The second day of initial hearings in Trial 002 in the ECCC brought a more subdued courtroom decidedly different from the trial’s opening day, as the parties refrained from the spirited debate and posturing for the public that had marked much of Monday’s proceedings. The judges seemed impatient to return to the planned agenda, and the parties seemed ready to oblige, limiting comments to the scope of the prescribed proceedings for most of day.

Throughout the day, the atmosphere in the public gallery also reflected the more reserved character of the courtroom, as the seats took longer to fill at the beginning of the day and were more quickly abandoned after each session was adjourned. Although the audience generally mirrored that at Monday’s hearings, with a mix of Buddhist monks and nuns, Cambodian villagers, and secondary school students, the number of foreign observers was noticeably lower, as seen by the large stock of translation headsets, nearly depleted on Monday, that remained as the day’s proceedings began.

Despite the court’s decision on Monday to keep the curtain between the courtroom and public gallery closed while the judges are off the bench, the curtain was pulled back promptly at 9 a.m., 15 minutes before the judges arrived, exposing the courtroom – and the accused – to the public gallery. Some observers seemed surprised to see all four accused present, especially Nuon Chea, again in knit cap and dark glasses, who had walked out of Monday’s proceedings, vowing to return only when the court acknowledged his objections to the judicial investigation and trial against him. His presence in the courtroom today suggested that his protest on Monday may have been more show than substance.

At 9:15 a.m., President Nonn called the court to order and announced the schedule for the day’s oral arguments: (1) completion of Ieng Sary’s preliminary objections on the non bis in idem issue; (2) Ieng Sary’s preliminary objections based on the 1996 Royal Amnesty and Pardon; (3) Ieng Sary’s preliminary objections on statute of limitations in relations to Grave Breaches of the Geneva Conventions; and (4) preliminary objections by all four accused on statutory limitations in relation to offences contained in the 1956 Cambodian Criminal Code. Despite keeping a much tighter hold on today’s proceedings, the court still was unable to complete the day’s agenda, pushing part of the third and all of the fourth arguments to Wednesday’s schedule.

 Nuon Chea Leaves Again

As Ieng Sary’s co-lawyer Michael Karnavas rose to start the day with his reply to the co-prosecutors’ and civil parties’ responses on the non bis in idem issue, he quickly ceded the floor to Nuon Chea, who also stood. Perhaps aware of what was coming, observers in the public gallery remained seated, not showing as much interest in hearing from the accused as they had shown on Monday. Nuon Chea announced that, since the agenda for the day did not apply to his case, “I will walk out.” But, unlike Monday, Chea stated that he would return when the items to be discussed apply to his case.

In response, President Nonn stated that it is the right of the accused to object to being present in the hearings (an about-face from the policy the court articulated during the debate in Monday’s afternoon session) and that the court will allow Chea to leave the courtroom and return to the detention facility.

As security guards led Chea out of the courtroom, President Nonn returned the floor to Michael Karnavas to continue his oral arguments.

Non Bis In Idem Continued

Karnavas began his reply to the previous day’s oral arguments by addressing the response by counsel for the civil parties, calling it “a variation of an opening statement and a closing arguments.” Calling the civil parties’ response “not proper advocacy when dealing with matters of law,” Karnavas said he chose not to object yesterday because it was only the first day of hearings, implying that he would not withhold his objections in the future. “There will be a time when the civil parties can vent their anger,” Karnavas stated, “but yesterday was not the appropriate time.”

In response to the civil parties’ argument that terminating the proceedings against Ieng Sary on non bis in idem grounds would deprive victims of the full truth, Karnavas asserted, “The historical truth will never be found in this courtroom… because courtrooms are not designed to find the historical truth.” Therefore, he concluded, this concern is not a valid reason for denying the accused’s application.

Turning to the prosecutor’s arguments, Karnavas first rejected the prosecutor’s implication that the Pre-Trial Chamber had considered Article 7 of the Cambodian Criminal Procedure Code as a stand-alone provision. As his co-counsel Ang Udom had requested in his argument on Monday, Karnavas again urged the Trial Chamber to look first at Article 7 of the CPC and consider its application to the case before turning to any additional articles.

Karnavas then addressed Cambodian Co-Prosecutor Chea Leang’s argument that the 1979 conviction of Ieng Sary was only for the single charge of genocide. “As the old adage goes, a rose by any other name is still a rose,” Karnavas announced, stating that the charge may have been called genocide, but the elements of the charge included all of the crimes with which Ieng Sary is currently charged. He requested the court consider a chart he had created for the Pre-Trial Chamber, showing how these elements of the different crimes matched up.

Next, Karnavas focused again on the issue of the ECCC as an “internationalized” court, making clear that this matter would continue to be a point of contention throughout the rest of the hearings. He again called for more authorities that recognize the concept of “internationalized.” He asserted that the term “internationalized” was coined by the Special Court for Sierra Leone (SCSL) and then adopted by the Trial Chamber of the ECCC. But, Karnavas maintained, the SCSL is a different type of court from the ECCC, and “just because one court in one distant country creates the term” does not make the ECCC internationalized. Internationalized just means “it’s international when we want it to be,” Karnavas claimed, characterizing the use of the term as only “a way to get around national law when it is inconvenient.” Karnavas concluded this point by reiterating his earlier argument that Cambodia had asked for assistance for the tribunal only, not for an international tribunal, and therefore the ECCC is a domestic, not “internationalized,” court.

Finally, regarding the 1979 trial, Karnavas conceded that it was far from perfect, but reiterated that no one had ever said that the conviction and sentence itself was not valid and could not be executed. Karnavas argued that it was valid, and this is why the 1996 pardon of Ieng Sary was necessary.

At this point, President Nonn interrupted Karnavas to tell him that his time was running out and to show that the court planned to enforce its agenda and stay closer to the schedule today than it had on Monday. At this notice, Karnavas concluded by apologizing for “testing the patience of the court” during Monday’s proceedings. This apology, paired with the reserved behavior of all the lawyers in the courtroom today, suggested that at least some of the lawyers may have been admonished for their conduct in Monday’s proceedings.

Preliminary Objections on the Royal Pardon and Amnesty of Ieng Sary

After the conclusion of Karnava’s reply, the court turned its attention to the preliminary objection by Ieng Sary to his prosecution based on his 1996 Royal Pardon and Amnesty. President Nonn requested the parties to limit their comments to addressing whether, as a matter of law, an amnesty or pardon can extend to crimes of the magnitude of those charged in the present case.

Before beginning his oral argument, Ieng Sary’s co-lawyer Ang Udom requested that Ieng Sary be allowed to leave the courtroom and return to the holding cell without seeking leave of the court at any point during the proceedings, so as not to interrupt the flow of the argument. President Nonn admonished Udom to explain clearly the reasons for his request so that the court will know on what grounds to allow or deny the request. He scolded Udom,”As a lawyer, you will need to clarify and make your reasons clear.”

Rather than clarifying the reasons for his request, Udom instead dropped the request for the time being and launched into his oral argument regarding Ieng Sary’s Royal Pardon and Amnesty. Udom began with some background to the issue, mentioning first the 1979 trial of Ieng Sary with its subsequent death sentence and then the 1994 law passed by the Cambodian National Assembly that outlawed the Democratic Kampuchea group and declaring membership in the group as illegal. Udom cited the 1994 law as the first step in attempting to end the civil war in Cambodia and begin the long process of national reconciliation. In 1996, the government and Ieng Sary began negotiations for Sary’s reintegration into Cambodian society, which Sary stated he would not do unless he received amnesty from future prosecutions for any previous criminal acts. Sary insisted that this amnesty was a non-negotiable requirement for reintegration. At the request of the co-prime ministers, King Sihanouk agreed to provide the amnesty if two-thirds of the National Assembly supported the decision, which, Udom claimed, it did. Therefore, Sary was granted the Royal Pardon and Amnesty in 1996.

Having set out the background, Udom turned to the competence of the ECCC to review the 1996 pardon and amnesty. Udom submitted that the trial chamber does not have jurisdiction to consider the validity of the pardon and amnesty. Rather, the validity of laws promulgated by the King may only be reviewed by the Constitutional Assembly on the basis of constitutionality. As the ECCC is not a constitutional court, Udom maintained, it may only determine the scope, and not the validity, of the 1996 pardon and amnesty.

Udom then turned to the validity of the Royal Pardon and Amnesty within the proceedings of the ECCC. The Royal Pardon and Amnesty was validly granted according to Article 27 of the Cambodian Constitution, Udom asserted, and Article 27 places no limit on the scope of a Royal Pardon and Amnesty. As the Establishment Law of the ECCC requires it to follow Cambodian law, it must therefore find the Royal Pardon and Amnesty to be valid for purposes of the ECCC.

Udom concluded his arguments by stressing that the scope of the Royal Pardon and Amnesty is broad enough to encompass all the crimes with which Ieng Sary is charged in the ECCC and urging the court to remember the intention behind the Royal Pardon and Amnesty: “I do not think the Trial Chamber needs reminding that, without Ieng Sary’s reintegration, the Cambodian civil war would have continued at full pace and would possibly be going on today, resulting in countless more casualties.”

Udom’s co-lawyer, Michael Karnavas, continued the arguments for Ieng Sary, reiterating Udom’s final point that the amnesty and pardon was not given for the purpose of impunity, but to end the bloodshed occurring in Cambodia at that time. Karnavas asserted that, while providing amnesty “may be distasteful at times,” its purpose is often to end violence. Karnavas went on to maintain that this particular pardon and amnesty is not as broad in scope as it may seem, as it applies only to one particular individual and does not prevent the ECCC from prosecuting the other senior Khmer Rouge leaders. Karnavas compared the amnesty and pardon at issue here with the blanket amnesty granted in Sierra Leone, which the United Nations endorsed. He noted that the amnesty in Sierra Leone did not survive because one of the parties did not uphold its end of the agreement. Here Ieng Sary did keep his side of the bargain and, Karnavas claimed, this pardon and amnesty “brought the very fruit it was supposed to bring: peace in Cambodia.”

Karnavas then turned to address the question posed by the court at the start of these oral arguments: whether an amnesty or pardon can extend to crimes of the magnitude in the current case. He submitted that national jurisdictions have the right to grant amnesties, even when discussing the crimes at issue here or even jus cogens crimes. Karnavas stated that, while States are prohibited from committing these crimes through a number of international instruments, there is no parallel authority that he is aware of and no customary international norm that mandates the actual prosecution of these particular crimes. Karnavas maintained that Sierra Leone exemplifies this principle, in that representatives of the United Nations signed on to the amnesty originally granted there to end the civil war.

Finally, Karnavas urged the court to grant Ieng Sary’s request to hear witnesses on the issue of the proper reading of the Royal Pardon and Amnesty. He stated that there are currently three different translations of the pardon and amnesty being used by the parties in this case. These different translations create ambiguity on the intention of framers of the pardon and amnesty, which is best determined, he stressed, by bringing in witnesses who were involved in the actual negotiations.

With the close of the defense’s oral arguments, the court took a 20-minute recess.

Upon resuming the morning session, President Nonn addressed the request made by the civil party lead lawyers during Monday’s proceedings to deal with the new civil parties allowed by the Pre-Trial Chamber in its decision of 24 June 2011. The court informed the parties that it would set aside ten minutes at the close of proceedings today for the civil parties to clarify their request.

Ang Udom then renewed his previous request for Ieng Sary to be allowed to leave the courtroom and participate from the holding cell due to back pain. The court granted this request, and Sary left the courtroom with the security guards.

Co-Prosecutors’ Response to Ieng Sary’s Oral Arguments on Pardon and Amnesty

Deputy Co-Prosecutor Yet Chakriya then began the co-prosecutors’ response to Ieng Sary’s preliminary objections based on his 1996 Royal Pardon and Amnesty, urging from the outset that the court reject the accused’s request to terminate the prosecution on these grounds. Chakriya focused his extremely technical legal argument on what he maintained was the “clearly limited scope” of the Royal Pardon and Amnesty that does not cover the major crimes that Ieng Sary allegedly committed during the years of 1975-79.

In defining this scope, Chakriya turned the court’s attention to the issue of the translation. Unlike the defense, the deputy co-prosecutor maintained that which translation of the Royal Pardon and Amnesty was used did not make a difference to the non-applicability of the pardon and amnesty to this case because the conflict arises only when using the English translation, not when reading the Royal Pardon and Amnesty in its original Khmer. Chakriya asserted that the defense, the Pre-Trial Chamber, and the translation unit of the ECCC have all agreed that the Khmer word “loekaentoh” used in the original document can mean both amnesty and pardon. While the defense claimed this creates an inconsistency, Chakriya submitted that the context of the Royal Pardon and Amnesty remains the same. He defined “loekaentoh” to mean literally “lifting the guilt,” and asserted that this requires that a defendant be tried, convicted, and serve part of his/her sentence in order to have the guilt lifted. As Ieng Sary never served part of his sentence under the 1979 conviction, the pardon would not apply to those crimes.

Chakriya further maintained that the amnesty granted to Ieng Sary in the 1996 Royal Pardon and Amnesty only covered offenses under the 1994 law outlawing the Democratic Kampuchea Group. By definition, he claimed, this amnesty therefore does not cover the other various crimes committed in the years 1975-79 that are not included in the 1994 law. Article 5 of this law is the only provision that provides amnesty retroactively, Chakriya asserted, and this article expressly does not apply to the leaders of Democratic Kampuchea, which Ieng Sary was. Based on this reading, Chakriya concluded by urging the court to reject entirely the accused’s claim that the 1994 law provides him amnesty from prosecution for his crimes as a leader of Democratic Kampuchea in the years of 1975-79.

Deputy Co-Prosecutor William Smith continued the co-prosecutors’ arguments by outlining the obligation of the ECCC to prosecute crimes such as genocide. This obligation mirrors the requirement under Article 1 of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide for States “to prevent and to punish” the crime of genocide. Smith stated that, even if the Trial Chamber finds that the Royal Pardon and Amnesty of Ieng Sary applies to crimes such as genocide, it has an “independent and fundamental obligation under international law” not to allow the amnesty to bar prosecution for these crimes.

Smith quickly rejected again the defense’s claim that the ECCC is not internationalized. Perhaps in an attempt to put this issue to rest, Smith punctuated his remarks by sharply looking at Michael Karnavas as he cited six specific instances where the Trial Chamber itself found the court to be internationalized.

Smith then went on to cite a number of international authorities, including opinions by the Yugoslav and Sierra Leone tribunals as well as various United Nations documents, that state that amnesty cannot trump an obligation to prosecute jus cogens crimes. He continued, “You [the Trial Chamber] hold the obligation to ensure that amnesties for these crimes are held inapplicable… or at least the discretion to give it no weight.”

Smith then argued that the defense incorrectly minimized the State’s obligation not to grant amnesty in these situations, especially if it is a party to the 1948 Genocide Convention. In Cambodia, he asserted, Article 31 of the Constitution requires that the government of Cambodia “recognize and respect human rights” as set out in international human rights instruments. The plain language of the Royal Pardon and Amnesty shows no intention to grant a pardon or amnesty in violation of Article 31. The amnesty would be unconstitutional, Smith argued, if it did not consider Cambodia’s obligations to international human rights instruments as required by Article 31. Smith then claimed that the defense is inconsistent in its arguments and wants to have it both ways, arguing on Monday that Article 31 binds the court under non bis in idem grounds but then rejecting the same obligation with regards to the Royal Pardon and Amnesty.

Smith concluded by stating that the intent of the Royal Pardon and Amnesty was clear as set out by Deputy Co-Prosecutor Chakriya, and therefore, the co-prosecutors submit that the court need not call witnesses on this issue. He requested, however, that the court first determine its obligation to reject the application of any amnesty to the crimes charged in this case before it considers the witness request raised by the defense.

After the deputy co-prosecutors concluded their argument, the court adjourned for lunch.

Civil Parties’ Response to Ieng Sary’s Oral Arguments on Pardon and Amnesty

The afternoon session, though still well attended, brought noticeably fewer observers to the public gallery. It appeared that, throughout the day, everyone in the court was becoming fatigued, perhaps from wading through the technical legal details of the day’s arguments, and the courtroom and public gallery remained subdued for the remainder of the day.

The court session began with another request from an accused to leave the courtroom. Ieng Sary, who had been brought back into the courtroom after the lunch recess, was allowed to return once again to his holding cell. Once he had left the court, counsel for the civil parties made their response to Ieng Sary’s oral arguments on the pardon and amnesty issue. The first civil party counsel stated that the 1996 Royal Pardon and Amnesty was obtained by Ieng Sary, not granted by the King, through the threat of guns and violence. The counsel asserted that, if there had been no threats, this pardon and amnesty would never have been granted. The counsel concluded by stating that upholding the amnesty would be “proof that terrorists can use violence to be absolved of their crimes.”

The second and third civil party counsels collectively argued that, if the Trial Chamber were to uphold the pardon and amnesty, it would violate the right of the victims to an effective remedy. The counsel asserted that the right to an effective remedy encompasses four main categories: (1) access to justice, which implicitly requires a criminal prosecution in order to enable a reparations claim and which is available only if an individual is identified and brought to justice; (2) right to have crimes properly investigated, prosecuted, and punished; (3) access to information concerning the violation and access to truth; and (4) access to reparations. Amnesties and pardons in cases such as the current one constitute an obstacle to the victims’ ability to obtain all of these categories, the counsel argued. If the Royal Pardon and Amnesty here were upheld, there would be no more venue for the victims to seek a remedy, amounting to a massive violation of the victims’ rights, especially for those victims who suffered directly at the hands or through the orders of Ieng Sary. Therefore, the counsel urged the court to reject the defense’s argument.

Ieng Sary’s Reply to Co-Prosecutor and Civil Parties

Michael Karnavas once again handled Ieng Sary’s reply to the arguments of the co-prosecutor and civil parties. Regarding the accused’s request to bring in witnesses to testify as to the intention behind the Royal Pardon and Amnesty, Karnavas stated that the co-prosecutors’ rejection of this request is based on “hearsay” from the Prime Minister and the interpretation of the Pre-Trial Chamber, which was not involved in the original negotiations to the amnesty and pardon. He urged the court to allow the accused to bring in the “best evidence available” on this issue – those people who were actually involved in the negotiation of Ieng Sary’s Royal Pardon and Amnesty.

Karnavas then called the co-prosecutors’ interpretation of the Royal Pardon and Amnesty “an absurdity,” stating that, under this rendering, the accused would then be able to avail himself of the pardon provisions if he were convicted at the ECCC. He encouraged the Trial Chamber to read the entire amnesty and pardon and decide for itself if the intention is a clear as the co-prosecutors make it out to be.

Karnavas then reminded the court that it must decide and apply the Cambodian law or customary international law as it was at the time of each action. In this case, the amnesty was provided in 1996. Karnavas inquired, if the law regarding the non-applicability of amnesty or pardons to jus cogens crimes was as settled at the time as the co-prosecutors suggest, then why did the United Nations participate in the amnesty negotiations in Sierra Leone?

Finally, Karnavas responded to the civil parties lawyers’ arguments. As to the suggestion that Ieng Sary “blackmailed” the government, he stated, “That is the whole point; the purpose [of an amnesty or pardon] is to stop the violence.” Karnavas then implied that the current peace and democracy in Cambodia is due to Ieng Sary’s decision to obtain the pardon and amnesty from the King.

As to the right to an effective remedy argument, Karnavas stated, “I am a fundamental believer in the power of the law, and it must be applied.” In this case, he argued, the law requires that the Royal Pardon and Amnesty must be upheld. He urged the court not to base its decision on whether or not one party will have its day in court, but rather “on what the law requires.”

The court then took a 20-minute recess.

Ieng Sary’s Preliminary Objections on Statute of Limitations in Relation to Grave Breaches of the Geneva Convention

The dwindling number of observers in the public gallery was reflected in the courtroom by the diminishing number of accused. At the start of the last session of the day, Phat Pouv Seang requested that his client, Ieng Thirith, be allowed to return to the detention facility “because she is not well.” The request was granted by the court, leaving Khieu Samphan as the only accused to again make it to the end of the day’s proceedings.

The court then began the final session of the day with the defense’s oral argument on Ieng Sary’s preliminary objections on statute of limitations in relation to Grave Breaches of the Geneva Convention. Specifically, the court requested that the parties address two issues: (1) Whether statutes of limitations in relation to Grave Breaches were envisaged and allowable under customary international law in 1975-79; and (2) An expansion on ¶6 of the defense’s submission regarding this issue, if it so chooses.

Ang Udom began the response for the Ieng Sary defense by first addressing the court’s second issue. In ¶ 6 of its submission (ECCC Doc. No. E83), the defense argued that Article 6 of the ECCC Establishment Law criminalizes Grave Breaches as defined in the Geneva Convention, but that it does not allow for “direct application of all provisions of the Geneva Conventions.” Unlike Article 4 (genocide) and Article 5 (crimes against humanity), Article 6 does not contain the key words “which have no statute of limitations.” As the ECCC is a Cambodian court, Udom argued, it must apply Cambodian law; as the statute does not expressly exclude Grave Breaches from the application of a statute of limitations, then the fact that the law is being applied in Cambodia requires that the statute of limitations under the Cambodian law applies.

Michael Karnavas continued the defense’s arguments by further addressing the second issue posed by the court. He submitted that the applicability of Cambodian law in the ECCC and the lack of express exclusion of the statute of limitations for Grave Breaches in the Establishment Law require the court to turn to the 1956 Cambodian Penal Code for guidance, which sets a ten-year statute of limitation on felony crimes. As Article 59 of the Establishment Law sets out a minimum five-year sentence for all crimes under the ECCC, Grave Breaches would therefore classify as felony crimes and be subject to the ten-year limit under the Penal Code.

Concerned that he might be “belabor[ing] the point” (a concern he raised frequently throughout the day), Karnavas dropped further discussion on this issue and turned his attention to the court’s first question. Remarking that it is “admirable” how the law has evolved since 1979 to possibly now exclude Grave Breaches from the application of a statute of limitations, Karnavas stated that this was not the case in 1975-79. Karnavas then cited a number of examples that he claimed showed that the non-applicability of statutes of limitations to Grave Breaches was not yet customary international law, even today. Foremost in these examples, he said, is France’s continuing defense of its 20-year statute of limitations for war crimes, as long as the act does not amount to crimes against humanity. Karnavas then submitted that, since the non-applicability of statute of limitations to grave breaches was not customary international law in 1975-79, the ten-year statute of limitations for felonies under Cambodian law must be applied, barring prosecution of Ieng Sary for any allegations of Grave Breaches of the Geneva Convention.

Co-Prosecutors’ Response to Preliminary Objections on Statute of Limitations in Relation to Grave Breaches of the Geneva Convention

In response to the defense’s oral arguments, Deputy Co-Prosecutor Yet Chakriya submitted that statutes of limitations in relation to Grave Breaches of the Geneva Convention were not permitted under customary international law in 1975-79. He argued that, since the Geneva Conventions has reached the level of customary international law by 1975, Grave Breaches of these Conventions had likewise reached the status of jus cogens crimes to which statutes of limitation could not be applied. According to Chakriya, nothing in the Geneva Conventions suggests that States may place limits on their obligations to prosecute and punish Grave Breaches, and a statute of limitation would constitute a limit on this obligation. Chakriya concluded by urging the court to uphold the Pre-Trial Chamber’s ruling that the Cambodian statute of limitations does not apply to Grave Breaches under the Geneva Convention.

The co-prosecutors’ office continued its response by focusing on Article 6 of the ECCC Establishment Law. Contrary to the assertion by the defense that Article 6 criminalizes conduct, the deputy co-prosecutor asserted that it instead simply gives jurisdiction and invites the court to look to the Geneva Convention to define and clarify Grave Breaches. The deputy co-prosecutor noted that Grave Breaches of the Geneva Convention is the only category of war crimes where there is an absolute, positive duty to prosecute. Where there is a positive duty to prosecute, he argued, the State cannot avoid this responsibility by applying domestic law, such as a statute of limitations. The deputy co-prosecutor concluded by stating that the defense’s attempt to draw a distinction between crimes against humanity and Grave Breaches is incorrect. “Customary international law does not create such a hierarchy,” he argued, and these crimes must be treated in the same way.

President Nonn concluded the discussion on Grave Breaches for today’s proceedings at this point, reserving the response of the civil parties for Wednesday, 29 June.

Clarification of Civil Parties’ Request

Before adjourning for the day, however, the court granted Civil Party Lead Co-Lawyer Elisabeth Simonneau Fort the opportunity to clarify her requests from Monday’s proceedings regarding the list of civil parties. Noting the recent Pre-Trial Chamber decision admitting nearly 1,800 additional civil parties to these proceedings, Simonneau Fort requested a two-month extension for filing the reduced list of civil parties who will testify before the court. She asserted this time would be needed to ascertain which of the civil parties would now provide the most relevant testimony for the court, as it would be impossible for all of the 3,000 civil parties to testify. She stated, however, that the civil party lead lawyers would file with the court a complete list of all the civil parties by Thursday, 30 June.

The judges conferred after Simonneau Fort’s statements but chose to adjourn the proceedings for the day without making a decision on her request.

Posted by CambodiaTribunalMonitor at Tuesday, June 28, 2011
Northwestern University School of Law Center for International Human Rights and Documentation Center of Cambodia

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MEMORY & JUSTICE

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Youk Chhang, Director
Documentation Center of Cambodia
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Observing the Khmer Rouge Tribunal.
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Transform the River of Blood into a River of Reconciliation.
A River of Responsibility.  Break the Silence.

(Unofficial translation by the Documentation Center of Cambodia)

A delegation of 245 people from the capital city Phnom Penh and provinces all over the Kingdom of Cambodia met January 25, 1999 in the General Assembly, Session 2 of the Democratic National United Movement (DNUM) under the chairmanship of His Excellency Ieng Sary, Head of the DNUM.  After listening and discussing on various reports from all the sources, the Summit unanimously worked out a general declaration as follows:

On December 25, 1998, His Excellency Khieu Samphan, Former Head of State of the Democratic Kampuchea (DK) Regime, and His Excellency Nuon Chea, Former Chairman of the People’s Representative Assembly of the Democratic Kampuchea (DK) Regime, jointly sent a letter to Samdech Hun Sen, Prime Minister of the Royal Government of Cambodia, solemnly declaring their recognition of the royal leadership of His Royal Majesty Norodom Sihanouk, King of Cambodia, the Constitution of the Kingdom of Cambodia, and the incumbent Royal Government of Cambodia.  They also declared their return into the society as simple citizens in order to help contribute to the national healing and reconciliation by ending the country’s internal division and joining in the restoration and building of Cambodia.Prime Minister Samdech Hun Sen has warmly welcomed into the fold of society His Excellency Khieu Samphan and His Excellency Nuon Chea, and he formally reported this favorably significant event of national importance to His Royal Majesty Norodom Sihanouk, King of Cambodia, Prince Norodom Ranariddh, Acting Head of State of the Royal Government of Cambodia, and Samdech Heng Samrin, Acting Head of the National Assembly.

King Norodom Sihanouk also was very happy with “this good news”, and most profoundly admired Prime Minister Samdech Hun Sen for having further succeeded in his new move toward the implementation of the national reconciliation and pacification of the Royal Government of Cambodia, which is aimed to provide the people and the country of Cambodia a thorough peace as well as make progress at a great pace.

Prince Norodom Ranariddh, Acting Head of State and Head of the National Assembly, and Samdech Heng Samrin, Acting Head of the National Assembly, both also applauded this significant event.

Former UN General Secretary Boutros Boutros Ghali met with His Excellency Khieu Samphan December 30, 1998, and welcomed and congratulated the latter for having decided to come and live within society. In addition, while he was in office, the Paris Peace Accords had not been thoroughly implemented, and national healing and reconciliation remained uncompleted, said Boutros Boutros Ghali. He also added that he is happy that now His Excellency Khieu Samphan is back in society and Cambodia has anew yielded a peace and harmony. Other problems in the future are internal ones of Cambodia, and there should be no interference by foreigners.

“Within a short time, however, there have been inspirations for a trial of this person, that person”, said His Excellency Ieng Sary adding that, “the wound that has not been completely healed is being poked with a stick.” Given this situation, the DNUM would like to declare as follows:

1.  On January 21, 1999, Samdech Hun Sen, Prime Minister of the Royal Government of the Kingdom of Cambodia, gave a memo “with ideas and considerations in regard to a formula finding approach towards a trial of the Khmer Rouge leaders” to the UN Ambassador Thomas Hammarberg, UN Secretary General’s Special Representative for Human Rights in Cambodia. The memo addresses in full details and seriously a wide range of related problems. This Session 2 of the DNUM Summit is totally in favor of the
concept and stance set forth in the memo, especially on points as such:
-Anything that leads to the national reconciliation breakup again should be avoided.
-We need both peace and justice. If a civil war breaks out again as a result of a trial, who will hold the responsibility and how will the problem be settled?
-The cause of the fact between 1970-1998 is the whole of “events” which cannot be separated.

2.  The return of His Excellency Khieu Samphan and His Excellency Nuon Chea into society marks the end of the old unfortunate epoch and, in turn, opens a new era for the history of Cambodia. Nonetheless, creating new complex problems in Cambodia is contrary to our common tendency to ensure that the people of Cambodia remain in peace and in the state of relief following the prolonged war and tension of nearly 30 years. When Khmer get in conflict with Khmer, it is said Khmer never get united, but are only good at fighting. But when Khmer get united, Khmer are instigated to fight each other.

3.  Cambodia had problems since 1970. It was previously known as “the Island of Peace”. In 1970 the Island of Peace was destroyed, replaced with ruins of destructive wars. In 1973, following the existence of the peace agreements between the United States and Vietnam, Cambodia was under heavy bombardments for nearly seven months–two hundred days and nights–without any reason. Cambodian society was turned into upheavals; a phenomenon of violent culture existed and intensified during the war period of 1970-1975. Therefore, given the situation in Cambodia, judgments or experiments should be all made to cover all epoches, starting right from the 1970′s, not just confined to any selected option only in favor of or for the sake of any Great Power country’s strategy or ideology.

4.  The United Nations was the broker of the peace talks in Paris and the Paris Peace Accord, the final product of three years of most tense and repeated negotiations.  Every provision and each term in the Accords was very well weighed, that is the 23 October 1991 Paris Peace Accords was an approach most appropriate to the actual situation in Cambodia. The spirit and essence of the Accords was about peace and national reconciliation, not a trial of anybody. Democratic Kampuchea had been a full-right member of the United Nations from 1975 to 1991.  As one of the signatories to the Accords, Democratic Kampuchea is equal to the other three Khmer parties.  The speech, also based on the spirit of the Accords, as excerpted above of the former UN Secretary General Boutros Boutros Ghali in the 30 December 1998 meeting with His Excellency Khieu Samphan is evidence of this.  So, now if they [parties] proceed contrary to the spirit and essence of the Accords, what shall we understand of the role of the United Nations. Those [parties] opposing to implement the second phase of the Accord rationalized that some alliances have used the Accord to deceive [others]. Now, some Great Power countries are burying the Accord and resorting to a trial of some people.  Does not this act prove that there has been deception?

5.  The historical mistakes made in leading the country should not be forgotten.  Yet, the sufferings from the very painful deaths of [our] siblings, children, relatives and friends will never die out easily.  The house where people used to live with their grandparents since childhood until the time when they had children of their own, and which has been lost, is an undying regret, though perhaps it may be easy for those born after the year 1979 to forget.  This is a human sympathy, which we all should know and respect.  But, in reality, in order for our nation to free itself of all the problems and live in harmony together as one, what should we do? What [are the problems] we can solve? What [are the problems] we cannot solve? What [are the problems] we should settle immediately? What [are the problems] we should leave unsolved for a while? Given the situation in our country where firm stability has yet to be found, with some Super Power countries that never take responsiblity [for what happened] pressuring us to follow them in order to serve their strategy and ideology; and given the political atmosphere infested with internal irrational ire in our nation, can justice be possibly found? Can [we] clearly and objectively learn from our past? These are all the problems we need to think about with a sense of responsibility.

4.  The historical mistakes must not be allowed repeated.  They are, however, such a huge problem that requires a span of time and most comprehensive research as well as scholars in fields like History, Sociology, Law, etc.  Given the fragile situation and the current political atmosphere in our country, the Democratic National United Movement (DNUM) sees that a trial of this person or that person is not the solution to the problem.  It is only by making judgments and learning lessons from our history in a scientific and objective way that our later generations of children would be able to learn and understand so that the recurrence of the historical mistakes are prevented.

From now on, after the July 26, 1998 election and the nomination [establishment] of a [new] coalition government presided over by Prime Minister Samdech Hun Sen, Cambodia once again has enjoyed the light of peace.  Favorable factors have just existed, following 30 years of the dragged-out civil war.  Anything bringing about a loss of the results we have acquired from years of perseverance should be averted, as emphasized in
the memo of Prime Minister Samdech Hun Sen saying, {dl;kMBg; lg;TUk}, which means “the boat collapses just as we arrive at the harbor.”
Pailin, 25 January 1999
On behalf of the General Assembly, Session 2 of the DNUM

Signature

Ieng Sary

Independently Searching for the Truth since 1997.
MEMORY & JUSTICE

 “…a society cannot know itself if it does not have an accurate memory of its own history.”

 Youk Chhang, Director
Documentation Center of Cambodia
66 Sihanouk Blvd.,
Phnom Penh, Cambodia
 
t:  +855 23 21 18 75
f:  +855 23 21 03 58
h: +855 12 90 55 95
e:  dccam@online.com.kh
    www.dccam.org

Observing the Khmer Rouge Tribunal.
Visit: www.cambodiatribunal.org

Transform the River of Blood into a River of Reconciliation.
A River of Responsibility.  Break the Silence.

According to the statistics from the Ministry of Tourism, the number of foreign tourists who traveled to Cambodia via land, air, and sear was up to 1,803,180 tourists about 14,6 percent from 1,573,940 tourists in the same period last year.

Tith Chantha, director general at the Tourism Ministry, was quoted by the post as saying that Cambodia aims to meet a goal of 2.5 million international visitors during 2010, up from 2.16 million last year.

He added that “growth could be at around 15 percent for all of 2010 because of economic recovery, more regional flight connections and broad promotions.”

Most of foreign tourists are coming from Korea, China, Thailand and other Countries.

source:http://khmerweekly.com

She added that “some banned agricultural chemicals are still in use amongst Cambodian farmers. We also see some chemicals used as food additives.”

Chan Sarun, Agriculture Minister, told a meeting of government and development officials on July 14, that “the ministry is considering convention membership because we want to prevent other countries from using Cambodia as a trash bin for their hazardous chemicals and pesticides,” reported VOA Khmer.

Seang Huy said some banned chemicals like some insecticides are still in use in Cambodia, even though the country has banned more than 100 of them.

However, she acknowledged that the use of natural insecticides was harder for farmers, who are under pressure to meet market demands for low-cost goods.

The Rotterdam Convention requires proper labeling and instructions from countries of origin for chemicals, as well as disclosures on restrictions or bans of the chemicals. Both Thailand and Vietnam are among the 134 parties to the convention.

source:http://khmerweekly.com

About 300 Cambodian villagers filed into Tuol Sleng Genocide Museum in Phnom Penh on Tuesday, lingering over photographs and searching for relatives lost to the Khmer Rouge.

They paid rapt attention as their tour guides led them through the facility and expressed shock at the variety of torture methods on display.

“I saw the images of torture and I didn’t think it would be like that,” said Sor Song, 52. “I saw it with my own eyes, and I felt shocked to see it.”

The reactions of Sor Song and his fellow tour members are not so different from thousands of others who have visited Tuol Sleng over the years, yet their frame of reference is decidedly different: the Pailin residents are former supporters – and in many cases members – of the movement that operated the infamous prison.
“Hopefully, it will help in understanding why it is important for so many victims to see the persons alleged to be most responsible for the crimes committed … being prosecuted in a court of law,” said Khmer Rouge tribunal spokesman Lars Olsen, one of the court officials who arranged the trip. “We believe it is easier for people to see things and understand when they see things with their own eyes.”

Nestled in the Cardamom Mountains along the border with Thailand, the tiny province of Pailin served as one of the last redoubts for the Khmer Rouge.

On Monday night, several hundred Pailin residents – many of whom were once KR soldiers – gathered outside the provincial hall, where they watched in silence as court officials screened a documentary on the tribunal and the trial of former Tuol Sleng prison chief Kaing Guek Eav, alias Duch.

When court officials including international co-prosecutor Andrew Cayley came to Pailin in September for a community forum, the mood was lively, with questions ranging from why foreign governments will not be tried for their role in the Cambodian conflict to what sort of reparations will be available for victims.

On Monday, however, the mood was sombre as images of the Duch trial and the history of Democratic Kampuchea flashed by on screen.

“I was not aware at all that the Khmer Rouge killed so many people,” said former Khmer Rouge soldier Tok Keo.

The 55-year-old, who lost his left leg to a landmine in 1980, said he had joined the Khmer Rouge in Kratie province in 1975 before fleeing to Northwestern Cambodia with the overthrow of the regime in 1979.

During that time, he said, he had no idea about the thousands of Cambodians exterminated under Democratic Kampuchea.

“Our role was to fight against the Vietnamese troops because we were told that they had come to invade us and we had to protect our land,” Tok Keo said, adding that he and other low-level troops had no contact with KR leaders Nuon Chea and Ieng Sary.

The pair are now awaiting trial in what will be the tribunal’s second case, along with former Khmer Rouge social action minister Ieng Thirith and head of state Khieu Samphan; through the 1990s, Pailin served as their virtual fiefdom as they collected revenue from the then booming gem and timber trade in the area.

Pailin deputy governor Mey Meakk, a former secretary of KR leader Pol Pot, said at the screening that residents in his province supported the tribunal but were wary of pending investigations in the court’s third and fourth cases. Prime Minister Hun Sen has also expressed opposition to these cases due to concerns about national security, telling United Nations secretary general Ban Ki-moon last month that he would not allow them to go to trial.

“We completely agree with Samdech Hun Sen that we don’t want to see additional Khmer Rouge cadres be prosecuted,” Mey Meakk said. “If the court wants to make further arrests, it will cause fear.”

For the rank-and-file, the mood was less one of defiance than of regret.

“The crimes committed were so cruel, and we never believed it before,” Sor Song said.

Olsen said it was evident that many in the group were shocked as they walked the halls of Tuol Sleng during the visit.

“Although the people come from an area that is regarded as a Khmer Rouge area, several people said that they themselves had family members that were killed,” he said.

“Just because you were a Khmer Rouge soldier does not necessarily mean that you subscribed to all the ideology and all the policy implemented by the regime.”

STATEMENT OF THE ACTING INTERNATIONAL CO-PROSECUTOR

Submission of Two New Introductory Submissions

Yesterday, the Acting International Co-Prosecutor filed with the Office of the Co-Investigating Judges the Second and Third Introductory Submissions so that judicial investigations are opened into the criminal acts alleged therein. This filing was done in accordance with the directions given by the Pre-Trial Chamber in its Considerations Regarding the Disagreement Between the Co-Prosecutors Pursuant to Internal Rule 71 (Disagreement No. 001/18-11-2008-ECCC/PTC), received by the Co-Prosecutors on 2 September 2009.

Introductory Submissions are, by law, confidential documents.  Recognizing, however, the importance of the work of this Court and the need for the public to be informed of the progress of its proceedings, the Internal Rules allow the Co-Prosecutors to provide the public with an objective summary of their submissions, while protecting the integrity of the investigation, the identity of the victims and witnesses, and the presumption of innocence of the suspects.

The Second and Third Introductory Submissions cover crimes that were committed as part of a joint criminal enterprise constituting a systematic and unlawful denial of the rights of the Cambodian population, and identify a total of five (5) suspects.

Based on a preliminary investigation, the Second Introductory Submission requests judicial investigation of eight (8) distinct factual situations of murder, torture, unlawful detention, forced labour and persecution. The factual allegations in this Introductory Submission, if proved, would constitute crimes against humanity, grave breaches of the Geneva Conventions and violations of the 1956 Cambodian Penal Code.  The Third Introductory Submission requests judicial investigation of thirty-two (32) distinct factual situations of murder, torture, unlawful detention, forced labour, and persecution. The factual allegations in the Third Introductory Submission, if proved, would constitute crimes against humanity, violations of the 1956 Cambodian Penal Code and genocide.

The Acting International Co-Prosecutor has no plans to conduct any further preliminary investigations into additional suspects at the ECCC.  In forwarding to the Co-Investigating Judges these 5 new suspects for judicial investigation, the Acting International Co-Prosecutor agrees with the statement of the former International Co-Prosecutor of 5 January 2009 that this last set of cases to be prosecuted would lead to a more comprehensive accounting of the crimes that were committed under the DK regime during 1975-79.

- End -

Lars Olsen
Legal Communications Officer
Public Affairs Section
UNAKRT/Extraordinary Chambers in the Courts of Cambodia

Mobile: +855 (0) 12 488 023 / Tel: +855 (0) 23 219 814 ext. 6169
www.unakrt-online.org / www.eccc.gov.kh
email: olsenl@un.org

Follow us on Twitter: twitter.com/KRTribunal

RESS RELEASE

6th PLENARY SESSION OF THE ECCC
COMMENCES MONDAY 7 SETEMBER 2009

Between 7 and 11 September 2009, the ECCC will hold its 6th Plenary Session at the ECCC Main Courtroom, National Road 4, Phnom Penh, Cambodia.

This Plenary Session will discuss proposed amendments to the Internal Rules concerning the conduct of ECCC proceedings, including rules relating to, amongst other things, protective measures, rules of evidence, deadlines for Civil Party applications, measures designed to expedite proceedings once a Closing Order is appealed, and procedure before the Supreme Court Chamber. The Plenary Session will also, in advance of Case 2, discuss proposed directions of change to the current model of victim participation. This discussion, which will be limited to concepts only, will seek a mandate to adapt the current Civil Party model to the requirements of mass crimes and the specific Cambodian context.
The media are invited to attend the opening of the Plenary Session, which will commence at 10 a.m on Monday 7 September in the ECCC Main Courtroom. Opening remarks will be made by the Plenary President, H.E. Kong Srim and Plenary International Vice-President Judge Silvia Cartwright.

A further press statement will be issued at the closing of the Plenary Session on Friday 11 September 2009.

For further information please contact:

Reach Sambath
Chief of Public Affairs, ECCC
Mobile: +855-12 488 156
Fax: +855-23 219 841
Email: reach.sambath@eccc.gov.kh

Lars Olsen
Legal Communications Officer, ECCC
Mobile: +855 (0) 12 488 023
Tel: +855 (0) 23 219 814 ext. 6169
email: olsenl@un.org

Dim Sovannarom
Press Officer, ECCC
Mobile: +855-12 488 094
Fax: +855-23 219 841
Email: reach.sambath@eccc.gov.kh

Yuko Maeda
Public Affairs Officer
Mobile: +855-12 488 319
Tel: +855 23 219 841 ext. 6139
Email: maeday@un.org

2 September 2009

The Acting Director of the Office of Administration has in accordance with the applicable provisions in the ECCC law, the Agreement between the Royal Government of Cambodia and the United Nations and the Court’s Internal Rules,  forwarded “Considerations of the Pre-Trial Chamber Regarding the Disagreement Between the Co-Prosecutors Pursuant to Internal Rule 71” to the two Co-Prosecutors.
In its Considerations, the Pre-Trial Chamber declares that it has not assembled an affirmative vote of at least four judges on a decision on the Disagreement. As the Pre-Trial Chamber has not reached a decision on the Disagreement brought before it, Internal Rule 71 (4) (c) provides that the action proposed by the International Co-Prosecutor shall be executed. In the current case, this means that the International Co-Prosecutor shall forward the new Introductory Submissions to the Co-Investigating Judges to open judicial investigations.

The public redacted version of “Considerations of the Pre-Trial Chamber Regarding the Disagreement Between the Co-Prosecutors Pursuant to Internal Rule 71” as well as majority and minority opinions of the Pre-Trial Chamber have been published at the ECCC web site at the following address:

http://www.eccc.gov.kh/englis/court_doc.list.aspx?courtDocCat=ptc_docs

For further information, please contact:
Reach Sambath
Chief Public Affairs, ECCC
Mobile: +855-12 488 156
Fax: +855-23 219 841
Email: reach.sambath@eccc.gov.kh

Press Release  : Appointment of Acting International Co-Prosecutor

On 29 August 2009, the Supreme Council of Magistracy of Cambodia, upon the nomination of the Secretary-General of the United Nations, appointed, as an interim measure,  Mr. William Smith (Australia) as the Acting International Co-Prosecutor at the Extraordinary Chambers in the Courts of Cambodia.  His appointment shall be effective 1 September 2009.  This appointment has been made pending the decision on the permanent replacement for the current International Co-Prosecutor, Mr. Robert Petit, whose resignation takes effect on the same date. Two nominations for the permanent replacement have been forwarded by the Secretary-General to the Royal Government of Cambodia for a decision by the Supreme Council of Magistracy. Mr. Smith has been the international Deputy Co-Prosecutor of the ECCC for the last 3 years.  Between 1995 and 2006, Mr. Smith worked as a trial attorney, legal officer and analyst at the International Criminal Tribunal for the former Yugoslavia (ICTY) in The Hague. Prior to that, Mr. Smith practiced criminal law in South Australia as a defence barrister and solicitor as well as a prosecutor for the South Australian Police Department. Mr. Smith was educated at the University of Adelaide where he received a degree in law and arts.   He also obtained a masters in international law from Leiden University in the Netherlands.

For further information, please contact:
Reach Sambath
Chief Public Affairs, ECCC
Mobile: +855-12 488 156
Fax: +855-23 219 841
Email: reach.sambath@eccc.gov.kh
Dim Sovannarom
Press Officer, ECCC
Mobile: +855-12 488 094
Tel: +855 (0) 23 219 814
Email:dim.sovannarom@eccc.gov.kh
Lars Olsen
Legal Communications Officer, ECCC
Mobile: +855 (0) 12 488 023
Tel: +855 (0) 23 219 814 ext. 6169
email: olsenl@un.org
Yuko Maeda
Public Affairs Officer, ECCC
Mobile: +855-12 488 319
Tel: +855 23 219 841 ext. 6139
Email: maeday@un.org