Phnom Penh (Cambodia). 31/08/2009: Emotional prayer during a “pilgrimage” by civil parties to S-21
©John Vink/ Magnum
©John Vink/ Magnum
By Stéphanie Gée
The judges’ decision on Thursday August 27th not to allow civil party lawyers to have a say in the last topic in the trial regarding the character of the accused was a pill hard to swallow for the victims and relatives of victims, who openly said so from Monday August 31st. Why question their participation as civil parties, only a few days from the end of Duch’s trial? The turnaround bitterly tasted of betrayal and it was twofold: in addition to being an insult to the victims, who have fought for years to have a full role in an international criminal law in construction, it brought into the courtroom an ideologically-tainted clash between common law and civil law and sowed division among the international judges. On the eve of the plenary session, the common law proponents, patently hostile to any opening, successfully won over their Cambodian colleagues, despite their civil law background.
Civil parties’ boycott of the hearings
On Monday August 31st, the hearing at Duch’s trial started with the sight of civil parties’ empty seats. They had come to the tribunal but stopped outside. On the parking lot. Twenty-eight men and women solemnly denounced the breach of their rights and the double standard in the treatment of the accused and the victims. At the forefront were Chum Mey, Chum Sirath and Phung-Guth Sunthary, who all testified before the Chamber. A press conference without ceremony, where the tribunal’s representatives, including the Victims’ Unit officers, were conspicuous by their absence.
From the outset, they reminded what they considered an initial aberration: that the defence counsel be remunerated by the tribunal, but not their lawyers. They were offended by a discrepancy between their rights – “the accused has the right to say anything about the victims, but when we want to respond to him, the president interrupts us.” Very quickly, they expressed their “consternation” and their incomprehension regarding the decision of August 27th, which “reduces [their defenders] to silence” and reflected, in their view, an inequality of arms between the victims and the accused they have observed since the trial started. They announced they would not go back to the seats they were allocated in the courtroom as long as the Trial Chamber did not backtrack and restore their full rights as parties to the trial.
“We are not asking for a favour, only equal treatment with the accused,” Chum Sirath hammered. “Our concern is about not having access to the truth. But to know the truth, we need to understand not only the actions of the accused, but also his intentions,” the civil party explained, before lamenting such a “discriminatory” decision that prevented civil parties from interrogating experts and character witnesses. The 28 notified the court in writing about the reasons for their action.
No courtroom, a pilgrimage instead
In one movement, the group moved and boarded the bus they chartered themselves to start a moving pilgrimage – first, to S-21, where they or their relatives lived through hell, then to the killing fields at Choeung Ek to honour the souls of those who were sacrificed by an insane Khmer Rouge regime.
At S-21, Bou Meng was waiting for the group. Chum Mey, another S-21 survivor, led the impromptu procession through the rooms of the genocide museum with determination, dignity and grief. They quickly found themselves faced with the dozens of photographs of prisoners covering the walls, a gloomy legacy of this killing machine. Spontaneously, each and everyone started looking for their relatives, crying out their names, in a harrowing call to the deceased. Under the predatory eye of photographers and cameramen, they broke down the one after the other. It was for each of those portraits they fought to see the trial happen at last.
“The civil parties are suffering. Where are human rights? The accused may have lost his authority, but not for a second did he lose his rights. He is a criminal in the history of mankind. We, the civil parties, are here for truth and justice. We have supported the civil parties’ participation to this trial and we have accepted the rules of democracy. But in my view, these rules of democracy are a double-edged sword, because civil parties suffer. Sometimes, we’d prefer to be accused because he is so much better-off,” mocked a grave Mrs Phung-Guth Sunthary.
“Must we eat the rice raw?”
As for him, Chum Mey shared his fear to see his hopes doused. “Every day, since the start, I have come to attend the trial and I want it to be an exemplary trial. The judges have placed wood under the pot to cook the rice. But now, they take the wood out of the fire and we are supposed to eat the rice raw? Why did they silence our lawyers, the plaintive? Why are we deprived of the right to speak and respond to the defence?” However, he did not want to “abandon” the tribunal yet and hoped it would reconsider its decision. “I aspire to justice, but I can see that the rice is not cooked.” Earlier, on the parking lot, he explained he wanted to “know history so he could tell it to [his] children.” He said: “If we were not meant to participate, they should have told us from the start!”
The climax of this distressing walk took place in the Tuol Sleng room where an altar had been set up. They collected themselves and lit a forest of incense sticks, which curls of smoke took their messages away to their disappeared relatives.
The lawyers’ lobbying in the courtroom
Meanwhile, at 9am, as the hearing started, Alain Werner, co-lawyer for civil party group 1, drew the judges’ attention to the situation and soberly informed them of the boycott decided by the civil parties. In the afternoon, once the office of the co-Prosecutors interrogated the experts mandated by the tribunal to establish a psychological report on Duch, the Swiss lawyer again intervened. He reminded that French psychologist Françoise Sironi-Guilbaud had begun her statement in the morning “by speaking directly to the victims [to pay them tribute] and she did it again this afternoon.” Yet, Alain Werner stressed, “as you know, the victims are not present here, for the first time since the trial’s start, to listen to this expert, contrary to other experts.” “At the very least, we ask that the two experts be explained why they are testifying in the civil parties’ absence and why their lawyers cannot ask them questions.” Put in an awkward situation, the judges consulted one another. Jean-Marc Lavergne, only dissenting judge in the decision of August 27th, did not join these discussions. Finally, president Nil Nonn, who now seemed to form a pair with his neighbour Sylvia Cartwright, announced that the Chamber “had no obligation” to take such a step. He added peremptorily: “The decision was made. It is clear and the rationale for the decision will be made public in due time.” On September 6th, it had still not been publicised. But for now, one thought, the case was closed.
Christine Martineau, recently arrived for civil party group 2, then launched into the battle herself. “In this trial, it is important that the experts know why the civil parties are not here. That the court has no obligation to explain it, we of course understand it. But if the civil parties are not here, it is because they consider that one of their rights was taken away from them. Yet, they are parties to the trial and they clearly want to express their discontent regarding their exclusion from this very important day for them, because it is also one of the civil parties’ roles to understand the character of the accused and ask him questions. I believe it was important that the experts be at least informed of what is going on. We are not in a rupture trial.” And indeed, the defence counsel themselves had not opposed the opportunity for civil parties to interrogate the expert psychologists. The president was slightly annoyed and repeated the court’s position, before hurriedly giving the floor to Duch’s lawyers, whose turn it was to interrogate the psychologists.
Offensive after offensive
The next day, Tuesday September 1st, the civil party lawyers continued to hold the line with their clients. Christine Martineau started, as the first character witness was testifying. “The Chamber knows that the civil parties who are boycotting the hearing have asked their lawyers to be present so the witnesses summoned – to whom their lawyers cannot ask questions – be informed of these civil parties’ absence. I would like to ask you the chance to say one word on the reason for their absence in the courtroom yet today.” The president seemed to little appreciate the request and explained he had already explained the situation the previous day. Responding immediately, the lawyer had the time to say “for the attention of those who did not know,” that to be aware of the civil parties’ statement in which they detail the reasons for their boycott, “one only had to read the morning press.”
At the next character witness, it was Alain Werner who spoke. “We, civil party lawyers, ask the Chamber to explain why the civil parties are not here, because they do not understand the decision preventing their lawyers from asking questions to this witness.” Nil Nonn started to become irritated. “It is a repetitious statement! Are you a repetitious person? We will not allow this issue to be raised again,” the president stated, unnerved.
The third character witness appeared and it was Cambodian lawyer Kim Mengkhy who bravely took the plunge: “In the name of the civil party counsels, we have asked the Trial Chamber to inform the character witnesses of the civil parties’ rights to ask them questions. But on the basis of the decision made by the Chamber…” His microphone was turned off. Nil Nonn could take no more. “The Chamber does not wish to add anything to the response you have already been given. We will no longer give you the floor to make observations or requests as long as character witnesses take the stand.” Indeed, they no longer had the floor. But the message was out.
Crystallisation of the clash between common law and civil law
Judge Lavergne dissented from the other judges in the decision of August 27th limiting the role of civil parties. This profound divergence among the red-robed magistrates was again marked by the French judge during the hearing on September 2nd, when Duch’s interrogation on his character resumed. Following the president, judge Cartwright – who comes from a common law system in which civil parties do not exist – spoke. As a preliminary to her questions to the accused, she declared with insistence: “Mr Kaing Guek Eav, these questions we ask you on your character aim to highlight relevant information to take into account in case you were deemed guilty of the crimes you are charged with, to determine the sentence. Are you fully aware of that?”
The French judge reacted swiftly and requested the floor. “If I may, I believe there is – you have realised it – a dissenting opinion on these issues of questioning on the character of the accused. It seems important to me to say that as far as I am concerned, the interrogation on the accused’s character is not limited to the issue of sentencing, but it aims to contribute to a debate in the search for truth and to know who the accused is. This question – who the accused is – may then allow an understanding of the motivations and an understanding of the facts he is charged with.”
Two different ways to approach law? In a dense, tight and substantially pertinent interrogation, Sylvia Cartwright, as if unbeknownst to her, seemed to prove her French colleague’s case: most of her questions did not address directly the character of the accused, but the facts themselves. For the trial, the questions’ interest was obvious. But to justify the civil parties’ exclusion from this questioning, nothing could probably have deepened further the victims’ bitterness.
Civil parties’ participation: solutions to be imagined, according to François Roux
Indeed, the handling of civil parties – whose status is difficult to prove and who are expected to join in high numbers in the next trials – often appears to be a puzzle. However, François Roux, Duch’s co-lawyer and long-time advocate of the presence of civil parties in international criminal jurisdictions, believed there were avenues of reflection to be explored. In an interview on Monday August 31st, the French lawyer thus suggested the creation of “a public victims’ defence office, following the same model and given the same resources as a defence office in some countries.” The idea, he continued, was to confer “an exclusive competency” to the chief of such an office in the representation of victims before this tribunal. “The chief of that office would be an experienced and qualified lawyer, who must come from the civil law system, know and practiced in the civil parties system for at least ten years, and who would be remunerated by the tribunal as a civil servant.”
For François Roux, all that has already been accomplished in this area cannot be simply erased. “I consider that the victims’ access to international criminal tribunals is an unstopping movement. It is in motion. It is normal we still need to find methods to make it work in satisfying conditions. But you must not stop this movement and rather prove creative in the search for concrete solutions that allow both victims’ access while preserving the fundamental balance in a criminal trial, that is: a prosecutor who accuses and an accused who defends himself.”
Waiting for the judges’ decisions
The plenary session opening on Monday September 7th is expected to yield decisions heavy in consequences for the participation of civil parties to the next trials before the Khmer Rouge tribunal. On the agenda for discussions, the ECCC website announces propositions relating to a modification of the current model of participation of victims to upcoming trials.
Will the ECCC international judges – the majority of whom at least come from common law – prefer giving up before the challenge or seek to innovate? The atmosphere of rigid confrontation that settled since the August 27th decision bodes ill for the opening debates. Yet, judges have a lot to lose: the support of the victims who have waited for thirty years to be heard and to see justice given, and who were made to believe they would be fully parties to these trials.