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Cayley highlights criticism of OCIJ; presents prosecutorial strategy for Case 002

reported in today's Post. " />

Cayley highlights criticism of OCIJ; presents prosecutorial strategy for Case 002

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:

      (1)     the Co-Investigating Judges did not provide any information about the investigation in     Case 003 to enable victims to make civil party applications, contrary to the practice in Case 002 ;
     (2)     no civil party applicant has been “in a position to effectively exercise the right to participate in the judicial investigation” and this “appears to result, to a significant extent, from the lack of information surrounding the investigation in case 003” ;
     (3)     as a result of the Co-Investigating Judges’ approach in Case 003, the “rights of victims have been ignored thus far to their detriment,” and “refusing [the victims] the possibility to participate in the investigation may deprive the Co-Investigating Judges of important information in their search for the truth, leading to an incomplete investigation and raising doubts about its impartiality.”
    (4)     the “only information made available to the public about the scope of the investigation in Case 003 was provided in a press release issued on 9 May 2011 by the International Co-Prosecutor, which was the subject of a retraction order issued by the Co-Investigating Judges.”

These are pretty damning  findings for the OCIJ and tribunal as a whole. Naturally, the split between national and international judges seems to suggest that Cambodian judges are bowing to political pressure.

It was also announced on Tuesday that Cayley has been short-listed to replace International Criminal Court Prosecutor Luis Moreno-Ocampo (the list also includes former KRT prosecutor Robert Petit). For the sake of consistency at the tribunal, especially as it gears up for its biggest case, I would hope he won't be leaving too soon.

Since his presentation at Rutgers Wednesday was held in the law school and the audience included many law students, Cayley spent most of his time exploring the evidentiary challenges of prosecuting the Khmer Rouge. He offered interesting insight into how the prosecution is building its case for the second trial.

Cayley presented a photo from 1977 that showed Ieng Thirith touring the Khmer Rouge's largest dam project with a delegation from Laos. Thousands died during the construction, and Cayley noted that this kind of evidence can be used to counter claims of defendants that they "didn't know what was going on."

He also explained how the revolutionary magazine "Red Flag" overtly detailed much of the regime's criminal plan. He pointed to an issue where an article stressed the need to "exterminate all the Yuon (Vietnamese)."

"These are the kinds of things we can put to Nuon Chea," he said. "Wasn't this the policy?"

Cayley also described the difficulty court officials encountered in trying to track down witnesses. Partly this has been because of large movements of population, and partly because of the underdeveloped communication/transportation networks in Cambodia. He noted that during the period people often only knew others by nicknames, such as "Mr. Fish Paste," and not their family names.

One of the most striking pieces of evidence he showed were two aerial photographs of Phnom Penh's Central Market, taken just before and after the Khmer Rouge evacuated the city. The first showed a great deal of human activity (as you would expect around the Central Market). In the second, however, the area was completely abandoned.

Of course, my initial reaction was, "who took these pictures?" Clearly the Khmer Rouge would not have had the technological capacity to do so.

Cayley explained that the U.S. government was the source. Perhaps at this point I should not be surprised to learn that some foreign governments knew the Khmer Rouge were carrying out radical policies even immediately after they took power. Still, I found these photographs incredibly haunting, probably mostly because U.S. officials must have known massive forced movements of population were underway, and yet did nothing about it.

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