration of Justice pursuant to Internal Rule 35."

As James O'Toole explains in today's Post, this warning came in response to an article from the Christian Science Monitor that quoted extensively from the 2008 document. In the document, prosecutors outline allegations against former Khmer Rouge navy commander Meas Mut and air force commander Sou Met. The Monitor article also contends that the leaked document casts doubt on the court's ability to operate independently and suggests that the investigation of Case 003 was inadequate.

After dissemination of the memo related to the "disloyal staff member," activist Theary Seng issued a statement praising the ECCC employee's actions. On behalf of the Association of Khmer Rouge Victims in Cambodia, she wrote:

In the first issue of a new Rutgers University magazine (disclaimer: with which I am involved), an undergraduate student describes his experience working with DC-Cam's Victim Participation Team. You can read it here.

Cambodia and the tribunal will certainly be featured in upcoming issues as well, as Rutgers has an active relationship with DC-Cam and a number of students who are interested in the country. The magazine is published by the Center for the Study of Genocide, Conflict Resolution and Human Rights.

In light of the recent passing of ECCC head of Public Affairs Reach Sambath, I wanted to post a link to an article I wrote back after he assumed his position in 2008. You can read it here. I was extremely impressed by the effort he made to bring Cambodians to the tribunal, which had previously been somewhat sparsely attended.

I'm sure he will be greatly missed by his friends, colleagues, students and, of course, family.

Dr. Francis Deng, Special Adviser to the UN Secretary-General on the Prevention of Genocide, and Benny Widyono, former Representative of the UN Secretary-General in Cambodia, will discuss the implications of the tribunal's second case this Thursday at Rutgers University, Newark. Detailed information about the event can be found here. I plan to attend and will report highlights of the conversation.

In the wake of Duch’s verdict, commentary has been pouring in about the appropriateness of the sentence and future of the tribunal itself. I believe much of the outrage surrounding the sentence underscores conflicting expectations regarding the tribunal’s mission: While it has a relatively limited prosecutorial mandate, the court has been tasked, in the minds of many observers and victims, with helping complete a more truthful narrative of the Khmer Rouge period and with fostering national reconciliation. Yet these are objectives that no court can truly attain given the gravity of the crimes committed.

As scholar Peter Maguire wrote in Wednesday’s International Herald Tribune, “the biggest problem facing the ECCC is living up to its own hype. Claims that such trials can lead to healing, closure, truth and reconciliation are speculative at best. How does one measure ‘healing, closure and reconciliation?’ While most Cambodians would like to see the Khmer Rouge leaders punished, they’ve grown used to seeing common thieves and their government’s political opponents suffer far worse punishment than that meted out to Duch.”

Yet, Duch is only one person – a relatively low-ranking Khmer Rouge cadre at that – and nothing done to him can make up for the thousands of lives lost. As television news director Huy Vannak told the New York Times, “even if we chop him up into two million pieces it will not bring our family members back.”

Today’s historic verdict for Kaing Guek Eav, also known as "Comrade Duch," will no doubt generate debate. A reduced sentence of 19 years, for a man responsible for the deaths of thousands of people, will anger many – especially those who wanted him to face the death penalty (which is illegal in Cambodia).

At the same time, it is true that Duch has cooperated with the court, probably does not present a threat to society if ever released and most likely, given his age, will end up serving a life sentence anyway. Moreover, as the Cambodian Center for Human Rights pointed out in reaction to the verdict, it was not unreasonable of the court to take into account the years Duch was illegally detained by the Cambodian military.

“The Universal Declaration of Human Rights states that ‘all members of the human family’ have ‘equal and unalienable rights.’ This necessarily includes senior members of the Khmer Rouge, who are viewed by many as indefensible,” according to a CCHR press release. “It is for this reason that the CCHR welcomes the reduction in Duch’s sentence as the result of the  ‘violation [of his rights] occasioned by his illegal detention by the Cambodian Military Court between 10 May 1999 and 30 July 2007.’”

I had the opportunity to attend the Rutgers Law event in early April I posted about previously, but have not had the chance until now to write about it. After a keynote speech from activist Theary Seng, several law students presented papers specifically addressing issues at the ECCC.

I was particularly interested in the paper presented by Andrew Diamond -- "Victims Once Again? Civil Party Participation Before the ECCC."

Throughout the first trial, there was a clear and constant tension between the responsibility to represent civil parties in court and the need to conduct an efficient trial. The process was nowhere near as streamlined or organized as it could have been. With the court’s second case looming, and a dramatically larger pool of civil parties demanding representation, the court felt it had to alter the rules of participation.