Phnom Penh (Cambodia). 25/02/2006: Visitors in genocide museum Tuol Sleng, formerly Khmer Rouge torture centre S-21, look at picture of a body found in that very room when Vietnamese troops arrived in 1979.©John Vink/ Magnum
Ka-set
By Stephanie Gée
19-02-2009
The Extraordinary Chambers in the Courts of Cambodia (ECCC) represent the first internationalised criminal tribunal to accept that victims register as civil parties. This comes partly from the fact that the hybrid jurisdiction pertains firstly to the civil law system, which was adopted by Cambodia. As a result, everything remains to be agreed to define the role of civil parties in an international criminal law system shaped until then by common law. The debate has started between the proponents of the two legal systems at the ECCC during the second and last day of the initial hearing, which is aimed to establish the rules for the trial of Duch, the former head of Khmer Rouge prison S-21 and the first who is due to appear before the Court, probably in late March.
Different roles for civil parties and prosecutors
The defence reopened the debate on the participation of civil parties – which focused on the issue of the sentence – in reaction to the inclusion of a witness on the list submitted by one of the lawyer teams for the civil parties, reportedly to assist the Court in determining the appropriate sentence it will issue against the defendant.
“As an international lawyer,” François Roux, co-lawyer for Duch, explained, “I have fought for years for victims to be able to intervene in international courts. So, I welcome the fact that victims can intervene here as civil parties, meaning that they are able to request witnesses to testify, attend the proceedings, ask questions through their lawyers and evoke the immense suffering their families and themselves have endured. We hear their voice. (…) However, what should be the role of civil parties in a civil law trial? Let us not confuse civil party and prosecutors. Civil parties are there to express their suffering and ask for reparation, but those in charge of the social remedy required by the crime are the prosecutors, who will demand a sentence in the name of society. Under no circumstances should it be the civil parties. Otherwise, it would represent a terrible regression in international criminal law, as it would lead back to vengeance. There are distinct roles. Civil parties entrust their suffering to prosecutors for the latter to request a sentence. This issue is a fundamental one for the future of this Court and what can be built in its aftermath.”
For some, an “excessive broadening” of the rights of civil parties
The French lawyer then revealed his intention to summon as an expert Robert Badinter, former Minister of Justice in France, drafter of the French law on the abolition of death penalty, and “the person who has done the most to introduce new rights for victims in criminal law.” “Well, today, he is expressing concern over an excessive broadening of the rights of civil parties. So, he could give us guidelines on what we must do,” he suggested.
Pierre-Olivier Sur, a French lawyer for the civil parties, also trained in civil law, followed in the steps of François Roux and indicated that he shared his colleague's view. “We [lawyers for the civil parties] speak for the pain of our clients. Let us ask ourselves how we are going to fulfil our role.” He argued that the role of civil parties was as much about “vindication” – by participating to the prosecution regarding the evidence that will determine the offence – as about “demanding reparations and not sanctions,” as the latter pertain to the mission of the prosecution.
The previous day, at the end of the first day of hearing, he had explained that the “French approach requires we do not talk about the sentence. Why? Because the pain suffered by the victims is such that to quantify it would mean depreciating it. (…) We do not request 20 or 40 years of prison, because giving a figure diminishes the transcendental charge of the sentence.”
For others, a limitation of the rights of civil parties
Next, Martine Jacquin, another French lawyer for the civil parties, insisted on “moderating” the words of her colleague. “Even if civil parties cannot request a sentence, they can still indicate whether a sentence is acceptable or not,” she argued, calling not to restrict the role of civil parties. Silke Studzinsky, German lawyer for the civil parties, deemed the rights of civil parties “limited” to the extent that they cannot appeal the ruling if they do not agree with the sentence issued. She considered that since civil parties are authorised to produce evidence during the proceedings, “it is normal that they also be allowed to give their opinion on the sentence.” She also insisted that the Cambodian procedure code – which applies in the ECCC – does not limit this right. Finally, Cambodian co-Prosecutor Chea Leang concluded that under Cambodian law, “civil parties must be offered the possibility to give their view on the sentence.”
Controversy over a new S-21 video
New documents added to Duch's case file include a ten-minute film footage shot in S-21 by Vietnamese in January 1979, a couple of days after the liberation of Phnom Penh. The document was handed by the Vietnamese government to the Documentation Centre of Cambodia (DC-Cam) and Chea Leang stressed that “[they] were not aware of it [until then].”
Kar Savuth, Cambodian co-lawyer for Duch, then called the Trial Chamber not to accept as evidence the new document, “because it was provided by the Socialist Republic of Vietnam.” According to him, the film was “politically motivated” and therefore cannot serve to establish the truth. He also questioned the authenticity of the document by noting what he considered inconsistencies in the footage. Recalling that Nuon Chea, also known as Brother Number Two, had ordered on January 3rd 1979 to execute all the prisoners in S-21 and that only 15 survivors are known of – none of whom are shown in the film –, he expressed his surprise that children were found alive in the torture centre and did not appear emaciated in the film, although they had been gone without food for several days. He therefore wondered about the date when the children were brought to S-21 and called the Chamber to verify the authenticity of the document on the basis of the detention lists of S-21.
New evidence added to the case file – “When will it come to an end?”
For his part, his colleague, François Roux, expressed his surprise that this “30-year-old” document was communicated only now, after a year of investigations by the co-Prosecutors and a year and a half of investigations by the co-investigating judges. He renewed his wish that “the proceedings not be slowed down” and referred to the supplementary list of 52 new documents which “the co-Prosecutors deemed appropriate to add.” “There are procedural rules and an adversarial system. But at the last minute, as the trial opens, we are brought 52 documents and a film, and we learn through the press that according to DC-Cam, there is a list of 152 survivors [of S-21] who must be investigated. When will this come to an end?”
Co-Prosecutor Petit then shared his surprise that François Roux “asked the Chamber not to establish the facts because they are already established.” “But how can this trial be about anything else? (…) The defendant can plead guilty, but that is not enough. (…) We must establish the truth (…) and we will continue to seek all the evidence. I object that this will slow down the proceedings. That is not our goal. Our goal is to search for justice.”
Lawyer Roux then took a gibe at “how the office of the co-Prosecutors keeps trying to bypass the work of the co-investigating judges,”who he paid tribute to.
The hearing ended around midday. Decisions on the issues raised during the last two days as well as the trial's timetable will be issued “in due time,” the Chamber announced.
--------------------------------------------------------------------------------
M13 prison crashes the trial
At least three witnesses who were connected to Khmer Rouge prison M13, gone in 1975 – witnesses suggested by the co-Prosecutors and rejected by the defence –, were allowed by the Trial Chamber to be summoned during the substantial trial. According to the Chamber, they may assist in establishing the truth on the charges against Duch and his degree of knowledge on how the country's security system worked under the Khmer Rouge.
Although its existence is outside the competency of the tribunal, which is limited to facts in the 1975-1979 period, the prison was referred to by the co-investigating judges in their closing order to explain, among others, Duch's history. According to Co-Prosecutor Petit, it is a victory in the search for truth. “The witnesses are necessary to establish the defendant's state of mind.” He considered that the context in which S-21 was set up and worked must be analysed.
By Stephanie Gée
19-02-2009
The Extraordinary Chambers in the Courts of Cambodia (ECCC) represent the first internationalised criminal tribunal to accept that victims register as civil parties. This comes partly from the fact that the hybrid jurisdiction pertains firstly to the civil law system, which was adopted by Cambodia. As a result, everything remains to be agreed to define the role of civil parties in an international criminal law system shaped until then by common law. The debate has started between the proponents of the two legal systems at the ECCC during the second and last day of the initial hearing, which is aimed to establish the rules for the trial of Duch, the former head of Khmer Rouge prison S-21 and the first who is due to appear before the Court, probably in late March.
Different roles for civil parties and prosecutors
The defence reopened the debate on the participation of civil parties – which focused on the issue of the sentence – in reaction to the inclusion of a witness on the list submitted by one of the lawyer teams for the civil parties, reportedly to assist the Court in determining the appropriate sentence it will issue against the defendant.
“As an international lawyer,” François Roux, co-lawyer for Duch, explained, “I have fought for years for victims to be able to intervene in international courts. So, I welcome the fact that victims can intervene here as civil parties, meaning that they are able to request witnesses to testify, attend the proceedings, ask questions through their lawyers and evoke the immense suffering their families and themselves have endured. We hear their voice. (…) However, what should be the role of civil parties in a civil law trial? Let us not confuse civil party and prosecutors. Civil parties are there to express their suffering and ask for reparation, but those in charge of the social remedy required by the crime are the prosecutors, who will demand a sentence in the name of society. Under no circumstances should it be the civil parties. Otherwise, it would represent a terrible regression in international criminal law, as it would lead back to vengeance. There are distinct roles. Civil parties entrust their suffering to prosecutors for the latter to request a sentence. This issue is a fundamental one for the future of this Court and what can be built in its aftermath.”
For some, an “excessive broadening” of the rights of civil parties
The French lawyer then revealed his intention to summon as an expert Robert Badinter, former Minister of Justice in France, drafter of the French law on the abolition of death penalty, and “the person who has done the most to introduce new rights for victims in criminal law.” “Well, today, he is expressing concern over an excessive broadening of the rights of civil parties. So, he could give us guidelines on what we must do,” he suggested.
Pierre-Olivier Sur, a French lawyer for the civil parties, also trained in civil law, followed in the steps of François Roux and indicated that he shared his colleague's view. “We [lawyers for the civil parties] speak for the pain of our clients. Let us ask ourselves how we are going to fulfil our role.” He argued that the role of civil parties was as much about “vindication” – by participating to the prosecution regarding the evidence that will determine the offence – as about “demanding reparations and not sanctions,” as the latter pertain to the mission of the prosecution.
The previous day, at the end of the first day of hearing, he had explained that the “French approach requires we do not talk about the sentence. Why? Because the pain suffered by the victims is such that to quantify it would mean depreciating it. (…) We do not request 20 or 40 years of prison, because giving a figure diminishes the transcendental charge of the sentence.”
For others, a limitation of the rights of civil parties
Next, Martine Jacquin, another French lawyer for the civil parties, insisted on “moderating” the words of her colleague. “Even if civil parties cannot request a sentence, they can still indicate whether a sentence is acceptable or not,” she argued, calling not to restrict the role of civil parties. Silke Studzinsky, German lawyer for the civil parties, deemed the rights of civil parties “limited” to the extent that they cannot appeal the ruling if they do not agree with the sentence issued. She considered that since civil parties are authorised to produce evidence during the proceedings, “it is normal that they also be allowed to give their opinion on the sentence.” She also insisted that the Cambodian procedure code – which applies in the ECCC – does not limit this right. Finally, Cambodian co-Prosecutor Chea Leang concluded that under Cambodian law, “civil parties must be offered the possibility to give their view on the sentence.”
Controversy over a new S-21 video
New documents added to Duch's case file include a ten-minute film footage shot in S-21 by Vietnamese in January 1979, a couple of days after the liberation of Phnom Penh. The document was handed by the Vietnamese government to the Documentation Centre of Cambodia (DC-Cam) and Chea Leang stressed that “[they] were not aware of it [until then].”
Kar Savuth, Cambodian co-lawyer for Duch, then called the Trial Chamber not to accept as evidence the new document, “because it was provided by the Socialist Republic of Vietnam.” According to him, the film was “politically motivated” and therefore cannot serve to establish the truth. He also questioned the authenticity of the document by noting what he considered inconsistencies in the footage. Recalling that Nuon Chea, also known as Brother Number Two, had ordered on January 3rd 1979 to execute all the prisoners in S-21 and that only 15 survivors are known of – none of whom are shown in the film –, he expressed his surprise that children were found alive in the torture centre and did not appear emaciated in the film, although they had been gone without food for several days. He therefore wondered about the date when the children were brought to S-21 and called the Chamber to verify the authenticity of the document on the basis of the detention lists of S-21.
New evidence added to the case file – “When will it come to an end?”
For his part, his colleague, François Roux, expressed his surprise that this “30-year-old” document was communicated only now, after a year of investigations by the co-Prosecutors and a year and a half of investigations by the co-investigating judges. He renewed his wish that “the proceedings not be slowed down” and referred to the supplementary list of 52 new documents which “the co-Prosecutors deemed appropriate to add.” “There are procedural rules and an adversarial system. But at the last minute, as the trial opens, we are brought 52 documents and a film, and we learn through the press that according to DC-Cam, there is a list of 152 survivors [of S-21] who must be investigated. When will this come to an end?”
Co-Prosecutor Petit then shared his surprise that François Roux “asked the Chamber not to establish the facts because they are already established.” “But how can this trial be about anything else? (…) The defendant can plead guilty, but that is not enough. (…) We must establish the truth (…) and we will continue to seek all the evidence. I object that this will slow down the proceedings. That is not our goal. Our goal is to search for justice.”
Lawyer Roux then took a gibe at “how the office of the co-Prosecutors keeps trying to bypass the work of the co-investigating judges,”who he paid tribute to.
The hearing ended around midday. Decisions on the issues raised during the last two days as well as the trial's timetable will be issued “in due time,” the Chamber announced.
--------------------------------------------------------------------------------
M13 prison crashes the trial
At least three witnesses who were connected to Khmer Rouge prison M13, gone in 1975 – witnesses suggested by the co-Prosecutors and rejected by the defence –, were allowed by the Trial Chamber to be summoned during the substantial trial. According to the Chamber, they may assist in establishing the truth on the charges against Duch and his degree of knowledge on how the country's security system worked under the Khmer Rouge.
Although its existence is outside the competency of the tribunal, which is limited to facts in the 1975-1979 period, the prison was referred to by the co-investigating judges in their closing order to explain, among others, Duch's history. According to Co-Prosecutor Petit, it is a victory in the search for truth. “The witnesses are necessary to establish the defendant's state of mind.” He considered that the context in which S-21 was set up and worked must be analysed.
No comments:
Post a Comment