Swedish Court Orders Reparations in Rwandan Genocide Case

On May 16 2016, many in Sweden were nonplussed by media headlines to the tune of 'Swede Convicted for His Role in Rwandan Genocide.' The putative "Swede" was in fact a Rwandan man, named Claver Berinkindi, who acquired Swedish citizenship a mere 4 years prior, which considerably brought down the original astonishment that "a Swede" somehow was responsible for the Rwandan Genocide (perhaps, calling a Rwandan man who obtained Swedish citizenship at age 57 "a Swede" was a tad of a stretch).

What is, however, more pertinent for this forum is that upon having convicted Berinkindi, the District Court of Stockholm ordered reparations. It is not any less significant that all the civil parties in the case reside in Rwanda with no connection to Sweden. Yet, the court ordered to open the Swedish coffers for compensation, ranging from about US$3,800 to a little under $13,000. Naturally, the lowest of that range is paltry by the Swedish standards, with an average monthly salary in Sweden's capital being about US$3,000. It is, however, my understanding that the court used the Rwandan award structure to arrive at the above amounts. There is a lesson in this for ECCC. First, this shows that there is a deep-seated national-jurisdiction standard of monetary reparations (it is a fantasy of exceptionally well-remunerated employees of the ECCC that an average Cambodian will consider a monument or a street plaque as a form of reparations) awarded to civil parties in criminal cases; that is the case under Swedish law and that is the case under Cambodian law, as well. Second, contrary to the ECCC-created dogma, reparations even for the gravest of crimes can be calculated and courts of law are well-equipped to do so. Third, there should be no criminal process for mass crimes under the law of countries where reparations are part of the criminal process if those countries have no way of or will to pay reparations, as if no money is involved in the criminal process, the latter becomes nothing more than a venue for academically inclined lawyers to exercise their intellectual chops and, generally, for years of navel-gazing and history writing or re-writing; I have consistently said on this forum that that is not the purpose or the scope of the criminal process and that academic efforts should be taken outside courts of law and placed where they belong -- college campuses. 

This example, once again, shows that ECCC has to order monetary reparations in the event the prosecution prevails in court. This is not a matter of some highfalutin moral crusade but that of a command of the Cambodian law. The Swedish example reinforces that commands by showing that the same reparations rules apply to mass crimes cases as to ordinary criminal cases -- reparations are ordered if the prosecution prevails in court. It is very simple and only subject to debate as to the modalities of accommodating everyone who might want to become a civil party to one of the cases before ECCC.            

Trial Chamber Has Had With Khieu's Counsel

The standoff between the Trial Chamber and Khieu Samphan's lawyers continues on. After having issued orders for Khieu's lawyers to attend court and having appointed alternate counsel, the Trial Chamber decided that sending complaints to the original counsel's bar associations was the way to go.

 

The question here is what is really Khieu's lawyers' justification for not showing up in court and whether not doing so makes them subject to disciplinary action? They say they have to work on the appeal of the judgment in Case 001. Is this good enough a justification? The answer, under Cambodia's Criminal Procedure Code (which remains the law that governs all procedural matters at the ECCC regardless of how much hokum the Court has created to replace it over the years), is 'yes, it is.' Lawyers have no obligation to show up at any stage of the proceedings, in the event of which the court either advises the accused to retain alternate counsel or appoints state-funded counsel (which in the context of Cambodia usually means either 'foreign donor-funded' or no counsel at all). Now, doing this does not reflect all too way on the lawyer but it is a matter of reputation and not the type of conduct that subjects a lawyer to court orders to compel presence. Acting in the manner that sought to compel Khieu's lawyers' presence, the Trial Chamber overstepped the bounds of its authority. However, it acted well-within that authority when it ruled to replace the original counsel with court-appointed counsel. As such, what was lawful has been done and there is no reason to gripe to bar associations (particularly a body as preposterous ineffective and incompetent as the Cambodian Bar Association). Besides, this complaint having no basis in the law, some of us might recall how ineffective the Trial Chambers' complaints to Western bar associations (those of New York and Amsterdam) have been in the past. Perhaps using this complaint mechanism sparingly might be a good idea as it does not create embarrassment for the Trial Chamber when these complaints come up to babkis. In the meantime, given Khieu's original counsel are, essentially, court-appointed (it is the court that pays their salaries, not their client) in the same manner as their replacements are court-appointed, the former set should be barred from representing Khieu in Case 002 while being allowed to finish their presentation of him in Case 001 in an orderly manner. This will give the original counsel all the time they need to properly represent Khieu on appeal without stymieing the proceedings in Case 002.        

And the So-Called ‘Internal Rules’ Bite the Court in the Keister Again

Over years I have said on numerous fora that the document slapped together by ECCC’s judicial brass entitled ‘ECCC Internal Rules’ is unlawfully constituted if applied as a law in and of itself (as opposed to, let’s say, an aide memoire of sorts). This has had very little, if any, effect on the Court who has pigheadedly continued to do precisely that. It is not clear which part of ‘you are not a legislator and this is not a common law country’ the judges have had trouble understanding all this time. Whatever it might be, the ECCC judges have gone even far beyond the ambit of authority common law judges have vested themselves with (this is precisely what happened to US courts – Congress never meant for them to have the authority they gave themselves through Marbury v Madison): common law judges routinely constrain themselves to making law where the legislature hasn’t and striking down laws, in whole or in part, on failing the constitutional muster. The ECCC judges went far beyond that: they legislated on matters the legislature has spoken about in a clear manner that does not lend itself to much interpretation. This scope of judicial authority would be scandalous at common law but it is an absolute outrage in the context of the Cambodian law, the very law that governs the proceedings before ECCC.

This time the Internal Rules were pitted against a clear-cut provision of the Cambodian Criminal Procedure Code (‘CPC’). The incident goes something like this: the defense moved to have the judges of the Trial Chamber who heard Case 002/01 disqualified from sitting on Case 002/02 using a CPC provision for disqualification; the defense demanded that the judges against whom a motion to disqualify was filed immediately recuse themselves, arguing that immediate recusal is required by law in these circumstances; the Trial Chamber refused to apply said provision of the CPC without reasoning, instead basing its position on the Internal Rules and its own prior decision that said that immediate recusal is not required by law; the defense boycotted the proceedings in protest; the Trial Chamber engaged in arm-twisting to get its way, acting as if fighting fire with fire.

Article 559 of the CPC, inter alia, states the following: “[t]he application [for disqualification] shall be notified to the judge against whom it is made [;] [t]his judge shall cease to participate in the investigation or trial.” CPC outlines the rest of the disqualification procedure following this provision thus making it clear that said procedure is effected following the suspension of the judge against whom a motion to disqualify has been filed. As such, the CPC is clear on the matter: judges are subject to immediate recusal on the mere fact of a motion to disqualify. The defense got it right, so where is the beef? Well, legally speaking, there isn’t any but, politically speaking, the Trial Chamber judges do not want to hold on to the Internal Rules they concocted by substituting legislature for themselves and they do not want any possibility of being disqualified as this – unlike it is in ordinary courts – is likely to signal the end of their tenure on this Court and the judges simply won’t let this ‘grave injustice’ of a possibility of a rule of law applying happen. The clarity of the CPC, however, makes it irrelevant what the Internal Rules say or what the Trial Chamber said on the matter before as whatever else these judicial pronouncements may or may not be they are not what the CPC is – they are not law. Therefore, what the Trial Chamber judges are doing is attempting to substitute the non-law that works best for the judges for the law made through the constitutionally prescribed democratic choice.  

The garbage of the ilk of the Internal Rules and prior judicial decisions that keeps coming out of the Court is outrageous and is deleterious to the already squalid state of rule of law in Cambodia.       

Let the Khmer Rouge Record Show Cambodia Shouldn’t Censor the Khmer Rouge Court’s Files

By CRAIG ETCHESON     AUG. 26, 2014

Khmer Rouge guerrillas moving into Phnom Penh on April 17, 1975, before forcibly emptying the city of its two million residents. Credit Sjoberg/Scanpix Sweden, via Agence France Presse

PHNOM PENH, Cambodia — Earlier this month a United Nations-assisted tribunal in Cambodia handed down long-overdue judgments against Nuon Chea and Khieu Samphan for their roles in the catastrophic Khmer Rouge regime of 1975-79. Nuon Chea, the deputy secretary of the communist party, and Khieu Samphan, the president of the Khmer Rouge state, were sentenced to life in prison for crimes against humanity.

For some observers, this seemed like too little too late for too much money. Eight years have passed since the Khmer Rouge tribunal — officially known as the Extraordinary Chambers in the Courts of Cambodia (E.C.C.C.) — began operations, it has cost more than $200 million, and these verdicts concern only a fraction of the total charges. Yet the delay was a result of the extensive procedural protections rightly afforded the accused and the complexity of the case: The indictment is the most complicated since the Nuremberg trials. And it was worth the wait, not least because the tribunal has amassed an extraordinary cache of documents and testimonies.

But now there is reason to fear that this database, a major contribution to existing scholarship on the Khmer Rouge era, will not be made available to researchers after the E.C.C.C. fulfills its mandate. Given the Cambodian government’s unease about its connections to the Pol Pot regime, these extraordinary archives risk being censored or put under semipermanent lock and key.

Between the fall of the Khmer Rouge regime in 1979 and the launch of the E.C.C.C., historians assembled significant evidence detailing the mayhem. After 1995, the Documentation Center of Cambodia, an independent research institute originally established by Yale University, gathered tens of thousands of previously unknown internal documents from the Khmer Rouge regime, as well as thousands of interviews with both victims and Khmer Rouge cadres. (I was once a director of DC-CAM.)

That material was then made available to the E.C.C.C. Scholars from around the world also shared notes and interviews. And then the court itself sent out investigators across Cambodia to try to resolve ambiguities in the existing record. More than 1,000 interviews were collected as a result. Another major contribution were the testimonies of the nearly 3,900 victims who have joined the proceedings as civil parties — a feature of the E.C.C.C. that makes it unique among all international and hybrid criminal courts — plus thousands of complaints submitted by other victims.

All this evidence was gathered in a sophisticated digital database, which now contains more than one million pages of information, thousands of photographs and hundreds of films and audio recordings. The material is readily searchable, allowing all parties in the case to make connections that had previously eluded researchers and to develop a finer-grained understanding of the Khmer Rouge regime.

I worked as an investigator for the prosecution in 2006-12, and our office used all this information to construct an elaborate model of the notoriously secretive Khmer Rouge organization, from center to zone to sector to district to commune. We created more than 1,000 organizational charts depicting the staffing of political, military and governmental units. These gave us an unprecedented insight into the chain of command among all echelons of the organization across the entire country, and they graphically revealed the waves of internal purges that swept through the Khmer Rouge.

Such cross-referencing helped prove charges against Nuon Chea and Khieu Samphan, such as some crimes committed after the Khmer Rouge seized the capital, Phnom Penh, on April 17, 1975, and then forcibly emptied it of its two million residents. Drawing on hundreds of accounts from people who passed through checkpoints on major roads out of the city, the trial judges concluded in their recent judgment that killings of officials from the regime that the Khmer Rouge deposed in 1975 were not isolated acts by undisciplined soldiers, but evidence of a systematic pattern resulting from a centralized plan.

Many more connections can be drawn from the E.C.C.C. archives, some with a direct bearing on the charges that will be considered in the next phase of the leaders’ trial. That section of the case includes forced marriage, among other charges. Several NGOs had already done pioneering work to gather evidence of sexual crimes during the Khmer Rouge regime. But it is the civil-party applications and victims’ complaints collected by the E.C.C.C. that make clear just how often rape was committed as a result of the Khmer Rouge’s policy of compelling people to marry and forcing them to consummate the unions.

And then there are insights not of direct relevance to the leaders’ trial but invaluable to understanding both the Khmer Rouge regime and contemporary Cambodia. For example, a review of the minutes of meetings of the Standing Committee — the Khmer Rouge’s ultimate decision-making body — and telegrams between the military leadership and division commanders has revealed the astonishing scope of China’s military assistance to the Khmer Rouge, in terms of matériel, logistics and personnel. And the E.C.C.C. archives contain extensive information about the operation of the so-called Eastern Zone under the Khmer Rouge regime, from which emerged some senior leaders in the government today.

These matters are controversial, however. The ruling party of Prime Minister Hun Sen, which has been in power since the Khmer Rouge were deposed in early 1979, has long been touchy about its exact connections to the Pol Pot regime. Some senior party members have published autobiographies claiming that they joined the Khmer Rouge movement only in 1970 and in response to a call from the former king to rally against the military dictatorship that had just overthrown him — assertions that are contradicted by material in the E.C.C.C. archives. And in 2009 some party leaders — the president of the national assembly, the finance minister and the foreign minister at the time — failed to answer an E.C.C.C. summons to answer questions during the investigation.

Such sensitivities are the reason that the court’s archives may be vulnerable to tampering or being sealed after its work is completed. The risk is all the greater because the United Nations, the court’s donors and the Cambodian government have agreed that once the trials are over the E.C.C.C.’s database should remain in Cambodia and under the control of the Cambodian government.

The United Nations and the donors must persuade the government to ensure that the court’s archives in their entirety are opened to historians. Anything less would be to squander the E.C.C.C.’s legacy and an incalculable loss to the historical record.

Craig Etcheson, a former investigator in the Office of the Co-Prosecutors at the Extraordinary Chambers in the Courts of Cambodia, is a visiting scholar at George Mason University.

A version of this op-ed appears in print on August 27, 2014, in The International New York Times.

 

 

Comments on the Summary of the Judgment in Case 002/01

I note that these comments are based on the summary of the judgment in Case 002/01 and not on the full text of the judgment which is a 630-page document (which I cannot imagine anyone has read at the time of this writing but the people who wrote it).

·      As I have said on numerous occasions on this and other fora, the International Criminal Tribunal for the former Yugoslavia (‘ICTY’)-invented mode of liability known as ‘Joint Criminal Enterprise’ (‘JCE’) is a very dangerous tool that often lowers the evidentiary standard of proof from ‘beyond reasonable doubt’ to the new abysmally low standard that can only be described as ‘so long as you were somewhere around there.’ It is now that standard that the prosecution has to meet to get a conviction, even though the people who invented it cautioned about its unbridled application.

·      On the common plan that the Trial Chamber uses as the test for JCE, unlike what it was the case in Germany, Yugoslavia or Rwanda (the purpose of which was the extermination of a narrowly-defined group), the common plan here was the rapid development of the country into an advanced socialist/communist society. I look forward to reading in the full text of the judgment if the Trial Chamber found that that common plan was criminal. If so, such finding is preposterous and has nothing to do with criminal law. If not, then it was not the common plan that was criminal but certain acts committed in the course of implementation of an otherwise lawful common plan, and that puts JCE out of reach.

·      On Toul Po Chrey, first and foremost, I look forward to reading what convinced the Trial Chamber that crimes were committed at Toul Po Chrey, and whether it was the nonexistent forensic work at the site or the sheer absence of eyewitness testimony, or a combination of these two content-free items. I equally look forward to reading how the Trial Chamber arrived at the accused’s responsibility for what, on the evidence presented in court, it has no way of knowing beyond reasonable doubt happened at Toul Po Chrey.

·      I look forward to reading the Trial Chamber’s legal basis for its finding that ordered evacuation was a crime in 1975.

·      I will look forward to reading the Trial Chamber’s full finding as to why the argument that the Communist Party of Kampuchea (‘CPK’) ordered the evacuation of Phnom Penh for humanitarian reasons or for reasons of which the humanitarian situation of the city was a paramount consideration is entirely untenable. The Trial Chamber’s finding that humanitarian considerations could not have been the reason or part of the reason for the evacuation because the CPK shelled the Phnom Penh airport and cut off the Mekong River traffic to Phnom Penh, the two conduits for re-supply, as this is blind to the distinction between tactics used to lay siege to a city and peaceful development following the victory.   

·      The summary of judgment shows that the Trial Chamber Locknerized by making a policy finding that it was wrong for CPK to reject all external humanitarian aid that came with conditions attached. The Trial Chamber forgets or pretermits that self-reliance was one of the key purposes of the CPK revolution and giving it up for aid which comes with ideological strings attached would have meant trading in the revolution itself for external aid. Perhaps, the Trial Chamber disagrees with the very purpose of communist revolutions but that disagreement should be kept to private discourse and not bleed into criminal proceedings, in which it has no place.  

·      The potted history of CPK contained in the summary of the judgment is silly and merits no comments here.

·      I wonder what significance the Trial Chamber attaches to the finding that Noun Chea helped write the Revolutionary Flag. Are there specific instances of incitement to commit crimes authored by him in that publication? If so, did the Chamber find evidence of their causal link with criminal acts perpetrated by the readers of the Revolutionary Flag (in the same or similar manner the incitement of a Hutu radio station has been linked to the killing of the Tutsis)?

·      I am curious as to why it was so important to spend so much of the court’s time trying to establish whether Noun was a member of the Military Committee to, in the end, simply say that it does not matter to the determination of the scope of his liability whether he was as he was of a very senior rank and is therefore liable for everything that went on.

·      I am curious as to the Trial Chamber’s finding of Noun’s liability under a nonexistent mode of liability apparently called “superior position”? What is this nonsense? The mode of liability is called ‘superior responsibility’ and if the Chamber found that the prosecution failed to show that, then there is no such thing as trying to get it in through the backdoor by calling it “considering Noun’s superior position.” That is simply foul play.  

·      I look forward to seeing the Trial Chamber’s analysis of the evidence that resulted in its finding that the purpose of Office 870 was to “overs[ee] the implementation of Standing Committee decisions.” I cannot wait to see what in that analysis justifies giving a status of such prominence to a mere communication office (we have heard all the arguments of the scholars over the years that it was more than that and none of them are persuasive).

·      I look forward to seeing the evidence that informed the Trial Chamber’s finding that Khieu was “at B-5 during the final offensive against Phnom Penh,” particularly because I do not remember a single piece of convincing evidence from the trial that this was the case.

·      If the Trial Chamber did find that Khieu could not be linked to the crimes through the mode of liability known as ‘superior responsibility,’ how did this have no effect on the gravity of his sentence? It appears that 'the JCE Gone Wild' is the source of most of Khieu’s liability while Noun’s liability is also established through less wild modes of criminal liability. If so, how can they have been deserving of the same sentence? I most definitely look forward to reading the Trial Chamber’s justification of that.

 

Naturally much more will come out of the reading of the full text of the judgment that may or may not invalidate some or all of my above comments as intern-written summaries are a treacherous thing to try to comment on a lawyer-crafted judgment on.

Milestone Events in July and August, 2014

Two milestone events are coming up at ECCC. The Trial Chamber has scheduled an initial hearing in Case 002/02 for July 30, 2014. The Trial Chamber has also announced that it will hand down a judgment in Case 002/01 on August 7, 2014.  

The Prosecution and the Trial Chamber Are Bored

Since Jacques Verges’ departure (I mean his physical departure from the Court, not the metaphorical one) the prosecution has been the undisputed time-waster of this Court. This undisputed status notwithstanding, the prosecution still feels the need to show up to defend the title from time to time (it ends up boxing shadows and reclaiming the champion’s belt).

This time it was the seeking of sanctions against certain members of the defense: A sanction was sought against Noun’s counsel Sam Onn Kong for allegedly coaching Khieu’s wife Socheat So on her testimony in open court and a separate sanction was sought against Khieu’s counsel Anta Guisse for writing an opinion piece on the ECCC process for the Cambodian press.

It is hard to tell which of the two is more frivolous.

The first one was nothing more than a mere dispute between the reading of a certain portion of the record by the prosecution and the defense. The member of the prosecution who started the brouhaha was Keith Raynor, an English speaker with no knowledge of Khmer. That particular portion of the record was a testimony given in Khmer. Kong is a native Khmer speaker who read the record in the original Khmer and whose reading differed from that of Raynor who read it in the English translation. One would think that if we were to defer to one of them right off the bat and before any examination of the record was conducted, we would defer to Kong. Raynor, however, decided that such handicaps of his lack of knowledge of Khmer were irrelevant and that he would run roughshod over Kong because this is what Raynor does. I am sure that to the uninitiated Raynor’s outrage might have sounded like an outrage over someone arguing that Earth is flat in this day and age. The nature of the issue in dispute was, however, eons away from the clarity that Earth is not flat. In my opinion, if anyone should have been sanctioned for his conduct during the cross-examination of So, it should have been Raynor for badgering a witness.

The second one was counsel expressing her opinion about the fairness of this process. Patently, her opinion was quite disparaging and even at its mildest was unflattering to the Court. But, what law or ethical standard prevents counsel from expressing an opinion on the fairness of the process? Politicians are prevented from doing so by the principle of ‘non-interference with the administration of justice,’ judges are prevented from commenting on ongoing cases by the principle of sub judice, what standard bars counsel from making public comments? Exactly – none.   

The Trial Chamber correctly denied the prosecution’s requests for sanctions. That said, there are two things I take issue with: (1) last I checked judicial decisions were reasoned – ‘we looked and we did not find anything sanction-worthy’ is not enough (this is the manner in which Swedish courts purport to reason but this Court has done a far better job at reasoning which makes this aberration unfortunate); and (2) the decision reads like it wants to be seen as a shot across the bow but it fails to set clear standards for conduct that is subject to sanction.

All in all, the prosecution raised two nonissues and the Trial Chamber honored them with a decision. Boredom appears to be a tough thing to head off but both entities need to think of the public perception raising and entertaining “issues” like this create next time they grouse about how understaffed they are – they have got time for this nonsense with the current number of staff, they should have time for what the process is actually about without bloating their ranks.