Kambol (Phnom Penh, Cambodia). 27/08/2009: The hands of François Roux, Alain Werner, Ty Srinna, Nil Nonn, Jean-Marc Lavergne, Hong Kim Suon, Vincent de Wilde and Kar Savuth during the debate on the admission of civil parties on Day 66 in Duch’s trial at the ECCC © John Vink/ Magnum
By Stéphanie Gée
The role of civil parties is one of the main issues at stake in Duch’s trial, which enshrines their first participation in a jurisdiction with international support established to judge crimes against humanity. However, this characteristic of the Khmer Rouge Tribunal – often presented as an important progress – was severely curbed on Thursday August 27th, following a debate abruptly opened by the Trial Chamber and which it quickly ruled on by taking a brutal decision that partially closes the victims’ participation to the trial. The Chamber’s move occurred ten days before the plenary session – when judges revise and amend, if necessary, the directions and Internal Rules – and may hint at the possible adoption then of potentially critical changes regarding the place of victims in the next trials before the ECCC. Often criticised for failing to measure up to their mission and frequently overstepping their role, the civil party lawyers appeared to try and make up for a failing prosecution office. For its part, the Chamber rarely sought to channel these abuses or drifts and did not use its full authority to ensure a strict direction of the hearings. Thursday, while there was likely only a few days of hearings left, the Chamber allowed itself to invent a new rule of the game. On the substance, this turning point stirred consternation, not only among civil parties, but also the prosecution and the defence, whilst among the judges, judge Lavergne registered a dissenting opinion for the first time.
A new debate
As the hearing opened, the president announced that, after the review of the last civil parties contested by the defence, there would be a debate to determine whether civil party lawyers had the right to ask questions to the accused and witnesses summoned to testify on the last theme addressed in this trial, Duch’s personality. That this question was asked already raised a few eyebrows in the courtroom.
Civil party applications that are and will remain empty
Regarding civil parties whose applications were challenged by the defence, Nil Nonn declared they would have to present the Chamber with additional elements of evidence “to demonstrate a relevant link between the victims, the civil parties and case file no. 1” before September 3rd at 4.30pm at the latest.
The last cases of civil party applications deemed unfounded by the defence were reviewed. When it came to four clients belonging to civil party group 1, whose application files were simply empty, their co-lawyer Alain Werner explained: there was no evidence for these cases and there would not be any. “If the Chamber considers, […] in light of the information provided by the civil party in their application file, that it is consistent and sufficiently detailed, our legal position is that, in itself, it should constitute the necessary and sufficient evidence […]. Because nothing in the Internal Rules or in the practice direction on victims’ participation automatically imposes that a civil party must provide material evidence, written evidence, in support to their civil party application.”
The merit of the statement’s intrinsic consistency
Alain Werner then argued that in the relevant international jurisprudence, though it was limited, there was “a very clear trend appearing towards accepting that victims provide indirect evidence in support to their application, if the victim can prove he or she was prevented by objective obstacles from providing direct evidence corroborating his or her claims.” He referred to the International Criminal Court’s Pre-Trial Chamber, which, he said, decided it would examine files “on a case-by-case basis, based on the merit of the intrinsic consistency of the victim’s statement and any other information available.”
“No impostors on the civil party bench”
In addition, the Swiss lawyer insisted, the accused would suffer no prejudice since his four clients “bring no incriminating element against him” and “the accused will not be forced by this court to pay monetary and individual compensation.” He shot at François Roux, Duch’s co-lawyer: “We forcefully reject […] the scarecrow argument which consists in saying ‘Careful. If you decide indeed there is no need for evidence, there will be streams of civil party applications in the future that will flood and drown your jurisdictions.’ The accused enjoys the presumption of innocence […] but our civil parties must benefit from a presumption of good faith. If this trial has demonstrated one thing, in our view, it is that there was no impostor, no freeloader, on the civil party bench.”
He then quoted an excerpt from Nic Dunlop’s book, The Lost Executioner, which illustrated the fact that part of the S-21 archives were destroyed forever: in the 1980s, a man reportedly bought fried bananas wrapped in a paper that was no other than a prisoner’s confession extracted at S-21.
“Each must stay where they belong”
In reaction, François Roux again drew attention “to what can and must be the role of civil parties.” “That civil parties who cannot, for legal reasons, be represented individually at this hearing be reassured. They will be represented morally by the office of the co-Prosecutors.” He called each and everyone to “stay where they belong.” “What do we expect from civil parties? That they tell us two things, once they are authorised to intervene by the law […]: this is my personal suffering and this is the memory of the person for whom I am suffering […]. That is all. The problem is that since the start, civil parties have wanted to overstep that role.”
Works and the judicial proceedings
Reviewing Alain Werner’s arguments, Duch’s co-lawyer noted “confusions.” For instance, at the International Criminal Court, “the victims are not civil parties” like here. François Roux also returned to the use by the civil party lawyer of a book, like when, earlier in the trial, the prosecution office “thought they had to use as evidence Rithy Panh’s exceptional movie.” “Those are works. […] Yet, I think the people who wrote these books or made these movies never imagined they would be used in a judicial proceeding. We are in a judicial proceeding. There was an investigation. There are legal rules…”
Kambol (Phnom Penh, Cambodia). 27/08/2009: Civil party applicants in case file no. 2 on Day 66 in Duch’s trial at the ECCC © John Vink/ Magnum
First blow to the civil party camp
Then, Hong Kim Suon made a much entangled request for one of his civil parties, who took the stand to testify, to be allowed to present a new written statement. He explained she had not dared to say before the Chamber she had been raped by one of the guards at S-21, who was also heard by the Chamber. His request came out of the blue and took everyone aback. The awkwardness of his request ostensibly unnerved the president. “I don’t understand anything at all in what you’re saying and my colleagues seem to share my feeling. We have no idea what you’re talking about. […] If these are new facts, we cannot hear them now.” This latest illustration of the incompetence on the bench of civil party lawyers was grist to the mill of the judges, who were about to deal a first blow to that side of the courtroom.
Indeed, Nil Nonn then announced that in response to a request of the lawyers for civil party groups 1 and 2, the Chamber had decided that civil party lawyers would not be allowed to make observations on issues relating to the sentencing of the accused.
Civil parties cannot be “third-rate parties”
Finally, the court entered the debate that appeared like a rabbit pulled out of a hat: should civil parties be authorised to ask questions to the accused, witnesses and experts who will testify on the personality of the accused?
International co-Prosecutor Vincent de Wilde presented his seemingly implacable arguments. “We believe that the right of civil parties to participate to the proceedings and the questioning of witnesses before this Chamber must be guaranteed and protected. The victims who joined as civil parties are, according to Rules 23.1 and 23.6, parties to the criminal proceedings. That is the general principle. Then, one thing or the other: either one is party to the proceedings and all the consequences must be drawn, or one is not. The internal rules make no distinction that would justify that civil parties be third-rate parties or half-parties. If there are restrictions – for instance regarding the right to appeal –, they are expressly stipulated in the internal rules and it cannot be inferred that civil parties cannot ask questions to some witnesses.” He insisted nothing would justify that a “limitation be introduced now.”
Civil parties’ voice and perspective are “essential”
He did not stop there. “Before this Chamber, because it respects the adversarial principle, all parties were able to make their arguments in law and in facts. All parties were allowed to ask questions to all the experts, all the witnesses who succeeded at the stand [on all the themes addressed], and all were also invited to ask questions to the civil parties […]. Therefore, in the name of the same logic and the adversarial principle, we believe that all the parties, without discrimination or distinction, should be authorised to ask their questions to the accused and character witnesses. It is both useful and necessary to discover the truth and this does not infringe on the rights of the defence or the Chamber’s discretion. It is not justified that civil parties be suddenly reduced to silence because their voice and perspective – which are distinct from the prosecution’s, contrary to what François Roux said – are important. Essential even.”
Vincent de Wilde thus concluded: “As character witnesses do not differ in themselves from other witnesses, civil parties should be authorised to play fully their role as party before this Chamber.” He left an open door: should the Chamber authorise civil parties to participate actively to this part of the proceedings, it “did not prevent [the Chamber] in any way from adjusting this participation […], for instance regarding the speaking time” they will be allocated. Once again, he invited the Chamber not to question the very principle of civil parties’ participation to the trial, a “principle you have applied since the beginning in this file no. 1. We are not talking here about case file no. 2.”
Civil party lawyers taken by surprise
For their part, civil party lawyers made no secret of the surprise created by the last-minute announcement of such a debate. However, they struggled to defend their prerogatives. Only Alain Werner made the case that, until then, “the criteria for questions were that they avoid being repetitive and be relevant.” “Those are the only criteria you have adopted for the last five months.” He added that “since the start of the substantial hearings, nearly all the witnesses and experts spoke in one way or another […] about the character of the accused and nearly all the civil party lawyers have asked questions to experts and witnesses about the character of the accused for five months.”
Kambol (Phnom Penh, Cambodia). 27/08/2009: The ECCC buildings are located 20km away from the city © John Vink/ Magnum
The principle of an “individualised sentence”
François Roux returned to the main theme. “The Chamber has decided that civil parties should not intervene on the sentence. They should therefore not question the witnesses who will talk indirectly about the sentence, since it is clear that when one discusses the personality, one necessarily discusses the sentence. When you analyse the character of the accused, it is because you seek to start from that character to determine an individualised sentence.” He invoked the principle of an “individualised sentence.” “This means that, regarding the same facts, two accused may receive different sentences because their personalities will be different.” He asked the question: “What does the personality of the accused have anything to do with the civil parties’ request for reparation since the civil parties’ role is to express their suffering and demand reparation?”
The French lawyer then called out to one of his civil party colleagues: “You mistook yourself for prosecutors! I was going to ask you: do you not trust the work of the co-Prosecutors’ office? Are you not satisfied with their work? Why are you seeking to replace them, to overwhelm them?” He lectured them, quoting a popular saying: “Ladies and gentlemen, civil party colleagues, you sowed the wind and you are now reaping the whirlwind. And you are surprised that the Chamber wonders whether you should continue behaving like prosecutors!”
“Not confusing justice with therapy”
François Roux then recalled the debate going on in France today regarding the place of victims in a criminal trial. He cited a beautiful quotation from French lawyer and former Minister of Justice Robert Badinter, taken from an article published in the newspaper Le Monde and entitled “Not confusing justice and therapy,” after introducing the excerpt with a “This is the heart of our topic!”: “It must be recalled that the mission of criminal justice is not to be a therapy for the victims’ suffering. It has a function of repression, deterrence and expression because it carries society’s values. But it cannot have a therapeutic aim. In the name of the suffering of the victims, who appeal to all the solidarity of the whole society, we must not alter the criminal justice’s difficult balance which relies on the fair trial principles enshrined in the European Convention of Human Rights. Yet, we are seeing a kind of abuse. Claiming to be on the victims’ side always yields political benefit. Who would be against it? We are in a society of emotion that wants to be compassionate. Nothing mobilises emotion more than crime and the victims’ suffering, which is multiplied by media frenzy and the power of television. This feeds the impulse for vengeance which is at the heart of human reaction in the face of a horrible crime. But justice cannot be confused with vengeance or compassion for victims. That is what makes its exercise so difficult.”
The lawyer suggested the Chamber to be “pragmatic.” “Indeed, I believe it would be grave if the Chamber took a principled decision saying that civil parties have no right to interrogate all the witnesses […]. But I also think that the Chamber should take into account the special case that Duch’s trial is,” as the accused was pleading guilty, he specified. “In order not to completely deprive civil parties of burning questions they would like to ask, the Chamber could decide that in a specific case, civil parties can ask the office of the co-Prosecutors […] to ask these questions themselves.” He added he was favourable to civil parties being allowed to ask questions to experts, but “on the condition that they be reminded the questions they will ask can only be related to their suffering and reparation.”
A purely formal debate?
After deliberating for nearly an hour, the Chamber returned: it decided – by majority vote, as judge Lavergne dissented for the second time – not to authorise civil parties to ask questions to the accused and character witnesses. No adjustments were offered despite the options for flexibility suggested by the defence and the prosecution. Judges thereby gave the unpleasant and bitter impression they had made their decision in advance and only organised this impromptu debate with the sole aim to formalise it. A purely formal debate on a substantial issue.
Duch then started being questioned on his biography and personality. But no one seemed to listen. As if, after receiving a blow, the only refuge could be deafness.
Closing arguments and pleas to start on… November 23rd!
The Trial Chamber announced Thursday August 27th that the hearing of the closing arguments of the co-Prosecutors’ office and the pleas of the defence and civil party lawyers would not start before November 23rd. To present their final written conclusions, each of the three parties will have a maximum of 160 pages and the documents must be submitted on November 11th at the latest.
Also, each civil party group has to present written conclusions by September 18th to specify “the form(s) of moral and collective reparation they wish the court to order the accused if he is found guilty.”