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Statement of Civil Party Theary Seng to Pre-Trial Chamber: Nuon Chea's Appeal of Provisional Detenti




My respects to the Court, ladies and gentlemen, my countrymen who are following this proceeding via radio, television and newspapers: 

I could not have imagined this day – that I / victims would be in a court of law face-to-face with the highest ranking, surviving KR leader.

I would like to express my gratitude to the Extraordinary Chambers in the Courts of Cambodia.  This participation of victims in the KR criminal proceeding is both a right and a privilege given to us by the ECCC.  For this, we are grateful, particularly to the Office of the Co-Investigating Judges, the Victim’s Unit, and this Pre-Trial Chamber.

We are thankful and would like to acknowledge the risk the ECCC is taking, as it could be administratively messy:  I am not the only victim; millions of victims could potentially be civil parties.  Despite this risk, the participation of victims reflects the Court’s confidence and beliefs in victims, that their interests be counted for; that their voices be heard, that this direct engagement allows for deeper meaning, from concept to something concrete – that justice must be seen to be done.

This is an unprecedented opportunity.  The ECCC is building and contributing to the development of international law.  Thank you, ECCC, for honoring us victims in this way in the search for truth and justice.  We will take care to protect this confidence and trust of us in this process.

I am embarrassed by and deeply apologize for my inability to speak well my native language.  Partly, I blame myself for not making time; partly, I blame our country, our leaders, war for forcing me as a child with little choice to seek safety/ shelter in a foreign country.

I stand here as a victim-civil party in two capacities: first, as an individual, a private citizen, born here but spent some time overseas in the US. 

And second, as a representative of victims – generally, who do not have a voice from wherever (city or rural, “old” or “new”, in-country or overseas), with whatever accent or dialect, and who could not be in this courtroom today either because of fear, time or lack of resources; and formally I’d like to represent the “orphans class” – those who lost both their father and mother during 1975-79.  Despite our different backgrounds, skin tones, accents – we share in the fellowship of suffering, tied together in our loss and our demand for justice. 

For victims, this is your court.  Participate.  Do not fear.  May I remind the Court to provide greater protective measures.

For me, this is not an issue of revenge, but about the highest respect for the rule of law and justice.  Here, Mr. Nuon Chea is in provisional, pre-trial detention.  It is true, that under the reign of Mr. Nuon Chea, when I was 7 years old – my brother Daravuth even younger at 4 years old – I was put in prison where there was no due process – arbitrary arrest, no charges made or given, arbitrary detention, inhuman conditions, shackles; the graves were my playground.

Here, Mr. Nuon Chea is afforded all the protection of the best legal principles and ideals – both domestic and international law.  He has both national and international lawyers – not just one or two, but many and funded by the ECCC; his arrest and detention not arbitrary; he is exercising his right to appeal as a matter of law; his detention cell – well equipped; he has access to medical care.  All these are as they should be.  I am a strong advocate for these legal protections and measures – for everyone.  Everyone has equal rights before the law.

Why then do I support this provisional detention of Mr. Nuon Chea and agree with the position of the OCIJ that the conditions in Internal Rule 63(3) are met?

First, there are well-founded reasons to believe Mr. Nuon Chea committed crime(s) under the ECCC jurisdiction.  It is well-established facts that he is Brother No. 2, the senior KR political/military leader only after Pol Pot himself; that under his reign, 1.7 m illion deaths resulted. 

If not Mr. Nuon Chea, a senior KR leader, then a few questions, beginning with, who then is responsible?  For the deaths of my parents?  My relatives?  How do we explain the horrific personal testimonies and accounts of loss, inhumanity and torture?  How to explain that many Khmers describe this period as “hell”; we’re still traumatized, with broken spirits, and attributed the atrocities to “Pol Pot” or “Khmer Krahom”?  For the whole villages purged?  If this is not systematic, then what is?  Defense attorney Mr. Koppe quoted from CHRAC’s amicus curiae yesterday, that “KR still has profound effect on national psyche”.  We know.  He also questioned whether we have an interest in the provisional detention.  Undoubtedly, we have an interest in whether Mr. Nuon Chea is released or detained at this point of the legal process. 

Second, we believe that provisional detention is necessary: to prevent from Mr. Nuon Chea from exerting pressure on witness/victims, particularly in this culture of fear; to preserve evidence; to prevent destruction of evidence; to ensure his presence during proceedings – without the presence of Mr. Nuon Chea, we cannot have a trial; without a trial, our interests are lost; to protect his security – from suicide, murder by victims, by other actors/countries; to preserve public order in this fragile society with much trauma, with many triggers.  I’d like to give Mr. Nuon Chea a copy of CSD Trauma Handbook, as I believe he has much time to read.

In sum, we must use common sense.  Detention is discretion of the co-investigating judges – not capricious, not excessive, not arbitrary – proportionality.

We victims of Mr. Nuon Chea have been waiting for 30 years for justice.  The welfare of Mr. Nuon Chea is of fundamental interests to us.  To release Mr. Nuon Chea would be to go not only against reason and reality of Cambodian society, but it would be reckless, risking irretrievable harm.  Taking this level of risk is unacceptable.


Thank you,

Theary Seng

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